State v. El-Amin , 2022 Ohio 2905 ( 2022 )

[Cite as State v. El-Amin, 2022-Ohio-2905.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1175
Appellee Trial Court No. CR0200303244
v.
Hisham G. El-Amin DECISION AND JUDGMENT
Appellant Decided: August 19, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
DUHART, P.J.
{¶ 1} Appellant, Hisham G. El-Amin, appeals from a judgment entered by the
Lucas County common pleas court denying his motion for new trial. For the reasons that
follow, we affirm the judgment of the trial court.
Statement of the Case and the Facts
{¶ 2} On October 10, 2003, appellant was indicted on two counts of rape, both
felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b). Eleven days prior to
trial, appellant filed a “Motion to Enforce,” contending that on May 12, 2005, he and an
assistant prosecutor Andrew Lastra had negotiated a non-prosecution agreement, the
terms of which provided that the state would no longer prosecute the case if appellant
took and passed a polygraph examination. Appellant’s counsel sent a letter to confirm
the agreement. As alleged in appellant’s motion, however, Lastra immediately notified
defense counsel that the agreement might not be approved. Appellant further alleged that
on the morning of May 13, 2005, Lastra left a message that the original proposed terms
were not approved, and that assistant prosecutor Lori Olender would not dismiss the case
unless and until the alleged victim also submitted to a polygraph examination. At some
point on May 13, 2005, appellant underwent a polygraph examination and “passed.” The
victim apparently did not submit to a polygraph and the prosecution of appellant
continued. In addition, the “Motion to Enforce” was never ruled upon.
{¶ 3} On July 8, 2005, a jury found appellant guilty of two counts of rape, as
charged in the indictment. He was sentenced on August 5, 2005. On August 19, 2005,
appellant filed a motion for new trial based on allegations that the state failed to comply
with a non-prosecution agreement.
{¶ 4} On September 6, 2005, appellant filed a notice of appeal from his
convictions. None of the six assignments of error that were raised in the direct appeal
related to the alleged existence or breach of the non-prosecution agreement. This court
affirmed the convictions, but remanded the case for resentencing in light of State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
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{¶ 5} On August 25, 2021, the trial court denied the August 19, 2005 motion for
new trial on the grounds that no non-prosecution agreement between the parties “appears
to have actually been reached.” It is from this decision that appellant currently appeals.
Assignments of Error
{¶ 6} Appellant asserts the following assignments of error on appeal:
I. The State of Ohio breached a contract made by one Lucas County
Assistant Prosecutor and Appellant at the time of the trial when they
unilaterally revoked a non-prosecution agreement after Appellant
had accepted the offer and substantially complied with his part of the
bargain, due to a lack of concurrence by a second prosecutor.
II. The trial court committed plain error when it denied appellant’s
original Motion for a New Trial, dated August 19, 2005, in an
opinion and judgment entry dated August 25, 2021, without holding
an evidentiary hearing, arguably denying Appellant the opportunity
to timely raise issues of multiple irregularities in the trial procedure,
as a basis for a new trial.
III. Appellant was denied effective assistance of trial counsel as
guaranteed by Article I, Section 10 of the Ohio Constitution and the
Sixth and Fourteenth Amendments to the United States Constitution
when trial counsel failed to file a Motion for a New Trial, despite
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having been specifically retained to do so, and when a different
defense counsel failed to put the non-prosecution agreement on the
record.
Analysis
{¶ 7} Appellant argues in his first assignment of error that the trial court erred in
finding that there was no non-prosecution agreement to be breached in this case. Ohio
law recognizes that arguments related to alleged breaches of non-prosecution agreements
may properly be appealed. See, e.g., Klaas v. Wayne Cty. Prosecutor’s Office, 9th Dist.
Wayne No. 98CA0014, 1999 WL 25610, * 1-2 (Jan. 20, 1999) (holding that a defendant
had a remedy at law for the breach of a non-prosecution agreement in the form of an
appeal). Such issues may also be waived by failure to raise them in the direct appeal.
See, e.g., State v. Stanley, 7th Dist. Mahoning No. 99-C.A.-55, 2002-Ohio-4372, ¶ 13
(prosecution waived any argument that the defendant breached a non-prosecution
agreement).
{¶ 8} In the instant case, the record of the original, direct appeal clearly included
the motion to enforce the alleged non-prosecution agreement. Although the trial court
had not journalized a decision on the matter, the law is well-established that when a pre-
trial motion is not ruled upon, it is presumed to have been denied. See State v. Cassels v.
Dayton City Schools Dist. Bd. of Edn., 69 Ohio St.3d 217, 223, 631 N.E.2d 150 (1994)
(providing that “when a trial court fails to rule upon a pretrial motion, it may be
presumed that the court overruled it); see also State v. Barnhart, 6th Dist. Erie No. E-18-
046, 2019-Ohio-5002, ¶ 11, fn. 1 (finding that where trial court did not rule on a motion
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to suppress, the motion was presumed to have been denied). Error related to the handling
of the motion to enforce the alleged non-prosecution agreement could have been asserted
in the direct appeal, and the failure to pursue that issue on direct appeal waives the issue
for purposes of this appeal.
{¶ 9} In addition to waiver, principles of res judicata “may be applied to bar
further litigation of issues that were raised previously or could have been raised
previously in an appeal.” See State v. Hatton, 4th Dist. Pickaway No. 19CA34, 2021-
Ohio-1416, ¶ 16, appeal allowed, 164 Ohio St.3d 1403, 2021-Ohio-2742, 172 N.E.3d
162, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). In particular, “res
judicata bars a motion for a new trial when the movant raised, or could have raised, that
issue, in a prior action.” Hatton at ¶ 16. “‘“[R]es judicata promotes the principles of
finality and judicial economy by preventing endless relitigation of an issue on which a
defendant has already received a full and fair opportunity to be heard.”’” Id., quoting
State v. Miller, 4th Dist. Lawrence No. 11CA14, 2012-Ohio-1922, ¶ 5, in turn quoting
State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18. “[E]ven
plain errors are barred by res judicata.” State v. Abdul, 8th Dist. Cuyahoga No. 103510,
2016-Ohio-3063, ¶ 10, citing State v. Haynes, 2d Dist. Clark No. 2013 CA 90, 2014-
Ohio-2675, ¶ 14 (“The issues raised in [the defendant’s] assignments of error could have
been raised on direct appeal, and are barred by res judicata, regardless of whether they
might be characterized as plain error.”) (Additional citation omitted.)
{¶ 10} In the instant case, because arguments related to the non-prosecution
agreement were, in fact, raised prior to trial and, thus, could have been raised in the direct
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appeal, appellant’s motion for new trial, which is based upon those arguments, is clearly
barred by res judicata. See Hatton at ¶16. Appellant’s first assignment of error is,
therefore, found not well-taken.
{¶ 11} Our determination as to appellant’s first assignment of error renders
appellant’s second assignment of error – wherein appellant alleges error in the trial
court’s failure to hold an evidentiary hearing on the motion for new trial – moot.
{¶ 12} Finally, we consider appellant’s third assignment of error, wherein he
argues that he was denied effective assistance of counsel. The law is well-settled that a
finding of ineffective assistance of counsel requires a two-step analysis, and that
“[c]ounsel’s performance will not be deemed ineffective unless and until counsel’s
performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel’s performance.” State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.
{¶ 13} Appellant initially argues that he was denied effective assistance of counsel,
because his motion for a new trial was not filed within 14 days of the verdict being
challenged, as required under Crim.R. 33. Despite the apparently untimely filing of the
motion, the trial court denied the motion on its merits, without ever addressing the
timeliness barrier. Thus, appellant fails to demonstrate prejudice resulting from counsel’s
potentially untimely filing.
{¶ 14} Finally, appellant argues that he was prejudiced by trial counsel’s failure to
read into the record the terms of the non-prosecution agreement. Res judicata bars this
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argument, as it could have been raised on direct appeal. See Hatton, 4th Dist. Pickaway
No. 19CA34, 2021-Ohio-1416, ¶ 16.
{¶ 15} For all of the foregoing reasons, appellant’s third assignment of error is
found not well-taken.
{¶ 16} The judgment of the Lucas County common pleas court is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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