[Cite as State v. Martin, 2013-Ohio-2881.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 12 MA 167
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
DRUCE E. MARTIN                               )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 94 CR 749

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Druce E. Martin, Pro se
                                                   #320-205
                                                   Marion Correctional Institution
                                                   P. O. Box 57
                                                   Marion, Ohio 43302

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                                   Dated: June 20, 2013
[Cite as State v. Martin, 2013-Ohio-2881.]
WAITE, J.


        {¶1}     Pro se Appellant Druce E. Martin appeals the judgment of the

Mahoning County Court of Common Pleas overruling an “Urgent Motion for

Declariter.” The motion challenged the constitutionality of the second superseding

indictment which charged Appellant with aggravated murder and aggravated robbery.

Based on the superseding indictment, the case went to jury trial. Appellant was

subsequently convicted for the murders of Toby Flack and Stacy Marie Kroner. He

was also convicted of one count of aggravated robbery. He was sentenced to fifteen

years to life in prison on each of the murder charges, and ten to twenty-five years in

prison for aggravated robbery, all to be served consecutively. The convictions and

sentences were upheld on appeal. State v. Martin, 7th Dist. No. 96 C.A. 21, 1997

WL 816524 (Dec. 29, 1997).

        {¶2}     On July 2, 2012, he filed the motion for declariter at issue in this appeal.

In the motion he argued that the original indictment did not have a time-stamp and

was void, and that the superseding indictment was void on constitutional grounds.

He also complained that he was never officially indicted because he did not get a

copy of his indictment in a public records request.              The trial court overruled the

motion without comment on August 15, 2012.

        {¶3}     In rebuttal, Appellee argues that the July, 2012 motion can only be

construed as a petition for postconviction relief. As such, it was properly denied by

the trial court. Appellee also argues that the matters raised by Appellant are res

judicata.    Appellee is correct.            There is no such thing as an “urgent motion for

declariter” in Ohio. It is possible to attack a superseding indictment on constitutional
                                                                                        -2-

grounds in a filing for postconviction relief, but the petition for postconviction relief

must be timely filed and cannot raise issues that are res judicata. Appellant's motion

was filed 15 years past the deadline for filing a petition for postconviction relief and is

untimely.     He also raised the matter of the constitutionality of the superseding

indictment in his direct appeal and the issue is now res judicata.             He further

challenges whether the original indictment was time-stamped. This is an attack on

the sufficiency of the indictment and must be raised prior to trial or else it is waived.

Crim.R. 12(C)(1). Appellant did not raise this matter prior to trial or on direct appeal,

and he cannot raise it in a postsentencing motion or in a petition for postconviction

relief. The judgment of the trial court is affirmed.

                                   History of the Case

       {¶4}    On August 13, 1994, Appellant and two accomplices robbed and shot

Toby Flack and Stacey Kroner. On September 30, 1994, Appellant was indicted on

two counts of aggravated murder with death specifications, and one count of

aggravated robbery. On November 1, 1995, Appellant filed a motion to quash the

jury venire on the grounds that jurors were being excluded from service based on

their race. The motion was sustained and the matter was reset for trial to December

4, 1995.      On November 8, 1995, the state sought and received a superseding

indictment.     On November 20, 1995, Appellant filed a motion to dismiss the

indictment, and the motion was sustained.          On November 22, 1995, the state

procured a third indictment, which mirrored the previous indictment.             Jury trial

commenced on January 4, 1996. On January 18, 1996, the jury found Appellant not

guilty of aggravated murder, but guilty of the murders of Toby Flack and Stacey
                                                                                      -3-

Kroner, and guilty of the aggravated robbery of Toby Flack. On January 22, 1996,

the court sentenced Appellant to fifteen years to life in prison for each of the murders,

and ten to twenty-five years in prison for aggravated robbery, all to be served

consecutively.

       {¶5}   Appellant filed a direct appeal to this Court. He raised five assignments

of error, one of which was a constitutional challenge to the November 22, 1995,

superseding indictment. Appellant argued that there was racial bias in the grand jury

selection process and that this bias invalidated the indictment. We held that the

grand jury panel was properly selected and the assignment of error was overruled.

State v. Martin, 7th Dist. No. 96 C.A. 21, 1997 WL 816524, *12 (Dec. 29, 1997). The

conviction and sentence were affirmed. The Ohio Supreme Court declined to hear a

further appeal. State v. Martin, 81 Ohio St.3d 1512, 692 N.E.2d 618 (1998). The

United States Supreme Court denied certiorari as well. Martin v. Ohio, 525 U.S. 902,

119 S.Ct. 233, 142 L.Ed.2d 192 (1998).

       {¶6}   On November 4, 2008, Appellant filed a motion to vacate a void

judgment. The court denied the motion on December 10, 2008, and no direct appeal

was taken.

       {¶7}   On July 2, 2012, Appellant filed a motion with the trial court captioned

“Urgent Motion for Declariter.” On August 15, 2012, the trial court overruled the

motion. This appeal followed. Both of the assignments of error are related and will

be dealt with together.
                                                                                     -4-

                             ASSIGNMENTS OF ERROR

      Whether the failure to properly file an indictment pursuant to the

      mandatory provisions of: Crim. R. 55; and, Crim. R. 32(C), divest a trial

      court of jurisdiction to entertain any proceedings, and results in a patent

      lack of a final appealable order.     see: Sup. R. 7(A); and, U.S.C.A.

      Const. Amend. 14


      Whether the trial court abused its discretion by failing to accord

      appellant a hearing on his properly pled and substantive supported

      jurisdictional challenge. see: U.S.C.A. Const. Amend. 14; and, State v.

      Lowe (1994), 69 Ohio St. 3d 527, 532, 634 N.E. 2d 616, 620, quoting:

      State v. Adams (1980), 62 Ohio St. 2d 151, 157, 404 N.E. 2d 144, 148-

      149

      {¶8}   Appellant claims that he did not file a motion for postconviction relief

and that his “urgent motion for declariter” was not treated as such by the trial court.

He states that he is attacking the jurisdiction of the trial court to convict him on the

grounds that there was never a valid indictment charging him with any crime. He

argues that his conviction is void because the indictment is void, and he believes he

should at least have had a hearing on his motion. As a preliminary matter, a filing

denoted as an urgent motion for declariter is nonexistent in Ohio, or any other

jurisdiction as far as we know.      Further, whether or not the trial court treated

Appellant's motion as a petition for postconviction relief is irrelevant, because we may

affirm the trial court’s judgment for reasons that differ from those used by the trial
                                                                                         -5-

court. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶18. A

reviewing court presumes that the trial court acted correctly and applied the correct

law unless the record affirmatively demonstrates otherwise. State v. Downie, 183

Ohio App.3d 665, 2009-Ohio-4643, 918 N.E.2d 218, ¶44 (7th Dist.); Horton v.

Dayton, 53 Ohio App.3d 68, 70, 558 N.E.2d 79 (2d Dist.1988). “Since all reasonable

presumptions consistent with the record will be indulged in favor of validity of the

judgment under review and of regularity and legality of proceedings below, we

presume that the trial court utilized the correct standard.” State v. Leonard, 2d Dist.

No. 18422, 2001 WL 395348, *2.

       {¶9}   Appellant first contends that his conviction is void on the grounds that

his criminal case was not properly initiated due to the lack of a time-stamp on his first

indictment. In attacking the technical aspects of the first indictment, he is challenging

the initiation of the criminal proceedings. A defendant must raise challenges to the

initial institution of the criminal prosecution prior to trial. Crim.R. 12(C)(1). Failure to

raise this issue prior to trial constitutes a waiver of the issue on appeal. State v.

Barton, 80 Ohio St.3d 402, 2006-Ohio-1324, 844 N.E.2d 307, ¶73; State v. Mills, 62

Ohio St.3d 357, 363, 582 N.E.2d 972 (1992).

       {¶10} Not only did Appellant fail to challenge the time-stamp on the indictment

prior to trial, he also failed to raise the issue on direct appeal. Alleged errors dealing

with whether an indictment was correctly filed must be raised on direct appeal or the

matter becomes res judicata in subsequent proceedings. Payne v. Jeffreys, 109

Ohio St.3d 239, 2006-Ohio-2288, ¶5. The doctrine of res judicata establishes that “a

final judgment of conviction bars a convicted defendant who was represented by
                                                                                       -6-

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 the trial, which resulted in that judgment of

conviction, or on an appeal from that judgment.” (Emphasis deleted.) State v. Perry,

10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104 (1967), paragraph nine of the

syllabus. Since Appellant filed a direct appeal, he could have raised this question as

an assignment of error.      Because he did not, the matter is now res judicata

regardless of how we might characterize Appellant's “urgent motion for declariter.”

       {¶11} Appellant's argument that the superseding indictment was never filed is

also res judicata.   We specifically noted in Appellant's direct appeal that a third

indictment was filed on November 22, 1995, and thus, the factual question of whether

there was a third indictment filed has been adjudicated and is part of the record in the

case. State v. Martin, 7th Dist. No. 96 C.A. 21, 1997 WL 816534 (Dec. 29, 1997), *1.

       {¶12} In Appellant's motion he also seeks relief from his conviction on

constitutional grounds. He claims that there was some type of constitutional error in

the composition of the indicting grand jury.       He believes he can challenge the

fundamental jurisdiction of the trial court based on the alleged constitutional violation.

This is the type of argument raised in a petition for postconviction relief pursuant to

R.C. 2953.21, regardless of the manner in which the defendant actually presents the

motion to the court. See, e.g., State v. Palmer, 7th Dist. No. 11 JE 7, 2012-Ohio-

5255 (postconviction motion to dismiss on speedy trial grounds could only be

construed as motion for postconviction relief); State v. Butler, 7th Dist. No. 06 JE 37,

2007-Ohio-2193 (motion to resentence must be deemed as motion for postconviction
                                                                                      -7-

relief); State v. Davis, 7th Dist. No. 08 MA 174, 2009-Ohio-4634 (motion to vacate

judgment could only be interpreted as a motion for postconviction relief); see also,

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

       {¶13} Petitions for postconviction relief are governed by R.C. 2953.21 through

R.C. 2953.23. Pursuant to these statutes, any defendant who has been convicted of

a criminal offense and who claims to have experienced a denial or infringement of his

or her constitutional rights may petition the trial court to vacate or set aside the

judgment and sentence. R.C. 2953.21(A).

       {¶14} R.C. 2953.21(A)(2) requires that a petition for postconviction relief be

filed no later than 180 days after the date on which the trial transcript is filed in the

court of appeals in the direct appeal, or 180 days after the expiration of the time for

filing a direct appeal. The 180-day time period defined in R.C. 2953.21(A)(2) is

jurisdictional:     “Unless the defendant makes the showings required by R.C.

2953.23(A), the trial court lacks jurisdiction to consider either an untimely or a

successive petition for postconviction relief. State v. Haschenburger, 7th Dist. No.

08-MA-223, 2009-Ohio-6527, ¶12; State v. Palmer, 7th Dist. No. 08 JE 18, 2009-

Ohio-1018, ¶1; State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d 962 (1st

Dist.1998).”      State v. Butler, 7th Dist. No. 09 JE 1, 2010-Ohio-2537, ¶15.       We

released our Opinion in Appellant's direct appeal on December 29, 1997. State v.

Martin, 7th Dist. No. 96 C.A. 21, 1997 WL 816524 (Dec. 29, 1997). Thus, the time for

filing a timely petition for postconviction relief expired over 15 years ago.

       {¶15} A late petition for postconviction relief may only be entertained by the

trial court if the defendant establishes that, but for the constitutional error, he would
                                                                                     -8-

not have been convicted, and if he shows either that he was unavoidably prevented

from discovery of the facts supporting postconviction relief, or that he should be given

relief due to a new and retroactive federal right issued by the United States Supreme

Court. R.C. 2953.21(A)(1). Appellant has not alleged that he would not have been

convicted absent the alleged error, or that he was unavoidably prevented from

discovery of any facts, or that he has discovered a new retroactive federal right as

the basis of relief. Therefore, the motion filed by Appellant was untimely and the trial

court was correct in dismissing it without a hearing. R.C. 2953.21(C).

       {¶16} Finally, even assuming that Appellant's motion was a timely-filed

petition for postconviction relief, it was properly dismissed. We have held that “[a]

postconviction petition may also be dismissed without a hearing where the claims are

barred by res judicata.” State v. West, 7th Dist. No. 07 JE 26, 2009-Ohio-3347, ¶24.

As already stated, the issues raised in this appeal were either raised in the direct

appeal in 1997, or could have been raised and were not. Either way, the issues are

now res judicata in postconviction relief proceedings. The issue regarding the time-

stamp was required to be raised prior to trial and was not, and was not raised in the

direct appeal either.   The matter is deemed waived and is res judicata.           The

constitutional challenge to the grand jury panel was actually litigated in the direct

appeal. Appellant now wishes to litigate a second challenge to the grand jury panel

that issued the superseding indictment, but the time for such a challenge has long

passed and the matter is res judicata. For all of these reasons, we overrule both

assignments of error and affirm the judgment of the trial court.
                                                                                       -9-

                                       Conclusion

       {¶17} Appellant's postsentencing motion asserted arguments that are now res

judicata. Appellant could and should have raised the question concerning the time-

stamp on the original indictment prior to trial, and he cannot challenge the initiation of

the prosecution in a postsentencing motion or in postconviction relief. Appellant's

motion also raised a constitutional argument that is appropriate for a petition for

postconviction relief, and for that reason, the motion must be reviewed under the law

governing postconviction relief. When Appellant's motion for declariter is construed

as a petition for postconviction relief, it is apparent that it should have been dismissed

without a hearing because it was filed well beyond the time limits set by R.C.

2953.21(A)(2). It should also have been dismissed because the issues raised were

res judicata. The trial court did dismiss the motion without a hearing, and therefore,

the trial court's judgment is correct and is affirmed.


Donofrio, J., concurs.

Vukovich, J., concurs.
