[Cite as State v. Johnson, 2023-Ohio-1686.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO 

 Appellee

v. 

DERRICK L. JOHNSON

 Appellant

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C.A. No. 29659

Trial Court Case No. 1991 CR 01751/1

(Criminal Appeal from Common Pleas 

Court)

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O P I N I O N

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-Ohio452, ¶ 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-CA95, 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 federalcourt 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.