[Cite as State v. Leavell, 2018-Ohio-775.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                     Court of Appeals Nos. E-17-015

        Appellee                                  Trial Court Nos. 2013-CR-0344

v.

Douglas Leavell                                   DECISION AND JUDGMENT

        Appellant                                 Decided: March 2, 2018



                                             *****

        James Joel Sitterly, Special Prosecuting Attorney, for appellee.

        Douglas Leavell, pro se.

                                             *****


        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Douglas Leavell, has commenced this pro se appeal

challenging the March 2, 2017 judgment of the Erie County Court of Common Pleas
which denied appellant’s motions to vacate and dismiss his various convictions.

Because we find that appellant waived any issues regarding the institution and manner of

prosecution, we affirm.

       {¶ 2} On October 9, 2013, appellant was indicted in this case on possession of

cocaine, assault, and criminal damaging. The indictment was signed by a special

prosecutor. Appellant entered a no contest plea and was sentenced on this case and a

related case, case No. 2014-CR-389, in which he was convicted of several drug offenses,

including trafficking in heroin and possession. His conviction was affirmed by this court

in State v. Leavell, 6th Dist. Erie Nos. E-15-030, E-15-031, 2016-Ohio-5275.

       {¶ 3} On October 3, 2016, appellant filed a motion to “set aside convictions”

pursuant to R.C. 305.14(A).1 Appellant argued that the record did not contain any record

of the special prosecutor being appointed by the court. On November 16, 2016, appellant

filed an additional motion to vacate his convictions arguing that because the special

prosecutor was not appointed in accordance with the law, the court lacked subject matter

jurisdiction and his subsequent convictions were void.

       {¶ 4} The state filed its response on February 10, 2017. The state first argued that

the claims were for postconviction relief and were time-barred under R.C. 2953.23(A)(2).

The state further claimed that the arguments were barred by the doctrine of res judicata as




1
  Appellant’s reliance on this section dealing with the appointment of counsel to represent
a board of county commissioners’ board member or officer was misplaced.
2.
they should have been raised either in the trial court or on direct appeal. Finally, the state

argued that appellant failed to claim any constitutional error; i.e., that the error affected

the outcome of the case.

       {¶ 5} On March 2, 2017, the trial court agreed with the state that the

postconviction relief motions were untimely and that they were barred by res judicata.

This appeal followed with appellant raising two assignments of error for our review:

              Assignment of Error No. I. The trial court errored [sic] in allowing

       the Erie County Prosecutor to go outside his authority and jurisdiction to

       appoint his colleague special prosecutor on several occasions.

              Assignment of Error No. II. The trial court errored [sic] by making

       the ruling of res judicata and construing this matter as a petition for post-

       conviction relief.

       {¶ 6} In appellant’s first assignment of error he argues that the trial court erred by

allowing the Erie County Prosecutor’s office to appoint a special prosecutor without

petitioning the court as required under R.C. 2941.63. This, appellant argues, divested the

trial court from jurisdiction over the case and his conviction is void. The state does not

dispute that proper procedures may not have been followed; rather, the state makes three

arguments: that the postconviction relief motion was time-barred under R.C. 2953.21,

that it was barred by res judicata, and that because the errors claimed in the motions were

not raised on direct appeal they were waived.




3.
       {¶ 7} “[S]ubject-matter jurisdiction involves a court’s power to hear a case, the

issue can never be waived of forfeited and may be raised at any time.” State v. Mbodji,

129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 10. A common pleas court

has original jurisdiction in felony cases, and its jurisdiction is invoked by the return of an

indictment. State v. Richardson, 2d Dist. Montgomery No. 20537, 2005-Ohio-2865, ¶ 3,

citing Click v. Eckle, 174 Ohio St. 88, 89, 186 N.E.2d 731 (1962); R.C. 2931.03.

       {¶ 8} Where an “unauthorized person” conducted grand jury proceedings and an

indictment was returned, the Fourth Appellate District, relying on Crim.R. 12(C) (2),

concluded that although the failure to properly appoint the individual was error, the

defendant’s failure to timely object waived all but plain error. State v. Owens, 4th Dist.

Gallia No. 14CA9, 2016-Ohio-176, ¶ 31. The court rejected the appellant’s claim that the

error was “structural” and required an automatic reversal. Id. at ¶ 34. Instead, the court

noted that the manner in which a defendant is charged is statutory and procedural. Id.

       {¶ 9} The Owens court next examined the appellant’s argument regarding the fact

that several assistant attorneys general appeared as prosecutors in a criminal prosecution

without being appointed as “special prosecutors.” The court concluded that the

appellant’s failure to object to the appearance of the assistant attorneys during the trial

court proceedings waived all but plain error. Id. at ¶ 50. The court then found no plain

error where there was no evidence that the error affected his substantial rights. Id. at ¶

51.




4.
       {¶ 10} The record reflects that in this case, appellant was prosecuted by an

indictment filed in Erie County Common Pleas Court. Thus, we conclude that the court

had subject matter jurisdiction over the matter. Further, as stated above, the special

prosecutor in this action signed the indictment. Whether he was properly appointed or

not, however, did not affect the validity of the grand jury proceedings. Owens, supra.

       {¶ 11} Over several years, appellant was prosecuted by a special prosecutor in this

and additional criminal actions. Appellant commenced appeals and failed to raise the

issue either in the trial court or on direct appeal. Moreover, appellant fails to demonstrate

or even allege that he was prejudiced by the appearance of the special prosecutor.

Accordingly, appellant waived his claimed error. Appellant’s first assignment of error is

not well-taken.

       {¶ 12} Appellant’s second assignment of error challenges the trial court’s

classification of appellant’s motions as petitions for postconviction relief. What the

motions were classified as is immaterial to our determination on appeal. Appellant failed

to raise the issue in the trial court or before this court during the course of multiple

proceedings; thus, the issue was waived. Appellant’s second assignment of error is not

well-taken.

       {¶ 13} On consideration whereof, we find that substantial justice was done the

party complaining and the judgment of the Erie County Court of Common Pleas is

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.

                                                                         Judgment affirmed.



5.
                                                                             E-17-015
                                                                             State v. Leavell




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




6.
