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State v. Jones

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 6, 2019

STATE OF OHIO, Plaintiff-Appellee,
SAMUEL S. JONES, Defendant-Appellant.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-576773-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.

          Samuel S. Jones, pro se.



         {¶ 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.

         I. 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 postconviction relief:

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).

         II. Assignments of Error

         {¶ 9} Jones proffers two assigned errors for ...

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