State v. Leavell , 2018 Ohio 775 ( 2018 )

[Cite as State v. Leavell, 2018-Ohio-775.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals Nos. E-17-015
Appellee Trial Court Nos. 2013-CR-0344
v.
Douglas Leavell DECISION AND JUDGMENT
Appellant Decided: March 2, 2018
*****
James Joel Sitterly, Special Prosecuting Attorney, for appellee.
Douglas Leavell, pro se.
*****
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Douglas Leavell, has commenced this pro se appeal
challenging the March 2, 2017 judgment of the Erie County Court of Common Pleas
which denied appellant’s motions to vacate and dismiss his various convictions.
Because we find that appellant waived any issues regarding the institution and manner of
prosecution, we affirm.
{¶ 2} On October 9, 2013, appellant was indicted in this case on possession of
cocaine, assault, and criminal damaging. The indictment was signed by a special
prosecutor. Appellant entered a no contest plea and was sentenced on this case and a
related case, case No. 2014-CR-389, in which he was convicted of several drug offenses,
including trafficking in heroin and possession. His conviction was affirmed by this court
in State v. Leavell, 6th Dist. Erie Nos. E-15-030, E-15-031, 2016-Ohio-5275.
{¶ 3} On October 3, 2016, appellant filed a motion to “set aside convictions”
pursuant to R.C. 305.14(A).1 Appellant argued that the record did not contain any record
of the special prosecutor being appointed by the court. On November 16, 2016, appellant
filed an additional motion to vacate his convictions arguing that because the special
prosecutor was not appointed in accordance with the law, the court lacked subject matter
jurisdiction and his subsequent convictions were void.
{¶ 4} The state filed its response on February 10, 2017. The state first argued that
the claims were for postconviction relief and were time-barred under R.C. 2953.23(A)(2).
The state further claimed that the arguments were barred by the doctrine of res judicata as
1
Appellant’s reliance on this section dealing with the appointment of counsel to represent
a board of county commissioners’ board member or officer was misplaced.
2.
they should have been raised either in the trial court or on direct appeal. Finally, the state
argued that appellant failed to claim any constitutional error; i.e., that the error affected
the outcome of the case.
{¶ 5} On March 2, 2017, the trial court agreed with the state that the
postconviction relief motions were untimely and that they were barred by res judicata.
This appeal followed with appellant raising two assignments of error for our review:
Assignment of Error No. I. The trial court errored [sic] in allowing
the Erie County Prosecutor to go outside his authority and jurisdiction to
appoint his colleague special prosecutor on several occasions.
Assignment of Error No. II. The trial court errored [sic] by making
the ruling of res judicata and construing this matter as a petition for post-
conviction relief.
{¶ 6} In appellant’s first assignment of error he argues that the trial court erred by
allowing the Erie County Prosecutor’s office to appoint a special prosecutor without
petitioning the court as required under R.C. 2941.63. This, appellant argues, divested the
trial court from jurisdiction over the case and his conviction is void. The state does not
dispute that proper procedures may not have been followed; rather, the state makes three
arguments: that the postconviction relief motion was time-barred under R.C. 2953.21,
that it was barred by res judicata, and that because the errors claimed in the motions were
not raised on direct appeal they were waived.
3.
{¶ 7} “[S]ubject-matter jurisdiction involves a court’s power to hear a case, the
issue can never be waived of forfeited and may be raised at any time.” State v. Mbodji,
129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 10. A common pleas court
has original jurisdiction in felony cases, and its jurisdiction is invoked by the return of an
indictment. State v. Richardson, 2d Dist. Montgomery No. 20537, 2005-Ohio-2865, ¶ 3,
citing Click v. Eckle, 174 Ohio St. 88, 89, 186 N.E.2d 731 (1962); R.C. 2931.03.
{¶ 8} Where an “unauthorized person” conducted grand jury proceedings and an
indictment was returned, the Fourth Appellate District, relying on Crim.R. 12(C) (2),
concluded that although the failure to properly appoint the individual was error, the
defendant’s failure to timely object waived all but plain error. State v. Owens, 4th Dist.
Gallia No. 14CA9, 2016-Ohio-176, ¶ 31. The court rejected the appellant’s claim that the
error was “structural” and required an automatic reversal. Id. at ¶ 34. Instead, the court
noted that the manner in which a defendant is charged is statutory and procedural. Id.
{¶ 9} The Owens court next examined the appellant’s argument regarding the fact
that several assistant attorneys general appeared as prosecutors in a criminal prosecution
without being appointed as “special prosecutors.” The court concluded that the
appellant’s failure to object to the appearance of the assistant attorneys during the trial
court proceedings waived all but plain error. Id. at ¶ 50. The court then found no plain
error where there was no evidence that the error affected his substantial rights. Id. at ¶
51.
4.
{¶ 10} The record reflects that in this case, appellant was prosecuted by an
indictment filed in Erie County Common Pleas Court. Thus, we conclude that the court
had subject matter jurisdiction over the matter. Further, as stated above, the special
prosecutor in this action signed the indictment. Whether he was properly appointed or
not, however, did not affect the validity of the grand jury proceedings. Owens, supra.
{¶ 11} Over several years, appellant was prosecuted by a special prosecutor in this
and additional criminal actions. Appellant commenced appeals and failed to raise the
issue either in the trial court or on direct appeal. Moreover, appellant fails to demonstrate
or even allege that he was prejudiced by the appearance of the special prosecutor.
Accordingly, appellant waived his claimed error. Appellant’s first assignment of error is
not well-taken.
{¶ 12} Appellant’s second assignment of error challenges the trial court’s
classification of appellant’s motions as petitions for postconviction relief. What the
motions were classified as is immaterial to our determination on appeal. Appellant failed
to raise the issue in the trial court or before this court during the course of multiple
proceedings; thus, the issue was waived. Appellant’s second assignment of error is not
well-taken.
{¶ 13} On consideration whereof, we find that substantial justice was done the
party complaining and the judgment of the Erie County Court of Common Pleas is
affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.
Judgment affirmed.
5.
E-17-015
State v. Leavell
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
6.