[Cite as State v. Hale, 2019-Ohio-3466.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       29096

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
TERRY WADE HALE                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2015 05 1532B

                                 DECISION AND JOURNAL ENTRY

Dated: August 28, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, Terry Wade Hale, appeals from the denial of his motion for a new trial

in the Summit County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     This Court previously summarized the underlying facts of this case as follows:

        The National Precursor Log Exchange (“NPLEx”) is an “electronic system for
        tracking sales of pseudoephedrine products and ephedrine products on a national
        basis * * *.” R.C. 3715.05(A)(6). While monitoring the NPLEx live-time feed, a
        Brimfield police officer saw that Ms. Lisa Herczec had just purchased products
        containing pseudoephedrine from the Brimfield Walmart. The officer went to the
        store’s parking lot and watched Ms. Herczec exit the store and join another man,
        later identified as R.S., by a vehicle that appeared to be broken down. Ms.
        Herczec’s NPLEx purchase history showed that she had been purchasing a lot of
        pseudoephedrine and that she associated with Mr. Hale, who had prior
        methamphetamine-related activity. Mr. Hale also had an active warrant for his
        arrest.

        Mr. Hale soon appeared at the broken-down vehicle. Another officer arrived and
        both officers approached the group together. They detained Mr. Hale on his
        outstanding warrant. Ms. Herczec initially told the officers that she bought the
        pseudoephedrine for her allergies, but later admitted that she bought it for Mr.
                                                 2


       Hale and said that he was manufacturing methamphetamine at his house in Akron.
       She provided the officers with Mr. Hale’s address and they notified Akron police.
       The agency with the active warrant eventually informed Brimfield police that it
       did not want to pick up Mr. Hale on the warrant, so all three individuals were
       released and they waited for a ride in the Walmart parking lot.

       Meanwhile, based on the information from Brimfield police, Akron police
       officers investigated and discovered an active methamphetamine lab at Mr. Hale’s
       residence. Akron police then asked Brimfield police to arrest Mr. Hale and Ms.
       Herczec. Upon execution of a search warrant for the residence, officers
       discovered many items related to the manufacture of methamphetamine.

State v. Hale, 9th Dist. Summit No. 28334, 2017-Ohio-7048, ¶ 2-4. After a jury trial, Mr. Hale

was convicted of illegal manufacture of drugs, illegal assembly or possession of chemicals for

the manufacture of drugs, aggravated possession of drugs, and illegal use or possession of drug

paraphernalia. Id. at ¶ 5. The trial court sentenced him to nine years in prison. Id. His

convictions were affirmed on appeal. Id. at ¶ 15.

       {¶3}    After this Court affirmed his convictions and the Supreme Court of Ohio declined

to accept jurisdiction, see State v. Hale, 152 Ohio St.3d 1489, 2018-Ohio-2154, the trial court

denied Mr. Hale’s pending motion for a new trial.

       {¶4}    Mr. Hale now appeals from the trial court’s denial of his motion for a new trial

and raises three assignments of error for this Court’s review.

                                                II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
       APPELLANT[’]S MOTION FOR A NEW TRIAL AS ITS RULINGS
       PREVENTED THE DEFENDANT FROM HAVING A FAIR TRIAL.

       {¶5}    In his first assignment of error, Mr. Hale argues that the trial court erred in

denying his motion for a new trial because: (1) the State failed to provide discovery; (2) no

evidence as to the crime being committed within the vicinity of a school was introduced; (3)
                                                     3


evidence of the distance from a school should have been excluded; (4) the defense was unable to

call an expert to testify and rebut the distance evidence; and (5) no evidence of a prior conviction

was introduced.

        {¶6}    “Crim.R. 33(A) allows a defendant to move for a new trial when his substantial

rights have been materially affected.” State v. Prade, 9th Dist. Summit No. 28193, 2018-Ohio-

3551, ¶ 14. Mr. Hale filed his motion for a new trial pursuant to Crim.R. 33(A)(1), (4), and (5),

which provide that a new trial may be granted for any of the following causes materially

affecting 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. *
        * *;

        (5) Error of law occurring at the trial[.]

        {¶7}    This Court reviews a trial court’s decision to deny a motion for new trial for an

abuse of discretion. State v. Pyle, 9th Dist. Summit No. 28802, 2018-Ohio-3160, ¶ 47. “The

term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983). When applying an abuse of discretion standard, a reviewing court is

precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio

State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

        {¶8}    Under this particular assignment of error, we note that Mr. Hale now relies

exclusively on Crim.R. 33(A)(2) and claims he should have been granted a new trial due to

“[m]isconduct of the jury, prosecuting attorney, or the witnesses for the state[.]” The record is
                                                 4


clear, however, that Mr. Hale filed his motion for a new trial at the trial court level explicitly

pursuant to Crim.R. 33(A)(1), (4), and (5). Moreover, Crim.R. 33(C) requires affidavits which

support any motion alleging grounds under Crim.R. 33(A)(2), but the record here contains no

such affidavits. See Pyle at ¶ 50. Nonetheless, because Mr. Hale never raised a claim of jury,

prosecutor, or witness misconduct under Crim.R. 33(A)(2) in his motion for a new trial, he is

barred from raising one now for the first time on appeal. See State v. Gibson, 2d Dist. Greene

No. 2017-CA-47, 2018-Ohio-3809, ¶ 58; State v. Siller, 8th Dist. Cuyahoga No. 90865, 2009-

Ohio-2874, ¶ 119; State v. Anderson, 6th Dist. Lucas No. L-07-1351, 2008-Ohio-5791, ¶ 27.

       {¶9}    Mr. Hale’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR TWO

       APPELLANT’S DUE PROCESS RIGHT TO LEGAL COUNSEL WAS
       PREJUDICED BY THE INEFFECTIVE ASSISTANCE OF PRIOR
       APPELLANT (SIC) COUNSEL.

       {¶10} In his second assignment of error, Mr. Hale argues that he previously received

ineffective assistance of appellate counsel in his direct appeal from his convictions. See State v.

Hale, 9th Dist. Summit No. 28334, 2017-Ohio-7048. However, an application for reopening

under App.R. 26(B) is the appropriate remedy for asserting a claim for ineffective assistance of

appellate counsel. State v. Buck, 9th Dist. Summit No. 27597, 2017-Ohio-273, ¶ 19. We note

that Mr. Hale did, in fact, file an application for reopening pursuant to App.R. 26(B) in his prior

appeal, which was denied by this Court. See Hale, 9th Dist. Summit No. 28334 (Mar. 2, 2018).

       {¶11} Because Mr. Hale’s claim of ineffective assistance of appellate counsel is not

properly before us, his second assignment of error is overruled.
                                                  5


                              ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT DENIED DUE PROCESS AND EQUAL PROTECTION
       BY USE OF BLANKET POLICIES REFUSING AGREED PLEA BARGAIN,
       REVOKING BOND, AND DENYING CHOICE OF COUNSEL.

       {¶12} In his third assignment of error, Mr. Hale argues that the trial court erred in

rejecting his plea bargain, revoking his bond when he arrived late for trial, and denying him his

choice for appellate counsel. We disagree.

       {¶13} Unlike in his first assignment of error, Mr. Hale does not explicitly state he is

relying on Crim.R. 33(A)(2) in his third assignment of error. Mr. Hale first argues that the trial

court maintained a “blanket policy” to never grant bonds pending appeal, and the court therefore

rejected his plea deal specifically on that basis. See, e.g., State v. Boswell, 6th Dist. Erie No. E-

18-053, 2019-Ohio-2949, ¶ 51 (“[S]everal Ohio courts have determined that a trial court abuses

its discretion when it rejects a plea agreement by relying on a blanket policy rather than

considering the facts and circumstances of the particular case.”). The record before us reveals

that, at a pretrial conference, the trial court was amenable to accepting Mr. Hale’s plea of no

contest, but stated that it would not be inclined to grant a bond pending appeal. Mr. Hale not

the trial court then explicitly rejected the State’s plea offer on the record:

       THE COURT: And then secondly, we did have some discussions in chambers
       about a potential resolution for Mr. Hale, which was conditioned on a no contest
       plea, which the Court did not object to that given the circumstances presented.

       But it was also conditioned on an appellate bond, which the Court did indicate I
       would not be inclined to do.

       MR. LUDWIG: It is, Your Honor. That was an important condition for Mr. Hale.

       THE COURT: Okay. So with that in mind then, you’re rejecting the State’s
       offer?

       MR. LUDWIG: I must reluctantly do so with my client’s concurrence, Your
       Honor.
                                                6



Nothing in the record suggests that the trial court maintained a blanket policy against granting

bonds pending appeal in all cases, as Mr. Hale now suggests. “[T]he granting of bail is strictly

within the discretion of the courts [and t]here is no bail on appeal as a matter of right.” Coleman

v. McGettrick, 2 Ohio St.2d 177, 179 (1965). See also R.C. 2949.02(A); App.R. 8(A). The trial

court’s order denying Mr. Hale’s motion for a new trial further states that the court never

rejected any plea deal, but instead simply indicated it would not be willing to grant a bond

pending appeal in this particular matter. The order explains that bond was not appropriate under

the circumstances because Mr. Hale lives out of state, appeared late for his jury trial, and was

facing mandatory prison time.      We discern no abuse of discretion from the trial court’s

disinclination to grant Mr. Hale a bond pending appeal in this matter, and further find no merit in

Mr. Hale’s argument to the contrary.

       {¶14} Mr. Hale also argues that the trial court employed a “double standard” by

revoking his bond when he arrived late to his trial, yet imposing no sanction on the prosecutor

for being late the following morning. He contends that he then had to appear at trial without

access to toiletries, while wearing the same clothes each day and being escorted by deputies.

This argument is indeed perplexing, as Mr. Hale perhaps misunderstands that he alone not the

prosecutor faced a litany of serious felony charges and was permitted by the court to be

released on bond prior to his trial. “The purpose of bail is to ensure that the accused appears at

all stages of the criminal proceedings.” State v. Lee, 9th Dist. Lorain No. 11CA010083, 2012-

Ohio-4329, ¶ 9, citing State v. Hughes, 27 Ohio St.3d 19, 20 (1986). See also R.C. 2937.22(A)

(stating bail is security for the appearance of an accused to appear). “Any person who fails to

appear before any court as required is subject to the punishment provided by the law * * *.”

Crim.R. 46(I). Mr. Hale offers no citations to any authorities, statutes, or parts of the record to
                                                 7


demonstrate how the revocation of his bond for his tardiness on the day of trial prevented him

from having a fair trial. See App.R. 16(A)(7). We determine that the trial court acted within its

discretion in revoking Mr. Hale’s bond, and we find no merit in his questionable and

unsupported argument to the contrary.

       {¶15} Mr. Hale next argues that he was denied his choice of appellate counsel when the

trial court appointed a different attorney than trial counsel to represent him on appeal. We first

note that “‘[t]he right to counsel of choice does not extend to defendants who require counsel to

be appointed for them.’” State v. Cobb, 9th Dist. Summit No. 26847, 2014-Ohio-1923, ¶ 17,

quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006). The trial court’s order

denying his motion for a new trial further explains that the court typically appoints a different

attorney than trial counsel to represent defendants on appeal to preserve all potential appellate

issues, including ineffective assistance of trial counsel. Nothing in the record before us indicates

that Mr. Hale objected to the trial court’s appointment of a different attorney for purposes of

appeal. Notwithstanding, Mr. Hale directs us to no authority supporting his contention that the

appointment of different counsel for appellate purposes prevented him from having a fair trial.

See App.R. 16(A)(7). We thus find no merit in this speculative and unsupported argument.

       {¶16} Mr. Hale briefly concludes his arguments under this assignment of error by once

again revisiting his claim that prior appellate counsel was ineffective for not raising the

aforementioned issues in his direct appeal from his convictions. As we previously determined

under his second assignment of error, however, such arguments are not properly before us at this

juncture. See Buck, 2017-Ohio-273, at ¶ 19.

       {¶17} Mr. Hale’s third assignment of error is overruled.
                                                 8


                                                III.

       {¶18} Mr. Hale’s first, second, and third assignments of error are all overruled. The

judgment of the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT



SCHAFER, J.
CALLAHAN, J.
CONCUR.
                                         9


APPEARANCES:

RHONDA KOTNIK, Attorney at Law, for Appellant.

MARK LUDWIG, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
