State v. Williams, 101026

2014 Ohio 5428

STATE OF OHIO PLAINTIFF-APPELLEE v. JOHN WILLIAMS DEFENDANT-APPELLANT

No. 101026

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

December 11, 2014

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-05-463504-B

BEFORE: Rocco, J., Jones, P.J., and Stewart, J.

ATTORNEY FOR APPELLANT

Paul Mancino, Jr.

Mancino Mancino & Mancino

75 Public Square, Suite 1016

Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

Timothy J. McGinty

Cuyahoga County Prosecutor

BY: Amy E. Venesile

Assistant Prosecuting Attorney

The Justice Center, 9^th Floor

1200 Ontario Street

Cleveland, Ohio 44113

KENNETH A. ROCCO, J.:

{¶1} Defendant-appellant John Williams appeals the trial court's denial of his motion to vacate his convictions and sentence arising out of a December 13, 2004 robbery of a Cleveland delicatessen and the fatal shootings of a store clerk and a customer. Williams claims that due to certain alleged deficiencies in the form of the indictment used to charge him, the indictment was void, and that the trial court, therefore, lacked subject matter jurisdiction to hear the case against him. Williams also claims that he was denied due process when he was tried and convicted of aggravated murder by a single judge, rather than a three-judge panel. We find no merit to Williams's appeal and affirm the trial court's judgment.

{¶2} On March 17, 2005, the Cuyahoga County Grand Jury indicted Williams on 13 counts — four counts of aggravated murder, one count of attempted murder, three counts of aggravated robbery, three counts of kidnapping, one count of aggravated burglary, and one count of having a weapon while under a disability. The aggravated murder charges were each indicted with a felony murder specification, a mass murder specification, a murder to escape accounting for another crime specification, and one- and three-year firearm specifications. The other counts (with the exception of the charge for having a weapon while under disability) also included one- and three-year firearm specifications. At his arraignment on March 22, 2005, Williams waived the reading of the indictment. He pled not guilty to the charges against him.

{¶3} Prior to trial, the indictment was amended to remove the capital specifications, making the case a noncapital case. Williams signed a written waiver of his right to a jury trial, and a trial before a single judge commenced on January 30, 2007.

{¶4} Following the trial, the trial court found Williams guilty on all counts of the indictment, including the one- and three-year firearm specifications. In February 2007, the trialcourt sentenced Williams to life with parole eligibility after 43 years and five years of postrelease control. Williams filed a direct appeal of his convictions and sentence, claiming that there was insufficient evidence to support his convictions, that his convictions were against the manifest weight of the evidence, and that he was improperly sentenced on allied offenses. In March 2008, this court affirmed Williams's convictions and sentence. State v. Williams, 8th Dist. Cuyahoga No. 89566, 2008-Ohio-1095.

{¶5} On August 26, 2013, Williams filed a motion to vacate his sentence and judgment due to a lack of subject matter jurisdiction and lack of a charging instrument. The trial court denied the motion, and this appeal followed.

{¶6} In his initial appellate brief, filed pro se, Williams presents three assignments of error for review:

Assignment of Error No. 1: The trial court abused its discretion when it denied appellant's motion to vacate sentence and judgment due to lack of subject matter jurisdiction and lack of a charging instrument.

Assignment of Error No. 2: The trial court had subject matter jurisdiction over the appellant when what purports to be an indictment in fact is not an indictment.

Assignment of Error No. 3: The trial court violated the appellant's due process right to the Fifth and Fourteenth Amendment to the United States Constitution and Article One [Section] 10 of the Ohio Constitution when it convicted and sentenced the appellant without subject matter jurisdiction.

{¶7} On July 31, 2014, this court granted Williams's motion for appointment of counsel. Williams's counsel thereafter filed a supplemental brief, raising the following supplemental assignment of error:

Supplemental Assignment of Error: Defendant was denied due process of law when he [was] tried and convicted on an aggravated murder indictment before a single judge rather than a three-judge panel.

Form of the Indictment

{¶8} Williams's first three assignments of error are related and will be addressed together. Williams argues that the trial court erred when it denied his motion to vacate sentence and judgment. He asserts that his convictions and sentence are void because the indictment used to charge him was not a "valid charging instrument." As such, Williams argues, the trial court did not have subject matter jurisdiction to hear his case. He further contends that such a challenge can be raised at any time.

{¶9} Williams claims that the indictment was invalid because it contained a "lithographic" or preprinted signature of the prosecuting attorney, rather than an original signature, and the "purported signature of a grand jury foreman." He also complains that the indictment was not "one cohesive multiple page document" but was instead "simply a group of papers" that could have been created — or forged — by anyone "wishing to pass it off as a charging instrument." Williams contends that because the state "cannot prove that these signatures belong to [these] individuals" or that "the document purporting to be a charging instrument originated in their office or under authority of their office," the trial court was divested of subject matter jurisdiction. Williams's arguments lack merit.

{¶10} Article I, Section 10 of the Ohio Constitution states that "no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury." The purpose of a grand jury indictment is to give notice to the accused so that he or she can know what he or she has been charged with and can prepare to defend those charges incriminal proceedings. State v. Hills, 8th Dist. Cuyahoga No. 98848, 2013-Ohio-2902, ¶ 6, citing State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 10. There is no requirement in Article I, Section 10 of the Ohio Constitution "as to the manner in which, or by whom, an indictment will be signed." State v. Bunyan, 51 Ohio App.3d 190, 192, 555 N.E.2d 980 (3d Dist.1988); see also Meeker v. State, 4th Dist. Ross No. 1440, 1988 Ohio App. LEXIS 2553, *6 (June 28, 1988) ("There is no constitutional requirement as to the manner in which an indictment is to be authenticated or by whom."), citing State v. Sabbah, 13 Ohio App.3d 124, 137, 468 N.E.2d 718 (6th Dist.1982).

{¶11} Crim.R. 6(C) and (F) require that the grand jury foreman sign the indictment and that the clerk endorse the filing date upon it. Crim.R. 6(F) states, in relevant part:

An indictment may be found only upon the concurrence of seven or more jurors. When so found the foreman or deputy foreman shall sign the indictment as foreman or deputy foreman. The indictment shall be returned by the foreman or deputy foreman to a judge of the court of common pleas and filed with the clerk who shall endorse thereon the date of filing and enter each case upon the appearance and trial dockets. * * *

See also R.C. 2939.20 (requiring that foreman of the grand jury "endorse on [the] indictment the words '[a] true bill' and subscribe his name as foreman").

{¶12} Crim.R. 7(B), which addresses the nature and contents of an indictment, further provides, in relevant part:

The indictment shall be signed, in accordance with Crim.R. 6 (C) and (F) and contain a statement that the defendant has committed a public offense specified in the indictment. The information shall be signed by the prosecuting attorney or in the name of the prosecuting attorney by an assistant prosecuting attorney and shall contain a statement that the defendant has committed a public offense specified in the information. The statement may be made in ordinary and concise language without technical averments or allegations not essential to be proved. The statement may be in the words of the applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged. * * *

{¶13} There is no requirement under Crim.R. 7(B) that an indictment be signed by the prosecuting attorney. As explained in the Staff Notes to Crim.R. 7, although at one time Crim.R. 7(B) required the signature of the prosecuting attorney or an assistant prosecuting attorney on an indictment, that was changed in the July 1, 1993 amendments to Crim.R. 7(B) in order "to relieve the prosecutor or an assistant in large counties from signing thousands of indictments with several times that number of counts each year." As such, "[t]he indictment * * * no longer requires the signature of the prosecuting attorney or an assistant prosecuting attorney." Id.; see also State v. Johnson, 101 Ohio App.3d 129, 132-133, 655 N.E.2d 208 (11th Dist.1995). Although R.C. 2941.06, which suggests the form of an indictment, provides a space for the signature of the prosecuting attorney, it states only that the suggested form of indictment "may" be used; it does not require that an indictment include the original signature of the prosecuting attorney.

{¶14} Even assuming that use of a preprinted signature on the indictment constituted a defect in the form of the indictment, it would not invalidate the indictment or deprive the trial court of subject matter jurisdiction. As the Ohio Supreme Court has held, "[t]he question of the sufficiency of the indictment does not relate to...