[Cite as State v. Taylor , 2022
- Ohio
- 3579.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO Plaintiff

- Appellee

v. GUDONAVON J. TAYLOR Defendant

- Appellant : : : : : : : : : : Appellate Case No s

. 2 9422 and 29423 Trial Court Case No. 2008

- CR

- 1087 ( C rimina l Appeal from Common Pleas Court )

. . . . . . . . . . . O P I N I O N Rendered on the 7th day of October , 202 2

.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH , Atty. Reg. No. 00 69384 , Assist ant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff

- Appellee GUDONAVON J. TAYLOR, Inmate No. A627

- 232 , Trumbull Correctional Institution, P.O. Box 901, Leavittsburg, Ohio 44430 Defendant

- Appell ant , Pro Se

. . . . . . . . . . . . . DONOVAN , J.- 2

- {¶ 1} Defendant

- appel lant Gudonavon J. Taylor appeals pro se from a judgment of the Montgomery County Court of Common Pleas , which denied his motion for leave to file a delayed motion for a new trial and his motion to vacate a void conviction. Taylor filed timely notice s of appeal on March 15, 2022. 1 Facts and Procedural History {¶ 2} We previously set forth the history of the case in State v. Taylor , 2d Dist. Montgomery No. 2 8276, 2019

- Ohio

- 4485 , and repeat it herein in pertinent part:

In 2010, a jury found Taylor guilty of three counts of murder, two counts of felonious assault, one count of discharging a firearm on or near a prohibited premis es, and several firearm specifications. Following a bench trial, the trial court also found Taylor guilty of having weapons while under disability. After Taylor's conviction, the trial court merged several of the offenses and thereafter imposed a prison term of 15 years to life for murder, eight years for felonious assault, ten years for discharging a firearm on or near a prohibited premises, five years for having weapons while under disability, and three years for all of the firearm specifications. The t rial court ordered all of the sentences to be served consecutively for a total, aggregate term of 41 years to life in prison with the possibility of parole. Taylor filed a direct appeal from his conviction, and this court affirmed the judgment of the trial court. See State v. Taylor , 2d Dist. Montgomery

1 Taylor separately appealed the trial court’s decision overruling his motion for leave to file a delayed motion for a new trial and his motion to vacate a void conviction, respectively Montgomery C.A. No s. 29422 and 29423. We have consolidated the appeals.- 3

- No. 23990, 2013

- Ohio

- 186 (“ Taylor I ”). This court later allowed Taylor to reopen his appeal, and he raised five additional assignments of error. After considering the new assignments of error, we again affirmed the trial court's judgment. See State v. Taylor , 2d Dist. Montgomery No. 23990, 2014

- Ohio

3647 (“ Taylor II

”). Three years later, in 2017, Taylor filed a pro se “motion to vacate unlawful sentence.” In support of that motion, Taylor argued that his sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment. The trial court overruled the motion, and Taylor appealed. On appeal , we found no error in the trial court's decision overruling the motion and affirmed the judgment of the trial court. See State v. Taylor , 2d Dist. Montgomery No. 27879, 2018

- Ohio

- 4628 (“ Taylor III ”). While Taylor III was pending, Taylor filed a pro se “mo tion to correct allied offenses.” The trial court, however, denied the motion on grounds that it lacked jurisdiction to rule on the matter due to the pending appeal in Taylor III . Taylor then filed a timely notice of appeal from that decision. In April 2019, we affirmed the trial court's decision denying Taylor's motion on jurisdictional grounds, and also found that the allied offense argument raised in the motion was barred by res judicata. See State v. Taylor , 2d Dist. Montgomery No. 28166, 2019

- Ohio

- 1376 (“ Taylor IV ”). While Taylor IV was pending, Taylor filed a pro se “motion for resentencing.” In that motion, Taylor claimed that he was entitled to a- 4

- resentencing because his sentence was rendered void as a result of the trial court advising him that he would be subject to a single, five

- year mandatory term of post

- release control. According to Taylor, the trial court should have instead notified him of the distinct term of post

- release control that applied to each of his offenses. The trial court d isagreed and overruled Taylor's motion upon finding that it had properly notified Taylor of his post

- release control obligation. Taylor appealed, and we affirmed the judgment of the trial court holding that t he trial court did not err in overruling hi s mo tion for resentencing because hi s sentence was not rendered void as a result of the trial court failing to notify appellant of the applicable term of post
- release control for each of his offenses. See State v. Taylor , 2d D ist. Montgomery No. 28276, 2019

- Oh io

- 4485 , ¶ 11

- 12. (“ Taylor V ”). Rather, we held that the trial court properly advised appellant of the single, longest term of post

- release control that applied

. Id

. Motion for Leave to File a Delayed Motion for New Trial {¶ 3} O n January 26, 2022, Taylor filed a “Motion for Leave to File a Delayed Motion for New Trial Pursuant to Criminal Rule 33(B).” In his motion, Taylor argued that he should be granted a new trial for the following reasons: 1) the prosecutor committed plain error by knowingly us ing perjured testimony to convict him; 2) the prosecutor committed plain error by impermissibly suggested to the jury that in order for it to find Taylor not guilty, it would have to disbelieve the State’s witness and evidence; and 3) the trial court commi tted plain error by incorrectly instructing the jury that Taylor had the- 5

-

burden of proof with respect to his alibi defense. Taylor also argued that he had been unavoidably prevented from filing his motion for new trial within the 14 days required pursuant to Crim.R. 33(B) because he did not have access to the trial transcript until two months after the verdict was rendered, and “ the only way [Taylor] could have discovered the misconduct by [the] Prosecutor and the error of law occurring at trial was if he had access to the transcript.” Motion for Leave, p. 1. Taylor also argued that his youth at the time of the trial should excuse his failure to file a timely motion for new trial. {¶ 4} O n February 24, 2022, the trial court overruled Taylor’s motion for leave t o file a delayed motion for a new trial , finding that he had failed to establish that he had been unavoidably prevented from filing a timely motion for new trial because of the allegedly missing trial transcript. The trial court also noted that Taylor’s m otion for leave was filed “not only outside of the 14 days required under Crim.R. 33(B), but comes over 11 years after the jury rendered its guilty verdicts on March 30, 2010. ” With respect to the arguments advanced in Taylor’s motion for new trial, the t rial court found that they all lacked merit and were barred by res judicata. Motion to Vacate Void Conviction {¶ 5} On February 18, 2022, Taylor filed a “Motion to Vacate Void Conviction.” In the motion to vacate, Taylor contended that the trial court had lacked subject matter jurisdiction over the majority of the charges for which he was indicted because the juvenile court found probable cause that he had committed the two counts of murder charged in the original complaint, but the juvenile court failed to bind over the remaining counts for which Taylor had been indicted. In its decision overruling Taylor’s motion to vacate a- 6

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void a conviction, the trial court distinguished the main case relied upon by Taylor, State v. Smith , 167 Ohio St.3d 423 , 2022

- Ohio

- 274, __ N.E.3d __, finding that the common pleas c ourt had had proper jurisdiction over all of the offenses for which Taylor was indicted and later convicted. The trial court also found that Taylor’s argument in his motion to vacate a void sentence was barred by res judicata and also barred as an untimely petition for post

- conviction release. {¶ 6} It is from these judgments that Ta ylor now appeals. {¶ 7} Taylor’s first assignment of error is as follows: APPELLANT’S STATUTORY AND CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN HE WAS INDICTED AND CONVICTED ON CHARGES THAT WERE NEVER TRANSFERRED FROM THE JUVENILE COURT TO THE MONTGOMERY COUNTY COU RT OF COMMON PLEAS. {¶ 8} Taylor contends that the trial court did not properly bind his case over and/or that the general division of the common pleas c ourt did not have jurisdiction to sentence him after he was found guilty by a jury on multiple counts and in a bench trial on one count. In support of his argument, Taylor relies on the Ohio Supreme Court’s decision in Smith , which was decided on February 2, 2022

. {¶ 9} Smith held that “[a] finding of probable cause is a jurisdictional prerequisite under R.C. 2152.1 2 to transferring a child to adult court for prosecution of an act charged.” Id . at ¶ 44. Smith further concluded that “[i] n the absence of a juvenile court's finding probable cause or making a finding that the child is unamenable to care or rehabilitatio n- 7

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within the juvenile system, no adult court has jurisdiction over acts that were charged in but not bound over by the juvenile court .” Id

. {¶ 10} In our view, Smith is clearly distinguishable from Taylor’s case. In Smith , the juvenile c ourt found probable cause on two counts of aggravated robbery and one count of grand theft; however, with respect to the remaining charges in the complaint the court did not find probable cause and specifically stated the same. Id . at ¶ 9

- 10. Thereafter, the juvenile court conduc ted an amenability hearing and concluded that Smith was not amenable to the juvenile system , and it transferred his case to the general division for his prosecution as an adult for the acts for which the juvenile court had found probable cause. Id

. at ¶ 10

- 11. After the case was transferred to the adult court, the State obtained a grand

- jury indictment against Smith on eight counts that were identical to those that had been alleged in the original juvenile complaint, including those for which the juvenile court had found no probable cause and including firearm specifications on the aggravated

- burglary counts and the grand

- theft and theft counts. Id . at ¶ 12. {¶ 11} Based upon actions taken by the State, Smith held “the General Division of the Cuyahoga County Common Pleas Court lacked subject

- matter jurisdiction over Counts 4, 6, 7, and 8 and the firearm specifications because the juvenile court found that the acts related to those counts and specifications wer e not supported by probable cause and thus the juvenile court could not have made an amenability determination with regard to those acts.” Id

. at ¶ 43. {¶ 12} Smith is distinguishable from this case. Taylor, who was 17 years old at the tim e, was charged by com plaint in the juvenile c ourt for two counts of murder , with a- 8

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firearm specification on coun t two. After the court heard testimony at the probable cause hearing, it found probable cause on the two murder counts and the firearm specification. After this fi nding of probable cause, Taylor was indicted on April 7, 2008 , for three counts of murder, two counts of felonious a ssault , and one count of having weapons while under d isability; each of the six counts carried a firearm specification. On April 18, 2008, Taylor was indicted for an additional count of d ischarge of a firearm on or near prohibited
p remises , with a firearm specification. {¶ 13} In our view, sinc e Taylor was bound over by the juvenile c ourt after it had found probable cause for the two murder counts a nd the firearm specification (the only charg es in the complaint before the juvenile court) , Taylor’s case does not involve the jurisdictional defects identified in Smith . Additionally, the general division of the common pleas c ourt did have jurisdiction o ver Taylor after his case was transferred pursuant to R.C. 2151.23(H) , which expressly provides: The court to which the case is transferred for criminal prosecution pursuant to that section has jurisdiction subsequent to the transfer to hear and determine the case in the same manner as if the case originally had been commenced in that court, subject to section 2152.121 of the Revised Code, including, but not limited to, jurisdiction to accept a plea of guilty or another plea authorized by Criminal Rule 11 or another section of the Revised Code and jurisdiction to accept a verdict and to enter a judgment of conviction pursuant to the Rules of Criminal Procedure against the child for the commission of the offense that was the basis of the transfer of the case for- 9

- criminal prosecution, whether the conviction is for the same degree or a lesser degree of the offense charged, for the commission of a lesser

included offense, or for the commission of another offense that is different from the offense charged. {¶ 14} As not ed by the trial court, this section has remained substantially the same since at least 2006 when 2007 Ohio S.B. 10 went into effect. Therefore, the version of this statute in effect when Taylor was charged, bound over, and found guilty by the Common Pleas Court was the same as it is today. Furthermore , nothing in Smith changed or modified this statute. All of Taylor ’s convictions were either for the offense for which he was transferred , or the commission of the offenses for which he was charged after his transfer , such as the weapons under disability or discharge of a firearm at or near a prohibited prem ises. All of these offenses occurred on the same day as the

m urder on December 7, 2007 , and involved the same firearm as the m urder. {¶ 15} In general, “[a] new judicial ruling may be applied only to cases that are pending on the announcement date, and the new judicial ruling may not be applied retroactively to a conviction that has become final, that is, where the accused has exhausted all of his appellate remedies.” State v. Greathouse , 2d Dist. Montgomery No. 24935, 2012

- Ohio

- 2414, ¶ 6, citing Ali v. State , 104 Ohio St.3d 328, 2004

- Ohio

- 6592, 819 N.E.2d 687; State v. Smith , 2d Dist. Montgomery No. 27294, 2017

- Ohio

- 2684 , ¶ 11. In Taylor’s c ase, it is undisputed that his convictions became final on March 11, 2015, after we affirmed his conviction in Taylor II , and the Ohio Supreme Court declined further review. See Taylor II , 2d Dist. Montgomery No. 23990, 2014

- Ohio

- 3647 , appeal not- 10

-

accepted for review

, State v. Taylor

, 141 Ohio St.3d 1490 , 26 N.E.3d 824, 2015

- Ohio

842

. {¶ 16} Accordingly, Taylor’s convictions had been final for approximately seven years when he filed his motion to vacate a void conviction on February 18, 2022. Nevertheless, and w ithout providing any support for his argument, Taylor argues that the Oh i o Supreme Court’s decision in Smith , issued in February 2022, should be retroactively applied to render his convictions void. However, as previously stated, new judicial ruling s may only be applied to cases that are pending on the announcement date, and the new judicial ruling may not be applied retroactively to a conviction that has become final because the accused has exhausted all of his appellate remedies. Greathouse at ¶ 6 . Beca use Taylor’s convictions became final in 201 5, he cannot avail himself of the Ohio Supreme Court’s holding in Smith , which was decided in 2022. {¶ 17} Taylor’s first assignment of error is overruled. {¶ 18} Taylor’s second assignment of error states : THE APPELLA NT WAS DENIED HIS RIGHT TO A FAI R TRIAL AND DUE PROCESS OF LAW AS GURANTEED BY THE SIXTH AND FOURTEENTH AMENDMENT[S] OF THE UNITED STATES CONSTITUTION WHEN THE STATE KNOWINGLY USED FALSE EVIDENCE TO OBTAIN HIS CONVICTION. {¶ 19} Taylor argues that the test imony of Louise Tamlyn, a State’s witness at trial, was completely unreliable because she perjured herself when she identified Taylor as the perpetrator of the shooting. Taylor also contends that the State was aware that Tamlyn- 11

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was lying but still permitt ed her to testify. {¶ 20} Upon review, we agree with the trial court and conclude that issues raised by Taylor regarding Tamlyn’s testimony in his motion for leave to file a delayed motion for new trial were barred by the doctrine of res judica ta, as he could h ave raised those issue s in his direct appeal and raised similar issues in other post

- convictions motions. See State v. Videen , 2d Dist. Montgomery No. 27479, 2017

- Ohio

- 8608, ¶ 20, citing State v. Russell , 10th Dist. Franklin No. 04AP

- 1149, 2005

- Ohio

- 4063, ¶ 6

- 7 (finding res judicata barred appellant from raising issues in his motion for new trial that could have bee n raised in his direct appeal). Significantly, the record establishes that Taylor did raise arguments relating to the prosecuto r’s remarks duri ng trial about Tamlyn’s credibility in his reopened appeal. See Taylor II at ¶ 35

- 51. In the reopened appeal, Taylor also made arguments relating to the credibility of witnesses in general, as well as a manifest weight argument. Id

. Accordingly, the tria l court did not err when it held that Taylor’s arguments were barred by res judicata

. {¶ 21} Because they are interrelated, Taylor’s third and fourth assignment s of error will be discussed together as follows:

THE ADULT COURT ERRED TO THE PREJUDICE OF APPELLANT B Y PLACING ON HIM THE BURDEN OF PROVING THE DEFENSE OF ALIBI BEYOND A REASONABLE DOUBT, THEREBY, VIOLATING THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. THE ADULT COURT ABUSED ITS DISCRETION AND DENIED- 12

- APPELLANT HIS R IGHT TO FUNDAMENTAL FAIRNESS AND DUE PROCESS AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTION[S] WHEN IT DENIED HIS MOTION FOR LEAVE TO FILE A DELAYED MOTION FOR NEW TRIAL. {¶ 22} In his third assignment, Taylor argues that the trial court erred when it i mproperly instructed the jury by suggesting that Taylor had the burden of proving his alibi defense beyond a reasonable doubt. In his fourth assignment, Taylor argues that the trial court erred when it found that his motion for leave to file a delayed mot ion for new trial was untimely. As previously stated, Taylor was found guilty of the offenses by a jury on March 10, 2010. Taylor did not file his motion for leave to file a delayed motion for new trial until January 26, 2022, over 11 years beyond the 14

- day time limitation for filing a motion for new trial. {¶ 23} Crim.R. 33(B) states as follows: (B) Motion for New Trial; Form, Time. Application for a new trial shall be made by motion which, except for the cause of newly discovered evidence, shall be filed with in 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 tri al, 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.- 13

- {¶ 24} Regarding a hearing on a motion for leave to file a motion for a new trial, this Court has noted:

* * * We have held that a defendant is entitled to such a hearing if he submits “documents that on their face support his claim that he was unavoidably prevented from timely discovering the evidence” at issue. State v. York

, [2d Dist. Greene No. 19 99

- CA

- 54, 2000 WL 192433 (Feb. 18, 2000)], citing State v. Wright (1990), 67 Ohio App.3d 827, 828 * * * (finding affidavits sufficient to warrant a hearing on whether the defendant was unavoidably prevented from disco vering the facts upon which his request for a new trial relied). Notably, the documents at issue in York and Wright were affidavits from prosecution witnesses recanting their trial testimony against the defendant. State v. McConnell, 170 Ohio App.3d 800, 2 007

- Ohio

- 1181, 869 N.E.2d 77, ¶ 19 (2d Dist.). {¶ 25} 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. 20 01

- CA

- 33, 2002 WL 1585663, *2 (July 19, 2002); State v. Parker , 178 Ohio App.3d 574, 2008

- Ohio

- 5178, 899 N.E.2d 183, ¶ 16 (2d Dist.). “To obtain leave, def endant 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

-

(Citations omitted.) Warwick at *2. “A defendant is entitled to a hearing on a motion for leave to seek a new trial if he submits documents that on their face support his claim of being unavoidably prevented from meeting Crim.R. 33’s time requirement.” State v. Hiler , 2d Dist. Mont gomery No. 27364, 2017

- Ohio

- 7636, ¶ 12, citing Lanier at ¶ 16. {¶ 26} “ ‘[A] party is unavoidably prevented from filing a motion for new trial if the party had no knowledge of the existence of the ground supporting the motion for new trial and could not have lear ned of the existence of that ground within the time prescribed for filing the motion for new trial in the exercise of reasonable diligence.’ ” Parker at ¶ 16, quoting State v. Walden , 19 Ohio App.3d 141, 145

- 146, 483 N.E.2d 859 (10th Dist.1984). “[A] defe ndant fails to demonstrate that he or she was unavoidably prevented from discovering new evidence when he would have discovered that information earlier had he or she exercised due diligence and some effort.” State v. Lenoir , 2d Dist. Montgomery No. 26846 , 2016

- Ohio

- 4981, ¶ 24, citing State v. Metcalf , 2d Dist. Montgomery No. 26101, 2015

- Ohio

- 3507, ¶ 11. {¶ 27} Normally, “[w]e review a trial court's ruling on a Crim.R. 33 motion for an abuse of discretion.” State v. Thompson , 2d Dist. Montgomery No. 25016, 2012

- Ohio

4862, ¶ 7. “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp ., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (19 90). {¶ 28} The evidence on which Taylor relied in support of his motion for leave to file a delay ed motion for new trial consisted of the following: 1) the trial testimony of Tamlyn,- 15

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which Taylor alleges was perjured; 2) the prosecutor’s remarks in opening statements and closing arguments regarding Tamlyn’s testimony; and 3) the trial court’s instruction to the jury regarding Taylor’ s alibi defense. Here, Taylor contends that he was unavoidably prevented from filing his motion for leave within 14 days because it took him over two months to obtain a copy of the trial transcript. We have already addressed this issue in State v. Hutchi nson , 2d Dist. Montgomery No. 17852, 2000 WL 262650 (Mar. 10, 2000). In Hutchinson , we held that obtaining a copy of a transcript before filing a motion for a new trial is not sufficient proof to show any petitioner was unavoidably prevented from filing a timely motion for a new trial. Id

. We also stated : Although Hutchinson said he was i ndigent and was not entitled to free transcripts of the proceedings until his direct appeal was filed, he was in the same position as any other indigent defendant. For that matter, Hutchinson was in the same position as any convicted defendant. Due to th e short time limits for filing motions for new trial, the transcript of the trial proceedings is typically unavailable, even to litigants who can pay. Furthermore, the transcript is not needed...[and as] a final point, we note that both the trial court and t he litigants ought to be familiar with the evidence in a case which has just been heard. Id . at *7. {¶ 29} Here , the record establishes that Taylor was present during the entirety of his jury trial, so he was aware of the statements made by all pa rties, includi ng the witnesses and the prosecuting attorneys, and of the trial court’s jury instructions.- 16

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Furthermore, the record establishes that he and his trial counsel were provided a copy of the jury instructions prior to their bei ng read to the jury, and the vers ion of the alibi instruction given by the trial court was requested by Taylor and given without objection. See 2 O hio J ury Instructions CR 421.03. 2 We also note that any issues regarding the jury instructions could have been argued by Taylor in his direc t appeal from his convictions, but were not, and are therefore barred by res judicata. {¶ 30} Finally, Taylor’s “juvenile status” at the time of his trial cannot form the basis for an excuse from filing a timely motion for leave to file a motion for new trial pursuant to Crim.R. 33(B). {¶ 31} In light of the foregoing, we find that the trial court did not err when it held that Taylor’s motion for leave to file a delayed motion for new trial was untimely, and that he failed to establish that he was unavoidably preven ted filing said motion in a timely

manner. {¶ 32} Taylor’s third and fourth assignment s of error are overruled. {¶ 33} All of Taylor’s assignments of error having been overruled, the judgmen t of the trial court is affirmed

.

. . . . . . . . . . . . .

2 “ 1. The defendant claims that he was at some other place at the time the offense occurred. This is known as an alibi. The word ‘alibi’ means elsewhere or a different place. If the evidence fails to establish that the defenda nt was elsewhere, such failure does not create an inference that the defendant was present at the time when and at the place where an offense may have been committed. If, after a consideration of the evidence of alibi along with all the evidence, you are not convinced beyond a reasonable doubt that the defendant was present at the time in question, you must return a verdict of not guilty. ”- 17

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EPLEY , J. and LEWIS , J. , concur.

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Gudonavon J. Taylor Hon. Robert G. Hanseman Hon. William H. Wolff, Jr., Visiting Judge