[Cite as State v. Harwell, 2023-Ohio-3657.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29793 : v. : Trial Court Case No. 2012CR02367 : MICHAEL D. HARWELL : (Criminal Appeal from Common Pleas : Court) Appellant : :
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OPINION
Rendered on October 6, 2023
MICHAEL D. HARWELL, Pro Se Appellant
MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee
.............
HUFFMAN, J.
{¶ 1} Michael D. Harwell appeals pro se from the trial court’s order denying his pro
se motion for leave to vacate a judgment or to file a motion for new trial related to his
2013 convictions for murder and other offenses. Because we agree with the trial court’s
conclusions that 1) evidence that any potential DNA on shell casings from the scene of
the shooting may have been contaminated by a firearm examiner was not “newly -2-
discovered” evidence and 2) there was other overwhelming evidence of Harwell’s guilt,
we find no abuse of discretion. The judgment of the trial court is affirmed.
Background and Procedural History
{¶ 2} In 2012, Harwell was indicted on 14 counts: two counts of felony murder, two
counts of attempted felony murder, six counts of kidnapping, three counts of felonious
assault, and one count of having weapons while under disability, including numerous
firearm specifications. State v. Harwell, 2d Dist. Montgomery No. 27658, 2018-Ohio-
1950, ¶ 2. The charges stemmed from Harwell's actions after he purchased two ounces
of cocaine that, unbeknownst to him, had been cut/diluted with other substances. In an
attempt to get his money back from the purchase, Harwell kidnapped two men, Jonathon
Lambes and Jason Miller, who had both been involved in selling him the cocaine; Harwell
also fired gunshots at both men, killing Miller. Id. at ¶ 3. Harwell was found guilty as
charged. After merging several of the counts and specifications at sentencing, the trial
court imposed an aggregate prison sentence of 32 years to life. Id. at ¶ 4.
{¶ 3} On appeal, we vacated Harwell's two attempted felony murder convictions
pursuant to State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016, in
which the Ohio Supreme Court held that attempted felony murder is not a cognizable
crime in Ohio. Id. at ¶ 5, citing State v. Harwell, 2d Dist. Montgomery No. 25852, 2015-
Ohio-2966, ¶ 34-35. As a result of vacating these convictions, we remanded the matter
to the trial court for resentencing. Id. at ¶ 90. We affirmed the judgment of the trial court
in all other respects. Id.
{¶ 4} On remand, the trial court vacated the two attempted felony murder counts -3-
and resentenced Harwell for the remaining offenses and firearm specifications. Id. at ¶ 6.
The trial court again imposed an aggregate prison sentence of 32 years to life. Id. at ¶ 7.
Harwell appealed, but we dismissed the appeal for lack of prosecution in February 2016.
Id. at ¶ 8.
{¶ 5} In May 2017, Harwell filed a pro se motion for resentencing pursuant to R.C.
2967.28. In the motion, Harwell argued, among other things, that the trial court had not
properly imposed post-release control when it resentenced him. Specifically, Harwell
claimed the trial court had failed to advise him that post-release control was mandatory
for his two kidnapping offenses at the resentencing hearing and in its amended judgment
entry, thus rendering his sentence partially void. Id. at ¶ 9. The trial court denied
Harwell’s motion for resentencing, finding that the amended judgment entry had “plainly
state[d]” that Harwell would “be supervised by the Parole Board for a period of FIVE (5)
years Post-Release Control” on the kidnapping convictions after his release from prison.
Id. at ¶ 10. Harwell appealed, and we held that the trial court had properly imposed a
five-year mandatory term of post-release control for his kidnapping convictions. Id. at
¶ 31. We also rejected other arguments related to the imposition of post-release control
on the felonious assault conviction and merger of additional offenses. Id. at ¶ 36.
{¶ 6} In June 2018, Harwell filed a motion for leave to file a delayed motion for a
new trial. He claimed that his motion was untimely due to ineffective assistance of trial
counsel, namely that his trial counsel had not informed him of the time requirements for
filing a motion for a new trial. Harwell further claimed he was entitled to a new trial based
on “actual innocence” and that his trial counsel had been deficient for failing to object to -4-
the trial court's jury instruction on reasonable doubt and the State's failure to prove all
elements of felony murder. Harwell supported his motion for leave with his own affidavit
attesting to his attorney's failure to inform him of the time requirements for a motion for a
new trial. State v. Harwell, 2d Dist. Montgomery No. 28104, 2019-Ohio-643, ¶ 9.
{¶ 7} In August 2018, the trial court denied Harwell's motion for leave, finding that
it relied on arguments that “were or could have been raised in his direct appeal.” The
court also found that Harwell had failed to present clear and convincing proof that he had
been unavoidably prevented from timely filing his motion for a new trial and that the record
did not support that he had been unavoidably prevented from the discovery of evidence
upon which he relied. Id. at ¶ 11. Harwell appealed, and we affirmed. Id. at ¶ 21-24.
{¶ 8} in August 2019, Harwell filed a “Motion to Vacate Void Sentence,” arguing
that the trial court had failed to follow R.C. 2929.11 and 2929.12 when it resentenced him
in 2015. State v. Harwell, 2d Dist. Montgomery No. 28697, 2020-Ohio-4845, ¶ 7. The
trial court overruled the motion on the basis that Harwell’s claims were barred by res
judicata. Harwell appealed, and we affirmed the trial court’s order; we agreed with the
trial court’s determination that Harwell’s claims were barred by res judicata. Id. at ¶ 13.
{¶ 9} In May 2021, Harwell filed a motion to vacate his felony murder conviction,
which the trial court denied on res judicata grounds and because it was untimely; we
affirmed the trial court’s order. State v. Harwell, 2d Dist. Montgomery No. 29156, 2021-
Ohio-3754. The trial court also denied a May 2021 motion by Harwell for post-conviction
“touch DNA” testing of cartridge casings and a t-shirt; we affirmed that decision in State
v. Harwell, 2d Dist. Montgomery No. 29318, 2022-Ohio-2706. -5-
{¶ 10} In September 2022, Harwell filed a pro se motion for leave to file a motion
to vacate his conviction or a motion for a new trial pursuant to R.C. 2953.23. This is the
filing at issue in this appeal. The trial court overruled the motion for leave on May 5,
2023. The trial court treated the motion to vacate as a motion for post-conviction relief
and found that the request was untimely; it also found that Harwell’s arguments were “fully
barred” by res judicata. Harwell appeals from this order.
Assignment of Error and Analysis
{¶ 11} Harwell raises the following assignment of error:
TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT’S MOTION FOR LEAVE TO FILE MOTION FOR NEW TRIAL
PURSUANT TO CRIM.R. 33(B) WHERE APPELLANT HAS A VALID
CLAIM DUE TO UNDISCLOSED MATERIAL EXCULPATORY
EVIDENCE[,] A VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS
UNDER ART. 1, §16 OF THE OHIO CONSTITUTION AND 14TH
AMENDMENT DUE PROCESS CLAUSE OF THE U.S. CONSTITUTION.
{¶ 12} In his motion for leave to file a motion to vacate or for a new trial, Harwell
proclaimed his innocence. The crux of his argument was that the firearm examiner at
the Miami Valley Regional Crime Laboratory (“MVRCL”) had improperly handled cartridge
casings relevant to the case without gloves, which made them “unsuitable for touch DNA
testing” thereafter, that the State had known of this fact prior to Harwell’s indictment, and
that this information had not been disclosed to Harwell prior to trial. Further, Harwell
asserted that the firearm examiner, who had testified at trial, had committed perjury when -6-
he repeatedly asserted that he had conducted the tests using scientifically accepted
methods and with due caution. Harwell’s arguments were based in part on July 2021
correspondence from the MVRCL in response to a new application from Harwell for DNA
testing of shell casings. The correspondence noted that the casings were “no longer in
the same condition as found” (because they had been handled without gloves) and were
“unsuitable for touch DNA testing.”
{¶ 13} Harwell argued that the prosecution had been required to disclose all
exculpatory and impeachment evidence. Harwell cited State v. Hill, 2019-Ohio-3921,
145 N.E.3d 1128 (2d Dist.), a case in which there was a brief discussion of the fact that
the same firearm examiner, Chris Monturo, had similarly touched a firearm and/or shell
casings without gloves before they were analyzed by a DNA expert, and the DNA expert
had expressed concern that this could have affected the DNA results.
{¶ 14} The trial court denied Harwell’s motion, which it treated in part as a petition
for post-conviction relief. The trial court noted that R.C. 2953.23, the post-conviction
statute, “prohibits the court from entertaining an untimely petition, second petition, or
successive petitions for post-conviction relief unless the petitioner shows the applicability
of the timeliness exception” under R.C. 2953.23(A)(1)(a-b) and (A)(2). The court found
Harwell’s petition to be untimely.
{¶ 15} Further, court found that his alternative motion for leave to file a motion for
a new trial was also untimely, because Harwell failed to demonstrate that he had been
unavoidably prevented from timely filing the motion for a new trial or discovering new
evidence within the time period provided by Crim.R. 33(B), and that Harwell’s arguments -7-
were barred by res judicata. The court noted that the laboratory report upon which
Harwell based his arguments had existed at the time of his trial.
{¶ 16} Additionally, the court found that “regardless of whether DNA existed on the
shell casings,” Harwell’s guilt and his identity as the perpetrator of the offenses had been
established through extensive evidence unrelated to DNA, as previously discussed in
Harwell, 2d Dist. Montgomery No. 29318, 2022-Ohio-2706, at ¶ 33-37. The court denied
the motion based on “untimeliness, res judicata, and failure to demonstrate that shell
casing DNA would alter the outcome[.]”
{¶ 17} Harwell raises the same arguments on appeal, asserting that he established
that he had been unavoidably prevented from moving for a new trial within the time
specified in Crim.R. 33(B) and that the trial court had abused its discretion in denying his
motion for leave to file a motion for a new trial. Harwell contends that the State failed to
rebut his claim. His brief does not address the denial of his motion to vacate or its
treatment as a petition for postconviction relief.
{¶ 18} Harwell directs our attention to State v. Hill, which states:
Mary Cicco, a forensic scientist in the serology and DNA section at
the Miami Valley Regional Crime Laboratory (“MVRCL”), was designated
as an expert in forensic science specializing in serology and DNA. Cicco
testified that she swabbed State's Exhibit 36, the gun, for touch DNA on the
grip, the slide, and the trigger. She testified that, before she analyzed the
gun, it had been submitted to the firearm section of the MVRCL. She
stated that she expressed concern to Det. Steele because she knew the -8-
people working in the firearm section did not wear gloves; her concern was
that she “would pick up DNA from each and every one of the analysts that
had also touched the item.” Cicco testified that she was provided with Hill's
DNA standard. In testing the weapon, she “obtained a partial mixed DNA
profile,” but she made no determination with regard to Hill being a
contributor. She could not exclude him, which meant she was “looking at
this mixed profile of a couple of individuals. I see possible DNA types that
may have come from him; however, I cannot state that definitively.”
Hill, 2019-Ohio-3921, 145 N.E.3d 1128, at ¶ 43. Chris Monturo of the MVRCL also
testified in Hill regarding his examination and test-firing of the weapon used in the case
as well as bullet fragments and shell casings. Id. at ¶ 44.
{¶ 19} Harwell argues that the State “told the jury that this case was solved by the
use of scientific and DNA evidence” and, therefore, its failure to disclose Monturo’s
alleged mishandling of the evidence was “material and exculpatory.” In support of this
argument, Harwell also cites testimony at trial from Jonathan Lambes, the surviving
victim, that he did not see Harwell “with a gun in his hand” and that another man was the
only one with a gun in his hand. Harwell asserts that, in a July 13, 2013 memo, the State
acknowledged that Harwell did not have a gun at the crime scene. Based on this
evidence, Harwell asserts that the State’s reliance on Monturo’s testimony made the
undisclosed evidence about Monturo’s handling of the evidence “even more exculpatory
in nature.”
{¶ 20} According to Harwell, the absence of his DNA on the shell casings would -9-
establish his innocence. He argues that he sought leave to file a motion for a new trial
based upon the July 16, 2021 correspondence from the crime lab, not evidence that
existed before trial and not Monturo’s lab report. He argues that the July 16, 2021
correspondence brought Monturo’s testimony that he had followed the MVRCL policies
and procedures into question. Harwell argues that with “the destruction of exculpatory
material evidence by the state’s actors, this case certainly represents violations of
petitioner’s due process rights.”
{¶ 21} Although Harwell’s brief focuses on the denial of his motion for leave to file
a motion for a new trial, the State’s brief focuses on the denial of his alternative petition
for post-conviction relief pursuant to R.C. 2953.23. The State echoes the trial court’s
conclusion that Harwell’s guilt and the identity as the offender were established through
extensive evidence unrelated to DNA, and therefore Harwell cannot establish that “no
reasonable factfinder would have found him guilty absent” the evidence upon which he
relies about possible interference with the DNA testing of the shell casings based on
Monturo’s handling of that evidence.
{¶ 22} In State v. Harwell, 2d Dist. Montgomery No. 28104, 2019-Ohio-643, ¶ 14-
17, we discussed the standard for our review of a motion for leave to file a motion for a
new trial:
Motions for a new trial are governed by Crim.R. 33. Crim.R. 33(A),
which sets forth the authorized bases for a new trial, provides:
(A) Grounds. A new trial may be granted on motion of the defendant for
any of the following causes affecting materially his substantial rights: -10-
(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;
(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the
state;
(3) Accident or surprise which ordinary prudence could not have guarded
against;
(4) That the verdict is not sustained by sufficient evidence or is contrary to
law. * * *;
(5) Error of law occurring at the trial;
(6) When new evidence material to the defense is discovered which the
defendant could not with reasonable diligence have discovered and
produced at the trial. * * *
Except for motions based on newly discovered evidence under
Crim.R. 33(A)(6), a motion for new trial “shall be filed within fourteen days
after the verdict was rendered * * * unless it is made to appear by clear and
convincing proof that the defendant was unavoidably prevented from filing
his motion for a new trial * * * [.]” Crim.R. 33(B). In contrast, a motion for
new trial based on newly discovered evidence “shall be filed within one
hundred twenty days after the day upon which the verdict was rendered
* * *[.]” Id.
In order to file a motion for new trial after the expiration of the time -11-
periods specified in Crim.R. 33(B), a defendant must first seek leave of the
trial court to file a delayed motion. State v. Lanier, 2d Dist. Clark No. 2009
CA 84, 2010-Ohio-2921, ¶ 15, citing State v. Warwick, 2d Dist. Champaign
No. 01CA33, 2002 WL 1585663, *2 (July 19, 2002); State v. Parker, 178
Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16 (2d Dist.). “To
obtain leave, defendant must demonstrate by clear and convincing
evidence that he or she was unavoidably prevented from timely filing the
motion for a new trial or discovering the new evidence within the time period
provided by Crim.R. 33(B).” (Citations omitted.) Warwick at *2. “The
reference to ‘clear and convincing proof’ means something more than bare
allegations or statements in a motion.” State v. Morris, 2d Dist.
Montgomery No. 26949, 2017-Ohio-1196, ¶ 19. “A defendant is entitled to
a hearing on a motion for leave to seek a new trial if he [or she] submits
documents that on their face support his [or her] claim of being unavoidably
prevented from meeting Crim.R. 33's time requirement.” State v. Hiler, 2d
Dist. Montgomery No. 27364, 2017-Ohio-7636, ¶ 12, citing Lanier at ¶ 16.
“ ‘[A] party is unavoidably prevented from filing a motion for new trial
if the party had no knowledge of the existence of the ground supporting the
motion for new trial and could not have learned of the existence of that
ground within the time prescribed for filing the motion for new trial in the
exercise of reasonable diligence.’ ” Parker at ¶ 16, quoting State v.
Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984). -12-
“[A] defendant fails to demonstrate that he or she was unavoidably
prevented from discovering new evidence when he would have discovered
that information earlier had he or she exercised due diligence and some
effort.” State v. Lenoir, 2d Dist. Montgomery No. 26846, 2016-Ohio-4981,
¶ 24, citing State v. Metcalf, 2d Dist. Montgomery No. 26101, 2015-Ohio-
3507, ¶ 11, citing Warwick.
{¶ 23} “ ‘Newly discovered evidence’ is ‘evidence of facts in existence at the time
of trial of which the party seeking a new trial was justifiably ignorant.’ ” State v. Love, 1st
Dist. Hamilton Nos. C-050131, C-050132, 2006-Ohio-6158, ¶ 43.
“Evidence which merely impeaches or contradicts evidence in the former
trial is insufficient to support a motion for a new trial.” (Citations omitted.)
State v. Wright, 67 Ohio App.3d 827, 831, 588 N.E.2d 930 (2d Dist.1990).
“ ‘The test is whether the newly discovered evidence would create a strong
probability of a different result at trial, or whether it is merely impeaching or
contradicting evidence that is insufficient to create a strong probability of a
different result.’ ” Id., quoting Dayton v. Martin, 43 Ohio App.3d 87, 90, 539
N.E.2d 646 (2d Dist.1987).
State v. Morris, 2d Dist. Montgomery Nos. 26949, 26960, 2017-Ohio-1196, ¶ 13.
{¶ 24} Finally, 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, -13-
219, 450 N.E.2d 1140 (1983).
{¶ 25} Harwell was required to obtain leave to file a delayed motion for a new trial.
He was convicted in July 2013. He did not file his motion for leave to file a delayed
motion for new trial until July 17, 2023, ten years later and well beyond the time limitations
in Crim.R. 33(B). The burden was on Harwell to submit documents which, on their face,
supported his claim that he had been unavoidably prevented from timely discovery of the
new evidence. We conclude that the trial court did not abuse its discretion in overruling
his motion without a hearing. DNA testing was widely available at the time of Harwell’s
trial and, with due diligence, Harwell could have discovered Monturo’s conduct in testing
the casings in a timely manner. Monturo was subject to cross-examination at trial by
defense counsel about his methods. In other words, the evidence upon which Harwell
relied was not newly discovered evidence. Most significantly, even if we were to find that
there was newly discovered evidence that Monturo had compromised the integrity of any
DNA on the shell casings and/or had committed perjury at trial about the procedures he
used which Harwell had been unavoidably prevented from discovering (which we do not),
we would not conclude that the evidence was exculpatory as Harwell asserts.
{¶ 26} In Harwell, 2d Dist. Montgomery No. 29318, 2022-Ohio-2706, we examined
this issue as follows:
Under R.C. 2953.74(C)(3), the trial court may only accept an
application for DNA testing if, “at the trial stage * * *, the identity of the
person who committed the offense was an issue.” As the State points out,
it was not. Harwell was convicted as the principal and/or aider and abettor -14-
under a complicity theory; there were two men involved: Harwell and the
man in the purple car. After he escaped and was interviewed by the police,
Lambes identified Harwell in a photo spread as being involved in the
kidnapping and shooting, and then at trial, Lambes acknowledged him as
the perpetrator. Lambes also testified that he was “not going to forget who
drove me around for a couple hours of my life just to take me somewhere
just to have me done in. I'm not going to forget that face[.]” Trial Tr. at 872.
Cell phone records indicated that Harwell was involved. Not only
did he make multiple calls with witnesses and victims during the ordeal, but
evidence was presented that his cell phone was at or around Guthrie Road
at the time of the shooting. The trial court did not err by denying his
application on the authority of R.C. 2953.74(C)(3).
The trial court also found that Harwell's application would fail under
R.C. 2953.74(C)(4), which states that the exclusion result must be outcome
determinative. Outcome determinative means that had the results of DNA
testing of the offender been presented at the trial, there is a strong
probability he would not have been found guilty. There was ample
evidence to convict.
Even if we accept Harwell's theory that testing the casings and
Lambes's t-shirt would have yielded a result establishing the presence of
another's DNA, that sort of result would not be outcome determinative.
Rather, it would merely establish that someone else touched the cartridge -15-
casings and had contact with Lambes. It would not negate the substantial
amount of credible evidence of Harwell's involvement in the kidnappings
and murder. See State v. Moten, 2d Dist. Greene No. 2005-CA-5 and
2020-CA-23, 2021-Ohio-233; State v. Sells, 2017-Ohio-987, 86 N.E.3d 891
(2d Dist.); State v. Mason, 5th Dist. Ashland No. 2020CA00023, 2020-Ohio-
6895, ¶ 47-48 (“[I]n order for the trial court to find that touch DNA evidence
on the clothing would be outcome determinative, it would have to disregard
all the evidence provided at trial.”); State v. Ridley, 2020-Ohio-2779, 154
N.E.3d 462, ¶ 60 (3d Dist.) (“Given the high degree of flexibility in the State's
theory of the case, a DNA testing result proving that another person
interacted with [the] items would not foreclose Ridley as a perpetrator[.]”).
Id. at ¶ 33-37.
{¶ 27} Based upon the foregoing, Harwell’s assignment error is overruled. The
evidence was not newly discovered, nor did it create a strong probability of a different
result at trial, given the overwhelming evidence of Harwell’s guilt. The judgment of the
trial court is accordingly affirmed.
TUCKER, J. and LEWIS, J., concur.