State v. Rogers

[Cite as State v. Rogers, 2018-Ohio-1073.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 17AP-610
v. : (C.P.C. No. 15CR-4976)
Joshua I. Rogers, : (REGULAR CALENDAR)
Defendant-Appellant. :
DECISION
Rendered on March 23, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.
On brief: Joshua I. Rogers, pro se.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, Joshua I. Rogers, pro se, appeals the March 13, 2017
judgment of the Franklin County Court of Common Pleas denying his motion to arrest
judgment. For the reasons that follow, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} We note that the record and docket in appellant's relevant Franklin County
Municipal Court case is not included in the record before us on appeal. The Supreme
Court of Ohio has held that a court may take judicial notice of public court records
available on the internet. State ex rel. Everhart v. McIntosh, 115 Ohio St. 3d 195, 2007-
Ohio-4798, ¶ 8; State ex rel. Johnson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
16AP-69, 2016-Ohio-5424, ¶ 17. As such, we will take judicial notice of the record and
docket in Franklin M.C. No. 2015 CRA 022755 ("the municipal court case").
{¶ 3} Our review shows that a complaint with a supporting affidavit for
determination of probable cause was filed in the municipal court case on September 30,
No. 17AP-610 2
2015, along with the charge of Rape–under 13 years old, in violation of R.C.
2907.02(A)(1)(B). On the same day, a warrant was issued for appellant and he was
arrested. On October 1, 2015, appellant was arraigned and a preliminary hearing was
scheduled for October 9, 2015.
{¶ 4} On October 8, 2015, appellant was indicted by the grand jury for attempted
rape, disseminating matter harmful to juveniles, gross sexual imposition, and six counts
of rape. All of the offenses were felonies and alleged that B.W. was the victim. B.W. was
under the age of 13 at the time the alleged offenses occurred except for the attempted rape
charge. (Indictment.) The indictment was filed in Franklin C.P. No. 15CR-4976 ("the
common pleas court case") the same day. On the following day, appellant's municipal
court case was dismissed due to the direct indictment by the grand jury in the common
pleas case.
{¶ 5} On February 8, 2016, appellant entered a guilty plea in the common pleas
court case to 2 counts of rape, each a first-degree felony. The trial court imposed a jointly
recommended sentence of 10 years as to each count to be served consecutively to each
other, for a total prison sentence of 20 years. In addition, appellant was classified as a Tier
III sexual offender with lifetime registration duties, and notified that he would receive five
years of post-release control. (Feb. 9, 2016 Jgmt. Entry at 1-2.)
{¶ 6} On December 7, 2016, appellant filed a motion asking the court to allow him
to withdraw his guilty plea. The trial court denied the motion. On July 14, 2017, appellant
filed a motion to arrest judgment pursuant to R.C. 2947.02, claiming that the court lacked
subject-matter jurisdiction to convict him and that his sentence was void because no
complaint was filed. The trial court denied the motion on August 3, 2017. Appellant filed a
timely notice of appeal on August 24, 2017.
II. ASSIGNMENT OF ERROR
{¶ 7} Appellant assigns the following error:
The trial court lacked subject matter jurisdiction over the
Defendant-[Appellant] (hereinafter [Appellant]) because
[Appellant] was never legally bound over from the Municipal
Court to the Court of Common Pleas. This is a clear violation
of Ohio.R.Crim.P.4 [sic].
III. DISCUSSION
No. 17AP-610 3
{¶ 8} Appellant argues that the trial court lacked subject-matter jurisdiction to
convict him and his sentence is void because no complaint was filed in this case. As noted
above, a complaint with affidavit was filed in the municipal court case. As such, we will
interpret appellant's assignment of error to allege that the trial court lacked subject-
matter jurisdiction because no complaint was filed in the common pleas court case.
Appellant claims that the common pleas court's assumption of jurisdiction is a clear
violation of Crim.R. 4. In appellant's motion to arrest judgment he argued that the
common pleas court's subject-matter jurisdiction is invoked by the filing of a complaint
and is, therefore, a necessary prerequisite to acquiring jurisdiction, citing State v. Sharp,
5th Dist. No. 08 CA 000002, 2009-Ohio-1854.
{¶ 9} Crim.R. 34 requires that a motion to arrest judgment be filed within 14 days
after the verdict or finding of guilt. Appellant filed his motion approximately one and one-
half years after his conviction. As a result, appellant's motion to arrest judgment is
untimely. See State v. Langley, 6th Dist. No. S-06-016, 2006-Ohio-3871, ¶ 6. Even if the
motion was not untimely, appellant's argument lacks merit.
{¶ 10} We note that nothing in Crim.R. 4 indicates that a complaint, or an affidavit
filed with the complaint, is a prerequisite for the court of common pleas to have
jurisdiction. Also, appellant's reliance on Sharp is wholly misplaced. Sharp clearly states
that "[t]he complaint is the jurisdictional instrument of the municipal court" and does not
address the common pleas court. (Emphasis added.) Id. at ¶ 14.
{¶ 11} In addition, appellant overlooks Crim.R. 7. Crim.R. 7(A) specifically states:
(A) Use of indictment or information. A felony that may
be punished by death or life imprisonment shall be prosecuted
by indictment. All other felonies shall be prosecuted by
indictment, except that after a defendant has been advised by
the court of the nature of the charge against the defendant and
of the defendant's right to indictment, the defendant may
waive that right.
(Emphasis added.) As appellant was charged with nine felony counts, Crim.R. 7(A)
mandates that he be prosecuted by indictment as opposed to a complaint.
{¶ 12} The case law is clear. A complaint was not necessary where the grand jury
returned a valid indictment. See State v. Martin, 4th Dist. No. 01CA24, 2002-Ohio-6140,
¶ 21-22. See also, State v. Williams, 12th Dist. No. CA2014-06-144, 2015-Ohio-1090, ¶ 8
No. 17AP-610 4
(the accused in a felony case is tried on the indictment by the grand jury, not a complaint).
The felony jurisdiction of the court of common pleas is invoked by the return of a proper
indictment by the grand jury of the county. Click v. Eckle, 174 Ohio St. 88, 89 (1962);
Dowell v. Maxwell, 174 Ohio St. 289, 290 (1963); State v. Pillow, 2d Dist. No. 2010-CA-
71, 2011-Ohio-4294, ¶ 18.
{¶ 13} Furthermore, even if there were defects in the complaint filed in the
municipal court, such defects would be irrelevant and harmless because the conviction is
based on the grand jury indictment. See Martin at ¶ 24. State v. Thacker, 4th Dist. No.
04CA5, 2004-Ohio-3978, ¶ 12. Thus, the issuance of a grand jury indictment renders any
defect in the complaint or warrant moot. See Clinger v. Maxwell, 175 Ohio St. 540, 541-42
(1964); State v. Sands, 6th Dist. No. H-14-004, 2014-Ohio-3439, ¶ 7.
{¶ 14} In the present case, appellant's indictment was properly filed. As the trial
court noted, appellant did not challenge the validity of the indictment at a trial, or on
appeal even though he could have. There were no absence of formal accusations. Our
review shows that the court of common pleas did not lack subject-matter jurisdiction over
appellant; therefore, the conviction was not void. Because the indictment was not
defective, appellant's claim that the trial court lacked subject-matter jurisdiction is
without merit. State v. Dixon, 10th Dist. No. 09AP-473, 2009-Ohio-6057, ¶ 5-6.
{¶ 15} Moreover, as appellant's conviction was not void, res judicata bars any
claims that appellant could have raised in the trial court before conviction or on appeal
after conviction. State v. Perry, 10 Ohio St. 2d 175 (1967). Here, we find that the
arguments contained in appellant's current motion could have been raised previously at
trial or on appeal, and are thus barred by the doctrine of res judicata. For the foregoing
reasons, appellant's assignment of error is overruled.
IV. DISPOSITION
{¶ 16} Having overruled appellant's assignment of error, the judgment of the
Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN, J., concurs.
LUPER SCHUSTER, J., concurs in judgment only.
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