[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.
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{¶ 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
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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
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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
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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