[Cite as State v. Taylor,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case Nos. 29422 and 29423 : v. : Trial Court Case No. 2008-CR-1087 : GUDONAVON J. TAYLOR : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 7th day of October, 2022.

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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

GUDONAVON J. TAYLOR, Inmate No. A627-232, Trumbull Correctional Institution, P.O. Box 901, Leavittsburg, Ohio 44430 Defendant-Appellant, Pro Se

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

DONOVAN, J. -2-

{¶ 1} Defendant-appellant 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 notices 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. 28276,

, 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 premises, 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 trial 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. Nos. 29422 and 29423. We have consolidated the appeals. -3-

No. 23990,

(“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,

(“Taylor III”).

While Taylor III was pending, Taylor filed a pro se “motion 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,

(“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 disagreed 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 the trial court did not err in overruling

his motion for resentencing because his 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 Dist.

Montgomery No. 28276,

. (“Taylor V”). Rather,

we held that the trial court properly advised appellant of the single, longest

term of post-release control that applied.

Motion for Leave to File a Delayed Motion for New Trial

{¶ 3} On 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 using 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 committed 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} On February 24, 2022, the trial court overruled Taylor’s motion for leave to

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 motion 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 trial 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-

void a conviction, the trial court distinguished the main case relied upon by Taylor, State

v. Smith,

,

, __ N.E.3d __, finding that the common

pleas court 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 Taylor 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 COURT 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 court 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. 2152.12 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 rehabilitation -7-

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 court 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 conducted 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 were 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 time, was charged by complaint in the juvenile court for two counts of murder, with a -8-

firearm specification on count 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 finding of probable cause, Taylor was indicted on April 7, 2008, for three counts

of murder, two counts of felonious assault, and one count of having weapons while under

disability; each of the six counts carried a firearm specification. On April 18, 2008, Taylor

was indicted for an additional count of discharge of a firearm on or near prohibited

premises, with a firearm specification.

{¶ 13} In our view, since Taylor was bound over by the juvenile court after it had

found probable cause for the two murder counts and the firearm specification (the only

charges 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 court did have jurisdiction over 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 noted 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 premises. All of these offenses occurred on the same day as the

murder on December 7, 2007, and involved the same firearm as the murder.

{¶ 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,

, citing Ali v. State,

,

,

; State v. Smith, 2d Dist. Montgomery No. 27294,

. In

Taylor’s case, 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,

, appeal not -10-

accepted for review, State v. Taylor,

,

, 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 without providing any support for his argument, Taylor argues that the

Ohio 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

rulings 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. Because Taylor’s convictions became final in 2015, 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 APPELLANT WAS DENIED HIS RIGHT TO A FAIR 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 testimony 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-

was lying but still permitted 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 judicata, as he could have raised those issues

in his direct appeal and raised similar issues in other post-convictions motions. See State

v. Videen, 2d Dist. Montgomery No. 27479,

, citing State v. Russell,

10th Dist. Franklin No. 04AP-1149,

(finding res judicata barred

appellant from raising issues in his motion for new trial that could have been raised in his

direct appeal). Significantly, the record establishes that Taylor did raise arguments

relating to the prosecutor’s remarks during 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.

Accordingly, the trial 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 assignments of error

will be discussed together as follows:

THE ADULT COURT ERRED TO THE PREJUDICE OF

APPELLANT BY 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 RIGHT 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

improperly 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 motion 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 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. -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. 1999-CA-54,

(Feb. 18,

2000)], citing State v. Wright (1990),

, 828 * * * (finding

affidavits sufficient to warrant a hearing on whether the defendant was

unavoidably prevented from discovering 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,

,

,

(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,

, ¶ 15,

citing State v. Warwick, 2d Dist. Champaign No. 2001-CA-33,

, *2 (July

19, 2002); State v. Parker,

,

,

(2d Dist.). “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-

(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. Montgomery No. 27364,

, 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 learned of the existence of that ground within the time prescribed for

filing the motion for new trial in the exercise of reasonable diligence.’ ”

,

quoting State v. Walden,

,

(10th Dist. 1984).

“[A] defendant 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,

, citing State v. Metcalf, 2d Dist. Montgomery No. 26101,

.

{¶ 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.,

,

(1990).

{¶ 28} The evidence on which Taylor relied in support of his motion for leave to file

a delayed motion for new trial consisted of the following: 1) the trial testimony of Tamlyn, -15-

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. Hutchinson, 2d Dist. Montgomery No. 17852,

(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.

We also stated:

Although Hutchinson said he was indigent 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

the 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 the 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 parties, including the

witnesses and the prosecuting attorneys, and of the trial court’s jury instructions. -16-

Furthermore, the record establishes that he and his trial counsel were provided a copy of

the jury instructions prior to their being read to the jury, and the version of the alibi

instruction given by the trial court was requested by Taylor and given without objection.

See 2 Ohio Jury Instructions CR 421.03.2 We also note that any issues regarding the

jury instructions could have been argued by Taylor in his direct 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 prevented filing said motion in a timely

manner.

{¶ 32} Taylor’s third and fourth assignments of error are overruled.

{¶ 33} All of Taylor’s assignments of error having been overruled, the judgment 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 defendant 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-

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