[Cite as State v. Wilson, 2014-Ohio-3286.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. John W. Wise, P.J.
       Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :   Case No. 14CA16
                                               :
JULIAN WILSON, JR.                             :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Richland County Court
                                                   of Common Pleas, Case No. 12-CR-761



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            July 24, 2014




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

JAMES J. MAYER, JR.                                JULIAN WILSON, JR., pro se
RICHLAND CO. PROSECUTOR                            Richland Correctional Institution
38 South Park St.                                  1001 Oliveburg Rd.
Mansfield, OH 44902                                P.O. Box 8107
                                                   Mansfield, OH 44901-8107
Richland County, Case No. 14CA16                                                        2

Delaney, J.

       {¶1} Appellant Julian Wilson, Jr. appeals from the February 20, 2014 judgment

entry of the Richland County Court of Common Pleas overruling his motion to dismiss

the indictment for lack of jurisdiction. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary to our resolution of this appeal.

       {¶3} Upon jury trial before the Richland County Court of Common Pleas,

appellant was found guilty of one count of felonious assault and one count of

misdemeanor assault.      He was found not guilty of other charges.       Appellant was

sentenced to an aggregate prison term of four years, to be served consecutively to a

prison term imposed in an unrelated probation-violation case.

       {¶4} Appellant appealed from his convictions and sentence, raising two

assignments of error; appellant argued the trial court should have dismissed the

indictment because appellee failed to provide a timely bill of particulars and because

appellee failed to prove the statements set forth in the bill of particulars. We overruled

both assignments of error on January 8, 2014 in State v. Wilson, 5th Dist. Richland No.

13CA39, 2014-Ohio-41. A motion for delayed appeal to the Ohio Supreme Court was

denied in State v. Wilson, 138 Ohio St.3d 1491, 2014-Ohio-2021, 8 N.E.2d 962.

       {¶5} In his reply brief in the direct appeal, appellant argued the indictment was

defective because it didn’t allege subject-matter jurisdiction. We declined to address

this argument because new assignments of error may not be raised in a reply brief.
Richland County, Case No. 14CA16                                                       3

Wilson, supra, 2014-Ohio-41 at ¶ 38, citing State v. Nichols, 5th Dist. Coshocton No. 01-

CA-016, 2002-Ohio-4048, ¶ 44.

       {¶6} On December 9, 2013, appellant filed a motion to dismiss the case for lack

of jurisdiction before the trial court, which was overruled on February 20, 2014.

       {¶7} On March 24, 2014, appellant filed an application for reopening pursuant

to App.R. 26(B), which we overruled on May 13, 2014, as will be addressed infra.

       {¶8} Appellant now appeals from the trial court’s decision of February 20, 2014.

       {¶9} Appellant raises three assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶10} “I. THE TRIAL COURT ERRED WHEN IT ABUSED ITS DISCRETION BY

OVER-RULING THE APPELLANTS MOTION TO DISMISS COUNTS OF INDICTMENT

FOR LACK OF SUBJECT MATTER/TERRITORIAL JURISDICTION WHICH HAD NOT

BEEN PROPERLY ACQUIRED IN 2012 PURSUANT TO THE FILING OF A FATALLY

DEFECTIVE INDICTMENT IN CONTRAVENTION OF THE UNITED STATES AND

OHIO CONSTITUTIONS.” (sic throughout)

       {¶11} “II.    FAILURE TO OBJECT OR CHALLENGE SUBJECT MATTER

JURISDICTION/TERRITORIAL JURISDICTION BEFORE THE COMMENCEMENT OF

TRIAL.” (sic)

       {¶12} “III.   THE BILL OF PARTICULARS IS A DEFECTIVE ISSUE AS TO

LOCATION WHERE THE OFFENSES ALLEGEDLY OCCURRED.”
Richland County, Case No. 14CA16                                                          4


                                        ANALYSIS

                                             I.

       {¶13} In his first assignment of error, appellant argues his conviction is void for

lack of subject-matter jurisdiction. We disagree.

       {¶14} 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.

       {¶15} Pursuant to R.C. 2931.03, the court of common pleas has subject matter

jurisdiction of criminal cases. 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). The indictment in the instant case charged appellant with

several felonies alleged to have occurred in Richland County, Ohio.          The Richland

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

appellant'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.

       {¶16} By contrast, “venue is a fact which must be proved in criminal

prosecutions unless it is waived by the defendant.” State v. Headley, 6 Ohio St.3d 475,
Richland County, Case No. 14CA16                                                             5


477, 453 N.E.2d 716 (1983). “Section 10, Article I of the Ohio Constitution fixes venue,

or the proper place to try a criminal matter[.]” Id. Article I, Section 10 of the Ohio

Constitution provides, in pertinent part, that “[i]n any trial, in any court, the party accused

shall be allowed * * * a speedy public trial by an impartial jury of the county in which the

offense is alleged to have been committed * * *.”

        {¶17} Appellant argues the indictment did not establish the offenses occurred in

Richland County, an argument which goes to venue, not subject-matter jurisdiction. See

Headley at 477.

        {¶18} The indictment of appellant states in pertinent part “INDICTMENT FOR:

KIDNAPPING, FELONIOUS ASSAULT (2 counts) & ASSAULT, THE STATE OF OHIO,

RICHLAND COUNTY, SS; COURT OF COMMON PLEAS.”                            We addressed this

argument in appellant’s application to reopen his appeal, in which we stated in pertinent

part:

                     * * *. The indictment then goes on to list each count and

              specifies the sections appellant allegedly violated of the Ohio

              Revised Code. Thus, it can be understood from the indictment that

              the offenses were committed at some place within the jurisdiction of

              the court, Richland County, as required by R.C. 2941.03(D). See

              State v. Roberson, [supra]; State v. Singleton, 10th Dist. Franklin

              No. 01AP-632, 2002-Ohio-784. In addition, though the county was

              not stated in each count of the indictment, R.C. 2941.03(D) states

              that an indictment is not invalid “[f]or the want of an allegation of the

              time or place of a material fact when the time and place have been
Richland County, Case No. 14CA16                                                    6


            once stated therein.” Finally, based on the statutory presumption in

            R.C. 2901.11(A)(1), the Richland County Court of Common Pleas

            had subject matter jurisdiction over the charges in this case as they

            were charges brought under the laws of the State of Ohio and each

            section of the Ohio Revised Code appellant allegedly violated was

            detailed in each count of the indictment.

                  Venue is “not a material element of any offense charged.

            The elements of the offense charged and the venue of the matter

            are separate and distinct * * * Yet, in all criminal prosecutions,

            venue is a fact that must be proved at trial unless waived.” State v.

            Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 1342 (1981). The Ohio

            Supreme Court has stated that, “it is not essential that the venue of

            the crime be proven in express terms, provided it be established by

            all the facts and circumstances in the case, beyond a reasonable

            doubt, that the crime was committed in the county and state as

            alleged in the indictment.” State v. Hampton, 134 Ohio St.3d 447,

            451, 983 N.E.2d 324 (2012), quoting State v. Dickerson, 77 Ohio

            St. 34, 82 N.E.2d 969 (1907).

                  Prior to trial, appellee provided appellant with open-file

            discovery and appellant had access to witness statements, police

            reports, and medical records in the case. The issue of venue was

            then proven beyond a reasonable doubt at trial.        Karen Brown

            testified the incident occurred at her house on Spayer Lane and
Richland County, Case No. 14CA16                                                      7


             further testified this address was located in Mansfield in Richland

             County, Ohio. Officer Kaufman testified that he responded to the

             incident location at 408 Spayer Lane in Mansfield, Ohio, in Richland

             County. Appellant also testified the incident occurred at Brown’s

             home and he did not dispute the incident took place in Richland

             County.

      {¶19} We note an App.R. 26(B) application for reopening is a “collateral post-

conviction remedy[.]” Morgan v. Eads, 104 Ohio St.3d 142, 2004–Ohio–6110, 818

N.E.2d 1157, ¶ 22. Res judicata applies not only to direct appeals, but to all post-

conviction proceedings in which an issue was or could have been raised. See, State v.

Montgomery, 8th Dist. Cuyahoga, 2013–Ohio–4193, 997 N.E.2d 579, ¶ 42.

      {¶20} Appellant has raised the “subject-matter jurisdiction” argument on two

previous occasions: in his reply brief on direct appeal, as noted supra, and in an

application to reopen his first direct appeal pursuant to App.R. 26(B), which was denied

on May 13, 2014. In the latter decision, we found the indictment was not defective for

lack of subject-matter jurisdiction and venue in Richland County was established. Thus,

the venue argument raised by appellant in this subsequent appeal is barred by res

judicata. See, State v. Roberson, 5th Dist. Stark No. 1998CA00271, unreported, 1999

WL 1071950 (Nov 15, 1999) at *2.

      {¶21} Appellant’s first assignment of error is overruled.
Richland County, Case No. 14CA16                                                        8


                                               II.

       {¶22} In his second assignment of error, appellant argues he received

ineffective assistance of trial counsel due to the failure to raise the “subject-matter

jurisdiction” argument. We disagree.

       {¶23} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such

claims, “a court must indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,

101, 76 S.Ct. 158 (1955). “There are countless ways to provide effective assistance in

any given case. Even the best criminal defense attorneys would not defend a particular

client in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel

acted “outside the wide range of professionally competent assistance.” Id. at 690.

       {¶24} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

       {¶25} In light of our resolution of appellant’s first assignment of error, we find

defense trial counsel was not incompetent in failing to raise the subject-matter
Richland County, Case No. 14CA16                                                           9


jurisdiction argument, nor would the argument have resulted in a different outcome at

trial.

         {¶26} Appellant’s second assignment of error is overruled.

                                                 III.

         {¶27} In his third assignment of error, appellant argues the bill of particulars was

defective. We disagree.

         {¶28} Again, in overruling appellant’s application to reopen his direct appeal, we

addressed this argument and stated:

               The bill of particulars alleged in each count that the incident took

         place at 75 Sturges Avenue, Mansfield, Ohio, appellant’s address where

         he was arrested, instead of at 408 Spayer Lane, Mansfield, Ohio, which

         was Brown’s address where the incident at issue occurred.

               Courts have held that an incorrect address in a bill of particulars,

         without a showing that this incorrect address was prejudicial to the

         defense, is harmless error. State v. Bolan, 8th Dist. Cuyahoga No. 85993,

         2005-Ohio-6970; State v. Tijerina, 3d Dist. Defiance No. 4-91-27, 1992

         WL 292407 (Sept. 30, 1992); State v. Williams, 1st Dist. Hamilton No. C-

         920869, 1993 WL 547184 (Dec. 1. 1993); State v. Montoya, 12th Dist.

         Clermont No. CA2012-02-015, 2013-Ohio-3312. Further, Criminal Rule

         33 provides that a variance between the allegations and the evidence at

         trial is not reversible error unless the defense is prejudiced or misled

         thereby. Crim.R. 33(E)(2).
Richland County, Case No. 14CA16                                                    10


               Appellant was informed of appellee’s open-discovery policy and

       thus had access to items such as the police reports, medical reports, and

       witness statements in the case.         The Complaint Request Form, the

       Incident / Investigation Report, and Richland County Prosecutor’s

       Statements of Facts, all filed in October of 2012, list the correct 408

       Spayer Lane address as the address of the incident. Brown testified at

       trial that the incident occurred at her home on Spayer Lane and Officer

       Kaufman testified that he responded to the incident location at 408 Spayer

       Lane. Appellant also testified the incident occurred at Brown’s home, did

       not dispute the incident took place at 408 Spayer Lane, and only disputed

       Brown and T.L.’s testimony of how the events unfolded on October 15,

       2012.

       {¶29} Appellant’s argument here is also barred by res judicata as described in

our resolution of appellant’s first assignment of error.

       {¶30} Appellant’s third assignment of error is overruled.
Richland County, Case No. 14CA16                                                  11


                                   CONCLUSION

       {¶31} Appellant’s three assignments of error are overruled and the judgment of

the Richland County Court of Common Pleas is affirmed.

By: Delaney, J. and

Wise, P.J.

Baldwin, J., concur.
