State v. Hake

[Cite as State v. Hake, 2019-Ohio-1402.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO PREBLE COUNTY STATE OF OHIO, : Appellee, : CASE NO. CA2018-08-011 : OPINION - vs - 4/15/2019 : NATHANIEL WILLIAM HAKE, : Appellant. : CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 12CR11095 Martin P. Votel, Preble County Prosecuting Attorney, Preble County Court House, 101 E. Main Street, Eaton, OH 45320, for appellee George A. Katchmer, 1886 Brock Road, N.E., Bloomingburg, Ohio, 43601, for appellant RINGLAND, J. {¶ 1} Appellant, Nathan Hake, appeals a decision of the Preble County Court of Common Pleas denying his petition for postconviction relief. For the reasons detailed below, we affirm. {¶ 2} On November 5, 2012, Hake was indicted on one count of forgery in violation of R.C. 2913.31(A)(1), a fifth-degree felony. Hake requested and was permitted five separate continuances. On November 22, 2013, Hake's initial trial counsel was granted leave to Preble CA2018-08-011 withdraw and the matter was continued again. Hake filed a pro se motion to continue on January 23, 2014. That same day Hake's new trial counsel filed a notice of appearance, conditioned on the grant of Hake's continuance. The trial court "reluctantly" granted Hake's motion but expressed concern that Hake was manipulating trial procedure. In its written entry, the trial court advised Hake that there would be no additional continuances.1 {¶ 3} On April 14, 2014, the morning of trial, Hake's new trial counsel moved to withdraw because he had learned that Hake had attempted to tamper with a state's witness by negotiating the settlement of a related civil claim in exchange for the victim's promise not to appear or testify in the criminal trial. Based on those circumstances, Hake's new trial counsel was permitted to withdraw, but remained as shadow counsel. {¶ 4} During trial, Hake sought to play a CD recording of a voicemail the victim left on his phone. Hake alleges that the voicemail provides exculpatory evidence of his guilt. However, for reasons not clear in the record, the CD could not be found. Following the close of evidence, the jury found Hake guilty and the trial court sentenced him to 120 days in jail and ordered him to serve three years of community control. Hake appealed his conviction but failed to file a transcript of proceedings and the appeal was eventually dismissed due to his failure to prosecute. State v. Hake, 12th Dist. Preble No. CA2014-06-003 (Sept. 18, 2014) (Entry of Dismissal). {¶ 5} On November 22, 2017, Hake filed a petition for postconviction relief. In his petition, Hake alleged that the Preble County Clerk of Court's office had recently discovered the missing CD and he was entitled to a new trial based on the "newly discovered evidence." The trial court denied Hake's petition and he now appeals, raising two assignments of error 1. The trial court also presciently noted that Hake's request for a continuance may be yet another attempt to manipulate the trial procedure because ...

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