[Cite as State v. Short, 2020-Ohio-5034.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

DUANE ALLEN SHORT 

Defendant-Appellant 

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Appellate Case No. 28696 

Trial Court Case No. 2004-CR-2635 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 23rd day of October, 2020. 

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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, Dayton, Ohio 45422

 Attorney for Plaintiff-Appellee 

 

KIMBERLY S. RIGBY, Atty. Reg. No. 0078245 and ERIKA M. LAHOTE, Atty. Reg. No. 

0092256, Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400, 

Columbus, Ohio 43215 

 Attorneys for Defendant-Appellant 

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TUCKER, P.J. 
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{¶ 1} Appellant Duane Allen Short appeals from a judgment of the Montgomery 

County Court of Common Pleas, which found that it was without jurisdiction to consider 

Short’s motion for a new mitigation trial. The trial court incorrectly concluded that it 

lacked jurisdiction. However, Short is not entitled to a new mitigation trial under the 

authority of Hurst v. Florida, 577 U.S. 92 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Thus, 

the trial court’s judgment will be affirmed. 

Facts and Procedural History 

{¶ 2} In 2004, Short was indicted for the aggravated murders of Rhonda Short, his 

estranged wife, and Donnie Sweeney. The murder indictments included aggravating 

circumstance specifications. The jury found Short guilty of the aggravated murders and 

the aggravating circumstance specifications. Further, following deliberations regarding 

the specifications, the jury unanimously found that the aggravating circumstances 

outweighed the mitigating factors, and therefore the jury recommended a death sentence. 

The trial court adopted the jury’s recommendation and sentenced Short to death. Short’s 

conviction and sentence were affirmed on direct appeal. State v. Short, 129 Ohio St.3d 

360, 2011-Ohio-3641, 952 N.E.2d 1121.1 

{¶ 3} In January 2017, Short filed a motion styled as a “* * * Motion For Leave To 

File A Motion For A New Mitigation Trial Pursuant To Criminal Rule 33 And Hurst v. 

Florida, And To Deem The Attached Motion Filed Instanter[.]” Attached to the motion 

was a copy of the proposed motion seeking a new mitigation trial. In July 2017, the trial 

court sustained Short’s motion for leave to file a motion for a new mitigation trial. The 

 

1 In 2014, Short filed a petition seeking post-conviction relief, which was denied by the trial 

court. This court affirmed the trial court’s decision. State v. Short, 2d Dist. Montgomery 

No. 27399, 2018-Ohio-2429. 
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trial court’s order stated that “[Short] must file his motion for New Trial in a timely manner 

as provided by law.” 

{¶ 4} Thereafter, Short did not file a motion for a new trial with the Montgomery 

County Clerk of Courts. The parties, in December 2019, filed a motion styled as a “Joint 

Motion for Ruling on Motion for New Mitigation Trial[.]” The joint motion noted the trial 

court had conducted a telephone status conference with counsel during which Short’s 

attorneys informed the trial court that they “had assumed that attaching the Motion for 

New Trial to the Motion for Leave was sufficient for filing purposes.” On December 30, 

2019, the trial court filed a decision and order concluding that “Crim.R. 33(B) * * * requires 

that any motion for new trial be filed within seven days after a defendant is granted leave 

to file said motion. Short failed to file any motion for a new trial after the court granted 

him leave, and, as such, there is no timely motion for a new mitigation trial before this 

court, and the court lacks jurisdiction to consider an untimely motion for a new mitigation 

trial.” (Emphasis sic.) Based upon this jurisdictional conclusion, the trial court overruled 

Short's motion seeking a new mitigation trial. The trial court also noted that if the motion 

had been timely filed, it would have been overruled under the authority of State v. Mason, 

153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56. 

{¶ 5} Short appeals. 

Trial Court’s Jurisdiction to Decide Motion for New Mitigation Trial 

{¶ 6} As noted, the trial court concluded it was without jurisdiction to decide Short’s 
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motion seeking a new mitigation trial because, in contravention of Crim.R. 33(B),2 Short 

did not file a motion for a new mitigation trial within seven days of the trial court’s decision 

and order granting leave to file the motion. 

{¶ 7} Crim.R. 45(B) states in relevant part that a “court may not extend the time for 

taking any action under Rule 23, Rule 29, Rule 33, and Rule 34 except to the extent and 

under the conditions stated in them.” It seems that this language supports the trial 

court’s jurisdictional conclusion. But the Ohio Supreme Court’s decision in State v. Ross, 

128 Ohio St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992 suggests otherwise. 

{¶ 8} In Ross, the Ohio Supreme Court considered whether a trial court is without 

jurisdiction to “reconsider a timely made, but previously denied, motion for acquittal 

pursuant to Crim.R. 29(C), if the defendant after the 14 day deadline in that rule, renews 

the motion.” Id. at ¶ 12. Ross concluded that the Crim.R. 29(C)3 time limitations are 

appropriately characterized as “a rigid claim-processing rule” as opposed to a 

jurisdictional bar. Id. at ¶ 30.4 

 

2 Crim.R. 33(B) states in pertinent part: “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.” 

3 Crim.R. 29(C) states in pertinent part: “If a jury returns a verdict of guilty or is discharged 

without having returned a verdict, a motion for judgment of acquittal may be made or 

renewed within fourteen days after the jury is discharged or within such further time as 

the court may fix during the fourteen day period. * * * 

4 Ross ultimately concluded that, although not a jurisdictional bar, “the strict time 

limitations in Crim.R. 29 and 45(B) * * * do not permit a defendant to renew, outside 

Crim.R.29(C)’s limited time frame, [a motion] for acquittal when the motion has been 
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{¶ 9} In reaching this conclusion, the supreme court discussed and relied upon 

Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005). In that 

case, Eberhart filed a supplemental memorandum in support of a pending motion for a 

new trial under Fed.R.Crim.P. 33. The supplemental memorandum raised new grounds 

for the relief sought; thus, the supplemental memorandum constituted a new but untimely 

motion as to the newly raised grounds. The government did not object to the newly 

asserted grounds for a new trial as being untimely, but, instead, contested these grounds 

on the merits. The district court granted a new trial in part upon the basis of the untimely 

asserted grounds for relief. The Seventh Circuit reversed, concluding that the district 

court was without jurisdiction to consider the untimely asserted grounds for a new trial. 

The Supreme Court then reversed the Seventh Circuit’s judgment, stating: 

Rule 33, like Rule 29 * * *, is a claim-processing rule -- one that is admittedly 

inflexible because of [Fed.R.Crim.P.] 45(b)’s insistent demand for a definite 

end to proceedings. These claim-processing rules thus assure relief to a 

party properly raising them, but do not compel the same result if the party 

forfeits them. Here, where the Government failed to raise a defense of 

untimeliness until after the District Court had reached the merits, it forfeited 

the defense. 

Eberhart at ¶ 19. 

{¶ 10} Consistent with State v. Ross, we conclude that Crim.R. 33(B) and Crim.R. 

45(B) do not impose a jurisdictional bar that absolutely prevents a court from considering 

an untimely motion for a new trial. Instead, Crim.R. 33(B) and Crim.R. 45(B) create a 

 

previously denied.” Id. at ¶ 40. 
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“rigid claim-processing rule” that must be enforced if properly raised. Ross, 128 Ohio 

St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992, at ¶ 30. 

{¶ 11} Given this conclusion, the trial court had jurisdiction to consider Short’s 

motion for a new mitigation trial. The issue, then, is whether the State properly raised 

the defense that Short’s motion was not timely filed. We conclude, under the unique 

circumstances of this case, that the defense was not raised and, as such, was waived. 

{¶ 12} We reach this conclusion based upon the following language from the Joint 

Motion requesting the trial court to rule on Short’s motion: 

Without waiving any defenses on behalf of either party as to the 

timeliness of the filing of Short’s Motion for New Mitigation Trial or to the 

merits of the Motion for New Mitigation Trial or otherwise, the undersigned 

Assistant State Public Defenders, Kim Rigby and Erika LaHote, along with 

the undersigned Assistant Prosecuting Attorneys, Leon J. Daidone and 

Andrew T. French, jointly request that this Court rule on the Motion for New 

Mitigation Trial. The parties request that this Court rule on the Motion for 

New Mitigation Trial without affording further briefing to either party. All 

counsel also stipulates that the Ohio Supreme Court’s decision in State v. 

Mason, 153 Ohio St.3d 476, 2018-Ohio-1462 controls this case. 

This language requests a ruling on the merits, recognizing, however, that the trial court 

had to overrule the motion based upon Ohio Supreme Court case law. We recognize 

that the joint motion includes the statement that timeliness defenses were not being 

waived. But the State did not assert a timeliness objection, and this, in conjunction with 

the joint request for a ruling on the merits, leads to our waiver conclusion. Thus, the trial 
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court was not precluded by the rigid claims-processing rule from addressing the merits of 

Short’s new trial motion. 

Merits Discussion 

{¶ 13} Although the trial court concluded that it was without jurisdiction to consider 

Short’s motion, it noted that the motion was substantively without merit based upon State 

v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56. The trial court’s 

assessment was correct. 

{¶ 14} Short claims a right to a new mitigation trial under the authority of Hurst v. 

Florida, 577 U.S. 92 136 S.Ct. 616, 193 L.Ed.2d 504, which found that Florida’s capital 

sentencing structure violated the Sixth Amendment. The United States Supreme Court 

“determined that Florida’s death penalty scheme violated the Sixth Amendment [right to 

a jury] because it required the trial judge, not the jury, to find an aggravating circumstance 

that made [the] defendant death penalty eligible; thus, the jury was removed from the 

critical finding necessary for imposition of the death penalty.” State v. Chinn, 2d Dist. 

Montgomery No. 28345, 2020-Ohio-43, ¶ 14, citing Hurst at 622. 

{¶ 15} In Mason, the Ohio Supreme Court concluded that Ohio’s death penalty 

scheme does not suffer from the problem present in Hurst because, in Ohio, the jury is 

required to find the defendant guilty of the aggravating circumstance specification 

necessary for death penalty eligibility. Mason at ¶ 20. Given this, Short was not entitled 

to a new mitigation trial under the authority of Hurst. The trial court’s result was correct, 

albeit for a different reason. 

Conclusion 

{¶ 16} For the discussed reasons, the trial court’s judgment is affirmed. 
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FROELICH, J. and HALL, J., concur. 

Copies sent to: 

Mathias H. Heck, Jr. 

Andrew T. French 

Kimberly S. Rigby 

Erika M. LaHote 

Hon. Mary Katherine Huffman