Statev.Brandon

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICTJul 5, 2019
Case No. CT2018-0082 (Ohio Ct. App. 2019)
Case No. CT2018-00822019 Ohio 2818

Case No. CT2018-0082

07-05-2019

STATE OF OHIO Plaintiff-Appellee v. MICHAEL BRANDON Defendant-Appellant

APPEARANCES: For Plaintiff-Appellee TAYLOR P. BENNINGTON 17 North Fifth Street P.O. Box 189 Zanesville, OH 43702-0189 For Defendant-Appellant MICHAEL BRANDON, PRO SE No. A736-857 Noble Correctional Institution 15708 McConnelsville Road Caldwell, OH 43724-8902


JUDGES: Hon. Patricia A. Delaney, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2017-0116 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee TAYLOR P. BENNINGTON
17 North Fifth Street
P.O. Box 189
Zanesville, OH 43702-0189 For Defendant-Appellant MICHAEL BRANDON, PRO SE
No. A736-857
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, OH 43724-8902 Wise, Earle, J.

{¶ 1} Defendant-Appellant, Michael D. Brandon, appeals the November 9, 2018 journal entry of the Court of Common Pleas of Muskingum County, Ohio, denying his motion to vacate void judgment. Plaintiff-Appellee is state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On March 22, 2017, the Muskingum County Grand Jury indicted appellant on three counts of trafficking in drugs in violation of R.C. 2925.03, one count of possessing drugs in violation of R.C. 2925.11, one count of possessing drug paraphernalia in violation of R.C. 2925.14, one count of illegal manufacture of drugs in violation of R.C. 2925.04, and one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32.

{¶ 3} On June 2, 2017, appellant pled guilty to all charges except the illegal manufacture of drugs count which was dismissed. By entry filed July 20, 2017, the trial court sentenced appellant to an aggregate term of six years in prison.

{¶ 4} Appellant did not file an appeal.

{¶ 5} On November 1, 2018, appellant filed a motion to vacate void judgment, challenging the subject matter jurisdiction of the trial court because the indictment failed to properly charge the offenses of trafficking in drugs and engaging in a pattern of corrupt activity. By journal entry filed November 9, 2018, the trial court denied the motion.

{¶ 6} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:

I

{¶ 7} "CONVICTIONS FOR TRAFFICKING IN DRUGS ARE VOID FOR FAILURE TO CHARGE OFFENSES OF THE FOURTH AND FIFTH DEGREES."

II

{¶ 8} "CONVICTION FOR ENGAGING IN A PATTERN OF CORRUPT ACTIVITY IS VOID FOR LACK OF SUBJECT-MATTER JURISDICTION"

{¶ 9} Preliminarily, we note this case is before this court on the accelerated calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment on appeal, provides in relevant part: "The appeal will be determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form."

{¶ 10} One of the important purposes of the accelerated calendar is to enable an appellate court to render a brief and conclusory decision more quickly than in a case on the regular calendar where the briefs, facts, and legal issues are more complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist.1983).

{¶ 11} This appeal shall be considered in accordance with the aforementioned rules.

I, II

{¶ 12} In his two assignments of error, appellant challenges the trial court's denial of his motion to vacate void judgment.

{¶ 13} As noted above, appellant pled guilty and never filed a direct appeal. "Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment." State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. See Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995).

{¶ 14} Accordingly, "[t]o survive preclusion by res judicata, a petitioner must produce new evidence that would render the judgment void or voidable and must also show that he could not have appealed the claim based upon information contained in the original record." State v. Nemchik, 9th Dist. Lorain No. 98CA007279, 2000 WL 254908, *1 (Mar. 8, 2000). Void sentences are "not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack." State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus. However, a voidable sentence "can be set aside only if successfully challenged on direct appeal." State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 28, citing State v. Filiaggi, 86 Ohio St.3d 230, 240, 714 N.E.2d 867 (1999).

{¶ 15} Because appellant failed to file a direct appeal, he is attempting to circumvent the doctrine of res judicata by claiming his convictions were void because the trial court lacked subject matter jurisdiction. "Because subject matter jurisdiction goes to the power of the court to adjudicate the merits of a case, it can never be waived and may be challenged at any time." United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998).

{¶ 16} Appellant argues the trial court lacked subject matter jurisdiction due to defects in the indictment. As explained by our colleagues from the Seventh District in State v. Bragwell, 7th Dist. Mahoning No. 06-MA-140, 2008-Ohio-3406, ¶ 14:

A defective indictment renders the charge voidable, not void. State v. Haley, (July 7, 1995), 2d Dist. Nos. 94-CA-89, 94-CA-108, 94-CA-109. The error does not deprive the trial court of subject matter jurisdiction and the error is generally "waived on appellate review when a timely objection before the trial court could have permitted [its] correction." Id., quoting City of Trotwood v. Wyatt (Jan. 21, 1993), 2d Dist. No. 13319; State v. Wade (1978), 53 Ohio St.2d 182, 373 N.E.2d 1244, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157.


{¶ 17} In reviewing appellant's arguments herein on the alleged deficiencies of the indictment, we find they do not affect the trial court's subject matter jurisdiction. Appellant could have raised the defects in the indictment in a direct appeal, but failed to do so; therefore, his arguments are barred by the doctrine of res judicata.

{¶ 18} Upon review, we find the trial court did not err in denying appellant's motion to vacate void conviction.

{¶ 19} Assignments of Error I and II are denied.

{¶ 20} The judgment of the Court of Common Pleas of Muskingum County, Ohio is hereby affirmed. By Wise, Earle, J. Delaney, P.J. and Baldwin, J. concur. EEW/db 626