[Cite as State v. Shabazz, 2013-Ohio-267.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 98601



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                             JAMIL ABDUL SHABAZZ
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-495551

        BEFORE: E.A. Gallagher, J., Boyle, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                     January 31, 2013
FOR APPELLANT

Jamil Abdul Shabazz, pro se
Inmate No. 541-031
Allen Correctional Institution
P.O. Box 4501
Lima, Ohio 45802

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

          {¶1} Jamil Adbul Shabazz appeals from the Cuyahoga County Court of

Common Pleas’ denial of his motion for a new trial. For the following reasons, we

affirm.

          {¶2} A brief account of appellant’s lengthy history before this court is necessary.

Appellant was indicted on April 26, 2007, charged with one count of aggravated murder

with a three-year firearm specification, a notice of prior conviction and a repeat violent

offender specification. Prior to the commencement of trial, appellant executed a jury

waiver as to the notice of prior conviction and repeat violent offender specification.

          {¶3} Appellant was found guilty of the lesser-included offense of murder as well

as the attached three-year firearm specification by a jury verdict rendered on November

19, 2007. The trial court found appellant guilty of the notice of prior conviction and

repeat violent offender specifications. Appellant was sentenced to a prison term of 15

years to life on the murder charge to run consecutively to a three-year prison term for the

firearm specification.

          {¶4} Appellant brought a direct appeal of his conviction in State v. Shabazz

Abdul, 8th Dist. No. 90789, 2009-Ohio-225 (“Shabazz I”). Appellant asserted two

assignments of error: ineffective assistance of counsel and the trial court’s denial of his
    Crim.R. 29 motion for acquittal. We rejected both assignments of error and affirmed the

    conviction.

           {¶5} On May 7, 2009, appellant applied to reopen our judgment in Shabazz I

    based on a claim of ineffective assistance of appellate counsel. In State v. Shabazz

    Abdul, 8th Dist. No. 90789, 2009-Ohio-6300 (“Shabazz II”), we denied appellant’s

    application.

           {¶6} While Abdul II was pending, appellant filed a petition for post-conviction

    relief in the trial court. The state filed a motion for summary judgment, which was

    granted by the trial court. On appeal in State v. Abdul Shabazz, 8th Dist. No. 94738,

    2010-Ohio-5789 (“Shabazz III”), appellant asserted seven assignments of error. We

    rejected all seven of appellant’s errors and affirmed the judgment of the trial court.1

           {¶7} On May 17, 2012, appellant filed the motion for a new trial that is the

    subject of the present appeal. The trial court denied appellant’s motion in a journal entry

    dated May 24, 2012. Appellant appealed presenting four assignments of error. In his

    first and second assignments of error, appellant argues that his indictment was not

    presented to a grand jury and not signed by the foreman of a grand jury. In his third

    assignment of error, appellant argues that his due process rights were violated by the

    amendment of the indictment at trial to include lesser-included offenses. In his fourth




    Five of appellant’s assignments of errors were rejected pursuant to the doctrine of res judicata.
1
assignment of error, appellant argues that he was prejudiced by the trial court’s failure to

present jury instructions on certain lesser-included offenses.

       {¶8} Motions for a new trial are governed by the framework provided in Crim.R.

33. Crim.R. 33(B) requires a motion for a new trial to be made within 14 days after a

verdict is rendered. If a motion for a new trial is made on grounds of newly discovered

evidence, the motion must be filed within 120 days after the day the verdict is rendered.

Id. A defendant may file a motion for a new trial outside the 120-day deadline only by

leave of court and only 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[.]” Id.

       {¶9} Although not raised in appellant’s motion for a new trial before the trial

court, appellant now asserts that his motion is based on newly discovered evidence.

However, none of appellant’s assignments of error pertain to newly discovered evidence.

 Appellant did not seek leave of the court to file a motion for a new trial outside the

Crim.R. 33(B) period and appellant’s motion for a new trial is devoid of any newly

discovered evidence. It is undisputed that appellant filed his motion for a new trial

outside the 120-day window established by Crim.R. 33(B). In order to obtain leave to

file his motion for a new trial, he had to establish, by clear and convincing proof, that he

was unavoidably prevented from discovering new evidence. State v. Clement, 8th Dist.

No. 97930, 2012-Ohio-3818, ¶ 4-5. As appellant’s motion failed to offer proof of any
kind to show why he was unavoidably prevented from the discovery of any new evidence

that would entitle him to a new trial, we cannot say that the trial court abused its

discretion in denying his motion. Id. at ¶ 6.

       {¶10} Even if appellant’s motion was not time barred pursuant to Crim.R. 33(B),

we note that appellant’s assignments of error are also barred by the doctrine of res

judicata. As stated by the Ohio Supreme Court, under the doctrine of res judicata

       a final judgment of conviction bars the convicted 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 an appeal from that judgment.

State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967); accord State v. Briscoe,

8th Dist. No. 98414, 2012-Ohio-4943, ¶ 13.

       {¶11} Each of appellant’s assignments of error pertain to matters that were

squarely within the record at the time of appellant’s direct appeal. Because they were

not raised on direct appeal, appellant is barred by the doctrine of res judicata from raising

them in this subsequent action.

       {¶12} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR
