[Cite as State v. Moore, 2017-Ohio-984.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2016-CA-35
                                                 :
 v.                                              :   Trial Court Case No. 2006-CR-1487
                                                 :
 MICHAEL MOORE                                   :   (Criminal Appeal from
                                                 :    Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 17th day of March, 2017.

                                            ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road N.E.,
Bloomingburg, Ohio 43106
      Attorney for Defendant-Appellant

                                           .............

HALL, P.J.
                                                                                            -2-




       {¶ 1} Michael Moore appeals from the trial court’s denial of his Crim.R. 33(B)

motion for a new trial.

       {¶ 2} In his sole assignment of error, Moore contends the trial court erred in

denying his motion without holding an evidentiary hearing.

       {¶ 3} The record reflects that Moore was convicted and sentenced in 2007 on

charges of murder with a firearm specification and having a weapon while under disability.

This court affirmed on direct appeal, rejecting a challenge to the manifest weight of the

evidence presented at trial. See State v. Moore, 2d Dist. Clark No. 2007-CA-40, 2008-

Ohio-2577. Moore subsequently moved for post-conviction relief in March 2014, alleging

ineffective assistance of trial counsel. The trial court denied the petition without a hearing,

and this court affirmed. See State v. Moore, 2d Dist. Clark No. 2014-CA-66, 2015-Ohio-

550. Thereafter, in April 2015, Moore filed a “motion for further proceedings” in the trial

court. In particular, he sought a ruling on a motion for a new trial that he claimed to have

filed in March 2014 along with his post-conviction relief petition. The trial court summarily

overruled the motion for further proceedings. On appeal, this court reversed and

remanded, reasoning:

              The docket of the case and the record before us do not include a

       motion for new trial. However, at oral argument, Moore’s attorney produced

       a file-stamped copy of a Motion for New Trial, dated March 25, 2014, and

       which contained the correct case number. The State’s attorney indicated

       that he had never seen the motion, and the trial court’s terse judgment in

       response to the motion for further proceedings does not make clear that it
                                                                                            -3-


         had seen the motion for new trial. Under these unusual circumstances, and

         with the agreement of the parties, we will remand this matter to the trial court

         for it to consider whether to add the March 25, 2014 motion for new trial to

         the record, and then, if appropriate, to consider and rule on the motion.

State v. Moore, 2d Dist. Clark No. 2015-CA-70, 2016-Ohio-1473, ¶ 4.

         {¶ 4} On remand, the trial court considered and ruled on the new-trial motion

without adding it to the record. (Doc. #48). In a May 17, 2016 entry, the trial court

reasoned:

                * * * Defendant has failed to meet his burden with the evidence

         presented in the affidavits attached to his motion because his motion is

         untimely, failed to show that there is a strong probability that the result of a

         new trial would be different, the information could have been discovered

         previously and the evidence merely attempts to impeach or contradict

         former evidence against him. THEREFORE, Defendant has failed to

         present any new credible evidence and his motion for a new trial is DENIED.

(Id.).

         {¶ 5} On appeal, Moore contends the trial court erred in denying his new-trial

motion without holding an evidentiary hearing. In support, he cites affidavits purportedly

establishing that eyewitnesses gave perjured trial testimony. He argues that these

affidavits constitute new evidence that reasonably could not have been discovered sooner

and that the affidavits necessitated an evidentiary hearing. In response, the State asserts

that Moore’s new-trial motion relies on the same affidavits that supported his failed post-

conviction relief petition. The State claims that the affidavits neither explain Moore’s
                                                                                            -4-


lengthy delay in seeking a new trial nor establish that he was prevented from discovering

the information they contain sooner. The State also asserts that the affidavits fail to

establish a strong probability of a different result if a new trial were granted. Finally, the

State contends the affidavits merely attempt to impeach or contradict the evidence

against Moore.

       {¶ 6} Upon review, we note that the record still does not include a copy of the new-

trial motion at issue. Following our most recent remand, the motion was not preserved as

part of the record, despite our observation that the motion was missing. We recognize

that perhaps our remand was unclear. When we said “we will remand this matter to the

trial court for it to consider whether to add the March 25, 2014 motion for new trial to the

record, and then, if appropriate, to consider and rule on the motion,” our intention was to

allow the trial court, in the first instance, to determine whether the file-stamped copy of

the motion shown to us at argument was in fact filed but inadvertently not docketed in the

clerk’s office and not included in the case file. Upon that determination, we expected the

record to reflect that either the motion was or was not in fact properly filed. In either event

the trial court should have preserved a copy of the purported motion so the record would

reflect what the court was ruling upon. At this juncture, it is apparent to us that the trial

court did conclude that the motion had been properly filed because the trial court

considered and overruled the motion. However, the motion is still not before us because

the trial court has not preserved it as part of the record. We are now left being completely

unable to review the motion and its supporting affidavits, which we do not possess, and

we cannot determine whether the motion was timely or whether an evidentiary hearing

was required. Because the trial ruled without adding the motion to the record, we have
                                                                                        -5-


nothing to review. Consequently, we will remand the matter to the trial court with

instructions to make the March 25, 2014 new-trial motion part of the record. For present

purposes, we will vacate the trial court’s May 17, 2016 entry, which purports to overrule

a motion that does not exist in the record. Once the trial court makes the new-trial motion

part of the record, it may reissue its entry if it deems such action appropriate.

       {¶ 7} Based on the reasoning set forth above, the trial court’s May 17, 2016 entry

overruling a motion that does not exist in the record is hereby vacated, and the cause is

remanded for further proceedings consistent with this opinion.

                                      .............



FROELICH, J. and TUCKER, J., concur.


Copies mailed to:

Megan M. Farley
George A. Katchmer
Hon. Douglas M. Rastatter
