[Cite as State v. Taylor,
2023-Ohio-2995.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 21CA14
v. :
DARRYL D. TAYLOR, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Darryl D. Taylor, Caldwell, Ohio, pro se.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and
Andrea M. Kratzenberg, Assistant Prosecuting Attorney, Ironton,
Ohio, for appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:8-22-23
ABELE, J.
{¶1} This is an appeal from a Lawrence County Common Pleas
Court judgment that overruled a pro se motion for a new trial.
Darryl Taylor, defendant below and appellant herein, assigns three
errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL JUDGE ERRED TO THE PREJUDICE OF THE
DEFENDANT WHEN HE PRESIDED OVER THE LEGALITY OF
A SEARCH WARRANT THAT HE ISSUED AND OVER THE
MOTION TO SUPPRESS HEARING.”
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LAWRENCE, 21CA14
SECOND ASSIGNMENT OF ERROR:
“JUDGE COOPER AND GENE MEADOWS CONSPIRED TO
DENY THE APPELLANT HIS CONSTITUTIONAL RIGHT TO
A FAIR AND IMPARTIAL TRIAL.”
THIRD ASSIGNMENT OF ERROR:
“TRIAL JUDGE MISREPRESENTED THE TRUTH WHEN HE
CLAIMED HE HELD A MOTION TO SUPPRESS HEARING ON
APRIL 3, 2015.”
{¶2} We review the facts and procedural history of this case
by referring to State v. Taylor, 4th Dist. Lawrence No. 19CA24,
2021-Ohio-585 (Taylor II). In 2015, a jury found appellant guilty
of: (1) drug trafficking in the presence of juveniles in violation
of R.C. 2925.03(A)(1)(C)(1)(c), a second-degree felony, (2) two
counts of drug trafficking in violation of R.C.
2925.03(A)(1)(C)(1)(c), third-degree felonies, and (3) one count of
drug trafficking in violation of R.C. 2925.03(A)(2)(C)(1)(c), a
third-degree felony. The trial court sentenced appellant to serve
13 years in prison. Taylor II at ¶ 2.
{¶3} On April 27, 2016, this court affirmed the trial court’s
judgment in part, reversed in part, and remanded for limited
resentencing. See State v. Taylor, 4th Dist. Lawrence No. 15CA12,
2016-Ohio-2781 (Taylor I). In particular, we affirmed appellant’s
convictions, but concluded that the trial court failed to advise
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LAWRENCE, 21CA14
appellant of postrelease control at the sentencing hearing. Id. at
¶ 41, citing State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238,
942 N.E.2d 332, ¶ 27-29, State v. Triplett, 4th Dist. Lawrence No.
10CA35,
2011-Ohio-4628, ¶ 4. On May 25, 2016, the trial court
resentenced appellant to serve a 13-year prison term.
{¶4} On March 5, 2019, appellant filed a pro se “motion to
vacate void judgment,” and argued that the court must vacate “void
portions of the judgment of conviction based upon lack of subject
matter jurisdiction.” On September 19, 2019, the trial court
overruled the motion. On appeal, this court affirmed the trial
court’s judgment. Taylor II at ¶ 14.
{¶5} In a separate case (Case No. 21CA13), on July 16, 2021
appellant filed a pro se “Motion to Suppress” and a pro se “Motion
for a Franks Hearing.” Appellant argued that the trial court
should “grant a Motion to Suppress hearing or New Trial based on
trial court erred to the prejudice of the defendant when it held a
motion to suppress hearing without defendant being present
violating his due process rights.” Appellant claimed he did not
attend his suppression hearing and did not waive his right to
attend. Appellant’s “Motion for a Franks Hearing” asserted that an
affidavit is “based upon knowingly false and misleading statements
without regard for the truth by affiant(s) in the arrest warrant
4
LAWRENCE, 21CA14
affidavit(s) and violation of due process rights.” Appellant
argued this affidavit intentionally misled authorities to issue an
arrest warrant.
{¶6} After consideration, the trial court denied both motions
and held that (1) appellant’s petitions are untimely pursuant to
R.C. 2953.23, and (2) appellant failed to satisfy either
requirement outlined in R.C. 2953.23(A)(1) and (2). Further, the
court held that res judicata bars appellant from raising these
issues in petitions for postconviction relief because he either
raised, or could have raised, the issues on direct appeal.
{¶7} After this court affirmed the trial court’s decision that
overruled appellant’s motion (Taylor II), appellant filed a motion
for a new trial. The trial court overruled that motion and noted
that (1) the motion is untimely pursuant to Crim.R. 33(B), and (2)
the doctrine of res judicata barred appellant from raising issues
that he either raised, or could have raised, on direct appeal.
This appeal followed.
I.
{¶8} In this appeal of the denial of appellant’s pro se motion
for new trial, he raises three assignments of error for review.
Although appellant’s arguments do not directly address the denial
of the motion for new trial, the trial court denied the untimely
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LAWRENCE, 21CA14
motion.
{¶9} Ordinarily, trial courts possess broad discretion to rule
on a motion for leave to file a new trial motion. State v.
Landrum, 4th Dist. Ross No. 17CA3607, 2018-Ohio-1280, ¶ 10, citing
State v. Bennett, 4th Dist. Scioto No. 16CA3765,
2017-Ohio-574;
State v. Gavin,
2022-Ohio-1287,
188 N.E.3d 230, ¶ 11 (4th Dist.).
Moreover, “[a]n appellate court applies an abuse of discretion
standard in reviewing a trial court's denial of a motion for leave
to file a delayed motion for new trial.” State v. Seal, 2017-Ohio-
116,
75 N.E.3d 1035, ¶ 9 (4th Dist.), quoting State v. Hoover–
Moore,
2015-Ohio-4863,
50 N.E.3d 1010, ¶ 14 (10th Dist.).
Appellate courts also apply the abuse of discretion standard of
review to review (1) a trial court's decision whether to conduct an
evidentiary hearing on a motion for leave to file a delayed motion
for new trial; and (2) a court’s ultimate decision to grant, or to
deny, the underlying motion for new trial. Id.; State v. Jones,
9th Dist. Summit No. 26568,
2013-Ohio-2986, ¶ 8. In general, an
abuse of discretion implies that a court's decision is arbitrary,
unconscionable, or unreasonable. State v. Minton,
2016-Ohio-5427,
69 N.E.3d 1108, ¶ 19 (4th Dist.).
{¶10} Pursuant to Crim.R. 33(B), a motion for new trial “shall
be filed within fourteen days after the verdict was rendered …
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LAWRENCE, 21CA14
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 appellant was
unavoidably prevented from filing such motion within the time
provided herein.” 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 … [or] 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.”
{¶11} In his first assignment of error, appellant asserts that
the trial court erred to his prejudice when it presided over both
the issuance of the search warrant and the subsequent suppression
motion.1 As appellee notes, however, appellant does not allege
1
It appears appellant believes that a judge who issued a
search warrant is prohibited from subsequently ruling on the
warrant’s validity, and to do so is inherently prejudicial and
constitutes reversible error. However, the Supreme Court of Ohio
has determined that, absent evidence that a judge will consider the
evidence in any manner other than fairly or impartially, the fact
that a trial judge authored a warrant does not require the
disqualification of that judge when ruling on the warrant’s
validity. State v. Kidd, 2nd Dist. Clark No. 2016-CA-87, 2017-Ohio-
6996, citing In Re Disqualification of Basinger (1996), 77 Ohio
St.3d 1237,
674 N.E.2d 351. See, also, State v. Donald, 7th Dist.
Mahoning No. 09-MA-172,
2011-Ohio-3400; State v. Simmons, 12th Dist.
Warren No. CA 2004-11-138,
2005-Ohio-7036. Admittedly, it may be a
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LAWRENCE, 21CA14
that any newly discovered evidence exists. Consequently,
appellant’s motion for new trial is untimely and we believe the
trial court properly denied the motion.
{¶12} Accordingly, based upon the foregoing, we overrule
appellant’s first assignment of error.
II.
{¶13} In his second assignment of error, appellant asserts that
better practice, when possible, for judges to choose not to hear
motions to suppress that involve search warrants that they
themselves issued. However, recusal is not mandatory absent
unusual circumstances. See, also, State v. Healy, 6th Dist. Wood
No. C.A. WD-80-29, 1981 WL 5497 (Feb.27, 1981) (due process did not
require the trial judge to decline consideration of a defendant’s
motion to suppress solely because the same judge issued the
warrant), State v. Chamberlin,
161 Wash.2d 30,
162 P.3d 389 (2007)
(no violation of due process or judicial ethics where judge
presided over motion to suppress under a search warrant the judge
issued; appellate review is a potential check against any bias);
People v. Antoine,
335 Ill.App.3d 562,
781 N.E.2d 444 (2002) (mere
fact that trial judge presided over warrant proceedings and issued
the search warrant did not establish bias or prejudice), State v.
Smith,
113 N.J. Super. 120,
273 A.2d 68 (1971) (nothing prevents
trial judge from issuing search warrant and ruling on validity;
action in issuing search warrant is ex parte whereas motion
proceeding is adversarial), Peaper v. State,
14 Md.App. 201,
286
A.2d 176 (1972) (absent a showing of bias or prejudice, mere fact
that judge issued the warrant would not preclude him from presiding
at a suppression hearing or at trial), Trussell v. State,
67
Md.App. 23,
506 A.2d 255 (1986) (judge who issued search warrant
was not required to recuse from ruling on suppression motion),
State v. Heard,
574 So.2d 873 (Ala. Ct.Crim.App.1990) (absent a
showing of prejudice, an issuing magistrate may properly serve as
the trial judge on the same cause), Castillo v. State,
761 S.W.2d
495 (Tex.Ct. App. 1988) (no basis for disqualification when
presiding judge over suppression motion issued the warrant).
8
LAWRENCE, 21CA14
the trial court and his trial counsel “conspired to deny the
appellant his constitutional right to a fair and impartial trial.”
{¶14} Prior to appellant’s trial, it appears that counsel filed
a motion to withdraw as counsel. At the hearing on the motion,
counsel stated that appellant wanted him to file a motion to
suppress evidence that counsel believed, however, to be completely
without merit. Nevertheless, at the hearing the court suggested
that counsel file the motion.
{¶15} Subsequently, the trial court denied appellant’s motion
to suppress evidence. Appellant now argues that (1) it is obvious
that the trial court “already had his mind made up” regarding his
ruling, and (2) “counsel will do anything the judge requests, even
if that means selling out his client.” Appellant further complains
that his motion was so deficient that defense counsel did not
function as appellant’s advocate.
{¶16} Once again, we point out that appellant’s motion for new
trial is untimely. Moreover, res judicata bars appellant’s claims.
Finally, we find no merit in appellant’s claims of bias. Counsel
initially attempted to withdraw, apparently because appellant
pressured him to file questionable motions. Rule 3.1 of the Ohio
Professional Rules of Conduct states that “[a] lawyer shall not
bring or defend a proceeding, or assert or controvert an issue in a
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LAWRENCE, 21CA14
proceeding, unless there is a basis in law and fact for doing so
that is not frivolous ….” Further, when counsel sought to
appease appellant and file the motion to suppress, appellant
complained about the motion.
{¶17} Although appellant does not explicitly raise the issue of
ineffective assistance of counsel, we point out that a criminal
defendant's constitutional right to effective assistance of counsel
does not require an attorney to file a motion to suppress in every
case. State v. Madrigal, 87 Ohio St.3d 378, 389,
721 N.E.2d 52
(2000). Instead, counsel is required to file a motion when
reasonable grounds exist. State v. Belknap, 11th Dist. Portage No.
2002–P–0021,
2004-Ohio-5636, ¶ 19. Regardless, in the case sub
judice trial counsel did, in fact, file a motion. However, the
trial court denied the motion, not because of counsel’s
incompetence but because the motion failed on the merits. This
court affirmed the trial court’s judgment in Taylor I.
{¶18} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III.
{¶19} In his final assignment of error, appellant asserts that
the trial court misrepresented the truth when it held a motion to
suppress hearing on April 3, 2015.
10
LAWRENCE, 21CA14
{¶20} Initially, we point out that not all motions to suppress
under Crim.R. 12(E) require a hearing for disposition. State v.
Robson, 2006-Ohio-628,
847 N.E.2d 1233, ¶ 18 (4th Dist.). Although
the transcript for the suppression hearing is not in the record,
the trial court’s judgment that overruled the suppression motion
states, “Defendant’s motion to suppress came on for hearing before
the Court with the Defendant, Defense Counsel and Prosecuting
Attorney present and before the Court.” Absent affirmative proof
of material facts of a prejudicial nature, we must presume the
regularity of trial court proceedings. Moreover, although
appellant’s assignments of error do not directly address his motion
for new trial, as we note above trial courts possess broad
discretion to rule on motions for leave to file a new trial motion.
Landrum, supra, at ¶ 10. Here, the trial court concluded that
appellant’s motion for new trial is (1) untimely pursuant to
Crim.R. 33(B), and (2) barred by res judicata. As appellee notes,
res judicata bars appellant’s motion for a new trial because he
could have raised this issue in a prior action.
Gavin, supra.
{¶21} Accordingly, based upon the foregoing reasons, we
overrule appellant’s assignment of error and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED.
[Cite as State v. Taylor, 2023-Ohio-2995.]
LAWRENCE, 21CA14
12
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Lawrence County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.
