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State v. Shuster

Court of Appeals of Ohio, Fifth District, Morgan

May 11, 2017

STATE OF OHIO Plaintiff-Appellee
v.
MICHAEL SHANE SHUSTER Defendant-Appellant

         Appeal from the Morgan County Court of Common Pleas, Case No.12-CR- 0008

          For Plaintiff-Appellee: MARK J. HOWDYSHELL MORGAN CO. PROSECUTOR

          For 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.

          OPINION

          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');">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');">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 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.

         {¶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 ...


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