[Cite as State v. Sands, 2014-Ohio-3439.]




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


State of Ohio                                     Court of Appeals No. H-14-004

        Appellee                                  Trial Court No. CRI 20100568

v.

Charles O. Sands                                  DECISION AND JUDGMENT

        Appellant                                 Decided: August 8, 2014

                                            *****

        Russell V. Leffler, Huron County Prosecuting Attorney, and
        Patrick M. Hakos, Assistant Prosecuting Attorney, for appellee.

        Charles O. Sands, pro se.

                                            *****


        SINGER, J.

        {¶ 1} Appellant, Charles Sands, appeals the judgment of the Huron County Court

of Common Pleas, denying his motion to vacate judgment for lack of subject-matter

jurisdiction. Because the trial court had jurisdiction, we affirm.
       {¶ 2} Appellant sets forth the following assignment of error:

              Trial court lacked subject matter jurisdiction due to an invalid complaint

       and subsequent warrant to convict.

       {¶ 3} Appellant was convicted of two counts of unlawful sexual conduct with a

minor in violation of R.C. 2907.04(A) and (B)(3) and one count of attempted gross

sexual imposition in violation of R.C. 2923.02(A) and R.C. 2907.05(A)(1) and was

sentenced to eight years in prison. This court affirmed his conviction in State v. Sands,

6th Dist. Huron No. H-11-017, 2012-Ohio-6063.

       {¶ 4} On January 30, 2014, appellant filed the motion that is at issue in this appeal.

In the motion, he challenged the validity of the complaint and warrant and sought to have

the charges against him vacated due to lack of subject-matter jurisdiction. The trial court

denied his motion to vacate judgment on the grounds that the motion was meritless and

untimely.

       {¶ 5} A motion to vacate judgment is a petition for post-conviction relief. See

State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. A petition

for post-conviction relief is filed subsequent to the direct appeal of the conviction and

asserts that a constitutional right was violated. R.C. 2953.21(A)(1) and (2). A petition

for post-conviction relief must be filed within 180 days “after the date on which the trial

transcript is filed in the court of appeals in the direct appeal of the judgment of

conviction.” R.C. 2953.21(A)(2).




2.
       {¶ 6} Here, appellant’s motion was not filed within the allotted time. It will be

assumed, however, for purposes of analysis only, and without deciding, that appellant’s

untimely motion may be considered to contest his criminal conviction and sentence to the

extent appellant asserts lack of subject-matter jurisdiction, which may be raised at any

time. See State v. Davies, 11th Dist. Ashtabula No. 2012-A-0034, 2013-Ohio-436, ¶ 12;

State v. Wilson, 2d Dist. Montgomery No. 21738, 2007-Ohio-4885, ¶ 22.

       {¶ 7} The felony jurisdiction of the court of common pleas is invoked by the

return of a proper indictment by the grand jury of the county. Click v. Eckle, 174 Ohio

St. 88, 89, 186 N.E.2d 731 (1962). Where the indictment provides the accused with

sufficient notice of the charges, the trial court possesses and properly exercises subject

matter jurisdiction. State v. Joseph, 73 Ohio St.3d 450, 456, 653 N.E.2d 285 (1995).

Accordingly, in a felony case, the accused is tried upon the indictment returned by the

grand jury and not upon the original complaint filed in municipal court. Dowell v.

Maxwell, 174 Ohio St. 289, 290, 189 N.E.2d 95 (1963). Thus, the issuance of a grand

jury indictment renders any defect in the complaint or warrant moot. See Clinger v.

Maxwell, 175 Ohio St. 540, 541, 196 N.E.2d 771 (1964).

       {¶ 8} Here, a complaint was filed against appellant on June 14, 2010, in Norwalk

Municipal Court alleging a rape offense. Then, on August 18, 2010, appellant was

indicted by the Huron County Grand Jury on nine counts of sexual offenses and one

count of witness intimidation. Appellant pled guilty to one count of the indictment and

two amended counts of the indictment on November 5, 2010. Since the court’s



3.
jurisdiction was invoked based upon the indictment and appellant was prosecuted

pursuant to the indictment, any defect contained in the complaint or warrant is a moot

issue.

         {¶ 9} Having found that the trial court had jurisdiction, the trial court did not

commit error prejudicial to appellant in denying appellant’s motion to vacate judgment.

The judgment of the Huron County Court of Common Pleas is affirmed. Pursuant to

App.R. 24, appellant is hereby ordered to pay the costs incurred on appeal.

                                                                           Judgment affirmed.



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




Arlene Singer, J.                                 _______________________________
                                                              JUDGE
Thomas J. Osowik, J.
                                                  _______________________________
James D. Jensen, J.                                           JUDGE
CONCUR.
                                                  _______________________________
                                                              JUDGE


              This decision is subject to further editing by the Supreme Court of
         Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
              version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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