[Cite as State v. Shuster, 2017-Ohio-2776.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 16AP0012
:
MICHAEL SHANE SHUSTER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Morgan County Court
of Common Pleas, Case No.12-CR-
0008
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 11, 2017
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
MARK J. HOWDYSHELL MICHAEL SHANE SHUSTER, PRO SE
MORGAN CO. PROSECUTOR CCI, Inmate No. A685-632
19 East Main Street P.O. Box 5500
McConnellsville, OH 43756 Chillicothe, OH 45601
Morgan County, Case No. 16AP0012 2
Delaney, P.J.
{¶1} Appellant Michael Shane Shuster appeals from the November 28, 2016 and
December 7, 2016 Journal Entries of the Morgan County Court of Common Pleas
overruling his motion for leave to file a motion for new trial. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant was tried and convicted upon multiple counts of gross sexual
imposition, sexual battery, rape, and rape of a child under the age of 13 for offenses
against a family member. The trial court sentenced appellant to an aggregate prison term
of 105 years to life. Upon direct appeal, we affirmed the convictions and sentence. State
v. Shuster, 5th Dist. Morgan Nos. 13AP0001, 13AP0002, 2014-Ohio-3486 [Shuster I],
appeal not allowed, 141 Ohio St.3d 1489, 201-Ohio-842, 26 N.E.3d 824, reconsideration
denied, 142 Ohio St.3d 1469, 2015-Ohio-1896, 30 N.E.3d 976, and cert. denied as
Shuster v. Ohio, 136 S.Ct. 404, 193 L.Ed.2d 321 (2015). A comprehensive statement of
the facts underlying appellant’s convictions may be found in Shuster I.
{¶3} On February 20, 2014, appellant filed a petition for post-conviction relief
arguing defense trial counsel should have made better use of the defense psychological
expert, obtained a medical expert, and used a more experienced investigator. The trial
court dismissed appellant’s petition without a hearing, a decision we affirmed in State v.
Shuster, 5th Dist. Morgan No. 14 AP 0003, 2014-Ohio-4144 [Shuster II], appeal not
allowed, 142 Ohio St.3d 1409, 2015 -Ohio- 1099, 27 N.E.3d 539.
{¶4} On June 5, 2013, appellant filed a motion for new trial based upon juror
misconduct, to which was attached an unsworn affidavit of a juror. A hearing was held
on July 5, 2013, but the trial court denied the motion on the basis that it had no jurisdiction
Morgan County, Case No. 16AP0012 3
to rule during the pendency of the appeals described supra. The trial court also found
appellant failed to file an affidavit with the motion in violation of Crim.R. 33(C). After the
appeals were determined, appellant filed a sworn affidavit of the same juror, arguing it
was a substitute for the previous unsworn affidavit, and filed motions to amend and
supplement the motion for new trial. The trial court denied appellant’s motion for new trial
based upon juror misconduct, a decision we affirmed in State v. Shuster, 5th Dist. Morgan
No. 15AP0017, 2016-Ohio-5030 [Shuster III], appeal not allowed, 148 Ohio St.3d 1426,
2017-Ohio-905, 71 N.E.3d 298.
{¶5} On November 4, 2016, appellant filed a Motion for Leave to File Motion for
New Trial Instanter with Verified Motion for New Trial premised upon allegations of
prosecutorial misconduct and “abuse of discretion” by the trial court. Appellee responded
with a memorandum in opposition on November 17, 2016 and the trial court overruled
appellant’s motion by judgment entries dated November 28, 2016 and December 7, 2016.
{¶6} Appellant now appeals from the trial court’s decisions overruling his motion
for leave to file a motion for new trial.
{¶7} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶8} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION; WHEN
IT OVERRULED AND DENIED DEFENDANT’S PROPERLY FILED MOTION FOR NEW
TRIAL, BASED ON PROSECUTORIAL MISCONDUCT AND ABUSE OF DISCRETION
BY THE COURT, PREVENTING HIM FROM HAVING A FAIR TRIAL; WITHOUT EVEN
HOLDING A HEARING.” (sic throughout).
Morgan County, Case No. 16AP0012 4
{¶9} “II. IT WAS EVIDENCE OF BIAS AND PREJUDICE AGAINST
DEFENDANT FOR TRIAL COURT TO ISSUE A SECOND JOURNAL ENTRY;
OVERRULING AND DENYING DEFENDANT’S MOTION FOR NEW TRIAL. IN FACT,
AS SUPPORTED IN DEFENDANT’S MOTION FOR NEW TRIAL, THERE WERE
NUMEROUS INSTANCES OF TAINT OR A LEVEL OF PREJUDICE AGAINST
DEFENDANT. HE DID NOT RECEIVE A FAIR TRIAL AND IMPARTIAL PROCEEDINGS
AT MANY STAGES.” (sic throughout).
{¶10} “III. THE TRIAL COURT ERRED BY FAILING TO ADDRESS THE MERITS
OF THE PROSECUTORIAL MISCONDUCT AND ABUSE OF DISCRETION ALLEGED
IN DEFENDANT’S MOTION FOR NEW TRIAL.”
ANALYSIS
I., II., III.
{¶11} Appellant’s three assignments of error are related and will be considered
together. He argues the trial court erred in overruling his motion for leave to file a motion
for new trial. We disagree.
{¶12} Crim.R. 33 governs new trials. A motion for a new trial made pursuant to
Crim.R. 33 is addressed to the sound discretion of the trial court, and may not be reversed
unless we find an abuse of discretion. State v. Schiebel, 55 Ohio St.3d 71, 75, 564 N.E.2d
54 (1990). It is also within the discretion of the trial court to determine whether a motion
for a new trial and the material submitted with the motion warrants an evidentiary hearing.
State v. Hill, 64 Ohio St.3d 313, 333, 595 N.E.2d 884 (1992). An abuse of discretion
implies that the trial court's judgment is arbitrary, unreasonable, or unconscionable. State
v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987).
Morgan County, Case No. 16AP0012 5
{¶13} Appellee argues appellant’s motion for leave to file a motion for new trial
was untimely. Crim.R. 33(B) states:
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 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.
{¶14} Appellant’s motion for leave to file a motion for new trial is filed well outside
the time limitations of Crim.R. 33 but no argument has been made that appellant was
unavoidably prevented from the discovery of the evidence upon which he relies.
Morgan County, Case No. 16AP0012 6
“Although a defendant may file his motion for a new trial along with his request for leave
to file such motion, ‘the trial court may not consider the merits of the motion for a new trial
until it makes a finding of unavoidable delay[.]’” State v. Brown, 8th Dist. Cuyahoga No.
95253, 2011-Ohio-1080, ¶ 14 (quoting State v. Stevens, 2nd Dist. Montgomery Nos.
23236, 23315, 2010-Ohio-556, ¶ 11). “Unavoidable delay results when the party had no
knowledge of the existence of the ground supporting the motion for a new trial and could
not have learned of the existence of that ground within the required time in the exercise
of reasonable diligence.” State v. Rodriguez–Baron, 7th Dist. Mahoning No. 12–MA–44,
2012-Ohio-5360, ¶ 11.
{¶15} We conclude the reason for appellant’s omission is that his latest claims are
not properly raised in a Crim.R. 33 motion for new trial. In his reply brief, appellant fully
acknowledges this is not a case of newly-discovered evidence. This [second] motion for
new trial is premised upon allegations of prosecutorial misconduct and “abuse[s] of
discretion” appearing in the trial record.1 Appellant argues:
* * * *. A Hearing, at least, should have been held in the
interests of justice. However, we have only a non-specific technical
denial [premised upon the fatal flaws on the face of appellant’s
motion] which failed to reach the merits of the claims. Once again,
these claims were not based upon newly discovered evidence.
Rather, these claims were prosecutorial misconduct and an abuse of
discretion. There never was a claim that he was unavoidably
1Appellant at length points out his first motion for new trial was premised upon newly-
discovered evidence, i.e. the juror’s affidavit.
Morgan County, Case No. 16AP0012 7
prevented. It was not a matter of timing. Rather, under the Rule, it
was a matter of justice. See Crim.R. 33(B). * * * *.
Appellant’s Brief, 12.
{¶16} Appellant’s latest claims, though, are not properly raised pursuant to
Crim.R. 33, and rest not upon the tenets of the Rule but upon his invocation of “a matter
of justice.” The claims contained in his motion are cognizable from the trial record and
are barred by the doctrine of res judicata, which may be applied to bar further litigation in
a criminal case of issues which were raised previously or could have been raised
previously in an appeal. State v. Johnson, 8th Dist. Cuyahoga No. 80247, 2002-Ohio-
2712, ¶ 7.
{¶17} 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 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. State v.
Szefcyk, 77 Ohio St.3d 93, 96, 671 N.E.2d 233, 1996-Ohio-337; State v. Perry, 10 Ohio
St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Not only does res
judicata bar appellant from raising issues that were raised in his direct appeal, it also bars
issues that could have been raised in that appeal. Szefcyk, supra.
{¶18} Appellant's grounds for a new trial involve alleged irregularities that
occurred during his trial and are part of the trial record, but he cites no reason why he
was prevented from raising these issues in his direct appeal to this court. State v. Russell,
10th Dist. Franklin No. 04AP-1149, 2005-Ohio-4063, ¶ 7, motion for delayed appeal
Morgan County, Case No. 16AP0012 8
denied, 107 Ohio St.3d 1695, 2005-Ohio-6763, 840 N.E.2d 202. Specifically, appellant
cites several comments during trial by prosecutors which he claims rise to the level of
prosecutorial misconduct. His arguments that the trial court abused its discretion arise
from the trial court’s decision overruling his motion to suppress, the length of his prison
term, the trial court’s failure to sua sponte inquire into the effect of pretrial publicity, and
the trial court’s decision overruling his first motion for new trial. Because appellant could
have raised these issues in his direct appeal, they are barred by res judicata. Id., citing
State v. Stark, 2nd Dist. Montgomery No. 19515, 2004-Ohio-670, at ¶ 7 [affirming
application of res judicata to deny defendant's claims of alleged trial error that should
have been raised on direct appeal]; State v. Palmer, 7th Dist. Belmont No. 96-BA-70,
1999 WL 979228 (Oct. 20, 1999) [affirming denial of motion for new trial based solely on
facts within trial record as res judicata].
{¶19} Accordingly, the trial court did not abuse its discretion when it denied
appellant's motion for a new trial without a hearing. As to appellant’s argument that the
trial court should have issued findings of fact and conclusions of law in support of its
judgment, it is well-established the trial court had no duty to issue findings of fact and
conclusions of law upon denial of appellant’s motion for a new trial. State ex rel. Collins
v. Pokorny, 86 Ohio St.3d 70, 71, 1999-Ohio-343, 711 N.E.2d 683 (1999), citing State v.
Girts, 121 Ohio App.3d 539, 565, 700 N.E.2d 395 (8th Dist.1997); State ex rel. Grove v.
Nadel, 81 Ohio St.3d 325, 326, 691 N.E.2d 275 (1998).
{¶20} We find no abuse of discretion by the trial court in its decisions overruling
appellant’s motion for leave to file a motion for new trial. Appellant’s three assignments
of error are overruled.
Morgan County, Case No. 16AP0012 9
CONCLUSION
{¶21} Appellant’s three assignments of error are overruled and the judgment of
the Morgan County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Wise, John, J. and
Wise, Earle, J., concur.