from the Morgan County Court of Common Pleas, Case No.12-CR-
Plaintiff-Appellee: MARK J. HOWDYSHELL MORGAN CO. PROSECUTOR
Defendant-Appellant: MICHAEL SHANE SHUSTER, PRO SE
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
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
AND PROCEDURAL HISTORY
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');">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
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');">2014-Ohio-4144 [Shuster II], appeal not allowed, 142
Ohio St.3d 1409, 2015 -Ohio- 1099, 27 N.E.3d 539.
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 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');">2016-Ohio-5030
[Shuster III], appeal not allowed, 148 Ohio St.3d
1426, 2017-Ohio-905, 71 N.E.3d 298.
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.
Appellant now appeals from the trial court's decisions
overruling his motion for leave to file a motion for new
Appellant raises three assignments of error: