State v. Hale , 2019 Ohio 3466 ( 2019 )

[Cite as State v. Hale, 2019-Ohio-3466.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29096
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TERRY WADE HALE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2015 05 1532B
DECISION AND JOURNAL ENTRY
Dated: August 28, 2019
TEODOSIO, Presiding Judge.
{¶1} Appellant, Terry Wade Hale, appeals from the denial of his motion for a new trial
in the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} This Court previously summarized the underlying facts of this case as follows:
The National Precursor Log Exchange (“NPLEx”) is an “electronic system for
tracking sales of pseudoephedrine products and ephedrine products on a national
basis * * *.” R.C. 3715.05(A)(6). While monitoring the NPLEx live-time feed, a
Brimfield police officer saw that Ms. Lisa Herczec had just purchased products
containing pseudoephedrine from the Brimfield Walmart. The officer went to the
store’s parking lot and watched Ms. Herczec exit the store and join another man,
later identified as R.S., by a vehicle that appeared to be broken down. Ms.
Herczec’s NPLEx purchase history showed that she had been purchasing a lot of
pseudoephedrine and that she associated with Mr. Hale, who had prior
methamphetamine-related activity. Mr. Hale also had an active warrant for his
arrest.
Mr. Hale soon appeared at the broken-down vehicle. Another officer arrived and
both officers approached the group together. They detained Mr. Hale on his
outstanding warrant. Ms. Herczec initially told the officers that she bought the
pseudoephedrine for her allergies, but later admitted that she bought it for Mr.
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Hale and said that he was manufacturing methamphetamine at his house in Akron.
She provided the officers with Mr. Hale’s address and they notified Akron police.
The agency with the active warrant eventually informed Brimfield police that it
did not want to pick up Mr. Hale on the warrant, so all three individuals were
released and they waited for a ride in the Walmart parking lot.
Meanwhile, based on the information from Brimfield police, Akron police
officers investigated and discovered an active methamphetamine lab at Mr. Hale’s
residence. Akron police then asked Brimfield police to arrest Mr. Hale and Ms.
Herczec. Upon execution of a search warrant for the residence, officers
discovered many items related to the manufacture of methamphetamine.
State v. Hale, 9th Dist. Summit No. 28334, 2017-Ohio-7048, ¶ 2-4. After a jury trial, Mr. Hale
was convicted of illegal manufacture of drugs, illegal assembly or possession of chemicals for
the manufacture of drugs, aggravated possession of drugs, and illegal use or possession of drug
paraphernalia. Id. at ¶ 5. The trial court sentenced him to nine years in prison. Id. His
convictions were affirmed on appeal. Id. at ¶ 15.
{¶3} After this Court affirmed his convictions and the Supreme Court of Ohio declined
to accept jurisdiction, see State v. Hale, 152 Ohio St. 3d 1489, 2018-Ohio-2154, the trial court
denied Mr. Hale’s pending motion for a new trial.
{¶4} Mr. Hale now appeals from the trial court’s denial of his motion for a new trial
and raises three assignments of error for this Court’s review.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT[’]S MOTION FOR A NEW TRIAL AS ITS RULINGS
PREVENTED THE DEFENDANT FROM HAVING A FAIR TRIAL.
{¶5} In his first assignment of error, Mr. Hale argues that the trial court erred in
denying his motion for a new trial because: (1) the State failed to provide discovery; (2) no
evidence as to the crime being committed within the vicinity of a school was introduced; (3)
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evidence of the distance from a school should have been excluded; (4) the defense was unable to
call an expert to testify and rebut the distance evidence; and (5) no evidence of a prior conviction
was introduced.
{¶6} “Crim.R. 33(A) allows a defendant to move for a new trial when his substantial
rights have been materially affected.” State v. Prade, 9th Dist. Summit No. 28193, 2018-Ohio-
3551, ¶ 14. Mr. Hale filed his motion for a new trial pursuant to Crim.R. 33(A)(1), (4), and (5),
which provide that a new trial may be granted for any of the following causes materially
affecting 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. *
* *;
(5) Error of law occurring at the trial[.]
{¶7} This Court reviews a trial court’s decision to deny a motion for new trial for an
abuse of discretion. State v. Pyle, 9th Dist. Summit No. 28802, 2018-Ohio-3160, ¶ 47. “The
term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the
court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). When applying an abuse of discretion standard, a reviewing court is
precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio
State Med. Bd., 66 Ohio St. 3d 619, 621 (1993).
{¶8} Under this particular assignment of error, we note that Mr. Hale now relies
exclusively on Crim.R. 33(A)(2) and claims he should have been granted a new trial due to
“[m]isconduct of the jury, prosecuting attorney, or the witnesses for the state[.]” The record is
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clear, however, that Mr. Hale filed his motion for a new trial at the trial court level explicitly
pursuant to Crim.R. 33(A)(1), (4), and (5). Moreover, Crim.R. 33(C) requires affidavits which
support any motion alleging grounds under Crim.R. 33(A)(2), but the record here contains no
such affidavits. See Pyle at ¶ 50. Nonetheless, because Mr. Hale never raised a claim of jury,
prosecutor, or witness misconduct under Crim.R. 33(A)(2) in his motion for a new trial, he is
barred from raising one now for the first time on appeal. See State v. Gibson, 2d Dist. Greene
No. 2017-CA-47, 2018-Ohio-3809, ¶ 58; State v. Siller, 8th Dist. Cuyahoga No. 90865, 2009-
Ohio-2874, ¶ 119; State v. Anderson, 6th Dist. Lucas No. L-07-1351, 2008-Ohio-5791, ¶ 27.
{¶9} Mr. Hale’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
APPELLANT’S DUE PROCESS RIGHT TO LEGAL COUNSEL WAS
PREJUDICED BY THE INEFFECTIVE ASSISTANCE OF PRIOR
APPELLANT (SIC) COUNSEL.
{¶10} In his second assignment of error, Mr. Hale argues that he previously received
ineffective assistance of appellate counsel in his direct appeal from his convictions. See State v.
Hale, 9th Dist. Summit No. 28334, 2017-Ohio-7048. However, an application for reopening
under App.R. 26(B) is the appropriate remedy for asserting a claim for ineffective assistance of
appellate counsel. State v. Buck, 9th Dist. Summit No. 27597, 2017-Ohio-273, ¶ 19. We note
that Mr. Hale did, in fact, file an application for reopening pursuant to App.R. 26(B) in his prior
appeal, which was denied by this Court. See Hale, 9th Dist. Summit No. 28334 (Mar. 2, 2018).
{¶11} Because Mr. Hale’s claim of ineffective assistance of appellate counsel is not
properly before us, his second assignment of error is overruled.
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ASSIGNMENT OF ERROR THREE
THE TRIAL COURT DENIED DUE PROCESS AND EQUAL PROTECTION
BY USE OF BLANKET POLICIES REFUSING AGREED PLEA BARGAIN,
REVOKING BOND, AND DENYING CHOICE OF COUNSEL.
{¶12} In his third assignment of error, Mr. Hale argues that the trial court erred in
rejecting his plea bargain, revoking his bond when he arrived late for trial, and denying him his
choice for appellate counsel. We disagree.
{¶13} Unlike in his first assignment of error, Mr. Hale does not explicitly state he is
relying on Crim.R. 33(A)(2) in his third assignment of error. Mr. Hale first argues that the trial
court maintained a “blanket policy” to never grant bonds pending appeal, and the court therefore
rejected his plea deal specifically on that basis. See, e.g., State v. Boswell, 6th Dist. Erie No. E-
18-053, 2019-Ohio-2949, ¶ 51 (“[S]everal Ohio courts have determined that a trial court abuses
its discretion when it rejects a plea agreement by relying on a blanket policy rather than
considering the facts and circumstances of the particular case.”). The record before us reveals
that, at a pretrial conference, the trial court was amenable to accepting Mr. Hale’s plea of no
contest, but stated that it would not be inclined to grant a bond pending appeal. Mr. Hale not
the trial court then explicitly rejected the State’s plea offer on the record:
THE COURT: And then secondly, we did have some discussions in chambers
about a potential resolution for Mr. Hale, which was conditioned on a no contest
plea, which the Court did not object to that given the circumstances presented.
But it was also conditioned on an appellate bond, which the Court did indicate I
would not be inclined to do.
MR. LUDWIG: It is, Your Honor. That was an important condition for Mr. Hale.
THE COURT: Okay. So with that in mind then, you’re rejecting the State’s
offer?
MR. LUDWIG: I must reluctantly do so with my client’s concurrence, Your
Honor.
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Nothing in the record suggests that the trial court maintained a blanket policy against granting
bonds pending appeal in all cases, as Mr. Hale now suggests. “[T]he granting of bail is strictly
within the discretion of the courts [and t]here is no bail on appeal as a matter of right.” Coleman
v. McGettrick, 2 Ohio St. 2d 177, 179 (1965). See also R.C. 2949.02(A); App.R. 8(A). The trial
court’s order denying Mr. Hale’s motion for a new trial further states that the court never
rejected any plea deal, but instead simply indicated it would not be willing to grant a bond
pending appeal in this particular matter. The order explains that bond was not appropriate under
the circumstances because Mr. Hale lives out of state, appeared late for his jury trial, and was
facing mandatory prison time. We discern no abuse of discretion from the trial court’s
disinclination to grant Mr. Hale a bond pending appeal in this matter, and further find no merit in
Mr. Hale’s argument to the contrary.
{¶14} Mr. Hale also argues that the trial court employed a “double standard” by
revoking his bond when he arrived late to his trial, yet imposing no sanction on the prosecutor
for being late the following morning. He contends that he then had to appear at trial without
access to toiletries, while wearing the same clothes each day and being escorted by deputies.
This argument is indeed perplexing, as Mr. Hale perhaps misunderstands that he alone not the
prosecutor faced a litany of serious felony charges and was permitted by the court to be
released on bond prior to his trial. “The purpose of bail is to ensure that the accused appears at
all stages of the criminal proceedings.” State v. Lee, 9th Dist. Lorain No. 11CA010083, 2012-
Ohio-4329, ¶ 9, citing State v. Hughes, 27 Ohio St. 3d 19, 20 (1986). See also R.C. 2937.22(A)
(stating bail is security for the appearance of an accused to appear). “Any person who fails to
appear before any court as required is subject to the punishment provided by the law * * *.”
Crim.R. 46(I). Mr. Hale offers no citations to any authorities, statutes, or parts of the record to
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demonstrate how the revocation of his bond for his tardiness on the day of trial prevented him
from having a fair trial. See App.R. 16(A)(7). We determine that the trial court acted within its
discretion in revoking Mr. Hale’s bond, and we find no merit in his questionable and
unsupported argument to the contrary.
{¶15} Mr. Hale next argues that he was denied his choice of appellate counsel when the
trial court appointed a different attorney than trial counsel to represent him on appeal. We first
note that “‘[t]he right to counsel of choice does not extend to defendants who require counsel to
be appointed for them.’” State v. Cobb, 9th Dist. Summit No. 26847, 2014-Ohio-1923, ¶ 17,
quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006). The trial court’s order
denying his motion for a new trial further explains that the court typically appoints a different
attorney than trial counsel to represent defendants on appeal to preserve all potential appellate
issues, including ineffective assistance of trial counsel. Nothing in the record before us indicates
that Mr. Hale objected to the trial court’s appointment of a different attorney for purposes of
appeal. Notwithstanding, Mr. Hale directs us to no authority supporting his contention that the
appointment of different counsel for appellate purposes prevented him from having a fair trial.
See App.R. 16(A)(7). We thus find no merit in this speculative and unsupported argument.
{¶16} Mr. Hale briefly concludes his arguments under this assignment of error by once
again revisiting his claim that prior appellate counsel was ineffective for not raising the
aforementioned issues in his direct appeal from his convictions. As we previously determined
under his second assignment of error, however, such arguments are not properly before us at this
juncture. See Buck, 2017-Ohio-273, at ¶ 19.
{¶17} Mr. Hale’s third assignment of error is overruled.
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III.
{¶18} Mr. Hale’s first, second, and third assignments of error are all overruled. The
judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:
RHONDA KOTNIK, Attorney at Law, for Appellant.
MARK LUDWIG, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.