[Cite as State v. Morris, 2013-Ohio-5485.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2013-T-0019
        - vs -                                  :

RYAN S. MORRIS,                                 :

                 Defendant-Appellant.           :




Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2008 CR
218.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Ryan S. Morris, pro se, PID: A554174, Trumbull Correctional Institution, P.O. Box 901,
Leavittsburg, OH 44430-0901 (Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Ryan S. Morris, appeals from the February 15, 2013 judgment

of the Trumbull County Court of Common Pleas, denying his pro se “Motion to Vacate

Void Judgment, Comply with Crim.R. 32(C), and Determine Jurisdiction.”
       {¶2}    On April 30, 2008, appellant was indicted by the Trumbull County Grand

Jury on five counts: count one, felonious assault, a felony of the second degree, in

violation of R.C. 2903.11(A)(2) and (D), with a firearm specification, in violation of R.C.

2941.145; count two, rape by fellatio, a felony of the first degree, in violation of R.C.

2907.02(A)(2) and (B), with a firearm specification; count three, rape by vaginal

intercourse, a felony of the first degree, in violation of R.C. 2907.02(A)(2) and (B), with a

firearm specification; count four, having weapons while under disability, a felony of the

third degree, in violation of R.C. 2923.13(A)(3) and (B); and count five, assault on a

peace officer, a felony of the fourth degree, in violation of R.C. 2903.13(A) and (C)(3).1

Appellant entered a not guilty plea and the matter proceeded to a jury trial.

       {¶3}    Following the trial, the jury returned a verdict of guilty on count one,

felonious assault with a firearm specification; guilty on count two, rape by fellatio, but

not guilty of the firearm specification; not guilty on count three, rape by vaginal

intercourse; guilty on count four, having weapons while under disability; and guilty on

count five, assault on a peace officer.

       {¶4}    A sentencing hearing was held on September 30, 2008. On count one,

felonious assault, the trial court sentenced appellant to two years in prison and three

years on the firearm specification. On count two, rape, the court sentenced appellant to

six years in prison. On count four, having weapons while under disability, the court

sentenced appellant to one year in prison. Finally, on count five, assault on a peace

officer, the court sentenced appellant to one year. The court ordered that all terms were

to be served consecutively for a total of 13 years in prison.

1. The charges stemmed from an incident that occurred during a party in which appellant threatened a
roomful of party-goers with a handgun, and proceeded to rape a female guest. Following his arrest,
appellant spat on a police officer while being transported to the station.


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       {¶5}     Appellant appealed his conviction, in Case No. 2008-T-0110, and asserted

the following six assignments of error:

       {¶6}     “‘[1.] The jury verdicts finding the Defendant-Appellant guilty are not

supported by the weight of the evidence.

       {¶7}     “‘[2.] The conviction for a violation of Ohio Rev. Code 2923.13 (“Having a

weapon while under disability”) violates the Defendant-Appellant’s constitutional rights.

       {¶8}     “‘[3.] The trial court erred to the prejudice of the Defendant-Appellant in

overruling his motions for a directed verdict made in line with Ohio Rule of Criminal

Procedure 29.

       {¶9}     “‘[4.] The trial court erred to the prejudice of the Defendant-Appellant by

excluding from evidence the DNA and its analysis from (Ms. M’s) underwear.

       {¶10} “‘[5.] The trial court erred to the prejudice of the Defendant-Appellant when

it denied his Motion to Sever Count 5 (Assault on a peace officer) from the remaining

four charges.

       {¶11} “‘[6.] The Defendant-Appellant was denied his constitutional rights to the

effective assistance of counsel.’”

       {¶12} On November 13, 2009, this court affirmed the judgment of the trial court.

State v. Morris, 11th Dist. No. 2008-T-0110, 2009-Ohio-6033 (O’Toole, J., concurring in

part and dissenting in part) (concurring “with the balance of the majority’s well-reasoned

opinion,” but dissenting “regarding appellant’s convictions for the firearm specification to

his felonious assault conviction, and for having a firearm while under disability,”

believing those convictions to be against the manifest weight of the evidence, because

“the quality of the evidence presented was insufficient to show that the firearm in




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question was ever operable.”) Id. at ¶131-132. Appellant did not seek a discretionary

appeal with the Supreme Court of Ohio.

       {¶13} Thereafter, on September 14, 2012, appellant filed a pro se “Motion to

Vacate Void Judgment, Comply with Crim.R. 32(C), and Determine Jurisdiction.” The

state opposed the motion on January 15, 2013. On February 15, 2013, the trial court

denied appellant’s motion based upon the doctrine of res judicata. Appellant filed the

instant appeal, raising the following assignments of error for our review:

       {¶14} “[1.] Trial court lacked authority, and exceeds its jurisdiction when it used a

un-journalized, non-final judgment of conviction as a element of the offense, and to

charge, try, convict, and sentence for the charge of ‘having weapons while under

disability’ pursuant to R.C. 2913.23.

       {¶15} “[2.] Trial court abused [its] discretion and violated due process when it

failed to enter a judgment entry in compliance with State v. Baker, 119 Ohio St.3d 197,

2008-Ohio-3330, 893 N.E.2d 163; and Crim.R. 32(C).

       {¶16} “[3.] Trial court was without subject [matter] jurisdiction over appellant

because the indictment and subsequent pleadings, including the sentencing entries

were not properly filed.”

       {¶17} In his first assignment of error, appellant argues that his conviction on

count four of the indictment was an “un-journalized, non-final judgment of conviction,”

and, therefore, the indictment did not contain a “disability” as an element of the offense.




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       {¶18} In his second assignment of error, appellant contends that the trial court

erred in failing to enter a compliant judgment entry because his acquittal on count three

was not listed and it did not contain a proper “time stamp” from the clerk’s office.

       {¶19} Because appellant’s first and second assignments of error are interrelated,

as they are both barred by the doctrine of res judicata, we will address them together.

       {¶20} “[P]rinciples of res judicata prevent relief on successive, similar motions

raising issues which were or could have been raised originally.” Brick Processors, Inc.

v. Culbertson, 2 Ohio App.3d 478, paragraph one of the syllabus (8th Dist.1981).

Stated differently, any issues that were raised or could have been raised by a defendant

at the trial court level or on direct appeal are res judicata and not subject to review in

subsequent proceedings. State v. Perry, 10 Ohio St.2d 175, paragraph nine of the

syllabus (1967); State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, ¶6.

       {¶21} With regard to appellant’s first and second assignments of error, the

doctrine of res judicata was properly applied by the court below in ruling on his pro se

“Motion to Vacate Void Judgment, Comply with Crim.R. 32(C), and Determine

Jurisdiction.” Appellant takes issue with the indictment and the manner in which it was

filed. However, alleged errors dealing with indictments and whether they were correctly

filed must be raised on direct appeal or the matter becomes res judicata in subsequent

proceedings. State v. Martin, 7th Dist. Mahoning No. 12 MA 167, 2013-Ohio-2881, ¶10,

citing Payne v. Jeffreys, 109 Ohio St.3d 239, 2006-Ohio-2288, ¶5. Since appellant had

the opportunity to raise any purported infirmities concerning the indictment in his direct

appeal, but failed to do so, the matter is res judicata.




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       {¶22} Appellant also takes issue with the sentencing entry, indicating that his

acquittal on count three was not listed and it did not contain a proper “time stamp.”

However, because appellant could have, but did not, raise these issues regarding the

sentencing entry in his direct appeal, they are now barred by res judicata. State v. Ott,

11th Dist. Portage No. 2012-P-0010, 2012-Ohio-4471, ¶17-18; State v. Richardson,

10th Dist. Franklin No. 12AP-640, 2013-Ohio-292, ¶10; State v. Brooks, 8th Dist.

Cuyahoga No. 98380, 2012-Ohio-5292, ¶8; see also State ex rel. Davis v. Cuyahoga

Cty. Court of Common Pleas, 127 Ohio St.3d 29, 2010-Ohio-4728, ¶2, quoting State ex

rel. Davis v. Cuyahoga Cty. Court of Common Pleas, 8th Dist. Cuyahoga No. 93814,

2010-Ohio-1066, ¶8 (indicating that the holding in State v. Baker, 119 Ohio St.3d 197,

2008-Ohio-3330, syllabus, “‘requires a full resolution of those counts for which there

were convictions.’” (Emphasis sic.) A sentencing entry “‘does not require a reiteration

of those counts and specifications for which there were no convictions, but were

resolved in other ways, such as dismissals, nolled counts, or not guilty findings’”); State

ex rel. Newell v. Gaul, 135 Ohio St.3d 187, 2013-Ohio-68, ¶2 (holding that an appellant

is barred from raising Crim.R. 32(C) issues under the doctrine of res judicata.)

       {¶23} Accordingly, appellant’s arguments contained in his first and second

assignments of error are barred by res judicata.

       {¶24} Appellant’s first and second assignments of error are without merit.

       {¶25} In his third assignment of error, appellant alleges that the trial court was

without subject matter jurisdiction over him because the indictment and subsequent

pleadings, including the sentencing entries, were not properly filed.




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       {¶26} In his pro se “Motion to Vacate Void Judgment, Comply with Crim.R.

32(C), and Determine Jurisdiction,” appellant argued, inter alia, that subject matter

jurisdiction was lacking because the clerk did not “indorse” various documents with the

requisite “time stamp.”       Unlike appellant’s claims under his first and second

assignments of error, appellant’s assertion under his third assignment, involving subject

matter jurisdiction, is not barred by the doctrine of res judicata, because “‘subject-matter

jurisdiction cannot be waived.’” State v. Perri, 11th Dist. Portage No. 2009-P-0014,

2009-Ohio-6153, ¶21, quoting State v. Lomax, 96 Ohio St.3d 318, 2002-Ohio-4453,

¶17.

       {¶27} The trial court should have considered appellant’s argument regarding

jurisdiction, since it was not barred by the doctrine of res judicata. See Perri, supra, at

¶24. However, for the following reasons, we conclude that the trial court’s failure to

consider this argument on its merits does not constitute error requiring reversal. Id.

       {¶28} Appellant specifically argues that the trial court had no jurisdiction to hear

his case because there was a failure to strictly comply with R.C. 2303.08, which

requires, inter alia, that the clerk “indorse” a document with “the time of filing.”

       {¶29} R.C. 2303.08 states in part:

       {¶30} “The clerk of the court of common pleas shall indorse on each pleading or

paper in a cause filed in the clerk’s office the time of filing, enter all orders, decrees,

judgments, and proceedings of the courts of which such individual is the clerk, make a

complete record when ordered on the journal to do so, and pay over to the proper

parties all moneys coming into the clerk’s hands as clerk.”




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       {¶31} We note that the Supreme Court of Ohio has rejected the same “time of

filing” argument advanced by appellant, and has held:

       {¶32} “We observe, however, that the filing of a document does not depend on

the performance of a clerk’s duties. A document is ‘filed’ when it is deposited properly

for filing with the clerk of courts. The clerk’s duty to certify the act of filing arises only

after a document has been filed. This is implicit in the statutes and rules regarding

filing. See R.C. 1901.31, 2303.08, 2303.10, and 2303.31, and Sup.R. 26.05 and 44.

For instance, Sup.R. 44(E) provides that ‘“(f)ile” means to deposit a document with a

clerk of court, upon the occurrence of which the clerk time or date stamps and dockets

the document.’ (Emphasis added.) Thus, a party ‘files’ by depositing a document with

the clerk of court, and then the clerk’s duty is to certify the act of filing. In short, the time

or date stamp does not cause the filing; the filing causes the certification.

       {¶33} “This court has long recognized the difference between filing and

certification of filing by the clerk. * * * Furthermore, when a document is filed, the clerk’s

failure to file-stamp it does not create a jurisdictional defect. State v. Otte (2002), 94

Ohio St.3d 167, 169 * * *, citing State ex rel. Larkins v. Baker (1995), 73 Ohio St.3d 658

* * *. That the clerk’s duties were not carried out properly in this case does not mean

that the complaint was not, in fact, filed.” Zanesville v. Rouse, 126 Ohio St.3d 1, 2010-

Ohio-2218, ¶7-8 (vacated in part on other grounds.) (Emphasis added.)

       {¶34} Thus, although appellant bases his argument that the failure to “time

stamp” various documents divests the trial court of jurisdiction to hear a criminal case,

the Supreme Court of Ohio has held the opposite. Appellant fails to cite to any authority




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in support of his specific allegation. We conclude that the record here does not reveal

any document irregularity or jurisdictional defect.

       {¶35} Appellant’s third assignment of error is without merit.

       {¶36} For the foregoing reasons, appellant’s assignments of error are not well-

taken. The judgment of the Trumbull County Court of Common Pleas is affirmed. The

court finds there were reasonable grounds for this appeal.


TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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