[Cite as State v. Williams, 2014-Ohio-5428.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 101026



                                               STATE OF OHIO

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                               JOHN WILLIAMS

                                                          DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-05-463504-B

        BEFORE: Rocco, J., Jones, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: December 11, 2014
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
Mancino Mancino & Mancino
75 Public Square, Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Amy E. Venesile
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant John Williams appeals the trial court’s denial of his motion to

vacate his convictions and sentence arising out of a December 13, 2004 robbery of a Cleveland

delicatessen and the fatal shootings of a store clerk and a customer. Williams claims that due to

certain alleged deficiencies in the form of the indictment used to charge him, the indictment was

void, and that the trial court, therefore, lacked subject matter jurisdiction to hear the case against

him. Williams also claims that he was denied due process when he was tried and convicted of

aggravated murder by a single judge, rather than a three-judge panel.          We find no merit to

Williams’s appeal and affirm the trial court’s judgment.

       {¶2} On March 17, 2005, the Cuyahoga County Grand Jury indicted Williams on 13

counts — four counts of aggravated murder, one count of attempted murder, three counts of

aggravated robbery, three counts of kidnapping, one count of aggravated burglary, and one count

of having a weapon while under a disability. The aggravated murder charges were each indicted

with a felony murder specification, a mass murder specification, a murder to escape accounting

for another crime specification, and one- and three-year firearm specifications.           The other

counts (with the exception of the charge for having a weapon while under disability) also

included one- and three-year firearm specifications. At his arraignment on March 22, 2005,

Williams waived the reading of the indictment. He pled not guilty to the charges against him.

       {¶3} Prior to trial, the indictment was amended to remove the capital specifications,

making the case a noncapital case. Williams signed a written waiver of his right to a jury trial,

and a trial before a single judge commenced on January 30, 2007.

       {¶4} Following the trial, the trial court found Williams guilty on all counts of the

indictment, including the one- and three-year firearm specifications. In February 2007, the trial
court sentenced Williams to life with parole eligibility after 43 years and five years of postrelease

control. Williams filed a direct appeal of his convictions and sentence, claiming that there was

insufficient evidence to support his convictions, that his convictions were against the manifest

weight of the evidence, and that he was improperly sentenced on allied offenses. In March

2008, this court affirmed Williams’s convictions and sentence. State v. Williams, 8th Dist.

Cuyahoga No. 89566, 2008-Ohio-1095.

       {¶5} On August 26, 2013, Williams filed a motion to vacate his sentence and judgment

due to a lack of subject matter jurisdiction and lack of a charging instrument. The trial court

denied the motion, and this appeal followed.

       {¶6} In his initial appellate brief, filed pro se, Williams presents three assignments of

error for review:

               Assignment of Error No. 1: The trial court abused its discretion when it
       denied appellant’s motion to vacate sentence and judgment due to lack of subject
       matter jurisdiction and lack of a charging instrument.

              Assignment of Error No. 2: The trial court had subject matter jurisdiction
       over the appellant when what purports to be an indictment in fact is not an
       indictment.

              Assignment of Error No. 3: The trial court violated the appellant’s due
       process right to the Fifth and Fourteenth Amendment to the United States
       Constitution and Article One [Section] 10 of the Ohio Constitution when it
       convicted and sentenced the appellant without subject matter jurisdiction.

       {¶7} On July 31, 2014, this court granted Williams’s motion for appointment of counsel.

Williams’s counsel thereafter filed a supplemental brief, raising the following supplemental

assignment of error:
               Supplemental Assignment of Error:            Defendant was denied due

       process of law when he [was] tried and convicted on an aggravated murder

       indictment before a single judge rather than a three-judge panel.

Form of the Indictment

       {¶8}   Williams’s first three assignments of error are related and will be addressed

together. Williams argues that the trial court erred when it denied his motion to vacate sentence

and judgment. He asserts that his convictions and sentence are void because the indictment used

to charge him was not a “valid charging instrument.” As such, Williams argues, the trial court

did not have subject matter jurisdiction to hear his case. He further contends that such a

challenge can be raised at any time.

       {¶9}    Williams claims that the indictment was invalid because it contained a

“lithographic” or preprinted signature of the prosecuting attorney, rather than an original

signature, and the “purported signature of a grand jury foreman.” He also complains that the

indictment was not “one cohesive multiple page document” but was instead “simply a group of

papers” that could have been created — or forged — by anyone “wishing to pass it off as a

charging instrument.”    Williams contends that because the state “cannot prove that these

signatures belong to [these] individuals” or that “the document purporting to be a charging

instrument originated in their office or under authority of their office,” the trial court was

divested of subject matter jurisdiction. Williams’s arguments lack merit.

       {¶10} Article I, Section 10 of the Ohio Constitution states that “no person shall be held

to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a

grand jury.” The purpose of a grand jury indictment is to give notice to the accused so that he or

she can know what he or she has been charged with and can prepare to defend those charges in
criminal proceedings. State v. Hills, 8th Dist. Cuyahoga No. 98848, 2013-Ohio-2902, ¶ 6,

citing State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 10. There is no

requirement in Article I, Section 10 of the Ohio Constitution “as to the manner in which, or by

whom, an indictment will be signed.” State v. Bunyan, 51 Ohio App.3d 190, 192, 555 N.E.2d

980 (3d Dist.1988); see also Meeker v. State, 4th Dist. Ross No. 1440, 1988 Ohio App. LEXIS

2553, *6 (June 28, 1988) (“There is no constitutional requirement as to the manner in which an

indictment is to be authenticated or by whom.”), citing State v. Sabbah, 13 Ohio App.3d 124,

137, 468 N.E.2d 718 (6th Dist.1982).

       {¶11} Crim.R. 6(C) and (F) require that the grand jury foreman sign the indictment and

that the clerk endorse the filing date upon it. Crim.R. 6(F) states, in relevant part:

       An indictment may be found only upon the concurrence of seven or more jurors.
       When so found the foreman or deputy foreman shall sign the indictment as
       foreman or deputy foreman. The indictment shall be returned by the foreman or
       deputy foreman to a judge of the court of common pleas and filed with the clerk
       who shall endorse thereon the date of filing and enter each case upon the
       appearance and trial dockets. * * *

See also R.C. 2939.20 (requiring that foreman of the grand jury “endorse on [the] indictment the

words ‘[a] true bill’ and subscribe his name as foreman”).

       {¶12} Crim.R. 7(B), which addresses the nature and contents of an indictment, further

provides, in relevant part:

       The indictment shall be signed, in accordance with Crim.R. 6 (C) and (F) and
       contain a statement that the defendant has committed a public offense specified in
       the indictment. The information shall be signed by the prosecuting attorney or in
       the name of the prosecuting attorney by an assistant prosecuting attorney and shall
       contain a statement that the defendant has committed a public offense specified in
       the information. The statement may be made in ordinary and concise language
       without technical averments or allegations not essential to be proved. The
       statement may be in the words of the applicable section of the statute, provided
       the words of that statute charge an offense, or in words sufficient to give the
       defendant notice of all the elements of the offense with which the defendant is
       charged. * * *
       {¶13} There is no requirement under Crim.R. 7(B) that an indictment be signed by the

prosecuting attorney. As explained in the Staff Notes to Crim.R. 7, although at one time

Crim.R. 7(B) required the signature of the prosecuting attorney or an assistant prosecuting

attorney on an indictment, that was changed in the July 1, 1993 amendments to Crim.R. 7(B) in

order “to relieve the prosecutor or an assistant in large counties from signing thousands of

indictments with several times that number of counts each year.” As such, “[t]he indictment *

* * no longer requires the signature of the prosecuting attorney or an assistant prosecuting

attorney.” Id.; see also State v. Johnson, 101 Ohio App.3d 129, 132-133, 655 N.E.2d 208 (11th

Dist.1995). Although R.C. 2941.06, which suggests the form of an indictment, provides a space

for the signature of the prosecuting attorney, it states only that the suggested form of indictment

“may” be used; it does not require that an indictment include the original signature of the

prosecuting attorney.

       {¶14} Even assuming that use of a preprinted signature on the indictment constituted a

defect in the form of the indictment, it would not invalidate the indictment or deprive the trial

court of subject matter jurisdiction. As the Ohio Supreme Court has held, “[t]he question of the

sufficiency of the indictment does not relate to the jurisdiction of the court to try [a defendant]

for the crime for which he was convicted.” Chapman v. Jago, 48 Ohio St.2d 51, 51, 356 N.E.2d

721 (1976), citing Mills v. Maxwell, 174 Ohio St. 523, 190 N.E.2d 264 (1963). “The manner by

which an accused is charged with a crime is procedural rather than jurisdictional, and after a

conviction for crimes charged in an indictment, the judgment binds the defendant for the crime

for which he was convicted.” Orr v. Mack, 83 Ohio St.3d 429, 430, 700 N.E.2d 590 (1998). In

challenging the sufficiency of an indictment, “[the defendant’s] remedy, if any, is by way of

appeal from the judgment of conviction.” Chapman at 51.            Furthermore, R.C. 2941.08(K)
provides that “[a]n indictment * * * is not made invalid, and the trial, judgment, or other

proceedings stayed, arrested, or affected * * * [f]or * * * defects or imperfections which do not

tend to prejudice the substantial rights of the defendant upon the merits.” Williams has not

argued that he was in any way prejudiced “upon the merits” of the charges against him as a result

of the alleged deficiencies in the indictment.

       {¶15} The Ohio Supreme Court has held that the failure of grand jury foreperson to sign

an indictment, as required under Crim.R. 6(C) and (F), relates to the sufficiency of the indictment

and is not a jurisdictional error. See VanBuskirk v. Wingard, 80 Ohio St.3d 659, 660, 687

N.E.2d 776 (1998); State ex rel. Justice v. McMackin, 53 Ohio St.3d 72, 73, 558 N.E.2d 1183

(1990) (“A grand jury foreman’s failure to sign the indictment does not deprive the trial court of

jurisdiction.”); Kroger v. Engle, 53 Ohio St.2d 165, 165, 373 N.E.2d 383 (1978) (requirement

that the grand jury foreman sign the indictment relates to the sufficiency of the indictment, which

should be raised in a direct appeal from the conviction); see also State v. Caldwell, 9th Dist.

Summit No. 27003, 2014-Ohio-1032, ¶ 7-9 (rejecting defendant’s claim that the absence of grand

jury foreperson’s signature on his indictment rendered his convictions void and holding that trial

court did not lack subject matter jurisdiction where indictment was not signed by the grand jury

foreperson), citing State v. Young, 9th Dist. Summit No. 18354, 1997 Ohio App. LEXIS 4253,

*1 (Sept. 17, 1997).

       {¶16} Other courts have reached similar conclusions with respect to a defendant’s claim

that an indictment was void due to the alleged omission of, or deficiency in, the prosecuting

attorney’s signature.1 For example, in State v. Murray, 1st Dist. Clermont No. 790, 1979 Ohio



       1
         These cases were decided under the prior version of Crim.R. 7(B) which provided, in
relevant part, that “[t]he indictment or the information shall be signed by the prosecuting attorney or
App. LEXIS 9925 (Mar. 21, 1979), the First District considered a defendant’s claim that the

court lacked jurisdiction to hear the case against him because the indictment included a

“facsimile stamp” of the prosecuting attorney’s signature instead of an original signature of the

prosecuting attorney. The court rejected the defendant’s claim, holding that

        [t]he correctness of a prosecutor’s signature on an indictment does not define the
        powers of the court and is therefore not jurisdictional. Rather, it is an irregularity
        in the form of the indictment capable of early correction by the court and clearly
        characteristic of the defenses and objections contemplated in Crim.R. [12](B)(1)
        and generally in 12(B)(2) [currently, Crim.R.12(C)(1) and (2)].

Id. at *4.

        {¶17} The court further noted that the foreman of the grand jury had signed the

indictment, “endorsing it as a true bill,” and that no claim had been made that the charge set forth

in the indictment was “wrong” or “fraudulent.” Id. Accordingly, the court found the defendant

had sustained no prejudice as a result of the prosecutor’s use of a signature stamp. Id. at *4-5;

see also Ford v. Littlefield, 4th Dist. Pickaway No. 93CA9, 1993 Ohio App. LEXIS 5950, *5-6

(Dec. 14, 1993) (“the mere failure of the prosecuting attorney to sign an indictment does not

invalidate it when there is no indication of prejudice, i.e., the indictment was sufficient to inform

the defendant of the charges against him”); Bunyan, 51 Ohio App.3d at 192-193, 555 N.E.2d

980 (criminal indictment was not defective merely because it bore the signature of the special

prosecutor rather than that of the county prosecutor or an assistant county prosecutor, reasoning

that “the requirement of the prosecutor’s or assistant prosecutor’s signature on an indictment

appears to be directory, and not mandatory”); State v. Ewing, 9 Ohio App.3d 285, 459 N.E.2d

1297 (10th Dist.1983) (failure of the prosecuting attorney to sign an indictment — his name was


signed in his name by an assistant prosecuting attorney * * *.” Johnson, 101 Ohio App.3d at
132, 655 N.E.2d 208.
typed on the indictment — did not invalidate the indictment where the defendant’s substantial

rights were not prejudiced and the indictment was sufficient to inform the defendant of the

charges against him); Payne v. Jeffreys, 109 Ohio St.3d 239, 2006-Ohio-2288, 846 N.E.2d 1248,

¶ 4-6 (indictment satisfied R.C. 2939.20 requirement that foreman “endorse” the words “[a] true

bill” on indictment where the words “a true bill” were included in preprinted indictment form).

        {¶18} In this case, the 32-page indictment used to charge Williams lists 19 separate

counts (along with numerous specifications) filed against Williams and/or his five codefendants.

Each count is listed on a separate page of the indictment. Where the description of a count and

its related specifications extends beyond a single page of the indictment, the pages are numbered

accordingly, e.g., “page two of count 1,” “page three of count 1.” A preprinted signature of

William A. Mason, “Prosecuting Attorney,” appears on the form used for the indictment. The

preprinted signature of the prosecuting attorney and the handwritten signature of the “Foreman of

the Grand Jury” appear at the bottom of each page of the indictment. The indictment bears a

date stamp from the clerk of court that indicates that it was “received for filing” on March 17,

2005.

        {¶19} Based on our review of the record, the indictment appears to be a complete,

cohesive document properly signed by the grand jury foreman and promptly filed with court.

Williams does not claim that the indictment failed to give him sufficient notice of what he was

charged with or in any way hampered his ability to prepare for and defend against those charges.

Although Williams implies that, based on the use of a preprinted signature, the indictment could

have been forged, he identifies no specific facts — or anything else in the record — that suggests

that the charges set forth in the indictment were “wrong” or “fraudulent,” i.e., that the charges

were not, in fact, the charges found and issued by the grand jury. Likewise, although Williams
appears to question the authenticity of the “purported signature” of the grand jury foreman, he

points to nothing in the record that indicates that the handwritten signature that appears at the

bottom of each page of the indictment “purporting” to be the signature of the “Foreman of the

Grand Jury” was not, in fact, the signature of the foreman of the grand jury that issued

Williams’s indictment. Contrary to Williams’s assertion, it was not the state’s burden to prove

— in response to his unsupported allegations — that the indictment and signatures were

authorized and authentic.         See State v. Cline, 2d Dist. Champaign No. 2013 CA 51,

2014-Ohio-4503, ¶ 14 (where defendant presented no evidence to support his speculation and

“hypotheticals” regarding alleged fraudulent indictments, court would not “presume” that

indictments were “the product of a conspiracy on the part of the foreman, prosecutor, and/or

others”). Williams’s claim that a defect in the indictment deprived the trial court of jurisdiction

to hear his case is meritless.

        {¶20} Furthermore, Williams should have raised any challenges he had to the sufficiency

or validity of the indictment either prior to trial or in his direct appeal — not seven years later.

Having failed to do so, he cannot do so now. See Crim.R. 12(C), 12(H);2 see also State v.


        2
            Crim.R. 12(C) provides, in relevant part:

        Prior to trial, any party may raise by motion any defense, objection, evidentiary issue,
        or request that is capable of determination without the trial of the general issue. The
        following must be raised before trial:

        ***

        (2) Defenses and objections based on defects in the indictment, information, or
        complaint (other than failure to show jurisdiction in the court or to charge an offense,
        which objections shall be noticed by the court at any time during the pendency of the
        proceeding) * * *[.]
Gordon, 9th Dist. Summit No. 25911, 2012-Ohio-902, ¶ 22 (defendant’s claim that trial court

lacked jurisdiction over him because indictment was not signed by grand jury foreperson until

after he entered his guilty plea was barred where he did not raise any issue with the indictment on

direct appeal); State v. Lowery, 2d Dist. Montgomery No. 24198, 2011-Ohio-2827, ¶ 18-22 (even

assuming there was a defect in defendant’s indictment, he could not “raise the issue ‘at any time’

based on the trial court’s alleged lack of subject matter jurisdiction”; res judicata barred

defendant’s argument that his indictment was defective in his petition for postconviction relief

where defendant did not challenge the sufficiency of his indictment at trial or on direct appeal).3

Accordingly, the trial court properly denied Williams’s motion to vacate sentence and judgment.

 We overrule Williams’s first three assignments of error.

Trial by a Single Judge

       {¶21} In his supplemental assignment of error, Williams argues that he was denied due

process because he was tried on an aggravated murder charge before a single trial judge, rather

than a three-judge panel. He contends that this violated R.C. 2945.06 and that, as a result, his

convictions and sentence are void.




       Crim.R. 12(H) provides:

       Failure by the defendant to raise defenses or objections or to make requests that must
       be made prior to trial * * * or prior to any extension of time made by the court, shall
       constitute waiver of the defenses or objections, but the court for good cause shown
       may grant relief from the waiver.
       3
          Because Williams did not raise any issues with the form of the indictment prior to trial as
required by Crim.R. 12(C), had he raised these issues in his direct appeal, he would have been limited
to arguing plain error. See, e.g., State v. Schwartzman, 8th Dist. Cuyahoga No. 100337,
2014-Ohio-2393, ¶ 6 (where defendant did not raise any objections to the form of the indictment
prior to trial, he waived all but plain error).
         {¶22} R.C. 2945.06, the statute providing for trial by a three-judge panel, provides, in

relevant part:

         In any case in which a defendant waives his right to trial by jury and elects to be
         tried by the court under section 2945.05 of the Revised Code, any judge of the
         court in which the cause is pending shall proceed to hear, try, and determine the
         cause in accordance with the rules and in like manner as if the cause were being
         tried before a jury. If the accused is charged with an offense punishable with
         death, he shall be tried by a court to be composed of three judges, consisting of
         the judge presiding at the time in the trial of criminal cases and two other judges
         to be designated by the presiding judge or chief justice of that court, and in case
         there is neither a presiding judge nor a chief justice, by the chief justice of the
         supreme court. * * *

(Emphasis added.) Williams contends that because he was originally charged with an offense

punishable by death — aggravated murder with capital specifications — he was required to be

tried by a three-judge panel, notwithstanding that the capital specifications were deleted before

trial.   We disagree.

         {¶23}   R.C. 2945.06’s three-judge panel requirement is limited to trials where the

accused is “charged with an offense punishable with death.” Where an accused is charged with

an offense that contains no specifications that would subject him to the death penalty, the

three-judge panel requirement is inapplicable.

         {¶24}   Prior to Williams’s trial, his indictment was amended to delete the capital

specifications. Trial by a three-judge court, therefore, was not required because Williams was

not “charged with an offense punishable with death” at the time his trial commenced. State ex

rel. Henry v. McMonagle, 87 Ohio St.3d 543, 544-545, 721 N.E.2d 1051 (2000) (where

defendant pled guilty to aggravated murder charge following amendment of indictment to delete

death penalty specification, neither R.C. 2945.06 nor Crim.R.11(C) required examination of

witnesses, determination of guilt, or pronouncement of sentence by a three-judge panel because

defendant was no longer charged with an offense punishable by death at the time he entered his
guilty plea); see also State v. Simpson, 8th Dist. Cuyahoga No. 96154, 2011-Ohio-4955, ¶ 11, 13;

State v. Taylor, 8th Dist. Cuyahoga No. 94569, 2010-Ohio-5607, ¶ 2.

       {¶25} Furthermore, “[t]he failure of a court to convene a three-judge panel, as required by

R.C. 2945.06, does not constitute a lack of subject-matter jurisdiction that renders the trial

court’s judgment void ab initio * * *.” Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980,

806 N.E.2d 992, syllabus. “It constitutes an error in the court’s exercise of jurisdiction that

must be raised on direct appeal.” Id. Having failed to raise the issue in his direct appeal,

Williams’s claim is barred by res judicata.            State v. Griffin, 138 Ohio St.3d 108,

2013-Ohio-5481, 4 N.E.3d 989, ¶ 3 (“Res judicata bars relitigation of a matter that was raised or

could have been raised on direct appeal when a final, appealable order was issued in accordance

with the law at the time.”).     Accordingly, Williams’s supplemental assignment of error is

overruled.

       {¶26} The trial court’s judgment is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



_________________________________
KENNETH A. ROCCO, JUDGE

LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR
