STATE OF OHIO, Plаintiff-Appellee v. MICHAEL D. HARWELL, Defendant-Appellant
Appellate Case No. 28104
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
February 22, 2019
2019-Ohio-643
Trial Court Case No. 2012-CR-2367 (Criminal Appeal from Common Pleas Court)
Rendered on the 22nd day of February, 2019.
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
MICHAEL D. HARWELL, #687-427, P.O. Box 69, London, Ohio 43140 Attorney for Defendant-Appellant
{¶ 1} Michаel D. Harwell, pro se, appeals from a judgment of the Montgomery County Court of Common Pleas, which denied his motion for leave to file a delayed motion for a new trial. For the following reasons, the trial court‘s judgment will be affirmed.
I. Background and Procedural History
{¶ 2} We detailed the facts underlying Harwell‘s convictions in his direct appeal, State v. Harwell, 2d Dist. Montgomery No. 25852, 2015-Ohio-2966. Tо summarize, on the night of June 15, 2012, Harwell was involved in a drug deal that went awry. Harwell purchased two ounces of cocaine that, unbeknownst to him, was cut/diluted with other substances. In an attempt to get his money back from Jonathon Lambes and Jason Miller, two men involved in the sale of the cocaine, Harwell allegеdly kidnapped Lambes and Miller and drove them to another location, where Harwell fired several gunshots at them. Miller was shot multiple times and was left to die in the street; Lambes escaped into the woods. In November 2012, Harwell was indicted on 14 charges related to the incident; the matter ultimately procеeded to a week-long jury trial.
{¶ 3} In June 2013, a jury found Harwell guilty of felony murder (felonious assault), felony murder (kidnapping), attempted felony murder (felonious assault), attempted felony murder (kidnapping), two counts of kidnapping (terrorize/physical harm; no safe release), two counts of kidnapping (substantial risk of serious physical harm; no safe release), two counts of kidnapping (felony or flight), two counts of felonious assault (deadly weapon) and one count of felonious assault (serious physical harm); each count included a firearm specification. The trial court found Harwell guilty, after a bench trial, of having a weapon while under disability. After merging certain counts and
{¶ 4} Harwell appealed from his convictions, raising 14 assignments of error. Harwell claimed that his counsel was ineffective in several respects, that the indictment was defective, that the jury verdict forms were contrary to law, that the trial court‘s jury instruction defining the term “cause” was improper, that the trial court erred in imposing consecutive prison terms for two firearm specifications, that his convictions were based on insufficient evidence and were against the manifest weight of the evidence, аnd that the court erred in imposing restitution without determining his present and future ability to pay.
{¶ 5} On July 24, 2015, we concluded that Harwell‘s counsel was ineffective for failing to file a motion to dismiss the charges of attempted felony murder, because such an offense does not exist in Ohio. We vacated the attempted felony murder convictions (Counts 3 and 4) and remanded the matter for resentencing on the count and the firearm specifications that were merged with Counts 3 and 4, i.e., Count 13 (felonious assault of Lambes) and the firearm specifications attached to the counts related to Lambes (Counts 5, 7, 9 and 13). Harwell at ¶ 90. We affirmed the trial court‘s judgmеnt in all other respects. Id.
{¶ 6} On August 13, 2015, the trial court conducted a resentencing hearing in accordance with our appellate judgment. After again merging several of the offenses and firearm specifications, Harwell was sentenced on one count of felony murder, two
{¶ 7} In 2016, Harwell filed motions related to the order to pay court costs and financial sanctions. The trial court waived the balance of his court costs, but it denied a waiver of fines and restitution.
{¶ 8} In 2017, Harwell asserted that his sentences were partially void due to the trial court‘s failure to properly impose post-release control at the resentencing hearing, and he sought a de novo sentencing hearing. The trial court denied the motion, and Harwell appealed. We overruled the assignments of error and affirmed the trial court‘s judgment. State v. Harwell, 2d Dist. Montgomery No. 27658, 2018-Ohio-1950.
{¶ 9} On June 15, 2018, Harwell filed a motion for leave to file a delayed motion for a new trial. He clаimed that his motion was untimely due to ineffective assistance of trial counsel, namely that his trial counsel did not inform him of the time requirements for filing a motion for a new trial. Harwell further claimed he was entitled to a new trial based on “actual innocence.” Specifically, Harwell asserted that the prosеcution was “relieved of its burden” of proving all the essential elements of felony murder at trial, and the trial court failed to instruct the jury on the differences between felony murder and involuntary manslaughter. Harwell claimed that the prosecution failed to present evidence of felony murder, as oppоsed to involuntary manslaughter, and thus he was actually innocent of felony murder. In addition, Harwell argued that his trial counsel acted deficiently by
{¶ 10} The State did not respond to Harwell‘s motion for leave.
{¶ 11} On August 7, 2018, the trial court denied Harwell‘s motion for leave. The court noted that Harwell‘s motion “relie[d] upon arguments that were or could have been raised in his direct appeal.” The court found that Harwell failed to present clear and convincing proof that he was unavoidably prevented from timely filing his motion for a new trial and, further, that the record did not support that he was unavoidably prevented from the discovery of evidencе upon which he must rely.
{¶ 12} Harwell appeals from the denial of his motion for leave to file a delayed motion for a new trial, raising four assignments of error.
II. Denial of Harwell‘s Motion for Leave
{¶ 13} Harwell‘s assignments of error state:
- The trial court erred to the prejudice of the defendant-appellant in violation of his absolute right to procedural due process by sua sponte dismissing the application o[n] res judicata grounds.
- The trial court erred to the prejudice of the defendant-appellant in violation of his absolute right to procedural due process where the court granted the appellee a summary judgment.
- It was prejudicial error in violation of the appellant‘s absolute right to procedural due process for the trial court to summarily overrule the motion
for leave to file a delayed motion for new trial where the appellant showed cause for the delay and presented colorable claims of actual innocenсe. - It was plain error for the trial court not to declare the defendant-appellant‘s conviction and judgment void where he was subjected to hybrid representation at trial of this case.
We will address Harwell‘s assignments of error together.
{¶ 14} Motions for a new trial are governed by
(A) Grounds. A new trial may be granted on motion of the defendаnt for any of the following causes affecting materially his substantial rights:
(1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial;
(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the statе;
(3) Accident or surprise which ordinary prudence could not have guarded against;
(4) That the verdict is not sustained by sufficient evidence or is contrary to law. * * *;
(5) Error of law occurring at the trial;
(6) When new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and produced at the trial. * * *
{¶ 16} In order to file a motion for new trial after the expiration of the time periods specified in
{¶ 17} ” ‘[A] party is unavoidably prevented from filing a motion for new trial if the
{¶ 18} We review the trial court‘s denial of leаve to file a motion for a new trial for an abuse of discretion. State v. Devaughns, 2d Dist. Montgomery No. 25826, 2015-Ohio-452, ¶ 15. An abuse of discretion occurs when the decision of a court is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 19} It is undisputed that Harwell was required to obtain leave to file a delayed motion for a new trial. Harwell was convicted in July 2013. Hе did not file his motion for leave to file a delayed motion for new trial until June 2018, five years later, which was well beyond the time limitations in
{¶ 20} On appeal, Harwell focuses on the trial court‘s statement that his motion “relie[d] upon arguments that were or could have been raised in his direct appeal,
{¶ 21} In asserting that the untimeliness of his motion for a new trial should be excused, Harwell stated in his affidavit that his attorney “did not propеrly confer and consult with me concerning the requirements of Ohio Criminal Rule 33(B) relevant to time restraints” and, thus, counsel rendered ineffective assistance. Even accepting that Harwell‘s trial attorney did not inform Harwell of the time requirements of
{¶ 22} We generally have held that a defendant‘s lack of knowledge of time limitations, even due to the failure of his attorney to notify him of such, does not establish that a defendant was “unavoidably prevented” from filing a timely motion. See State v. Wells, 2d Dist. Champaign No. 2010 CA 5, 2010-Ohio-3238, ¶ 23 (“We have held that a defendant‘s lack of knowlеdge of Ohio‘s post-conviction relief process, even due to the failure of his attorneys to notify him of such, does not satisfy
[T]he general failure of counsel (appointed for trial or direct appeal) to advise a defendant of postconviction procedures does not equate to being “unavoidably prevented from discovering the facts upon which he must rely to present the claim for relief.” See
R.C. 2953.23(A)(1)(a) . The statute speaks of being unavoidably prevented from discovering facts, not the law. A petitioner‘s assertion that he was not informed of the procedural mechanism of postconviction relief is essentially an argument for the creation of an additional exception to the statutory deadlines. See State v. Theisler, 11th Dist. No. 2009-T-0003, 2009-Ohio-6862, ¶ 18-21. “Merely because counsel failed to advise him of the deadline for filing a petition does not show he was ‘unavoidably prevented’ from discovering the deadline on his own or from other sources. Ignorance of the law as to the time for filing is no excuse.” State v. Halliwell, 134 Ohio App.3d 730, 735, 732 N.E.2d 405 (8th Dist.1999). Accordingly, Appellant‘s alleged state of being unaware of the law on postconviction relief does not satisfy an exception to the stаtute‘s timeliness requirements. See State v. Wolff, 7th Dist. No. 10-MA-184, 2012-Ohio-5575, ¶ 16.
State v. Clay, 2018-Ohio-985, 108 N.E.3d 642, ¶ 12 (7th Dist.). Accord State v. Taylor, 8th Dist. Cuyahoga No. 104892, 2018-Ohio-264, ¶ 4 (appellate counsel‘s failure to inform the defendant of the availablility of
{¶ 24} Becausе Harwell has not demonstrated by clear and convincing evidence that he was unavoidably prevented from timely filing the motion for a new trial, the trial court did not abuse its discretion in denying his motion for leave to file a motion for a new trial. The trial court was not required to grant Harwell‘s motion merely becausе the State did not oppose the motion; Harwell‘s procedural due process rights were not violated.
{¶ 25} Finally, Harwell claims that the trial court erred in failing to declare his conviction void, because he was “subjected to hybrid representation at trial.” Harwell did not raise this issue in his motion for leave, and he cannot raise this new issue for the first time on appeal from the trial court‘s denial of his motion for leave. See, e.g., State v. Armstrong, 2d Dist. Montgomery No. 27413, 2018-Ohio-191, ¶ 7; State v. Anderson, 2017-Ohio-5656, 87 N.E.3d 1203, ¶ 4 (2d Dist.).
{¶ 26} Harwell‘s assignments of error are overruled.
III. Conclusion
{¶ 27} The trial court‘s judgment will be affirmed.
Copies sent to:
Mathias H. Heck
Sarah E. Hutnik
Michael D. Harwell
Hon. Mary L. Wiseman