STATE OF OHIO v. MAURICE SMITH
APPEAL NO. C-180439, TRIAL NO. B-1506673; APPEAL NO. C-180604, TRIAL NO. B-1506673
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 27, 2019
[Cite as State v. Smith, 2019-Ohio-5350.]
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: December 27, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Maurice Smith, pro se.
{¶1} This pair of appeals traces back to defendant-appellant Maurice Smith‘s 2016 convictions, where a jury found him guilty of burglary, various drug-related offenses, and tampering with evidence. On direct appeal, we affirmed his convictions but remanded for resentencing to address an allied offenses issue. See State v. Smith, 2017-Ohio-8558, 99 N.E.3d 1230 (1st Dist.). During the course of our opinion, we specifically rejected his argument that the trial court erred in failing to address his pro se motions (because counsel represented him). In the wake of our decision, Mr. Smith filed three motions relevant to this appeal, a petition for postconviction relief (with a request for an evidentiary hearing), a motion for leave to file a motion for a new trial, and a motion for a new trial, largely raising issues that we already decided in the direct appeal and without offering any material evidence beyond that before the court at the time of trial. The trial court denied relief, and we affirm its judgments for the reasons explained below.
I.
{¶2} On direct appeal, Mr. Smith asserted two challenges relevant to the appeals at hand: first, that the trial court erred by neglecting to rule on his pro se motions, and second, that his counsel was ineffective by refusing to adopt the pro se motions. Smith at ¶ 30, 54. During the trial court proceedings, despite being represented by counsel at all times, Mr. Smith lobbed in numerous pro se motions. Id. at ¶ 30. The court declined to rule on these motions because Mr. Smith‘s counsel refused to adopt them, maintaining that they lacked merit. Id. at ¶ 8-11. On appeal, we affirmed the trial court‘s decision, reasoning that although a defendant indeed enjoys a right to counsel as well as a right to proceed pro se, a defendant retains no right to “hybrid representation” (i.e., acting as his own lawyer while simultaneously
{¶3} In his petition for postconviction relief, Mr. Smith attacked the effectiveness of his counsel for, among other things, failing to challenge the credibility of witnesses and neglecting to question the chain of custody concerning pieces of the state‘s evidence. But most of what he attached to his filing was already in the record during the initial trial proceedings. A few months after this initial motion, Mr. Smith sought to amend his petition, asserting an additional due process claim based upon the court subjecting him to so-called “hybrid representation.” Rather than address Mr. Smith‘s motion to amend, the trial court instead ruled solely on his initial petition for postconviction relief, denying his request based upon res judicata grounds and his failure to muster probative evidence outside of the existing record to support his arguments.
{¶4} Similarly, in his motion for leave to file a motion for a new trial (and his motion for a new trial filed a few days later), Mr. Smith largely parroted these claims, maintaining his counsel exposed him to “hybrid legal representation” and failed to inform him of the filing deadline for a motion for a new trial. But these motions met the same fate as his petition, as the trial court denied them both.
{¶5} Mr. Smith now appeals pro se, challenging both the trial court‘s order denying his petition for postconviction relief and his motion for leave to file a motion for a new trial (as well as his motion for a new trial). For simplicity‘s sake, we address the two appeals together, ultimately affirming both of the trial court‘s orders.
{¶6} Turning first to his petition for postconviction relief, Mr. Smith asserts five assignments of error challenging the court‘s denial of his petition without an evidentiary hearing, all of which fall into one of two categories—ineffective assistance of counsel or a denial of due process. Because a trial court retains discretion as to whether a defendant should receive an evidentiary hearing before the denial of his petition, we review Mr. Smith‘s challenges under an abuse of discretion standard. See State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 52 (“We established in Calhoun that a court reviewing the trial court‘s decision in regard to its gatekeeping function should apply an abuse-of-discretion standard.“).
{¶7}
{¶8} If the defendant simply recycles his arguments from direct review, presenting a claim “that was raised or could have been raised” previously without any new evidence, then res judicata generally bars review of the claim in a postconviction proceeding. See State v. Carter, 1st Dist. Hamilton No. C-170655, 2019-Ohio-1749, ¶ 12, quoting Perry at paragraph nine of the syllabus (“Under the doctrine of res judicata, a judgment of conviction bars a defendant from raising in any proceeding, other than a direct appeal from that judgment, any claim ‘that was raised or could have been raised’ in the direct appeal.“). Of course, res judicata can only bar a postconviction claim if, during direct appeal, the matter “could fairly have been determined” based only upon the trial record and with no need of external evidence. Carter, citing Perry at paragraph nine of the syllabus (“Thus, res judicata bars a postconviction claim that could fairly have been determined in the direct appeal, based upon the trial record and without resort to evidence outside the record.“).
{¶9} While difficult to decipher, Mr. Smith‘s first four assignments of error in essence challenge the trial court‘s order denying his petition without an evidentiary hearing, arguing that the use of so-called “hybrid representation” violated his rights to due process and the effective assistance of counsel, as well as asserting his counsel was ineffective for failing to question the chain of custody regarding certain evidence at trial. Mr. Smith now wields the “hybrid representation” language from our opinion in the hopes of trying to fashion a new
{¶10} But, of course, he was not subjected to hybrid representation at all—we explained that he had no right to such representation. Thus, the premise of his arguments rests on a fundamental misunderstanding of the concept of “hybrid representation.” But no matter the precise contours of Mr. Smith‘s argument, res judicata bars all of his postconviction claims as to his representation at trial and his pro se motions. In fact, on direct appeal, this court addressed Mr. Smith‘s challenges to the trial court by its refusal to rule upon his pro se motions, as well his argument that trial counsel was ineffective for failing to adopt his pro se motions. See id. at ¶ 30-34, 57 (“Once Smith‘s counsel determined the motion was meritless, the trial court did not err by failing to address Smith‘s pro se motion.“). We see no issue in his appellate brief or underlying motion on this topic that could not “fairly have been determined” on direct appeal without reference to outside evidence (none of which Mr. Smith provides anyway).
{¶11} The same holds true for his ineffective assistance claim because Mr. Smith does not rely on evidence outside of the trial record to attempt to demonstrate the ineffectiveness of his trial counsel.1 See State v. Gholston, 1st Dist. Hamilton No. C-020557, 2003-Ohio-2758, ¶ 10, citing State v. Cole, 2 Ohio St.3d 112, 113-114, 443 N.E.2d 169 (1982) (holding that defendant‘s ineffective assistance of counsel claim was not subject to dismissal under res judicata because “[the defendant] offered
{¶12} Therefore, because this court already determined, or could have determined, these ineffective assistance of counsel issues on direct appeal, res judicata bars Mr. Smith‘s postconviction claims for relief. Accordingly, we overrule the first four assignments of error, holding the court did not abuse its discretion in denying Mr. Smith‘s petition without an evidentiary hearing.
{¶13} Turning to Mr. Smith‘s final assignment of error, he seemingly raises a due process issue, insisting that the trial court denied him due process when it failed to rule on his motion to amend his petition. Generally, when a trial court fails to rule on a pending motion, we presume the court elected to overrule it. See State v. Guenther, 9th Dist. Lorain No. 06CA008914, 2007-Ohio-681, ¶ 12 (“We presume by the trial court‘s silence that Appellant‘s motion for leave to amend his petition for post-conviction relief was denied.“). We accordingly presume that the trial court denied Mr. Smith‘s motion to amend his petition and see no error in this decision since the motion to amend raises the same “hybrid representation” argument we just discussed above. See State v. Campbell, 8th Dist. Cuyahoga No. 99936, 2014-Ohio-499, ¶ 19 (holding that because “[n]one of the proposed amendments would have raised issues that were not barred by res judicata,” the court did not abuse its discretion in failing to rule on the motion to amend prior to dismissal).
{¶14} We accordingly overrule all five of Mr. Smith‘s assignments of error and affirm the trial court‘s order denying his petition for postconviction relief.
III.
{¶15} We now consider Mr. Smith‘s appeal of the trial court‘s order denying his motion for leave to file a motion for a new trial and motion for a new trial, which
{¶16} Notably,
{¶17} Because Mr. Smith filed outside the 14-day period (late by almost two years), he needed to show that he was unavoidably prevented from filing his motion for a new trial. However, his appeal and motions below are absolutely devoid of any explanation as to why he was unavoidably prevented from filing for nearly two years. Accordingly, because the trial court had no (let alone clear and convincing) evidence to find unavoidable prevention from filing a timely motion for a new trial, the court did not err in denying leave to file the motion for a new trial and the motion for a new trial. We accordingly overrule Mr. Smith‘s two assignments of error.
IV.
{¶18} In the appeal numbered C-180439 we overrule Mr. Smith‘s five assignments of error and affirm the trial court‘s order denying his petition for postconviction relief. In the appeal numbered C-180604, we overrule Mr. Smith‘s two assignments of error and affirm the trial court‘s order denying his motion for leave to file a motion for a new trial and his motion for a new trial.
Judgments affirmed.
CROUSE and WINKLER, JJ., concur.
Please note: The court has recorded its own entry this date.