State v. BlackState v. Black
For Plaintiff-Appellee
JOHN D. FERRERO Prosecuting Attorney
BY: RONALD MARK CALDWELL Assistant Prosecuting Attorney 110 Central Plaza South Suite 510 Canton, OH 44702
For Defendant-Appellant
LAWRENCE BLACK, PRO SE P.O. Box 20632 Canton, OH 44701
O P I N I O N
{¶1} On February 25, 1999, the Stark County Grand Jury indicted appellant, Lawrence Black, on one count of rape in violation of
{¶2} This court revisited appellant‘s case based upon a motion for reopening and once again affirmed appellant‘s conviction and sentence. See, State v. Black (July 23, 2001), Stark App. No.1999CA00185.
{¶3} On March 15, 2010, appellant filed a motion to vacate or set aside void judgment, claiming false imprisonment and invoking
{¶4} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
{¶5} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-MOVANT‘S MOTION TO VACATE AND SET ASIDE VOID JUDGMENT.”
II
{¶6} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-MOVANT‘S CIVIL RULE 60(B)(5) MOTION.”
{¶7} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-MOVANT‘S FALSE IMPRISONMENT CLAIM.”
IV
{¶8} “THE TRIAL COURT ERRED IN NOT GRANTING RELIEF DUE TO PROSECUTORIAL MISCONDUCT.”
{¶9} Prior to addressing appellant‘s assignments of error, we must review the procedural status of the case. On June 11, 1999, appellant filed a direct appeal of his convictions. The assignments of error were as follows:
{¶10} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY NOT ALLOWING CROSS EXAMINATION PERTAINING TO PRIOR BAD ACTS.”
{¶11} “II. THE TRIAL COURT ERRED IN NOT ORDERING A MISTRIAL FOLLOWING IMPROPER CLOSING ARGUMENT BY PROSECUTION.”
{¶12} “III. THE JURY VERDICT FINDING APPELLANT GUILTY OF RAPE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.”
{¶13} This court denied the assignments of error and affirmed the convictions. See, State v. Black (June 26, 2000), Stark App. No. 1999CA00185. On November 22, 2000, the Supreme Court of Ohio denied appellant‘s motion for delayed appeal. See, State v. Black (2000), 90 Ohio St.3d 1471.
{¶15} “THE TRIAL COURT ERRED WHEN IT EMPANELLED [SIC] AN ANONYMOUS JURY IN THE ABSENCE OF ANY EVIDENCE OR FINDINGS THAT AN ANONYMOUS JURY WAS NECESSARY IN THIS CASE, THEREBY COMMITTING STRUCTURAL ERROR, IN VIOLATION OF LAWRENCE BLACK‘S DUE PROCESS RIGHT UNDER THE UNITED STATES AND OHIO CONSTITUTIONS, INCLUDING HIS RIGHT TO THE PRESUMPTION OF INNOCENCE, AND HIS RIGHT TO A FAIR AND IMPARTIAL JURY.”
{¶16} This court denied the appeal under the authority of State v. Hill, 92 Ohio St.3d 191, 2001-Ohio-141. See, State v. Black (July 23, 2001), Stark App. No. 1999CA00185. On May 15, 2002, the Supreme Court of Ohio denied appellant‘s motion for delayed appeal. See, State v. Black, 95 Ohio St.3d 1457, 2002-Ohio-2230.
{¶17} On October 19, 2001, appellant filed a motion to arrest judgment, claiming he was not afforded a preliminary hearing and was not afforded counsel at the hearing. By judgment entry filed December 11, 2001, the trial court denied the motion. Appellant filed an appeal on December 20, 2001. By judgment entry filed February 11, 2001, this court dismissed appellant‘s appeal for the reasons stated in the state‘s motion to dismiss.
{¶18} On February 8, 2002, appellant filed a petition to vacate or set aside sentence, claiming ineffective assistance of trial counsel because his counsel failed to move for a mistrial based upon prosecutorial misconduct, failed to object to the use of
{¶19} On March 14, 2002, appellant filed numerous motions, including a motion to dismiss the rape charge because it violated the double jeopardy clause and the Fifth and Fourteenth Amendments, a motion for declaratory judgment to amend postconviction relief petition, and a motion to compel the trial court to issue findings of fact and conclusions of law. By judgment entries filed May 13, 2003, the trial court denied these motions.
{¶20} On April 12, 2006, appellant filed a pleading titled “JUDICIAL NOTICE IS GIVEN TO JUDGE HAAS CONCERNING NO WARRANT IN OVER SIX(6)YEARS BEYOND STATUE (SIC) OF LIMITATIONS, AND LACK OF PERSONAL JURISDICTION, AND APPELLANTS MAKES HIS OBJECTIONS PURSUANT TO CR.R. 52(B) KNOWN.”
{¶21} On May 4, 2006, the trial court denied appellant‘s postconviction relief petition and motion to dismiss.
{¶22} On May 8, 2006, appellant filed objections to all the claims made by the prosecutor, again arguing no warrant had been filed and six years had passed. Appellant again asked for a dismissal of his original case. Appellant also filed a separate motion asking for findings of fact and conclusions of law on the May 4, 2006
{¶23} On June 5, 2006, appellant filed an appeal on the trial court‘s May 4, 2006 judgment entry, and listed on the docketing statement the probable issues for review included the failure to file “the mandatory warrant.” Appellant‘s assignment of error argued the trial court erred in overruling his motion to dismiss based upon the warrant issue. On October 10, 2006, this court denied appellant‘s assignment, finding “appellant‘s April 12, 2006 motion was untimely under
{¶24} On March 15, 2010, appellant filed a motion to vacate or set aside void judgment, claiming false imprisonment and invoking
{¶25} Essentially, appellant argued his postconviction relief petition should be granted because he was unavoidably prevented from the discovery of the facts upon which he based his claims (
{¶26} “1. Absent a proper bindover procedure pursuant to
{¶27} “2. The exclusive subject matter jurisdiction of the juvenile court cannot be waived.”
{¶28} Appellant based his jurisdictional claims upon a “warrant not being issued for his arrest” which constituted prosecutorial misconduct. By judgment entry filed April 28, 2010, the trial court denied appellant‘s petition, finding “these issues have been raised before at both the trial and appellate levels.
{¶29} We note on October 25, 2002, appellant had filed a writ of habeas corpus in the United States District Court for the Northern District of Ohio, Eastern Division, Case No. 5:02CV2335, claiming lack of jurisdiction which was dismissed.
{¶30}
{¶31} If a postconviction relief petition is filed beyond the 180-day time limitation or the petition is a second or successive petition for postconviction relief,
{¶32} “(1) Both of the following apply:
{¶33} “(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States
{¶34} “(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.”
{¶35} “Unless the defendant makes the showings required by
I, II, III
{¶36} In his most recent petition for postconviction relief, appellant argued false imprisonment, and invoked
{¶37} As we noted supra, in his petition for postconviction relief filed October 19, 2001 (motion to arrest judgment), appellant argued the trial court did not have jurisdiction because of the failure to hold a preliminary hearing.
{¶38} Appellant also argues there was a lack of due process because a warrant was not issued for his arrest on the indictment. Appellant admits he was “in custody” prior to the return of the indictment. The indictment is signed by the grand jury foreman, and notes in the return that it “was personally delivered” to appellant on February 26, 1999. This matter was also previously litigated on appeal and as noted supra, was rejected by this court (State v. Black, Stark App. No. 2006CA00157, 2006-Ohio-5356) and an appeal was not accepted by the Supreme Court of Ohio. See, State v. Black, 113 Ohio St.3d 1415, 2007-Ohio-1036.
{¶39} As stated by the Supreme Court of Ohio in State v. Perry (1967), 10 Ohio St.2d 175, paragraphs eight and nine of the syllabus, the doctrine of res judicata is applicable to petitions for postconviction relief. The Perry court explained the doctrine at 180-181 as follows:
{¶40} “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 which resulted in that judgment of conviction or on an appeal from that judgment.”
{¶41} In addition, appellant argues no crime was committed, there was no violation of a protection order, and the rape charge should be dismissed. The manifest weight of the evidence on the rape charge argument was reviewed on direct appeal and rejected. See, State v. Black (June 26, 2000), Stark App. No.1999CA00185.
{¶43} Assignments of Error I, II, and III are denied.
IV
{¶44} Appellant claims the prosecutor was guilty of prosecutorial misconduct. Despite the fact that this claim was clearly cognizable during the direct appeal process, appellant argues he can pursue this claim because his complaint for legal misconduct was dismissed by the Supreme Court of Ohio, Office of Disciplinary Counsel.
{¶45} In a letter dated August 6, 2009, the Disciplinary Counsel rejected appellant‘s complaint and stated the following:
{¶46} “In your complaint, you have alleged what amounts to a claim of prosecutorial misconduct. Please be advised that prosecutorial misconduct is a claim that must be raised on appeal. Once you have fully litigated this claim and have achieved a judicial finding of misconduct, you may send us a certified copy of the judgment entry. We will reopen our investigation at that time.
{¶47} “For the aforementioned reasons, your grievance is dismissed, and our file on this matter is closed.”
{¶48} Appellant argues the language of the letter permits him to appeal despite the untimeliness of the appeal and the doctrine of res judicata. T. at 6-12.
{¶49} The issue of prosecutorial misconduct was clearly cognizable during the direct appeal and the motion for reopening and is therefore res judicata. Perry, supra. We find the advisory language in the letter does not override the established case law of Ohio nor does it activate a new right of action.
{¶50} Assignment of Error IV is denied.
By Farmer, J.
Gwin, P.J. and
Wise, J. concur.
s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin ________________
_s/ John W. Wise _______________
JUDGES
SGF/sg 1020
s/ Sheila G. Farmer__________________
s/ W. Scott Gwin ________________
s/ John W. Wise _______________
JUDGES