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Date: 06-13-2019

Case Style:


Case Number: 2018-CA-90

Judge: Jeffrey Froelich


Plaintiff's Attorney: JOHN M. LINTZ

Defendant's Attorney: MICHAEL HAZEL


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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.

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

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

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).

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
{¶ 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
II. Standard of Review

{¶ 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

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

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.

{¶ 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

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
{¶ 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.

{¶ 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).

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,
(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.

{¶ 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
{¶ 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).

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.

Outcome: The trial court’s judgment will be affirmed.

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