[Cite as State v. Feagin, 2019-Ohio-2185.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P. J.
        Plaintiff-Appellee                         Hon. Patricia A. Delaney, J.
                                                   Hon. Earle E. Wise, Jr., J.
-vs-
                                                   Case No. 2018 CA 0126
MARCO A. FEAGIN

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 03 CR 86H


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         June 4, 2019



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOSEPH C. SNYDER                               MARCO A. FEAGIN
PROSECUTING ATTORNEY                           ALLEN/OAKWOOD CORR. INSTITUTION
38 South Park Street                           2338 North West Street, P. O. Box 4501
Mansfield, Ohio 44902                          Lima, Ohio 45802
Richland County, Case No. 2018 CA 0126                                                   2

Wise, John, P. J.

       {¶1}      Appellant Marco A. Feagin appeals the November 5, 2018, decision of the

Richland County Court of Common Pleas denying his motion for leave to file a motion for

a new trial.

       {¶2}      Appellee is State of Ohio.

                         STATEMENT OF THE FACTS AND CASE

       {¶3}      The relevant facts and procedural history are as follows:

       {¶4}      In 2004, Appellant Marco Feagin shot and killed James Williams at the

American Legion in Mansfield, Ohio. Following a jury trial, Appellant was convicted of one

count of murder, with a firearm specification; one count of possession of a firearm in a

liquor permit premises; and one count of possession of a weapon under disability.

       {¶5}      The trial court sentenced Appellant to fifteen years to life on the murder

count, to be served consecutive to the three year sentence on the firearm specification.

The trial court sentenced Appellant to one year in prison on the charge of possession of

a weapon in a liquor permit premises, and one year in prison for the charge of possession

of a weapon under disability. Appellant filed a direct appeal in State v. Feagin, 5th Dist.

Richland No. 05CA1, 2006–Ohio–676, arguing the comment of a juror during voir dire

tainted the jury pool, and the verdict was contrary to law and against the manifest weight

of the evidence. We overruled Appellant's assignments of error and affirmed his

convictions.

       {¶6}      On December 22, 2004, Appellant was sentenced to an aggregate term of

eighteen (18) years to life involving several counts including murder with a firearm

specification.
Richland County, Case No. 2018 CA 0126                                                      3


       {¶7}   Appellant filed a direct appeal and this Court affirmed his convictions and

sentence. State v. Feagin, 5th Dist. Richland No. 05CA1, 2006-Ohio-676. Appellant did

not raise any claims of prosecutorial misconduct or ineffective assistance of counsel.

       {¶8}   On March 25, 2010, a new sentencing entry was entered in order to impose

a mandatory term of post-release control. The trial court sentenced Appellant to the

original sentence and added a five year term of mandatory post-release control.

       {¶9}   Appellant filed an appeal, raising in part prosecutorial misconduct. This

court affirmed the resentencing, and noted the arguments relative to prosecutorial

misconduct were res judicata as they could have been raised in the direct appeal. State

v. Feagin, 5th Dist. Richland No. 10CA46, 2011-Ohio-2025.

       {¶10} On April 25, 2011, the trial court denied Appellant's motion for leave to file

a delayed motion for new trial.

       {¶11} Appellant filed an appeal, raising in part prosecutorial misconduct. This

court affirmed the trial court's decision and again found the arguments relative to

prosecutorial misconduct to be res judicata. State v. Feagin, 5th Dist. Richland No.

15CA41, 2015-Ohio-5107.

       {¶12} Appellant filed a motion for reconsideration. By judgment entry filed March

7, 2016, this Court granted the motion, finding the trial court erred in resentencing

Appellant in its March 25, 2010 entry relative to post-release control. The portion of the

entry on post-release control was vacated, but the remainder of Appellant's sentence was

left intact. By judgment entry filed March 9, 2016, the trial court vacated the order of post-

release control.
Richland County, Case No. 2018 CA 0126                                                    4


       {¶13} On April 5, 2016, the trial court denied Appellant's motion to convey him for

hearing after vacation of sentence. Appellant filed an appeal, raising in part prosecutorial

misconduct. This Court affirmed the trial court's decision, and again found the arguments

relative to prosecutorial misconduct to be res judicata. State v. Feagin, 5th Dist. Richland

No. 16CA21, 2016-Ohio-7003.

       {¶14} On July 27, 2017, Appellant filed a motion to have the record restored,

asking that the court supplement the record with an undated newspaper clipping reporting

on Appellant’s trial.

       {¶15} On August 3, 2017, Appellant filed a motion to vacate void judgment for lack

of subject matter jurisdiction.

       {¶16} On August 21, 2017, the trial court denied Appellant’s pending motions.

       {¶17} On May 11, 2018, Appellant filed a petition to vacate and set aside judgment

of conviction and sentence pursuant to R.C. §2953.21 and §2953.23. Appellant made

arguments relative to jury instructions, prosecutorial misconduct, and ineffective

assistance of counsel.

       {¶18} By judgment entry filed May 30, 2018, the trial court denied the petition,

finding it was a successive petition for post-conviction relief, the petition was untimely

filed, and the arguments therein were res judicata.

       {¶19} On June 4, 2018, Appellant filed a Complaint in Procendendo in the Ohio

Supreme Court in Case No. 2018-773, requesting the Supreme Court to order the trial

court to correct the record with the undated News Journal article. The Supreme Court

dismissed the case on August 15, 2018.
Richland County, Case No. 2018 CA 0126                                                     5


         {¶20} On July 19, 2018, Appellant filed a motion for a new trial pursuant to Crim.R.

33(A) with the trial court.

         {¶21} On July 23, 2018, Appellant filed a Writ of Mandamus in this Court in Case

No. 18-VA-57, requesting that this Court grant his July 27, 2017, motion to “restore” the

record with the News Journal article. This Court dismissed the case on October 9, 2018.

         {¶22} On August 17, 2018, Appellant filed a request to have the record restored

pursuant to App.R. 9(E).

         {¶23} On September 17, 2018, Appellant filed a motion or an in-camera inspection

of documents.

         {¶24} On September 25, 2018, Appellant filed a judicial notice of adjudicative

facts.

         {¶25} On September 27, 2018, Appellant filed a motion to correct sentence

contrary to law.

         {¶26} On October 16, 2018, this Court affirmed the trial court’s May 30, 2018,

decision, again finding the arguments to be res judicata. State v. Feagin, 5th Dist. Richland

No. 18-CA-0048, 2018-Ohio-4221.

         {¶27} On October 16, 2018, Appellant filed a motion for a new trial.

         {¶28} On October 24, 2018, Appellant filed a motion to correct the record

requesting the undated New Journal article be added to the case on appeal.

         {¶29} The State of Ohio filed responses on August 21, 2018, and October 18,

2018.

         {¶30} By Judgment Entry filed November 5, 2018, the trial court denied the above

motions, finding that the arguments had all been raised previously.
Richland County, Case No. 2018 CA 0126                                           6


      {¶31} Appellant now appeals, raising the following errors for review:

                                ASSIGNMENTS OF ERROR

      {¶32} “I. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE

OF THE APPELLANT WHEN IT DEVIATED FROM THE LAWFUL SCOPE OF REVIEW

PURSUANT TO A CRIM.R. 33(A)(6) AND WHETHER APPELLANT MET THE

CRITERIA.

      {¶33} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

GRANT APPELLANT A HEARING PURSUANT TO APPELLANT'S PRESENTATION OF

EVIDENCE OF HAVING BEEN UNAVOIDABLY DELAYED IN FILING MOTION FOR

NEW TRIAL.

      {¶34} “III. THE PROSECUTING ATTORNEY COMMITTED MISCONDUCT THAT

PREJUDICED     THE    APPELLANT       AND    VIOLATED     THE    14TH    AMENDMENT

PREVENTING APPELLANT FROM RECEIVING A FAIR TRIAL.

      {¶35} “IV. THE PROSECUTING ATTORNEYS AND TRIAL COURT JUDGE

PREVENTED APPELLANT FROM RECEIVING EVIDENCE MATERIAL TO APPELLANT

IN HIS PRESENTATION OF A DEFENSE.

      {¶36} “V. THE PROSECUTING ATTORNEYS FAILED THEIR DUTY TO

RESTORE THE RECORD AND THE COURT SHOWED BIAS WHEN IT FAILED TO

ALLOW THE PROSECUTION TO CORRECT IMCOMPLETE TRANSCRIPTS.

      {¶37} “VI. THE TRIAL COURT JUDGE ABUSED THE DISCRETION OF THE

COURT AND APPLIED ERRONEOUS CASE LAW IN MAKING A RULING UNDER THE

COLOR OF LAW, WHEN DENYING APPELLANT DISCOVERY PURSUANT TO PUBLIC

REQUEST 149.43(B)(4)/CRIMR.16(B)(1)(F).
Richland County, Case No. 2018 CA 0126                                                    7


                                           I., II., VI.

       {¶38} In his first, second and sixth assignments of error, Appellant argues the trial

court erred in denying his motion for a new trial. We disagree.

       {¶39} Ohio Rule of Criminal Procedure 33 governs a motion for new trial, stating

in pertinent part,

       {¶40} A new trial may be granted on motion of the defendant for any of the

following causes affecting materially his substantial rights:

              (A) Grounds

               (1) Irregularity in the proceedings, or in any order or ruling of the

       court, or abuse of discretion by the court, because of which the defendant

       was prevented from having a fair trial;

               (2) Misconduct of the jury, prosecuting attorney, or the witnesses for

       the state;

               (3) Accident or surprise which ordinary prudence could not have

       guarded against;

               (4) That the verdict is not sustained by sufficient evidence or is

       contrary to law. If the evidence shows the defendant is not guilty of the

       degree of crime for which he was convicted, but guilty of a lesser degree

       thereof, or of a lesser crime included therein, the court may modify the

       verdict or finding accordingly, without granting or ordering a new trial, and

       shall pass sentence on such verdict or finding as modified;

               (5) Error of law occurring at the trial;
Richland County, Case No. 2018 CA 0126                                                8


             (6) When new evidence material to the defense is discovered which

      the defendant could not with reasonable diligence have discovered and

      produced at the trial. When a motion for a new trial is made upon the ground

      of newly discovered evidence, the defendant must produce at the hearing

      on the motion, in support thereof, the affidavits of the witnesses by whom

      such evidence is expected to be given, and if time is required by the

      defendant to procure such affidavits, the court may postpone the hearing of

      the motion for such length of time as is reasonable under all the

      circumstances of the case. The prosecuting attorney may produce affidavits

      or other evidence to impeach the affidavits of such witnesses.

             (B) Motion for new trial; form, time

             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
Richland County, Case No. 2018 CA 0126                                                   9


       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.

       {¶41} Res judicata bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal. State v. Perry

(1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the

syllabus.

       {¶42} On appeal in Appellant's prior appeals, this Court considered the same

claims that Appellant now attempts to raise in his delayed motion for new trial.

       {¶43} We therefore find Appellant's arguments raised in the first, second and sixth

assignments of error are barred under the doctrine of res judicata. Accordingly, they are

overruled.

                                           III., IV., V.

       {¶44} In his third, fourth and fifth assignments of error, Appellant argues that the

prosecuting attorney committed prosecutorial misconduct. We disagree.

       {¶45} Again, we find that the arguments being raised by Appellant have been

considered and overruled by this Court in Appellant’s previous appeals as set forth in the

long procedural history detailed above. As such, these arguments are barred by the

doctrine of res judicata
Richland County, Case No. 2018 CA 0126                                           10


       {¶46} Based on the foregoing, we find Appellant's third, fourth and fifth

assignments of error not well-taken and hereby overrule same.

       {¶47} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.



By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.


JWW/d 0520
