[Cite as State v. Anderson, 2019-Ohio-3077.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 19-CA-9
ERNEST ANDERSON                                :
                                               :
                    Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Richland County Court
                                                   of Common Pleas, Case No. 18CV841R

JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            July 30, 2019




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

MAURA O'NEILL JAITE                                ERNEST ANDERSON #688-244
Senior Assistant Attorney General                  Richland Correctiona Institution
150 East Gay Street                                Box 8107
Columbus, OH 43215                                 Mansfield, OH 44905
[Cite as State v. Anderson, 2019-Ohio-3077.]


Gwin, P.J.

        {¶1}     Appellant Ernest Anderson [“Anderson”] appeals the January 14, 2019

Judgment Entry of the Richland County Court of Common Pleas that dismissed his

petition for a writ of habeas corpus.

                                         Facts and Procedural History

        {¶2}     Anderson was arrested on August 1, 2012, as law enforcement officers

executed a search warrant issued by a judge of the Toledo Municipal Court. State v.

Anderson, 6th Dist. Lucas No. L-15-1078, ¶2. Following his on-scene arrest, complaints

were filed against Anderson in the Toledo Municipal Court, but were ultimately nolled.

On January 29, 2013, Anderson was indicted by a Lucas County Grand Jury on charges

of possession of cocaine, in violation of R.C. 2925.11(A) and (C)(4)(c), trafficking in

cocaine, in violation of R.C. 2925.03(A)(2) and (C)(4)(d), aggravated possession of

drugs, in violation of R.C. 2925 .11(A) and (C)(1)(b), aggravated trafficking in drugs, in

violation of R.C. 2925.03(A)(2) and (C)(1)(c), trafficking in marijuana, in violation of R.C.

2925.03(A)(2) and (C)(3)(b), and tampering with evidence, in violation of R.C.

2921.12(A)(1) and (B). A jury found Anderson guilty of all counts, and in a judgment

entry journalized on August 12, 2013, the trial court sentenced Anderson to an

aggregate prison term of eight years and imposed fines totaling $25,000. Anderson

elected not to file an appeal.

        {¶3}     Anderson did, however, file various post-conviction motions. For example,

he filed a “petition for reimbursement,” a “jurisdictional challenge” based on the U.C.C.,

and a petition arguing he was a Moorish National and thus was not subject to the state
Richland County, Case No. 19-CA-9                                                         3

government’s jurisdiction. These motions were all denied. State v. Anderson, 6th Dist.

Lucas No. l-18-1003, 2018-Ohio-3300, ¶3.

         {¶4}   On October 18, 2013, while Anderson was imprisoned in Marion County,

Anderson filed a R.C. Chapter 2725 petition for a writ of habeas corpus under Marion

County Common Pleas Court Case No. 2013 CV 0635, Ernest Anderson #A688-244 v.

Neil Turner, Warden, et al. On October 30, 2013, the prior habeas trial court sua sponte

dismissed Anderson's habeas petition for failure to state a cause of action upon which

relief may be granted, citing Wells v. Hudson, 113 Ohio St.3d 308, 2007-Ohio-1955,

865 N.E.2d 46. The Third District Court of Appeals affirmed the dismissal on direct

appeal. Anderson v. Turner, 3rd Dist. Marion No. 9-13- 68, (Apr. 14, 2014). See,

Exhibit B attached to Respondent’s Civ.R.12 (B)(6) Motion to Dismiss and/or Summary

Judgment Motion, filed Dec. 26, 2018. [Docket Number 9].

         {¶5}   On December 4, 2014, approximately 16 months after his sentencing

entry was journalized, Anderson filed a petition for post-conviction relief. The trial court

denied Anderson’s petition, holding that it was untimely filed and that his claims were

barred by the doctrine of res judicata. State v. Anderson, 6th Dist. Lucas No. L-15-

1078, ¶3. The Court of Appeals affirmed the trial court’s decision. Anderson, ¶12.

         {¶6}   On June 5, 2014, the Petitioner filed a writ of habeas corpus with the

United States Supreme Court in case 14-5975. It was denied on October 6, 2014.

In re Ernest M. Anderson, 135 S.Ct. 310, 190 L.Ed.2d 239, 83 USLW 3195(Oct. 6,

2014).

         {¶7}   Anderson filed a second petition for habeas in the Marion County

Common Pleas Court on January 19, 2016. It was dismissed on May 2, 2016, and he
Richland County, Case No. 19-CA-9                                                                     4


appealed it to the Third District Court of Appeal on May 3, 2016 in case number 9-16-

027. The appeal was dismissed on July 8, 2016. See, Judgment Entry of Dismissal of

Habeas Corpus, filed Jan. 14, 2019 at 2. [Docket Number 11].

        {¶8}    On November 30, 2018, Anderson filed a petition for a writ of habeas corpus. On

December 26, 2018, the Office of the Ohio Attorney General filed a motion to dismiss and/or motion

for summary judgment. Anderson filed a reply on January 7, 2019. Anderson claimed that the

trial court lacked subject-matter jurisdiction, thereby rendering his convictions void. He bases this

claim on the Ohio Supreme Court’s decision in State v. Hoffman, 141 Ohio St.3d 428, 2014–Ohio–

4795, 25 N.E.3d 993, where the court ruled that the Toledo Municipal Court’s written checklist to its

deputy clerks for evaluating requests for arrest warrants failed to instruct that they make a finding of

probable cause before issuing an arrest warrant. Accordingly, the Ohio Supreme Court found the

m isdemeanor    arrest warrants invalid.

        {¶9}    By Judgment Entry filed January 14, 2019, the trial court dismissed Anderson’s

petition for a writ of habeas corpus. The trial court found the petition was barred by res judicata.

The trial court further found that the trial court’s jurisdiction was properly invoked by a valid

indictment.

                                             Assignments of Error

        {¶10} Anderson raises two assignments of error,

        {¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION TO DISMISS PETITIONER'S
PETITION BASED UPON RESPONDENT’S DECEMBER 26, 2018 MOTION TO DISMISS OR

MOTION FOR SUMMARY JUDGMENT. PURSUANT CIV.R.56(C); CIV.R.1(A), HABEAS CORPUS

PROCEEDINGS IS A SPECIAL STATUTORY PROCEEDING WHEREIN, CIV.R.56(C) CONFLICT

WITH R.C.2725,et seq;

        {¶12} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY LITIGATING A MATTER
WITH WHICH THE TRIAL COURT DID NOT ENJOY SUBJECT MATTER JURISDICTION.”

        PRO SE LITIGANTS.
Richland County, Case No. 19-CA-9                                                                  5


         {¶13} We understand that Anderson has filed this appeal pro se. Nevertheless, “like
members of the bar, pro se litigants are required to comply with rules of practice and procedure.”

Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9.        See, also,

State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11.       We also understand that “an

appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance

with the appellate rules.”   State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal

quotation omitted).

         {¶14} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the
Supreme Court noted, “a reviewing court cannot add matter to the record before it that was not a

part of the trial court's proceedings, and then decide the appeal on the basis of the new matter.

See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).” It is also a longstanding rule "that

the record cannot be enlarged by factual assertions in the brief.” Dissolution of Doty v. Doty, 4th

Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards,

120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any

brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-

6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843

N.E.2d 1202, ¶16.     Therefore, we have disregarded facts and documents in the briefs that are

outside of the record.

         {¶15} In the interests of justice, we shall attempt to consider Anderson’s assignments of
error.

                                                   I. & II.

         {¶16} After reviewing Anderson’s brief including his contentions, we have

interpreted his first assignment of error in the following manner: Whether the trial court

abused its discretion by dismissing Anderson’s petition under Civ.R. 12(B)(6) or Civ.R. 56.

         {¶17} After reviewing Anderson’s brief including his contentions, we have

interpreted his Second Assignment of Error in the following manner: Whether the

criminal trial court had jurisdiction to convict and sentence Anderson.
Richland County, Case No. 19-CA-9                                                                  6

       STANDARD OF REVIEW.

       {¶18} A court may dismiss a habeas action under Civ.R. 12(B)(6) for failure to state a
claim upon which relief can be granted “if, after all factual allegations are presumed true and all

reasonable inferences are made in [the petitioner’s] favor, it appears beyond doubt that he could

prove no set of facts entitling him to the requested extraordinary relief in habeas corpus.” Keith v.

Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, ¶ 10.              This court reviews a

dismissal under Civ.R. 12(B)(6) de novo. State ex rel. McKinney v. Schmenk, 152 Ohio St.3d 70,

2017-Ohio-9183, 92 N.E.3d 871, ¶ 8.

       ISSUE FOR APPEAL.

       If, after all factual allegations are presumed true and all reasonable inferences are made in

Anderson’s favor, it appears beyond doubt that he could prove no set of facts entitling him to the

requested extraordinary relief in habeas corpus.

       {¶19} In Christian v. Gansheimer, the Ohio Supreme Court held,
               An extraordinary writ is not available to challenge the validity or sufficiency

       of a charging instrument, and Christian had an adequate remedy at law by appeal to

       raise his claim. State ex rel. Elko v. Suster, 110 Ohio St.3d 212, 2006-Ohio-4248,

       852 N.E.2d 731, ¶ 3. Any defect concerning the criminal complaint is not cognizable

       in habeas corpus because Christian was convicted and sentenced upon a

       subsequent valid charging instrument. See State ex rel. Jackson v. Brigano (2000),

       88 Ohio St.3d 180, 181, 724 N.E.2d 424; Sopko v. Maxwell (1965), 3 Ohio St.2d

       123, 124, 32 O.O.2d 99, 209 N.E.2d 201.

               Moreover, res judicata bars Christian from raising the same issue he

       previously raised in an appeal and in his prior habeas corpus case. Lynch v. Wilson,

       114 Ohio St.3d 118, 2007-Ohio-3254, 868 N.E.2d 982, ¶ 6; Everett v. Eberlin, 114

       Ohio St.3d 199, 2007-Ohio-3832, 870 N.E.2d 1190, ¶ 8 (res judicata bars

       successive habeas corpus petitions).

118 Ohio St.3d 235, 2008-Ohio-2219, 887 N.E.2d 1175, ¶5 -¶6.
Richland County, Case No. 19-CA-9                                                               7


       {¶20} In the case at bar, Anderson could have challenged the validity or sufficiency of the
charging document in a direct appeal.    He did not.   In any event, the Lucas County Court of

Common Pleas acquired subject matter jurisdiction in Anderson’s case.

       {¶21} Venue and subject matter jurisdiction are distinct legal concepts. See

State v. Bobinchuck, 9th Dist. Summit No. 19536, 2000 WL 1287296, *1 (Sept. 13,

2000). “‘Jurisdiction’ means the courts’ statutory or constitutional power to adjudicate

the case.” (Internal quotations and citations omitted.) Pratts v. Hurley, 102 Ohio St.3d

81, 2004–Ohio–1980, ¶ 11.          It is only when the trial court lacks subject matter

jurisdiction that its judgment is void. Id. at ¶ 12. “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.” Id. at ¶ 11.

       {¶22} The Ohio Supreme Court has recognized that the term “jurisdiction”

encompasses three distinct concepts: 1) subject matter jurisdiction; 2) jurisdiction over

the person; and 3) jurisdiction over the particular case. State v. Parker, 95 Ohio St.3d

524, 2002–Ohio–2833, 769 N.E.2d 846, ¶ 22 (Cook, J., dissenting), citing State v.

Swiger, 125 Ohio App.3d 456, 462, 708 N.E.2d 1033(9th Dist.1998), abrogated on other

grounds, 100 Ohio St.3d 176, 2003–Ohio–5607.              “The third category of jurisdiction

encompasses the trial court’s authority to determine a specific case within that class of

cases that is within its subject matter jurisdiction. * * * Where it is apparent from the

allegations that the matter alleged is within the class of cases in which a particular court

has been empowered to act, jurisdiction is present.             Any subsequent error in the

proceedings is only error in the ‘exercise of jurisdiction,’ as distinguished from the want

of jurisdiction in the first instance.” Swiger, 125 Ohio App.3d at 462–463, 708 N.E.2d

1033. When a trial court lacks subject matter jurisdiction its judgment is void; lack of
Richland County, Case No. 19-CA-9                                                                    8

jurisdiction of the particular case merely renders the judgment voidable.                   Id., citing

Russell v. Russell, 666 N.E.2d 943, 952(Ind.App.1996), vacated on other grounds, 682

N.E.2d 513.

        {¶23} Ohio common pleas courts have “original jurisdiction of all crimes and

offenses, except in cases of minor offenses the exclusive jurisdiction of which is vested

in courts inferior to the court of common pleas.” R.C. 2931.03; State v. Mitchell, 5th

Dist. Guernsey No. 07–CA–17, 2008–Ohio–101, ¶ 32.                     A common pleas court has

original jurisdiction in felony cases and its jurisdiction is invoked by the return of an

indictment. Click v. Eckle, 174 Ohio St. 88, 89, 186 N.E.2d 731 (1962).

        {¶24} In the case at bar, Anderson was indicted by the Lucas County Grand Jury

on January 29, 2013. The indictment charged Anderson with several felonies that were

alleged to have occurred in Lucas County, Ohio where the trial court is located. The

Lucas County Court of Common Pleas therefore had subject-matter jurisdiction over

Anderson’s case. See, State v. Poissant, 5th Dist. Fairfield No. 08 CA 7, 2009–Ohio–

4235, ¶ 20, appeal not allowed, 123 Ohio St.3d 1510, 917 N.E.2d 812, 2009–Ohio–

6210.

        {¶25} Moreover, res judicata bars Anderson from raising the same issue he previously
raised in an appeal. In State v. Anderson, the Sixth District Court of Appeals held,

                First, as the state points out, Anderson was not arrested pursuant to a clerk-

        issued arrest warrant.    Hoffman is, therefore, inapplicable.     In any event, “the

        jurisdiction of a trial court is invoked by a valid indictment or information and is not

        dependent upon the validity of the process by which the accused is originally

        apprehended. Thus, the illegality of the process by which one is taken into custody

        does not affect the validity of a subsequent conviction based upon a proper

        indictment or information.” Simpson v. Maxwell, 1 Ohio St.2d 71, 203 N.E.2d 324
Richland County, Case No. 19-CA-9                                                                  9

       (1964).    Here, following the nolle prosequi of the municipal court complaints, the

       grand jury entered a valid indictment against Anderson. Accordingly, the trial court’s

       subject-matter jurisdiction was properly invoked and Anderson’s contention that his

       conviction is void is without merit.

6th Dist. Lucas No. L-15-1078, 2015-Ohio-3803, ¶9.

       {¶26} It is well established that when a habeas petition "fail[s] to state a facially valid
habeas corpus claim, the court [is] entitled to dismiss it without prior notice under the basic,

summary procedure provided in R.C. Chapter 2725.” Wells v. Hudson, 113 Ohio St.3d 308, 2007-

Ohio-1955, 865 N.E.2d 46, citing Chari v. Fore, 91 Ohio St.3d 323, 327, 2001-Ohio-49, 744 N.E.2d

763. See, State ex rel. Crigger v. Ohio Adult Parole Authority, 82 Ohio St.3d 270, 271, 1998-Ohio-

239, 695 N.E.2d 254.

       {¶27} Similarly, the Ohio Supreme Court has expressly rejected Anderson's argument that
Civ.R. 56(C) summary judgment is inapplicable to habeas corpus petition and contrarily affirmed a

lower habeas court's dismissal under Civ.R. 56(C). See Brooks v. Kelly, 144 Ohio St.3d 322, 2015-

Ohio-2805, 43 N.E.3d 385. In Brooks, the Ohio Supreme Court specifically found,

                 The Rules of Civil Procedure are generally applicable in original actions for

       extraordinary writs, including habeas corpus actions. State ex rel. Sautter v. Grey,

       117 Ohio St.3d 465, 2008-Ohio-1444, 884 N.E.2d 1062, ¶ 11, citing State ex rel.

       Ahmed v. Costine, 99 Ohio St.3d 212, 2003-Ohio-3080, 790 N.E.2d 330, ¶ 5, fn. 1

       (prohibition and mandamus claims), and Gaskins v. Shiplevy, 74 Ohio St.3d 149,

       150, 656 N.E.2d 1282 (1995) (habeas corpus claims). The court of appeals did not

       err by ruling on Kelly's motion for summary judgment under the Rules of Civil

       Procedure.

144 Ohio St.3d 322, 2015-Ohio-2805, 43 N.E.3d 385, ¶6.

       {¶28} The trial court correctly found that after all factual allegations are presumed true and
all reasonable inferences are made in Anderson favor, it appears beyond doubt that Anderson could

prove no set of facts entitling him to the requested extraordinary relief in habeas corpus.

       {¶29} Anderson’s First and Second Assignments of Error are overruled.
Richland County, Case No. 19-CA-9                                                     10


       {¶30} The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.,

Hoffman, J., and

Wise, John, J., concur
