STATE OF OHIO v. MICHAEL SHANE SHUSTER
Case No. 16AP0012
COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 11, 2017
2017-Ohio-2776
Hon. Patricia A. Delaney, P.J.; Hon. John W. Wise, J.; Hon. Earle E. Wise, Jr., J.
CHARACTER OF PROCEEDING: Appeal from the Morgan County Court of Common Pleas, Case No.12-CR-0008; JUDGMENT: AFFIRMED
For Plaintiff-Appellee:
MARK J. HOWDYSHELL MORGAN CO. PROSECUTOR 19 East Main Street McConnellsville, OH 43756
For Defendant-Appellant:
MICHAEL SHANE SHUSTER, PRO SE CCI, Inmate No. A685-632 P.O. Box 5500 Chillicothe, OH 45601
{¶1} Appellant Michael Shane Shuster appeals from the November 28, 2016 and December 7, 2016 Journal Entries of the Morgan County Court of Common Pleas overruling his motion for leave to file a motion for new trial. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant was tried and convicted upon multiple counts of gross sexual imposition, sexual battery, rape, and rape of a child under the age of 13 for offenses against a family member. The trial court sentenced appellant to an aggregate prison term of 105 years to life. Upon direct appeal, we affirmed the convictions and sentence. State v. Shuster, 5th Dist. Morgan Nos. 13AP0001, 13AP0002, 2014-Ohio-3486 [Shuster I], appeal not allowed, 141 Ohio St.3d 1489, 201-Ohio-842, 26 N.E.3d 824, reconsideration denied, 142 Ohio St.3d 1469, 2015-Ohio-1896, 30 N.E.3d 976, and cert. denied as Shuster v. Ohio, 136 S.Ct. 404, 193 L.Ed.2d 321 (2015). A comprehensive statement of the facts underlying appellant‘s convictions may be found in Shuster I.
{¶3} On February 20, 2014, appellant filed a petition for post-conviction relief arguing defense trial counsel should have made better use of the defense psychological expert, obtained a medical expert, and used a more experienced investigator. The trial court dismissed appellant‘s petition without a hearing, a decision we affirmed in State v. Shuster, 5th Dist. Morgan No. 14 AP 0003, 2014-Ohio-4144 [Shuster II], appeal not allowed, 142 Ohio St.3d 1409, 2015 -Ohio- 1099, 27 N.E.3d 539.
{¶4} On June 5, 2013, appellant filed a motion for new trial based upon juror misconduct, to which was attached an unsworn affidavit of a juror. A hearing was held on July 5, 2013, but the trial court denied the motion on the basis that it had no jurisdiction
{¶5} On November 4, 2016, appellant filed a Motion for Leave to File Motion for New Trial Instanter with Verified Motion for New Trial premised upon allegations of prosecutorial misconduct and “abuse of discretion” by the trial court. Appellee responded with a memorandum in opposition on November 17, 2016 and the trial court overruled appellant‘s motion by judgment entries dated November 28, 2016 and December 7, 2016.
{¶6} Appellant now appeals from the trial court‘s decisions overruling his motion for leave to file a motion for new trial.
{¶7} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶8} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION; WHEN IT OVERRULED AND DENIED DEFENDANT‘S PROPERLY FILED MOTION FOR NEW TRIAL, BASED ON PROSECUTORIAL MISCONDUCT AND ABUSE OF DISCRETION BY THE COURT, PREVENTING HIM FROM HAVING A FAIR TRIAL; WITHOUT EVEN HOLDING A HEARING.” (sic throughout).
{¶10} “III. THE TRIAL COURT ERRED BY FAILING TO ADDRESS THE MERITS OF THE PROSECUTORIAL MISCONDUCT AND ABUSE OF DISCRETION ALLEGED IN DEFENDANT‘S MOTION FOR NEW TRIAL.”
ANALYSIS
I., II., III.
{¶11} Appellant‘s three assignments of error are related and will be considered together. He argues the trial court erred in overruling his motion for leave to file a motion for new trial. We disagree.
{¶12}
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.
Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed 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.
{¶14} Appellant‘s motion for leave to file a motion for new trial is filed well outside the time limitations of
{¶15} We conclude the reason for appellant‘s omission is that his latest claims are not properly raised in a
* * * *. A Hearing, at least, should have been held in the interests of justice. However, we have only a non-specific technical denial [premised upon the fatal flaws on the face of appellant‘s motion] which failed to reach the merits of the claims. Once again, these claims were not based upon newly discovered evidence. Rather, these claims were prosecutorial misconduct and an abuse of discretion. There never was a claim that he was unavoidably
prevented. It was not a matter of timing. Rather, under the Rule, it was a matter of justice. See
Crim.R. 33(B) . * * * *.
Appellant‘s Brief, 12.
{¶16} Appellant‘s latest claims, though, are not properly raised pursuant to
{¶17} Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. State v. Szefcyk, 77 Ohio St.3d 93, 96, 671 N.E.2d 233, 1996-Ohio-337; State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Not only does res judicata bar appellant from raising issues that were raised in his direct appeal, it also bars issues that could have been raised in that appeal. Szefcyk, supra.
{¶18} Appellant‘s grounds for a new trial involve alleged irregularities that occurred during his trial and are part of the trial record, but he cites no reason why he was prevented from raising these issues in his direct appeal to this court. State v. Russell, 10th Dist. Franklin No. 04AP-1149, 2005-Ohio-4063, ¶ 7, motion for delayed appeal
{¶19} Accordingly, the trial court did not abuse its discretion when it denied appellant‘s motion for a new trial without a hearing. As to appellant‘s argument that the trial court should have issued findings of fact and conclusions of law in support of its judgment, it is well-established the trial court had no duty to issue findings of fact and conclusions of law upon denial of appellant‘s motion for a new trial. State ex rel. Collins v. Pokorny, 86 Ohio St.3d 70, 71, 1999-Ohio-343, 711 N.E.2d 683 (1999), citing State v. Girts, 121 Ohio App.3d 539, 565, 700 N.E.2d 395 (8th Dist.1997); State ex rel. Grove v. Nadel, 81 Ohio St.3d 325, 326, 691 N.E.2d 275 (1998).
{¶20} We find no abuse of discretion by the trial court in its decisions overruling appellant‘s motion for leave to file a motion for new trial. Appellant‘s three assignments of error are overruled.
{¶21} Appellant‘s three assignments of error are overruled and the judgment of the Morgan County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Wise, John, J. and
Wise, Earle, J., concur.