Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 07-18-2020
Case Style:
STATE OF OHIO v. CHARLES C. HUNDLEY
Case Number: 109150
Judge: EILEEN T. GALLAGHER
Court: COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Plaintiff's Attorney:
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer in Ohio.
Description:
 |
In January 2017, Hundley was charged with two counts of murder in
violation of R.C. 2903.02(A), two counts of felonious assault in violation of
R.C. 2903.11(A)(1) and 2903.11(A)(2), one count of involuntary manslaughter in
violation of R.C. 2903.04(A), one count of having a weapon while under disability
in violation of R.C. 2923.13(A)(2), and one count of receiving stolen in violation of
R.C. 2913.51(A).
The murder, felonious assault, and involuntary manslaughter charges
included one- and three-year firearm specifications as well as notices of prior
conviction and repeat violent offender specifications. The charges alleged that
Hundley shot and killed Gregory Clark at a party at the home of Deonte Dudley and
Kelasha Bedell on December 31, 2016.
Following a bench trial in June 2017, Hundley was convicted of two
counts of murder, two counts of felonious assault, one count of involuntary
manslaughter, and one count of having a weapon while under disability; the trial
court dismissed the one count of receiving stolen property pursuant to a motion for
acquittal under Crim.R. 29. Hundley appealed his convictions, arguing that (1) the
trial court violated his Fifth Amendment rights by allowing the state to comment on
his prearrest silence, (2) his convictions were against the manifest weight of the
evidence, and (3) ineffective assistance of counsel. This court affirmed his
convictions. See State v. Hundley, 8th Dist. Cuyahoga No. 106235, 2018-Ohio3566.
In September 2019, Hundley filed a pro se motion for a new trial,
arguing his convictions were not supported by sufficient evidence and that the trial
court should have declared a mistrial because the state’s firearms expert never
examined the magazine from Hundley’s 9 mm Smith & Wesson handgun and shell
casings from a revolver allegedly found at the scene to determine which firearm fired
the fatal shot. Hundley also asserted that his trial counsel was ineffective for not
demanding that these items be sent to the state’s firearm’s expert for examination
and testing. The trial court denied Hundley’s motion for new trial. This appeal
followed.
II. Law and Analysis
A. Res Judicata
In the first assignment of error, Hundley argues his convictions are
not supported by sufficient evidence. In the second assignment of error, Hundley
argues the trial court erred in failing to declare a mistrial based on the state’s failure
to submit the magazine to his 9 mm Smith & Wesson handgun and shell casings
from another firearm found at the scene to the state’s firearms expert. However, the
doctrine of res judicata bars a convicted defendant from raising a defense or
claiming a lack of due process that was, or could have been, raised at trial or on direct
appeal. State v. Samuels, 8th Dist. Cuyahoga No. 106520, 2018-Ohio-3675, ¶ 8,
citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). See also State v.
Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997).
Hundley could have raised issues regarding the sufficiency of the
evidence and ineffective assistance of his trial counsel in his direct appeal. Indeed,
Hundley argued in his direct appeal that his trial counsel was ineffective and that his
convictions were against the manifest weight of the evidence. “[A] finding that a
conviction [was] supported by the manifest weight of the evidence necessarily
includes a finding of sufficiency.” State v. Robinson, 8th Dist. Cuyahoga No. 96463,
2011-Ohio-6077. Therefore, Hundley implicitly raised sufficiency of the evidence as
an issue in his prior appeal, and we determined there was sufficient evidence to
sustain his convictions when we found his convictions were not against the manifest
weight of the evidence. See Hundley at ¶ 37-46.
Although Hundley did not argue in his direct appeal that the court
should have declared a mistrial due to the state’s alleged failure to provide Hundley’s
magazine clip to its firearms expert, nothing prevented Hundley from raising that
argument in his direct appeal if such an argument was warranted based on the
evidence presented at trial.1 Therefore, the issues raised in Hundley’s first and
second assignments of error are barred by res judicata.
B. Motion for New Trial
In the third assignment of error, Hundley argues the trial court
abused its discretion in denying his Crim.R. 33 motion for new trial. He contends
his rights to due process and a fair trial were violated because the state failed to
submit the magazine clip from his Smith & Wesson handgun and shell casings from
a revolver found at the scene to its firearms expert for analysis.
A trial court’s decision on a Crim.R. 33 motion for a new trial will not
be reversed absent an abuse of discretion. State v. Sutton, 2016-Ohio-7612, 73
N.E.3d 981, ¶ 13 (8th Dist.). An abuse of discretion implies a decision that is
unreasonable, arbitrary, or unconscionable. State ex rel. DiFranco v. S. Euclid, 144
Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶ 13. When applying the abuse-ofdiscretion standard, a reviewing court may not substitute its judgment for that of
the trial court. Vannucci v. Schneider, 2018-Ohio-1294, 110 N.E.3d 716, ¶ 22 (8th
Dist.).
Crim.R. 33, governs motions for new trials, and states, in relevant
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
1 Despite Hundley’s claims to the contrary, “[f]orensic examinations of the black
revolver, Smith & Wesson, Smith & Wesson magazine and bullet casings were conducted.”
Hundley, 8th Dist. Cuyahoga No. 106235, 2018-Ohio-3566, ¶ 13.
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.
Motions for new trial on account of newly discovered evidence shall be
filed within one hundred twenty days after the day upon which the
verdict was rendered, or the decision of the court where trial by jury has
been waived. If it is made to appear by clear and convincing proof that
the defendant was unavoidably prevented from the discovery of the
evidence upon which he must rely, such motion shall be filed within
seven days from an order of the court finding that he was unavoidably
prevented from discovering the evidence within the one hundred
twenty day period.
Courts interpreting Crim.R. 33(B) have held that when a defendant
seeks to file a motion for new trial after the 120-day deadline has expired, the
defendant must follow a two-step procedure. State v. Howard, 2016-Ohio-504, 59
N.E.3d 685, ¶ 48 (10th Dist.); State v. Andrejic, 8th Dist. Cuyahoga No. 84093,
2004-Ohio-6571, ¶ 21, citing State v. Gray, 8th Dist. Cuyahoga No. 82841,
2003-Ohio-6643. The defendant must first request leave to file a motion for new
trial by establishing, with clear and convincing evidence, that he was unavoidably
prevented from discovering the grounds relied upon to support the motion for new
trial within the time period provided by the rule. State v. Bethel, 10th Dist. Franklin
No. 09AP-924, 2010-Ohio-3837, ¶ 13; Gray at ¶ 17. A person is unavoidably
prevented from discovering grounds supporting the motion if the person had no
knowledge of the existence of the grounds supporting the motion and could not have
learned of their existence in the exercise of reasonable diligence within the time
prescribed by the rule. State v. Phillips, 8th Dist. Cuyahoga No. 104810, 2014-Ohio7164, 95 N.E.3d 1017, ¶ 17.
If the defendant establishes that he was unavoidably prevented from
discovering the grounds on which he relies to support his motion for new trial, the
defendant must file the motion for new trial within seven days from the trial court’s
order finding that the defendant was unavoidably prevented from filing a timely
motion. Id., citing State v. Woodward, 10th Dist. Franklin No. 08AP-1015, 2009-
Ohio-4213.
Hundley filed a motion for new trial more than two years after the
trial court’s verdict. It was, therefore, untimely under Crim.R. 33(B). Furthermore,
even assuming that Hundley’s motion for new trial was based on newly discovered
evidence, he failed to file the motion within the 120-day deadline and was, therefore,
required to follow the two-step procedure outlined in the rule. However, Hundley
never filed a motion for leave to file a motion for new trial as required by
Crim.R. 33(B). He has, therefore, failed to comply with the requirements of
Crim.R. 33(B).
Even if we were to construe Hundley’s motion as a motion for leave
to file a motion for new trial, he does not claim to have any newly discovered
evidence nor does he allege that he could not have learned of the grounds for his
motion with the exercise of reasonable diligence. His motion merely argues the
merits of a motion for new trial. Therefore, the trial court properly denied Hundley’s
motion as untimely and because it failed to meet the standard for granting a motion
for leave to file a motion for new trial under Crim.R. 33(B).
The third assignment of error is overruled.
Outcome: Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: