[Cite as State v. Shuster, 2017-Ohio-2776.]


                                        COURT OF APPEALS
                                      MORGAN COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                      :   Hon. John W. Wise, J.
                                                :   Hon. Earle E. Wise, Jr., J.
 -vs-                                           :
                                                :   Case No. 16AP0012
                                                :
 MICHAEL SHANE SHUSTER                          :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Morgan County Court
                                                    of Common Pleas, Case No.12-CR-
                                                    0008



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             May 11, 2017




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 MARK J. HOWDYSHELL                                 MICHAEL SHANE SHUSTER, PRO SE
 MORGAN CO. PROSECUTOR                              CCI, Inmate No. A685-632
 19 East Main Street                                P.O. Box 5500
 McConnellsville, OH 43756                          Chillicothe, OH 45601
Morgan County, Case No. 16AP0012                                                             2

Delaney, P.J.

       {¶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
Morgan County, Case No. 16AP0012                                                            3


to rule during the pendency of the appeals described supra. The trial court also found

appellant failed to file an affidavit with the motion in violation of Crim.R. 33(C). After the

appeals were determined, appellant filed a sworn affidavit of the same juror, arguing it

was a substitute for the previous unsworn affidavit, and filed motions to amend and

supplement the motion for new trial. The trial court denied appellant’s motion for new trial

based upon juror misconduct, a decision we affirmed in State v. Shuster, 5th Dist. Morgan

No. 15AP0017, 2016-Ohio-5030 [Shuster III], appeal not allowed, 148 Ohio St.3d 1426,

2017-Ohio-905, 71 N.E.3d 298.

       {¶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).
Morgan County, Case No. 16AP0012                                                           4


       {¶9} “II.     IT WAS EVIDENCE OF BIAS AND PREJUDICE AGAINST

DEFENDANT FOR TRIAL COURT TO ISSUE A SECOND JOURNAL ENTRY;

OVERRULING AND DENYING DEFENDANT’S MOTION FOR NEW TRIAL. IN FACT,

AS SUPPORTED IN DEFENDANT’S MOTION FOR NEW TRIAL, THERE WERE

NUMEROUS INSTANCES OF TAINT OR A LEVEL OF PREJUDICE AGAINST

DEFENDANT. HE DID NOT RECEIVE A FAIR TRIAL AND IMPARTIAL PROCEEDINGS

AT MANY STAGES.” (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} Crim.R. 33 governs new trials. A motion for a new trial made pursuant to

Crim.R. 33 is addressed to the sound discretion of the trial court, and may not be reversed

unless we find an abuse of discretion. State v. Schiebel, 55 Ohio St.3d 71, 75, 564 N.E.2d

54 (1990). It is also within the discretion of the trial court to determine whether a motion

for a new trial and the material submitted with the motion warrants an evidentiary hearing.

State v. Hill, 64 Ohio St.3d 313, 333, 595 N.E.2d 884 (1992). An abuse of discretion

implies that the trial court's judgment is arbitrary, unreasonable, or unconscionable. State

v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987).
Morgan County, Case No. 16AP0012                                                           5


      {¶13} Appellee argues appellant’s motion for leave to file a motion for new trial

was untimely. Crim.R. 33(B) states:

                    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 Crim.R. 33 but no argument has been made that appellant was

unavoidably prevented from the discovery of the evidence upon which he relies.
Morgan County, Case No. 16AP0012                                                             6


“Although a defendant may file his motion for a new trial along with his request for leave

to file such motion, ‘the trial court may not consider the merits of the motion for a new trial

until it makes a finding of unavoidable delay[.]’” State v. Brown, 8th Dist. Cuyahoga No.

95253, 2011-Ohio-1080, ¶ 14 (quoting State v. Stevens, 2nd Dist. Montgomery Nos.

23236, 23315, 2010-Ohio-556, ¶ 11). “Unavoidable delay results when the party had no

knowledge of the existence of the ground supporting the motion for a new trial and could

not have learned of the existence of that ground within the required time in the exercise

of reasonable diligence.” State v. Rodriguez–Baron, 7th Dist. Mahoning No. 12–MA–44,

2012-Ohio-5360, ¶ 11.

       {¶15} We conclude the reason for appellant’s omission is that his latest claims are

not properly raised in a Crim.R. 33 motion for new trial. In his reply brief, appellant fully

acknowledges this is not a case of newly-discovered evidence. This [second] motion for

new trial is premised upon allegations of prosecutorial misconduct and “abuse[s] of

discretion” appearing in the trial record.1 Appellant argues:

                     * * * *. 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




1Appellant at length points out his first motion for new trial was premised upon newly-
discovered evidence, i.e. the juror’s affidavit.
Morgan County, Case No. 16AP0012                                                            7


              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

Crim.R. 33, and rest not upon the tenets of the Rule but upon his invocation of “a matter

of justice.” The claims contained in his motion are cognizable from the trial record and

are barred by the doctrine of res judicata, which may be applied to bar further litigation in

a criminal case of issues which were raised previously or could have been raised

previously in an appeal. State v. Johnson, 8th Dist. Cuyahoga No. 80247, 2002-Ohio-

2712, ¶ 7.

       {¶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
Morgan County, Case No. 16AP0012                                                              8


denied, 107 Ohio St.3d 1695, 2005-Ohio-6763, 840 N.E.2d 202. Specifically, appellant

cites several comments during trial by prosecutors which he claims rise to the level of

prosecutorial misconduct. His arguments that the trial court abused its discretion arise

from the trial court’s decision overruling his motion to suppress, the length of his prison

term, the trial court’s failure to sua sponte inquire into the effect of pretrial publicity, and

the trial court’s decision overruling his first motion for new trial. Because appellant could

have raised these issues in his direct appeal, they are barred by res judicata. Id., citing

State v. Stark, 2nd Dist. Montgomery No. 19515, 2004-Ohio-670, at ¶ 7 [affirming

application of res judicata to deny defendant's claims of alleged trial error that should

have been raised on direct appeal]; State v. Palmer, 7th Dist. Belmont No. 96-BA-70,

1999 WL 979228 (Oct. 20, 1999) [affirming denial of motion for new trial based solely on

facts within trial record as res judicata].

       {¶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.
Morgan County, Case No. 16AP0012                                                   9


                                   CONCLUSION

       {¶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.
