STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, VS. THOMAS GAITOR, II, DEFENDANT-APPELLANT.
CASE NO. 13 MA 189
SEVENTH DISTRICT
September 8, 2014
2014-Ohio-4010
Hоn. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 94CR967. JUDGMENT: Affirmed.
For Plaintiff-Appellee: Attorney Paul Gains, Prosecuting Attorney; Attorney Ralрh Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Thomas Gaitor, II, Pro se, #A304-837, Grafton Correctional Institution, 2500 South Avon Belden Road, Grafton, Ohio 44044
{¶1} Defendant-appellant Thomas C. Gaitor II appеals the decision of the Mahoning County Common Pleas Court which denied his motion for relief from judgment. Appellant argues that his conviction is void on the grounds that the trial court lacked subject mattеr jurisdiction to convict him in his criminal case because no complaint had been filed against him. For the following reasons, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
{¶2} On November 18, 1994, appellant was indicted for aggravated murder with a firearm specification, kidnapping with a firearm specification, and tampering with evidence. He thereafter pled guilty to the charges, and the firearm specifications were dismissed in return. In a May 22, 1995 entry, appellant was sentenced to life with eligibility for parole after twenty years for aggravated murder, ten to twenty-five years for kidnapping, and two years for tampering with evidence, all to run concurrent. Appellant did not file an appeal from his conviction and sentence.
{¶3} On September 20, 1996, appellant filed a рetition for post-conviction relief setting forth arguments concerning the application of Senate Bill 2, ineffective assistance of counsel, voluntariness of confession and рlea, and
{¶4} On July 31, 2013, appellant filеd a motion to vacate a void judgment alleging a lack of subject matter jurisdiction. Specifically, he asserted that the trial court lacked subject matter jurisdiction as no complаint had ever been filed in the case. The state responded on August 26, asserting that the court had jurisdiction as appellant had been indicted. The state also pointed out that appellant pled guilty and raised no issues with a complaint at that time, in a direct appeal, or in a prior petition for post-conviction relief, thus urging application of the doctrine оf res judicata. On August 28, 2013, the trial court overruled appellant‘s motion.
{¶6} On September 10, the trial court ruled that the reply was moot because the court had already ruled. The docket evidences that service of this entry was mailed to appellant on October 1, 2013. Thereafter, the docket shows that copies of the August 28, 2013 entry were issued on October 7, 2013. On Octоber 16, 2013, appellant filed a motion for relief from judgment under
{¶7} On November 25, 2013, the trial court overruled appellant‘s motion for relief from judgment. Appellant filed a notice of appeal on December 19, 2013, resulting in the current appellate case. Although a motion for relief from judgment is not a substitute for a timely appeal, there were service issues here and appellant is asserting only subject matter jurisdiction. We thus proceed to address appellant‘s argument.
ASSIGNMENT OF ERROR
{¶8} Appellant‘s sole assignment of error contends:
{¶9} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT CONVICTED DEFENDANT-APPELLANT WITHOUT FORMAL AC[C]USATION FOR ACQUIREMENT OF JURISDICTION OVER THE SUBJECT MATTER.”
{¶10} Appellant states that he recently discоvered that there was no formal accusation in the form of a complaint filed in order for the court to originally acquire jurisdiction in the case against him. He asserts that a complаint was required to be filed under
{¶11} The state responds that appellant‘s motion should be construed as an untimely petition for post-conviction relief. Regarding post-conviction in general, the state notes that the error asserted must be one that is not on the record and that such a petition is barred by the doctrine of res judicata, regarding claims that were raised оr could have been raised. Citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); State v. West, 7th Dist. No. 07JE26, 2009-Ohio-3347, ¶ 24. The state points out that appellant‘s motion fails to comply with the statute for untimely post-conviction relief petitions and fails to explain the delаy. See
{¶12} Appellant does not dispute these gеneral principles. As aforementioned, appellant asserts a lack of subject matter jurisdiction, which can be raised at any time and which is not subject to waiver or to the res judicata bar merely because it could have been raised in an earlier proceeding. See State v. Wilson, 73 Ohio St.3d 40, 45, 652 N.E.2d 196 (1995), fn. 6 (explaining that defendant‘s petition for post-conviction relief was not barred by the dоctrine of res judicata because his judgment of conviction was void ab initio for lack of subject matter jurisdiction); Perry, 10 Ohio St.2d at ¶6, 9 of syllabus (final judgment of conviction bars defendant from raising in any proceeding, except the direct appеal from that conviction, non-jurisdictional issues that were raised or could have been raised by the defendant at trial or on an appeal from that judgment) See also State v. Lomax, 96 Ohio St.3d 318, 2002-Ohio-4453, 774 N.E.2d 249, ¶ 17 (subject matter jurisdiction cannot be waived).
{¶14} Factually, appellant‘s argument is incorrect. A complaint was filed in the Campbell Municipal Court on October 21, 1994, resulting in Campbell Municipal Court Case No. 94CRA331. Aggravated murder was alleged by the complaint of a Campbell poliсe officer. At that time, a warrant was issued, appellant appeared in court, and bond was set. A preliminary hearing was held on October 26, 1994, where the Campbell Municipal Court found probable cause and bound appellant over to the Mahoning County Common Pleas Court, resulting in Mahoning County Common Pleas Court Case No. 94CR967. Likewise, the docket of this Mahoning County case shows that the transcript from Campbell Municipal Court was filed on October 28, 1994 and recites the municipal court number. The matching document in Mahoning County‘s file contains the actual complaint charging аggravated murder. Because appellant‘s argument is based upon this faulty factual premise, his argument fails.
{¶15} We also note that the law cited involving misdemeanor offenses is not applicable to this felony case. See, e.g., State v. Coldwell, 3 Ohio App.3d 283, 445 N.E.2d 257 (1st Dist.1982) (a misdemeanor case cited by appellant). Appellant was indicted by a grand jury on November 18, 1994, for kidnapping, aggravated murder, and tampеring with evidence. See Foston v. Maxwell, 177 Ohio St. 74, 76, 202 N.E.2d 425 (1964) (grand jury has discretion to review the evidence presented and determine which offenses to charge and can indict on different charges that those made against him in the original affidavit used to bind him over). As the state urges, this indictment invoked the jurisdiction of the common pleas court. See Click v. Eckle, 174 Ohio St. 88, 89, 186 N.E.2d 731 (1962) (“The felony jurisdiction is invoked by the return of a proper indictment by the grand jury of the county.“). See also Simpson v. Maxwell (1964), 1 Ohio St.2d 71, 72, 203 N.E.2d 324 (1964) (“The jurisdiction of a trial court is invoked by a valid indictment or information and is not
{¶16} In Burns, the defendant argued to this court that the officer failed to file a complaint. State v. Burns, 7th Dist. No. 09MA193, 2012-Ohio-2698, ¶ 72. We concluded that any error in failing to file a complaint was rendered harmless by the issuing of thе indictment. Id. at ¶ 73-74, citing State v. Thacker, 4th Dist. No. 04-CA5, 2004-Ohio-3978, ¶ 12 (where defendant argued no subject matter jurisdiction due to failure to file
{¶17} In conclusion, there is no issue with the trial court‘s subject matter jurisdiction. Accordingly, appellant‘s assignment of error is overruled. The judgment of the trial court is hereby affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.