State v. BakerState v. Baker
Rendered on the 25th day of June, 2010.
STEPHEN K. HALLER, Atty. Reg. #0009172, by ELIZABETH A. ELLIS, Atty. Reg. #0074332, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
KOREY BAKER, Inmate #466-642, Southern Ohio Correctional Institution, Post Office Box 45699, Lucasville, Ohio 45699 Attorney for Defendant-Appellant
FAIN, J.
{¶ 1} Defendant-appellant Korey Baker appeals from an order overruling his motion for a new trial, without a hearing. Baker contends that the trial court erred in finding that his motion was barred by res judicata, since the grounds urged in support of the motion, based upon matters outside the record, could not have been urged in a direct appeal from his conviction and sentence.
I
{¶ 3} Baker, a juvenile, wаs tried as an adult in 2004 on two counts of Attempted Murder and two counts of Felonious Assault, each with a firearm specification. He was acquitted on one count of Attempted Murder, and convicted on the other count of Attempted Murder, and thе firearm specification, and on both Felonious Assault counts, and the firearm specifications. It appears that one of the Felonious Assault convictions was merged into the other, as an allied offense of similar import. Baker was sentenced to 9 years imprisonment for Attempted Murder, to 6 years imprisonment for Felonious Assault, and to 3 years imprisonment for each of the firearm specifications. The firearm-specification sentences were ordered to be sеrved concurrently with one another, but the sentences were otherwise ordered to be served consecutively, for an aggregate sentence of 18 years.
{¶ 4} Baker‘s appeals to this court and to the Supreme Court of Ohio were unsuсcessful.
{¶ 6} On June 25, 2009, Baker filed a motion for a new trial. This motion was overruled in an entry filed June 29, 2009, wherein the trial court held that Baker‘s claim for relief was barred by res judicata, the grounds for his new motion being essentially the same as the grounds he urged in support of his earlier motion.
{¶ 7} On July 28, 2009, Baker filed a notice of appeal, invoking the jurisdiction of this court. His notice of appeal, in its entirety, is as follows:
{¶ 8} “Comes Now Defendant/Appellant, pro se and pursuant to Rule 3 of the Ohio Rules of Appellant [sic] procedure and hereby gives Notice of his Appeal in thе Denial of his Motion for New trial herein.”
II
{¶ 9} Baker‘s First Assignment of Error is as follows:
{¶ 10} “IT CONSTITUTED ERROR WHEN TRIAL COURT DENIED DEFENDANT‘S POST CONVICTION MOTION FOR NEW TRIAL ON RES JUDICATA GROUNDS.”
{¶ 11} Baker appears to argue that he could not have raised, in his direct appeal, the issue he now wishes to raise – that his trial counsel was “ ‘not competent’ at all” – because the issue relies uрon matters outside the record of the direct appeal. In this, he appears to be misconstruing the trial court‘s application of res judicata to his motion for a new trial. Both Baker‘s first motion for a new trial and his
{¶ 12} The order overruling Baker‘s second motion for a new trial reads, in its entirety, as follows:
{¶ 13} “The Defendant has filed a Motion for New Trial on June 25, 2009.
{¶ 14} “He essentially is rehashing the issue he raised, in part, in his motion for new trial filed April 27, 2009.
{¶ 15} “On June 8, 2009 the Court denied his earlier motion.
{¶ 16} “The Defendant offers nothing new. His motion is untimely, the complaints raised were public record years ago, and his request is barred by res judicata. He has not satisfied his burden under the law.
{¶ 17} “Motion of June 25, 2009 is DENIED without a hearing.”
{¶ 18} The trial court‘s invocation of res judicata was expressly based upon its denial of Baker‘s prior motion for a new trial, not upon the outcome of the direct aрpeal.
{¶ 19} In his brief, Baker asserts that his two motions for a new trial raise different issues, but we have read them, and we agree with the trial court that the issues raised in his two motions are the same.
{¶ 20} Baker‘s claim, in support of both motions, is that his trial counsel was рreoccupied with a pending assault charge filed against the attorney by the attorney‘s secretary, as a result of which trial counsel misadvised him to pursue the defense of self-defense, which did not really fit the facts of the case, rather than to seek an
{¶ 21} As an aside, we agree with Baker that the facts in this case better fit a theory that he was guilty merely of Aggravated Assault, than they fit a theory of self-defеnse. The principal victim evidently struck Baker with a golf club, after which Baker ran to his car, some 80 to 100 yards away, retrieved a semi-automatic handgun, returned to where the victim was standing, with several friends, all with their backs turned to Baker, and opened firе upon them. That is not to say that a jury would likely have found Baker guilty of Aggravated Assault, had it been instructed on that offense. We merely agree that an Aggravated Assault conviction would have been a more plausible outcome than a self-defense acquittal.
{¶ 22} The following excerpts from Baker‘s first motion for a new trial show the nature of his argument:
{¶ 23} “In Nov 2003 my trial attorney was charged with Assault and a civil protection order barring him from having any contact with her.
{¶ 24} “During this time he was representing me in my case. I the Defendant Korey L. Baker should have been notified immediately by the prosecution or the court should have been notified of the situation, but the prosecutor knowingly chose to withhold this evidence and/or vital information from the Defendant thаt his trial Attorney is possitably [sic] ineffective.1
{¶ 25} “The fact that Mr. Hamilton continued to harass his secretary during my
{¶ 26} “Had the Defendant know [sic] about this, Mr. Hamilton would have been fired and Defendant would have requested the court to appoint new counsel and his trial would have had a different outcome.
{¶ 27} “The Defendant would have been advised by new counsel that all the evidence against him do [sic] not support the Self Defensе Theory that Mr. Hamilton advised him was the proper way to go.
{¶ 28} “* * * *
{¶ 29} “As stated before Defendant would obtain new counsel a more functioning counsel would have entered a jury instruction for Aggravated Assault and the Defendant would have avoided the Attempted Murder conviction along with the Felonious Assault conviction.”
{¶ 30} In his second motion for a new trial, Baker essentially raises the same issue. The only new information offered is Baker‘s claim that before trial, his trial counsel was admitted to the Wright Patterson Air Force Base Medical Center for a mental evaluation. He does not allege what the outcome of that mental evaluation was.
{¶ 31} We agree with the trial court that Baker was essentially “rehashing” his claim of ineffective assistance of counsel in his second motion for a new trial, so that it was barred by res judicata.
{¶ 32} In reaching this conclusion, we have assumed that Baker‘s appeal is taken from the June 29, 2009 order denying his second motion for a new trial. We assume this becausе Baker not only has failed to seek leave to file an untimely
{¶ 33} Even if we were to construe this appeal to include, within its scope, the June 8 order denying Baker‘s first motion for a new trial, we would still affirm. In that order, the trial court notes that, because the motion for a new trial is untimely:
{¶ 34} “The Court must determine whether or not the Defendant has established by clear and convincing evidence that he was unavoidably prevented from discovering the evidence. In this case, the Defendant makes general allegations that the prosecution, trial attorney, and/or judge withheld evidence vital to his case. However in his own motion he states ‘a few months later I received the evidence I needed to prove the prosecution, trial attorney, and/or judge withheld evidence and/or vital information...’ The Defendant however fails to articulate exactly what the evidence is hе claims was withheld from him. He generally indicates that his attorney had legal difficulties in another court. The Defendant‘s general allegations do not rise to the level of evidence which would change the outcome of his case as required by thе rule and case law.”
{¶ 35} We agree with the trial court that the information Baker cites concerning his trial counsel‘s mental state is not “evidence” within the contemplation of
{¶ 36} Because we agree with the trial court that Baker‘s first motion for a new trial failed tо identify newly discovered “evidence” that could not, with reasonable diligence, have been discovered before trial, we agree with the trial court‘s overruling of that motion. Thus, even if the June 8, 2009 order denying Baker‘s first motion for a new trial were within the sсope of this appeal, we would not disturb it.
{¶ 37} Baker‘s First Assignment of Error is overruled.
III
{¶ 38} Baker‘s Second Assignment of Error is as follows:
{¶ 39} “THE TRIAL COURT ERRORED [sic] WHEN IT DENIED APPELLANT‘S MOTION FOR POSTCONVICTION RELIEF WITHOUT A HEARING.”
{¶ 40} Although this assignment of error refers to a “motion for postconviction relief,” no petition for post-conviction relief has been filed in this record. The only motions, being the motions already citеd, filed on April 27, 2009, and June 25, 2009, are both expressly denominated as motions for a new trial, and both expressly invoke
{¶ 41} It is true that the trial court overruled both of Baker‘s motions for a new trial without a hearing. But the trial court could correctly determine, on the face of
{¶ 42} Also, as noted in Part II, above, the trial court correctly determined, from the face of Baker‘s second motion for a new trial, that it raised nothing new, that had not already been raised in Baker‘s first motion for a new trial, and was therefore barred by res judicata. The only additional fact set forth in Baker‘s second motion was that his trial counsel had been referred for a mental evaluation. If that has any significance, in the absence of some indication of the result of the evaluation, it is still not evidence pertaining to Baker‘s guilt or innocence, within the contemplation of
{¶ 43} In neither of his motions for a new trial did Baker assert facts that, if true, would entitle him to relief. Therefore, there was no neеd for a hearing, and the trial court did not err in denying either motion without a hearing.
{¶ 44} Baker‘s Second Assignment of Error is overruled.
IV
{¶ 45} Both of Baker‘s assignments of error having been overruled, the judgment of the trial court is Affirmed.
(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Stephen K. Haller
Elizabeth A. Ellis
Korey Baker
Hon. Stephen Wolaver