[Cite as State v. Rarden , 2022-Ohio-873.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

LONNIE RARDEN, Appellant. :

:

:

:

:

: CASE NO. CA2021-07-090

O P I N I O N

3/21/2022

CRIMINAL APPEAL FROM BUTLER C OUNTY COURT OF COMMON PLEAS Case Nos. CR2006-07-1271 and CR2006-09-1593

Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant Prosecuting Attorney, for appellee. Lonnie Rarden, pro se.

HENDRICKSON, J. {¶1} On March 21, 2007, Lonnie Rarden ("appellant") was convicted on felony escape, felony retaliation, two felony counts of complicity to perjury, felony complicity to tampering with evidence, felony menace by stalking, and sevente en misdemeanor counts of violating a protection order. Following a jury trial, appel lant was sentenced to 26 and one-half years in prison.Butler CA2021-07-090

- 2 - {¶2} On March 26, 2007, appellant filed a "Motion for Modification o f Verdict" pursuant to Crim. R. 33(A)(4), and a notice of appeal. Both we re handwritten and submitted pro se. The trial court denied the motion for modification of verdict on May 16, 2007, and appellant appealed that denial to this court. We denied appell ant leave to appeal the trial court's order, finding that because appellant had already filed a notice of appeal in the underlying case, the trial court did not have jurisdiction to c onsider the motion to modify

verdict. State v. Rarden , 12th Dist. Butler No. CA2007-09-230 (Nov. 7, 2007) (Entry Denying Leave to Appeal). {¶3} This court later affirmed appellant's convictions and sentences in his direct appeal. State v. Rarden , 12th Dist. Butler No. CA2007-03-077 (Apr. 21, 2008) (Accelera ted Calendar Judgment Entry). Since that time, appellant has filed numerous additional challenges to his convictions and sentences. See State v. Rarden , 12th Dist. Butler Nos. CA2010-04-095, CA2010-05-106, and CA2010-05-126 (Feb. 7, 2011) (Accelerated Calendar Judgment Entry); State v. Rarden , 12th Dist. Butler No. CA2013-07-125, 2014- Ohio-564; State v. Rarden , 12th Dist. Butler No. CA2015-12-214, 2016-Ohio-3108; State v.

Rarden , 12th Dist. Butler No. CA2018-03-044, 2018-Ohio-4487; State v. Rarden , 12th Dist. Butler No. CA2018-12-230, 2019-Ohio-2161; State v. Rarden , 12th Dist. Butler No. CA2019-02-039, 2019-Ohio-3227. The Ohio Supreme Court has cons istently declined to

review these cases. {¶4} On June 18, 2021, appellant filed an "Amendment or Supplement t o Defendant's Motion for New Trial, or to Modify the Verdict file d on March 26, 2007." This new motion purported to be an addendum to appellant's March 26, 2007 "Motion for Modification of Verdict," which appellant characterized as "pen ding." The purported amendment expanded the scope of appellant's initial motion in w hich he "ask[ed] that [the] court modify the verdict in the above captioned case without a new trial." The amendmentButler CA2021-07-090

- 3 - recharacterizes the 2007 motion as a motion for a new trial and also requests a new trial pursuant to Crim.R. 33(A)(1) and (5) as well as R.C. 2945.79(A) , (D), and (E), none of which were argued in the 2007 motion. {¶5} The state filed a motion requesting the trial court strike appe llant's 2007 motion and 2021 amendment. On July 20, 2021, the trial court d enied appellant's motion and his amendment with prejudice. Appellant appeals, raising t hree assignments of error. {¶6} Assignment of Error No. 1: {¶7} A DEFENDANT IN A CRIMINAL CASE HAS THE RIGHT TO FILE A MOTION FOR A NEW TRIAL, AND IT IS AN ABUSE OF DISCRETION AND REVERSIBL E ERROR

FOR A COURT TO STRIKE SUCH MOTION FROM THE FILES. {¶8} Appellant first argues that the trial court erred by striking h is 2007 motion for modification, which he now characterizes as a motion for a new trial, as well as his purported 2021 amendment and a motion for extension of time to respond. "An appellate court reviews a trial court's decision granting or denying a motion t o strike under an abuse-ofdiscretion standard of review." New Residential Mtge. LLC v. Barnes , 12th Dist. Warren No. CA2020-04-027, 2020-Ohio-6907, ¶ 16. "An abuse of discreti on is more than an error of law or judgment; it implies that the trial court acted unrea sonably, arbitrarily, or unconscionably." Id. {¶9} Pursuant to the previous version of Crim.R. 33(A)(4), "a new tr ial may be granted where 'the verdict is not sustained by sufficient evide nce or is contrary to law.'" 1

State v. Litton , 12th Dist. Preble No. CA2016-04-005, 2016-Ohio-7913, ¶ 20, quoting Crim.R. 33(A)(4). Alternatively,

1. Crim.R. 33(A)(4) was amended effective July 1, 2021. Appell ant's motion was made prior to the amendment, though neither appellant nor the state acknowledges the change of language in their briefs. Our decision in this case is limited to the previous version of the rule effective at the time of appellant's 2007 motion. State v. Bartrum , 121 Ohio St.3d 148, 2009-Ohio-355, ¶ 19.Butler CA2021-07-090

- 4 - [i]f the evidence shows the defendant is not guilty of the degr ee of crime for which he was convicted, but guilty of a lesser deg ree 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 o r finding as modified. Crim.R. 33(A)(4) (effective to June 30, 2021). In his 2007 mot ion, appellant specifically prayed for modification of the verdict without a new trial. In the memorandum in support of this motion, appellant asserted that the evidence reflected tha t he should have been convicted of crimes of a lesser degree than those of which he w as ultimately convicted. {¶10} We will first discuss whether we have jurisdiction regarding is sues relating to appellant's 2007 motion. "It is settled that the filing of a n otice of appeal divests the trial court of jurisdiction and that any subsequent ruling or order b y the trial court is null and

void." In re Estate of Meyer , 63 Ohio App.3d 454, 457 (12th Dist. 1989), fn. 2. "Where a trial court enters an order without jurisdiction, its order is void and a nullity, and * * * puts the parties in the same position they would be in if it had not occurred." Fifth Third Mtge. Co. v. Orebaugh , 12th Dist. Butler No. CA2011-03-039, 2011-Ohio-4472, ¶ 13. A s noted above, this court found the trial court's order denying appella nt's 2007 motion void for lack of jurisdiction. Rarden , CA2007-09-230 (Nov. 7, 2007). Appellant's 2007 motion was therefore pending before the trial court following the order of this court. See Fifth Third at ¶ 15. {¶11} We next address the propriety of appellant's 2021 amendment. T here is simply no legal basis which would enable appellant to unilatera lly amend and supplement his 2007 motion fourteen years la ter, as his 2021 filing purpor ts to do. Crim.R. 33 contains no provision permitting a defendant to modify a motion for a ne w trial, let alone to do so without leave of the trial court. As such, the trial court did not abuse its discretion by striking appellant's purported amendment. Similarly, appellant was not entitled to respond to theButler CA2021-07-090

- 5 - state's reply brief, let alone to receive an extension to do so . The trial court properly denied this motion and we need not consider the merit of any argument raised by appellant in his

2021 amendment. {¶12} We further find that the trial court did not abuse its discreti on in striking appellant's 2007 motion. "When a trial court fails to rule on a motion, an appellate court

considers the motion denied." New Residential Mtge. , 2020-Ohio-6907, at ¶ 16; see also

In re F.B. , 12th Dist. Brown No. CA2021-03-002, 2022-Ohio-499, ¶ 61 ("Whe re a court fails to mention or rule on a pending motion, we presume that the mot ion was implicitly overruled"). Since this court found the trial court's initial order denying the motion void, appellant's 2007 motion remained pending before the trial court . However, appellant chose

not to renew his motion after we determined the trial court's o rder was void, and in fact did not attempt to do so until fourteen years later. During that t ime, the pending motion may be considered to have been implicitly overruled. {¶13} "Generally, a reviewing court will presume that a lower court o verruled a motion on which it did not expressly rule, in instances where i t is clear from the circumstances that that is what the lower court actually intend ed to do." State v. Ryerson , 12th Dist. Butler No. CA2003-06-153, 2004-Ohio-3353, ¶ 54. It is clear from the circumstances that the trial court intended to overrule appella nt's motion, based not only on its initial void order denying ap pellant's motion, but its subs equent rulings in the plethora of postconviction motions that appellant raised in the intervening years. Appellant's first assignment of error is overruled. {¶14} Assignment of Error No. 2: {¶15} THERE IS NO RECORD THAT APPELLANT WAIVED HIS RIGHT TO

COUNSEL IN BUTLER COUNTY CASE NO. CR2006-07-1271. THE TRIAL CO URT

ABUSED ITS DISCRETION IN OVERRUL ING APPELLANT'S MOTION FOR A NE WButler CA2021-07-090

- 6 - TRIAL. {¶16} Appellant next argues that because the trial court failed to sp ecifically state both case file numbers at the hearing when he waived his right to counsel, that he never waived his right to counsel in the case whose number was omitte d. Although we need not address this argument, as it is raised in appellant's improper 2021 amendment, we note that it is a simple rehashing of his flawed argument in a prior case. See Rarden , 2019- Ohio-2161 at ¶ 15-17. In that case, appellant argued that beca use the trial court failed to specifically recite both separate case numbers, his sentence in the case whose number

was omitted must be vacated. Id. at ¶ 15. {¶17} In the case sub judice, appellant made a detailed, knowing, vol untary, and intelligent waiver of his right to counsel on the record in the case whose number was recited.

See Rarden , CA2007-09-230, at ¶ 3-4. As in the prior case, the files wer e consistently handled together in the trial court. Appellant now claims, how ever, that his conviction and sentence violate his constitutional right to counsel because he never waived his right to an attorney in the case whose number was omitted. Appellant's own conduct undermines this argument. Following his waiver of counsel, appellant never ind icated thereafter that he desired the assistance of an attorney in either case. Appellant's argument is not believable. Additionally, the supplemental authority to which he cites is i napposite to his case. Appellant's second assignment of error is overruled. {¶18} Assignment of Error No. 3: {¶19} THE TRIAL COURT WAS MANDATED TO DO A TWO-STEP ANALYSIS WHEN CONSIDERING REQUESTED LESSER INCLUDED OFFENSE INSTRUCTIONS

TO THE JURY. THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULI NG

APPELLANT'S MOTION FOR A NEW TRIAL ON THIS ISSUE. {¶20} In his third assignment of error, appellant argues that the tri al court abused itsButler CA2021-07-090

- 7 - discretion by denying his request for lesser included offense i nstructions. Specifically, he alleges that the trial court failed to appropriately analyze hi s claim. Like appellant's second assignment of error, this alleged error was set forth in his im proper 2021 amendment, and we therefore need not address it. However, if we did address t he merits, this claim would be barred under the doctrine of res judicata. "Res judicata ba rs a petitioner from 'repackaging' evidence or issues that either were or could have be en raised in trial or on direct appeal." State v. Casey , 12th Dist. Clinton No. CA2017- 08-013, 2018-Ohio-2084, ¶ 15. Appellant has appeared before this court at least eight times r aising a wide variety of attacks against his convictions. He could have, and should have, raise d these issues in a direct appeal but chose not to do so. Because appellant did not raise the issues in his direct appeal, res judicata bars him from raising them now. Appellant 's third assignment of error

is overruled. {¶21} Appellant's appeal is not well taken. As we previously stated, "[n]o matter how many times Rarden moves the trial court to reverse and vaca te his sentence, nor how many different arguments Rarden can conjure up while awaiting h is 26 and one-half-year prison sentence to end, the fact remains that the sentence impo sed by the trial court is

neither void nor con trary to law." Rarden , 2019-Ohio-2161, at ¶ 24. {¶22} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.