[Cite as State v. Powe, 2018-Ohio-477.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.     28729

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ORLANDO L. POWE                                      COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR-2001-06-1516

                                 DECISION AND JOURNAL ENTRY

Dated: February 7, 2018



        TEODOSIO, Judge.

        {¶1}     Appellant, Orlando L. Powe, appeals from an order denying his motion to vacate

the judgment/conviction in the Summit County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     In 2002, following a jury trial, Mr. Powe was convicted of murder, felonious

assault, and endangering children. After the felonious assault count was merged into the murder

count, the trial court sentenced Mr. Powe to 15 years to life for murder and eight years for

endangering children, to be served consecutively for a total of 23 years to life in prison. This

Court affirmed the convictions on appeal. See State v. Powe, 9th Dist. Summit No. 21026, 2002-

Ohio-6034.

        {¶3}     In 2012, Mr. Powe filed a motion to merge the sentences for murder and

endangering children as allied offenses of similar import, which was denied by the trial court.
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Mr. Powe filed a notice of appeal, but never filed a merit brief, and the appeal was dismissed.

See State v. Powe, 9th Dist. Summit No. 26716 (Aug. 13, 2013).

       {¶4}    In 2013, Mr. Powe filed a motion to vacate or set aside an illegal and improper

sentence, again alleging allied offenses of similar import, which was denied by the trial court.

This Court affirmed the trial court’s denial of Mr. Powe’s motion, as the motion was deemed an

untimely and successive petition for post-conviction relief. See State v. Powe, 9th Dist. Summit

No. 27163, 2014-Ohio-478, ¶ 11.

       {¶5}    In 2017, Mr. Powe filed a motion to arrest judgment, alleging that the trial court

lacked subject-matter jurisdiction over his case because only an indictment, but no criminal

complaint, had been filed. The trial court denied the motion and Mr. Powe did not appeal.

Instead, less than two months later, he filed a motion to vacate the judgment/conviction, again

alleging that the trial court did not have subject-matter jurisdiction over his case because no

complaint had been filed, in violation of the Due Process Clause of the United States

Constitution. The trial court denied that motion as well.

       {¶6}    Mr. Powe now appeals from the trial court’s denial of his motion to vacate the

judgment/conviction and raises three assignments of error for this Court’s review.

       {¶7}    For ease of analysis, we consolidate Mr. Powe’s assignments of error.

                                                II.

                              ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT LACKED SUBJECT[-]MATTER JURISDICTION OVER
       SAID CASE[ ]BECAUSE THE CHARGING INSTRUMENT’S (SIC) WERE
       NEVER PROPERLY FILED. AND WITHOUT A PROPERLY FILED
       “CRIMINAL COMPLAINT[,]” THE TRIAL COURT DID NOT HAVE
       SUBJECT[-]MATTER [JURISDICTION,] WHICH MAKES THE JUDGMENT
       OF SENTENCE VOID * * *.
                                                3


                              ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ABUSED ITS DISCRECTION (SIC) BY FAILING TO
       DISMISS APPELLANT’S CASE WITH PREJUDICE, BASED UPON THE
       FACT THAT THE CRIMINAL “COMPLAINT”[ ]HAD NEVER BEEN FILED.
       SO THERE COULD NEVER HAVE BEEN A BINDOVER FROM THE
       MUNICIPAL COURT[,] IN VIOLATION OF THE APPELLANT’S
       CONSTITUTIONAL RIGHT PER AMENDMENTS 4, 5, 6, 14[ ] TO THE
       UNITES STATES[,] WHICH MAKES THE JUDGMENT OF CONVICTION
       VOID * * *.

                            ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT ABUSED ITS DISCRETION BY LITIGATING A
       MATTER WITH WHICH THE TRIAL COURT AND APPELLEE’S (SIC) HAD
       PRESUMED KNOWLEDGE THAT NO BINDOVER HAD TOOK (SIC)
       PLACE FROM THE MUNICIPAL COURT[ ]TO THE COMMON PLEAS
       COURT OF SUMMIT COUNTY OF OHIO[ ]TO INVOKE SUBJECT[-]
       MATTER [JURISDICTION] OF THE TRIAL COURT * * *AND FOR THOSE
       REASON (SIC) ALONE WOULD MAKE THE JUDGMENT/CONVICTION
       VOID AND ILLEGAL AND IS A CONSTITUTIONAL VIOLATION OF
       AMENDMENTS 4, 5, 6, 14[ ] BECAUSE THERE WAS NEVER A PROPERLY
       FILED CRIMINAL COMPLAINT * * *.

       {¶8}    In his assignments of error, Mr. Powe essentially argues that because a criminal

complaint was never filed in this case, in violation of his constitutional rights, the trial court

never had subject-matter jurisdiction and his convictions are therefore void. We disagree.

       {¶9}    “‘Subject[-]matter jurisdiction focuses on whether the court is the proper forum to

hear the class of cases within which a particular case falls, such as common pleas court,

municipal court, or juvenile court.’” State v. Cubic, 9th Dist. Medina No. 10CA0082-M, 2011-

Ohio-4990, ¶ 10, quoting State ex rel. Ralkers, Inc. v. Liquor Control Comm., 10th Dist. Franklin

No. 04AP-779, 2004-Ohio-6606, ¶ 37. “If a court enters judgment without having subject[-

]matter jurisdiction, that judgment is void * * *.” Kalbaugh v. Kalbaugh, 9th Dist. Summit No.

28282, 2017-Ohio-4272, ¶ 8. “Because subject-matter jurisdiction goes to the power of the court
                                                     4


to adjudicate the merits of a case, it can never be waived and may be challenged at any time.”

Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11.

       {¶10} Regardless, “‘[w]here 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 a motion is a petition for post[-]conviction relief as

defined in R.C. 2953.21.’” State v. Daniel, 9th Dist. Summit No. 26670, 2013-Ohio 3510, ¶ 6,

quoting State v. Reynolds, 79 Ohio St.3d 158 (1997), syllabus. Thus, Mr. Powe’s motion to

vacate the judgment/conviction, based on an alleged violation of his constitutional rights,

constituted a petition for post-conviction relief.

       {¶11} Generally, “[w]e review a trial court’s decision denying a petition for post-

conviction relief under an abuse of discretion standard.” Daniel at ¶ 7. “The term ‘abuse of

discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). When applying an abuse of discretion standard, a reviewing court is precluded from

simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66

Ohio St.3d 619, 621 (1993).

       {¶12} When Mr. Powe was convicted in this case in 2002, R.C. 2953.21(A)(2) provided,

in part, that a petition for post-conviction relief “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 * * *.” The trial transcripts were filed in this Court in a direct

appeal of the judgment of conviction on June 5, 2002. Mr. Powe did not file his most recent

petition until over 15 years later on July 17, 2017, well beyond the deadline provided under R.C.

2953.21(A)(2).    Moreover, he has already filed at least two other prior petitions for post-
                                                 5


conviction relief in this case. See Powe, 2014-Ohio-478, at ¶ 3, ¶ 11. Thus, Mr. Powe’s petition

for post-conviction relief is both untimely and successive.

       {¶13} A trial court may not entertain successive or untimely petitions unless the

petitioner satisfies certain requirements. First, he must show that he was unavoidably prevented

from discovering the facts he relies on or that, subsequent to the R.C. 2953.21(A)(2) deadline,

the United States Supreme Court recognized a new federal or state right that applies retroactively

to persons in his situation, and the petition asserts a claim based on that right.              R.C.

2953.23(A)(1)(a).    Second, he must show “by clear and convincing evidence that, but for

constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the

offense of which he was convicted * * *.” R.C. 2953.23(A)(1)(b). In his petition, Mr. Powe

made no argument as to how he satisfied his burden under R.C. 2953.23(A)(1).

       {¶14} Even assuming arguendo that Mr. Powe satisfied the requirements under R.C.

2953.23(A)(1), his petition would fail nonetheless. Mr. Powe challenges the jurisdiction of the

trial court based on the lack of a complaint filed in his case, but the existence of a complaint is

irrelevant in regards to the trial court’s subject-matter jurisdiction in felony cases. See State v.

Quinnie, 8th Dist. Cuyahoga No. 105104, 2017-Ohio-2663, ¶ 10. Mr. Powe was indicted by a

grand jury in this case, as required for felony charges. See id. See also Crim.R. 7(A) (stating

that felonies shall be prosecuted by indictment). “Common pleas courts have general subject-

matter jurisdiction over crimes and offenses committed by adults.” Jimison v. Wilson, 106 Ohio

St.3d 342, 2005-Ohio-5143, ¶ 11, citing Pratts, 102 Ohio St.3d 81, 2004-Ohio-1980, at ¶ 13. See

also R.C. 2931.03 (vesting original jurisdiction in courts of common pleas for all non-minor

offenses).
                                                 6


       {¶15} We conclude that the trial court did not have statutory authority to consider the

merits of Mr. Powe’s untimely and successive petition for post-conviction relief and therefore

correctly denied it. See State v. Russell, 9th Dist. Summit No. 28206, 2017-Ohio-723, ¶ 5.

       {¶16} Mr. Powe’s first, second, and third assignments of error are overruled.

                                                III.

       {¶17} Mr. Powe’s first, second, and third assignments of error are overruled. The

judgment of the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT
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HENSAL, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

ORLANDO L. POWE, pro se, Appellant.

SHERRI BEVAN WALSH, Proecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
