[Cite as State v. Dew, 2013-Ohio-2549.]

                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT


STATE OF OHIO,                                  )    CASE NO.     12 MA 18
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )
VS.                                             )    OPINION
                                                )
GREGORY DEW,                                    )
                                                )
        DEFENDANT-APPELLANT.                    )


CHARACTER OF PROCEEDINGS:                            Criminal Appeal from Common Pleas
                                                     Court, Case No. 07CR1262.


JUDGMENT:                                            Affirmed in part; Reversed and
                                                     Remanded in part.


APPEARANCES:
For Plaintiff-Appellee:                              Attorney Paul Gains
                                                     Prosecuting Attorney
                                                     Attorney Ralph Rivera
                                                     Assistant Prosecuting Attorney
                                                     21 West Boardman Street, 6th Floor
                                                     Youngstown, Ohio 44503

For Defendant-Appellant:                             Attorney Michael McGee
                                                     108 Main Avenue, Suite 500
                                                     Warren, Ohio 44481


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

                                                     Dated: June 17, 2013
[Cite as State v. Dew, 2013-Ohio-2549.]
VUKOVICH, J.


        {¶1}     Defendant-appellant Gregory Dew appeals the Mahoning County
Common Pleas Court’s decision that found it was without jurisdiction to rule on Dew’s
“Motion to Obtain Grand Jury Transcripts” and “Motion For An Order Finding
Defendant Was Unavoidably Prevented From The Discovery Of The Evidence Upon
Which He Relies.” The trial court’s reasoning was that Dew had already appealed
and such issues should have been raised in the direct appeal. In this case, we are
asked to determine whether the trial court’s decision regarding these two motions
was correct.
        {¶2}     For the reasons expressed below, the “Motion For An Order Finding
Defendant Was Unavoidably Prevented From the Discovery of the Evidence Upon
Which he Relies” is a motion for leave to file a delayed motion for new trial based on
newly discovered evidence pursuant to Crim.R. 33. The trial court had jurisdiction to
rule on this motion.         As for the motion for grand jury transcripts, the argument
presented in that motion could have been raised in the direct appeal. Thus, the
motion was barred by res judicata. Therefore, the trial court’s decision is affirmed in
part, and reversed and remanded in part with instructions for the trial court to rule on
the Crim.R. 33 motion for leave to file a delayed motion for new trial.
                                          Statement of the Case
        {¶3}     In March 2007, the Mahoning County Grand Jury indicted Dew on three
counts of sexual battery for incidents that occurred in the early 1990s. State v. Dew,
7th Dist. No. 08MA62, 2009-Ohio-6537, ¶ 4. This indictment was later dismissed
because the sexual battery statute under which he was charged was not in effect
when the alleged acts were committed. Id. However, prior to the dismissal, the
Grand Jury reconvened and issued a superceding indictment in May 2007 charging
Dew with three counts of rape, one count of corruption of a minor, and one count of
gross sexual imposition. Id. This indictment identified two victims. Id.
        {¶4}     During the subsequent investigation, three additional women came
forward with allegations against Dew. Id. at ¶ 5. The Grand Jury reconvened and
issued another superceding indictment that charged Dew with an additional fifteen
                                                                                      -2-

counts of gross sexual imposition and three counts of rape. Id. The two cases were
consolidated for trial. Id. at ¶ 6. After hearing the evidence, the jury found Dew guilty
of four counts of rape, one count of corruption of a minor and two counts of gross
sexual imposition.
       {¶5}   Dew timely appealed that decision to our court.         Upon review, we
upheld three of the rape convictions, the corruption of a minor conviction and one of
the gross sexual imposition convictions. Id. ¶ 139. We reversed and vacated one
rape conviction and one gross sexual imposition conviction. Id. Dew appealed our
decision to the Ohio Supreme Court, which did not accept the case for review. State
v. Dew, 124 Ohio St.3d 1510, 2010-Ohio-799, 922 N.E.2d 972. Dew also filed a
petition for writ of certiorari with the United States Supreme Court, which was likewise
denied. Dew v. Ohio, 131 S.Ct. 594 (2010).
       {¶6}   On November 14, 2011, Dew filed an untimely pro se application to
reopen his appeal. State v. Dew, 7th Dist. No. 08 MA 62, 2012-Ohio-434. We
denied the application because Dew failed to establish good cause for the delay. Id.
at ¶ 10.
       {¶7}   Two weeks after filing the pro se application for reopening, Dew, pro se,
filed the “Motion to Obtain Grand Jury Transcripts” and the “Motion for an Order
Finding Defendant was Unavoidably Prevented from the Discovery of the Evidence
upon which He Relies.” 11/28/11 Motions. The state responded to both motions.
12/19/11 Motions. The trial court found it was without jurisdiction to rule on both
motions. 01/03/12 J.E.; 01/17/12 J.E. The stated reasons were because Dew’s case
before the trial court was completed after his conviction by jury and consequent
sentencing by the trial court, and because “Defendant has already appealed, and
such issues should have been raised on appeal.” 01/03/12 J.E.; 01/17/12 J.E.
       {¶8}   Dew timely appeals from those judgments. Originally, we held that the
trial court’s ruling on the “Motion for an Order Finding Defendant was Unavoidably
Prevented from the Discovery of the Evidence upon which He Relies” was not a final
appealable order, and therefore, we were without jurisdiction to rule on it. Our reason
for doing so was because in the trial court’s order finding it was without jurisdiction,
                                                                                        -3-

the trial court did not specifically state it was denying a delayed Crim.R. 33 motion.
Thus, we limited the issue on appeal to a review of whether the trial court had
jurisdiction to rule on the request for grand jury transcripts.          After briefing was
completed, a review of the case file was done and it was deemed that our earlier
ruling that we were without jurisdiction to rule on the “Motion for an Order Finding
Defendant was Unavoidably Prevented from the Discovery of the Evidence upon
which He Relies” was incorrect. Accordingly, we issued a judgment entry allowing
Dew to file a supplemental brief to argue that the trial court incorrectly determined
that it was without jurisdiction to rule on the “Motion for an Order Finding Defendant
was Unavoidably Prevented from the Discovery of the Evidence upon which He
Relies.” Counsel for Dew did not file a brief addressing this issue. That said, in case
number 12MA25, a pro se appeal filed by Dew, Dew filed a brief that, in addition to
other arguments, addresses the propriety of the trial court’s ruling on the “Motion for
an Order Finding Defendant was Unavoidably Prevented from the Discovery of the
Evidence upon which He Relies.” Case Number 12MA25 was consolidated into this
appeal and that pro se brief was not struck from the record. Therefore, we will
consider Dew’s pro se arguments regarding the trial court’s ruling on the motion for
leave to file a delayed Crim.R. 33 motion for new trial.
       {¶9}   For clarification, the issues that are addressed in this appeal are the
trial court’s ruling on the motion for leave to file a delayed Crim.R. 33 motion for new
trial and the trial court’s ruling on the request for grand jury transcripts.
                               Crim.R. 33 Motion for Leave
       {¶10} On November 28, 2011, Dew filed a motion titled “Evidentiary Hearing
Requested” and “Motion for an Order finding Defendant was Unavoidably Prevented
from the Discovery of the Evidence upon which he Relies.” This motion clearly asked
the trial court to allow him leave to file a delayed motion for new trial pursuant to
Crim.R. 33(B). The state responded to that motion claiming that leave should not be
granted.   12/19/11 Motion.      Dew argued in his pro se brief that the trial court
incorrectly concluded that it was without jurisdiction to rule on his motion for leave to
file a delayed Crim.R. 33 motion for a new trial.
                                                                                       -4-

       {¶11} Crim.R. 33(B) provides:
              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.
Crim.R. 33(B).
       {¶12} The motion for new trial was clearly untimely.         However, Dew was
seeking permission to file a delayed motion for new trial. He followed the rule and
asked for leave to file an untimely motion for new trial before filing the motion for new
trial. State v. Wilson, 7th Dist. No. 11MA92, 2012-Ohio-1505, ¶ 42 (indicating that
proper procedure for a filing a Crim.R. 33 motion for new trial beyond the time limits
is to first file a motion for leave). His argument indicated that the motion for new trial
will be based on newly discovered evidence.
       {¶13} The Ohio Supreme Court has stated that even after an appellate court
affirms a trial court’s ruling, the trial court still retains jurisdiction over post-trial
motions permitted by the Ohio Rules of Criminal Procedure. State v. Davis, 131 Ohio
                                                                                      -5-

St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶ 37. Thus, it specifically held that the
trial court retains jurisdiction to decide a motion for new trial based on newly
discovered evidence when the specific issue has not been decided on direct appeal.
Id.
         {¶14} As explained above, a motion for leave to file an untimely motion for
new trial is permitted by Crim.R. 33(B). Thus, the trial court retained jurisdiction to
decide this motion. If we were to hold otherwise, that would mean that no untimely
motion could be considered if the defendant had already appealed the decision. As
the Ohio Supreme Court noted in Davis, “These [post trial] motions [that are
prescribed by the Ohio Rules of Criminal Procedure] provide a safety net for
defendants who have reasonable grounds to challenge their convictions and
sentences.” Id.
         {¶15} Consequently, the trial court’s decision regarding this issue is reversed
and the cause is remanded to the trial court with instructions to rule on the motion for
leave.
                                 Grand Jury Transcripts
         {¶16} The assignment of error addressing the trial court’s denial of Dew’s
motion to obtain grand jury transcripts reads:
         {¶17} “The trial court erred to the prejudice of Appellant by denying his motion
to obtain the grand jury transcripts.”
         {¶18} The motion to obtain grand jury transcripts that is at issue in this case
was filed in 2011. However, it was not the first motion that Dew filed seeking to
obtain the grand jury transcripts. In August 2007, prior to trial, while the case was
actively before the trial court, Dew filed a Motion to Inspect Grand Jury Proceeding.
In that motion, he acknowledged that while Crim.R. 6(E) provides for grand jury
proceedings to be secret, it also allows for the disclosure of grand jury proceedings if
there is a court order allowing it. In order to obtain a court order, the defense must
show that a particularized need for disclosure exists which outweighs the need for
secrecy. State v. Greer, 66 Ohio St.2d 139 (1981), paragraph two of the syllabus.
                                                                                       -6-

Dew argued that the facts of the case showed that he met this standard. 08/17/07
Motion.
       {¶19} In response to that motion, the trial court ordered the proceedings
transcribed and to be put under seal for only its inspection. 08/20/07 J.E. After the
trial court reviewed the motion, it found that there was no misconduct of the
prosecutor or grand jury and thus, there was no demonstrated particularized need for
disclosure of the transcripts. 08/24/07 J.E.
       {¶20} After the jury convicted Dew and while the direct appeal was pending
before our court, he filed a motion with the trial court to preserve the grand jury
testimony for purposes of appeal and to transmit them under seal to this court.
05/19/08 Motion. The state agreed and the trial court granted the motions thereby
transmitting the transcripts to our court under seal. 05/20/08 Motion; 05/23/08 J.E.
       {¶21} However, in the direct appeal, no issue was raised to this court
concerning the trial court’s ruling that there was not a demonstrated particularized
need for the disclosure of the grand jury transcripts.          Or in other words, the
correctness of the trial court’s August 24, 2007 ruling was not appealed.
       {¶22} In the 2011 motion to obtain grand jury transcripts, Dew acknowledges
the trial court’s prior decision that he had not displayed a particularized need for
disclosure of the grand jury transcript.        He now asserts that he did show a
particularized need. In claiming as such, he contends that the trial court’s decision
was based on a narrow interpretation of State v. Noogle, 67 Ohio St.3d 31 (1993),
which held that according to the statute enacted at the time for sexual battery, a
coach was not considered in loco parentis of an athlete. Dew was a coach for the
first two victims. Dew claims that the trial court had a strong issue with the Noogle
decision and even stated at trial that the mere position of a coach fulfills the
requirement of force or threat of force. Thus, according to Dew, there is a basis to
reverse the trial court’s lack of particularized need ruling.
       {¶23} The trial court denied the 2011 motion to obtain grand jury transcripts
by stating that “[t]his Court has previously ruled that it is without jurisdiction to
                                                                                       -7-

entertain Defendant’s Motions, because Defendant has already appealed, and such
issues should have been raised on appeal.” 01/17/12 J.E.
       {¶24} In the appellate briefs, Dew asserts that the trial court’s decision that it
lacks jurisdiction to decide the issue is incorrect. In support of his position, he argues
that there are instances where a trial court has jurisdiction to rule on a post-trial
motion for grand jury transcripts and this case presents one of those instances. The
state, on the other hand, disagrees. Both parties cite to State v. Russell, 10th Dist.
No. 05AP-1325, 2006-Ohio-5945, to support their respective positions.
       {¶25} However, we do not need to discuss the Russell case or whether trial
courts have jurisdiction over post-trial, post-appeal motions for grand jury transcripts
because in this instance, the motion was barred by the principles of res judicata. The
trial court’s statement that the issue should have been raised in the direct appeal is
correct.
       {¶26} Principles of res judicata bar a criminal defendant from raising and
litigating in any proceeding, except an appeal from that judgment, any defense or any
claimed lack of due process that was raised or could have been raised by the
defendant at the trial that resulted in that judgment of conviction or on appeal from
that judgment. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph
nine of the syllabus. The grand jury transcripts were forwarded to this court under
seal. Thus, the trial court’s decision that Dew did not show a particularized need for
the disclosure of the transcripts could have been raised in the direct appeal.
However, as discussed above, it was not. Accordingly, the same argument regarding
those transcripts is barred by res judicata.
       {¶27} For the above stated reasons this assignment of error lacks merit.
                                       Conclusion
       {¶28} In conclusion, the trial court did have jurisdiction to rule on the Crim.R.
33 motion for leave to file a delayed motion for new trial based on newly discovered
evidence. That said, the request for grand jury transcripts is barred by res judicata.
Therefore, the judgment of the trial court is affirmed in part and reversed and
                                                                                      -8-

remanded in part with instructions for the trial court to rule on the motion for leave to
file a delayed Crim.R. 33 motion based on newly discovered evidence.

Waite, J., concurs.
DeGenaro, P.J., concurs.
