STATE OF OHIO, Plaintiff-Appellee v. RASHAAN O. REED, Defendant-Appellant
C.A. CASE NO. 26526
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
July 31, 2015
[Cite as State v. Reed, 2015-Ohio-3051.]
FROELICH, P.J.
T.C. NO. 01CR4126 (Criminal Appeal from Common Pleas Court)
Rendered on the 31st day of July, 2015.
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 E. Fifth Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
RASHAAN O. REED, #A415-481, Allen Correctional Institution, 2338 N. West St. 45801-2051, P. O. Box 4501, Lima, Ohio 45802 Defendant-Appellant
FROELICH, P.J.
{¶ 1} Rashaan Reed appeals from the trial court’s denial of his motion for leave to
{¶ 2} In 2002, Reed was found guilty by a jury in the Montgomery County Court of Common Pleas of murder, with a firearm specification, and of tampering with evidence in connection with the death of Joseph Smith. He received sentences of 15 years to life for the murder and two years in prison for tampering with evidence, to be served consecutively to each other and to another sentence issued in a Miami County case (Miami C.P.No. 2000-CR-440). In addition, the trial court sentenced Reed to three years of incarceration for the firearm specification, to be served consecutively to and prior to the definite sentence. Reed’s aggregate sentence in the Montgomery County case was 20 years to life in prison.
{¶ 3} Reed appealed from his conviction, raising three assignments of error. His first assignment of error claimed that the trial court committed prejudicial error by (1) precluding him from offering testimony that he was not present when or where the victim was killed (alibi testimony), (2) sustaining objections to questions offered to attack and to impeach the credibility of the State’s witnesses, and (3) denying him the opportunity to impeach the testimony of Stacy Young, a State’s witness, with prior inconsistent statements. His second and third assignments of error claimed that his conviction was against the manifest weight of the evidence and that the trial court improperly denied his Crim.R. 29 motion. We rejected each of Reed’s arguments and affirmed his conviction. State v. Reed, 155 Ohio App.3d 435, 2003-Ohio-6536, 801 N.E.2d 862 (2d Dist.).
{¶ 5} In September 2010, Reed, pro se, moved for leave to file a motion for a new trial and filed a motion for a new trial, claiming that his sentence was void under State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958. The trial court denied his motions, but resentenced Reed to correct the imposition of post-release control and an error in the judgment entry.
{¶ 6} In May 2014, Reed, pro se, filed a motion for leave to file a delayed motion for a new trial, claiming that another individual, Patron Steele, committed the murder and that several State’s witnesses lied when they testified that they did not receive any consideration or leniency from the State in exchange for their testimony. Reed withdrew the motion, with the court’s consent, in July 2014.
{¶ 7} On October 7, 2014, Reed filed a pro se motion for leave to file a motion for a new trial, alleging misconduct by the prosecutor and two of the State’s witnesses, Michael Shoemaker and Peter Holloway. Reed argued that Shoemaker and Holloway received leniency and the dismissal of charges in exchange for their testimony at Reed’s trial, but that both witnesses testified – and the prosecutor argued to the trial court – that neither man received any promises from the State. Reed asserted that he was prejudiced by Shoemaker and Holloway’s “false and perjured” testimony, which the prosecutor failed to correct. Reed further claimed that he was unavoidably prevented
{¶ 8} On November 24, 2014, the trial court overruled the motion for leave to file a motion for new trial on several grounds. The trial court rejected Reed’s contention that he was unavoidably prevented from filing a timely
{¶ 9} The trial court further denied Reed’s motion on res judicata grounds. The trial court reasoned that Reed could have raised on direct appeal or in a petition for post-conviction relief any issue he had related to the trial court’s ruling at trial with respect to the prosecutor agreements with Holloway and Shoemaker. And the trial court held that, as a successive motion, res judicata barred Reed’s motion for a new trial.
{¶ 10} Finally, the trial court rejected Reed’s argument that his trial counsel rendered ineffective assistance by failing to file a timely motion for a new trial. The court found no evidence that Reed’s trial counsel had acted deficiently, and held that there was no indication that a new trial would have been granted had counsel filed such a motion.
{¶ 11} Reed appeals from the denial of his motion for leave to file a motion for new trial. His assignment of error states:
MR. REED WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND OF HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN THE PROSECUTOR’S WITNESSES KNOWINGLY MADE FALSE STATEMENTS AND THE PROSECUTOR FAILED TO CORRECT THE FALSE TESTIMONY OF [ITS] WITNESSES AND PERMITTED [ITS] WTINESSES TO LIE TO THE JURY, AND THE TRIAL COURT ABUSED [ITS] DISCRETION WHEN IT FAILED TO GRANT MR. REED’S MOTION FOR LEAVE TO FILE A MOTION FOR NEW TRIAL.
{¶ 12}
{¶ 13} A defendant who seeks a new trial after the fourteen-day time period must first obtain leave from the trial court, demonstrating “by clear and convincing proof that the defendant was unavoidably prevented from filing his motion for a new trial.”
{¶ 15} Although a defendant may file his motion for a new trial along with his request for leave to file such motion, the trial court may not consider the merits of the motion for a new trial until it makes a finding of unavoidable delay. State v. Stevens, 2d Dist. Montgomery Nos. 23236, 23315, 2010-Ohio-556, ¶ 11; York, supra.
{¶ 16} We review the trial court’s denial of leave 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).
{¶ 17} Reed was convicted in 2002, but did not file his motion for leave to file a motion for a new trial until October 2014, years beyond the fourteen-day limit in
{¶ 18} Reed claims that he was unavoidably prevented from filing a timely motion for a new trial as a result of the prohibition against hybrid representation. He states that, since he was represented by counsel in the trial court, he could not file a pro se motion for a new trial. Reed further asserts that his trial counsel’s failure to file such a motion was ineffective assistance.
{¶ 19} Reed’s affidavit in support of his motion for leave to file a motion for new
6. Mr. Reed was unavoidably prevented from filing a Motion for New Trial based on ineffective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitutions. In addition, Mr. Reed was unavoidably prevented from filing a timely Motion for New Trial due to the prohibition of hybrid-representation and if such prohibition was not in place Mr. Reed would have filed a timely Motion for New Trial in compliance with Ohio Criminal Rule 33.
* * *
8. Furthermore, Mr. Reed respectfully move this Court to find that he was unavoidably prevented from filing a timely Motion for New Trial based on the prohibition against hybrid-representation and ineffective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution.
{¶ 20} Hybrid representation is disfavored in Ohio. See State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227; State v. Hazel, 2d Dist. Clark No. 2011 CA 16, 2012-Ohio-835, ¶ 63 (refusing to consider arguments raised pro so when defendant was represented by counsel). The Supreme Court of Ohio has held that “a criminal defendant has the right to representation by counsel or to proceed pro se with the assistance of standby counsel. However, these two rights are independent of each other and may not be asserted simultaneously.” Martin at ¶ 32.
{¶ 21} Reed has not presented any evidence that he tried to file a timely motion for new trial, but was prevented from doing so on the ground that he was represented by
{¶ 22} Reed also asserts that he should be allowed to file a delayed motion for new trial, because his counsel’s failure to file a timely motion constituted ineffective assistance. To establish ineffective assistance of counsel, Reed must demonstrate both that trial counsel’s conduct fell below an objective standard of reasonableness and that the errors were serious enough to create a reasonable probability that, but for the errors, he would have been granted a new trial. See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 688. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Rucker, 2d Dist. Montgomery No. 24340, 2012-Ohio-4860, ¶ 58.
{¶ 23} Trial counsel was aware of the issue surrounding whether Holloway and Shoemaker had received any promises or benefits from the State in exchange for their testimony. During Shoemaker’s testimony, defense counsel asked for a sidebar to
{¶ 24} Having made a record of the issue during trial, defense counsel reasonably could have determined that any issue surrounding Holloway’s and Shoemaker’s testimony was preserved for direct appeal. And, in the absence of additional evidence that these witnesses provided false testimony or that the prosecutor suborned perjury, defense counsel could have reasonably concluded that there was little likelihood of success if raised in a motion for new trial. Accordingly, we find no merit to Reed’s claim that he should be excused from filing a timely motion for a new trial due to ineffective assistance of counsel.
{¶ 25} Finally, we note that Reed’s motion for leave to file a motion for new trial was filed nearly twelve years after his conviction. Where a defendant has established that he was unavoidably prevented from filing a timely motion for new trial, the trial court must still determine if the motion was filed within a reasonable time, under the circumstances. See State v. McConnell, 2d Dist. Montgomery No. 24315, 2011-Ohio-5555, ¶ 15 (if defendant establishes that he was unavoidably prevented from filing a timely motion for new trial but there was undue delay, the trial court must determine “if that delay was reasonable under the circumstances or that the defendant has adequately explained the reason for the delay.”). Reed has offered no explanation for his lengthy delay. And, he has filed several pro se motions during that period of time. Based on the record, the trial court did not abuse its discretion when it concluded that Reed failed to establish by clear and convincing evidence that he was unavoidably prevented from filing a timely motion for a new trial.
{¶ 26} In addition, we agree with the trial court that res judicata bars Reed’s motion. “Pursuant to the doctrine of res judicata, a valid final judgment on the merits bars all subsequent actions based on any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995). Res judicata applies to any defense that was raised or could have been raised in a criminal defendant’s prior direct appeal from his conviction. Id., citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).
{¶ 27} As stated above, the issue of Holloway and Shoemaker’s plea agreements with the State was raised in the trial court, and the trial court’s decision limiting cross-examination on that issue could have been raised on direct appeal. On appeal, Reed raised several evidentiary matters, including that the trial court erred in excluding alibi evidence, sustaining objections to questions offered to impeach the credibility of certain State’s witnesses, and in denying Reed the opportunity to impeach the testimony of Stacy Young with prior inconsistent statements. Reed did not appeal the trial court’s
{¶ 28} In addition, Reed previously filed a motion for a new trial, pursuant to
{¶ 29} A substantial portion of Reed’s appellate brief focuses on Shoemaker’s plea agreement with the State, the “consideration” Holloway received, and whether Reed’s right to due process was violated by their testimony that they received no benefits from the State for their testimony. Because Reed failed to establish that he was unavoidably prevented from filing a timely motion for new trial, and given that his claim is barred by res judicata, we need not address the merits of Reed’s due process claim, i.e., whether there was misconduct on the part of the prosecutor, Holloway, or Shoemaker.
{¶ 30} Reed’s assignment of error is overruled.
{¶ 31} The trial court’s judgment will be affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
Andrew T. French
Anthony R. Cicero
Rashaan O. Reed
Hon. Timothy N. O’Connell