Court of Appeals of Ohio, First District, Hamilton
Criminal Appeals From: Hamilton County Court of Common Pleas
TRIAL NO. B-1506673
Appealed From Are: Affirmed
T. Deters, Hamilton County Prosecuting Attorney, and Alex
Scott Havlin, Assistant Prosecuting Attorney, for
Maurice Smith, pro se.
BERGERON, PRESIDING JUDGE.
This pair of appeals traces back to defendant-appellant
Maurice Smith's 2016 convictions, where a jury found him
guilty of burglary, various drug-related offenses, and
tampering with evidence. On direct appeal, we affirmed his
convictions but remanded for resentencing to address an
allied offenses issue. See State v. Smith,
2017-Ohio-8558, 99 N.E.3d 1230 (1st Dist.). During the course
of our opinion, we specifically rejected his argument that
the trial court erred in failing to address his pro se
motions (because counsel represented him). In the wake of our
decision, Mr. Smith filed three motions relevant to this
appeal, a petition for postconviction relief (with a request
for an evidentiary hearing), a motion for leave to file a
motion for a new trial, and a motion for a new trial, largely
raising issues that we already decided in the direct appeal
and without offering any material evidence beyond that before
the court at the time of trial. The trial court denied
relief, and we affirm its judgments for the reasons explained
On direct appeal, Mr. Smith asserted two challenges relevant
to the appeals at hand: first, that the trial court erred by
neglecting to rule on his pro se motions, and second, that
his counsel was ineffective by refusing to adopt the pro se
motions. Smith at ¶ 30, 54. During the trial
court proceedings, despite being represented by counsel at
all times, Mr. Smith lobbed in numerous pro se motions.
Id. at ¶ 30. The court declined to rule on
these motions because Mr. Smith's counsel refused to
adopt them, maintaining that they lacked merit. Id.
at ¶ 8-11. On appeal, we affirmed the trial court's
decision, reasoning that although a defendant indeed enjoys a
right to counsel as well as a right to proceed pro se, a
defendant retains no right to "hybrid
representation" (i.e., acting as his own lawyer while
simultaneously being represented by counsel). Id. at
¶ 31. The trial court therefore did not run afoul of any
constitutional obligations by declining to address his pro se
motions under these circumstances. Id. We likewise
rejected Mr. Smith's ineffective assistance of counsel
claim, finding that counsel's refusal to adopt pro se
motions amounted to little more than trial strategy.
Id. at 57.
In his petition for postconviction relief, Mr. Smith attacked
the effectiveness of his counsel for, among other things,
failing to challenge the credibility of witnesses and
neglecting to question the chain of custody concerning pieces
of the state's evidence. But most of what he attached to
his filing was already in the record during the initial trial
proceedings. A few months after this initial motion, Mr.
Smith sought to amend his petition, asserting an additional
due process claim based upon the court subjecting him to
so-called "hybrid representation." Rather than
address Mr. Smith's motion to amend, the trial court
instead ruled solely on his initial petition for
postconviction relief, denying his request based upon res
judicata grounds and his failure to muster probative evidence
outside of the existing record to support his arguments.
Similarly, in his motion for leave to file a motion for a new
trial (and his motion for a new trial filed a few days
later), Mr. Smith largely parroted these claims, maintaining
his counsel exposed him to "hybrid legal
representation" and failed to inform him of the filing
deadline for a motion for a new trial. But these motions met
the same fate as his petition, as the trial court denied them
Mr. Smith now appeals pro se, challenging both the trial
court's order denying his petition for postconviction
relief and his motion for leave to file a motion for a new
trial (as well as his motion for a new trial). For
simplicity's sake, we address the two appeals together,
ultimately affirming both of the trial court's orders.
Turning first to his petition for postconviction relief, Mr.
Smith asserts five assignments of error challenging the
court's denial of his petition without an evidentiary
hearing, all of which fall into one of two
categories-ineffective assistance of counsel or a denial of
due process. Because a trial court retains discretion as to
whether a defendant should receive an evidentiary hearing
before the denial of his petition, we review Mr. Smith's
challenges under an abuse of discretion standard. See
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 52 ("We established in
Calhoun that a court reviewing the trial court's
decision in regard to its gatekeeping function should apply
an abuse-of-discretion standard.").
R.C. 2953.21 frames our review of a postconviction petition.
See State v. Pickens,2016-Ohio-5257, 60 N.E.3d 20,
¶ 7 (1st Dist.) ("R.C. 2953.21 et seq. governs the
proceedings on a postconviction petition."). As Mr.
Smith properly notes, R.C. 2953.21(A) entitles a defendant to
postconviction relief if the petition is timely and the court
finds "there was such a denial or infringement of the
rights of the [petitioner] as to render the judgment void or
voidable under the Ohio Constitution or the United States
Constitution." State v. Perry, 10 Ohio St.2d
175, 226 N.E.2d 104 (1967), paragraph four of the syllabus;
see R.C. 2953.21(A)(1)(a). While no one disputes the
timeliness of his filing, Mr. Smith overlooks the fact that
R.C. 2953.21 does not automatically entitle a defendant to a
hearing on his petition. See State v. Calhoun, 86
Ohio St.3d 279, 282, 714 N.E.2d 905 (1999) ("According
to the postconviction relief statute, a criminal defendant
seeking to challenge his conviction through a petition for
postconviction relief is not automatically entitled to a
hearing."); RC. 2953.21(D). In fact, before granting a
hearing the court must consider whether the defendant sets
forth "sufficient operative facts to ...