[Cite as State v. Phillips, 2014-Ohio-5309.]
                             STATE OF OHIO, MAHONING COUNTY

                                    IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )   CASE NO. 14 MA 34
        PLAINTIFF-APPELLEE,                     )
                                                )
        - VS -                                  )         OPINION
                                                )
KEITH PHILLIPS,                                 )
                                                )
        DEFENDANT-APPELLANT.                    )


CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Common Pleas
                                                    Court, Case No. 09 CR 921.


JUDGMENT:                                           Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                             Attorney Paul J. Gains
                                                    Prosecuting Attorney
                                                    Attorney Ralph M. Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 W. Boardman St., 6th Floor
                                                    Youngstown, OH 44503

For Defendant-Appellant:                            Keith Phillips, Pro-se
                                                    #581-330
                                                    Marion Correctional Institution
                                                    P.O. Box 57
                                                    Marion, OH 43302


JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                    Dated: November 25, 2014
[Cite as State v. Phillips, 2014-Ohio-5309.]
DeGENARO, P.J.
        {¶1} Pro-se Defendant-Appellant, Keith Phillips, appeals the March 12, 2014
judgment of the Mahoning County Court of Common Pleas denying his motion to vacate
his conviction due to subject-matter jurisdiction. On appeal, he argues the trial court
erred in denying his motion because he alleges his arrest warrants were deficient and no
complaint was filed against him. For the following reasons, Phillips arguments are
meritless. Accordingly, the judgment of the trial court is affirmed.
                                    Facts and Procedural History
        {¶2} On September 3, 2009, the Mahoning County grand jury charged Phillips
with one count of felonious assault, R.C. 2903.11(A)(2)(D), a second-degree felony, with
an accompanying firearm specification, R.C. 2941.145(A); and one count of having a
weapon while under disability, R.C. 2923.13(A)(2)(B), a third-degree felony.
        {¶3} On February 3, 2010, Phillips pled guilty to the charges in the indictment.
That same day, Phillips was sentenced to five years on the weapons charge, to run
concurrently with a five year sentence on the felonious assault charge, with the three
years for the accompanying firearm specification to be served prior to and consecutive to
the other sentences, for an aggregate prison term of eight years. He was also sentenced
to a three-year mandatory term of post-release control. No direct appeal was filed.
        {¶4} On February 18, 2014, Phillips filed a pro-se "motion to vacate conviction
due to subject-matter jurisdiction." Citing Crim.R. 3 and 4(A)(1), Phillips argued the trial
court lacked jurisdiction to convict him because there was never a complaint filed against
him and the arrest warrants did "not establish probable cause nor were they made sworn
to by an authorized party." He therefore claimed his criminal convictions must be
vacated. He attached as exhibits a letter he wrote to the clerk's office requesting a
certified copy of the complaint and arrest warrant for his case; and certified copies of his
arrest warrants for the felonious assault charge and for the weapons charge. The trial
court denied Phillips' motion.
                          Denial of Untimely Post-Conviction Petition
        {¶5} In his sole assignment of error, Phillips asserts:

        "Trial Court lacked subject matter jurisdiction due to an invalid complaint
                                                                                          -2-


       and subsequent warrant to convict."

       {¶6} Phillips argues here, as he did in the trial court, that there was never a
complaint filed against him and that his arrest warrant was invalid because it was
allegedly not signed by the proper party. Phillips claims that absent a valid complaint,
"the Municipal Court was without subject matter jurisdiction to bind this case over to the
Court of Common Pleas." For these reasons, Phillips claims the trial court lacked subject
matter jurisdiction to convict him, and therefore he insists his conviction must be vacated.
       {¶7} Phillips' motion to vacate must be treated as a post-conviction petition.
"Where a criminal defendant, subsequent to his or her direct appeal, files a motion
seeking vacation or correction of his or her sentence on the basis that his or her
constitutional rights have been violated, such motion is construed as a petition for post-
conviction relief as defined in R.C. 2953.21." State v. Kapsouris, 7th Dist. No. 08 MA
265, 2010-Ohio-754, ¶13, citing State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131,
syllabus (1997). In Kapsouris, this court recast the defendants' post-conviction, post-
direct-appeal "Crim.R. 52(B) motion" challenging the validity of his indictment as a post-
conviction petition. Id.
       {¶8} Phillips cites State v. Davies, 11th Dist. No. 2012-A-0034, 2013-Ohio-436.
Although upon first blush Davies might seem to support a decision not to treat the motion
as a post-conviction petition, upon closer inspection the case is distinguishable. In
Davies, the appellant also challenged the validity of his criminal complaints via a motion
to vacate his conviction. He argued that the state failed to properly invoke the trial court's
jurisdiction over his case because none of the six complaints against him complied with
the requirements of Crim.R. 3. The Eleventh District declined to treat the motion as a
post-conviction petition:

       Given the nature of the specific arguments appellant raised in his motion to
       vacate, the statutory time requirements for a post-conviction petition were
       inapplicable. That is, since his motion raised an issue of subject matter
       jurisdiction, it could be asserted at any time. Thus, appellant's motion to
                                                                                         -3-


       vacate could not be denied solely on the basis that it was untimely.

Id. at ¶13.
       {¶9} However, there is a key difference between Davies and this case. In
Davies, the appellant was prosecuted through the county court and there were no other
charging documents aside from the complaints.           Id. at ¶1-5.    Here, Phillips was
subsequently charged by indictment. The Supreme Court of Ohio has held that " '[t]he
manner by which an accused is charged with a crime is procedural rather than
jurisdictional, and after a conviction for crimes charged in an indictment, the judgment
binds the defendant for the crime for which he was convicted.' " State ex rel. Nelson v.
Griffin, 103 Ohio St.3d 167, 2004-Ohio-4754, 814 N.E.2d 866, ¶6, quoting Orr v. Mack,
83 Ohio St.3d 429, 430, 700 N.E.2d 590 (1998).
       {¶10} Thus, although couched as a challenge to subject matter jurisdiction,
Phillips' motion to vacate merely raises a procedural issue and shall therefore be treated
as a post-conviction petition.
       {¶11} R.C. 2953.21 and R.C. 2953.23 govern petitions for post-conviction relief.
Under R.C. 2953.21, relief from a judgment or sentence is available for a person
convicted of a criminal offense who shows that "there was such a denial or infringement
of the person's rights as to render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States[.]" R.C. 2953.21(A)(1)(a).
       {¶12} According to R.C. 2953.21(A)(2), a timely petition "shall be filed no later
than one hundred eighty days after the date on which the trial transcript is filed in the
court of appeals in the direct appeal of the judgment of conviction[.] * * * If no appeal is
taken, except as otherwise provided in section 2953.23 of the Revised Code, the petition
shall be filed no later than one hundred eighty days after the expiration of the time for
filing the appeal." R.C. 2953.21(A)(2).
       {¶13} However, there is an exception to the 180-day requirement. According to
R.C. 2953.23(A)(1), a petitioner may file a delayed petition only if the following apply: (a)
he "shows that the [he] was unavoidably prevented from discovery of the facts upon
                                                                                       -4-


which [he] must rely to present the claim for relief[,]" or if the "United States Supreme
Court recognized a new federal or state right that applies retroactively to persons in the
petitioner's situation, and the petition asserts a claim based on that right," and (b) he
"shows by clear and convincing evidence that, but for constitutional error at trial, no
reasonable factfinder would have found [him] guilty[.]" R.C. 2953.23(A)(1)(a) and (b).
       {¶14} Phillips failed to file a direct appeal, and his judgment entry of conviction
was filed on February 3, 2010. Phillips' post-conviction petition was filed on February 18,
2014—over four years later. Thus, Phillips' petition was filed well beyond the 180-day
deadline. And Phillips made no attempt to explain the untimeliness of his petition
pursuant to R.C. 2953.23(A)(1)(a) and (b). Accordingly, the trial court lacked jurisdiction
to consider Phillips' motion and properly overruled it. See, e.g., State v. Bake, 7th Dist.
No. 05 BE 29, 2006-Ohio-4858, ¶7.
       {¶15} Even if this court could overlook the untimeliness issue, the petition would
nonetheless fail. A petition for post-conviction relief does not permit a defendant to
rehash the direct appeal of his criminal conviction, and only allows for a collateral civil
attack on the judgment. State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860
N.E.2d 77, ¶48, quoting State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994).
Post-conviction relief is a narrow remedy, and res judicata bars any claim that was or
could have been raised at the time of trial or on direct appeal. Steffen at 410. Thus,
issues properly raised in a post-conviction petition are those which could not have been
raised on direct appeal because the evidence supporting the issue is outside the record.
State v. Milanovich, 42 Ohio St.2d 46, 50, 325 N.E.2d 540 (1975).
       {¶16} Phillips argues that there was never a complaint filed against him and that
his arrest warrant was invalid because it was allegedly not signed by the proper party.
These claims are based upon the record and could have been raised in the trial court or
via direct appeal. Thus, his claims are also barred by res judicata.
       {¶17} Finally, because a grand jury's indictment cures any defect in the failure to
file a criminal complaint pursuant to Criminal Rule 3, Phillips' substantive arguments also
fail. For example, in State v. Thacker, 4th Dist. No. 04CA5, 2004-Ohio-3978, the
                                                                                           -5-


defendant, in the context of a post-sentence motion to withdraw his guilty plea, argued
that the trial court lacked subject matter jurisdiction at the time he entered his plea
because the record contained no Crim.R.3 complaint charging him with the crimes for
which he pled guilty. Id. at ¶1. The court rejected this argument because the record
contained an indictment stating the essential facts constituting the offenses charged. Id.
at ¶1, ¶13.
       {¶18} The court reasoned:

       * * * [A]s the Ohio Supreme Court has previously noted, "[a]n accused in a
       felony case is not tried upon the affidavit filed against him but on the
       indictment by the grand jury." Foston v. Maxwell (1964), 177 Ohio St. 74,
       76, 202 N.E.2d 425. The grand jury has the discretion to review the
       evidence presented to it and determine which offenses to charge. "The
       fact that the grand jury determines that an accused shall be charged with a
       felony other than that made against him in the affidavit [or complaint]
       originally filed and upon which he is bound over to the grand jury has no
       effect on the validity of the indictment returned by the grand jury." Id., citing
       Clinger v. Maxwell (1964), 175 Ohio St. 540, 196 N.E.2d 771. See, also,
       State v. Klingenberger (1925), 113 Ohio St. 418, 426, 149 N.E. 395 (Noting
       that grand juries have plenary and inquisitorial powers and may lawfully,
       upon their own motion, originate charges against offenders.). Furthermore,
       even if Thacker alleged that the original complaints contained defects, such
       defects would be irrelevant and harmless to Thacker's convictions based
       upon the grand jury indictment. See State v. Martin, Lawrence App. No.
       01CA24, 2002-Ohio-6140, at ¶ 24.

Thacker at ¶12.
       {¶19} In State v. Burns, 7th Dist. No. 09–MA–193, 2012-Ohio-2698, ¶71-74, this
court followed the rationale in Thacker to overrule a similar argument presented on direct
appeal. There, the defendant argued that the investigating officer's failure to file a
                                                                                      -6-


complaint violated Crim.R. 3, and R.C. 2935.09, thus prohibiting the case from being
directly presented to a grand jury. Id. at ¶72. This court disagreed, concluding that "any
error that occurred by failing to file a complaint in this case was rendered harmless once
the grand jury charged appellant." Id. at ¶74.
       {¶20} Accordingly, for all of the above reasons, Phillips' sole assignment of error
is meritless, and the judgment of the trial court is affirmed.
Vukovich, J., concurs.
Waite, J., concurs.
