STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, - VS - ANTHONY CAULTON, DEFENDANT-APPELLANT.
CASE NO. 12 MA 150
SEVENTH DISTRICT
June 27, 2013
[Cite as State v. Caulton, 2013-Ohio-2953.]
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 06 CR 1191. JUDGMENT: Affirmed.
For Plaintiff-Appellee: Attorney Paul J. Gains Prosecuting Attorney Attorney Ralph M. Rivera Assistant Prosecuting Attorney 21 W. Boardman St., 6th Floor Youngstown, OH 44503
For Defendant-Appellant: Anthony Caulton, Pro-se #573-792 Trumbull Correctional Institute 5701 Burnett Road P.O. Box 901 Leavittsburg, OH 44430
JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Cheryl L. Waite
{¶1} Pro-se Defendant-Appellant, Anthony Caulton, appeals the decision of the Mahoning County Court of Common Pleas denying his motion to assess jurisdiction and for strict compliance. On appeal, he argues that the visiting judge who presided over his jury trial was never properly assigned to the case and thus lacked jurisdiction over the matter. He further alleges that the judgment entry of sentence was not a final appealable order because it failed to comply with
{¶2} Upon review, Caulton‘s arguments are meritless. The trial court correctly found that Caulton‘s argument regarding the visiting judge‘s authority over his case was barred by res judicata. Moreover, the judgment entry of sentence was a final appealable order in compliance with
Facts and Procedural History
{¶3} In August 2009, following a jury trial presided over by a visiting judge, Caulton was convicted of murder (
{¶4} On June 29, 2012, Caulton filed a pro-se “motion to assess jurisdiction and for compliance with
Assignment of Visiting Judge
{¶5} In Caulton‘s first of two assignments of error, he argues:
{¶6} “Court erred when it overruled defendants [sic.] properly plead motion to comply with 32(C), and assess jurisdiction, when the record shows the original judge signed to this case was judge (CHRONIN), but a [sic.] unassigned visiting judge (CURRAN) ENTERED JUDGMENT WITHOUT ANY AUTHORITY TO DO SO.”
{¶7} Caulton argues that the visiting judge lacked authority over his case because the judge was not properly assigned, contending the record lacks any evidence of a proper assignment by the Chief Justice of the Ohio Supreme Court. Thus, he argues that the visiting judge issued a void judgment such that the bar of res judicata does not apply.
{¶8}
{¶9} However, the lack of a certificate of assignment in the record does not render the judgment void, contrary to Caulton‘s assertion otherwise. As the Ninth District recently explained:
This Court has held that “even if the certificate of assignment was entirely absent from the record, this fact would not void the jurisdiction of the court or [the visiting judge‘s] authority to issue judgments and orders in Appellant‘s case.” Spragling v. Oriana House, Inc., 9th Dist. No. 23501, 2007-Ohio-3245, at ¶ 18. In Spragling, this Court concluded that the “‘judgment is not void by virtue of an irregularity in the appointment of‘” the visiting judge. Id.
State v. Lowe, 9th Dist. No. 25475, 2011-Ohio-3355, ¶5.
{¶10} Moreover, consistent with Ohio Supreme Court case law rejecting similar challenges via original writs, Caulton cannot raise this challenge pursuant to a motion pursuant to
Fourth, as we held in another writ case involving Keith, “he has or had an adequate remedy by appeal from [the trial court‘s] rulings to raise his claim that Judge Gaul and Judge Cirigliano were improperly assigned to his criminal cases.” State ex rel. Keith v. McMonagle, 106 Ohio St.3d 61, 2005-Ohio-3669, 831 N.E.2d 433, ¶ 7; see also State ex rel. Key v. Spicer (2001), 91 Ohio St.3d 469, 746 N.E.2d 1119 (“a claim of improper assignment of a judge can generally be adequately raised by way of appeal“); State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 30, 6 OBR 50, 451 N.E.2d 225 (mandamus and prohibition are not substitutes for appeal to contest alleged improper assignment of judge).
Id., ¶14.
{¶11} Caulton did not raise any error regarding the authority of the visiting
{¶12} Caulton further seeks a plain error or structural error analysis. This court has previously held that “[p]lain error is the only exception to the res judicata bar as plain errors are not waivable.” State v. Chism, 7th Dist. No. 98 CA 121, 1999 WL 783957, *3 (Sept. 29, 1999). “However, ‘[t]he plain error rule is to be invoked only in exceptional circumstances to avoid a miscarriage of justice.’ An error does not constitute a plain error ‘unless, but for the error, the outcome of the trial clearly would have been otherwise.‘” (Citations omitted.) Id. Caulton has not demonstrated that he was prejudiced by the assignment of the visiting judge to this case, and thus has failed to make a showing of plain error.
{¶13} As to structural error, this court has recently explained that:
A structural error is characterized by the entire trial from beginning to end being clearly affected. State v. Alexander, 7th Dist. No. 03-CA-789, 2004-Ohio-5525, at ¶ 27, citing State v. Rector, 7th Dist. No. 01-AP-758, 2003-Ohio-5438, at ¶ 11 and Arizona v. Fulminante (1991), 499 U.S. 270, 309-10. ” ‘Structural error is a constitutional deprivation which affects the framework of the whole trial rather than simply an error in the trial process itself.’ ” Alexander, at ¶ 27, quoting Rector, at ¶ 11. Structural error affects a defendant‘s substantial rights, even absent a showing of prejudice, and therefore automatically requires reversal. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, at ¶ 53.
{¶14} Caulton‘s allegation that the visiting judge was improperly assigned raises a procedural error, rather than the deprivation of a constitutional right, and frames it in his brief as such, and has failed to make a showing of structural error.
{¶15} Finally, in his reply brief, Caulton also asks this court to review the trial court‘s failure to rule on his suppression motion under plain error review. However, Caulton did not argue any errors related to his suppression motion in his original brief, and he cannot raise new issues in his reply brief for the first time. See State v. Jones, 7th Dist. No. 06 MA 109, 2008-Ohio-1541, ¶31. Moreover, res judicata bars this argument as he could have raised it in his direct appeal. Davis at ¶8. For all these reasons, Caulton‘s first assignment of error is meritless.
Compliance with Crim.R. 32(C)
{¶16} In his second assignment of error, Caulton argues:
{¶17} “Whether the failure to properly file and journalize each the ‘direct indictment;’ ‘jury verdict forms;’ and, ‘journal entry imposing sentence’ implicates the trial court‘s threshold jurisdiction (the accusatory phase) rendered void the jury‘s verdict (the guilt phase); and, offended due process by rendering the journal entry of sentence far less than a final appealable order as defined in:
{¶18} Caulton argues that the trial court‘s August 4, 2009 judgment entry of sentence did not comply with
{¶19} In Baker, the Ohio Supreme Court held that a judgment of conviction complies with
{¶20} The August 4, 2009 judgment entry contains a file-stamp from the Mahoning County Clerk of Courts indicating the date of filing; specifies that Caulton was found guilty following a jury trial of one count of murder with an accompanying firearm specification; sets forth his sentence; and contains the trial judge‘s signature. Thus, the judgment entry of sentence was a final appealable order in compliance with
{¶21} Caulton nonetheless argues in his reply brief that the judgment entry requires a time-stamp showing the time when the entry was journalized, not just the date. However, as the Lester Court explained, “the purpose of
{¶22} Here, the date-stamp on the judgment entry of sentence indicates the date the judgment entry was filed with the clerk for journalization, and complies with the purpose of
{¶23} Caulton further argues that the indictment was not properly filed and journalized and thus, the trial court lacked jurisdiction. The trial court found that Caulton‘s arguments were barred by res judicata. However, Caulton is asserting that the trial court lacked subject matter jurisdiction and thus rendered a void sentence, to which the doctrine of res judicata would not apply. But even if res judicata does not bar Caulton‘s argument, it still lacks merit.
{¶24} “The validity of an accused‘s conviction is dependent on the jurisdiction of the trial court. The jurisdiction of the court is invoked by the return of a valid indictment[.]” Dowell v. Maxwell, 174 Ohio St. 289, 290, 189 N.E.2d 95, 96 (1963). “To be valid,
{¶25} Here the indictment contains the requisite elements, including a stamp from the Mahoning County Clerk of Courts indicating the date of filing; it could not be journalized. Thus, the indictment was properly filed and the trial court obtained jurisdiction over the matter.
{¶26} For all these reasons, the trial court did not err in overruling Caulton‘s motion for compliance with
{¶27} Upon review, Caulton‘s arguments are meritless. The trial court did not err in determining that Caulton‘s argument concerning the visiting judge‘s assignment was barred by res judicata. Furthermore, the judgment entry of sentence was a final appealable order in compliance with
Donofrio, J., concurs.
Waite, J., concurs.