State v. Rickard , 2016 Ohio 4755 ( 2016 )

[Cite as State v. Rickard, 2016-Ohio-4755.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-16-1043
Appellee Trial Court No. CR0199305845
v.
Joseph Rickard DECISION AND JUDGMENT
Appellant Decided: June 30, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Joseph Rickard, pro se.
*****
SINGER, J.
{¶ 1} This is an accelerated appeal. Appellant, Joseph Rickard, appeals the
February 5, 2016 denial of his motion to dismiss by the Lucas County Court of Common
Pleas. We affirm the trial court’s denial of the motion.
{¶ 2} Appellant’s brief does not provide any assignments of error. Rather,
appellant argues the trial court abused its discretion and violated his Fourteenth
Amendment right to due process by denying his motion to dismiss for lack of subject-
matter jurisdiction.
{¶ 3} App.R. 16(A)(3) requires an appellant include in its brief “[a] statement of
the assignments of error presented for review, with reference to the place in the record
where each error is reflected.” Appellant’s pro se brief does not comply with the
requirements of this rule. A pro se litigant is required to follow the same rules and
procedures as attorneys. CitiMortgage, Inc. v. Bumphus, 197 Ohio App.3d 68, 2011-
Ohio-4858, 966 N.E.2d 278, ¶ 31 (6th Dist.). However, a court may afford a pro se
litigant reasonable leeway in the construction of pleadings in order to reach the merits of
the action. Id. Despite the error in appellant’s brief, we will address the merits of his
appeal in the interest of justice.
{¶ 4} On April 29, 1993, appellant was indicted by the Lucas County Grand Jury
for aggravated murder, in violation of R.C. 2903.01(B), and aggravated robbery, in
violation of R.C. 2911.01. Appellant was found not guilty on both the aggravated murder
and aggravated robbery charges, but was found guilty of the lesser included offense of
murder. Appellant was sentenced to 15 years to life in prison on June 17, 1993.
{¶ 5} Appellant appealed his conviction, claiming it fell against the manifest
weight of evidence. The judgment was affirmed on appeal. State v. Rickard, 6th Dist.
Lucas No. L-93-205, 1994 WL 110830 (Mar. 31, 1994).
2.
{¶ 6} Appellant has filed two previous petitions for postconviction relief, which
were both dismissed on res judicata grounds. State v. Rickard, 122 Ohio App.3d 185,
701 N.E.2d 437 (6th Dist.1997); State v. Rickard, No. 6th Dist. Lucas No. L-95-144,
1995 WL 738882 (Dec. 15, 1995).
{¶ 7} On May 5, 2008, appellant filed with this court an application to reopen the
original appeal claiming his original counsel was ineffective because counsel failed to
assert the unsigned indictment was faulty. The application was denied because appellant
failed to establish good cause for the untimeliness in bringing forth the issue.
{¶ 8} On September 20, 2010, appellant filed with the trial court a motion to
suspend his sentence due to the absence of the jury foreperson’s signature on the
indictment. This motion was denied on October 15, 2010.
{¶ 9} Most recently, on January 28, 2016, appellant filed with the trial court a
motion to dismiss his sentence due to a lack of subject-matter jurisdiction. This motion
was denied by the trial court both on the merits and because it was previously raised by
appellant on May 5, 2008, and denied on appeal on August 14, 2008. Appellant timely
appealed, arguing the trial court lacked subject-matter jurisdiction due to the absence of
the jury foreperson’s signature on the indictment.
{¶ 10} Pursuant to Crim.R. 6(C), the jury foreman “shall have power to administer
oaths and affirmations and shall sign all indictments.” Upon the concurrence of seven or
more jurors, the indictment shall be signed by the foreman or deputy foreman then
returned to a judge of the court to be filed with the clerk. Crim.R. 6(F).
3.
Notwithstanding, Ohio courts have regularly held that the absence of a grand jury
foreperson’s signature does not deprive the trial court of jurisdiction. Chapman v. Jago,
48 Ohio St.2d 51, 356 N.E.2d 721 (1976); State v. Jones, 6th Dist. Lucas No. L-09-1181,
2009-Ohio-6498, ¶ 14.
{¶ 11} A defendant’s failure to challenge deficiencies in the indictment prior to
trial constitutes a waiver of the issue. Jones at ¶ 15. In addition, issues which have been
or could have been raised and fully litigated are barred from consideration in a
postconviction proceeding by the doctrine of res judicata. State v. Perry, 10 Ohio St.2d
175, 180, 226 N.E.2d 104 (1967).
{¶ 12} Here, pursuant to Chapman and Jones, appellant’s argument that the trial
court lacked subject-matter jurisdiction due to the absence of a signature on the
indictment is without merit. Furthermore, appellant waived this argument as he failed to
challenge the sufficiency of the indictment prior to trial. Lastly, the lack of signature
issue is barred by res judicata as appellant previously raised this issue and the issue was
decided.
{¶ 13} Accordingly, appellant’s argument is not well-taken and the judgment of
the Lucas County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant
is ordered to pay the costs of this appeal.
Judgment affirmed.
4.
State v. Rickard
C.A. No. L-16-1043
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.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
5.