Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No.
0097348, Montgomery County Prosecutor's Office, Appellate
Division, Montgomery County Courts Building, 301 West Third
Street, 5th Floor, Dayton, Ohio 45422 Attorney for
A. SMITH, #A516-443, P.O. Box 7010, Chillicothe, Ohio 45601
Defendant-Appellant, Pro Se
1} Ronald A. Smith, pro se, appeals from a judgment
of the Montgomery County Court of Common Pleas, which denied,
without a hearing, his motion for leave to file a motion for
new trial and his motion for new trial. For the following
reasons, the trial court's judgment will be affirmed.
2} In October 2004, Smith was indicted for
aggravated burglary (deadly weapon) and aggravated robbery
(deadly weapon). Smith received appointed counsel, who
filed a demand for discovery, a motion for a bill of
particulars, a request for notice of the State's
intention to use certain evidence-in-chief, motions to
suppress, and the defendant's witness list. While his
case was pending, Smith also filed numerous pro se motions,
including motions for new counsel, a motion for change of
venue, motions to dismiss and for evidentiary hearings, a
motion to reduce or modify bond, and a motion for a
scheduling conference. The trial court denied all of
Smith's pro se motions.
3} In September 2005, the matter proceeded to a jury
trial, during which Smith was represented by the same
counsel. The jury found Smith guilty of aggravated burglary
and aggravated robbery, as charged. Following the jury's
verdicts, Smith brought several additional pro se motions,
including multiple motions for a new trial, a motion for a
judgment of acquittal, and multiple motions for new
counsel/ineffective assistance of counsel. Each of these
motions was overruled.
4} After a sentencing hearing in January 2006,
during which Smith continued to be represented by the same
counsel, the trial court sentenced Smith to consecutive
ten-year prison terms, for a total sentence of 20 years in
prison. We affirmed Smith's convictions on direct appeal.
State v. Smith, 2d Dist. Montgomery Nos. 21463 &
5} Since his conviction, Smith has filed numerous
motions for a new trial or for leave to file such a motion.
Of relevance here, on June 22, 2018, Smith filed a motion for
leave to file a motion for new trial, claiming that the trial
court subjected him to illegal hybrid representation on
multiple occasions. Specifically, Smith stated that the trial
court refused to entertain a February 15, 2006 pro se motion
for a new trial because he was represented by counsel, but
the trial court addressed several prior pro se motions while
Smith was represented by counsel. Smith argued that, due to
ineffective assistance of counsel, he had no knowledge of his
current basis for a new trial, i.e., that he was subjected to
illegal hybrid representation. Smith supported his motion
with an affidavit of verity, a copy of the trial court's
docket as of September 8, 2010, and the trial court's
decision denying the February 15, 2006 motion. Smith filed a
motion for new trial, citing illegal hybrid representation,
on July 30, 2018.
6} The State responded to Smith's motions,
arguing that Smith presented no evidence that he was
unavoidably prevented from filing his motion for new trial in
a timely manner and that Smith presented no newly discovered
evidence. On February 13, 2019, the trial court overruled
Smith's motion for leave to file a motion for new trial
and the motion for new trial, adopting the reasoning set
forth by the State. Smith appeals from the trial court's
New Trial Motions
7} In his sole assignment of error, Smith claims
that the trial court abused its discretion by denying his
motion for leave to file a motion for new trial without first
conducting an evidentiary hearing.
8} Motions for a new trial are governed by Crim.R.
33. A new trial may be granted if any of several grounds
exist that materially affected the defendant's
substantial rights, including (1) "irregularity in the
proceedings * * * because of which the defendant was
prevented from having a fair trial," (2) misconduct of
the jury, (3) accident or surprise which ordinary prudence
could not have guarded against, (4) the verdict is not
sustained by sufficient ...