[Cite as State v. Smith, 2019-Ohio-5350.]




                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO



STATE OF OHIO,                              :   APPEAL NO. C-180439
                                                TRIAL NO. B-1506673
        Plaintiff-Appellee,                 :

  vs.                                       :

MAURICE SMITH,                              :

     Defendant-Appellant.                   :




STATE OF OHIO,                              :   APPEAL NO. C-180604
                                                TRIAL NO. B-1506673
        Plaintiff-Appellee,                 :

  vs.                                       :     O P I N I O N.

MAURICE SMITH,                              :

     Defendant-Appellant.                   :



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.
                     OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Presiding Judge.

       {¶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



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                      OHIO FIRST DISTRICT COURT OF APPEALS


being represented by counsel). Id. at ¶ 31. The trial court therefore did not run afoul

of any constitutional obligations by declining to address his pro se motions under

these circumstances. Id. We likewise rejected Mr. Smith’s ineffective assistance of

counsel claim, finding that counsel’s refusal to adopt pro se motions amounted to

little more than trial strategy. Id. at 57.

       {¶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.



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                     OHIO FIRST DISTRICT COURT OF APPEALS


                                           II.

       {¶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}   R.C. 2953.21 frames our review of a postconviction petition. See State

v. Pickens, 2016-Ohio-5257, 60 N.E.3d 20, ¶ 7 (1st Dist.) (“R.C. 2953.21 et seq.

governs the proceedings on a postconviction petition.”). As Mr. Smith properly

notes, R.C. 2953.21(A) entitles a defendant to postconviction relief if the petition is

timely and the court finds “there was such a denial or infringement of the rights of

the [petitioner] as to render the judgment void or voidable under the Ohio

Constitution or the United States Constitution.” State v. Perry, 10 Ohio St.2d 175,

226 N.E.2d 104 (1967), paragraph four of the syllabus; see R.C. 2953.21(A)(1)(a).

While no one disputes the timeliness of his filing, Mr. Smith overlooks the fact that

R.C. 2953.21 does not automatically entitle a defendant to a hearing on his petition.

See State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999) (“According to

the postconviction relief statute, a criminal defendant seeking to challenge his

conviction through a petition for postconviction relief is not automatically entitled to

a hearing.”); R.C. 2953.21(D). In fact, before granting a hearing the court must

consider whether the defendant sets forth “sufficient operative facts to demonstrate



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                     OHIO FIRST DISTRICT COURT OF APPEALS


substantive grounds for relief,” considering the record and any evidence attached to

the petition (i.e., affidavits, reports, documentary evidence) to make this

determination. State v. Hendrix, 1st Dist. Hamilton No. C-160887, 2018-Ohio-3754,

¶ 6; R.C. 2953.21(D).

       {¶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



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                        OHIO FIRST DISTRICT COURT OF APPEALS


right to support his postconviction petition—the right to not be subject to “hybrid

representation.”       See Smith, 2017-Ohio-8558, 99 N.E.3d 1230, at ¶ 31.

        {¶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




1 Similar to his “hybrid representation” argument, we also hold res judicata bars Mr. Smith’s claim

that his counsel was ineffective for failing to question the chain of custody of certain narcotic
evidence used at trial. Once again, Mr. Smith does not rely upon any evidence outside of the trial
record to support his claim, and he possessed the opportunity to raise this alleged failure on
direct appeal, adding it to the litany of challenges to his trial counsel’s representation. See Smith
at ¶ 53-58.

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                     OHIO FIRST DISTRICT COURT OF APPEALS


outside evidence in support of his postconviction challenge to trial counsel’s

performance, and * * * the claim depended for its resolution upon such evidence.”).

       {¶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



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                     OHIO FIRST DISTRICT COURT OF APPEALS


we again review under an abuse of discretion standard. See State v. Thomas, 2017-

Ohio-4403, 93 N.E.3d 227, ¶ 2 (1st Dist.). Mr. Smith presents two assignments of

error, in essence asserting the trial court erred in denying his motions when he set

forth sufficient grounds—ineffective assistance of counsel and noncompliance with

Crim.R. 44—for a new trial. While Mr. Smith’s motion for leave below argued

ineffective assistance of counsel, his claim that the trial court’s failure to obtain a

waiver of counsel pursuant to Crim.R. 44 entitles him to a new trial surfaced for the

first time on appeal. Because Mr. Smith did not present this argument to the trial

court below, he waived his right to raise it for the first time on appeal. See State ex

rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993) (“A

party who fails to raise an argument in the court below waives his or her right to

raise it [on appeal].”).   And even if we did entertain Mr. Smith’s Crim.R. 44

argument, as discussed below, it would nevertheless fail.

       {¶16} Notably, Crim.R. 33(A) permits a court to grant a new trial under any

one of six enumerated grounds. Relevant to Mr. Smith’s case here, both ineffective

assistance of counsel and violations of Crim.R. 44 fall within Crim.R. 33(A)(1) as

grounds for a new trial. See State v. Hedgecoth, 1st Dist. Hamilton No. C-020480,

2003-Ohio-3385, ¶ 21 (“[T]his court has previously held that a defendant may validly

assert the denial of the effective assistance of counsel as grounds for a new trial

under Crim.R. 33(A)(1)[.]”); State v. Campbell, 132 Ohio App.3d 880, 883, 726

N.E.2d 615 (3d Dist.1999) (“Because this procedural rule bears on a defendant’s

constitutionally protected right to have the assistance of counsel, a defendant tried in

violation of the protections afforded by Crim.R. 44 could not have been tried fairly.”).

But time restraints govern a motion for a new trial on Crim.R. 33(A)(1) grounds,

generally requiring that the motion be filed within 14 days after the verdict. See



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                     OHIO FIRST DISTRICT COURT OF APPEALS


Crim.R. 33(B) (“Application for a new trial shall be made by motion which, except for

the cause of newly discovered evidence, shall be filed within fourteen days after the

verdict was rendered[.]”). A defendant may effectively extend the limitations period

under certain circumstances by showing “clear and convincing proof that the

defendant was unavoidably prevented from filing his motion for a new trial[.]”

Crim.R. 33(B); State v. Campbell, 2019-Ohio-3142, ___N.E.3d___, ¶ 31 (1st Dist.).

       {¶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.




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