[Cite as State v. Parker, 2021-Ohio-1090.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO,
Plaintiff-Appellee, : No. 109950 v. :
DONELL PARKER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 1, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-96-337574-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.
Donell Parker, pro se.
EMANUELLA D. GROVES, J.:
Defendant-appellant, Donell Parker (“Parker”), who is serving a life
sentence, appeals the trial court’s denial of his delayed motion to quash the
indictment, dated April 16, 1996. For the reasons set forth below, we affirm. Procedural and Factual History
We have previously set forth the facts surrounding Parker’s convictions
in State v. Parker, 8th Dist. Cuyahoga No. 71474, 1998 Ohio App. LEXIS 1507
(Apr. 9, 1998) (“Parker I”). Parker has spent many years litigating his convictions,
but for judicial clarity, the facts relevant to this appeal are briefly summarized as
follows.
Parker’s convictions resulted from an incident that occurred on
April 24, 1987, in the vicinity of W. 76th Street and Lorain Road in Cleveland. On
that date, a young male assailant shot the victim, Robert Letson (“Letson”), as
Letson waited in his car for his two female companions to come out of their sister’s
apartment. Letson later died from his wounds.
Although the assailant had been seen running into a residence located
on Lorain Road, no one there whom the police interviewed during the investigation
of the murder informed the officers that Parker also lived at that address. Parker’s
identity remained unknown until December 1995, when his mother contacted the
police and informed them that her son had confessed to her, soon after the incident,
that he “robbed a man who was sitting in a car” and then “shot him.” Parker’s
mother indicated that she had protected him for almost nine years, but decided to
come forward after Parker assaulted her and threatened to kill her. Based on this
new information, the detectives were able to assemble other evidence that tied
Parker to the shooting. On February 1, 1996, a juvenile court complaint was issued against
Parker charging him with delinquency in connection with Letson’s shooting death.
Parker, who was 26 years old when the charges were issued, was subsequently
bound over to the general division of the court. On April 16, 1996, Parker was named
in a three-count indictment, charging him with one count of aggravated murder by
prior calculation and design, with felony murder and firearm specifications; one
count of aggravated murder in connection with aggravated robbery, with felony
murder and firearm specifications; and one count of aggravated robbery, with a
firearm specification. Parker pleaded not guilty to the charges, and the matter
proceeded to a jury trial on August 12, 1996.
Prior to submitting the case to the jury, the state dismissed the charge
of aggravated murder by prior calculation and design, with felony murder and
firearm specifications and the remaining counts were renumbered. The jury found
Parker guilty of the remaining charges of aggravated murder and aggravated
robbery. In September 1996, the trial court imposed a sentence of three years for
each firearm specification, to be served consecutively with consecutive terms of 30
years to life for aggravated murder and 10 to 25 years for aggravated robbery.
In Parker I, we affirmed Parker’s convictions, and the Ohio Supreme
Court subsequently declined to accept Parker’s appeal from that decision. State v.
Parker, 82 Ohio St.3d 1480, 696 N.E.2d 1087 (1998). Thereafter, Parker sought to
reopen his appeal, but in State v. Parker, 8th Dist. Cuyahoga No. 71474, 1998 Ohio
App. LEXIS 4094 (Aug. 27, 1998), we declined to grant his application. Again, the Supreme Court did not accept Parker’s appeal from our decision. State v. Parker,
84 Ohio St.3d 1427, 702 N.E.2d 903 (1998).
On August 4, 2008, Parker filed a motion to vacate his sentence,
arguing the indictment was fatally defective because it did not allege a culpable
mental state for the offense of aggravated robbery. The trial court denied the motion
to vacate, and Parker did not appeal the trial court’s judgment. In December 2008,
Parker, represented by new counsel, filed a motion for a new trial based upon newly
discovered evidence. The trial court denied the motion and Parker appealed. In
State v. Parker, 8th Dist. Cuyahoga No. 96941, 2012-Ohio-362 (“Parker II”), we
affirmed the trial court’s judgment.
On July 24, 2017, Parker requested a hearing with the Ohio Adult
Parole Authority (the “APA”). The APA forwarded Parker’s request for a parole
hearing to the Bureau of Sentence Computation (the “BOSC”). The BOSC confirmed
the status of Parker’s conviction and indicated that his first parole hearing date was
scheduled for August 15, 2036. The BOSC further explained that Parker was serving
a prison sentence of 30 years to life for aggravated murder, consecutive to 10-to-25
years for aggravated robbery plus a 3-year firearm specification.
In response to the BOSC’s determination, Parker filed a complaint in
the Franklin County Court of Common Pleas against the chairperson of the APA and
the chief of records for the BOSC. On February 1, 2018, the Franklin County trial
court issued an order dismissing the case for failure to state a claim. In Parker v.
Mausser, 10th Dist. Franklin No. 18AP-137, 2018-Ohio-4296 (“Parker III”), the Tenth District Court of Appeals affirmed the decision of the Franklin County trial
court.
On August 11, 2020, Parker filed a delayed motion to quash the
indictment. In the motion, Parker argued that the indictment failed to allege who
the defendant was, as required by R.C. 2941.03 (C) and Crim.R. 7(B). Parker also
argued the indictment failed to allege that the charged offenses were committed
within the jurisdiction of the court, as required by R.C. 2941.03(D). On August 13,
2020, the trial court denied the motion.
Parker now appeals, assigning the following two errors for review:
Assignment of Error One
The trial court erred in the denial of Parker’s delayed motion to quash the indictment, for cause of lack of subject matter jurisdiction where the faulty attempted indictment fails to designate parties to a lawsuit in the title of action and fails to name Parker as the accused in the statement charging an offense, pursuant to R.C. 2941.03(C) and Crim.R. 7(B).
Assignment of Error Two
The trial court erred in denial of Parker’s delayed motion to quash the indictment, for cause of lack of subject matter jurisdiction where faulty attempted indictment fails to comply with R.C. 2941.03(D). State v. Luna, 96 Ohio App.3d 207.
Law and Analysis
We will address both assignments of error together, because of their
common basis in fact and law.
Initially, we note, in a separate appeal, which immediately preceded
the instant appeal, Parker attacked the indictment as “fatally insufficient.” State v. Parker, 8th Dist. Cuyahoga No. 109804, 2021-Ohio-509 (“Parker IV”). In Parker
IV, in overruling his contention, we stated:
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[Cite as State v. Parker, 2021-Ohio-1090.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO,
Plaintiff-Appellee, : No. 109950 v. :
DONELL PARKER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 1, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-96-337574-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.
Donell Parker, pro se.
EMANUELLA D. GROVES, J.:
Defendant-appellant, Donell Parker (“Parker”), who is serving a life
sentence, appeals the trial court’s denial of his delayed motion to quash the
indictment, dated April 16, 1996. For the reasons set forth below, we affirm. Procedural and Factual History
We have previously set forth the facts surrounding Parker’s convictions
in State v. Parker, 8th Dist. Cuyahoga No. 71474, 1998 Ohio App. LEXIS 1507
(Apr. 9, 1998) (“Parker I”). Parker has spent many years litigating his convictions,
but for judicial clarity, the facts relevant to this appeal are briefly summarized as
follows.
Parker’s convictions resulted from an incident that occurred on
April 24, 1987, in the vicinity of W. 76th Street and Lorain Road in Cleveland. On
that date, a young male assailant shot the victim, Robert Letson (“Letson”), as
Letson waited in his car for his two female companions to come out of their sister’s
apartment. Letson later died from his wounds.
Although the assailant had been seen running into a residence located
on Lorain Road, no one there whom the police interviewed during the investigation
of the murder informed the officers that Parker also lived at that address. Parker’s
identity remained unknown until December 1995, when his mother contacted the
police and informed them that her son had confessed to her, soon after the incident,
that he “robbed a man who was sitting in a car” and then “shot him.” Parker’s
mother indicated that she had protected him for almost nine years, but decided to
come forward after Parker assaulted her and threatened to kill her. Based on this
new information, the detectives were able to assemble other evidence that tied
Parker to the shooting. On February 1, 1996, a juvenile court complaint was issued against
Parker charging him with delinquency in connection with Letson’s shooting death.
Parker, who was 26 years old when the charges were issued, was subsequently
bound over to the general division of the court. On April 16, 1996, Parker was named
in a three-count indictment, charging him with one count of aggravated murder by
prior calculation and design, with felony murder and firearm specifications; one
count of aggravated murder in connection with aggravated robbery, with felony
murder and firearm specifications; and one count of aggravated robbery, with a
firearm specification. Parker pleaded not guilty to the charges, and the matter
proceeded to a jury trial on August 12, 1996.
Prior to submitting the case to the jury, the state dismissed the charge
of aggravated murder by prior calculation and design, with felony murder and
firearm specifications and the remaining counts were renumbered. The jury found
Parker guilty of the remaining charges of aggravated murder and aggravated
robbery. In September 1996, the trial court imposed a sentence of three years for
each firearm specification, to be served consecutively with consecutive terms of 30
years to life for aggravated murder and 10 to 25 years for aggravated robbery.
In Parker I, we affirmed Parker’s convictions, and the Ohio Supreme
Court subsequently declined to accept Parker’s appeal from that decision. State v.
Parker, 82 Ohio St.3d 1480, 696 N.E.2d 1087 (1998). Thereafter, Parker sought to
reopen his appeal, but in State v. Parker, 8th Dist. Cuyahoga No. 71474, 1998 Ohio
App. LEXIS 4094 (Aug. 27, 1998), we declined to grant his application. Again, the Supreme Court did not accept Parker’s appeal from our decision. State v. Parker,
84 Ohio St.3d 1427, 702 N.E.2d 903 (1998).
On August 4, 2008, Parker filed a motion to vacate his sentence,
arguing the indictment was fatally defective because it did not allege a culpable
mental state for the offense of aggravated robbery. The trial court denied the motion
to vacate, and Parker did not appeal the trial court’s judgment. In December 2008,
Parker, represented by new counsel, filed a motion for a new trial based upon newly
discovered evidence. The trial court denied the motion and Parker appealed. In
State v. Parker, 8th Dist. Cuyahoga No. 96941, 2012-Ohio-362 (“Parker II”), we
affirmed the trial court’s judgment.
On July 24, 2017, Parker requested a hearing with the Ohio Adult
Parole Authority (the “APA”). The APA forwarded Parker’s request for a parole
hearing to the Bureau of Sentence Computation (the “BOSC”). The BOSC confirmed
the status of Parker’s conviction and indicated that his first parole hearing date was
scheduled for August 15, 2036. The BOSC further explained that Parker was serving
a prison sentence of 30 years to life for aggravated murder, consecutive to 10-to-25
years for aggravated robbery plus a 3-year firearm specification.
In response to the BOSC’s determination, Parker filed a complaint in
the Franklin County Court of Common Pleas against the chairperson of the APA and
the chief of records for the BOSC. On February 1, 2018, the Franklin County trial
court issued an order dismissing the case for failure to state a claim. In Parker v.
Mausser, 10th Dist. Franklin No. 18AP-137, 2018-Ohio-4296 (“Parker III”), the Tenth District Court of Appeals affirmed the decision of the Franklin County trial
court.
On August 11, 2020, Parker filed a delayed motion to quash the
indictment. In the motion, Parker argued that the indictment failed to allege who
the defendant was, as required by R.C. 2941.03 (C) and Crim.R. 7(B). Parker also
argued the indictment failed to allege that the charged offenses were committed
within the jurisdiction of the court, as required by R.C. 2941.03(D). On August 13,
2020, the trial court denied the motion.
Parker now appeals, assigning the following two errors for review:
Assignment of Error One
The trial court erred in the denial of Parker’s delayed motion to quash the indictment, for cause of lack of subject matter jurisdiction where the faulty attempted indictment fails to designate parties to a lawsuit in the title of action and fails to name Parker as the accused in the statement charging an offense, pursuant to R.C. 2941.03(C) and Crim.R. 7(B).
Assignment of Error Two
The trial court erred in denial of Parker’s delayed motion to quash the indictment, for cause of lack of subject matter jurisdiction where faulty attempted indictment fails to comply with R.C. 2941.03(D). State v. Luna, 96 Ohio App.3d 207.
Law and Analysis
We will address both assignments of error together, because of their
common basis in fact and law.
Initially, we note, in a separate appeal, which immediately preceded
the instant appeal, Parker attacked the indictment as “fatally insufficient.” State v. Parker, 8th Dist. Cuyahoga No. 109804, 2021-Ohio-509 (“Parker IV”). In Parker
IV, in overruling his contention, we stated:
Contrary to Parker’s position on appeal, a defective indictment renders the charge voidable, not void. State v. Nelms, 5th Dist. Delaware No. 20 CAA 03 0018, 2020-Ohio-6845, ¶ 22, citing State v. Haley, 2d Dist. Greene Nos. 94-CA-89, 94-CA-108 and 94-CA-109, 1995 Ohio App. LEXIS 2987, * 15 (July 7, 1995). “The error does not deprive the trial court of subject-matter jurisdiction.” Id. See also State v. Pondexter, 8th Dist. Cuyahoga No. 108940, 2020-Ohio-1290, ¶ 21 (S. Gallagher, J., concurring in judgment only) (“it is well settled that arguments challenging the sufficiency or validity of an indictment are ‘nonjurisdictional in nature’ and therefore should be raised in the direct appeal of a criminal conviction.”).
Thus, whether Parker’s indictment is defective is an issue that should have been raised on direct appeal. Parker did not challenge the sufficiency of his indictment before his trial or on direct appeal. Therefore, res judicata bars his attempt to raise the issue approximately 24 years after his conviction. See State v. Williamson, 8th Dist. Cuyahoga No. 109463, 2020-Ohio-6996, ¶ 7, citing State v. Tucker, 2d Dist. Montgomery No. 23408, 2010-Ohio-2642, ¶ 6.
Again, because of Parker’s failure to challenge the sufficiency of his
indictment, prior to trial or on direct appeal, the instant appeal suffers the same fate
as the preceding appeal and is now barred by res judicata. Under the doctrine of res
judicata, “[a] valid, final judgment rendered upon the merits bars all subsequent
actions based upon any claim arising out of the transaction or occurrence that was
the subject matter of the previous action.” Grava v. Parkman Twp., 73 Ohio St.3d
379, 653 N.E.2d 226 (1995), syllabus.
The purpose of res judicata is to promote the principle of finality of
judgments by requiring parties to present every ground for relief in the first action.
State v. Young, 8th Dist. Cuyahoga No. 108790, 2020-Ohio-577, citing State v. Sneed, 8th Dist. Cuyahoga No. 84964, 2005-Ohio-1865, ¶ 16, citing Natl.
Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178 (1987).
Further, res judicata prevents repeated attacks on a final judgment
and applies to issues that were or might have been previously litigated. Id., citing
Sneed at ¶ 16. Consequently, any attempt by Parker to relitigate the same issue is
barred.
Accordingly, we overrule both assignments of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________________________ EMANUELLA D. GROVES, JUDGE
LISA B. FORBES, P.J., and EILEEN T. GALLAGHER, J., CONCUR