Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting
Attorney, for appellee.
S. Jones, pro se.
JOURNAL ENTRY AND OPINION
LASTER MAYS, J.
1} Defendant-appellant Samuel S. Jones
("Jones") appeals the trial court's denial of a
motion to vacate the indictment in his case. We affirm the
judgment of the trial court.
Background and Facts
2} In 2013, Jones was ejected from a night club for
fighting with a female patron. Jones retrieved a gun and
returned to the club. A bouncer at the club was shot by Jones
during the struggle to prevent Jones from reentering the
club. Police officers chased Jones who suffered 13 bullet
wounds and required hospitalization.
3} On August 7, 2013, Jones was indicted by the
Cuyahoga County Grand Jury on four counts of felonious
assault with one-year and three-year firearm specifications,
notices of prior convictions, and repeat violent offender
specifications for each count as well as for having a weapon
while under disability. On February 12, 2014, Jones moved to
dismiss the indictment on the ground that he was never
granted a preliminary hearing in the Cleveland Municipal
Court. Jones argued that he was hospitalized from July 26,
2013, the day of the shooting, until August 23, 2013.
According to Jones, he was charged with felonious assault and
felonious assault of a police officer in Cleveland Municipal
Court, Cleveland v. Jones, Cleveland M.C. No.
2013-CRA-022885 (July 30, 2013), by a complaint issued
pursuant to Crim.R. 3. However, Jones never appeared before
that court for an arraignment or preliminary hearing. After
the grand jury indictment was issued on August 7, 2013, Jones
was arraigned on August 27, 2013 in the Cuyahoga County
Common Pleas Court.
4} The state responded that Jones was placed under
arrested by the Cleveland Police Department and admitted to
MetroHealth Medical Center as a result of his gunshot
injuries. An arrest warrant was filed. The scheduled
municipal court arraignments were continued due to
Jones's hospitalization reportedly at the defendant's
request. The municipal court docket indicated that the local
case was nolled because of the county grand jury indictment.
The state posited that the grand jury indictment rendered any
defects in the municipal proceedings moot.
5} On March 18, 2014, the trial court agreed:
The court finds the state's opposition to be well-taken.
"The general rule is that a subsequent indictment by the
grand jury renders any defects in the preliminary hearing
moot." State v. Washington, 30 Ohio App.3d 98,
99, 506 N.E.2d 1203 (8th Dist.1986). Additionally, in this
matter, it is worth noting that the preliminary hearing at
issue in Cleveland Municipal Court was continued at this
defendant's request as he was hospitalized and unable to
be present. Before such a hearing could be held, the grand
jury issued the indictment, which rendered the preliminary
hearing proceeding moot.
Journal entry No. 83489544 (Mar. 18, 2014).
6} On November 25, 2014, a jury found Jones guilty
of two counts of felonious assault with one-year and
three-year fire arm specifications. The trial court found
Jones guilty of the firearms, prior convictions and repeat
violent offender specifications, and of having a weapon while
under disability. Jones was sentenced on January 7, 2015, to
an 11-year prison term. This court affirmed Jones's
convictions in State v. Jones, 2015-Ohio-4986, 53
N.E.3d 783 (8th Dist.). The appeal did not assert as error
the denial of the motion to vacate at issue in this appeal.
7} On September 20, 2016, Jones filed a "motion
for petition to vacate void sentence." Jones argued that
he was never arraigned before the municipal court so that the
trial court lacked subject matter jurisdiction to render a
valid judicial determination. The state replied that the
petition for postconviction relief was untimely filed under
R.C. 2953.21(A)(2). The state also argued that Jones was
unable to demonstrate that he met the exception to the
limitation period under R.C. 2953.21(A)(1)(a)-(b) and,
finally, that any defect in the preliminary hearing
proceedings was rendered moot by the grand jury indictment.
On September 29, 2016, the trial court denied the motion as
"untimely" and ruled that the "doctrine of res
judicata bars consideration" of the petition. Journal
entry No. 95874678 (Sept. 29, 2016).
8} On October 1, 2018, Jones moved to file a delayed
appeal in the 2016 ruling pursuant to App.R. 5(A) and cited
as grounds for the delay that he never received proper notice
of the denial from the trial court. On October 25, 2018, this
court allowed the appeal of the motion as a petition for
Motion by appellant, pro se, for leave to file delayed appeal
is granted. We note that because a petition for
postconviction relief is civil in nature, there is no right
to a delayed appeal under App.R. 5(A). However, because the
appeal has been timely filed the appeal shall proceed as an
appeal of right. This court has held that the notice
provision in Civ.R. 58 and the tolling provision in App.R.
4(A) apply to petitions for postconviction relief because
they are civil in nature. State v. Tucker, 8th Dist.
No. 95556, 2011-Ohio-4092, ¶ 9; State v.
Harris, 8th Dist. No. 94186, 2010-Ohio-3617, ¶ 7-8.
See also, State v. Williams, 10th Dist. No.
06AP-842, 2006-Ohio-5415, ¶ 7-8. The trial court never
directed the clerk of court to serve the appellant with
notice of the judgment per Civ.R. 58, therefore, the time to
file the appeal has been tolled and appellant's appeal is
timely filed. Notice issued.
Journal entry No. 521613 (Oct. 25, 2018).
Assignments of Error
9} Jones proffers two assigned errors for ...