[Cite as State v. Gaitor, 2014-Ohio-4010.]

                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO,                                 )
                                               )    CASE NO.     13 MA 189
        PLAINTIFF-APPELLEE,                    )
                                               )
VS.                                            )    OPINION
                                               )
THOMAS GAITOR, II,                             )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Common Pleas
                                                    Court, Case No. 94CR967.


JUDGMENT:                                           Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                             Attorney Paul Gains
                                                    Prosecuting Attorney
                                                    Attorney Ralph Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Thomas Gaitor, II, Pro se
                                                    #A304-837
                                                    Grafton Correctional Institution
                                                    2500 South Avon Belden Road
                                                    Grafton, Ohio 44044

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro

                                                    Dated: September 8, 2014
[Cite as State v. Gaitor, 2014-Ohio-4010.]
VUKOVICH, J.


        {¶1}     Defendant-appellant Thomas C. Gaitor II appeals the decision of the
Mahoning County Common Pleas Court which denied his motion for relief from
judgment. Appellant argues that his conviction is void on the grounds that the trial
court lacked subject matter jurisdiction to convict him in his criminal case because no
complaint had been filed against him. For the following reasons, the judgment of the
trial court is affirmed.
                                    STATEMENT OF THE CASE
        {¶2}     On November 18, 1994, appellant was indicted for aggravated murder
with a firearm specification, kidnapping with a firearm specification, and tampering
with evidence. He thereafter pled guilty to the charges, and the firearm specifications
were dismissed in return. In a May 22, 1995 entry, appellant was sentenced to life
with eligibility for parole after twenty years for aggravated murder, ten to twenty-five
years for kidnapping, and two years for tampering with evidence, all to run
concurrent. Appellant did not file an appeal from his conviction and sentence.
        {¶3}     On September 20, 1996, appellant filed a petition for post-conviction
relief setting forth arguments concerning the application of Senate Bill 2, ineffective
assistance of counsel, voluntariness of confession and plea, and Crim.R. 11(C)(3).
He thereafter sought to withdraw his guilty plea on the same grounds. The trial court
overruled his arguments, and he appealed. This court affirmed the overruling of his
motions. State v. Gaitor, 7th Dist. No. 96CA234 (June 21, 1999).
        {¶4}     On July 31, 2013, appellant filed a motion to vacate a void judgment
alleging a lack of subject matter jurisdiction. Specifically, he asserted that the trial
court lacked subject matter jurisdiction as no complaint had ever been filed in the
case. The state responded on August 26, asserting that the court had jurisdiction as
appellant had been indicted. The state also pointed out that appellant pled guilty and
raised no issues with a complaint at that time, in a direct appeal, or in a prior petition
for post-conviction relief, thus urging application of the doctrine of res judicata. On
August 28, 2013, the trial court overruled appellant’s motion.
                                                                                      -2-

       {¶5}   Appellant filed a reply brief on September 9, suggesting that defense
counsel was ineffective for allowing him to plead guilty without raising his argument
about the lack of a complaint. He also posited that a complaint was a mandatory
filing needed to confer subject matter jurisdiction on a trial court and pointed out that
subject matter jurisdiction is not subject to the doctrine of res judicata.
       {¶6}   On September 10, the trial court ruled that the reply was moot because
the court had already ruled. The docket evidences that service of this entry was
mailed to appellant on October 1, 2013. Thereafter, the docket shows that copies of
the August 28, 2013 entry were issued on October 7, 2013. On October 16, 2013,
appellant filed a motion for relief from judgment under Civ.R. 60(B)(5), stating that he
was not served with the August 28 entry, citing Nichols v. Sydney Motors, 61 Ohio
App.3d 590, 573 N.E.2d 701 (9th Dist.1988) for the proposition that failure to give
notice of a final order makes vacation under Civ.R. 60(B)(5) and reentry of the
judgment a proper method of permitting the party a right to appeal.
       {¶7}   On November 25, 2013, the trial court overruled appellant’s motion for
relief from judgment. Appellant filed a notice of appeal on December 19, 2013,
resulting in the current appellate case. Although a motion for relief from judgment is
not a substitute for a timely appeal, there were service issues here and appellant is
asserting only subject matter jurisdiction. We thus proceed to address appellant’s
argument.
                               ASSIGNMENT OF ERROR
       {¶8}   Appellant’s sole assignment of error contends:
       {¶9}   “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
CONVICTED DEFENDANT-APPELLANT WITHOUT FORMAL AC[C]USATION FOR
ACQUIREMENT OF JURISDICTION OVER THE SUBJECT MATTER.”
       {¶10} Appellant states that he recently discovered that there was no formal
accusation in the form of a complaint filed in order for the court to originally acquire
jurisdiction in the case against him. He asserts that a complaint was required to be
filed under Crim.R. 3, which provides that the complaint is a written statement of the
essential facts constituting the offense charged, the complaint shall state the
                                                                                       -3-

numerical designation of the applicable statute or ordinance, and the complaint shall
be made upon oath before any person authorized by law to administer oaths.
Appellant concludes that in the absence of a complaint being filed, there was never
subject matter jurisdiction to proceed.      He notes that a lack of subject matter
jurisdiction can be raised at any time as it renders a judgment void ab initio.
       {¶11} The state responds that appellant’s motion should be construed as an
untimely petition for post-conviction relief. Regarding post-conviction in general, the
state notes that the error asserted must be one that is not on the record and that
such a petition is barred by the doctrine of res judicata, regarding claims that were
raised or could have been raised. Citing State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967); State v. West, 7th Dist. No. 07JE26, 2009-Ohio-3347, ¶ 24. The
state points out that appellant’s motion fails to comply with the statute for untimely
post-conviction relief petitions and fails to explain the delay. See R.C. 2953.23(A)(1)
(must show unavoidably prevented from discovery of facts on which he relies or
United States Supreme Court recognized new retroactive right and clear and
convincing evidence that but for error no reasonable fact-finder would have found
him guilty). The state also contends that appellant’s guilty plea waived any defects.
       {¶12} Appellant     does   not    dispute   these    general   principles.      As
aforementioned, appellant asserts a lack of subject matter jurisdiction, which can be
raised at any time and which is not subject to waiver or to the res judicata bar merely
because it could have been raised in an earlier proceeding. See State v. Wilson, 73
Ohio St.3d 40, 45, 652 N.E.2d 196 (1995), fn. 6 (explaining that defendant's petition
for post-conviction relief was not barred by the doctrine of res judicata because his
judgment of conviction was void ab initio for lack of subject matter jurisdiction); Perry,
10 Ohio St.2d at ¶6, 9 of syllabus (final judgment of conviction bars defendant from
raising in any proceeding, except the direct appeal from that conviction, non-
jurisdictional issues that were raised or could have been raised by the defendant at
trial or on an appeal from that judgment) See also State v. Lomax, 96 Ohio St.3d
318, 2002-Ohio-4453, 774 N.E.2d 249, ¶ 17 (subject matter jurisdiction cannot be
waived).
                                                                                      -4-

      {¶13} Therefore, the issue is whether a lack of a criminal complaint deprives a
court of subject matter jurisdiction in a felony case when the defendant was indicted
by the grand jury. On this topic, the state asserts that a grand jury indictment cures
any defect in the failure to file a criminal complaint, i.e. any error in not filing a
complaint is rendered harmless by the indictment.
      {¶14} Factually, appellant’s argument is incorrect. A complaint was filed in
the Campbell Municipal Court on October 21, 1994, resulting in Campbell Municipal
Court Case No. 94CRA331. Aggravated murder was alleged by the complaint of a
Campbell police officer. At that time, a warrant was issued, appellant appeared in
court, and bond was set. A preliminary hearing was held on October 26, 1994, where
the Campbell Municipal Court found probable cause and bound appellant over to the
Mahoning County Common Pleas Court, resulting in Mahoning County Common
Pleas Court Case No. 94CR967. Likewise, the docket of this Mahoning County case
shows that the transcript from Campbell Municipal Court was filed on October 28,
1994 and recites the municipal court number. The matching document in Mahoning
County’s file contains the actual complaint charging aggravated murder. Because
appellant’s argument is based upon this faulty factual premise, his argument fails.
      {¶15} We also note that the law cited involving misdemeanor offenses is not
applicable to this felony case. See, e.g., State v. Coldwell, 3 Ohio App.3d 283, 445
N.E.2d 257 (1st Dist.1982) (a misdemeanor case cited by appellant). Appellant was
indicted by a grand jury on November 18, 1994, for kidnapping, aggravated murder,
and tampering with evidence. See Foston v. Maxwell, 177 Ohio St. 74, 76, 202
N.E.2d 425 (1964) (grand jury has discretion to review the evidence presented and
determine which offenses to charge and can indict on different charges that those
made against him in the original affidavit used to bind him over). As the state urges,
this indictment invoked the jurisdiction of the common pleas court. See Click v.
Eckle, 174 Ohio St. 88, 89, 186 N.E.2d 731 (1962) (“The felony jurisdiction is invoked
by the return of a proper indictment by the grand jury of the county.”). See also
Simpson v. Maxwell (1964), 1 Ohio St.2d 71, 72, 203 N.E.2d 324 (1964) (“The
jurisdiction of a trial court is invoked by a valid indictment or information and is not
                                                                                      -5-

dependent upon the validity of the process by which the accused is originally
apprehended.”)
       {¶16} In Burns, the defendant argued to this court that the officer failed to file
a complaint. State v. Burns, 7th Dist. No. 09MA193, 2012-Ohio-2698, ¶ 72. We
concluded that any error in failing to file a complaint was rendered harmless by the
issuing of the indictment. Id. at ¶ 73-74, citing State v. Thacker, 4th Dist. No. 04-
CA5, 2004-Ohio-3978, ¶ 12 (where defendant argued no subject matter jurisdiction
due to failure to file Crim.R. 3 complaint, Fourth District held that defendant was tried
upon indictment), citing State v. Martin, 4th Dist. No. 01CA24, 2002-Ohio-6140, ¶ 21-
25 (where the defendant was convicted upon an indictment, issues with the complaint
are irrelevant). See also State v. Holland, 5th Dist. No. 13CA53, 2012-Ohio-4136, ¶
13 (“Upon appellant's indictment by the grand jury, he was properly within the subject
matter jurisdiction of the court of common pleas”); State v. Christian, 7th Dist. No.
02CA170, 2005-Ohio-2381, ¶ 14 (defendant was not tried upon initial charging
document where indictment was thereafter filed).
       {¶17} In conclusion, there is no issue with the trial court’s subject matter
jurisdiction. Accordingly, appellant’s assignment of error is overruled. The judgment
of the trial court is hereby affirmed.



Donofrio, J., concurs.
DeGenaro, P.J., concurs.
