[Cite as State v. Hayden, 2022-Ohio-3574.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT 

MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

ROBERT O. HAYDEN

Defendant-Appellant

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Appellate Case No. 29490

Trial Court Case No. 1990-CR-308

(Criminal Appeal from

Common Pleas Court)

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O P I N I O N

Rendered on the 7th day of October, 2022.

. . . . . . . . . . . 

MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 

45422

 Attorney for Plaintiff-Appellee

 

ROBERT O. HAYDEN, #A226-375, P.O. Box 5500, Chillicothe Correctional Institution, 

Chillicothe, Ohio 45601

Defendant-Appellant, Pro Se

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LEWIS, J.
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{¶ 1} Defendant-Appellant Robert O. Hayden appeals from the trial court’s denial 

of his motion for leave to file a delayed motion for a new trial. According to Hayden, the 

trial court improperly applied a “reasonable-time filing requirement” to his motion for leave 

and failed to follow the law-of-the-case doctrine. For the reasons that follow, we affirm 

the judgment of the trial court.

I. Facts and Course of Proceedings

{¶ 2} In 1990, Hayden was convicted of rape with a prior aggravated felony 

specification and was sentenced to a prison term of ten to twenty-five years. At trial, his 

former girlfriend testified that Hayden had repeatedly raped her in the morning hours of 

December 31, 1989, after she refused to watch a pornographic movie with him; Hayden 

did not testify. Samples from the vaginal swab and vaginal aspirate collected from the 

victim were examined by the Miami Valley Regional Crime Lab. The results of the sperm 

fraction of the vaginal aspirate were said to be inconclusive because the victim and 

Hayden had similar blood types. Pubic hairs were also recovered from the victim. Due 

to Hayden’s race, he was excluded as a source of the pubic hair, but it was possible that 

the hair belonged to the victim, who was a different race.

{¶ 3} On direct appeal, we affirmed, commenting that “the credibility of the 

witnesses was the critical question before the trial court. The only direct evidence of the 

offense of rape came from the victim; [the evidence] to the contrary was hearsay produced 

by those who at a later time heard [Hayden] simply deny the offense. The conflict of 

evidence of the offense is created by a self serving statement made to others, containing 
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virtually no factual information.” State v. Hayden, 2d Dist. Montgomery No. 12220, 1991 

WL 215065, *2 (Sept. 27, 1991).

{¶ 4} Over the next 25 years, Hayden filed numerous petitions for postconviction 

relief and applications for postconviction DNA testing. All of these petitions and 

applications were denied by the trial court and affirmed on appeal. A more detailed 

discussion of the procedural history is set forth in our prior decisions, most notably State 

v. Hayden, 2d Dist. Montgomery No. 24992, 2012-Ohio-6183, and State v. Hayden, 2d 

Dist. Montgomery No. 26524, 2015-Ohio-3262.

{¶ 5} Hayden filed a motion for a new trial in January 2017. He asserted that the 

trial testimony of prosecution witness Laura Kiddon, an employee at the Miami Valley 

Regional Crime Lab, exonerated him. The trial court denied this motion, and we affirmed 

the denial on appeal. State v. Hayden, 2d Dist. Montgomery No. 27589, 2017-Ohio9308. We concluded, in part:

Upon review, we conclude that Hayden’s assignments of error fail for 

at least four reasons. First, his new-trial motion was extraordinarily 

untimely under both R.C. 2945.80 and Crim.R. 33(B). Hayden was 

convicted in 1990, his new-trial motion does not involve any newlydiscovered evidence, and the trial court made no finding about him being 

unavoidably prevented from timely filing. Second, Hayden did not request 

leave to file his untimely new-trial motion. Third, res judicata bars 

consideration of the arguments raised in Hayden’s new-trial motion (and in 

the affidavit he filed after the trial court’s ruling). * * * Fourth, it appears that 
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Hayden’s argument about blood typing actually has been raised.

Id. at ¶ 6.

{¶ 6} On March 15, 2022, Hayden filed a “Motion For Leave to File a Delay Motion 

for a New Trial Pursuant to Criminal Rule 33(A)(1).” In his motion, Hayden contended 

that he had “had no knowledge of the grounds of the ‘irregularity’ of the established 

proceedings until the decision in” State v. Hayden, 2d Dist. Montgomery No. 23620, 2010-

Ohio-3908. According to Hayden, our decision in 2010 meant that he “cannot be held 

accountable or ‘as a’ contributor to any biological material evidence in this case.” 

Hayden then asked the trial court to apply the law of the case doctrine and grant his 

motion for leave to file a motion for a new trial. He attached to his motion a copy of our 

opinion from 2010 and a copy of excerpts from the testimony of Laura Kiddon relating to 

DNA analysis.

{¶ 7} On May 10, 2022, the trial court overruled Hayden’s motion for leave to file a 

delayed motion for a new trial. The court concluded:

A review of Hayden’s Motion for Leave to file a delayed motion for 

new trial reveals that the issue presented, that is, DNA evidence, has been 

repeatedly litigated before this court and the Second District Court of 

Appeals, and has previously been the subject of Hayden’s prior motion 

seeking a new trial. Still further, Hayden’s motion for leave was filed 

approximately thirty-two years after trial and over eleven years after the 

DNA results were obtained here. The court finds that Hayden has failed to 

make any showing that he was unavoidably prevented from filing his motion, 
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or from discovering the allegations upon which he premises his motion, and 

thus has failed to meet his burden of establishing by clear and convincing 

proof that he was unavoidably prevented from filing his motion for a new 

trial within the statutory time limits. Hayden failed [to] address the issue of 

his untimely motion. Still further, Hayden’s motion is devoid of any 

affidavits to support his claims. Finally, given that Hayden has filed prior 

motions based upon the same arguments, and those arguments have been 

the subject of prior decision by this court and the Second District Court of 

Appeals, the claims made by Hayden herein are res judicata. This court 

lacks the authority to extend the time to file a motion for new trial, other than 

as set forth in Crim.R. 33. The court finds that Hayden has failed to support 

his motion for leave and has failed to meet his burden of proof for leave to 

file an untimely motion for leave to file a motion for new trial[.]

May 10, 2022 Decision, p. 6-7.

{¶ 8} Hayden filed a timely notice of appeal from the trial court’s denial of his 

motion for leave.

II. The Trial Court’s Decision Is Supported by Res Judicata and the Plain 

Language of Crim.R. 33

{¶ 9} Hayden’s first assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

OVERRULED APPELLANT’S CRIMINAL RULE 33(B) MOTION AS BEING 
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UNTIMELY VIOLATING HIS DUE PROCESS OF LAW.

{¶ 10} Hayden contends that an irregularity in the proceedings was the basis for 

his motion for a new trial. Crim.R. 33(A), which sets forth the authorized bases for a new 

trial, provides, in part:

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;

{¶ 11} Crim.R. 33(B) addresses the deadlines for bringing an application for a new 

trial. It provides:

Application for a new trial shall be made by motion which, except for 

the cause of newly discovered evidence, shall be filed within fourteen days 

after the verdict was rendered, or the decision of the court where a trial by 

jury has been waived, unless it is made to appear by clear and convincing 

proof that the defendant was unavoidably prevented from filing his motion 

for a new trial, in which case the motion shall be filed within seven days from 

the order of the court finding that the defendant was unavoidably prevented 

from filing such motion within the time provided herein.

Motions for new trial on account of newly discovered evidence shall 

be filed within one hundred twenty days after the day upon which the verdict 

was rendered, or the decision of the court where trial by jury has been 
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waived. If it is made to appear by clear and convincing proof that the 

defendant was unavoidably prevented from the discovery of the evidence 

upon which he must rely, such motion shall be filed within seven days from 

an order of the court finding that he was unavoidably prevented from 

discovering the evidence within the one hundred twenty day period.

{¶ 12} In short, except for motions based on newly discovered evidence under 

Crim.R. 33(B), a motion for new trial “shall be filed within fourteen days after the verdict 

was rendered * * * unless it is made to appear by clear and convincing proof that the 

defendant was unavoidably prevented from filing his motion for a new trial * * *.” Crim.R. 

33(B). In contrast, a motion for new trial based on newly discovered evidence “shall be 

filed within one hundred twenty days after the day upon which the verdict was rendered 

* * *.” Id.

{¶ 13} In order to file a motion for new trial after the expiration of the time periods 

specified in Crim.R. 33(B), a defendant must first seek leave of the trial court to file a 

delayed motion. State v. Lanier, 2d Dist. Clark No. 2009-CA-84, 2010-Ohio-2921, ¶ 15, 

citing State v. Warwick, 2d Dist. Champaign No. 2001-CA-33, 2002-Ohio-3649. To 

obtain leave, defendant must demonstrate by clear and convincing evidence that he or 

she was unavoidably prevented from timely filing the motion for a new trial or discovering 

the new evidence within the time period provided by Crim.R. 33(B).

{¶ 14} We review the trial court's denial of leave to file a motion for a new trial for 

an abuse of discretion. State v. Devaughns, 2d Dist. Montgomery No. 25826, 2015-

Ohio-452, ¶ 15. An abuse of discretion occurs when the decision of a court is 
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unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219, 450 N.E.2d 1140 (1983).

{¶ 15} Hayden contends that the trial court improperly applied a “reasonable-time 

requirement” when it overruled his motion for leave. Hayden points out that the Ohio 

Supreme Court recently held that it is improper for courts to require a petitioner to file his 

motion for a new trial within a reasonable period of time after discovering the new 

evidence on which he relies because this requirement is not contained in Crim.R. 33. 

Brief of Appellant, p. 1-2, citing State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 

N.E.3d 470.

{¶ 16} We acknowledge that the trial court discussed in its May 10, 2022 Decision 

a reasonable time requirement that had been utilized by courts prior to the Bethel

decision. But the trial court did not reject Hayden’s motion for leave because it was not 

made within a reasonable time after discovering new evidence or an alleged irregularity 

in the proceedings. Rather, the trial court rejected Hayden’s appeal because: 1) it was 

barred by res judicata; 2) he failed to make any showing that he had been unavoidably 

prevented from filing his motion or from discovering the allegations upon which he 

premised his motion; and 3) his motion was devoid of any affidavits to support his claims.

{¶ 17} We agree with the trial court that Hayden’s motion for leave was precluded 

by res judicata. “Pursuant to the doctrine of res judicata, a valid final judgment on the 

merits bars all subsequent actions based on any claim arising out of the transaction or 

occurrence that was the subject matter of the previous action.” State v. Reed, 2d Dist. 

Montgomery No. 26526, 2015-Ohio-3051, ¶ 26, quoting State v. Collins, 2d Dist. 
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Montgomery No. 25612, 2013-Ohio-3645, ¶ 9. “Under the doctrine of res judicata, a final 

judgment of conviction bars a convicted defendant who was represented by counsel from 

raising and litigating in any proceeding, except an appeal from that judgment, any defense 

or any claimed lack of due process that was raised or could have been raised by the 

defendant at the trial, which resulted in that judgment of conviction, or on an appeal from 

that judgment.” State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996), syllabus, 

citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, (1967), paragraph nine of the 

syllabus. “Additionally, arguments advanced in a successive motion for a new trial may 

be barred by the doctrine of res judicata.” State v. Quinn, 2d Dist. Clark No. 2017-CA102, 2018-Ohio-5279, ¶ 23, citing Reed at ¶ 28 (where appellant “previously filed a motion 

for a new trial,” res judicata bars use of a successive new trial motion to raise issues that 

could have been asserted in the prior motion).

{¶ 18} Moreover, Hayden failed to make any showing that he was unavoidably 

prevented from filing his motion or from discovering any evidence upon which he 

premised his motion. Rather, Hayden complains of a “reasonable-time requirement” that 

was not relied on by the trial court. Therefore, the trial court did not abuse its discretion 

in denying Hayden’s motion for leave to file a delayed motion for new trial.

{¶ 19} Hayden’s first assignment of error is overruled.

III. Hayden Has Not Established How The Law-of-the-Case Doctrine Supports His 

Cause

{¶ 20} Hayden’s second assignment of error states:
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THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED 

TO FOLLOW THE LAW OF THE CASE DOCTRINE AGAIN VIOLATING 

APPELLANT’S DUE PROCESS OF LAW.

{¶ 21} Hayden contends that “Here in the case at bar, the issue of R.C. 

2953.71.71(I) [sic] has never been addressed in the trial court, the applicable law was 

only address in this court in State v. Hayden 2010 Ohio 3908, making it the law of the 

case at the trial and all reviewing level.” (Emphasis sic.) Brief of Appellant, p. 5. 

{¶ 22} “The law-of-the-case doctrine holds that ‘the decision of a reviewing court 

in a case remains the law of that case on the legal questions involved for all subsequent 

proceedings in the case at both the trial and reviewing levels.’ ” State v. Davis, 131 Ohio 

St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶ 30, quoting Nolan v. Nolan, 11 Ohio St.3d 

1, 3, 462 N.E.2d 410 (1984). We are uncertain what exactly Hayden is contending 

constitutes the law of the case from our decision in State v. Hayden, 2d Dist. Montgomery 

No. 23620, 2010-Ohio-3908, that also supports his motion for leave. In that decision, we 

affirmed the trial court’s denial of Hayden’s request for DNA testing. Therefore, it is 

unclear how anything we said in that decision constituted the discovery of new evidence 

or of an irregularity in the trial court proceeding. Rather, the decisions of the trial court 

and our decisions on appeal consistently have found neither an irregularity in the trial 

court proceedings nor a reversible error.

{¶ 23} As explained above, the trial court’s denial of Hayden’s motion for leave is 

required by res judicata and the plain language of Crim.R. 33. The second assignment 

of error is overruled.
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IV. Conclusion

{¶ 24} Both of Hayden’s assignment of errors having been overruled, the judgment 

of the trial court is affirmed.

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DONOVAN, J. and EPLEY, J., concur. 

Copies sent to:

Mathias H. Heck, Jr.

Andrew T. French

Robert O. Hayden

Hon. Mary Katherine Huffman