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State v. Dew

Court of Appeals of Ohio, Seventh District

June 17, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
GREGORY DEW, DEFENDANT-APPELLANT.

Criminal Appeal from Common Pleas Court, Case No. 07CR1262.

For Plaintiff-Appellee: Attorney Paul Gains Prosecuting Attorney Attorney Ralph Rivera Assistant Prosecuting Attorney

For Defendant-Appellant: Attorney Michael McGee

JUDGES: Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Mary DeGenaro.

OPINION

VUKOVICH, J.

{¶1} Defendant-appellant Gregory Dew appeals the Mahoning County Common Pleas Court's decision that found it was without jurisdiction to rule on Dew's "Motion to Obtain Grand Jury Transcripts" and "Motion For An Order Finding Defendant Was Unavoidably Prevented From The Discovery Of The Evidence Upon Which He Relies." The trial court's reasoning was that Dew had already appealed and such issues should have been raised in the direct appeal. In this case, we are asked to determine whether the trial court's decision regarding these two motions was correct.

{¶2} For the reasons expressed below, the "Motion For An Order Finding Defendant Was Unavoidably Prevented From the Discovery of the Evidence Upon Which he Relies" is a motion for leave to file a delayed motion for new trial based on newly discovered evidence pursuant to Crim.R. 33. The trial court had jurisdiction to rule on this motion. As for the motion for grand jury transcripts, the argument presented in that motion could have been raised in the direct appeal. Thus, the motion was barred by res judicata. Therefore, the trial court's decision is affirmed in part, and reversed and remanded in part with instructions for the trial court to rule on the Crim.R. 33 motion for leave to file a delayed motion for new trial.

Statement of the Case

{¶3} In March 2007, the Mahoning County Grand Jury indicted Dew on three counts of sexual battery for incidents that occurred in the early 1990s. State v. Dew, 7th Dist. No. 08MA62, 2009-Ohio-6537, ¶ 4. This indictment was later dismissed because the sexual battery statute under which he was charged was not in effect when the alleged acts were committed. Id. However, prior to the dismissal, the Grand Jury reconvened and issued a superceding indictment in May 2007 charging Dew with three counts of rape, one count of corruption of a minor, and one count of gross sexual imposition. Id. This indictment identified two victims. Id.

{¶4} During the subsequent investigation, three additional women came forward with allegations against Dew. Id. at ¶ 5. The Grand Jury reconvened and issued another superceding indictment that charged Dew with an additional fifteen counts of gross sexual imposition and three counts of rape. Id. The two cases were consolidated for trial. Id. at ¶ 6. After hearing the evidence, the jury found Dew guilty of four counts of rape, one count of corruption of a minor and two counts of gross sexual imposition.

{¶5} Dew timely appealed that decision to our court. Upon review, we upheld three of the rape convictions, the corruption of a minor conviction and one of the gross sexual imposition convictions. Id. ¶ 139. We reversed and vacated one rape conviction and one gross sexual imposition conviction. Id. Dew appealed our decision to the Ohio Supreme Court, which did not accept the case for review. State v. Dew, 124 Ohio St.3d 1510, 2010-Ohio-799, 922 N.E.2d 972. Dew also filed a petition for writ of certiorari with the United States Supreme Court, which was likewise denied. Dew v. Ohio, 131 S.Ct. 594 (2010).

{¶6} On November 14, 2011, Dew filed an untimely pro se application to reopen his appeal. State v. Dew, 7th Dist. No. 08 MA 62, 2012-Ohio-434. We denied the application because Dew failed to establish good cause for the delay. Id. at ¶ 10.

{¶7} Two weeks after filing the pro se application for reopening, Dew, pro se, filed the "Motion to Obtain Grand Jury Transcripts" and the "Motion for an Order Finding Defendant was Unavoidably Prevented from the Discovery of the Evidence upon which He Relies." 11/28/11 Motions. The state responded to both motions. 12/19/11 Motions. The trial court found it was without jurisdiction to rule on both motions. 01/03/12 J.E.; 01/17/12 J.E. The stated reasons were because Dew's case before the trial court was completed after his conviction by jury and consequent sentencing by the trial court, and because "Defendant has already appealed, and such issues should have been raised on appeal." 01/03/12 J.E.; 01/17/12 J.E.

{¶8} Dew timely appeals from those judgments. Originally, we held that the trial court's ruling on the "Motion for an Order Finding Defendant was Unavoidably Prevented from the Discovery of the Evidence upon which He Relies" was not a final appealable order, and therefore, we were without jurisdiction to rule on it. Our reason for doing so was because in the trial court's order finding it was without jurisdiction, the trial court did not specifically state it was denying a delayed Crim.R. 33 motion. Thus, we limited the issue on appeal to a review of whether the trial court had jurisdiction to rule on the request for grand jury transcripts. After briefing was completed, a review of the case file was done and it was deemed that our earlier ruling that we were without jurisdiction to rule on the "Motion for an Order Finding Defendant was Unavoidably Prevented from the Discovery of the Evidence upon which He Relies" was incorrect. Accordingly, we issued a judgment entry allowing Dew to file a supplemental brief to argue that the trial court incorrectly determined that it was without jurisdiction to rule on the "Motion for an Order Finding Defendant was Unavoidably Prevented from the Discovery of the Evidence upon which He Relies." Counsel for Dew did not file a brief addressing this issue. That said, in case number 12MA25, a pro se appeal filed by Dew, Dew filed a brief that, in addition to other arguments, addresses the propriety of the trial court's ruling on the "Motion for an Order Finding Defendant was ...


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