Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No.
0095826, Montgomery County Prosecutor's Office, Appellate
Division, Montgomery County Courts Building, Attorney for
RASHAAN O. REED, #A415-481, Defendant-Appellant, Pro Se
1} Rashaan O. Reed, pro se, appeals from a judgment
of the Montgomery County Court of Common Pleas, which denied
his motion for leave to file a delayed motion for a new
trial. For the following reasons, the trial court's
judgment will be affirmed.
2} In 2002, Reed was found guilty by a jury of
murder with a firearm specification and of tampering with
evidence in connection with the death of Joseph Smith. The
trial court sentenced him to 15 years to life for the murder
and two years in prison for tampering with evidence, to be
served consecutively to each other and to another sentence in
a Miami County case (Miami C.P. No. 2000-CR-440). In
addition, the trial court sentenced Reed to three years of
incarceration for the firearm specification, to be served
consecutively to and prior to the definite sentence.
Reed's aggregate sentence in the Montgomery County case
was 20 years to life in prison.
3} Reed appealed from his convictions, raising three
assignments of error. His first assignment of error claimed
that the trial court committed prejudicial error by (1)
precluding him from offering testimony that he was not
present when or where the victim was killed (alibi
testimony), (2) sustaining objections to questions offered to
attack and to impeach the credibility of the State's
witnesses, and (3) denying him the opportunity to impeach the
testimony of Stacy Young, a State's witness, with prior
inconsistent statements. His second and third assignments of
error claimed that his convictions were against the manifest
weight of the evidence and that the trial court improperly
denied his Crim.R. 29 motion. We rejected each of Reed's
arguments and affirmed his convictions. State v.
Reed, 155 Ohio App.3d 435, 2003-Ohio-6536, 801 N.E.2d
862 (2d Dist.) (Reed I).
4} In August 2008, Reed filed a pro se motion to
vacate his convictions. The basis for his motion was that the
indictment failed to include the mens rea for his offenses.
The trial court denied the motion. Reed appealed, but the
appeal was later dismissed due to his failure to timely file
a brief. State v. Reed, 2d Dist. Montgomery No.
23802 (Sept. 8, 2010) (Reed II).
5} In September 2010, Reed, pro se, moved for leave
to file a motion for a new trial and filed a motion for a new
trial, claiming that his sentence was void under State v.
Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920
N.E.2d 958. The trial court denied his motions, but
resentenced Reed to correct the imposition of post-release
control and an error in the judgment entry. Reed did not
6} In May 2014, Reed, pro se, filed a motion for
leave to file a delayed motion for a new trial, claiming that
another individual, Patron Steele, committed the murder and
that several State's witnesses (Michael Shoemaker, Stacy
Young, and Peter Holloway) lied when they testified that they
did not receive any consideration or leniency from the State
in exchange for their testimony. Reed withdrew the motion,
with the court's consent, in July 2014.
7} On October 7, 2014, Reed filed a pro se motion
for leave to file a motion for a new trial, alleging
misconduct by the prosecutor and two of the State's
witnesses, Shoemaker and Holloway. Reed argued that Shoemaker
and Holloway received leniency and the dismissal of charges
in exchange for their testimony at Reed's trial, but that
both witnesses testified - and the prosecutor argued to the
trial court - that neither man received any promises from the
State. Reed asserted that he was prejudiced by
Shoemaker's and Holloway's "false and
perjured" testimony, which the prosecutor failed to
correct. Reed further claimed that he was unavoidably
prevented from filing a timely motion due to ineffective
assistance of trial counsel and the prohibition on hybrid
8} On November 24, 2014, the trial court overruled
the motion for leave to file a motion for new trial on
several grounds. The trial court rejected Reed's
contention that he was unavoidably prevented from filing a
timely Crim.R. 33 motion, and it concluded that trial counsel
did not file a motion for a new trial because there was
"no good ground for it." The court stated,
"The evidence did not establish that Shoemaker and
Holloway had lied when they testified they received no
consideration for their testimony in Reed's Montgomery
County case. The evidence indicated that Holloway and
Shoemaker may have received consideration for their testimony
in the Miami County case, but they did not receive any for
the Montgomery County case." The trial court concluded
that Reed provided no evidence that Holloway and Shoemaker
gave false testimony.
9} The trial court further denied Reed's motion
on res judicata grounds. The trial court reasoned that Reed
could have raised on direct appeal or in a petition for
postconviction relief any issue he had related to the trial
court's ruling at trial with respect to the
prosecutor's agreements with Holloway and Shoemaker. And
the trial court held that, as a successive motion, res
judicata barred Reed's motion for a new trial.
10} Finally, the trial court rejected Reed's
argument that his trial counsel rendered ineffective
assistance by failing to file a timely motion for a new
trial. The court found no evidence that Reed's trial
counsel had acted deficiently, and held that there was no
indication that a new trial would have been granted had
counsel filed such a motion.
11} We affirmed the trial court's judgment.
State v. Reed, 2d Dist. Montgomery No. 26529,
2015-Ohio-3051 (Reed III). We concluded, in part,
that Reed did not establish that his trial counsel was
ineffective for failing to file a motion for a new trial. We
noted that "[t]rial counsel was aware of the issue
surrounding whether Holloway and Shoemaker had received any
promises or benefits from the State in exchange for their
testimony," and further that, "[h]aving made a
record of the issue during trial, defense counsel reasonably
could have determined that any issue surrounding
Holloway's and Shoemaker's testimony was preserved
for direct appeal." Id. at ¶ 23-24. We
further concluded that, "in the absence of additional
evidence that these witnesses provided false testimony or
that the prosecutor suborned perjury, defense counsel could
have reasonably concluded that there was little likelihood of
success if raised in a motion for new trial."
Id. at ¶ 24.
12} We also agreed with the trial court that res
judicata barred Reed's motion. We reasoned:
As stated above, the issue of Holloway and Shoemaker's
plea agreements with the State was raised in the trial court,
and the trial court's decision limiting cross-examination
on that issue could have been raised on direct appeal. On
appeal, Reed raised several evidentiary matters, including
that the trial court erred in excluding alibi evidence,
sustaining objections to questions offered to impeach the
credibility of certain State's witnesses, and in denying
Reed the opportunity to impeach the testimony of Stacy Young
with prior inconsistent statements. Reed did not appeal the
trial court's rulings regarding Holloway and Shoemaker.
In addition, Reed previously filed a motion for a new trial,
pursuant to Crim.R. 33. That motion was directed to the trial
court's imposition of post-release control and errors in
the judgment entry. Reed did not raise the alleged false
testimony of Holloway or Shoemaker at that time, either. He
cannot seek to raise those issues now.
Id. at ¶ 27-28.
13} On November 28, 2018, Reed filed another motion
for leave to file a delayed motion for a new trial. Reed
claimed that he had newly discovered evidence consisting of
plea agreements and other documents from the Miami County
cases concerning the State's witnesses in this case; Reed
provided an affidavit and 27 exhibits to support his motion.
Reed asserted in his motion that he was unavoidably prevented
from discovering his new evidence, because the State withheld
the alleged exculpatory evidence and disavowed its existence.
14} The State opposed the motion, claiming that the
exhibits were not new evidence, that Reed had failed to
establish that he was unavoidably prevented from raising his
claims in a timely manner, and that his claims were barred by
res judicata. The State asked that Reed's motion be
denied without a hearing.
15} On January 3, 2019, the trial court denied
Reed's motion. The court reasoned:
A review of the evidentiary materials does not disclose that
various witnesses for the state at Defendant's trial were
subject to impeachment for receiving consideration in a Miami
County, Ohio case for their testimony in this Montgomery
County case. The record does not indicate that an agreement
was entered ...