Court Nos. 2013-CR-0344
Joel Sitterly, Special Prosecuting Attorney, for appellee.
Douglas Leavell, pro se.
DECISION AND JUDGMENT
1} Defendant-appellant, Douglas Leavell, has
commenced this pro se appeal challenging the March 2, 2017
judgment of the Erie County Court of Common Pleas which
denied appellant's motions to vacate and dismiss his
various convictions. Because we find that appellant waived
any issues regarding the institution and manner of
prosecution, we affirm.
2} On October 9, 2013, appellant was indicted in
this case on possession of cocaine, assault, and criminal
damaging. The indictment was signed by a special prosecutor.
Appellant entered a no contest plea and was sentenced on this
case and a related case, case No. 2014-CR-389, in which he
was convicted of several drug offenses, including trafficking
in heroin and possession. His conviction was affirmed by this
court in State v. Leavell, 6th Dist. Erie Nos.
E-15-030, E-15-031, 2016-Ohio-5275.
3} On October 3, 2016, appellant filed a motion to
"set aside convictions" pursuant to R.C.
305.14(A). Appellant argued that the record did not
contain any record of the special prosecutor being appointed
by the court. On November 16, 2016, appellant filed an
additional motion to vacate his convictions arguing that
because the special prosecutor was not appointed in
accordance with the law, the court lacked subject matter
jurisdiction and his subsequent convictions were void.
4} The state filed its response on February 10,
2017. The state first argued that the claims were for
postconviction relief and were time-barred under R.C.
2953.23(A)(2). The state further claimed that the arguments
were barred by the doctrine of res judicata as they should
have been raised either in the trial court or on direct
appeal. Finally, the state argued that appellant failed to
claim any constitutional error; i.e., that the error affected
the outcome of the case.
5} On March 2, 2017, the trial court agreed with the
state that the postconviction relief motions were untimely
and that they were barred by res judicata. This appeal
followed with appellant raising two assignments of error for
Assignment of Error No. I. The trial court errored [sic] in
allowing the Erie County Prosecutor to go outside his
authority and jurisdiction to appoint his colleague special
prosecutor on several occasions.
Assignment of Error No. II. The trial court errored [sic] by
making the ruling of res judicata and construing this matter
as a petition for postconviction relief.
6} In appellant's first assignment of error he
argues that the trial court erred by allowing the Erie County
Prosecutor's office to appoint a special prosecutor
without petitioning the court as required under R.C. 2941.63.
This, appellant argues, divested the trial court from
jurisdiction over the case and his conviction is void. The
state does not dispute that proper procedures may not have
been followed; rather, the state makes three arguments: that
the postconviction relief motion was time-barred under R.C.
2953.21, that it was barred by res judicata, and that because
the errors claimed in the motions were not raised on direct
appeal they were waived.
7} "[S]ubject-matter jurisdiction involves a
court's power to hear a case, the issue can never be
waived of forfeited and may be raised at any time."
State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880,
951 N.E.2d 1025, ¶ 10. A common pleas court has original
jurisdiction in felony cases, and its jurisdiction is invoked
by the return of an indictment. State v. Richardson,
2d Dist. Montgomery No. 20537, 2005-Ohio-2865, ¶ 3,
citing Click v. Eckle, 174 Ohio St. 88, 89, 186
N.E.2d 731 (1962); R.C. 2931.03.
8} Where an "unauthorized person"
conducted grand jury proceedings and an indictment was
returned, the Fourth Appellate District, relying on Crim.R.
12(C) (2), concluded that although the failure to properly
appoint the individual was error, the defendant's failure
to timely object waived all but plain error. State v.
Owens, 4th Dist. Gallia No. 14CA9, 2016-Ohio-176, ¶
31. The court rejected the appellant's claim that the
error was "structural" and required an automatic
reversal. Id. ...