[Cite as State v. Howard, 2021-Ohio-1739.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-16 : v. : Trial Court Case No. 2003-CR-1002 : CECIL W. HOWARD : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 21st day of May, 2021.
IAN RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
ANDREW SCHLUETER, Atty. Reg. No. 0086701, P.O. Box 96, Xenia, Ohio 45385 Attorney for Defendant-Appellant
.............
TUCKER, P.J. -2-
{¶ 1} Cecil W. Howard appeals from a judgment of the Clark County Court of
Common Pleas, which denied his motion for a new trial and for leave to file the motion.
Howard’s appointed counsel has filed a brief under the authority of Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he cannot not find any
non-frivolous issues on appeal and requesting permission to withdraw. Upon our
independent review, we agree with counsel’s assessment. Thus, counsel’s request to
withdraw is granted, and the trial court’s judgment will be affirmed.
Facts and Procedural History
{¶ 2} In 2004, Howard was convicted after a jury trial of attempted murder with a
firearm specification, aggravated robbery with a firearm specification, and having a
weapon while under disability. The charges stemmed from the armed robbery of the
Beverage Oasis Drive Through in Springfield by Howard and an accomplice, during which
one of the perpetrators exchanged gunfire with the store’s owner, Clifford Conley. Three
employees and an employee’s wife were in the store when the robbery began.
{¶ 3} At sentencing, the trial court imposed nine years in prison for attempted
murder, nine years in prison for aggravated robbery, and four years in prison for having
a weapon while under disability, to be served consecutively. After merging the firearm
specifications, the court imposed an additional three years on the specification.
Howard’s aggregate sentence was 25 years in prison. We affirmed Howard’s conviction
on direct appeal. State v. Howard, 2d Dist. Clark No. 2004-CA-29, 2005-Ohio-2237.
{¶ 4} Howard appealed to the Ohio Supreme Court. Upon review, the supreme
court vacated Howard’s sentence and remanded the case to the trial court for
resentencing in accordance with State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 -3-
N.E.2d 470. In re Ohio Criminal Sentencing Statute Cases, 109 Ohio St.3d 313, 2006-
Ohio-2109, 847 N.E.2d 1174, ¶ 68. At the 2006 resentencing hearing, the trial court
imposed 10 years each for attempted murder and aggravated robbery, five years for
having weapons while under disability, and three years for the firearm specification, for
an aggregate sentence of 28 years in prison. We affirmed the trial court’s sentence.
State v. Howard, 174 Ohio App.3d 562, 2007-Ohio-4334, 883 N.E.2d 1077 (2d Dist.).
{¶ 5} Howard filed a motion to merge his sentence and vacate his conviction, which
the trial court denied. Howard again appealed, arguing that his indictment was deficient
because it contained no mens rea for the charge of aggravated robbery under R.C.
2911.01(A)(1) and that his attempted murder and aggravated robbery convictions were
allied offenses of similar import that should have been merged. We concluded that
Howard’s claims were barred by res judicata and affirmed. State v. Howard, 2d Dist.
Clark No. 2008-CA-87, 2009-Ohio-3432.
{¶ 6} Nine years later, on December 14, 2018, Howard filed a motion for a new
trial, pursuant to Crim.R. 33(B), and for leave to file the motion. He claimed that, due to
ineffective assistance of counsel, four errors occurred: (1) he was found guilty of
attempted murder without requiring the State to provide proof beyond a reasonable doubt
due to the interplay between the murder statute and the attempt statute, (2) he was found
guilty of aggravated robbery without requiring the State to provide proof beyond a
reasonable doubt due to differences between the aggravated robbery statute and the
attempt statute, (3) the trial court failed to instruct the jury on the differences between the
offense statutes and the attempt statute, and (4) his counsel rendered ineffective
assistance by failing to raise these arguments. In essence, Howard asserted that the -4-
offense and attempted statutes involved different degrees of the offense and, thus,
different maximum penalties. Because the State did not present facts to prove the higher
degree, Howard states, his convictions for attempted murder and aggravated robbery
must be vacated.
{¶ 7} Recognizing that his motion was untimely, Howard’s motion further stated
that “because of the ineffective assistance of his trial counsel, he was unavoidably
prevented from discovery of the facts underlying his instant claims.” Howard also
asserted that, because of the “structural constitutional errors” in his case, no reasonable
factfinder would have found him guilty of attempted murder and aggravated robbery, and
thus he established a “colorable claim of actual innocence as required under O.R.C.
§2953.23 and Ohio Criminal Rule 33(B).”
{¶ 8} On January 18, 2019, the trial court overruled the motion. The court
reasoned that Howard had failed to meet his burden to provide new evidence, his motion
was untimely, and he failed to show any evidence that there was a strong probability that
the result of a new trial would be different.
{¶ 9} On March 1, 2019, Howard appealed from the trial court’s ruling, and he
sought leave to file a delayed appeal, which we granted. Howard’s original appellate
counsel subsequently filed an Anders brief and requested permission to withdraw.
Counsel indicated that Howard had misconstrued the indictment and sentencing statutes,
and that he was properly convicted of attempted murder and aggravated robbery as first-
degree felonies. Counsel could find no non-frivolous issues for appeal.
{¶ 10} Upon our initial review, we commented that Howard’s motion “can be
construed as a motion seeking to vacate the attempted murder conviction.” Noting that -5-
attempted felony murder is not a cognizable offense, but attempted murder under R.C.
2903.02(A) and R.C. 2923.02 is possible, we found that the record was insufficient to
determine the statutory basis for Howard’s attempted murder conviction. We thus
rejected counsel’s Anders brief, appointed new counsel, and instructed new counsel to
supplement the record so it could be determined whether the attempted murder conviction
was attempted felony murder (R.C. 2903.02(B)) or attempted purposeful murder (R.C.
2903.02(A)). Counsel was further instructed to review the entire record, determine
whether any non-frivolous issues exist, and file either a merit brief or an Anders brief, as
appropriate.
{¶ 11} After supplementing the record with transcripts, Howard’s new appellate
counsel filed another Anders brief. Counsel raises three potential assignments of error:
(1) whether the trial court abused its discretion in overruling Howard’s motion for a new
trial; (2) whether the trial court abused its discretion in overruling Howard’s motion recast
as a petition for postconviction relief; and (3) whether the trial court erred in overruling
Howard’s motion recast as a motion to vacate his attempted murder conviction. We
notified Howard that his attorney had filed an Anders brief and granted him 60 days to file
a pro se brief. Howard has filed a pro se brief, repeating the arguments he made in his
motion for a new trial.
{¶ 12} The matter is now before us for our independent review.
Anders Standard
{¶ 13} Upon the filing of an Anders brief, an appellate court has a duty to
determine, “after a full examination of the proceedings,” whether the appeal is, in fact,
“wholly frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. -6-
Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous
based upon a conclusion that the State has a strong responsive argument. State v.
Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead,
is one about which, “on the facts and law involved, no responsible contention can be
made that offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226,
2003-Ohio-3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the
Anders brief and appoint new counsel to represent the defendant.
Anders Review
A. Motion for a New Trial
{¶ 14} Crim.R. 33 governs motions for new trial and sets forth the following six
grounds for securing a new trial: (1) irregularity in the proceedings that deprived the
defendant of a fair trial; (2) misconduct of the jury, prosecutor, or a state’s witness; (3)
accident or surprise that ordinary prudence would not have guarded against; (4) the
verdict was not sustained by sufficient evidence; (5) legal error during trial; or (6) new
evidence material to the defense has been discovered that could not have been
discovered with reasonable diligence in time for trial. Crim.R. 33(A).
{¶ 15} In general, a motion for a new trial must be filed within 14 days after the
verdict was rendered. Crim.R. 33(B). A motion for a new trial on account of newly
discovered evidence must be filed within 120 days after the verdict. Crim.R. 33(B). If,
as here, the relevant time period has expired, the defendant must first seek leave of the
trial court to file a delayed motion for a new trial. State v. Harwell, 2d Dist. Montgomery
No. 28104, 2019-Ohio-643, ¶ 16.
{¶ 16} “To obtain leave, defendant must demonstrate by clear and convincing -7-
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).”
State v. Warwick, 2d Dist. Champaign No. 01CA33, 2002 WL 1585663, *2 (July 19, 2002);
State v. DeVaughns, 2d Dist. Montgomery No. 28370, 2020-Ohio-2850, ¶ 12. “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 State v. Lanier, 2d Dist. Clark
No. 2009-CA-84, 2010-Ohio-2921, ¶ 16.
{¶ 17} “ ‘[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.’ ” State v. Parker,
178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16 (2d Dist.), quoting State v.
Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984); State v. Reed,
2d Dist. Montgomery No. 28272, 2019-Ohio-3295, ¶ 30. “Conversely, a defendant fails
to demonstrate that he or she was unavoidably prevented from discovering the new
evidence or the basis of the claim when he or she would have discovered that information
earlier with due diligence and some effort.” State v. Smith, 2d Dist. Montgomery No.
28307, 2019-Ohio-3591, ¶ 11.
{¶ 18} Howard’s motion for a new trial was filed in December 2018, more than 14 -8-
years after his conviction, which was well beyond the time limitations in Crim.R. 33(B).
Thus, Howard was required to establish by clear and convincing evidence that he 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).
{¶ 19} Although Howard’s motion states that it is based on newly discovered
evidence, Howard has identified no new evidence to support his motion for a new trial.
In his supporting affidavit, Howard avers that he was not told by his trial counsel that he
could file a motion for a new trial, that his attorney did not confer and consult with him
about the claims he now advances, and that he “discovered the facts underlying my
instant claims” within the past 120 days. Howard’s affidavit does not support a
conclusion that he has any newly discovered evidence.
{¶ 20} Howard’s motion appears to claim that his convictions were based on errors
of law. Specifically, Howard argues that the statutes defining attempted murder and
aggravated robbery have different maximum penalties than in the attempt statute. He
reasons, therefore, that the State was required to prove, and the jury was required to
make factual findings, that additional facts supported the charges as first-degree felonies.
Howard contends that, in the absence of those additional factual findings, he should have
been acquitted of both offenses.
{¶ 21} Howard’s explanation for not filing a timely motion for a new trial was that
his attorney did not properly confer and consult with him regarding the time constraints of
Crim.R. 33 and the issues. “We generally have held that a defendant’s lack of
knowledge of time limitations, even due to the failure of his attorney to notify him of such,
does not establish that a defendant was ‘unavoidably prevented’ from filing a timely -9-
motion.” (Citation omitted.) State v. Harwell, 2d Dist. Montgomery No. 28104, 2019-
Ohio-643, ¶ 22.
{¶ 22} In addition, Howard’s bases for his motion for a new trial were alleged legal
errors at trial, and he cites to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000) and its progeny. Howard has neither asserted nor demonstrated that
he could not have learned of the existence of that ground for a new trial within the time
limitations of Crim.R. 33(B). In addition, because Apprendi was decided prior to his
conviction, Howard has not shown that he is relying on a new right that applies to him
retroactively.
{¶ 23} We recognize that two of the cases Howard cites -- Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, 543
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) – were rendered shortly after his
conviction. However, Howard has not attempted to explain the more than decade delay
in filing his motion for a new trial. Moreover, Howard expressly argued at his 2006
resentencing hearing that he was “entitled to the minimum and concurrent sentences
pursuant to the 6th and 4th amendments of Blakely v. Washington. The Foster decision
in this case would violate the ex post facto and due process clauses of the United States
Constitution.” Under the doctrine of res judicata, Howard is barred from raising claims
under this case law in this motion for a new trial.
{¶ 24} We find no arguably meritorious claim that the trial court abused its
discretion in denying Howard’s motion for a new trial and for leave to file his untimely
motion.
B. Petition for Postconviction Relief -10-
{¶ 25} In his motion, Howard did not expressly state that he was seeking relief
under the postconviction relief statutes. However, he claimed that his motion was timely
under R.C. 2953.23.
{¶ 26} “The nature of a motion is not necessarily governed by its title.” State v.
Housley, 2d Dist. Miami No. 2019-CA-12, 2020-Ohio-1143, ¶ 15. Trial courts may recast
irregular motions into whatever category necessary to identify and establish the criteria
by which the motion should be judged. State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-
3993, 773 N.E.2d 522, ¶ 10.
{¶ 27} “When a motion is filed subsequent to a direct appeal (or the expiration of
time for filing a direct appeal), claims the denial of constitutional rights, seeks to render
the judgment of conviction void, and asks for vacation of the judgment and sentence, the
motion is properly construed as a petition for postconviction relief.” Housley at ¶ 15,
citing, e.g., State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997); State v.
Cline, 2d Dist. Champaign No. 2013-CA-51, 2014-Ohio-4503, ¶ 7. Howard’s motion
meets the criteria for a petition for postconviction relief.
{¶ 28} R.C. 2953.21(A)(2) provides that when a direct appeal is involved, a
postconviction relief petition must be filed “no later than three hundred sixty-five days after
the date on which the trial transcript is filed in the court of appeals in the direct appeal of
the judgment of conviction * * *.” A trial court may not entertain an untimely post-
conviction relief petition unless the petitioner initially demonstrates either (1) the petition
was not timely filed because he was unavoidably prevented from discovering the facts
necessary for the claim for relief, or (2) the United States Supreme Court recognized a
new federal or state right that applies retroactively to persons in the petitioner’s situation. -11-
R.C. 2953.23(A)(1)(a). “The phrase ‘unavoidably prevented’ in R.C. 2953.23(A)(1)(a)
means that a defendant was unaware of those facts and was unable to learn of them
through reasonable diligence.” State v. Oglesby, 2d Dist. Montgomery No. 27626, 2018-
Ohio-871, ¶ 13, quoting State v. Turner, 10th Dist. Franklin No. 06AP-876, 2007-Ohio-
1468, ¶ 11.
{¶ 29} Even if we were to construe Howard’s motion as a petition for postconviction
relief, his petition would be untimely for the same reasons that his motion for a new trial
was untimely. Howard has not demonstrated that he was unavoidably prevented from
discovering the facts supporting his claim, and he has not shown that the United States
Supreme Court has recognized a new right that applies retroactively to him.
{¶ 30} We find no arguably meritorious claim that the untimeliness of Howard’s
motion, construed as a petition for postconviction relief, was excused under R.C. 2953.23.
C. Motion to Vacate
{¶ 31} Finally, we find no non-frivolous issues when construing Howard’s motion
as a motion to vacate his convictions for attempted murder and aggravated robbery.
{¶ 32} The offense of murder is set forth in R.C. 2903.02, which provides in
relevant part:
(A) No person shall purposely cause the death of another or the unlawful
termination of another’s pregnancy.
(B) No person shall cause the death of another as a proximate result of the
offender’s committing or attempting to commit an offense of violence that is
a felony of the first or second degree and that is not a violation of section
2903.03 or 2903.04 of the Revised Code. -12-
{¶ 33} The attempt statute, R.C. 2923.02, further provides: “No person, purposely
or knowingly, and when purpose or knowledge is sufficient culpability for the commission
of an offense, shall engage in conduct that, if successful, would constitute or result in the
offense.” R.C. 2923.02(A).
{¶ 34} The Ohio Supreme Court has held that “attempted felony murder is not a
cognizable crime in Ohio.” State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25
N.E.3d 1016, ¶ 10. The supreme court reasoned that the attempt statute, R.C. 2923.02,
requires that an attempt offense be committed purposely or knowingly, but the felony
murder statute, R.C. 2903.02(B), does not require the State to establish that the
defendant intended to kill. The court summarized: “[I[t is impossible to purposely or
knowingly cause an unintended death.” Id. at ¶ 10. We have held that a conviction for
attempted felony murder is void. See State v. Beatty-Jones, 2d Dist. Montgomery No.
28234, 2019-Ohio-3386, ¶ 18.
{¶ 35} In contrast, an attempted murder conviction under R.C. 2923.02 and R.C.
2903.02(A) is a cognizable offense. State v. Collins, 7th Dist. Mahoning No. 16 MA
0045, 2017-Ohio-648, ¶ 17, citing State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971,
804 N.E.2d 433, ¶ 115-121, and State v. Kidder, 32 Ohio St.3d 279, 283, 513 N.E.2d 311
(1987). This is so because a murder conviction under R.C. 2903.02(A) “requires a
purpose to cause the death of another.” See Collins at ¶ 1.
{¶ 36} Here, the record reflects that Howard was convicted of attempting to commit
purposeful murder, in violation of R.C. 2903.02(A). Count One of the indictment, alleging
attempted murder, stated that Howard “purposely engage[d] in conduct that if successful
would constitute or result in the offense of murder, in violation of Sections 2923.02 and -13-
2903.02 of the Ohio Revised Code.” At trial, the court instructed the jury that “murder” is
“purposely causing the death of another,” which mirrored the language of R.C.
2903.02(A). The court continued: “A ‘criminal attempt’ means that defendant engaged
in conduct which if successful would have constituted or resulted in purposely causing
the death of Clifford Conley.” In short, the court provided instructions on attempted
murder based on R.C. 2903.02(A). It did not provide instructions on attempted felony
murder. Consequently, we find no arguably meritorious claim that Howard’s attempted
murder conviction was void as a non-cognizable offense.
{¶ 37} Howard argues that there are “factual and element difference[s] between a
violation of R.C. 2903.02(A) and R.C. 2923.02(A),” which result in different penalties and
entitled him to an acquittal on the attempted murder charge. Howard’s argument also
has no arguable merit. The State presented evidence at trial that supported a conclusion
that Howard purposely or knowingly engaged in conduct that, if successful, would have
constituted or resulted in the murder of Conley, as defined in R.C. 2903.02(A). The jury
was properly instructed on the charge of attempted murder based on R.C. 2903.02(A).
R.C. 2923.02(E)(1) provides that an attempt to commit murder is a felony of the first
degree, and Howard’s sentence was within the statutory range for that offense. See
former R.C. 2929.14(A)(1). Howard’s claim that he was entitled to an acquittal on the
attempted murder charges is frivolous.
{¶ 38} Howard raises a similar argument regarding the aggravated robbery
charge. Howard states: “The aggravated robbery statute under 2911.01(A) prohibits and
[sic] attempted theft and theft at the same time and merit[s] a penalty as a first-degree
felony and the maximum sentence of 11 years. Yet a conviction for the same offense -14-
under R.C. 2923.02(A) merits a maximum sentence of only 8 years.”
{¶ 39} Count Two of the indictment charged Howard with aggravated robbery, in
violation of R.C. 2911.01(A)(1), a felony of the first degree. That statute provides:
(A) No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s person or under the
offender’s control and either display the weapon, brandish it, indicate that
the offender possesses it, or use it[.]
(Emphasis added.) Count Two of the indictment did not mention the attempt statute, and
the trial court properly did not instruct jury on the attempt statute regarding Count Two.
In sum, the record reflects that the attempt statute had no role in Howard’s aggravated
robbery conviction. Howard has not presented an arguably meritorious claim that he
was improperly convicted of aggravated robbery as a felony of the first degree.
{¶ 40} Finally, Howard claims that the errors in the State’s evidence at trial, the
trial court’s jury instructions on the charges of attempted murder and aggravated robbery,
and ineffective assistance of counsel resulted in “structural constitutional defects.” For
the reasons stated above, Howard’s claim of “structure constitutional defects” is frivolous.
Conclusion
{¶ 41} We have reviewed the entire record and have found no potentially
meritorious appellate issues. Having found no non-frivolous issues for appeal, appellate
counsel is permitted to withdraw, and the judgment of the trial court will be affirmed. -15-
DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Ian Richardson Andrew Schlueter Cecil W. Howard Hon. Douglas M. Rastatter