State v. Johnson

[Cite as State v. Johnson, 2023-Ohio-1686.]

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

STATE OF OHIO :
:
Appellee : C.A. No. 29659
:
v. : Trial Court Case No. 1991 CR 01751/1
:
DERRICK L. JOHNSON : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:

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OPINION

Rendered on May 19, 2023

...........

MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Attorney for Appellee

DERRICK L. JOHNSON, Appellant, Pro Se

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

HUFFMAN, J.

{¶ 1} Defendant-Appellant Derrick L. Johnson appeals, pro se, from the trial court’s

denial of his motion for leave to file a delayed motion for a new trial pursuant to Crim.R.

33(A)(1). Johnson contends that the trial court erred in denying his motion for leave to file

a delayed motion for a new trial because the court lacked subject matter jurisdiction to

“conflate” sub-parts (A)(6) and (B) of Crim.R. 33 in violation of State v. Bethel, 167 Ohio
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St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 41. For the reasons outlined below, we

affirm the judgment of the trial court.

I. Factual and Procedural Background

{¶ 2} In 1992, a jury convicted Johnson of two counts of aggravated murder, one

count of attempted aggravated murder, and aggravated robbery in connection with a 1991

home invasion at a house on Liberty-Ellerton Road in Jefferson Township. The charges

against Johnson arose out of a shooting that occurred in the late morning of June 29,

1991, at the residence of John Ware. The evidence established that Isaac Washington,

Shay Stephens, and Ralph Allen were present in the house when at least three armed

assailants—Keith DeWitt, Cedric Sinkfield, and Johnson—entered. Washington,

Stephens, and Allen were shot, resulting in the deaths of Washington and Stephens. Allen

survived and was a key prosecution witness at Johnson’s trial. Johnson appealed his

conviction, which this court affirmed in State v. Johnson, 2d. Dist. Montgomery No. 13449,

1993 WL 248135 (July 7, 1993).

{¶ 3} In 2014, Johnson sought leave to file a delayed motion for a new trial under

Crim.R. 33, claiming that he had obtained newly discovered evidence that undermined

the validity of his 1992 convictions, namely the April 2003 testimony by Allen in connection

with a federal court sentencing hearing for co-defendant DeWitt. In his 2014 motion,

Johnson argued that Allen had committed perjury when he denied being involved in drug

dealing during his testimony against Johnson in 1992 but later, in the 2003 federal court

sentencing hearing, admitted to possessing cocaine at the time of the 1991 home

invasion. Johnson also argued that the prosecutor had failed to disclose to defense
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counsel “rough notes and statements” from FBI agents that proved Johnson had had

nothing to do with the home-invasion robbery and shooting. In overruling Johnson’s

motion, the trial court observed that the motion was devoid of any “real evidence” as

Johnson had not accompanied his motion with a transcript, affidavit, or any other

evidence, and it noted that Johnson’s motion presented “merely allegations of some

testimony that he alleges occurred in a federal court hearing and some evidence he

alleges was withheld from his attorney.” The trial court held that, in addition to being filed

outside of the allotted time, Johnson’s purported new evidence lacked sufficient credibility

to warrant a hearing. Johnson appealed the trial court’s decision.

{¶ 4} On appeal, we affirmed the trial court’s order overruling Johnson’s 2014

motion. State v. Johnson, 2d Dist. Montgomery No. 26339, 2016-Ohio-4888. The critical

questions before us were whether Johnson had made a sufficient showing that he had

been unavoidably prevented from moving for a new trial within 120 days of the jury’s

verdict and whether he had filed his motion for leave within a reasonable time after

discovering his new evidence. Id. at ¶ 9. We agreed with the trial court that Johnson’s

motion had not included any newly discovered evidence or any affidavits or other

evidentiary materials supporting his claims. Id. at ¶ 10. The motion itself simply alleged

the existence of the evidence. Id. Johnson's motion also failed to address when he had

discovered Allen’s federal-court testimony or when he had discovered the “rough notes

and statements” he mentioned. Id. Because Allen did not testify in federal court until 2003,

Johnson plainly could not have discovered that evidence within 120 days of the jury’s

1992 verdict in his case. Id. We also agreed with the trial court that Johnson’s motion for
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leave had been filed “severely outside of the allotted time” and found that he had made

no effort to show that he had filed his motion within a “reasonable time” after discovering

Allen’s 2003 testimony. Id. We explained that Johnson had waited nearly 11 years after

Allen’s federal-court testimony to seek leave to move for a new trial based on that

testimony; that his motion did not explain the delay or address when he discovered Allen’s

testimony, what steps he took to do so, or why it took him almost 11 years; that his motion

provided no explanation whatsoever regarding his discovery of notes and statements

from FBI agents; and that his motion failed to mention when or how he discovered the

materials. Id. at ¶ 11. Under these circumstances, we concluded that the trial court did

not abuse its discretion in denying Johnson’s motion for leave to file a delayed new-trial

motion without a hearing, and we affirmed the judgment of the trial court. Id.

{¶ 5} While the foregoing appeal was pending, Johnson filed a second motion for

leave to seek a new trial in the trial court in 2015, again based on Allen’s 2003 testimony.

With that motion, Johnson attached his own affidavit and transcript excerpts from Allen’s

1992 testimony at Johnson’s trial and from Allen’s 2003 testimony in federal court. The

trial court denied Johnson’s motion, finding that, even though Johnson had satisfied the

requirements to obtain leave to move for a new trial without a hearing, granting Johnson

leave to seek a new trial was futile because the proffered subsequent testimony of trial

witness Allen was inadequate as a matter of law to demonstrate a strong probability that

Johnson had been prejudiced or denied a fair trial. Johnson appealed.

{¶ 6} On appeal, we again affirmed the trial court’s judgment regarding Johnson’s

2015 motion for leave to file a delayed motion for a new trial. State v. Johnson, 2d. Dist.
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Montgomery No. 26795, 2016-Ohio-4889. The issue on appeal was whether, after finding

that Johnson had met the statutory requirements to file a delayed new-trial motion, the

trial court had erred in denying him leave to do so on the basis that such a motion was

futile. Id. at ¶ 12. We noted, as a threshold matter, that no new-trial motion had

accompanied Johnson’s motion for leave to file one and that the trial court essentially

preempted his filing of a new-trial motion, finding that it would be futile. Id. at ¶ 13. We

explained that the trial court had denied Johnson leave because his newly discovered

evidence failed to disclose a strong probability that it would change the result if a new trial

were granted and that the trial court was capable of making this determination by

considering each cited portion of Allen’s 2003 federal-court testimony in light of Allen’s

1992 testimony at Johnson's trial. Id. at ¶ 18. Under the circumstances before us, we

concluded that the trial court had not abused its discretion in finding an evidentiary hearing

unnecessary to reach its conclusion or in determining that Allen’s 2003 federal-court

testimony would be unlikely to change the result if a new trial were granted. Id. We

concluded that the trial court correctly analyzed Johnson’s newly discovered evidence

and set forth valid reasons supporting its determination that pursuing a new-trial motion

premised on Allen’s 2003 testimony was futile. Id. We were unable to conclude that the

trial court’s thorough analysis was unreasonable, arbitrary, or unconscionable. Id. We

concluded that a review of Allen’s 1992 testimony and his 2003 federal-court testimony

supported the trial court’s finding that the evidence was inadequate as a matter of law to

demonstrate a strong probability that Johnson had been prejudiced or denied a fair trial

and that the trial court did not abuse its discretion by finding, without a hearing, that
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Johnson’s newly-discovered evidence was insufficient to warrant a new trial. Id. at ¶ 15.

{¶ 7} In 2022, Johnson filed a third motion seeking leave to file a delayed motion

for a new trial pursuant to Crim.R. 33(A)(1) based on irregularities in the trial court’s

previous proceedings regarding his second motion for leave. Johnson argued that, in his

second motion for leave to seek a new trial, the trial court agreed, without an evidentiary

hearing, that Johnson’s evidence satisfied the obstacles to filing a delayed motion for a

new trial but then failed to issue an entry allowing Johnson seven days to file a delayed

motion for new trial pursuant to Crim.R. 33(B). Johnson further argued that the trial court’s

application of Crim.R. 33(B) violated his due process and equal protection rights in

violation of Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470.

{¶ 8} The trial court denied Johnson’s third motion for leave to file a delayed motion

for a new trial pursuant to Crim.R. 33(A)(1). The trial court explained that Johnson’s 2022

motion was not based on newly discovered evidence but, instead, was based on a

previous irregularity in the proceedings and an abuse of discretion by the trial court and

that the issue presented in his motion involved the trial court’s prior consideration of the

merits regarding his second motion for new trial without allowing Johnson seven days

from the 2015 decision to file a delayed motion for a new trial. The trial court found that

the issues in Johnson’s second motion for leave to file a delayed motion for a new trial

had already been litigated and, thus, the issue raised in Johnson’s third motion had

already been litigated. In so holding, the trial court explained that the issue on appeal in

State v. Johnson, 2d. Dist. Montgomery No. 26795, 2016-Ohio-4889, was “whether, after

finding that Johnson had met the statutory requirements to file a delayed new-trial motion,
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the trial court erred in denying him leave to do so on the basis that such a motion would

be ‘futile.’ ” The trial court clarified that the issue in Johnson’s third motion for leave was

whether any irregularity had occurred in 2015 or whether the trial court previously had

abused its discretion such that Johnson should be granted a new trial. The trial court

concluded that, based on our holding in State v. Johnson, 2d. Dist. Montgomery No.

26795, 2016-Ohio-4889, even if there had been an irregularity in 2015, there was no

abuse of discretion because it was unlikely that the newly discovered evidence would

have changed the outcome of the trial, and thus the issue raised in Johnson’s renewed

third motion for leave had already been litigated.

{¶ 9} The trial court further explained that the court was not denying Johnson’s

third motion for leave due to any failure to file it within a reasonable time as set forth in

Bethel, but, rather, that Johnson’s motion was barred by res judicata and thus there was

no need to address whether he had met his required burden of proof in order to file an

untimely Crim.R. 33 motion. The trial court stated that any irregularity in considering the

merits of a new-trial motion in 2015 was negligible because it was futile for Johnson to be

granted leave to file a motion for a new trial based on Allen’s 2003 federal court testimony

when Allen’s credibility was thoroughly argued and considered in the 1992 trial. The trial

court also found that the Ohio Supreme Court’s recent holding in Bethel did not require a

different conclusion because the court was not denying Johnson’s leave to file on the

basis that his motion was not filed within a reasonable time but was denying it because

the issues had already been litigated in Johnson’s second motion. The trial court also

emphasized that, in Bethel, the court found it was unnecessary to remand a matter in
 -8-

order to comport with the technical requirements of Crim.R. 33(B) when it would be an

“exercise in futility” to do so. Bethel at ¶ 59. Likewise, the trial court concluded that

granting Johnson’s third motion for leave would be an exercise in futility.

{¶ 10} Johnson now appeals.

II. Assignment of Error

{¶ 11} Johnson’s sole assignment of error is as follows:

Whether the trial court lacked subject matter jurisdiction to “conflate”

sub-parts (A)(6), (B) of Crim. Rule 33 without granting leave under sub-part

(B) of Crim. Rule 33, in violation of State v. Bethel, 2022-Ohio-783 ¶ 41.

{¶ 12} Johnson contends that an irregularity in the proceedings during his 2015

motion for leave to file a delayed motion for a new trial was the basis for his motion for a

new trial. Crim.R. 33(A), which sets forth the authorized bases for a new trial, provides,

in part:

(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[.]

{¶ 13} Crim.R. 33(B) addresses the deadlines for bringing an application for a new

trial. In general, application for a new trial shall be made by motion which, except for the

cause of newly discovered evidence, shall be filed within 14 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
 -9-

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. Crim.R. 33(B).

Alternatively, motions for new trial on account of newly discovered evidence shall be filed

within 120 days after the day upon which the verdict was rendered or the decision of the

court where trial by jury has been waived. Id. 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 120-day period. Id.

{¶ 14} In order to file a motion for new trial after the expiration of the time periods

specified in Crim.R. 33(B), a defendant must first seek leave of the trial court to file a

delayed motion. State v. Hayden, 2d. Dist. Montgomery No. 29490, 2022-Ohio-3574,

¶ 13, citing State v. Lanier, 2d Dist. Clark No. 2009-CA-84, 2010-Ohio-2921, ¶ 15, citing

State v. Warwick, 2d Dist. Champaign No. 2001-CA-33, 2002-Ohio-3649. To obtain leave,

a defendant must demonstrate by clear and convincing evidence that he or she was

unavoidably prevented from timely filing the motion for a new trial or discovering the new

evidence within the time period provided by Crim.R. 33(B). Id.

{¶ 15} We review the trial court’s denial of leave to file a motion for a new trial for

an abuse of discretion. State v. Devaughns, 2d Dist. Montgomery No. 25826, 2015-Ohio-

452, ¶ 15. The term “abuse of discretion” implies that the court’s attitude was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983).
 -10-

{¶ 16} “Subject-matter jurisdiction refers to the constitutional or statutory power of

a court to adjudicate a particular class or type of case.” Corder v. Ohio Edison Co., 162

Ohio St. 3d 639, 2020-Ohio-5220, 166 N.E.3d 1180, ¶ 14, citing Pratts v. Hurley, 102

Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11-12. “A court’s subject-matter

jurisdiction is determined without regard to the rights of the individual parties involved in

a particular case.” Id., quoting Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-

Ohio-4275, 21 N.E.3d 1040, ¶ 19. Instead, “the focus is on whether the forum itself is

competent to hear the controversy.” Id., quoting State v. Harper, 160 Ohio St.3d 480,

2020-Ohio-2913, 159 N.E.3d 248, ¶ 23, citing 18A Wright, Miller & Cooper, Federal

Practice and Procedure, Section 4428, at 6 (3d Ed.2017) (“Jurisdictional analysis should

be confined to the rules that actually allocate judicial authority among different courts”).

{¶ 17} Article IV, Section 4(A) of the Ohio Constitution provides that “[t]here shall

be a court of common pleas and such divisions thereof as may be established by law

serving each county of the state,” and Article IV, Section 4(B) provides that “[t]he courts

of common pleas and divisions thereof shall have such original jurisdiction over all

justiciable matters * * * as may be provided by law.” Corder at ¶ 15. The general subject

matter jurisdiction of Ohio courts of common pleas is defined entirely by statute. Id. “The

court of common pleas has original jurisdiction of all crimes and offenses, except in cases

of minor offenses the exclusive jurisdiction of which is vested in courts inferior to the court

of common pleas.” R.C. 2931.03. Additionally, courts of common pleas have jurisdiction

to rule on post-judgment motions. (Citation omitted.) State ex rel. Cordray v. Marshall,

123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, ¶ 31.
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{¶ 18} Res judicata provides that a final judgment rendered upon the merits,

without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights,

questions, and facts in issue for parties and their privies in the same or any other judicial

tribunal. State ex rel. Rose v. Ohio Dept. of Rehab. & Corr., 91 Ohio St.3d 453, 455, 2001-

Ohio-95, 746 N.E.2d 1103 (2001), citing In re Guardianship of Lombardo, 86 Ohio St.3d

600, 604, 716 N.E.2d 189 (1999). Res judicata presupposes a judgment entered by a

court of competent jurisdiction. Id.

{¶ 19} “Pursuant to the doctrine of res judicata, a valid final judgment on the merits

bars all subsequent actions based on any claim arising out of the transaction or

occurrence that was the subject matter of the previous action.” Hayden at ¶ 17, citing

State v. Reed, 2d Dist. Montgomery No. 26526, 2015-Ohio-3051, ¶ 26, quoting State v.

Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645, ¶ 9. “Under the doctrine of res

judicata, a final judgment of conviction bars a convicted defendant who was represented

by counsel 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, which resulted in that judgment of conviction, or

on an appeal from that judgment.” Id., quoting State v. Szefcyk, 77 Ohio St.3d 93, 95, 671

N.E.2d 233 (1996), syllabus, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967), paragraph nine of the syllabus. “Additionally, arguments advanced in a

successive motion for a new trial may be barred by the doctrine of res judicata.” Id.,

quoting State v. Quinn, 2d Dist. Clark No. 2017-CA-102, 2018-Ohio-5279, ¶ 23, citing

Reed at ¶ 28 (where appellant “previously filed a motion for a new trial,” res judicata bars
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use of a successive new trial motion to raise issues that could have been asserted in the

prior motion).

{¶ 20} Johnson’s third motion for leave to file a delayed motion for a new trial under

Crim.R. 33(A)(1) was based on irregularities in the proceedings, not in his trial but in his

previous 2015 motion for leave to file a delayed motion for a new trial proceedings.

Johnson asserted that, in ruling upon his 2015 motion for leave, the trial court found that

he had met the threshold that he had been unavoidably prevented from discovering the

2003 testimony of Allen, but then proceeded to consider the merits of his claims without

providing him seven days in which to file his delayed motion for a new trial. Johnson

claims that the trial court did not have subject matter jurisdiction to conflate Crim.R.

33(A)(6) and (B) and make a merits determination on his 2015 motion for leave.

{¶ 21} Specifically, Johnson argues that, in order for the trial court to have subject

matter jurisdiction to rule on the merits of Johnson’s newly discovered evidence as

grounds for filing a delayed motion for a new trial, the trial court was required to grant

leave to Johnson, allowing him to file a motion for a new trial, which the trial court did not

do, and thus Johnson never filed his delayed motion for a new trial. As a result, Johnson

asserted that he was denied any fair mechanism for factual development on his newly

discovered evidence when he was never afforded the opportunity to file his motion for a

new trial. Johnson argued that he was denied due process and equal protection under

the laws of the United States and Ohio Constitutions and that the trial court created a

jurisdictional defect when it incorrectly applied the procedural requirements of Crim.R. 33.

{¶ 22} With respect to Johnson’s second motion for leave to file a delayed motion
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for a new trial, we note that Johnson never actually filed a motion for a new trial. In

general, under Crim.R. 33, a two-step process applies when a defendant seeks to file a

delayed new-trial motion. First, he must obtain leave by demonstrating that he was

unavoidably prevented from filing his motion within the time provided by the rule. If he

makes this showing, he must file his new-trial motion within seven days of a court order

granting him leave. See Crim.R. 33(B). “A defendant may file his motion for a new trial

along with his request for leave to file such motion[.]” State v. Lanier, 2d Dist. Clark No.

2009-CA-84, 2010–Ohio–2921, ¶ 17. In that situation, “the trial court may not consider

the merits of the motion for a new trial until it makes a finding of unavoidable delay.”

(Citations omitted). Id.

{¶ 23} To prevail on a new-trial motion, a defendant must demonstrate, among

other things, that his newly discovered evidence “‘discloses a strong probability that it will

change the result if a new trial is granted [.]’” State v. Quinn, 2d Dist. Clark No. 2014-CA-

95, 2016-Ohio-140, ¶ 13, quoting State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947).

The decision whether to grant a new trial is within a trial court's discretion. Likewise, the

decision whether to grant a hearing on a new-trial motion is within a trial court's

discretion. Id. at ¶ 12. Its ruling will not be disturbed absent an abuse of discretion. Id.

{¶ 24} In the 2015 motion for leave proceedings, the trial court found, without the

need for a hearing, that Johnson had presented clear and convincing proof that he had

been unavoidably prevented from discovering Allen’s 2003 federal-court testimony within

120 days of the verdict in his 1992 criminal trial. Because Allen’s 2003 testimony obviously

did not exist a decade earlier, the trial court held that Johnson had overcome Crim.R.
 -14-

33(B)’s obstacle to filing a delayed motion for a new trial. The issue on appeal was

whether, after finding that Johnson had met the statutory requirements to file a delayed

new-trial motion, the trial court had erred in denying him leave to do so on the basis that

such a motion would be futile.

{¶ 25} In Johnson’s 2015 appeal, we noted that, if a defendant files his delayed

motion for a new trial along with his request for leave to file the motion, the court may not

consider the merits of the new-trial motion until it determines that there has been an

unavoidable delay. Regarding Johnson’s second motion for leave, we determined that

the trial court did not make a determination that Johnson’s motion was without merit until

after it had made the finding that he had been unavoidably delayed. We noted, as a

threshold matter, that no new-trial motion accompanied Johnson’s motion for leave to file

one and that the trial court essentially preempted his filing of a new-trial motion, finding

that it would be futile. We explained that the trial court had denied Johnson leave because

his newly discovered evidence was inadequate as a matter of law and failed to disclose

a strong probability that it would change the result if a new trial was granted and that trial

court was capable of making this determination by considering each cited portion of

Allen’s 2003 federal-court testimony in light of Allen’s 1992 testimony at Johnson's trial.

We concluded that the trial court did not abuse its discretion in finding an evidentiary

hearing unnecessary to reach its conclusion or in determining that Allen’s 2003 federal-

court testimony would be unlikely to change the result if a new trial were granted. We also

concluded that the trial court had correctly analyzed Johnson’s newly discovered

evidence and set forth valid reasons supporting its determination that pursuing a new-trial
 -15-

motion premised on Allen’s 2003 testimony was futile, and we were unable to conclude

that the trial court’s thorough analysis was unreasonable, arbitrary, or unconscionable.

{¶ 26} Regarding Johnson’s third motion for leave to file a delayed motion for a

new trial, the trial court pointed out that the issue in Johnson’s 2015 appeal on his second

motion for leave was whether the trial court had erred in denying him leave to file a

delayed new-trial motion on the basis that such a motion would be futile and that the issue

in his third motion for leave was whether an irregularity had occurred in the 2015 motion,

resulting in the trial court’s abuse of discretion. In other words, the irregularity issue

presented in Johnson’s third motion for leave related to the trial court’s previously

considering the merits of a motion for a new trial without allowing Johnson seven days

from the 2015 decision to actually file his motion for a new trial, which was essentially the

same issue raised in Johnson’s 2015 appeal regarding whether the trial court erred in

denying him leave to file a delayed new-trial motion on the basis that such a motion would

be futile.

{¶ 27} In the instant matter, the trial court found that, even if there had been an

irregularity in the 2015 proceedings, there was no abuse of discretion because it was

unlikely that the newly discovered evidence would have changed the outcome of the trial.

The trial court stated that any irregularity in considering the merits of a new-trial motion in

2015 was negligible because it was futile for Johnson to be granted leave to file a motion

for a new trial based on Allen’s 2003 federal court testimony, especially when Allen’s

credibility was thoroughly argued and considered in the 1992 trial. The trial court

concluded that the issues in Johnson’s third motion for leave had already been litigated
 -16-

and thus were barred. Accordingly, we already addressed the issues that Johnson seeks

to now litigate, and, thus, the trial court properly found that Johnson’s third motion for

leave was barred by res judicata.

{¶ 28} Finally, nothing in Bethel would change this conclusion. Bethel stands for

the proposition that there is no requirement in Crim.R. 33 that a defendant seeking leave

to file a motion for a new trial must do so within a reasonable time after discovering the

newly discovered evidence upon which he relies. The trial court found that the reasoning

in Bethel did not require a different conclusion in this case because the court was not

denying Johnson’s leave to file on the basis that his motion had not been filed within a

reasonable time, but rather was denying it because the issues raised by Johnson had

already been litigated in Johnson’s second motion. The trial court also emphasized that,

in Bethel, the court found it was unnecessary to remand a matter in order to comport with

the technical requirements of Crim.R. 33(B) when it would be an “exercise in futility” to do

so. and it concluded that granting Johnson’s third motion for leave was an exercise in

futility. We agree with the trial court and conclude that the timeliness of Johnson’s third

motion for leave to file a delayed motion for a new trial was not an issue; the issues in

Johnson’s third motion had already been litigated in Johnson’s second motion. We also

agree with the trial court’s conclusion that it was unnecessary to remand a matter such

as this in order to comport with the technical requirements of Crim.R. 33(B) when it would

have be an “exercise in futility,” and thus we agree that Johnson’s issues in his third

motion for leave were barred by res judicata.

{¶ 29} We conclude that the trial court had subject matter jurisdiction in this
 -17-

criminal action and in considering Johnson’s motion for leave to file a delayed motion for

new trial, as the general division of the court of common pleas has original jurisdiction of

all crimes and offenses and to rule on post-judgment motions. We also see no abuse of

discretion in the trial court’s determination that the issues raised by Johnson in his third

motion for leave to file a delayed motion for a new trial were barred by res judicata.

{¶ 30} Johnson’s sole assignment of error is overruled.

III. Conclusion

{¶ 31} Having overruled Johnson’s assignment of error, the judgment of the trial

court is affirmed.

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

TUCKER, J. and LEWIS, J., concur.