STATE OF OHIO v. DRUCE E. MARTIN
CASE NO. 12 MA 167
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
June 20, 2013
[Cite as State v. Martin, 2013-Ohio-2881.]
Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Joseph J. Vukovich
OPINION
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Druce E. Martin, Pro se, #320-205, Marion Correctional Institution, P. O. Box 57, Marion, Ohio 43302
{¶1} Pro se Appellant Druce E. Martin appeals the judgment of the Mahoning County Court of Common Pleas overruling an “Urgent Motion for Declariter.” The motion challenged the constitutionality of the second superseding indictment which charged Appellant with aggravated murder and aggravated robbery. Based on the superseding indictment, the case went to jury trial. Appellant was subsequently convicted for the murders of Toby Flack and Stacy Marie Kroner. He was also convicted of one count of aggravated robbery. He was sentenced to fifteen years to life in prison on each of the murder charges, and ten to twenty-five years in prison for aggravated robbery, all to be served consecutively. The convictions and sentences were upheld on appeal. State v. Martin, 7th Dist. No. 96 C.A. 21, 1997 WL 816524 (Dec. 29, 1997).
{¶2} On July 2, 2012, he filed the motion for declariter at issue in this appeal. In the motion he argued that the original indictment did not have a time-stamp and was void, and that the superseding indictment was void on constitutional grounds. He also complained that he was never officially indicted because he did not get a copy of his indictment in a public records request. The trial court overruled the motion without comment on August 15, 2012.
{¶3} In rebuttal, Appellee argues that the July, 2012 motion can only be construed as a petition for postconviction relief. As such, it was properly denied by the trial court. Appellee also argues that the matters raised by Appellant are res judicata. Appellee is correct. There is no such thing as an “urgent motion for declariter” in Ohio. It is possible to attack a superseding indictment on constitutional
History of the Case
{¶4} On August 13, 1994, Appellant and two accomplices robbed and shot Toby Flack and Stacey Kroner. On September 30, 1994, Appellant was indicted on two counts of aggravated murder with death specifications, and one count of aggravated robbery. On November 1, 1995, Appellant filed a motion to quash the jury venire on the grounds that jurors were being excluded from service based on their race. The motion was sustained and the matter was reset for trial to December 4, 1995. On November 8, 1995, the state sought and received a superseding indictment. On November 20, 1995, Appellant filed a motion to dismiss the indictment, and the motion was sustained. On November 22, 1995, the state procured a third indictment, which mirrored the previous indictment. Jury trial commenced on January 4, 1996. On January 18, 1996, the jury found Appellant not guilty of aggravated murder, but guilty of the murders of Toby Flack and Stacey
{¶5} Appellant filed a direct appeal to this Court. He raised five assignments of error, one of which was a constitutional challenge to the November 22, 1995, superseding indictment. Appellant argued that there was racial bias in the grand jury selection process and that this bias invalidated the indictment. We held that the grand jury panel was properly selected and the assignment of error was overruled. State v. Martin, 7th Dist. No. 96 C.A. 21, 1997 WL 816524, *12 (Dec. 29, 1997). The conviction and sentence were affirmed. The Ohio Supreme Court declined to hear a further appeal. State v. Martin, 81 Ohio St.3d 1512, 692 N.E.2d 618 (1998). The United States Supreme Court denied certiorari as well. Martin v. Ohio, 525 U.S. 902, 119 S.Ct. 233, 142 L.Ed.2d 192 (1998).
{¶6} On November 4, 2008, Appellant filed a motion to vacate a void judgment. The court denied the motion on December 10, 2008, and no direct appeal was taken.
{¶7} On July 2, 2012, Appellant filed a motion with the trial court captioned “Urgent Motion for Declariter.” On August 15, 2012, the trial court overruled the motion. This appeal followed. Both of the assignments of error are related and will be dealt with together.
Whether the failure to properly file an indictment pursuant to the mandatory provisions of:
Crim. R. 55 ; and,Crim. R. 32(C) , divest a trial court of jurisdiction to entertain any proceedings, and results in a patent lack of a final appealable order. see:Sup. R. 7(A) ; and,U.S.C.A. Const. Amend. 14
Whether the trial court abused its discretion by failing to accord appellant a hearing on his properly pled and substantive supported jurisdictional challenge. see:
U.S.C.A. Const. Amend. 14 ; and, State v. Lowe (1994), 69 Ohio St. 3d 527, 532, 634 N.E. 2d 616, 620, quoting: State v. Adams (1980), 62 Ohio St. 2d 151, 157, 404 N.E. 2d 144, 148-149
{¶8} Appellant claims that he did not file a motion for postconviction relief and that his “urgent motion for declariter” was not treated as such by the trial court. He states that he is attacking the jurisdiction of the trial court to convict him on the grounds that there was never a valid indictment charging him with any crime. He argues that his conviction is void because the indictment is void, and he believes he should at least have had a hearing on his motion. As a preliminary matter, a filing denoted as an urgent motion for declariter is nonexistent in Ohio, or any other jurisdiction as far as we know. Further, whether or not the trial court treated Appellant‘s motion as a petition for postconviction relief is irrelevant, because we may affirm the trial court‘s judgment for reasons that differ from those used by the trial
{¶9} Appellant first contends that his conviction is void on the grounds that his criminal case was not properly initiated due to the lack of a time-stamp on his first indictment. In attacking the technical aspects of the first indictment, he is challenging the initiation of the criminal proceedings. A defendant must raise challenges to the initial institution of the criminal prosecution prior to trial.
{¶10} Not only did Appellant fail to challenge the time-stamp on the indictment prior to trial, he also failed to raise the issue on direct appeal. Alleged errors dealing with whether an indictment was correctly filed must be raised on direct appeal or the matter becomes res judicata in subsequent proceedings. Payne v. Jeffreys, 109 Ohio St.3d 239, 2006-Ohio-2288, ¶5. The doctrine of res judicata establishes that “a final judgment of conviction bars a convicted defendant who was represented by
{¶11} Appellant‘s argument that the superseding indictment was never filed is also res judicata. We specifically noted in Appellant‘s direct appeal that a third indictment was filed on November 22, 1995, and thus, the factual question of whether there was a third indictment filed has been adjudicated and is part of the record in the case. State v. Martin, 7th Dist. No. 96 C.A. 21, 1997 WL 816534 (Dec. 29, 1997), *1.
{¶12} In Appellant‘s motion he also seeks relief from his conviction on constitutional grounds. He claims that there was some type of constitutional error in the composition of the indicting grand jury. He believes he can challenge the fundamental jurisdiction of the trial court based on the alleged constitutional violation. This is the type of argument raised in a petition for postconviction relief pursuant to
{¶13} Petitions for postconviction relief are governed by
{¶14}
{¶15} A late petition for postconviction relief may only be entertained by the trial court if the defendant establishes that, but for the constitutional error, he would
{¶16} Finally, even assuming that Appellant‘s motion was a timely-filed petition for postconviction relief, it was properly dismissed. We have held that “[a] postconviction petition may also be dismissed without a hearing where the claims are barred by res judicata.” State v. West, 7th Dist. No. 07 JE 26, 2009-Ohio-3347, ¶24. As already stated, the issues raised in this appeal were either raised in the direct appeal in 1997, or could have been raised and were not. Either way, the issues are now res judicata in postconviction relief proceedings. The issue regarding the time-stamp was required to be raised prior to trial and was not, and was not raised in the direct appeal either. The matter is deemed waived and is res judicata. The constitutional challenge to the grand jury panel was actually litigated in the direct appeal. Appellant now wishes to litigate a second challenge to the grand jury panel that issued the superseding indictment, but the time for such a challenge has long passed and the matter is res judicata. For all of these reasons, we overrule both assignments of error and affirm the judgment of the trial court.
{¶17} Appellant‘s postsentencing motion asserted arguments that are now res judicata. Appellant could and should have raised the question concerning the time-stamp on the original indictment prior to trial, and he cannot challenge the initiation of the prosecution in a postsentencing motion or in postconviction relief. Appellant‘s motion also raised a constitutional argument that is appropriate for a petition for postconviction relief, and for that reason, the motion must be reviewed under the law governing postconviction relief. When Appellant‘s motion for declariter is construed as a petition for postconviction relief, it is apparent that it should have been dismissed without a hearing because it was filed well beyond the time limits set by
Donofrio, J., concurs.
Vukovich, J., concurs.
Dated: June 20, 2013