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In 2003, Hazel was indicted for aggravated burglary, domestic violence, and

intimidation of a witness; the indictment did not specify that the underlying offense for the

aggravated burglary was domestic violence, nor did it specifically allege that the victim of

the aggravated burglary was a family or household member. However, the victim for all

counts in the 2003 case was H.K., who believed that Hazel was the father of her child.

{¶ 3} On September 10, 2003, while the 2003 case was pending, Hazel provided

DNA samples for paternity testing regarding three children, one of which was H.K.’s

daughter.1 The parties agree that the paternity testing revealed that Hazel was not the

father of H.K’s daughter. The criminal case was resolved in October 2003 when Hazel

pled guilty to aggravated burglary in violation of R.C. 2911.11(A)(1), with the remaining

counts being dismissed. The court imposed an agreed three-year prison sentence.

{¶ 4} In 2009, Hazel was convicted of domestic violence in Clark County; a

different person, A.S., was the victim.

{¶ 5} On November 29, 2010, Hazel was indicted for domestic violence, abduction,

1 Hazel states in his motion that he has been able to obtain a copy of the test results of one of these DNA tests (Ex. 31-C), but not the results of the paternity tests for H.K.’s daughter and the third child. Exhibit 31-C indicates that Hazel’s DNA sample regarding one child was collected on September 10, 2003, and the testing result is dated September 15, 2003. Hazel states in his motion that he provided the three samples on the same date and that the results for each test came back on the same date.





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felonious assault, and kidnapping for incidents that occurred on November 5, 2010.

(Clark C.P. No. 10CR808.) The alleged victim was his girlfriend, M.S., and the count of

domestic violence included a specification that the victim had been pregnant. On the

State’s motion, the trial court subsequently consolidated this case with two other cases in

which Hazel was also charged with domestic violence against M.S. (Clark C.P. Nos.

10CR827 and 10CR828), each with a specification that M.S. had been pregnant at the

time of the offenses. All of the counts of domestic violence also specified that Hazel had

previously been convicted of domestic violence and of aggravated burglary involving a

family or household member. After these cases were consolidated, the State re-indicted

Hazel in 2011 on three counts of felonious assault related to the events of November 5,

2010 (Clark C.P. No. 11CR49).

{¶ 6} During the trial on the consolidated cases, the State introduced the fact of

the 2003 conviction through the judgment entry in the 2003 case and the testimony of the

Clark County prosecutor who had prosecuted that case. The prosecutor testified, based

upon his independent recollections and his review of the 2003 case file, that Hazel had

pled guilty to aggravated burglary and that “the underlying offense in that case was

domestic violence, meaning that the victim was a family or household member.” (See

Tr. at 447.) On cross-examination, the prosecutor acknowledged that the aggravated

burglary charge and the corresponding bill of particulars referenced the victim’s name

(H.K.), but did not identify the victim as a “family or household member.” (Tr. 450-451.)

The prosecutor reiterated on additional redirect examination that domestic violence was

the underlying offense for the aggravated burglary (Tr. at 452), but acknowledged on re

cross examination that the domestic violence was not identified as the underlying offense





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in the indictment (Tr. at 452-453).

{¶ 7} Neither the 2003 indictment, the 2011 indictments, nor the testimony of the

prosecutor clarified which definition of “family or household member” under former R.C.

2919.25(E) (now R.C. 2919.25(F)) applied such that H.K. was a “family or household

member” of Hazel’s. “Family or household member” includes, for example, a person

living as a spouse, former R.C. 2919.25(E)(1)(a)(i), and the natural parent of any child of

whom the offender is the other natural parent or is the putative other natural parent, former

R.C. 2919.25(E)(1)(b). A “person living as a spouse” includes a person who “has

cohabited with the offender within five years prior to the date of the alleged commission

of the act in question.” Former R.C. 2919.25(E)(2).

{¶ 8} Before the case was submitted to the jury, the State conceded that it had

failed to present sufficient evidence on the counts of abduction, felonious assault, and

kidnapping in Case Nos. 10CR0808 and 11CR49; these counts were dismissed pursuant

to Crim.R. 29. The remaining three counts of domestic violence were submitted to the

jury. The jury found Hazel guilty of two counts of domestic violence and that he knew

M.S. was pregnant at the time of the offenses. The jury also separately determined that

Hazel had previously been convicted of aggravated burglary involving a family or

household member in the 2003 case and of domestic violence in the 2009 case. The

jury found Hazel not guilty of the third count of domestic violence.

{¶ 9} At sentencing, based upon the knowledge of pregnancy finding, the trial court

was required to impose a prison term on both domestic violence convictions. Additionally,

the jury’s determination that Hazel had been convicted of aggravated burglary involving

a family or household member in the 2003 case as well as domestic violence in the 2009





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case made each domestic violence conviction a third-degree, as opposed to a fourth

degree, felony. R.C. 2919.25(D).2 The trial court imposed a five-year prison term on

each count and ordered the sentences to be served consecutively for a total prison term

of ten years.

{¶ 10} We affirmed Hazel’s conviction on direct appeal. State v. Hazel, 2d Dist.

Clark No. 2011 CA 16, 2012-Ohio-835. Hazel sought postconviction relief, which the

trial court denied. We affirmed the trial court’s judgment. State v. Hazel, 2d Dist. Clark

Nos. 2011-CA-101, 2012-CA-22, 2013-Ohio-118.

{¶ 11} In February 2016, Hazel, pro se, filed a motion in the trial court for leave to

file a motion for a new trial. “Hazel’s motion * * * assert[ed] that he [was] entitled to such

leave because he [was] not the biological father of a child born to [H.K.], that his alleged

paternity of [H.K.’s] child was used to enhance his [2011] domestic violence convictions

from fourth to third degree felonies, that he was unavoidably prevented from discovery of

this evidence in time to allow a timely filed motion seeking a new trial, and, as such, he

should be allowed to file a motion for a new trial and, ultimately, he should be granted a

new trial.” State v. Hazel, 2d Dist. Clark No. 2017-CA-8, 2018-Ohio-766, ¶ 1. The

motion was overruled. We affirmed the trial court’s judgment, commenting, “Hazel does

not explain how he was unavoidably prevented from obtaining the DNA test result

regarding [H.K.’s] child until the February 2016 filing of his motion seeking leave to file a

2 Under R.C. 2919.25(D)(3), domestic violence is a fourth-degree felony if the defendant previously has pleaded guilty to or been convicted of domestic violence or another offense identified in that subsection involving a family or household member. If the defendant previously has been convicted of two or more of those offenses, domestic violence is a felony of the third degree. R.C. 2919.25(D)(4). Aggravated burglary is an offense included under R.C. 2919.25(D)(3).





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motion for a new trial. Any attempted explanation would defy logic since he participated

in the 2004 [sic] paternity testing.” Id. at ¶ 17.

{¶ 12} On March 12, 2018, Hazel filed a motion to compel, seeking to require

LabCorp to produce documents regarding the date and result of the DNA testing

performed regarding H.K.’s child. The trial court denied the motion, stating that “[t]his

case is closed and time for discovery has terminated.” See State v. Hazel, 2d Dist. Clark

No. 2018-CA-39, 2018-Ohio-5274, ¶ 10. We affirmed. Id.

{¶ 13} On April 30, 2018, Hazel filed the motion at issue in this appeal, seeking the

vacation of his convictions or the reduction of his offenses to fourth-degree felonies.

Hazel argued that (1) the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,

10 L.Ed.2d 215 (1963), when it failed to disclose the results of the DNA tests and other

documents to Hazel, (2) his indictments and convictions were the result of perjured

testimony, in violation of United States v. Basurto, 497 F.2d 781 (9th Cir.1974), and (3)

his trial counsel rendered ineffective assistance. The trial court found that Hazel’s

motion was “not well taken” and overruled it without further explanation, let alone a

hearing.

{¶ 14} Hazel appeals from the trial court’s judgment, raising four assignments of

error. Hazel’s first and second assignments claim that he was denied the right to due

process due to violations of Brady and Basurto, respectively. His third assignment of

error asserts that his trial counsel rendered ineffective assistance. His fourth assignment

of error claims that the trial court abused its discretion in denying his motion without a

hearing.

II. Standard of Review





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{¶ 15} In overruling Hazel’s motion, the trial court did not address the nature of

Hazel’s motion or the standard under which it should be reviewed. Similarly, on appeal,

Hazel and the State address the merits of Hazel’s arguments without discussing the

nature of Hazel’s motion or suggesting a standard of review.

{¶ 16} When a motion is filed subsequent to 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. See, 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;

State v. Spencer, 2d Dist. Clark No. 2006 CA 42, 2007-Ohio-2140, ¶ 11. Hazel’s motion,

although titled as a motion to vacate conviction, meets the criteria for a petition for

postconviction relief, and we will construe it as such.

{¶ 17} A petition for postconviction relief “is a means by which the petitioner may

present constitutional issues to the court that would otherwise be impossible to review

because the evidence supporting those issues is not contained in the record of the

petitioner’s criminal conviction.” State v. Clark, 2017-Ohio-120, 80 N.E.3d 1251, ¶ 14

(2d Dist.), quoting State v. Monroe, 2015-Ohio-844, 29 N.E.3d 391, ¶ 37 (10th Dist.). A

postconviction proceeding is not an appeal from a criminal conviction; rather, it is a “civil

collateral attack on a criminal judgment.” State v. Wells, 2d Dist. Montgomery No.

22389, 2008-Ohio-4932, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d 279, 281, 714

N.E.2d 905 (1999).

{¶ 18} We review a denial of a petition for postconviction relief for which no hearing

was held under an abuse of discretion standard. State v. Harden, 2d Dist. Montgomery





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23617, 2010-Ohio-3343, ¶ 10. An abuse of discretion occurs when the trial court’s

decision is unreasonable, arbitrary, or unconscionable. State v. Turner, 2d Dist.

Montgomery No. 27350, 2017-Ohio-4101, ¶ 5, citing State v. Jenkins, 2d Dist.

Montgomery No. 27173, 2017-Ohio-1073, ¶ 10.

{¶ 19} When a direct appeal of the judgment of conviction has been taken (as in

Hazel’s case), a petition for postconviction relief must be filed no later than 365 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 or adjudication.” R.C. 2953.21(A)(2). Trial courts lack

jurisdiction to consider an untimely or successive petition for postconviction relief, unless

the untimeliness is excused under R.C. 2953.23(A). State v. Current, 2d Dist.

Champaign No. 2012 CA 33, 2013-Ohio-1921, ¶ 16.

{¶ 20} Pursuant to R.C. 2953.23(A)(1)(a), a defendant may not file an untimely or

successive petition for postconviction relief unless (1) the defendant was unavoidably

prevented from discovering the facts upon which he or she relies to present the claim, or

(2) the United States Supreme Court recognizes a new federal or state right that applies

retroactively to his or her situation and the petition asserts a claim based on that right.

The petitioner must also show by clear and convincing evidence that, if not for the

constitutional error from which he suffered, no reasonable factfinder would have found

him guilty. R.C. 2953.23(A)(1)(b).

{¶ 21} “[A] criminal defendant seeking to challenge his conviction through a petition

for postconviction relief is not automatically entitled to a hearing.” Calhoun, 86 Ohio

St.3d 279, 282, 714 N.E.2d 905. Rather, the court first is to decide “whether there are

grounds to believe that ‘there was such a denial or infringement of the person's rights as





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to render the judgment void or voidable under the Ohio Constitution or the Constitution of

the United States.’ ” Id. at 283, quoting R.C. 2953.21(A)(1). Thus, in order to be entitled

to a hearing, Hazel bore the initial burden to provide evidentiary materials containing

sufficient operative facts to demonstrate a claim of constitutional error. State v. Wood,

2d Dist. Clark No. 2018-CA-1, 2018-Ohio-3204, ¶ 23, citing State v. Kapper, 5 Ohio St.3d

36, 38-39, 448 N.E.2d 823 (1983).

III. Review of Hazel’s Petition

{¶ 22} Hazel’s petition for postconviction relief was both successive and untimely.

Hazel filed a direct appeal of his convictions, and the trial transcripts were filed with the

appellate court on June 14, 2011. Hazel filed a timely petition for postconviction relief

on October 27, 2011. On February 27, 2012, after his petition for postconviction relief

was overruled by the trial court, Hazel filed a motion to vacate a void judgment, which

was also overruled. In a consolidated appeal, we affirmed the trial court’s judgments on

the petition and the motion. Hazel, 2d Dist. Clark Nos. 2011-CA-101, 2012-CA-22, 2013

Ohio-118. Hazel filed the present “motion to vacate his conviction and/or to correct or

reduce the degree of his offenses” on April 30, 2018, almost seven years after the filing

of the trial transcript, and he previously had sought postconviction relief.

{¶ 23} Hazel has not argued, much less demonstrated, that the untimeliness of his

petition should be excused pursuant to R.C. 2953.23(A)(1)(a). Hazel’s motion indicates

that the facts upon which he relies – the existence of a DNA test that establishes that he

is not the biological father of H.K.’s child – were known to Hazel prior to the 2011 trial.

Accordingly, Hazel has not shown that he was unavoidably prevented from discovering

the facts upon which he relies to present his claims.





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{¶ 24} Moreover, Hazel has not established that he could not have raised the

arguments presented in his 2018 motion in his prior petitions/motions for postconviction

relief. “Pursuant to the doctrine of res judicata, a valid final judgment on the merits bars

all subsequent actions based on any claim arising out of the transaction or occurrence

that was the subject matter of the previous action.” State v. Collins, 2d Dist. Montgomery

No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 653

N.E.2d 226 (1995). Res judicata applies to any claim that was raised or could have been

raised in a prior petition for postconviction relief. E.g., State v. Dixon, 2d Dist.

Montgomery No. 27991, 2019-Ohio-230, ¶ 18; State v. McCain, 2d Dist. Montgomery No.

27195, 2017-Ohio-7518, ¶ 35 (“res judicata applies to bar raising piecemeal claims in

successive post-conviction relief petitions * * * that could have been raised, but were not,

in the first post-conviction relief petition”).

{¶ 25} Even if we were to consider the merits of Hazel’s petition, we would agree

with the trial court that Hazel’s petition lacks merit.

{¶ 26} First, Hazel claims that the State failed to disclose evidence in violation of

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Brady held that “the

suppression by the prosecution of evidence favorable to an accused upon request

violates due process when the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Disciplinary Counsel v.

Kellogg-Martin, 124 Ohio St.3d 415, 2010-Ohio-282, 923 N.E.2d 125, ¶ 24, citing Brady,

at 87.

{¶ 27} In order to establish a Brady violation, the defendant must demonstrate that

(1) the prosecution failed to disclose evidence upon request; (2) the evidence was





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favorable to the defendant; and (3) the evidence was material. State v. Wade, 2d Dist.

Clark No. 06-CA-108, 2007-Ohio-6611, ¶ 12. Evidence suppressed by the State “shall

be deemed material only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.” State

v. Aldridge, 120 Ohio App.3d 122, 145, 697 N.E.2d 228 (2d Dist.1997), quoting State v.

Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph five of the syllabus.

Evidence must be both favorable and material before disclosure is required, and favorable

evidence under Brady encompasses both exculpatory and impeachment evidence.

State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 338.

{¶ 28} The defendant bears the burden of proving that evidence was materially

exculpatory. State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023,

¶ 102; State v. Bendolph, 2018-Ohio-1729, 111 N.E.3d 872, ¶ 46 (2d Dist.).

{¶ 29} “The rule in Brady only applies to evidence unknown to the defendant at the

time of the trial.” State v. Royster, 2d Dist. Montgomery No. 26378, 2015-Ohio-625,

¶ 17. And, “[e]ven where information may be exculpatory, ‘[n]o due process violation

occurs as long as Brady material is disclosed to a defendant in time for its effective use

at trial.’ ” (Citation omitted.) State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937

(2001).

{¶ 30} Hazel claims that the State was aware of, but did not disclose, certain

documents to him. Specifically, Hazel states that individuals entered and exited the

Clark County Jail to obtain the DNA samples from him, and the State should have

provided jail records of their entry and exit. Hazel further states that the State should

have provided the result of his DNA paternity test regarding H.K.’s child.





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{¶ 31} We find no basis to conclude that the alleged undisclosed evidence was

material. Although the jail records may substantiate that certain individuals came to the

jail, they would provide no information regarding the paternity of H.K.’s child. With

respect to the report of the DNA test results, we addressed and rejected Hazel’s argument

in a prior appeal. We reasoned:

While the record indicates that Hazel was personally aware of the

DNA testing at the time of the 2011 trial, there is no evidence in this record

that the State had possession of the test results or that the State had any

knowledge that such testing had been conducted. Hazel, 2d Dist. Clark

No. 2017-CA-8, 2018-Ohio-766, ¶ 17; Hazel, S.D.Ohio No. 3:13-CV-332

2014 WL 4076152, *28. Thus, we have no basis upon which to conclude

that the State committed a Brady violation.

Further, even had the State been aware of the testing, we cannot say

that the evidence was material. As we have previously noted with regard

to the 2003 conviction, the domestic violence statute did not require the

State to prove Hazel was actually the father of H.K.’s child. Instead, the

statute permitted the State to submit proof that he was the putative father.3

The statute also sets forth various other definitions of family or household

member. R.C. 2919.25(F).

3 “A putative father is defined as a man who may be a child’s father and: 1) is not married to the mother at birth or conception; 2) has not adopted the child; 3) whom no court or government agency has determined to have a parent/child relationship with the child; and, 4) has not acknowledged paternity of the child.” In re K.M.S., 2d Dist. Miami No. 05CA17, 2005-Ohio-4739, ¶ 7, citing R.C. 3107.01(H). See also Black’s Law Dictionary 648 (5th Ed. 1983) (defining a putative father as “the alleged or reputed father of” a child).





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In any event, “the State was not obliged to prove and did not

undertake to prove that Hazel was the natural father of [H.K.'s child].

Instead, it had only to prove that he was convicted of aggravated burglary

where the underlying offense was committed against a family or household

member. It succeeded in doing that by proving that the underlying offense

was domestic violence, that [H.K.] was named in the bill of particulars, and

that Hazel pled guilty under those circumstances. Having pled guilty, he

waived his opportunity to put the State to its proof of the underlying domestic

violence offense.” Hazel, S.D.Ohio No. 3:13-CV-332, 2014 WL 4076152,

*28.

(Footnote in original as fn. 2.) Hazel, 2d Dist. Clark No. 2018-CA-39, 2018-Ohio-5274, at

¶ 18-20. Accordingly, Hazel’s Brady argument lacks merit.

{¶ 32} Second, Hazel argues that his indictments and convictions were based on

perjured testimony, because the prosecutor who testified about Hazel’s 2003 conviction

knew that Hazel was not the father of H.K.’s child. Hazel relies on the Ninth Circuit’s

decision in United States v. Basurto, 497 F.2d 781 (9th Cir.1974).

{¶ 33} In Basurto, the Ninth Circuit held: “[T]he Due Process Clause of the Fifth

Amendment is violated when a defendant has to stand trial on an indictment which the

government knows is based partially on perjured testimony, when the perjured testimony

is material, and when jeopardy has not attached. Whenever the prosecutor learns of any

perjury committed before the grand jury, he is under a duty to immediately inform the

court and opposing counsel — and, if the perjury may be material, also the grand jury —

in order that appropriate action may be taken.” Id. at 785-786.





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{¶ 34} Hazel argues that the R.C. 2919.25(D)(4) allegations in the 2010

indictments were based on the prosecutor’s testimony before the grand jury in 2003. He

further argues that the jury’s findings in 2011 regarding those allegations were based on

that same prosecutor’s trial testimony.

{¶ 35} Hazel’s Basurto argument fails for similar reasons as his Brady argument.

At the time of aggravated burglary offense, Hazel was the putative father of H.K.’s child.4

The domestic violence statute defined a “family or household member” as including “[t]he

natural parent of any child of whom the offender is the other natural parent or is the

putative other natural parent.” (Emphasis added.) Former R.C. 2919.25(E)(1)(b), now

R.C. 2919.25(F)(1)(b). Thus, when Hazel committed the aggravated burglary, H.K. was

a family or household member due to Hazel’s status as the putative father of her child.

Hazel’s subsequent knowledge that he was not the biological parent of H.K.’s child did

not change the status of the parties as of the time that the aggravated burglary offense

was committed. Accordingly, Hazel has not demonstrated that the prosecutor committed

perjury when he testified that Hazel’s 2003 conviction involved a family or household

member.

{¶ 36} Third, Hazel claims that his 2011 trial attorney rendered ineffective

assistance by failing to conduct a complete investigation and to file a motion to suppress.

Hazel argues that his attorney should have questioned H.K. at a motion to suppress

hearing about the paternity test and should have asked the 2003 prosecutor “to explain

4 It is unclear from this record whether H.K. and Hazel were cohabitating or had cohabitated within five years prior to the commission of the aggravated burglary offense, such that H.K. was also a “family or household member” as a “person living as a spouse” under former R.C. 2919.25(E)(1)(a)(i).





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how [H.K.] was supposed to be Mr. Hazel’s family or household member.”

{¶ 37} To establish ineffective assistance of counsel, a defendant must

demonstrate both that trial counsel’s conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable

probability that, but for the errors, the outcome of the case would have been different.

See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Hindsight is not

permitted to distort the assessment of what was reasonable in light of counsel’s

perspective at the time, and a debatable decision concerning trial strategy cannot form

the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d

516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 38

(2d Dist.). Trial counsel is also entitled to a strong presumption that his or her conduct

falls within the wide range of reasonable assistance. Strickland at 689.

{¶ 38} Even if we were to address this claim, we would find no support for Hazel’s

claim of ineffective assistance of counsel. As stated above, whether Hazel’s 2003

conviction for aggravated burglary involved a family or household member did not depend

on whether Hazel was, in fact, the biological father of H.K.’s child. Accordingly, Hazel

has not demonstrated that the outcome of his trial with respect to the R.C. 2919.25

allegations would have been different but for counsel’s alleged errors.

{¶ 39} Finally, Hazel claims that the trial court abused its discretion by failing to

address the merits of his motion/petition and denying him a hearing. For the reasons

stated above, we conclude that the trial court did not abuse its discretion by denying

Hazel’s petition without a hearing.

The trial court’s judgment will be affirmed.