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State v. Martin

Court of Appeals of Ohio, Seventh District

June 20, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DRUCE E. MARTIN DEFENDANT-APPELLANT

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 94 CR 749

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning, County Prosecutor Atty. Ralph M. Rivera, Assistant Prosecuting Attorney.

For Defendant-Appellant: Druce E. Martin, Pro se #320-205

JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Joseph J. Vukovich.

OPINION

WAITE, J.

{¶1} Pro se Appellant Druce E. Martin appeals the judgment of the Mahoning County Court of Common Pleas overruling an "Urgent Motion for Declariter." The motion challenged the constitutionality of the second superseding indictment which charged Appellant with aggravated murder and aggravated robbery. Based on the superseding indictment, the case went to jury trial. Appellant was subsequently convicted for the murders of Toby Flack and Stacy Marie Kroner. He was also convicted of one count of aggravated robbery. He was sentenced to fifteen years to life in prison on each of the murder charges, and ten to twenty-five years in prison for aggravated robbery, all to be served consecutively. The convictions and sentences were upheld on appeal. State v. Martin, 7th Dist. No. 96 C.A. 21, 1997 WL 816524 (Dec. 29, 1997).

{¶2} On July 2, 2012, he filed the motion for declariter at issue in this appeal. In the motion he argued that the original indictment did not have a time-stamp and was void, and that the superseding indictment was void on constitutional grounds. He also complained that he was never officially indicted because he did not get a copy of his indictment in a public records request. The trial court overruled the motion without comment on August 15, 2012.

{¶3} In rebuttal, Appellee argues that the July, 2012 motion can only be construed as a petition for postconviction relief. As such, it was properly denied by the trial court. Appellee also argues that the matters raised by Appellant are res judicata. Appellee is correct. There is no such thing as an "urgent motion for declariter" in Ohio. It is possible to attack a superseding indictment on constitutional grounds in a filing for postconviction relief, but the petition for postconviction relief must be timely filed and cannot raise issues that are res judicata. Appellant's motion was filed 15 years past the deadline for filing a petition for postconviction relief and is untimely. He also raised the matter of the constitutionality of the superseding indictment in his direct appeal and the issue is now res judicata. He further challenges whether the original indictment was time-stamped. This is an attack on the sufficiency of the indictment and must be raised prior to trial or else it is waived. Crim.R. 12(C)(1). Appellant did not raise this matter prior to trial or on direct appeal, and he cannot raise it in a postsentencing motion or in a petition for postconviction relief. The judgment of the trial court is affirmed.

History of the Case

{¶4} On August 13, 1994, Appellant and two accomplices robbed and shot Toby Flack and Stacey Kroner. On September 30, 1994, Appellant was indicted on two counts of aggravated murder with death specifications, and one count of aggravated robbery. On November 1, 1995, Appellant filed a motion to quash the jury venire on the grounds that jurors were being excluded from service based on their race. The motion was sustained and the matter was reset for trial to December 4, 1995. On November 8, 1995, the state sought and received a superseding indictment. On November 20, 1995, Appellant filed a motion to dismiss the indictment, and the motion was sustained. On November 22, 1995, the state procured a third indictment, which mirrored the previous indictment. Jury trial commenced on January 4, 1996. On January 18, 1996, the jury found Appellant not guilty of aggravated murder, but guilty of the murders of Toby Flack and Stacey Kroner, and guilty of the aggravated robbery of Toby Flack. On January 22, 1996, the court sentenced Appellant to fifteen years to life in prison for each of the murders, and ten to twenty-five years in prison for aggravated robbery, all to be served consecutively.

{¶5} Appellant filed a direct appeal to this Court. He raised five assignments of error, one of which was a constitutional challenge to the November 22, 1995, superseding indictment. Appellant argued that there was racial bias in the grand jury selection process and that this bias invalidated the indictment. We held that the grand jury panel was properly selected and the assignment of error was overruled. State v. Martin, 7th Dist. No. 96 C.A. 21, 1997 WL 816524, *12 (Dec. 29, 1997). The conviction and sentence were affirmed. The Ohio Supreme Court declined to hear a further appeal. State v. Martin, 81 Ohio St.3d 1512, 692 N.E.2d 618 (1998). The United States Supreme Court denied certiorari as well. Martin v. Ohio, 525 U.S. 902, 119 S.Ct. 233, 142 L.Ed.2d 192 (1998).

{¶6} On November 4, 2008, Appellant filed a motion to vacate a void judgment. The court denied the motion on December 10, 2008, and no direct appeal was taken.

{ΒΆ7} On July 2, 2012, Appellant filed a motion with the trial court captioned "Urgent Motion for Declariter." On August 15, 2012, the trial court overruled the motion. This appeal followed. Both of the assignments of ...


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