[Cite as State v. Fryer, 2018-Ohio-3024.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff - Appellee                 :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
DOUGLAS L. FRYER                             :       Case No. 18-CA-00005
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Perry County Court
                                                     of Common Pleas, Case No. 06-CR-
                                                     0060




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 30, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOSEPH A. FLAUTT                                     DOUGLAS L. FRYER, pro se
Perry County Prosecuting Attorney                    #A-548-092
111 North High Street, P.O. Box 569                  P.O. Box 57
New Lexington, Ohio 43764                            Marion, Ohio 43301
Perry County, Case No. 18-CA-00005                                                  2

Baldwin, J.

       {¶1}   Appellant appeals the decision of the Perry County Court of Common Pleas

denying his “Motion to Dismiss Indictment; Vacate Void Judgment and Conviction for

Improperly Acquiring Subject Matter Jurisdiction.” Appellee is the State of Ohio.


                           STATE OF FACTS AND THE CASE

       {¶2}   The facts underlying the offense committed in this matter are not necessary

for the resolution of this appeal and, therefore, they are not included in this opinion.

       {¶3}   Appellant pleaded guilty to fifteen counts of Gross Sexual Imposition and

one count of Rape on March 20, 2007.

       {¶4}   On April 17, 2007, Appellant was sentenced by the trial court and was found

to be a sexual predator, pursuant to an agreement between the State and Appellant. The

termination judgment entry was filed by the trial court on April 18, 2007.

       {¶5}   The court reviewed the Notice of Registration Duties of Sexually Oriented

Offender or Child–Victim Offender. The form was signed by Appellant and filed with the

court on April 7, 2007. Appellant did not file a direct appeal.

       {¶6}   On March 12, 2014, Appellant filed a Motion to Correct Sentence and

requested an evidentiary hearing on his classification as a sex offender. By entry filed

June 6, 2014, the court granted the motion in part in accordance with Criminal Rule 32(C)

and the Ohio Supreme Court's decisions in State v. Baker, 119 Ohio St.3d 197, 2008-

Ohio-3330, 893 N.E.2d 163 and State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204,

958 N.E.2d 142. However, the trial court denied Appellant's request for an evidentiary

hearing. The nunc pro tunc termination entry was filed June 18, 2014.
Perry County, Case No. 18-CA-00005                                                   3


         {¶7}   Appellant appealed the trial court's denial of his request for an evidentiary

hearing. State v. Fryer, 5th Dist. Perry No. 14–CA–17, 2015-Ohio-509, 2015 WL 628334.

[“Fryer I ”]. In Fryer I, appointed counsel filed an appellate brief. Fryer I, ¶ 9. Appointed

counsel raised as his sole assignment of error, “I. THE TRIAL COURT ERRED IN

REFUSING TO HOLD AN EVIDENTIARY HEARING AS TO APPELLANT'S STATUS AS

A SEXUAL PREDATOR.” Fryer I, ¶ 7. Appellant filed a pro se brief, which in the interest

of justice this Court considered. Fryer I, ¶ 12. Appellant raised as his sole assignment of

error, “I. THE TRIAL COURT ERREED [SIC.] LIN [SIC.] TRYING AND CONVICTING OF

CRIMES THAT WERE NOT SPECIFIC TO DISTINGUISH DIFFERENT CRIMES

CHARGED DUE TO DUPLICITOUS INDICTMENT.” Fryer I, ¶ 13.

         {¶8}   This Court overruled counsel's and Appellant's pro se assignments of error

and affirmed the June 6, 2014 judgment entry of the Perry County Court of Common

Pleas. Fryer I, ¶ 26.

         {¶9}   On May 1, 2015, Appellant pro se filed a “Motion for Hearing” contending:

he was not notified of his right to appeal during the original sentencing hearing; the trial

court failed to properly notify him concerning post release controls; the trial court failed to

conduct the classification hearing in accordance with R.C. 2950.09 (B)(2); and the nunc

pro tunc judgment violates Crim.R. 32(C), State v. Baker, supra, and State v. Lester,

supra.

         {¶10} The state filed a response on May 18, 2015. By judgment entry filed May

20, 2015, the trial court denied Appellant's motion. Appellant appealed to this court, and

raised four assignments of error:
Perry County, Case No. 18-CA-00005                                             4


      {¶11} “I. THE TRIAL COURT ERRED WHEN DISREGARDING STATUTORY

REQUIREMENTS WHEN IT DID NOT COMPLY WITH 32(B).”

      {¶12} “II. THE TRIAL COURT ERRED WHEN IT DID NOT MAKE THE FINDINGS

OR ADJUDICATION OF GUILT IN THE RECORDS.”

      {¶13} “III. THE TRIAL COURT ERRED WHEN IT DID NOT COMPLY WITH R.C.

2929.191 BY NOT HOLDING A HEARING WITH THE DEFENDANT PRESENT.”

      {¶14} “IV. THE TRIAL COURT ERRED WHEN THE COURT DISREGARDED

AND FAILED TO EXERCISE ITS STATUTORILY REQUIRED DUTIES DURING THE

DEFENDANTS *965 [SIC] ALLEGED CLASSIFICATION HEARING.”

      {¶15} We overruled the assignments of error and affirmed the decision of the trial

court in our opinion of November 2, 2015.

      {¶16} In the case at bar, Appellant filed a “Motion to Dismiss Indictment; Vacate

Void Judgment and Conviction for Improperly Acquiring Subject Matter Jurisdiction” on

February 16, 2018. The trial court denied the motion on February 26, 2018. Appellant

filed a notice of appeal on March 19, 2018 and raises three assignments of error:

      {¶17} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE

PREJUDICE OF DEFENDANT-APPELLANT WHEN IT FAILED TO DISMISS

INDICTMENT FOR LACK OF SUBJECT MATTER JURISDICTION.”

      {¶18} “II. TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE

PREJUDICE OF DEFENDANT-APPELLANT WHEN DISMISSING MOTION TO

CORRECT VOID SENTENCE AS THE TRIAL COURT WAS IN VIOLATION OF R. C.

2929.11 AND R. C. 2929.12.”
Perry County, Case No. 18-CA-00005                                                    5


      {¶19} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE

PREJUDICE OF DEFENDANT APPELLANT AS THE TRIAL COURT HAS NO

AUTHORITY TO IMPOSE A SENTENCE CONTRARY TO LAW.”


                                        ANALYSIS

      {¶20} The caption of Appellant's pro se pleading as a “Motion to Dismiss

Indictment; Vacate Void Judgment and Conviction for Improperly Acquiring Subject

Matter Jurisdiction” does not conclusively define the nature of the pleading. State v.

Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131 (1997). In Reynolds, the

Ohio Supreme Court found, despite its caption, an Appellant's pleading which (1) is filed

subsequent to Appellant's time for filing a direct appeal; (2) claims the denial of

constitutional rights; (3) seeks to render the judgment void or voidable; and (4) asks the

trial court to vacate the judgment and sentence, is a petition for post-conviction relief

pursuant to R.C. 2953.21(A)(1). Id. at 160.

      {¶21} Post-conviction efforts to vacate a criminal conviction or sentence on

constitutional grounds are governed by R.C. 2953.21, which provides:

             [A]ny person who has been convicted of a criminal offense* * * who

      claims 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, and any person who has been convicted

      of a criminal offense that is a felony, who is an inmate, * * *may file a petition

      in the court that imposed sentence, stating the grounds for relief relied upon,

      and asking the court to vacate or set aside the judgment or sentence or to

      grant other appropriate relief. R.C. 2953.21(A)(1).
Perry County, Case No. 18-CA-00005                                                   6


              Except as provided in section 2953.23 of the Ohio Revised Code, a

       petition under division (A)(1) of this section shall be filed no later than one

       hundred eighty days after the date in which the trial transcript is filed in the

       court of appeals in the direct appeal of the judgment of conviction or

       adjudication, or * * * 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 an appeal.

R.C. 2953.21.

       {¶22} We find Appellant's motion constitutes a petition for post-conviction relief.

Pursuant to R.C. 2953.21, Appellant was required to file his petition no later than one

hundred and eighty days after the expiration of the time for filing the appeal of his original

conviction and sentence entered April 18, 2007. We find Appellant's motion, which was

filed more than eleven years after the expiration of the appeal period, to be untimely.

Accordingly, we find the trial court properly denied Appellant's Motion.

       {¶23} Further, Appellant's motion is barred by the doctrine of res judicata.

              Under the doctrine of res judicata, a final judgment of conviction bars

       a convicted defendant who was represented by counsel from raising and

       litigating in any proceeding except an appeal from that judgment, any

       defense or any claimed lack of due process that was raised or could have

       been raised by the defendant at trial, which resulted in that judgment of

       conviction, or on an appeal from that judgment. (Emphasis added.)

              It is established that, pursuant to res judicata, a defendant cannot

       raise an issue in a motion for post-conviction relief if he or she could have
Perry County, Case No. 18-CA-00005                                                  7

       raised the issue on direct appeal. State v. Duling, 21 Ohio St.2d 13, 254

       N.E.2d 670 (1970), vacated in part, 408 U.S. 936, 92 S.Ct. 2861, 33 L.Ed.2d

       753 (1972).

State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131 (1997), citing

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, (1967), at the syllabus.

       {¶24} This Court has held that:

              Post-conviction relief is available only for errors based upon facts

       and evidence outside the record. “Errors and deficiencies in an indictment

       are not outside the record; therefore they can only be attacked on direct

       appeal. * * * It follows that a court may apply the doctrine of res judicata to

       bar a petition for post-conviction relief if it is based upon a claim that the

       indictment is insufficient or defective, since this claim would not require

       consideration of matters outside the original record.” State v. Grimm (April

       25, 1997), Miami App. Nos. 96–CA–37 and –38 (citations omitted). The

       petitioner did not raise the sufficiency of the indictment on direct appeal,

       although he could have done so. Therefore, he is barred by res judicata

       from raising that issue now.

State v. Thompson, 5th Dist. Ashland No. 08 COA 018, 2008-Ohio-5332, ¶¶ 26-27.

       {¶25} For those reasons, we hold that not only is Appellant’s motion a delinquent

motion for post-conviction relief, his arguments are barred by res judicata and cannot

serve as the basis for the relief Appellant seeks.

       {¶26} Appellant’s first assignment of error arguably survives and must be

addressed separately only because Appellant asserts the trial court lacked subject matter
Perry County, Case No. 18-CA-00005                                                   8


jurisdiction to hear his case as a result of alleged defects in the indictment. We agree that

a lack of subject matter jurisdiction may not be waived and may be raised at any time.

State v. Wilson, 73 Ohio St.3d 40, 1995-Ohio-217, 652 N.E.2d 196 (1995), but we hold

that the trial court had subject matter jurisdiction.

       {¶27} Appellant asserts that the indictment was not delivered to the judge, but was

filed directly with the clerk by the prosecutor and was not added to the trial docket, defects

Appellant describes as fatal to an effective indictment.     Upon review of the record, we

find that the indictment is proper in form, provides notice of the charges, is signed by the

foreman of the grand jury and was filed with the Clerk on October 27, 2006. We conclude

that a valid indictment was returned and filed with the trial court and that the trial court

obtained subject-matter jurisdiction over Appellant’s case upon a valid indictment being

returned and filed with the trial court. State v. Pillow, 2d Dist. Greene No.2010–CA–71,

2011–Ohio–4294, ¶ 18; see also State v. Leigh, 2nd Dist. Montgomery No. 18294, 2001-

Ohio-1700. State v. Rohde, 2nd Dist. Montgomery No. 26087, 2014-Ohio-5580, ¶ 24.

       {¶28} Appellant’s reliance on the holding in State v. Haynes, 8th Dist. No. 102457,

2015-Ohio-4582, 46 N.E.3d 1136 is misplaced. In that case “the trial court found that

despite multiple hearings, there was no evidence establishing that the indictments ***

were returned to the clerk of courts on or before April 26, 2014, the last day of the 20–

year statute of limitations period” and that “[t]he state failed to meet its burden *** because

although it is undisputed that the grand jury voted to indict the defendants on April 24,

2014, there is no evidence regarding when the grand jury voting sheets were returned to

the clerk's office.” Haynes, at ¶ 19. In State v. Ali, 8th Dist. Cuyahoga No. 105534, 2017-
Perry County, Case No. 18-CA-00005                                                 9

Ohio-6894, the Eighth District distinguished its holding in Haynes, and the same analysis

fits this case:

                  Unlike Haynes, the case against Ali commenced within the relevant

       statutory period. *** Therefore, no statute of limitations issue existed.

       Moreover, Ali assumes that the grand jury and delivery process testified to

       in Haynes occurred in his case. However, the record does not support Ali's

       speculative assertions that there was a defect in the grand jury proceedings

       and the prosecution against him was improper.


State v. Ali, at ¶ 8.

       {¶29} The record shows that the grand jury voted to indict the Appellant and the

indictment was filed with the court on October 27, 2006, well within the applicable statute

of limitations. Because a valid indictment was returned and filed with the clerk, the trial

court was vested with subject matter jurisdiction. Once the trial court has jurisdiction over

the subject matter and the Appellant, and the Appellant is convicted, Appellant cannot

collaterally attack the indictment. The “judgment of conviction is necessarily binding as

between the state and the defendant and can only be set aside by a direct and not a

collateral attack.” Appellant’s only remedy is a direct appeal. Mills v. Maxwell, 174 Ohio

St. 523, 524, 190 N.E.2d 264, 264–65 (1963). Appellant failed to address the claimed

defects in his original appeal, so res judicata bars any further argument regarding those

issues.

       {¶30} We hold that the trial court had subject matter jurisdiction and that

Appellant’s first assignment of error is overruled.
Perry County, Case No. 18-CA-00005                                         10


      {¶31} For the forgoing reasons, Appellants’ assignments of error are overruled

and the decision of the Perry County Court of Common Pleas is affirmed.


By: Baldwin, J.

Delaney, P.J. and

Earle Wise, J. concur.
