[Cite as State v. Armengau, 2018-Ohio-4299.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                  No. 17AP-852
v.                                               :           (C.P.C. No. 13CR-2217)

Javier H. Armengau,                              :        (REGULAR CALENDAR)

                 Defendant-Appellant.            :



                                        D E C I S I O N

                                   Rendered on October 23, 2018


                 On brief: Michael DeWine, Attorney               General,   and
                 Matthew J. Donahue, for appellee.

                 On brief: Javier H. Armengau, pro se.

                  APPEAL from the Franklin County Court of Common Pleas
SADLER, J.

        {¶ 1} Defendant-appellant, Javier H. Armengau, appeals a judgment of the
Franklin County Court of Common Pleas denying his combined motion for reconsideration
of the trial court judgment denying his first motion for leave to file a delayed motion for
new trial and second motion for leave to file a motion for delayed new trial, instanter. For
the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY

        {¶ 2} In a prior appeal in this case, appellant sought review of the denial of his first
motion for leave to file a delayed motion for new trial. State v. Armengau, 10th Dist. No.
No. 17AP-852                                                                                    2


16AP-355, 2017-Ohio-197 ("Armengau I").1 In affirming the judgment of the trial court,
this court in Armengau I set forth the procedural history of this case, in relevant part, as
follows:
                  On May 20, 2013, a Franklin County Grand Jury indicted
                  appellant on three counts of kidnapping, three counts of gross
                  sexual imposition, six counts of rape with specifications, five
                  counts of sexual battery, and one count of public indecency. At
                  the time of the offenses, appellant was licensed to practice law
                  in Ohio and each of his victims was either a current or former
                  client of appellant's or a client's family member.

                  On July 7, 2014, a Franklin County jury found appellant guilty
                  of nine felonies and one misdemeanor. On August 28, 2014,
                  the trial court sentenced appellant to a prison term of 13 years.
                  On August 7, 2015, appellant filed a Crim.R. 33(B) motion for
                  leave to file a delayed motion for new trial. Appellant supported
                  his motion for leave with his own affidavit and the affidavit of
                  Diane Caldwell, a former roommate of one of appellant's
                  victims, Luz Melean. Appellant claims that the averments in
                  Caldwell's February 6, 2015 affidavit constitute newly
                  discovered evidence material to his defense. In her affidavit,
                  Caldwell avers that Melean told her the sexual activity between
                  she and appellant was "purely consensual." (Caldwell Aff. at
                  ¶ 20.) The state opposed the motion.

                  On April 5, 2016, the trial court denied appellant's motion for
                  leave without an evidentiary hearing. Appellant timely
                  appealed to this court from the judgment of the trial court.

Id. at ¶ 2-4.
          {¶ 3} In Armengau I, we denied appellant's motion for leave to file a delayed
motion for new trial based on newly discovered evidence under Crim.R. 33(A)(6), finding
that appellant failed to show he was unavoidably prevented from discovering Caldwell's
evidence within 120 days of the jury verdict as required by Crim.R. 33(B) and that he further
failed to file his motion for leave within a reasonable time after discovering Caldwell's
evidence. Id. at ¶ 14, 18. With regard to appellant's claims that he was entitled to a new
trial on the grounds set forth in Crim.R. 33(A)(1), (2), and (5), we held that appellant failed
to show he was unavoidably prevented from filing his motion for new trial within 14 days
of the jury verdict as required by Crim.R. 33(B). Id. at ¶ 29. Accordingly, we overruled


1   Appeal not accepted for review in State v. Armengau, 149 Ohio St.3d 1434, 2017-Ohio-4396.
No. 17AP-852                                                                                         3


appellant's sole assignment of error and held the trial court did not abuse its discretion in
denying, without an evidentiary hearing, appellant's motion for leave to file a delayed
motion for new trial on the grounds set forth in Crim.R. 33(A)(1), (2), (5), and (6). Id. at
¶ 34-35.
        {¶ 4} On June 2, 2017, this court, in a majority decision, affirmed the trial court
judgment in part, reversed in part, and remanded with instructions. State v. Armengau,
10th Dist. No. 14AP-679, 2017-Ohio-4452 ("Armengau II").2 Our decision in Armengau II
provides, in relevant part, as follows:

                In summary, appellant's first, second, fourth, fifth, sixth,
                seventh, and ninth assignments of error are overruled.
                Appellant's third and eighth assignments of error are
                sustained. The judgment of the Franklin County Court of
                Common Pleas is affirmed in part and reversed in part, and the
                matter is remanded for resentencing as to Counts 10, 14, 15,
                and 17. The court will vacate appellant's Tier III sex offender
                classification and apply the sex offender classification under
                the law in effect at the time of the offenses for which he was
                convicted.

Id. at ¶ 136.
        {¶ 5} The majority decision rejected appellant's assignments of error alleging that
his convictions should be reversed due to a faulty indictment, inadmissible "other acts"
evidence, prosecutorial and witness misconduct, and insufficiency of the evidence. Id. at
¶ 67, 80, 94, 120. The majority decision sustained appellant's third assignment of error
alleging the trial court erred by failing to merge two counts in the indictment for purposes
of conviction and sentence and appellant's eighth assignment of error alleging the trial
court erred by improperly classifying him as a Tier III sex offender. Id. at ¶ 129, 134.
        {¶ 6} On September 19, 2017, appellant filed a motion for reconsideration of the
trial court's August 7, 2015 judgment entry denying his motion for leave to file a delayed
motion for new trial and, in the alternative, a second motion for leave to file a delayed
motion for new trial, instanter. In other words, appellant's September 19, 2017 motion
sought reconsideration of the very trial court judgment that this court affirmed in
Armengau I. In the alternative, appellant's September 19, 2017 motion also sought leave,


2Tyack, J., dissenting. Discretionary appeal not allowed by State v. Armengau, 151 Ohio St.3d 1511, 2018-
Ohio-365.
No. 17AP-852                                                                               4


for the second time, to file a motion for delayed new trial on the grounds set forth in Crim.R.
33(A)(1) through (6).
       {¶ 7} On November 6, 2017, the trial court denied appellant's motion on finding
that appellant "cites no authority, nor is this Court aware of any, that would permit this
Court to set aside and effectively overrule the judgment of the Tenth District Court of
Appeals." (Decision and Entry at 1-2.) The trial court further found that appellant did not
file his second motion for leave within a reasonable time after allegedly discovering the new
evidence and that appellant "fail[ed] to show, by clear and convincing evidence, * * * that
he could not have discovered the new evidence with reasonable diligence or that he was
unavoidably prevented from timely filing his Motion for Leave." (Decision and Entry at 2.)
       {¶ 8} Appellant timely appealed to this court from the trial court decision.
II. ASSIGNMENTS OF ERROR
       {¶ 9} Appellant assigns the following as trial court error:
               [1.] THE TRIAL   COURT    ERRED   IN DENYING
               APPELLANT'S MOTION FOR RECONSIDERATION OF HIS
               MOTION FOR LEAVE TO FILE MOTION FOR NEW TRIAL
               AND THE TRIAL COURT ERRED IN DENYING
               APPELLANT'S MOTION FOR NEW TRIAL IN VIOLATION
               OF APPELLANT'S RIGHTS TO DUE PROCESS, JURY
               UNANIMITY AND DOUBLE JEOPARD PROTECTIONS AS
               GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH
               AMENDMENTS TO THE UNITED STATES CONSTITUTION
               AND OHIO CONSTITUTION WHEN THE APPELLATE
               COURT CONFIRMED THAT APPELLANT WAS CONVICTED
               FOR CRIMES FOR WHICH HE WAS NEVER CHARGED OR
               INDICTED AND WHERE HIS CONVICTIONS WERE BASED
               ON INSUFFICIENT EVIDENCE AND PROSECUTORIAL
               MISCONDUCT THAT WAS CONFIRMED TO BE BLATANT
               AND SERIOUS AND WHERE THE AMENDMENTS TO THE
               INDICTMENT WERE IMPERMISSIBLE DENYING HIM HIS
               CONSTITUTIONAL RIGHT TO NOTICE OF THE SPECIFIC
               CHARGE AND OPPORTUNITY TO DEFEND THEREBY
               DENYING HIM A FUNDAMENTALLY FAIR TRIAL AS
               GUARANTEED BY THE UNITED STATES CONSTITUTION.

               [2.] THE TRIAL COURT ERRED IN DENYING
               APPELLANT'S MOTION FOR RECONSIDERATION OF HIS
               MOTION FOR LEAVE TO FILE MOTION FOR NEW TRIAL
               AND THE TRIAL COURT ERRED IN DENYING
               APPELLANT'S MOTION FOR NEW TRIAL WHEN THE
               APPELLATE COURT CONFIRMED THE GROUNDS AND
No. 17AP-852                                                                                5


               BASIS UNDER WHICH APPELLANT SOUGHT A NEW
               TRIAL IN HIS ORIGINAL MOTION INCLUDING THE
               ADMISSION   OF   UNFAIRLY  PREJUDICIAL   AND
               IRRELEVANT EVIDENCE IN VIOLAITON OF EVID. R.
               404(B) AND THE FIFTH, SIXTH AND FOURTEENTH
               AMENDMENTS TO THE UNITED STATES CONSTITUTION
               AND THE OHIO CONSTITUTION.

               [3.] THE TRIAL COURT ERRED IN DENYING
               APPELLANT'S MOTION FOR RECONSIDERATION OF HIS
               MOTION FOR LEAVE TO FILE MOTION FOR NEW TRIAL
               AND THE TRIAL COURT ERRED IN DENYING
               APPELLANT'S MOTION FOR NEW TRIAL IN VIOLATION
               OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS
               TO THE UNITED STATES CONSTITUTION WHEN THE
               APPELLATE COURT CONFIRMED APPELLANT WAS
               CONVICTED IN THE ABSENCE OF SUFFICIENT EVIDENCE
               IN COUNTS 3, 8, 10, 14, 15, 16, 17 AND 18 OF THE
               INDICTMENT.

III. STANDARD OF REVIEW
       {¶ 10} Ordinarily, "[i]n considering a trial court's denial of a motion for leave to file
a motion for new trial, this court employs an abuse of discretion standard." State v.
Anderson, 10th Dist. No. 13AP-831, 2014-Ohio-1849, ¶ 7, citing State v. Anderson, 10th
Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 9. However, where the movant files a motion for
leave to file a motion for new trial after judgment of conviction and sentence has been
affirmed on appeal, the question arises whether the trial court retains jurisdiction to hear
and determine the motion. See, e.g., State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028;
State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986; State ex rel.
Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94 (1978). In such
cases, this court is presented with an issue of law that we review de novo. Giancola v. Azem,
__ Ohio St.3d __, 2018-Ohio-1694, ¶ 13 (slip opinion), citing Arnott v. Arnott, 132 Ohio
St.3d 401, 2012-Ohio-3208, ¶ 17; State v. Andrioff, 10th Dist. No. 84AP-502 (Mar. 7, 1985).
IV. LEGAL ANALYSIS
   A. Appellant's Assignments of Error
       {¶ 11} In each of appellant's assignments of error, appellant argues that our decision
in Armengau II provides support for the arguments appellant made on the merits of his
original delayed motion for new trial. Accordingly, appellant claims the trial court erred
No. 17AP-852                                                                                6


when it overruled his motion for reconsideration of his original motion for leave to file a
delayed motion for new trial. Appellant makes the same argument in support of his second
motion for leave to file a delayed motion for new trial, instanter. Plaintiff-appellee, State of
Ohio, argues that res judicata barred both appellant's motion for reconsideration and his
second motion for leave to file a motion for delayed new trial. Because our analysis is the
same for each of appellant's assignments of error, we will consider them jointly.
       {¶ 12} Crim.R. 33 permits a trial court to grant a new trial under the following
relevant circumstances:

               (A) Grounds. A new trial may be granted on motion of the
               defendant for any of the following causes affecting materially
               his substantial rights:

               (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;

               ***

               (5) Error of law occurring at the trial;

               (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
No. 17AP-852                                                                               7


               unavoidably prevented from filing his motion for a new trial
               * * *.

               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.

       {¶ 13} The threshold question for this court in reviewing the denial of appellant's
combined motion for reconsideration and second motion for leave to file a delayed motion
for new trial is whether the trial court retained jurisdiction to hear and determine the
motion after this court affirmed the judgment of conviction and sentence in Armengau II.
For the reasons that follow, we conclude the trial court lacked jurisdiction to consider
appellant's motion.
       {¶ 14} In Special Prosecutors, the trial court granted a defendant's motion to
withdraw a guilty plea after a conviction and sentence based on the plea had been affirmed
on appeal. After a trial date had been set, the Supreme Court of Ohio granted a writ of
prohibition to prevent the trial from proceeding. The Supreme Court stated: "[T]he trial
court's granting of the motion to withdraw the guilty plea and the order to proceed with a
new trial were inconsistent with the judgment of the Court of Appeals affirming the trial
court's conviction premised upon the guilty plea. The judgment of the reviewing court is
controlling upon the lower court as to all matters within the compass of the judgment.
Accordingly, we find that the trial court lost its jurisdiction when the appeal was taken, and,
absent a remand, it did not regain jurisdiction subsequent to the Court of Appeals'
decision." Id. at 97.
       {¶ 15} Relying on Special Prosecutors, this court in Andrioff concluded the trial
court did not retain jurisdiction to hear and determine appellant's motion for new trial
brought pursuant to Crim.R. 33(A)(1) through (5) after this court had affirmed the
judgment of conviction and sentence. In reaching its conclusion, this court stated:
No. 17AP-852                                                                                8


               Defendant could have simply filed a motion for a new trial
               under Crim. R. 33(A)(1) through (5). However, he chose to file
               a notice of appeal pursuant to App. R. 4(B) and Crim. R. 33(F),
               and advanced four assignments of error: that the verdict was
               against the manifest weight of the evidence and was contrary to
               law; that he had ineffective assistance of counsel; evidentiary
               rulings of the court; and his sentencing. Whereupon, all
               assignments of error were overruled and the judgment
               affirmed.

               Thus, defendant elected to appeal his conviction. He advanced
               several issues which could have properly been the subject of a
               new trial within Crim. R. 33(A)(1) through (5). Since he elected
               to appeal, he cannot, in effect, relitigate the case in the trial
               court. Although the trial court retains jurisdiction over issues
               not inconsistent with the appellate court to review, modify,
               affirm or reverse a judgment, it does not regain jurisdiction
               over matters subject to the appeal in the absence of a reversal
               and remand by the appellate court. State, ex rel. Special
               Prosecutors, v. Judges (1978), 55 Ohio St. 2d 94.

(Emphasis added.) Id.
       {¶ 16} In Davis, the Supreme Court addressed whether, in light of Special
Prosecutors, a trial court retains jurisdiction to hear and determine a Crim.R. 33(A)(6)
motion for new trial based on newly discovered evidence after a conviction has been
affirmed in the direct appeal. The Supreme Court held that a trial court retains jurisdiction
to hear and determine a Crim.R. 33(A)(6) motion when it raises issues that could not have
been raised in the direct appeal because resolution of those issues depended on evidence
outside the record in that appeal. Id. at ¶ 34, 37.
       {¶ 17} In Davis, appellee argued in the alternative that even if the trial court retained
jurisdiction to hear and determine a Crim.R. 33 motion for new trial after the judgment and
conviction was affirmed on appeal, the law of the case doctrine would present a bar to relief.
The Davis court noted:

               The law-of-the-case doctrine holds that "the decision of a
               reviewing court in a case remains the law of that case on the
               legal questions involved for all subsequent proceedings in the
               case at both the trial and reviewing levels." (Emphasis added)
               Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 11 OBR 1, 462 N.E.2d
               410. This doctrine prevents a litigant from relying on
               arguments at retrial that were fully litigated, or could have been
               fully litigated, in a first appeal. See Hubbard ex rel. Creed v.
No. 17AP-852                                                                              9


               Sauline (1996), 74 Ohio St.3d 402, 404-405, 1996 Ohio 174,
               659 N.E.2d 781.

Id. at ¶ 30.
       {¶ 18} In rejecting appellee's contention that the law of the case doctrine presented
a bar to appellant's Crim.R. 33(A)(6) motion, based on newly discovered evidence, the court
in Davis noted the law of the case doctrine would not prevent a trial court from considering
a new trial motion after the judgment of conviction and sentence was affirmed on appeal
where the motion was "based on newly discovered evidence when the specific issue has not
been decided upon direct appeal." Id. at ¶ 37.
       {¶ 19} Though appellant allegedly grounded his second motion for leave to file a
delayed motion for new trial in part on newly discovered evidence, pursuant to Crim.R.
33(A)(6), appellant did not produce any newly discovered evidence to support the motion.
Rather, appellant presented the same affidavit from Caldwell that he presented in his
original motion for leave to file a motion for delayed appeal and made the same arguments
in support of his second motion that he made in his original motion. For example, appellant
once again argues that his convictions were the result of prosecutorial and witness
misconduct, that his convictions were not supported by sufficient evidence, that his
convictions were based on inadmissible "other acts" evidence, and that the indictment was
faulty. These are the same arguments appellant raised in his original motion for leave to
file a motion for delayed new trial and the same arguments he raised in his appeal to this
court from the judgment of conviction and sentence. Armengau II at ¶ 53. As we noted in
Armengau I, such arguments are grounded on Crim.R. 33(A)(1), (2), and (5), not Crim.R.
33(A)(6).
       {¶ 20} Accordingly, pursuant to the decisions of the Supreme Court in Davis and
Special Prosecutors and the decision of this court in Andrioff, the trial court was divested
of jurisdiction to hear and determine both appellant's motion for reconsideration of his first
motion for leave to file a delayed motion for new trial and his second motion for leave to
file a delayed motion for new trial after this court affirmed the judgment of conviction and
sentence on appeal. To the extent appellant claims that either the majority or the dissenting
opinion in Armengau II constitutes newly discovered evidence in support of his second
motion for new trial, appellant has cited no case law in support of such a claim and this
court has found none. Moreover, the majority decision of this court in Armengau II
No. 17AP-852                                                                                        10


overruled appellant's assignments of error alleging prosecutorial and witness misconduct,
insufficiency of evidence, inadmissible "other acts" evidence, and a faulty indictment.3 As
noted above, the remand order in Armengau II was limited to resentencing as to certain
counts and redetermining appellant's sex offender status. In our opinion, the trial court
never regained jurisdiction to alter or amend the judgment entry of conviction in the
manner sought by appellant's motion for reconsideration or his second motion for leave to
file a motion for new trial.          See Cordray at ¶ 25 (the lower court "patently and
unambiguously lacked jurisdiction to grant a motion for relief from a murder conviction
and sentence based on claims that had previously been rejected by the court of appeals in
an appeal in the same case").
        {¶ 21} Moreover, even if we were to agree with appellant that the dissenting opinion
in Armengau II supports the grounds for a new trial alleged in appellant's proposed
motions for new trial, the law of the case doctrine and our decision in Armengau I bar
appellant from raising these claims. In Armengau I, we denied appellant leave to file an
untimely motion for new trial on the grounds set forth in Crim.R. 33(A)(1), (2), and (5) on
finding appellant failed to show that he was unavoidably prevented from filing his motion
for new trial within 14 days of the jury verdict as required by Crim.R. 33(B). Id. at ¶ 29. We
denied his motion for leave to file an untimely motion for new trial on the grounds of newly
discovered evidence, pursuant to Crim.R. 33(A)(6), on finding appellant failed to show that
he was unavoidably prevented from discovering Caldwell's evidence within 120 days of the
jury verdict as required by Crim.R. 33(B) and that he further failed to file his motion for
leave within a reasonable time after discovering Caldwell's evidence. In Armengau I, this
court never reached the merits of appellant's new trial motion because we agreed with the
trial court that appellant failed to satisfy the requirements for leave under Crim.R. 33(B).
Our holding in Armengau I remained the law of the case for purposes of appellant's motion
for reconsideration and second motion for leave to file a delayed motion for new trial.

3The dissenting opinion would have sustained appellant's second assignment of error, reversed appellant's
convictions, and remanded the matter for a new trial. Appellant's second assignment of error alleged:
                [Appellant's] rights to due process and a fair trial were violated when the
                trial court allowed the State to present irrelevant, cumulative, overly
                prejudicial evidence about prior bad acts through additional non-victim
                witnesses, whose testimony also violated the Ohio Rape Shield Statute, as
                well as testimony of hundreds of unindicted offenses.
No. 17AP-852                                                                             11


Davis. See also State v. Cochran, 10th Dist. No. 16AP-491, 2017-Ohio-1528, ¶ 5 ("Absent
extraordinary circumstances, such as an intervening decision by the Supreme Court, an
inferior court has no discretion to disregard the mandate of a superior court in a prior
appeal in the same case."). The fact the dissenting opinion in Armengau II arguably
supports the grounds for new trial appellant asserted under Crim.R. 33(A)(1) through (5)
does not alter our conclusion in Armengau I that appellant's motion asserting those
grounds was untimely filed, and appellant failed to demonstrate compliance with Crim.R.
33(B). The only "newly discovered" evidence cited by appellant in his combined motion for
reconsideration and second motion for leave to file a motion for new trial was the Caldwell
affidavit. Appellant presented nothing to excuse his untimeliness that this court had not
already considered in Armengau I.
       {¶ 22} For the foregoing reasons, we hold the trial court did not err when it denied
appellant's motion seeking reconsideration of his original motion for leave to file a delayed
motion for new trial and his alternative second motion for leave to file a motion for delayed
new trial. Accordingly, we overrule appellant's assignments of error.
V. CONCLUSION
       {¶ 23} Having overruled each of appellant's assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.

                          BROWN, P.J., and KLATT, J., concur.
                             ___________________
