State v. Shabazz ( 2013 )

[Cite as State v. Shabazz, 2013-Ohio-267.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98601
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMIL ABDUL SHABAZZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-495551
BEFORE: E.A. Gallagher, J., Boyle, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: January 31, 2013
FOR APPELLANT
Jamil Abdul Shabazz, pro se
Inmate No. 541-031
Allen Correctional Institution
P.O. Box 4501
Lima, Ohio 45802
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Jamil Adbul Shabazz appeals from the Cuyahoga County Court of
Common Pleas’ denial of his motion for a new trial. For the following reasons, we
affirm.
{¶2} A brief account of appellant’s lengthy history before this court is necessary.
Appellant was indicted on April 26, 2007, charged with one count of aggravated murder
with a three-year firearm specification, a notice of prior conviction and a repeat violent
offender specification. Prior to the commencement of trial, appellant executed a jury
waiver as to the notice of prior conviction and repeat violent offender specification.
{¶3} Appellant was found guilty of the lesser-included offense of murder as well
as the attached three-year firearm specification by a jury verdict rendered on November
19, 2007. The trial court found appellant guilty of the notice of prior conviction and
repeat violent offender specifications. Appellant was sentenced to a prison term of 15
years to life on the murder charge to run consecutively to a three-year prison term for the
firearm specification.
{¶4} Appellant brought a direct appeal of his conviction in State v. Shabazz
Abdul, 8th Dist. No. 90789, 2009-Ohio-225 (“Shabazz I”). Appellant asserted two
assignments of error: ineffective assistance of counsel and the trial court’s denial of his
Crim.R. 29 motion for acquittal. We rejected both assignments of error and affirmed the
conviction.
{¶5} On May 7, 2009, appellant applied to reopen our judgment in Shabazz I
based on a claim of ineffective assistance of appellate counsel. In State v. Shabazz
Abdul, 8th Dist. No. 90789, 2009-Ohio-6300 (“Shabazz II”), we denied appellant’s
application.
{¶6} While Abdul II was pending, appellant filed a petition for post-conviction
relief in the trial court. The state filed a motion for summary judgment, which was
granted by the trial court. On appeal in State v. Abdul Shabazz, 8th Dist. No. 94738,
2010-Ohio-5789 (“Shabazz III”), appellant asserted seven assignments of error. We
rejected all seven of appellant’s errors and affirmed the judgment of the trial court.1
{¶7} On May 17, 2012, appellant filed the motion for a new trial that is the
subject of the present appeal. The trial court denied appellant’s motion in a journal entry
dated May 24, 2012. Appellant appealed presenting four assignments of error. In his
first and second assignments of error, appellant argues that his indictment was not
presented to a grand jury and not signed by the foreman of a grand jury. In his third
assignment of error, appellant argues that his due process rights were violated by the
amendment of the indictment at trial to include lesser-included offenses. In his fourth
Five of appellant’s assignments of errors were rejected pursuant to the doctrine of res judicata.
1
assignment of error, appellant argues that he was prejudiced by the trial court’s failure to
present jury instructions on certain lesser-included offenses.
{¶8} Motions for a new trial are governed by the framework provided in Crim.R.
33. Crim.R. 33(B) requires a motion for a new trial to be made within 14 days after a
verdict is rendered. If a motion for a new trial is made on grounds of newly discovered
evidence, the motion must be filed within 120 days after the day the verdict is rendered.
Id. A defendant may file a motion for a new trial outside the 120-day deadline only by
leave of court and only 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[.]” Id.{¶9} Although not raised in appellant’s motion for a new trial before the trial
court, appellant now asserts that his motion is based on newly discovered evidence.
However, none of appellant’s assignments of error pertain to newly discovered evidence.
Appellant did not seek leave of the court to file a motion for a new trial outside the
Crim.R. 33(B) period and appellant’s motion for a new trial is devoid of any newly
discovered evidence. It is undisputed that appellant filed his motion for a new trial
outside the 120-day window established by Crim.R. 33(B). In order to obtain leave to
file his motion for a new trial, he had to establish, by clear and convincing proof, that he
was unavoidably prevented from discovering new evidence. State v. Clement, 8th Dist.
No. 97930, 2012-Ohio-3818, ¶ 4-5. As appellant’s motion failed to offer proof of any
kind to show why he was unavoidably prevented from the discovery of any new evidence
that would entitle him to a new trial, we cannot say that the trial court abused its
discretion in denying his motion. Id. at ¶ 6.
{¶10} Even if appellant’s motion was not time barred pursuant to Crim.R. 33(B),
we note that appellant’s assignments of error are also barred by the doctrine of res
judicata. As stated by the Ohio Supreme Court, under the doctrine of res judicata
a final judgment of conviction bars the convicted defendant 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 that resulted in that judgment of
conviction or on an appeal from that judgment.
State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967); accord State v. Briscoe,
8th Dist. No. 98414, 2012-Ohio-4943, ¶ 13.
{¶11} Each of appellant’s assignments of error pertain to matters that were
squarely within the record at the time of appellant’s direct appeal. Because they were
not raised on direct appeal, appellant is barred by the doctrine of res judicata from raising
them in this subsequent action.
{¶12} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR