State v. HazelState v. Hazel
Rendered on the 23rd day of February, 2018.
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark County Prosecutor‘s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
MARIA L. RABOLD, Atty. Reg. No. 0089080, 443 East Central Avenue, Miamisburg, Ohio 45342
Attorney for Defendant-Appellant
MICHAEL HAZEL, Inmate No. 647-444, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601
Defendant-Appellant-Pro Se
Procedural History
{¶ 2} A recitation of the long and somewhat complicated history of Hazel‘s case is helpful to an understanding of his newly discovered evidence contention, and why this evidence, from Hazel‘s perspective, entitles him to a new trial. Hazel‘s newly discovered evidence has its genesis in Hazel‘s 2003 conviction for aggravated burglary in Clark No. 03-CR-0592 (2003 case). Hazel, in the 2003 case, was indicted for aggravated burglary, domestic violence, and intimidation of a witness. The victim was Kunce, who, at the time, thought Hazel was the father of her child. The 2003 case was resolved by Hazel‘s plea
{¶ 3} Hazel and Kunce, sometime in 2004, underwent DNA paternity testing which revealed that Hazel was not the father of Kunce‘s daughter.
{¶ 4} Hazel, thereafter, was indicted in Clark County in four interrelated cases. In Clark No. 10-CR-808, Hazel was indicted for domestic violence, felonious assault, and kidnapping. The domestic violence count included an attached pregnancy specification and an allegation that Hazel had previously been convicted of domestic violence in Clark No. 09-CR-212 and aggravated burglary in the 2003 case. In Clark No. 10-CR-827, Hazel was indicted for domestic violence. The indictment included a pregnancy specification and the assertion that Hazel had previously been convicted of domestic violence in Clark No. 09-CR-212 and aggravated burglary in the 2003 case. Hazel, in Clark No. 10-CR-828, was indicted for domestic violence. The indictment included an attached pregnancy specification and the assertion that Hazel had previously been convicted of domestic violence in Clark No. 09-CR-212 and of aggravated burglary in the 2003 case. Finally, Hazel, in Clark No. 11-CR-49, was indicted on three counts of felonious assault with, evidently, one of the felonious assault counts superseding and replacing the felonious assault count contained in Clark No. 10-CR-808. The indictments involved a common victim, and, based upon this, the trial court, at the State‘s request, consolidated the four cases under Clark No. 10-CR-808 (2010 cases).
{¶ 5} The consolidated cases proceeded to a jury trial on March 2, 2011. The trial court, based upon the State‘s concession, granted Hazel‘s
{¶ 6} The State‘s evidence regarding Hazel‘s previous domestic violence conviction was established by Hazel‘s guilty plea in Clark No. 09-CR-212. The State‘s evidence regarding the aggravated burglary conviction involving a family or household member was provided by Andrew Wilson, the prosecuting attorney in Hazel‘s 2003 case. Wilson‘s testimony referenced a bill of particulars prepared for use in the 2003 case. Wilson testified that the bill of particulars indicated that “the underlying offense [supporting an aggravated burglary conviction] was domestic violence, meaning that the victim was a family or household member.”
{¶ 7} The trial court imposed Hazel‘s sentence immediately after the jury‘s verdicts. The trial court, based upon the pregnancy specifications, had to impose a prison term on both domestic violence convictions. Further, the jury‘s determination that Hazel had been convicted of domestic violence in Clark No. 09-CR-212 and of aggravated burglary involving a family or household member in the 2003 case made each domestic violence conviction a third, as opposed to a fourth, degree felony. The trial court, with this background in mind, imposed a five year prison term on each count and ordered that the sentences be served consecutively resulting in, of course, a ten year prison term.
{¶ 8} Hazel pursued a direct appeal. We, on March 2, 2012, affirmed Hazel‘s convictions. State v. Hazel, 2d Dist. Clark No. 2011-CA-16, 2012-Ohio-835. Hazel also
{¶ 9} Hazel also filed a pro se petition in the Federal District Court, Southern Dist. of Ohio seeking habeas corpus relief under
{¶ 10} This gets us to the motion which generated Hazel‘s pending appeal. The motion, filed pro se on February 25, 2016, sought leave from the trial court to file a motion for a new trial “on the basis of newly discovered evidence... [that] could not have been produced at trial with reasonable diligence.” Hazel‘s motion includes numerous allegations, but the purported newly discovered evidence is the 2004 DNA test result which established that he is not the father of Kunce‘s child.
{¶ 11} The trial court, on January 12, 2017, overruled Hazel‘s motion stating that Hazel‘s request is “based... on the premise that he could not be guilty of domestic
{¶ 12} We appointed counsel to represent Hazel. Hazel‘s appellate counsel, on August 28, 2017, filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel stated that she could “find no error by the trial court prejudicial to the rights of [Hazel] which may be argued to this court on this particular appeal.” Counsel further noted that a number of errors suggested to her by Hazel have no potential merit based upon the doctrine of res judicata. Counsel, specifically, stated that the pending appeal is not a direct appeal, and, thus, “[m]any potential Assignments of Error proposed by [Hazel] are not available on this appeal including but not limited to: adverse pretrial rulings; adverse rulings during trial on objections or motions; jury selection and instructions; plea issues; sufficiency of the evidence; etc.” Counsel, consistent with her duty under Anders and based upon her receipt of a brief Hazel prepared and sent to her, set forth the following potential errors: the trial court abused its discretion and committed prejudicial error by its failure to “conduct an evidentiary hearing and a Basurto test based upon newly discovered evidence“; Hazel‘s due process and equal rights were violated based upon “prosecutorial misconduct of a witness of the State and misconduct of the jury“; Hazel was denied
{¶ 13} We informed Hazel of the Anders filing and of his right to file a pro se brief. Hazel, on October 16, 2017, filed a brief with the brief‘s assignments of error matching the potential errors set forth in the Anders brief. Briefing was completed by the State‘s filing of its brief and Hazel‘s filing of a reply brief.1
Crim.R. 33
{¶ 14}
Hazel‘s Purported Newly Discovered Evidence
{¶ 15} Hazel‘s purported newly discovered evidence is the DNA test result establishing that he is not the biological father of Kunce‘s child. This evidence, by Hazel‘s reckoning, establishes that in the 2003 case the aggravated burglary was not committed against a family or household member, that, given this, the State, in the 2010 cases, inappropriately used Kunce‘s family or household member status to enhance the domestic violence convictions from fourth to third degree felonies, and, as such, he is entitled to a new trial in the 2010 cases.
{¶ 16} It is necessary, in order to fully appreciate Hazel‘s argument, to review how the 2010 domestic violence convictions became third degree felonies. As noted, the jury in the 2010 cases determined that Hazel had previously been convicted of domestic violence in Clark No. 09-CR-212 and of aggravated burglary involving a family or household member in the 2003 case. This finding enhanced the domestic violence convictions from fourth degree felonies to third degree felonies. Specifically,
{¶ 17} Hazel‘s newly discovered evidence assertions are without any potential merit, and, thus, there is no arguably meritorious appellate argument that the trial court abused its discretion when it denied Hazel leave to file a motion for a new trial upon the basis of newly discovered evidence. Hazel does not explain how he was unavoidably prevented from obtaining the DNA test result regarding Kunce‘s child until the February 2016 filing of his motion seeking leave to file a motion for a new trial. Any attempted explanation would defy logic since he participated in the 2004 paternity testing. Judge Merz addressed this issue in his initial Report and Recommendation as follows:
Hazel has offered no excuse for his delay in presenting the new evidence. He obviously knew in 2004 that he was not the father of [Kunce‘s child] because he has asked this court to compel production of the DNA testing he and... Kunce underwent as to the paternity of the child.
Hazel v. Warden, Case No. 3:13-CV-332, 2014 WL 4076152, *28. Thus, Hazel, without doubt, knew that he was not the biological father of Kunce‘s child when the 2010 domestic violence charges went to trial making his assertion that the DNA test result is newly discovered evidence without any arguable merit.2
{¶ 19} We, consistent with our duty under Anders, have conducted a complete review of the record. This review has not revealed any potentially worthy appellate issues.
Conclusion
{¶ 20} We have found no non-frivolous issues for appellate review. Counsel‘s motion to withdraw is granted. The judgment of the Clark County Common Pleas Court is affirmed.
Copies mailed to:
Andrew P. Pickering
Maria L. Rabold
Michael Hazel
Hon. Douglas M. Rastatter