State v. Short

<p>[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 : Appellate Case No. 28696 : v. : Trial Court Case No. 2004-CR-2635 : DUANE ALLEN SHORT : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ........... OPINION Rendered on the 23rd day of October, 2020. ........... 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 ............. TUCKER, P.J. -2- ¶ 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. -3- 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 ...</p><br>
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