State v. Short

2020 Ohio 5034

• Court: Ohio Court of Appeals
• Decided: October 23, 2020
• Docket: 28696
• Status: Published

Opinion

[Cite as State v. Short, 2020-Ohio-5034.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28696 : v. : Trial Court Case No. 2004-CR-2635 : DUANE ALLEN SHORT : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 23rd day of October, 2020.

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

KIMBERLY S. RIGBY, Atty. Reg. No. 0078245 and ERIKA M. LAHOTE, Atty. Reg. No. 0092256, Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorneys for Defendant-Appellant

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TUCKER, P.J. -2-

{¶ 1} Appellant Duane Allen Short appeals from a judgment of the Montgomery

County Court of Common Pleas, which found that it was without jurisdiction to consider

Short’s motion for a new mitigation trial. The trial court incorrectly concluded that it

lacked jurisdiction. However, Short is not entitled to a new mitigation trial under the

authority of Hurst v. Florida, 577 U.S. 92 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Thus,

the trial court’s judgment will be affirmed.

Facts and Procedural History

{¶ 2} In 2004, Short was indicted for the aggravated murders of Rhonda Short, his

estranged wife, and Donnie Sweeney. The murder indictments included aggravating

circumstance specifications. The jury found Short guilty of the aggravated murders and

the aggravating circumstance specifications. Further, following deliberations regarding

the specifications, the jury unanimously found that the aggravating circumstances

outweighed the mitigating factors, and therefore the jury recommended a death sentence.

The trial court adopted the jury’s recommendation and sentenced Short to death. Short’s

conviction and sentence were affirmed on direct appeal. State v. Short, 129 Ohio St.3d

360, 2011-Ohio-3641, 952 N.E.2d 1121.1

{¶ 3} In January 2017, Short filed a motion styled as a “* * * Motion For Leave To

File A Motion For A New Mitigation Trial Pursuant To Criminal Rule 33 And Hurst v.

Florida, And To Deem The Attached Motion Filed Instanter[.]” Attached to the motion

was a copy of the proposed motion seeking a new mitigation trial. In July 2017, the trial

court sustained Short’s motion for leave to file a motion for a new mitigation trial. The

1 In 2014, Short filed a petition seeking post-conviction relief, which was denied by the trial court. This court affirmed the trial court’s decision. State v. Short, 2d Dist. Montgomery No. 27399, 2018-Ohio-2429. -3-

trial court’s order stated that “[Short] must file his motion for New Trial in a timely manner

as provided by law.”

{¶ 4} Thereafter, Short did not file a motion for a new trial with the Montgomery

County Clerk of Courts. The parties, in December 2019, filed a motion styled as a “Joint

Motion for Ruling on Motion for New Mitigation Trial[.]” The joint motion noted the trial

court had conducted a telephone status conference with counsel during which Short’s

attorneys informed the trial court that they “had assumed that attaching the Motion for

New Trial to the Motion for Leave was sufficient for filing purposes.” On December 30,

2019, the trial court filed a decision and order concluding that “Crim.R. 33(B) * * * requires

that any motion for new trial be filed within seven days after a defendant is granted leave

to file said motion. Short failed to file any motion for a new trial after the court granted

him leave, and, as such, there is no timely motion for a new mitigation trial before this

court, and the court lacks jurisdiction to consider an untimely motion for a new mitigation

trial.” (Emphasis sic.) Based upon this jurisdictional conclusion, the trial court overruled

Short's motion seeking a new mitigation trial. The trial court also noted that if the motion

had been timely filed, it would have been overruled under the authority of State v. Mason,

153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56.

{¶ 5} Short appeals.

Trial Court’s Jurisdiction to Decide Motion for New Mitigation Trial

{¶ 6} As noted, the trial court concluded it was without jurisdiction to decide Short’s -4-

motion seeking a new mitigation trial because, in contravention of Crim.R. 33(B),2 Short

did not file a motion for a new mitigation trial within seven days of the trial court’s decision

and order granting leave to file the motion.

{¶ 7} Crim.R. 45(B) states in relevant part that a “court may not extend the time for

taking any action under Rule 23, Rule 29, Rule 33, and Rule 34 except to the extent and

under the conditions stated in them.” It seems that this language supports the trial

court’s jurisdictional conclusion. But the Ohio Supreme Court’s decision in State v. Ross,

128 Ohio St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992 suggests otherwise.

{¶ 8} In Ross, the Ohio Supreme Court considered whether a trial court is without

jurisdiction to “reconsider a timely made, but previously denied, motion for acquittal

pursuant to Crim.R. 29(C), if the defendant after the 14 day deadline in that rule, renews

the motion.” Id. at ¶ 12. Ross concluded that the Crim.R. 29(C)3 time limitations are

appropriately characterized as “a rigid claim-processing rule” as opposed to a

jurisdictional bar. Id. at ¶ 30.4

2 Crim.R. 33(B) states in pertinent part: “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, or the decision of the court where a trial by jury has been waived, 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, in which case the motion shall be filed within seven days from the order of the court finding that the defendant was unavoidably prevented from filing such motion within the time provided herein.” 3 Crim.R. 29(C) states in pertinent part: “If a jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within fourteen days after the jury is discharged or within such further time as the court may fix during the fourteen day period. * * * 4 Ross ultimately concluded that, although not a jurisdictional bar, “the strict time limitations in Crim.R. 29 and 45(B) * * * do not permit a defendant to renew, outside Crim.R.29(C)’s limited time frame, [a motion] for acquittal when the motion has been -5-

{¶ 9} In reaching this conclusion, the supreme court discussed and relied upon

Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005). In that

case, Eberhart filed a supplemental memorandum in support of a pending motion for a

new trial under Fed.R.Crim.P. 33. The supplemental memorandum raised new grounds

for the relief sought; thus, the supplemental memorandum constituted a new but untimely

motion as to the newly raised grounds. The government did not object to the newly

asserted grounds for a new trial as being untimely, but, instead, contested these grounds

on the merits. The district court granted a new trial in part upon the basis of the untimely

asserted grounds for relief. The Seventh Circuit reversed, concluding that the district

court was without jurisdiction to consider the untimely asserted grounds for a new trial.

The Supreme Court then reversed the Seventh Circuit’s judgment, stating:

Rule 33, like Rule 29 * * *, is a claim-processing rule -- one that is admittedly

inflexible because of [Fed.R.Crim.P.] 45(b)’s insistent demand for a definite

end to proceedings. These claim-processing rules thus assure relief to a

party properly raising them, but do not compel the same result if the party

forfeits them. Here, where the Government failed to raise a defense of

untimeliness until after the District Court had reached the merits, it forfeited

the defense.

Eberhart at ¶ 19.

{¶ 10} Consistent with State v. Ross, we conclude that Crim.R. 33(B) and Crim.R.

45(B) do not impose a jurisdictional bar that absolutely prevents a court from considering

an untimely motion for a new trial. Instead, Crim.R. 33(B) and Crim.R. 45(B) create a

previously denied.” Id. at ¶ 40. -6-

“rigid claim-processing rule” that must be enforced if properly raised. Ross, 128 Ohio

St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992, at ¶ 30.

{¶ 11} Given this conclusion, the trial court had jurisdiction to consider Short’s

motion for a new mitigation trial. The issue, then, is whether the State properly raised

the defense that Short’s motion was not timely filed. We conclude, under the unique

circumstances of this case, that the defense was not raised and, as such, was waived.

{¶ 12} We reach this conclusion based upon the following language from the Joint

Motion requesting the trial court to rule on Short’s motion:

Without waiving any defenses on behalf of either party as to the

timeliness of the filing of Short’s Motion for New Mitigation Trial or to the

merits of the Motion for New Mitigation Trial or otherwise, the undersigned

Assistant State Public Defenders, Kim Rigby and Erika LaHote, along with

the undersigned Assistant Prosecuting Attorneys, Leon J. Daidone and

Andrew T. French, jointly request that this Court rule on the Motion for New

Mitigation Trial. The parties request that this Court rule on the Motion for

New Mitigation Trial without affording further briefing to either party. All

counsel also stipulates that the Ohio Supreme Court’s decision in State v.

Mason, 153 Ohio St.3d 476, 2018-Ohio-1462 controls this case.

This language requests a ruling on the merits, recognizing, however, that the trial court

had to overrule the motion based upon Ohio Supreme Court case law. We recognize

that the joint motion includes the statement that timeliness defenses were not being

waived. But the State did not assert a timeliness objection, and this, in conjunction with

the joint request for a ruling on the merits, leads to our waiver conclusion. Thus, the trial -7-

court was not precluded by the rigid claims-processing rule from addressing the merits of

Short’s new trial motion.

Merits Discussion

{¶ 13} Although the trial court concluded that it was without jurisdiction to consider

Short’s motion, it noted that the motion was substantively without merit based upon State

v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56. The trial court’s

assessment was correct.

{¶ 14} Short claims a right to a new mitigation trial under the authority of Hurst v.

Florida, 577 U.S. 92 136 S.Ct. 616, 193 L.Ed.2d 504, which found that Florida’s capital

sentencing structure violated the Sixth Amendment. The United States Supreme Court

“determined that Florida’s death penalty scheme violated the Sixth Amendment [right to

a jury] because it required the trial judge, not the jury, to find an aggravating circumstance

that made [the] defendant death penalty eligible; thus, the jury was removed from the

critical finding necessary for imposition of the death penalty.” State v. Chinn, 2d Dist.

Montgomery No. 28345, 2020-Ohio-43, ¶ 14, citing Hurst at 622.

{¶ 15} In Mason, the Ohio Supreme Court concluded that Ohio’s death penalty

scheme does not suffer from the problem present in Hurst because, in Ohio, the jury is

required to find the defendant guilty of the aggravating circumstance specification

necessary for death penalty eligibility. Mason at ¶ 20. Given this, Short was not entitled

to a new mitigation trial under the authority of Hurst. The trial court’s result was correct,

albeit for a different reason.

Conclusion

{¶ 16} For the discussed reasons, the trial court’s judgment is affirmed. -8-

FROELICH, J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Kimberly S. Rigby Erika M. LaHote Hon. Mary Katherine Huffman