State v. Dumas , 2023 Ohio 1064 ( 2023 )

[Cite as State v. Dumas, 2023-Ohio-1064.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
NATHANIEL DUMAS,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0090
Application for Reconsideration
BEFORE:
Mark A. Hanni, Cheryl L. Waite, Carol Ann Robb, Judges
JUDGMENT:
Overruled.
Atty. Gina DeGenova, Mahoning County Prosecutor, and Atty. Edward A. Czopur,
Assistant Prosecutor, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Plaintiff-Appellee and
Nathaniel Dumas, Pro se, Lebanon Correctional Institution, P.O. Box 56, Lebanon,
Ohio 45036, Defendant-Appellant.
Dated: March 30, 2023
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PER CURIAM.
{¶1} On November 7, 2022, Defendant-Appellant, Nathaniel Dumas, filed an
application for reconsideration pursuant to App.R. 26(A). For the following reasons, we
overrule his application.
{¶2} On October 20, 2022, this Court affirmed the trial court’s denial of
Appellant’s fourth post-conviction relief petition. See State v. Dumas, 7th Dist. Mahoning
No. 21 MA 0090, 2022-Ohio-3788. All of Appellant’s prior filings concern challenges to
his February 2, 2012 convictions for felony murder and aggravated robbery with a firearm
specification for which he was sentenced to a total of 28 years to life in prison. See State
v. Dumas, Mahoning County Court of Common Pleas No. 11-CR-429. Since that time, he
has filed a slew of motions, appeals, and post-conviction relief petitions. He recently filed
an App. R. 26(B) delayed application for reopening his conviction on November 17, 2022.
On January 30, 2023, we overruled this application based on res judicata, explaining that
we had already determined that Appellant’s counsel was effective on direct appeal. See
State v. Dumas, 7th Dist. Mahoning No. 12 MA 0031, 2023-Ohio-270, ¶ 2.
{¶3} In the instant App.R. 26(A) application, Appellant alleges the following as
errors in our October 20, 2022 decision:
1. IT WAS AN OBVIOUS ERROR THAT DETECTIVE MARTIN
LACKED PROBABLE CAUSE TO ARREST APPELLANT; THE
COMPLAINT WAS INVALID; AND THE TRIAL COURT LACKED
SUBJECT-MATTER JURISDICTION: IN VIOLATION OF
APPELLANT’S FOURTH AND FOURTEENTH AMENDMENT
RIGHT TO THE U.S. CONSTITUTION AND SECTION 16, ARTICLE
I OF THE OHIO CONSTITUTION.
a. THE COMPLAINT IN THIS CASE WAS INVALID AND SUCH
FOUNDATION-LESS CONCLUSIONS STATED THEREIN DID
NOT PROVIDE SUFFICIENT INFORMATION TO SUPPORT AN
INDEPENDENT PROBABLE CAUSE JUDGMENT UNDER THE
WARRANT CLAUSE.
Case No. 21 MA 0090
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b. THE APPELLANT HAS DEMONSTRATED THAT THE TRIAL
COURT HAD A LACK OF SUBJECT-MATTER JURISDICTION;
AND SUBJECT-MATTER JURISDICTION CAN BE
CHALLENGED AT ANY TIME, AND CANNOT BE WAIVED.
THIS COURT MUST CONSIDER THIS FOURTH AND
FOURTEENTH AMENDMENT CONSTITUTIONAL VIOLATION,
EVEN IN AN UNTIMELY POST-CONVICTION.
{¶4} Appellant asserts that we overlooked an “obvious error” concerning his
allegation that his Fourth Amendment rights were violated when Detective Martin filed a
Rule 4 complaint/warrant with no substantial grounds for probable cause to arrest him.
Appellant contends that the complaint lacked operative facts to establish the foundation
of the crimes listed in the complaint and no affidavit accompanied the complaint. He
submits that the municipal clerk issued the complaint and arrest warrant without a
supporting affidavit and lacked probable cause to issue the warrant. He contends that the
trial court therefore lacked subject matter jurisdiction to determine his criminal case.
Appellant asserts that he can challenge jurisdiction at any time and we must consider this
assertion, even in an untimely post-conviction petition.
{¶5} App.R. 26(A)(1) provides that:
(A) Application for Reconsideration and En Banc Consideration.
(1) Reconsideration.
(a) Application for reconsideration of any cause or motion submitted
on appeal shall be made in writing no later than ten days after the
clerk has both mailed to the parties the judgment or order in
question and made a note on the docket of the mailing as required
by App. R. 30(A).
{¶6} App.R. 30(A) sets forth the duties of clerks and provides that:
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(A) Notice of Orders or Judgments. Immediately upon the entry of an order
or judgment, the clerk shall serve by mail a notice of entry upon each
party to the proceeding and shall make a note in the docket of the
mailing. Service on a party represented by counsel shall be made on
counsel.
{¶7} Here, the docket shows that the Clerk of Courts sent our October 20, 2022
Opinion and Judgment Entry to Appellant by regular mail on the same date as the
Opinion. The Clerk of Courts noted the service by mail on the docket on that date.
{¶8} According to App.R. 14(A), the October 20, 2022 date of the Opinion and
Judgment Entry do not count toward the timeliness calculation. Thus, Appellant’s time for
filing the instant application began on October 21, 2022. Appellant therefore had until
October 31, 2022 in which to file his App.R. 26(A) application. The actual due date is
October 30, 2022, but that date was a Sunday, so pursuant to App.R.14(a), Appellant had
until October 31, 2022 to file his application. Further, even if we added three days for
service by mail under App.R. 14(C), which we have held does not apply, Appellant’s
application would have had to be filed by November 3, 2022. See State v. Panezich, 7th
Dist. Mahoning No. 2018-Ohio-3974, ¶ 2, citing Summitcrest, Inc. v. Eric Petroleum Corp.,
7th Dist. Columbiana No. 12 CO 0055, 2016-Ohio-3381, ¶ 4 (citing Peters v. Tipton, 7th
Dist. Harrison No. 13 HA 10, 2015–Ohio–3307, ¶ 9).
{¶9} Appellant filed the instant App.R. 26(A) application on November 7, 2022.
Appellant’s App.R. 26(A) application is therefore untimely.
{¶10} App.R. 14(B) provides that a delayed application for reconsideration is
permitted if the moving party can establish “extraordinary circumstances.” App.R. 14(B).
In evaluating whether extraordinary circumstances exist, we consider the reasons for the
delay in filing and the reasons for the App.R. 26(A) application. Appellant presents
no reason for untimely filing the instant application. Rather, he reiterates that we failed to
address the invalidity of Detective Martin’s complaint and arrest warrant and the lack of
probable cause and supporting affidavit in filing the complaint. He asserts that the
Youngstown Municipal Court Clerk issued his arrest warrant without the affidavit and the
“sole evidence” before the Clerk was “Detective Martin’s bare conclusions.” He submits
that Mahoning County has 6,747 defective arrest warrants per year and the warrants are
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“rubber-stamped” as a matter of course. He further asserts that he recently heard
negative comments about Detective Martin that support his assertions.
{¶11} “In order to prevail on an application for reconsideration, an Appellant must
demonstrate an obvious error in our decision or that an issue was raised that was either
not dealt with or was not fully considered.” State v. Carosiello, 7th Dist. Columbiana No.
15 CO 0017, 2018-Ohio-860, ¶ 12. It is not a chance to present a new argument to the
appellate court. State v. Wellington, 7th Dist. Mahoning No. 14 MA 0115, 2015-Ohio-
2095, ¶ 9.
{¶12} We find that Appellant fails to present extraordinary circumstances.
Appellant is challenging our prior decision, which was based upon Appellant’s untimely
and successive filing of a delayed post-conviction relief petition. Accordingly, occurrences
in the Youngstown Municipal Court have no relevance to the decision upon which
Appellant bases his current appeal.
{¶13} Further, even if we consider Appellant’s argument, his assertions are
without merit. While Appellant was originally charged in Youngstown Municipal Court and
was arraigned there in Case Number 11CRA00720Y, these charges were dismissed on
April 25, 2011, and Appellant was indicted in the Mahoning County Common Pleas Court
in Case Number 11 CR 429 on those charges. He was thereafter arraigned in Mahoning
County Common Pleas Court and, with counsel, waived any defect in time or manner of
service of the indictment. Accordingly, Appellant’s assertions lack merit and do not
constitute extraordinary circumstances under App.R. 14(B).
{¶14} Accordingly, we overrule Appellant’s untimely App.R. 26(A) application.
JUDGE MARK A. HANNI
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
Case No. 21 MA 0090
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NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 MA 0090