State v. FitzpatrickState v. Fitzpatrick
Zachary Fitzpаtrick, pro se, PID: A378-521, Mansfield Correctional Institution, P.O. Box 788, Mansfield, OH 44901 (Defendant-Appellant).
O P I N I O N
MARY JANE TRAPP, P.J.
{¶1} Mr. Zachary Fitzpatrick appeals from the judgment of the Lake County Court of Common Pleas, which overruled his “motion to dismiss his case with prejudice and discharge him from prison.”
{¶2} Mr. Fitzpatrick‘s сontention that the original indictment was defective because the charges are duplicitous as they were written in the disjunctive, using “or,” as it is verbatim in the relevant statutes, instead of the conjunctive “and,” fails for numerous reasons.
{¶4} Therefore, we find no abuse of discretion in the trial court‘s dismissal of his motion, and thus, we affirm.
{¶5} Substantive and Procedural Facts
{¶6} On April 14, 1999, Mr. Fitzpatrick, while high on the drug commonly known as “wet,” robbed a motel in the early hours of the morning. He pushed the victim, struck him on the side of his head, and then dragged him to the ground. Several hours later, at approximately 9:00 a.m., he robbed a bank, placing a gun against the cheeks of two tellers.
{¶7} Mr. Fitzpatrick pled guilty to two counts of aggravated robbery, both with firearm specifications, first degree felonies in violаtion of
{¶8} In October 1999, Mr. Fitzpatrick was sentenced to a total term of imprisonment of sixteen years: five-year concurrent terms for each count of аggravated robbery, to be served concurrently to a five-year term for the count of felonious assault;
{¶9} In State v. Fitzpatrick, 11th Dist. No. 99-L-164, 2000 Ohio App. LEXIS 5608 (“Fitzpatrick I“), Mr. Fitzpatrick appealеd his sentence, arguing that the trial court erred in sentencing him to more than the minimum as well as consecutive sentences. We determined his appeal to have merit insofar as the trial court did not follow the pre-Foster sentencing guidelines, as it failed to make the requisite findings necessary to impose consecutive sentences pursuant to former
{¶10} Mr. Fitzpatrick then appealed his resentencing in State v. Fitzpatrick, 11th Dist. No. 2001-L-017, 2002-Ohio-1172 (“Fitzpatrick II“), contending that the manifest weight of the evidence did not support the consecutive sentences imposed. We affirmed, determining that the trial court followed thе law of the case, complied with the then statutory provisions which governed consecutive sentences, and the sentence imposed was more than supported by the evidence as to the harm to the victims caused by his crimes.
{¶11} We then dismissed his petition for а writ of habeas corpus one year later in State ex. rel. Fitzpatrick v. Trumbull Correctional Inst., 11th Dist. No. 2003-T-0080, 2003-Ohio-5005, finding that Mr. Fitzpatrick failed to assert a sufficient allegation to establish the underlying convictions were void. We also found that the trial court‘s mention during the sentencing hearing of “bad time” did not render his sentence void. We determined that the court‘s erroneous reference to “bad time,” which has since been held unconstitutional by the Supreme Court of Ohio, was merely a procedural
{¶12} Several years later, in 2006, Mr. Fitzpatrick filed a “motion to correct sentence.” The trial court dismissed Mr. Fitzpatrick‘s motion without a hеaring, treating it as a petition for postconviction relief.
{¶13} Mr. Fitzpatrick then filed a “motion to dismiss his case with prejudice and discharge him from prison,” the dismissal of which forms the basis of this appeal. The court disagreed with Mr. Fitzpatrick‘s contention that the court lacked subject-matter jurisdiction because the indictment against him was “defective,” thus rendering his sentence void. Specifically, Mr. Fitzpatrick argued that the indictment against him was invalid because it charged him in the “disjunctive” in regard to the manner he committed the offenses instead of the conjunctive, thus rendering the charges duplicitous.
{¶14} In dismissing Mr. Fitzpatrick‘s motion, the trial court found that pursuant to
{¶15} Mr. Fitzpatrick now appeals, raising two assignments of error for our review:
{¶16} “[1.] Whether or not trial court‘s Jurisdiction [sic] over the subject matter has been properly invoked, in order to make the Jurisdiction of the court complete?
{¶17} “[2.] Whether of [sic] not trial cоurt error [sic] in denying Defendant-Appellant‘s Motion to Dismiss his case, because counts in the indictment was [sic] duplicitous and could have been severed?”
{¶18} Subject Matter Jurisdiction
{¶19} For the sake of coherency, we will address Mr. Fitzpatrick‘s assignments of error together as they are interrelated. Mr. Fitzpatrick‘s basic contention is that the indictment in this case was defective because it was “duplicitous” in that the charges were stated in the “disjunctive form.” Thus, he argues the trial court lacked subject-matter jurisdiction over the matter, and his sentence is therefоre void.
{¶20} The Doctrine of Res Judicata
{¶21} First and foremost, Mr. Fitzpatrick‘s contention that the court is without subject-matter jurisdiction due to a defective indictment is barred by the doctrine of res judicata. Mr. Fitzpatrick was fully aware of the facts at the time he entered his guilty plea, and he does not arguе or offer any evidence that he was prejudiced by the wording of the indictment.
{¶23} “For a defendant to avoid dismissal of [a motion] by res judicata, the evidence supporting the claims *** must be compеtent, relevant, and material evidence outside of the trial court‘s record, and it must not be evidence that existed or was available at the time of trial. *** ‘To overcome the res judicata bar, evidence offered dehors the record must demonstrate that the [appellant] could not have appealed the constitutional claim based upon the information in the original record.‘” Id. at ¶24, quoting State v. Adams, 11th Dist. No. 2003-T-0064, 2005-Ohio-348, ¶39, quoting State v. Lawson (1995), 103 Ohio App.3d 307, 315; see, also, Dudas at ¶74.
{¶24} Thus, “[u]nder the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represеnted 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 trial, which resulted in that judgment of conviсtion, or on an appeal from that judgment.” State v. Lorenzo, 11th Dist. No. 2007-L-085, 2008-Ohio-1333, ¶20, quoting State v. Green,
{¶25} Because Mr. Fitzpatrick could and should have raised this claim in any of his direct appeals or various postconviction petitions, his claim that the indictment is defective is barred by the doctrine of res judiсata.
{¶26} Waiver upon Guilty Plea
{¶27} Secondly, when a defendant enters a guilty plea and thereby admits that he is in fact guilty of the charged offenses, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of thе guilty plea. State v. Banks, 11th Dist. No. 2008-L-177, 2009-Ohio-6856, ¶21, citing State v. Smith, 2d Dist. No. 08CA0060, 2009-Ohio-5048, ¶24, citing State v. Spates (1992), 64 Ohio St.3d 269, 272, quoting Tollett v. Henderson (1973), 411 U.S. 258, 267; see, also, Dudas at ¶28 (when a criminal defendant admits in open court that he is guilty of an offense, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea). We note that prior to entering his guilty plea he at no time moved the court for severance pursuant to
{¶28} Thus, Mr. Fitzpatrick‘s guilty plea to the substantive crimes of aggravated robberies and felonious assault waived any alleged defect in the indictment.
{¶29} Indictment Offenses Stated in the “Disjunctive”
{¶30} Finally, Mr. Fitzpatrick‘s argument is substantively without merit as well. Specifically, he contends that the grand jury‘s indictment is void because the counts of
{¶31} The Eighth District Court of Appeals defined duplicitous indictments in State v. Johnson (1960), 112 Ohio App. 124: “‘[t]hе term duplicity in its strictest sense applies to the joinder of separate and distinct offenses in one and the same count ***, but is sometimes made applicable to the misjoinder of offenses in the indictment generally. 42 Corpus Juris Secundum, 1112, Indictment and Information, Sectiоn 162.’ Id. at 127.” State v. Allen, 8th Dist. No. 62713, 1992 Ohio App. LEXIS 2806, 7-8.
{¶32} “Pursuant to
{¶33} “Furthermore, the Ohio Supreme Court has recognized that, where a single offense may be committed in any оne of two or more different ways, a count in an indictment is not duplicitous which charges the commission of the offense conjunctively in two or more ways, provided there is no repugnancy between the ways charged.” Id., citing State v. Daniels (1959), 169 Ohio St. 87 (citations omitted).
{¶35} In 1911, the Hamilton County Court of Common Pleas explained this well-established rulе: “It appears to be well settled that when an offense against a criminal statute may, in the same transaction, be committed in one or more ways as therein provided, the indictment may, in a single count, charge its commission in any or all of the ways specified in thе statute, if they are not repugnant; and proof of any one of them will sustain the indictment.
{¶36} “***
{¶37} “Where an offense created by statute may be committed in various ways, stated in the statute disjunctively, and the same punishment is named for the crime whether it is committed in one or all of the ways named, it may be alleged to have been committed in more than one way.” State v. Baschang (Feb. 1911), 24 Ohio Dec. 628, 630-632, quoting 1 Bishop, New Crim. Proccd; Sec. 436 and Beale, Crim. Pl. & Pr. Sec. 104.
{¶38} The Supreme Court of Ohio recently addressed this issue, albeit with respect to jury instructions and not a grand jury indictment. State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787. In State v. Minifee, 8th Dist. No. 91017, 2009-Ohio-3089, ¶57, the Eighth District Court of Appеals found the situation analogous to a grand jury indictment, and applied the Gardner rationale: “[a]lthough
{¶39} Thus, we determine Mr. Fitzpatrick‘s assignments of error that the court lacked subject-matter jurisdiction due to a defective indictment to be substantively without merit as well as barred by the doctrine of res judicata, in addition to being validly waived when he substantively pled guilty to the crimes of aggravated robbery and felonious assault. Therefore, we find no abuse of discretion in the trial court‘s dismissal of Mr. Fitzpatrick‘s “motion to dismiss his case with prejudice and discharge his sentence.”
{¶40} The judgment of the Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.