[Cite as State v. Ahmad, 2018-Ohio-3556.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 18-CA-38
MALIK AHMAD

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Licking County Court of
                                              Common Pleas, Case No. 16CR437


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        September 5, 2018


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


WILLIAM C. HAYES                              MALIK AHMAD, PRO SE
Licking County Prosecutor                     Inmate #A729903
                                              Pickaway Correctional Institute
By: PAULA M. SAWYERS                          PO Box 209
Assistant Prosecuting Attorney                Orient, OH 43146
20 S. Second Street, Fourth Floor
Newark, OH 43055
Licking County, Case No. 18-CA-38                                                      2

Hoffman, P.J.




       {¶1}   Appellant Malik Ahmad appeals the judgment entered by the Licking County

Common Pleas Court overruling his “motion to vacate void/illegal conviction and sentence

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

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On July 22, 2016, Appellant attended an Insane Clown Posse concert at the

Legend Valley Music Center in Thornville, Licking County, Ohio. Appellant announced on

a bull horn he had cocaine for sale, which he described as the “best coke around.” Police

officers observed two individuals approach Appellant on separate occasions. On each

occasion, the officers saw Appellant reach into a Gucci canvas bag, pull out a baggy

containing white powder, measure an amount of the white powder onto a digital scale,

and place the powder on the scale into a small bag. The officers then observed Appellant

take cash from the individuals and hand them the small bag of powder. Police officers

told Appellant he was under arrest and attempted to place handcuffs on him, but he

refused to comply. Eventually, officers used a Taser to restrain and handcuff Appellant.

       {¶3}   Law enforcement recovered the Gucci bag from Appellant’s co-defendant.

A search of the bag revealed $2,229.00 in U.S. currency, small empty plastic bags, a

large bag of what appeared to be cocaine, a bag of what appeared to be heroin, and a

bag of what appeared to be marijuana. The contents of the bags were tested by BCI and

found to be 86.33 grams of cocaine, a Schedule II controlled substance; 4.80 grams of

heroin, a Schedule I controlled substance; and 4.373 grams of marijuana, a Schedule I

controlled substance. Appellant admitted to police he had sold cocaine.
Licking County, Case No. 18-CA-38                                                          3


      {¶4}    On August 4, 2016, the Licking County Grand Jury issued an eight-count

indictment:

      {¶5}    Count One: Trafficking in Cocaine, a first-degree felony in violation of R.C.

2925.03(A)(1)(2)(C)(4)(f);

      {¶6}    Count Two: Trafficking in Cocaine, a fifth-degree felony in violation of R.C.

2925.03(A)(1)(C)(4)(a);

      {¶7}    Count Three: Trafficking in Cocaine, a fifth-degree felony in violation of R.C.

2925.03(A)(1)(C)(4)(a);

      {¶8}    Count Four: Possession of Heroin, a fourth-degree felony in violation of R.C.

2925.11(A)(C)(6)(b);

      {¶9}    Count Five: Tampering with Evidence, a third-degree felony in violation of

R.C. 2921.12(A)(1)(B);

      {¶10} Count Six: Resisting Arrest; a second-degree misdemeanor in violation of

R.C. 2921.33(A)(D);

      {¶11} Count Seven: Possession of Marijuana, a minor misdemeanor in violation

of R.C. 2925.11(A)(C)(3)(a); and

      {¶12} Count Eight: Possession of Drug Paraphernalia, a fourth-degree

misdemeanor in violation of R.C. 2925.14(C)(1)(F)(1).

      {¶13} Counts One, Two, Four, and Seven carried a forfeiture specification of the

U.S. currency in the amount of $2,229.00.

      {¶14} Appellant entered a plea of guilty to Count One—Possession of Cocaine,

Count Four—Possession of Heroin, and Count Six—Resisting Arrest. The State

dismissed the remaining charges. The trial court sentenced Appellant to eight years in
Licking County, Case No. 18-CA-38                                                           4


prison on Count One, one year in prison on Count Four, and thirty days in jail on Count

Six. Counts One and Four were to be served consecutively and Count Six was to be

served concurrently, for a total prison term of nine years. The judgment of conviction and

sentence was affirmed on appeal to this Court. State v. Ahmad, 5th Dist. Licking No. 16-

CA-92, 2017-Ohio-6991. Appellant filed a motion to withdraw his guilty plea, which was

overruled by the trial court and affirmed by this Court. State v. Ahmad, 5th Dist. Licking

No. 17-CA-71, 2018-Ohio-181.

       {¶15} On March 2, 2018, Appellant filed a “motion to vacate void/illegal conviction

and sentence for lack of jurisdiction,” arguing the case against him was not properly

instituted because no affidavit was filed prior to the filing of the arrest warrant on the

criminal complaint, and as a result the court did not obtain subject matter jurisdiction. The

trial court overruled the motion, finding a statement of facts was provided with the sworn

criminal complaint by the arresting officer, and Appellant was subsequently indicted by

the grand jury. It is from the April 18, 2018 judgment of the trial court Appellant prosecutes

his appeal, assigning as error:



              I. IT IS A JURISDICTIONAL DEFECT TO FAIL TO FILE A

       TRANSCRIPT OF THE CRIMINAL DOCKET ON A DEFENDANT THAT IS

       COMMITTED TO JAIL TO ANSWER CRIMINAL CHARGES.

              II.   THE   COMMON        PLEAS     COURT      HAS     LEFT    ISSUES

       UNRESOLVED.
Licking County, Case No. 18-CA-38                                                           5


               III. THE FAILURE TO PRESENT A PROPERLY SWORN

       AFFIDAVIT TO THE MAGISTRATE IS A DEFECT THAT DEPRIVES A

       COURT OF SUBJECT MATTER JURISDICTION.




                                              I., II., III.

       {¶16} We address all three of Appellant’s assignments of error together, as they

all argue the trial court lacked subject matter jurisdiction over the criminal complaint filed

against him because a complaint with a statement of facts was not filed in his case, and

even if there was a statement of facts, there was not a sworn affidavit and transcript of

the facts presented to a magistrate which is required for the court to obtain jurisdiction

over the complaint.

       {¶17} Crim. R. 12(C) states any objection based on defects in the institution of the

prosecution must be raised by pretrial motion. Such motion must be made within 35 days

after arraignment or seven days before trial, whatever is earlier. Crim. R. 12(D). Failure

to timely raise an objection in accordance with the rule constitutes waiver. Crim. R. 12(H).

Appellant failed to timely raise his claim of defect in the institution of prosecution in the

trial court in accordance with Crim. R. 12, and as such, has waived any error.

       {¶18} Further, Crim. R. 7 allows the jurisdiction of the court in a criminal case to

be invoked by indictment. Appellant was indicted by the Licking County Grand Jury on

August 4, 2016, properly instituting the criminal action in the trial court and invoking the

jurisdiction of the court.

       {¶19} The assignments of error are overruled.
Licking County, Case No. 18-CA-38                                                6


      {¶20} The judgment of the Licking County Common Pleas Court is affirmed.




By: Hoffman, P.J.

Wise, John, J. and

Baldwin, J. concur
