State v. Allen

[Cite as State v. Allen, 2020-Ohio-1151.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-19-1148
L-19-1149
Appellee
Trial Court Nos. CR0199702184
v. CR0199702581
Ronald S. Allen, Jr. DECISION AND JUDGMENT
Appellant Decided: March 27, 2020
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Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Ronald S. Allen, Jr., pro se.
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PIETRYKOWSKI, J.
{¶ 1} In this consolidated, accelerated appeal, defendant-appellant, Ronald Allen,
Jr., appeals the July 1, 2019 judgment of the Lucas County Court of Common Pleas
which denied his “Motion Challenging Subject Matter Jurisdiction.” For the reasons that
follow, we affirm.
{¶ 2} This case was first before this court over 20 years ago on direct appeal with
appellant raising several arguments relating to pretrial, evidentiary, and post-trial rulings
and ineffective assistance of counsel; we affirmed appellant’s murder conviction and
sentence. State v. Allen, 6th Dist. Lucas No. L-97-1444, 1999 WL 146259 (Mar. 19,
1999). Since then, appellant has filed several pro se motions challenging his convictions.
See State v. Allen, 6th Dist. Lucas No. L-17-1225, 2018-Ohio-878, ¶ 4.
{¶ 3} The history relevant to the assignment of error before us is as follows.
Shortly after appellant was indicted in June 1997, he refused to sign the remittal of
disqualification form allowing Judge James Bates, husband of Lucas County Prosecutor
Julia Bates, to preside over his case. Judge Bates offered this option to criminal
defendants to avoid any appearance of a conflict. The case was then transferred to Judge
James Jensen.
{¶ 4} In February 2013, Judge Jensen took office in the Sixth District Court of
Appeals; shortly thereafter, appellant, pro se, filed the following three motions in the trial
court: 1) Motion for a Final Judgment; 2) Motion to be present at the imposition of
sentence Crim.R. 43; and 3) Motion for (52B Plain Error Evidentiary hearing requested).
At the time the motions were filed, Judge Jensen’s seat remained vacant. On
September 4, 2013, Judge Bates, as the administrative judge, denied appellant’s motion
for a final judgment. On August 14, 2013, Judge Bates initially granted appellant’s
motion to be present at the imposition of sentence (resentencing); on September 4, 2013,
the court denied the motion as well as the Crim.R. 52(B) plain error motion. The court
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concluded that it improperly granted appellant’s motion for resentencing “not knowing
the extent of the case and former rulings of the prior judge as well as the extensive
contact with the court of appeals.” The court further concluded that the subjects of
appellant’s motion were barred by res judicata.
{¶ 5} On September 27, 2013, following the appointment of a new judge,
appellant filed a “Motion of Re-sentencing of void illegal sentence” arguing that Judge
Bates erred in reversing his decision. The motion also pointed to the fact that in 1997,
Judge Bates had originally recused himself and, thus, should not have made any
substantive, legal rulings in violation of his due process rights. The motion was
summarily denied on October 8, 2013. Appellant commenced an appeal to this court; it
was dismissed as being untimely.
{¶ 6} On March 8, 2019, appellant filed a motion challenging subject-matter
jurisdiction again arguing that because Judge Bates recused himself in 1997, he lacked
the authority and subject-matter jurisdiction to enter an order either granting or denying
the motion filed in 2013. In response, the state argued that the rulings made by Judge
Bates, if in error, were voidable rather than void and that appellant waived any challenge
by failing to timely object. The state further argued that any error in Judge Bates’
September 4, 2013 ruling was harmless.
{¶ 7} On July 1, 2019, the trial court denied appellant’s motion. The court first
found that Judge Bates, as a common pleas court judge, had jurisdiction over the
prosecution of felony offenses. Next, the court noted that as administrative judge, Judge
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Bates had the authority to “‘exercise control over the administration, docket, and calendar
of the court * * *.’ Sup.R. 4.01(A).” Finally, the court concluded that even assuming
that the Rules of Superintendence did not give Judge Bates the authority to act, appellant
waived any objection due to the six-year delay. Appellant then commenced the instant
appeal.
{¶ 8} Appellant, pro se, now raises the following assignment of error:
Did Judge Bates have jurisdiction pursuant to Sup.R. 1(B) Sup.R. 4,
Article IV sc.5(A) of the United State[s] Constitution once he had been
recused.
{¶ 9} In appellant’s sole assignment of error he argues that Judge Bates’ illegal
ruling was “structural error” and because his due process rights were violated he should
be released. The Supreme Court of Ohio has addressed the issue of the effect of a lack of
subject matter jurisdiction on a court’s judgment in a death-penalty case. Pratts v.
Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992. The court explained the
distinction between a court’s subject matter jurisdiction or power to hear a case and a
court’s jurisdiction over a person. Id. at ¶ 11-12. “‘It is only when the trial court lacks
subject matter jurisdiction that its judgment is void; lack of jurisdiction over the
particular case merely renders the judgment voidable.’” Parker at ¶ 22 (Cook, J.,
dissenting), quoting [State v.] Swiger, 125 Ohio App.3d at 462, 708 N.E.2d 1033.” Id. at
¶ 12. See Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d
1040.
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{¶ 10} More akin to the present facts, in Tissue v. Tissue, 8th Dist. Cuyahoga No.
83708, 2004-Ohio-5968, the appellant challenged the trial court’s authority to modify a
spousal support order after the judge had recused herself. On appeal, the court first noted
that “[t]he voluntary recusal of a judge from a case makes all judicial acts by that judge
on that case voidable, subject to a timely objection.” Id. at ¶ 12. The court then
concluded that because the parties were fully aware that the judge continued to preside
over the case following her recusal and no objection was raised, the argument was
waived. Id. at ¶ 13-14.
{¶ 11} In the present matter, Judge Bates’ practice of having criminal defendants
sign a remittal of disqualification was voluntary as disqualification is not required “solely
because the judge is related to the prosecuting attorney of a large metropolitan area.” In
re Disqualification of Bates, 134 Ohio St.3d 1249, 2012-Ohio-6342, 984 N.E.2d 17, ¶ 9,
citing In re Corrigan, 47 Ohio St.3d 602, 603, 546 N.E.2d 925 (1989) and In re
Disqualification of Carr, 105 Ohio St.3d 1233, 2004-Ohio-7357, 826 N.E.2d 294. ¶ 15,
17. Thus, we find that the disputed rulings were voidable, not void, and were subject to
waiver.
{¶ 12} Reviewing the history of the 2013 rulings, we find that while appellant did
address the issue of Judge Bates’ jurisdiction at that time, he failed to pursue the issue
through motion and he also failed to timely file an appeal in the matter. Appellant then
waited six years to raise the issue by filing his motion challenging subject-matter
jurisdiction. Based on the foregoing, we conclude that appellant waived his challenge to
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the issue and, alternatively, the issue is barred by res judicata. Appellant’s assignment of
error is not well-taken.
{¶ 13} On consideration whereof, we find that appellant was not prejudiced or
prevented from having a fair proceeding 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.
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
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, P.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.supremecourt.ohio.gov/ROD/docs/.
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