[Cite as State v. Braden, 2018-Ohio-1807.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                  :

                 Plaintiff-Appellee,            :                 No. 17AP-321
                                                              (C.P.C. No. 98CR-4601)
v.                                              :
                                                          (REGULAR CALENDAR)
David Braden,                                   :

                 Defendant-Appellant.           :




                                         D E C I S I O N

                                       Rendered on May 8, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee. Argued: Steven L. Taylor.

                 On brief: Timothy Young, Ohio Public Defender, and
                 Kathryn L. Sandford; Steven M. Brown, for appellant.
                 Argued: Kathryn L. Sandford.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, P.J.

        {¶ 1} David Braden, defendant-appellant, appeals from the judgment of the
Franklin County Court of Common Pleas in which the court entered judgment denying his
motion for leave to file a motion for new mitigation trial.
        {¶ 2} On August 3, 1998, appellant shot his girlfriend and her father. Appellant
was indicted on two counts of aggravated murder with prior calculation and design. Both
counts included a "course of conduct" death penalty specification, pursuant to R.C.
2929.04(A)(5), and a firearms specification. The jury convicted appellant as charged and
recommended the death penalty on each count. The court held a mitigation hearing. On
No. 17AP-321                                                                                 2

July 7, 1999, the trial court sentenced appellant to death on each count, three years of
confinement on the firearms specifications, and a $50,000 fine. Appellant appealed his
conviction and sentence, and the Supreme Court of Ohio affirmed his conviction and
sentence in State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325.
       {¶ 3} On January 11, 2017, appellant filed a motion for leave to file a motion for
new mitigation trial. Attached to the motion for leave was a motion for new trial. In his
motion for new trial, appellant claimed Ohio's death penalty statute is unconstitutional
because it allows a death sentence based on a mere jury recommendation and
independent fact-finding by the trial court. His motion was based on the United States
Supreme Court's decision in Hurst v. Florida, ___ U.S. ___, 136 S.Ct. 616 (2016), and
appellant claimed he could not have filed his motion for leave to file sooner because Hurst
was not issued until January 12, 2016.
       {¶ 4} On April 6, 2017, the trial court issued a decision in which it denied
appellant's motion for a new mitigation trial. In a brief entry, the trial court indicated the
motion was untimely, was barred by res judicata, and Hurst did not compel a new
mitigation trial in the matter.
       {¶ 5} Appellant appeals the judgment of the trial court, asserting the following
assignments of error:
               [I.] The trial court erred in denying Braden's Motion for Leave
               to File a Motion for a New Mitigation Trial without
               determining whether Braden was unavoidably prevented from
               filing his Motion within fourteen days after the verdict as
               required by Crim.R. 33(B).

               [II.] The trial court erred when it denied Braden's Motion for
               a New Mitigation Trial when Braden proved that he was
               sentenced to death under a statutory scheme that violates the
               Sixth and Fourteenth Amendments of the United States
               Constitution. Hurst v. Florida, __ U.S. __, 136 S.Ct. 616
               (2016).

       {¶ 6} We address appellant's assignments of error together. Appellant argues in
his first assignment of error the trial court erred when it denied his motion for leave to file
a motion for a new mitigation trial without determining whether he was unavoidably
prevented from filing his motion within 14 days after the verdict as required by Crim.R.
33(B). Appellant argues in his second assignment of error the trial court erred when it
No. 17AP-321                                                                               3

denied his motion for a new mitigation trial when he proved he was sentenced to death
under a statutory scheme that violates the Sixth and Fourteenth Amendments of the
United States Constitution.
       {¶ 7} We first note that, during oral argument before this court, appellant's
counsel acknowledged the trial court did, in fact, grant appellant's motion for leave to file
a motion for a new mitigation trial in footnote one of the judgment entry. Therefore,
appellant's argument on this issue under his first assignment of error is overruled.
       {¶ 8} Appellant filed his motion for new trial pursuant to Crim.R. 33(A)(1), (4),
and (5). Crim.R. 33 provides, in pertinent part:
               (A) Grounds. A new trial may be granted on motion of the
               defendant 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;

               ***

               (4) That the verdict is not sustained by sufficient evidence or
               is contrary to law. If the evidence shows the defendant is not
               guilty of the degree of crime for which he was convicted, but
               guilty of a lesser degree thereof, or of a lesser crime included
               therein, the court may modify the verdict or finding
               accordingly, without granting or ordering a new trial, and
               shall pass sentence on such verdict or finding as modified;

               (5) Error of law occurring at the trial.

       {¶ 9} On appeal, State of Ohio, plaintiff-appellee, initially counters that a motion
pursuant to Crim.R. 33(A) is not available to a defendant facing capital punishment and
seeking a new trial limited to the issue of punishment. The state argues appellant is not
seeking a new trial but, instead, seeking a new penalty phase hearing. The state asserts
appellant's motion must be construed as a post-conviction petition. The state then
contends that, even if Crim.R. 33(B) applies here, appellant filed his motion for new trial
in an untimely manner because he waited nearly one year after the release of Hurst to file
the motion.
No. 17AP-321                                                                               4

         {¶ 10} However, we find that, assuming arguendo, even if Crim.R. 33(A) applies to
the present circumstances, and even if appellant filed his motion in a timely manner
under that rule, the trial court properly denied appellant's motion on the basis of res
judicata. Res judicata bars the assertion of claims against a valid, final judgment of
conviction that have been raised or could have been raised on appeal. State v. Perry, 10
Ohio St.2d 175 (1967), paragraph nine of the syllabus. The applicability of res judicata is a
question of law, which an appellate court reviews de novo. EMC Mtge. Corp. v. Jenkins,
164 Ohio App.3d 240, 249, 2005-Ohio-5799, ¶ 15 (10th Dist.), citing Prairie Twp. Bd. of
Trustees v. Ross, 10th Dist. No. 03AP-509, 2004-Ohio-838, ¶ 12.
         {¶ 11} Res judicata applies to Crim.R. 33 motions for new trial. See, e.g., State v.
Waddy, 10th Dist. No. 15AP-397, 2016-Ohio-4911, ¶ 40, citing State v. Russell, 10th Dist.
No. 04AP-1149, 2005-Ohio-4063, and State v. Petrone, 5th Dist. No. 2013 CA 00213,
2014-Ohio-3395; State v. Fox, 10th Dist. No. 08AP-704, 2009-Ohio-1327, ¶ 7 (res
judicata provides basis for denying motion for new trial pursuant to Crim.R. 33); State v.
Haynes, 10th Dist. No. 07AP-508, 2007-Ohio-6540, ¶ 7 (no abuse of discretion by the
trial court in denying appellant's Crim.R. 33 motion for new trial based on the doctrine of
res judicata).
         {¶ 12} In the present case, appellant claims res judicata does not preclude his
claims because Hurst was not decided until 2016, well after his direct appeal and, thus,
his counsel could not have raised the applicability of Hurst until after it was decided. He
contends his counsel cannot be held to the standard of raising issues that were not
supported by then-current case law and were not supported by case law until many years
later.
         {¶ 13} We disagree with appellant's contentions. A change in case law after final
judgment does not prevent the application of res judicata. " 'There is no merit to [the]
claim that res judicata has no application where there is a change in the law due to a
judicial decision of this court.' " State v. Ayala, 10th Dist. No. 12AP-1071, 2013-Ohio-1875,
¶ 14, quoting State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). "It is well-established that the
application of res judicata is mandatory, even if there is a subsequent change in the law by
judicial decision." State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, ¶ 16 (8th Dist.),
citing Szefcyk at 95. A final judgment does not lose its preclusive res judicata effect
No. 17AP-321                                                                               5

whenever the statute upon which it is based is later declared invalid or unconstitutional.
See State v. Caldwell, 2d Dist. No. 24333, 2012-Ohio-1091, ¶ 5; State v. Bolds, 96 Ohio
App.3d 483 (9th Dist.1994) (guilty plea to municipal ordinance had res judicata effect
even though ordinance was declared unconstitutional six months later by the Supreme
Court of Ohio). Thus, the res judicata consequences of a final judgment on the merits are
not altered by the fact that the judgment may have been wrong or rested on a legal
principle subsequently overruled in another case. Federated Dept. Stores, Inc. v. Moitie,
452 U.S. 394, 398 (1981).
       {¶ 14} Appellant's claim, in the present case, that his counsel could not have been
expected to raise the issues on direct appeal that were addressed years later in Hurst is
not well-founded. In State v. Reynolds, 79 Ohio St.3d 158 (1997), the defendant was
convicted of aggravated robbery with a firearm specification. Within one year after his
conviction was affirmed by the court of appeals, the Supreme Court decided two cases
holding that a firearm specification requires independent proof of operability. The
defendant filed a post-conviction petition based on the new rulings, claiming that
controlling case law in that appellate district at the time of his direct appeal, State v.
Vasquez, 18 Ohio App.3d 92 (6th Dist.1984), held that a firearm specification required no
independent evidence of operability of the firearm beyond the evidence required to
establish the use of a deadly weapon to prove aggravated robbery. The defendant claimed
the fact that the law in Vasquez was later overturned by the Supreme Court precluded the
application of res judicata to a post-conviction motion seeking application of the new case
law. Like appellant in the present case, the defendant in Reynolds reasoned that because
prior case law was not reversed until after his direct appeal, res judicata could not prevent
him from seeking application of the new case law because he could not have applied the
holding in the new case law to his case before the new case had been decided.
       {¶ 15} However, the Supreme Court disagreed, finding:
               [T]here was nothing to prevent [the defendant] from
               appealing the issues of operability and proof of operability of a
               firearm. [The defendant] claims that the controlling authority
               in his appellate district at the time of his appeal was Vasquez.
               However, this did not bar [the defendant] from appealing
               these issues. Even if the appellate court had cited its own
               decision in Vasquez and found against [the defendant], he
No. 17AP-321                                                                              6

               could have then appealed to this court, which could have
               reversed or modified Vasquez.

Id. at 161. The court in Reynolds continued "[i]n other words, there was nothing that
precluded [the defendant] from directly appealing the issues of operability of the firearm
and the proof required to show operability. As a result, he is precluded from arguing these
issues in a petition for postconviction relief pursuant to res judicata." Id. at 162.
       {¶ 16} Applying the above concepts to the current case, it is apparent the
application of res judicata is not precluded here. Even if it could be said that the Supreme
Court's decision in Hurst represented a change in case law, such change did not prevent
the application of res judicata. Furthermore, appellant could have raised the same issues
the defendant in Hurst later raised, but he failed to do so. Specifically, appellant could
have argued that Ohio's death penalty statute was unconstitutional because it allowed a
death sentence based on the mere recommendation of the jury and fact-finding by the
trial court. Although, obviously, appellant could not have raised the applicability of Hurst
on direct appeal, he could have raised the same legal arguments that the defendant raised
in Hurst. That he did not believe he would have been successful because the then-current
state of Ohio law on the issue is of no consequence. For these reasons, we find the trial
court did not err when it denied appellant's motion for new trial based on res judicata.
Having made such determination, we need not address the applicability of the Supreme
Court of Ohio's recent decision in State v. Mason, __ Ohio St.3d __, 2018-Ohio-1462 to
the present case. Therefore, we overrule appellant's first and second assignments of error.
       {¶ 17} Accordingly, appellant's two assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                          Judgment affirmed.

                            SADLER and DORRIAN, JJ., concur.

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