[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
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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
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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).
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{¶ 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.
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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
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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
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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
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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.
