State v. Braden

[Cite as State v. Braden, 2018-Ohio-1807.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 17AP-321

(C.P.C. No. 98CR-4601)

v. :

(REGULAR CALENDAR)

David Braden, :

Defendant-Appellant. :

D E C I S I O N

Rendered on May 8, 2018

On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.

Taylor, for appellee. Argued: Steven L. Taylor.

On brief: Timothy Young, Ohio Public Defender, and

Kathryn L. Sandford; Steven M. Brown, for appellant.

Argued: Kathryn L. Sandford.

APPEAL from the Franklin County Court of Common Pleas

BROWN, P.J.

{¶ 1} David Braden, defendant-appellant, appeals from the judgment of the

Franklin County Court of Common Pleas in which the court entered judgment denying his

motion for leave to file a motion for new mitigation trial.

{¶ 2} On August 3, 1998, appellant shot his girlfriend and her father. Appellant

was indicted on two counts of aggravated murder with prior calculation and design. Both

counts included a "course of conduct" death penalty specification, pursuant to R.C.

2929.04(A)(5), and a firearms specification. The jury convicted appellant as charged and

recommended the death penalty on each count. The court held a mitigation hearing. On

No. 17AP-321 2

July 7, 1999, the trial court sentenced appellant to death on each count, three years of

confinement on the firearms specifications, and a $50,000 fine. Appellant appealed his

conviction and sentence, and the Supreme Court of Ohio affirmed his conviction and

sentence in State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325.

{¶ 3} On January 11, 2017, appellant filed a motion for leave to file a motion for

new mitigation trial. Attached to the motion for leave was a motion for new trial. In his

motion for new trial, appellant claimed Ohio's death penalty statute is unconstitutional

because it allows a death sentence based on a mere jury recommendation and

independent fact-finding by the trial court. His motion was based on the United States

Supreme Court's decision in Hurst v. Florida, ___ U.S. ___, 136 S.Ct. 616 (2016), and

appellant claimed he could not have filed his motion for leave to file sooner because Hurst

was not issued until January 12, 2016.

{¶ 4} On April 6, 2017, the trial court issued a decision in which it denied

appellant's motion for a new mitigation trial. In a brief entry, the trial court indicated the

motion was untimely, was barred by res judicata, and Hurst did not compel a new

mitigation trial in the matter.

{¶ 5} Appellant appeals the judgment of the trial court, asserting the following

assignments of error:

[I.] The trial court erred in denying Braden's Motion for Leave

to File a Motion for a New Mitigation Trial without

determining whether Braden was unavoidably prevented from

filing his Motion within fourteen days after the verdict as

required by Crim.R. 33(B).

[II.] The trial court erred when it denied Braden's Motion for

a New Mitigation Trial when Braden proved that he was

sentenced to death under a statutory scheme that violates the

Sixth and Fourteenth Amendments of the United States

Constitution. Hurst v. Florida, __ U.S. __, 136 S.Ct. 616

(2016).

{¶ 6} We address appellant's assignments of error together. Appellant argues in

his first assignment of error the trial court erred when it denied his motion for leave to file

a motion for a new mitigation trial without determining whether he was unavoidably

prevented from filing his motion within 14 days after the verdict as required by Crim.R.

33(B). Appellant argues in his second assignment of error the trial court erred when it

No. 17AP-321 3

denied his motion for a new mitigation trial when he proved he was sentenced to death

under a statutory scheme that violates the Sixth and Fourteenth Amendments of the

United States Constitution.

{¶ 7} We first note that, during oral argument before this court, appellant's

counsel acknowledged the trial court did, in fact, grant appellant's motion for leave to file

a motion for a new mitigation trial in footnote one of the judgment entry. Therefore,

appellant's argument on this issue under his first assignment of error is overruled.

{¶ 8} Appellant filed his motion for new trial pursuant to Crim.R. 33(A)(1), (4),

and (5). Crim.R. 33 provides, in pertinent part:

(A) Grounds. A new trial may be granted on motion of the

defendant for any of the following causes affecting materially

his substantial rights:

(1) Irregularity in the proceedings, or in any order or ruling of

the court, or abuse of discretion by the court, because of which

the defendant was prevented from having a fair trial;

***

(4) That the verdict is not sustained by sufficient evidence or

is contrary to law. If the evidence shows the defendant is not

guilty of the degree of crime for which he was convicted, but

guilty of a lesser degree thereof, or of a lesser crime included

therein, the court may modify the verdict or finding

accordingly, without granting or ordering a new trial, and

shall pass sentence on such verdict or finding as modified;

(5) Error of law occurring at the trial.

{¶ 9} On appeal, State of Ohio, plaintiff-appellee, initially counters that a motion

pursuant to Crim.R. 33(A) is not available to a defendant facing capital punishment and

seeking a new trial limited to the issue of punishment. The state argues appellant is not

seeking a new trial but, instead, seeking a new penalty phase hearing. The state asserts

appellant's motion must be construed as a post-conviction petition. The state then

contends that, even if Crim.R. 33(B) applies here, appellant filed his motion for new trial

in an untimely manner because he waited nearly one year after the release of Hurst to file

the motion.

No. 17AP-321 4

{¶ 10} However, we find that, assuming arguendo, even if Crim.R. 33(A) applies to

the present circumstances, and even if appellant filed his motion in a timely manner

under that rule, the trial court properly denied appellant's motion on the basis of res

judicata. Res judicata bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal. State v. Perry, 10

Ohio St.2d 175 (1967), paragraph nine of the syllabus. The applicability of res judicata is a

question of law, which an appellate court reviews de novo. EMC Mtge. Corp. v. Jenkins,

164 Ohio App.3d 240, 249, 2005-Ohio-5799, ¶ 15 (10th Dist.), citing Prairie Twp. Bd. of

Trustees v. Ross, 10th Dist. No. 03AP-509, 2004-Ohio-838, ¶ 12.

{¶ 11} Res judicata applies to Crim.R. 33 motions for new trial. See, e.g., State v.

Waddy, 10th Dist. No. 15AP-397, 2016-Ohio-4911, ¶ 40, citing State v. Russell, 10th Dist.

No. 04AP-1149, 2005-Ohio-4063, and State v. Petrone, 5th Dist. No. 2013 CA 00213,

2014-Ohio-3395; State v. Fox, 10th Dist. No. 08AP-704, 2009-Ohio-1327, ¶ 7 (res

judicata provides basis for denying motion for new trial pursuant to Crim.R. 33); State v.

Haynes, 10th Dist. No. 07AP-508, 2007-Ohio-6540, ¶ 7 (no abuse of discretion by the

trial court in denying appellant's Crim.R. 33 motion for new trial based on the doctrine of

res judicata).

{¶ 12} In the present case, appellant claims res judicata does not preclude his

claims because Hurst was not decided until 2016, well after his direct appeal and, thus,

his counsel could not have raised the applicability of Hurst until after it was decided. He

contends his counsel cannot be held to the standard of raising issues that were not

supported by then-current case law and were not supported by case law until many years

later.

{¶ 13} We disagree with appellant's contentions. A change in case law after final

judgment does not prevent the application of res judicata. " 'There is no merit to [the]

claim that res judicata has no application where there is a change in the law due to a

judicial decision of this court.' " State v. Ayala, 10th Dist. No. 12AP-1071, 2013-Ohio-1875,

¶ 14, quoting State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). "It is well-established that the

application of res judicata is mandatory, even if there is a subsequent change in the law by

judicial decision." State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, ¶ 16 (8th Dist.),

citing Szefcyk at 95. A final judgment does not lose its preclusive res judicata effect

No. 17AP-321 5

whenever the statute upon which it is based is later declared invalid or unconstitutional.

See State v. Caldwell, 2d Dist. No. 24333, 2012-Ohio-1091, ¶ 5; State v. Bolds, 96 Ohio

App.3d 483 (9th Dist.1994) (guilty plea to municipal ordinance had res judicata effect

even though ordinance was declared unconstitutional six months later by the Supreme

Court of Ohio). Thus, the res judicata consequences of a final judgment on the merits are

not altered by the fact that the judgment may have been wrong or rested on a legal

principle subsequently overruled in another case. Federated Dept. Stores, Inc. v. Moitie,

452 U.S. 394, 398 (1981).

{¶ 14} Appellant's claim, in the present case, that his counsel could not have been

expected to raise the issues on direct appeal that were addressed years later in Hurst is

not well-founded. In State v. Reynolds, 79 Ohio St.3d 158 (1997), the defendant was

convicted of aggravated robbery with a firearm specification. Within one year after his

conviction was affirmed by the court of appeals, the Supreme Court decided two cases

holding that a firearm specification requires independent proof of operability. The

defendant filed a post-conviction petition based on the new rulings, claiming that

controlling case law in that appellate district at the time of his direct appeal, State v.

Vasquez, 18 Ohio App.3d 92 (6th Dist.1984), held that a firearm specification required no

independent evidence of operability of the firearm beyond the evidence required to

establish the use of a deadly weapon to prove aggravated robbery. The defendant claimed

the fact that the law in Vasquez was later overturned by the Supreme Court precluded the

application of res judicata to a post-conviction motion seeking application of the new case

law. Like appellant in the present case, the defendant in Reynolds reasoned that because

prior case law was not reversed until after his direct appeal, res judicata could not prevent

him from seeking application of the new case law because he could not have applied the

holding in the new case law to his case before the new case had been decided.

{¶ 15} However, the Supreme Court disagreed, finding:

[T]here was nothing to prevent [the defendant] from

appealing the issues of operability and proof of operability of a

firearm. [The defendant] claims that the controlling authority

in his appellate district at the time of his appeal was Vasquez.

However, this did not bar [the defendant] from appealing

these issues. Even if the appellate court had cited its own

decision in Vasquez and found against [the defendant], he

No. 17AP-321 6

could have then appealed to this court, which could have

reversed or modified Vasquez.

Id. at 161. The court in Reynolds continued "[i]n other words, there was nothing that

precluded [the defendant] from directly appealing the issues of operability of the firearm

and the proof required to show operability. As a result, he is precluded from arguing these

issues in a petition for postconviction relief pursuant to res judicata." Id. at 162.

{¶ 16} Applying the above concepts to the current case, it is apparent the

application of res judicata is not precluded here. Even if it could be said that the Supreme

Court's decision in Hurst represented a change in case law, such change did not prevent

the application of res judicata. Furthermore, appellant could have raised the same issues

the defendant in Hurst later raised, but he failed to do so. Specifically, appellant could

have argued that Ohio's death penalty statute was unconstitutional because it allowed a

death sentence based on the mere recommendation of the jury and fact-finding by the

trial court. Although, obviously, appellant could not have raised the applicability of Hurst

on direct appeal, he could have raised the same legal arguments that the defendant raised

in Hurst. That he did not believe he would have been successful because the then-current

state of Ohio law on the issue is of no consequence. For these reasons, we find the trial

court did not err when it denied appellant's motion for new trial based on res judicata.

Having made such determination, we need not address the applicability of the Supreme

Court of Ohio's recent decision in State v. Mason, __ Ohio St.3d __, 2018-Ohio-1462 to

the present case. Therefore, we overrule appellant's first and second assignments of error.

{¶ 17} Accordingly, appellant's two assignments of error are overruled, and the

judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

SADLER and DORRIAN, JJ., concur.

____________________