[Cite as State v. Reese, 2019-Ohio-3453.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : DARREN M. REESE : Case No. CT2019-0033 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2015-0186
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 26, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TAYLOR P. BENNINGTON DARREN M. REESE, PRO SE 27 North Fifth Street No. A719-244 P.O. Box 189 Noble Correctional Institution Zanesville, OH 43702-0189 15708 McConnelsville Road Caldwell, OH 43724-8902 Muskingum County, Case No. CT2019-0033 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Darren M. Reese, appeals the April 12, 2019 entry of
the Court of Common Pleas of Muskingum County, Ohio, denying his motion to correct
void judgment. Plaintiff-Appellee is state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 3, 2015, the Muskingum County Grand Jury indicted appellant on
four counts of trafficking in drugs in violation of R.C. 2925.03, one count of illegal
manufacture of drugs in violation of R.C. 2925.04, and one count of possessing drugs in
violation of R.C. 2925.11.
{¶ 3} On August 17, 2015, appellant pled no contest to the charges. By entry
filed August 19, 2015, the trial court found appellant guilty, and by entry filed September
24, 2015, the trial court sentenced appellant to an aggregate term of sixteen years in
prison.
{¶ 4} Appellant filed an appeal, arguing he was improperly convicted based on
the total weight of the narcotics rather than the weight of the pure amount of cocaine.
This court affirmed appellant's convictions. State v. Reese, 5th Dist. Muskingum No.
CT2015-0046, 2016-Ohio-1591, aff'd, 150 Ohio St.3d 565, 2017-Ohio-2789, 84 N.E.3d
1002.
{¶ 5} On November 30, 2018, appellant filed a motion to correct void judgment,
challenging the subject matter jurisdiction of the trial court because the indictment failed
to include specific numerical designations; therefore, he was improperly charged and his
sentences should be deemed void. Appellant further argued two of his counts were allied Muskingum County, Case No. CT2019-0033 3
offenses and should have been merged for sentencing. By entry filed April 12, 2019, 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} "THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO
MERGE ILLEGAL MANUFACTURING AND TRAFFICKING IN THE SAME DRUG AND
QUANTITY, BECAUSE DOCTRINE OF STARE DECISIS MADE THE FINDING OF
STATE V. WILSON, 2016-OHIO-1672, ¶30 BINDING, THEREBY ALSO VIOLATING
THE PROTECTIONS OF THE DOUBLE JEOPARDY CLAUSE."1
II
{¶ 8} "THE TRIAL COURT COMMITTED PLAIN, REVERSIBLE ERROR IN
FAILING TO VACATE VOID CONVICTIONS AND SENTENCES FOR COUNTS 1, 2, 3,
5, & 6 WHERE THE INDICTMENT FAILED TO INCLUDE THE MATERIAL
INGREDIENTS THAT ELEVATES THE CHARGES BEYOND FIFTH DEGREE
FELONIES."
{¶ 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."
The proper citation for the Wilson case is 2006-Ohio-1672, not 2016. 1 Muskingum County, Case No. CT2019-0033 4
{¶ 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 correct void judgment.
{¶ 13} Appellant could have raised his complained of issues in his direct appeal,
but did not do so. "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 Muskingum County, Case No. CT2019-0033 5
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 raise the issues herein in his 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
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[Cite as State v. Reese, 2019-Ohio-3453.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : DARREN M. REESE : Case No. CT2019-0033 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2015-0186
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 26, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TAYLOR P. BENNINGTON DARREN M. REESE, PRO SE 27 North Fifth Street No. A719-244 P.O. Box 189 Noble Correctional Institution Zanesville, OH 43702-0189 15708 McConnelsville Road Caldwell, OH 43724-8902 Muskingum County, Case No. CT2019-0033 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Darren M. Reese, appeals the April 12, 2019 entry of
the Court of Common Pleas of Muskingum County, Ohio, denying his motion to correct
void judgment. Plaintiff-Appellee is state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 3, 2015, the Muskingum County Grand Jury indicted appellant on
four counts of trafficking in drugs in violation of R.C. 2925.03, one count of illegal
manufacture of drugs in violation of R.C. 2925.04, and one count of possessing drugs in
violation of R.C. 2925.11.
{¶ 3} On August 17, 2015, appellant pled no contest to the charges. By entry
filed August 19, 2015, the trial court found appellant guilty, and by entry filed September
24, 2015, the trial court sentenced appellant to an aggregate term of sixteen years in
prison.
{¶ 4} Appellant filed an appeal, arguing he was improperly convicted based on
the total weight of the narcotics rather than the weight of the pure amount of cocaine.
This court affirmed appellant's convictions. State v. Reese, 5th Dist. Muskingum No.
CT2015-0046, 2016-Ohio-1591, aff'd, 150 Ohio St.3d 565, 2017-Ohio-2789, 84 N.E.3d
1002.
{¶ 5} On November 30, 2018, appellant filed a motion to correct void judgment,
challenging the subject matter jurisdiction of the trial court because the indictment failed
to include specific numerical designations; therefore, he was improperly charged and his
sentences should be deemed void. Appellant further argued two of his counts were allied Muskingum County, Case No. CT2019-0033 3
offenses and should have been merged for sentencing. By entry filed April 12, 2019, 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} "THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO
MERGE ILLEGAL MANUFACTURING AND TRAFFICKING IN THE SAME DRUG AND
QUANTITY, BECAUSE DOCTRINE OF STARE DECISIS MADE THE FINDING OF
STATE V. WILSON, 2016-OHIO-1672, ¶30 BINDING, THEREBY ALSO VIOLATING
THE PROTECTIONS OF THE DOUBLE JEOPARDY CLAUSE."1
II
{¶ 8} "THE TRIAL COURT COMMITTED PLAIN, REVERSIBLE ERROR IN
FAILING TO VACATE VOID CONVICTIONS AND SENTENCES FOR COUNTS 1, 2, 3,
5, & 6 WHERE THE INDICTMENT FAILED TO INCLUDE THE MATERIAL
INGREDIENTS THAT ELEVATES THE CHARGES BEYOND FIFTH DEGREE
FELONIES."
{¶ 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."
The proper citation for the Wilson case is 2006-Ohio-1672, not 2016. 1 Muskingum County, Case No. CT2019-0033 4
{¶ 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 correct void judgment.
{¶ 13} Appellant could have raised his complained of issues in his direct appeal,
but did not do so. "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 Muskingum County, Case No. CT2019-0033 5
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 raise the issues herein in his 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 Muskingum County, Case No. CT2019-0033 6
(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 his direct appeal, but failed to do so;
therefore, his arguments are barred by the doctrine of res judicata. Same for his argument
on allied offenses and merger of sentence; he did not raise the issue in his direct appeal
and res judicata applies.
{¶ 18} Upon review, we find the trial court did not err in denying appellant's motion
to correct 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.
Gwin, P.J. and
Delaney, J. concur.
EEW/725