State v. Cromety

[Cite as State v. Cromety, 2014-Ohio-4747.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-T-0042
- vs - :
WARREN CROMETY, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 93 CR
460.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Gregory S. Robey, Robey & Robey, 14402 Granger Road, Cleveland, OH 44137 (For
Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Warren Cromety, appeals the denial of his Motion to
Vacate Convictions and Sentences by the Trumbull County Court of Common Pleas.
The issue before this court is whether the failure to execute a separate, written jury
waiver pursuant to R.C. 2945.05 prior to the entry of a guilty plea renders the plea
invalid. For the following reasons, we affirm the decision of the court below.
{¶2} On September 9, 1993, the Trumbull County Grand Jury indicted Cromety
on the following charges: Attempted Murder (Count One), an unclassified felony in
violation of R.C. 2923.02 and 2903.02; Attempted Murder (Count Two), an unclassified
felony in violation of R.C. 2923.02 and 2903.02; Aggravated Burglary (Count Three), a
felony of the first degree in violation of R.C. 2911.11(A)(1) and (3); Aggravated Robbery
(Count Four), a felony of the first degree in violation of R.C. 2911.01(A)(2); and Robbery
(Count Five), an aggravated felony of the second degree in violation of R.C. 2911.02.
{¶3} On October 12, 1993, the Trumbull County Grand Jury indicted Cromety
for Aggravated Murder (Count Six), an unclassified felony in violation of R.C.
2903.01(B), with a specification of aggravating circumstances (death penalty) pursuant
to R.C. 2941.14 and 2929.04(A)(7). On the State’s motion, the trial court entered a
Nolle Prosequi on Count Two of the Indictment.
{¶4} On March 29, 1994, the trial court entered a Judgment Entry, appointing
“a three-judge panel to decide all questions of fact and law and to determine whether
the Defendant is guilty of the offenses and to pronounce sentence following the
procedures mandated in Section 2929.03 and 2929.04 of the Revised Code of Ohio.”
{¶5} On March 31, 1994, Cromety appeared before the trial court to enter a
plea. The following colloquy occurred at the beginning of the hearing:
JUDGE SHAKER: Due to developments that have occurred in this
case, and by reason of a request of the defendant to waive the jury
trial, we are going to proceed in a little different manner. Mr. Zena
[Counsel for Cromety], do you have the waiver?
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MR. ZENA: Judge, we will not be proceeding with the trial of this
action. The defendant will be proffering a plea; therefore, a written
waiver of jury trial will not be required under the statute.
MR. KONTOS [Assistant Prosecuting Attorney]: That’s correct,
Your Honor.
JUDGE SHAKER: Prosecution agree?
MR. KONTOS: Yes.
JUDGE SHAKER: Okay. Let the record reflect that then we are
going to proceed as I just outlined.
***
JUDGE SHAKER: Are you agreeable that we proceed that way with
a three-judge panel?
THE DEFENDANT: Yes, sir.
{¶6} After the trial court explained the constitutional rights he would be waiving
by entering a plea, Cromety pled guilty to the five remaining counts of the Indictment.
{¶7} In the Finding on Guilty Plea to Amended Indictment, signed by Cromety,
he stated:
I understand I have the right to a jury trial. I understand that at trial
I have the right to confront and cross-examine the witnesses
against me, and the right to have compulsory process for obtaining
witnesses in my favor and to require the State to prove my guilt
beyond reasonable doubt at a trial at which I cannot be compelled
to testify against myself. Upon conviction, I would have the further
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right of Appeal. I waive all those rights, including the right to a trial
by jury.
Compare R.C. 2945.05.
{¶8} The three-judge panel determined “that the aggravating circumstances
[did] not outweigh beyond a reasonable doubt the mitigating factors set forth in Ohio
Revised Code Section 2929.04.” The panel sentenced Cromety to an indeterminate
prison term of ten to twenty-five years for Attempted Murder (Count One), Aggravated
Burglary (Count Three), and Aggravated Robbery (Count Four); an indeterminate prison
sentence of eight to fifteen years for Robbery (Count Five); and to life in prison with no
parole eligibility for twenty full years for Aggravated Murder (Count Six). The panel
ordered all sentences to be served concurrently with each other. Additionally, the panel
ordered Cromety to pay the costs of prosecution.
{¶9} On April 18, 1994, the trial court issued its written Entry on Sentence.
{¶10} On April 24, 1996, Cromety filed an O.R.C. 2953.21 Postconviction
Petition with Rule 32.1 and Rule 29 Motions.
{¶11} On July 16, 1996, the trial court dismissed the Petition. This court
affirmed the dismissal in State v. Cromety, 11th Dist. Trumbull No. 96-T-5526, 1997
Ohio App. LEXIS 4518 (Oct. 3, 1997).
{¶12} On November 22, 2013, Cromety filed a Motion to Vacate Convictions and
Sentences.
{¶13} On March 31, 2014, the State filed its Response to Defendant’s Motion to
Vacate Convictions and Sentences.
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{¶14} On April 10, 2014, the trial court entered a Judgment Entry denying the
Motion.
{¶15} On May 12, 2014, Cromety filed a Notice of Appeal. On appeal, Cromety
raises the following assignments of error:
{¶16} “[1.] The trial court erred when it denied Appellant’s Motion to Vacate
Convictions and Sentences, and ruled that a Crim. Rule 11 Plea Agreement obviated
the need for a Jury Trial waiver that strictly complied with R.C. 2945.05-.06.”
{¶17} “[2.] The trial court abused its discretion by summarily overruling
Appellant’s Motion to Vacate Convictions and Sentences without a hearing.”
{¶18} “[3.] The trial court’s journal entry fails to make specific findings of fact on
the material issue raised.”
{¶19} The basis of Cromety’s Motion to Vacate Convictions and Sentences is
that the three-judge panel did not have jurisdiction to accept his guilty plea. Cromety
relies on R.C. 2945.06, which provides in relevant part:
In any case in which a defendant waives his right to trial by jury and
elects to be tried by the court under section 2945.05 of the Revised
Code, any judge of the court in which the cause is pending shall
proceed to hear, try, and determine the cause in accordance with
the rules and in like manner as if the cause were being tried before
a jury. If the accused is charged with an offense punishable with
death, he shall be tried by a court to be composed of three judges,
consisting of the judge presiding at the time in the trial of criminal
cases and two other judges to be designated by the presiding judge
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or chief justice of that court * * *. If the accused pleads guilty of
aggravated murder, a court composed of three judges shall
examine the witnesses, determine whether the accused is guilty of
aggravated murder or any other offense, and pronounce sentence
accordingly.
{¶20} It is not disputed that, in the present case, the three-judge panel was
appointed prior to Cromety’s execution of the written waiver of his right to trial by jury as
part of his guilty plea. Cromety interprets R.C. 2945.06 to mean “that the three judge
panel convened in this case lacked the jurisdiction [to accept a plea] because there was
no proper waiver prior to convening the three judge panel.” Appellant’s Reply Brief at 3.
In other words: “Two waiver[s] are required in a capital murder case. The first waiver
gives a three judge panel jurisdiction to hear the case. The second waiver, as part of
the plea agreement, is designed to advise an accused of his/her constitutional rights.”
Appellant’s Reply Brief at 4.
{¶21} As an initial matter, we must address the nature of Cromety’s Motion to
Vacate Convictions and Sentences.
{¶22} The Ohio Rules of Criminal Procedure do not expressly provide for a
motion to vacate conviction or sentence. “Courts may recast irregular motions into
whatever category necessary to identify and establish the criteria by which the motion
should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d
431, ¶ 12. “Where a criminal defendant, subsequent to his or her direct appeal, files a
motion seeking vacation or correction of his or her sentence on the basis that his or her
constitutional rights have been violated, such a motion is a petition for postconviction
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relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d
1131 (1997), syllabus; State v. Weber, 11th Dist. Lake No. 2013-L-080, 2014-Ohio-
4133, ¶ 10; State v. Wolf, 11th Dist. Lake Nos. 2009-L-081 and 2009-L-082, 2010-Ohio-
2152, ¶ 13, 16.
{¶23} “[A] trial court’s decision granting or denying a postconviction petition filed
pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing
court should not overrule the trial court’s finding on a petition for postconviction relief
that is supported by competent and credible evidence.” State v. Gondor, 112 Ohio
St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58.
{¶24} Construed as a motion for postconviction relief, Cromety’s Motion was
untimely and properly denied by the lower court.
{¶25} “Any person who has been convicted of a criminal offense * * * and who
claims that there was such a denial or infringement of the person’s rights as to render
the judgment void or voidable under the Ohio Constitution or the Constitution of the
United States * * * may file a petition in the court that imposed sentence, stating the
grounds for relief relied upon, and asking the court to vacate or set aside the judgment
or sentence or to grant other appropriate relief.” R.C. 2953.21(A)(1)(a). “If no [direct]
appeal is taken [from the judgment], * * * the petition shall be filed no later than one
hundred eighty days after the expiration of the time for filing the appeal.” R.C.
2953.21(A)(2).
{¶26} In the present case, Cromety’s Motion is untimely by nineteen years.
None of the circumstances that allow a trial court to entertain an untimely petition are
applicable. R.C. 2953.23(A)(1). Given the untimeliness of Cromety’s Motion, the trial
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court was under no obligation to hold a hearing or issue findings of fact and conclusions
of law. State ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116, 2002-Ohio-7042, 781
N.E.2d 155, ¶ 6 (“a trial court need not issue findings of fact and conclusions of law
when it dismisses an untimely petition”) (cases cited); Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679, 860 N.E.2d 77, at ¶ 51 (“[i]n postconviction cases, a trial court has a
gatekeeping role as to whether a defendant will even receive a hearing”).
{¶27} Cromety contends, however, that the alleged failure to comply with R.C.
2945.06 deprived the three-judge panel of subject matter jurisdiction, thus rendering his
guilty plea “a void judgment [that] can be attacked at ANY time, even 20 years later.”
Appellant’s Merit Brief, at 7. We disagree.
{¶28} Original or subject matter jurisdiction over “crimes and offenses” is vested
in the court of common pleas, not a particular judge or panel of judges. R.C. 2931.03;
Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972), paragraph one of the
syllabus (“[s]ubject-matter jurisdiction of a court connotes the power to hear and decide
a case upon its merits”). Subject matter jurisdiction “is determined as a matter of law
and, once conferred, it remains.” Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980,
806 N.E.2d 992, ¶ 34.
{¶29} In Pratts, the Ohio Supreme Court determined that the failure to comply
with R.C. 2945.06 “does not constitute a lack of subject-matter jurisdiction that renders
the trial court’s judgment void ab initio,” but rather, “constitutes an error in the court’s
exercise of jurisdiction that must be raised on direct appeal.” Id. at syllabus.
{¶30} In Pratts, the trial court had erred by failing to convene a three-judge panel
to adjudicate a capital case, in contrast to the present case, where the error alleged is
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that the trial court convened the three-judge panel prematurely. That distinction is
immaterial. The Supreme Court in Pratts stated its holding in general terms, wholly
applicable to the present facts, thusly: “1) the statutes [R.C. 2945.05 and .06] require
strict compliance, 2) * * * failure to strictly comply is error in the exercise of jurisdiction,
3) * * * strict compliance may not be voluntarily waived and is always reversible error on
direct appeal, but 4) after direct appeal, any error is, in effect, waived and cannot be
remedied through collateral attack.” Id. at ¶ 32.
{¶31} In conclusion, Cromety’s argument that the trial court failed to comply with
R.C. 2945.06 by appointing a three-judge panel before obtaining a jury waiver in
accordance with R.C. 2945.05 has been effectively waived. The case of State v.
Carley, 139 Ohio App.3d 841, 745 N.E.2d 1122 (8th Dist.2000), relied upon by Cromety,
acknowledges that such arguments must be raised on direct appeal. Id. at 846.
{¶32} The assignments of error are without merit.
{¶33} For the foregoing reasons, the Trumbull County Court of Common Pleas’
denial of Cromety’s Motion to Vacate is affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, P.J., concurs,
COLLEEN MARY O’TOOLE, concurs in judgment only.
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