[Cite as State v. Dew, 2013-Ohio-2549.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) CASE NO. 12 MA 18 

) 

PLAINTIFF-APPELLEE, ) 

) 

VS. ) O P I N I O N 

) 

GREGORY DEW, ) 

) 

DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas 

Court, Case No. 07CR1262. 

JUDGMENT: Affirmed in part; Reversed and 

Remanded in part. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Paul Gains 

Prosecuting Attorney 

Attorney Ralph Rivera 

Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: Attorney Michael McGee 

108 Main Avenue, Suite 500 

Warren, Ohio 44481 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

Dated: June 17, 2013
[Cite as State v. Dew, 2013-Ohio-2549.]

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 
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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, 
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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 Unavoidably Prevented from the Discovery of the 

Evidence upon which He Relies.” Case Number 12MA25 was consolidated into this 

appeal and that pro se brief was not struck from the record. Therefore, we will 

consider Dew’s pro se arguments regarding the trial court’s ruling on the motion for 

leave to file a delayed Crim.R. 33 motion for new trial. 

{¶9} For clarification, the issues that are addressed in this appeal are the 

trial court’s ruling on the motion for leave to file a delayed Crim.R. 33 motion for new 

trial and the trial court’s ruling on the request for grand jury transcripts. 

Crim.R. 33 Motion for Leave

{¶10} On November 28, 2011, Dew filed a motion titled “Evidentiary Hearing 

Requested” and “Motion for an Order finding Defendant was Unavoidably Prevented 

from the Discovery of the Evidence upon which he Relies.” This motion clearly asked 

the trial court to allow him leave to file a delayed motion for new trial pursuant to 

Crim.R. 33(B). The state responded to that motion claiming that leave should not be 

granted. 12/19/11 Motion. Dew argued in his pro se brief that the trial court 

incorrectly concluded that it was without jurisdiction to rule on his motion for leave to 

file a delayed Crim.R. 33 motion for a new trial. 
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{¶11} Crim.R. 33(B) provides: 

 Application for a new trial shall be made by motion which, except 

for the cause of newly discovered evidence, shall be filed within 

fourteen 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 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. 

 Motions for new trial on account of newly discovered evidence 

shall be filed within one hundred twenty days after the day upon which 

the verdict was rendered, or the decision of the court where trial by jury 

has been waived. 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 one hundred twenty 

day period. 

Crim.R. 33(B). 

{¶12} The motion for new trial was clearly untimely. However, Dew was 

seeking permission to file a delayed motion for new trial. He followed the rule and 

asked for leave to file an untimely motion for new trial before filing the motion for new 

trial. State v. Wilson, 7th Dist. No. 11MA92, 2012-Ohio-1505, ¶ 42 (indicating that 

proper procedure for a filing a Crim.R. 33 motion for new trial beyond the time limits 

is to first file a motion for leave). His argument indicated that the motion for new trial 

will be based on newly discovered evidence. 

{¶13} The Ohio Supreme Court has stated that even after an appellate court 

affirms a trial court’s ruling, the trial court still retains jurisdiction over post-trial 

motions permitted by the Ohio Rules of Criminal Procedure. State v. Davis, 131 Ohio 
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St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶ 37. Thus, it specifically held that the 

trial court retains jurisdiction to decide a motion for new trial based on newly 

discovered evidence when the specific issue has not been decided on direct appeal. 

Id. 

{¶14} As explained above, a motion for leave to file an untimely motion for 

new trial is permitted by Crim.R. 33(B). Thus, the trial court retained jurisdiction to 

decide this motion. If we were to hold otherwise, that would mean that no untimely 

motion could be considered if the defendant had already appealed the decision. As 

the Ohio Supreme Court noted in Davis, “These [post trial] motions [that are 

prescribed by the Ohio Rules of Criminal Procedure] provide a safety net for 

defendants who have reasonable grounds to challenge their convictions and 

sentences.” Id. 

{¶15} Consequently, the trial court’s decision regarding this issue is reversed 

and the cause is remanded to the trial court with instructions to rule on the motion for 

leave. 

Grand Jury Transcripts

{¶16} The assignment of error addressing the trial court’s denial of Dew’s 

motion to obtain grand jury transcripts reads: 

{¶17} “The trial court erred to the prejudice of Appellant by denying his motion 

to obtain the grand jury transcripts.” 

{¶18} The motion to obtain grand jury transcripts that is at issue in this case 

was filed in 2011. However, it was not the first motion that Dew filed seeking to 

obtain the grand jury transcripts. In August 2007, prior to trial, while the case was 

actively before the trial court, Dew filed a Motion to Inspect Grand Jury Proceeding. 

In that motion, he acknowledged that while Crim.R. 6(E) provides for grand jury 

proceedings to be secret, it also allows for the disclosure of grand jury proceedings if 

there is a court order allowing it. In order to obtain a court order, the defense must 

show that a particularized need for disclosure exists which outweighs the need for 

secrecy. State v. Greer, 66 Ohio St.2d 139 (1981), paragraph two of the syllabus. 
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Dew argued that the facts of the case showed that he met this standard. 08/17/07 

Motion. 

{¶19} In response to that motion, the trial court ordered the proceedings 

transcribed and to be put under seal for only its inspection. 08/20/07 J.E. After the 

trial court reviewed the motion, it found that there was no misconduct of the 

prosecutor or grand jury and thus, there was no demonstrated particularized need for 

disclosure of the transcripts. 08/24/07 J.E. 

{¶20} After the jury convicted Dew and while the direct appeal was pending 

before our court, he filed a motion with the trial court to preserve the grand jury 

testimony for purposes of appeal and to transmit them under seal to this court. 

05/19/08 Motion. The state agreed and the trial court granted the motions thereby 

transmitting the transcripts to our court under seal. 05/20/08 Motion; 05/23/08 J.E. 

{¶21} However, in the direct appeal, no issue was raised to this court 

concerning the trial court’s ruling that there was not a demonstrated particularized 

need for the disclosure of the grand jury transcripts. Or in other words, the 

correctness of the trial court’s August 24, 2007 ruling was not appealed. 

{¶22} In the 2011 motion to obtain grand jury transcripts, Dew acknowledges 

the trial court’s prior decision that he had not displayed a particularized need for 

disclosure of the grand jury transcript. He now asserts that he did show a 

particularized need. In claiming as such, he contends that the trial court’s decision 

was based on a narrow interpretation of State v. Noogle, 67 Ohio St.3d 31 (1993), 

which held that according to the statute enacted at the time for sexual battery, a 

coach was not considered in loco parentis of an athlete. Dew was a coach for the 

first two victims. Dew claims that the trial court had a strong issue with the Noogle

decision and even stated at trial that the mere position of a coach fulfills the 

requirement of force or threat of force. Thus, according to Dew, there is a basis to 

reverse the trial court’s lack of particularized need ruling. 

{¶23} The trial court denied the 2011 motion to obtain grand jury transcripts 

by stating that “[t]his Court has previously ruled that it is without jurisdiction to 
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entertain Defendant’s Motions, because Defendant has already appealed, and such 

issues should have been raised on appeal.” 01/17/12 J.E. 

{¶24} In the appellate briefs, Dew asserts that the trial court’s decision that it 

lacks jurisdiction to decide the issue is incorrect. In support of his position, he argues 

that there are instances where a trial court has jurisdiction to rule on a post-trial 

motion for grand jury transcripts and this case presents one of those instances. The 

state, on the other hand, disagrees. Both parties cite to State v. Russell, 10th Dist. 

No. 05AP-1325, 2006-Ohio-5945, to support their respective positions. 

{¶25} However, we do not need to discuss the Russell case or whether trial 

courts have jurisdiction over post-trial, post-appeal motions for grand jury transcripts 

because in this instance, the motion was barred by the principles of res judicata. The 

trial court’s statement that the issue should have been raised in the direct appeal is 

correct. 

{¶26} Principles of res judicata bar a criminal 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 appeal from 

that judgment. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph 

nine of the syllabus. The grand jury transcripts were forwarded to this court under 

seal. Thus, the trial court’s decision that Dew did not show a particularized need for 

the disclosure of the transcripts could have been raised in the direct appeal. 

However, as discussed above, it was not. Accordingly, the same argument regarding 

those transcripts is barred by res judicata. 

{¶27} For the above stated reasons this assignment of error lacks merit. 

Conclusion

{¶28} In conclusion, the trial court did have jurisdiction to rule on the Crim.R. 

33 motion for leave to file a delayed motion for new trial based on newly discovered 

evidence. That said, the request for grand jury transcripts is barred by res judicata. 

Therefore, the judgment of the trial court is affirmed in part and reversed and 
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remanded in part with instructions for the trial court to rule on the motion for leave to 

file a delayed Crim.R. 33 motion based on newly discovered evidence. 

Waite, J., concurs. 

DeGenaro, P.J., concurs.