State v. Nelms

[Cite as State v. Nelms, 2020-Ohio-6845.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
DAVID NELMS : Case No. 20 CAA 03 0018
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 12CR I 09 0362

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 22, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MARK C. SLEEPER DAVID NELMS, PRO SE
145 North Union Street Inmate #686-545
3rd Floor North Central Correctional Institution
Delaware, OH 43015 P.O. Box 1812
Marion, OH 43301
Delaware County, Case No. 20 CAA 03 0018 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, David Nelms, appeals the February 26, 2020

judgment entry of the Court of Common Pleas of Delaware County, Ohio, denying his

motion to vacate void judgment due to lack of jurisdiction. Plaintiff-Appellee is the state

of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On September 28, 2012, the Delaware County Grand Jury indicted

appellant, David Nelms, on one count of engaging in a pattern of corrupt activity in

violation of R.C. 2923.32, one count of trafficking in persons in violation of R.C.

2905.32, one count of trafficking in heroin in violation of R.C. 2925.03, one count of

possession of heroin in violation of R.C. 2925.11, five counts of compelling prostitution

in violation of R.C. 2907.21, and eight counts of promoting prostitution in violation of

R.C. 2907.22. Fourteen of the counts included a human trafficking specification

pursuant to R.C. 2941.1422.

{¶ 3} On February 21, 2013, appellant filed a motion to dismiss for lack of

proper venue, claiming all but one of the alleged offenses did not occur in Delaware

County. A hearing was held on March 15, 2013. By judgment entry filed March 19,

2013, the trial court denied the motion.

{¶ 4} On June 11, 2013, appellant pled no contest to the engaging in a pattern

of corrupt activity and the possession of heroin counts. The remaining counts, including

the specifications, were dismissed. By judgment entry filed June 12, 2013, the trial

court found appellant guilty. By judgment entry filed June 25, 2013, the trial court

sentenced appellant to an aggregate term of twelve years in prison.
Delaware County, Case No. 20 CAA 03 0018 3

{¶ 5} Appellant filed an appeal and assigned as error the issue of subject matter

jurisdiction, claiming the Delaware County Grand Jury had no authority to indict him for

crimes committed in Franklin County. This court denied the assignment and affirmed

appellant's convictions. State v. Nelms, 5th Dist. Delaware No. 13 CAA 07 0055, 2014-

Ohio-3316.

{¶ 6} On December 27, 2019, appellant filed a motion to vacate void judgment

due to lack of jurisdiction, claiming the count in the indictment for engaging in a pattern

of corrupt activity needed to specify that the incidents of corrupt activity exceeded

$1,000. Appellant argued without a valid indictment, his plea and conviction were void.

Appellant also challenged the sufficiency of the factual basis for the trial court to accept

his no contest plea and find him guilty.

{¶ 7} On January 10, 2020, appellee filed a motion for an extension of time to

file a memorandum contra. The trial court granted the motion and gave appellee until

January 24, 2020, to so file. On said date, appellee filed a second motion for an

extension. Appellee filed its memorandum contra on January 27, 2020. On same date,

appellant filed a motion to strike the memorandum contra for being untimely filed. By

judgment entry filed January 28, 2020, the trial court denied the motion to strike, finding

the extension request was timely filed. On February 6, 2020, appellant filed a motion for

reconsideration of the timeliness issue and claimed he was never served with the

motions for extension and the memorandum contra. By judgment entry filed February

25, 2020, the trial court denied the motion for reconsideration. By judgment entry filed

February 26, 2020, the trial court denied appellant's motion to vacate void judgment due

to lack of jurisdiction, finding his arguments were barred by the doctrine of res judicata

and the indictment was sufficient.
Delaware County, Case No. 20 CAA 03 0018 4

{¶ 8} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 9} "THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED BY

FAILING TO TAKE [A MANDATORY] JUDICIAL NOTICE UNDER EVID.R. 201(D)

WHEN REQUESTED BY APPELLANT AND WAS SUPPLIED THE NECESSARY

INFORMATION."

II

{¶ 10} "THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

EXERCISE JURISDICTION IN ACCORDANCE WITH THE STATUTORY

REQUIREMENTS SET FORTH IN R.C. 2941.08(E) AND R.C. 2923.31(I)(2)(C)."

III

{¶ 11} "THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN

CONCLUDING ERRONEOUSLY THAT THE INDICTMENT MAY OMIT ITS

STATUTORY MANDATORY MONETARY THRESHOLD (JURISDICTIONAL AMOUNT)

ELEMENTS IN WHICH CONSTITUTES AND NEEDED TO DETERMINE THE

CHARGE."

IV

{¶ 12} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ACCEPTED

THE NO CONTEST PLEA AND FOUND MR. NELMS GUILTY, ABSENT THE

MANDATORY REQUIRED STATUTORY JURISDICTIONAL AMOUNT ELEMENT

BEING AVERRED WITHIN THE INDICTMENT THEREFORE, NEVER ACQUIRING

JURISDICTION AND DEPRIVING THE COURT'S AUTHORITY TO ACT."

{¶ 13} Appellant also filed a "cross-appeal" assigning the following errors:
Delaware County, Case No. 20 CAA 03 0018 5

CROSS-ASSIGNMENT OF ERROR I

{¶ 14} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN SERVICE OF

PROCESS WAS NOT MADE IN ACCORDANCE WITH THE RULES OF CIVIL

PROCEDURE, THE TRIAL COURT LACKED JURISDICTION TO CONSIDER THE

COMPLAINT, AND ANY JUDGMENT ON THE COMPLAINT IS VOID AB INITIO."

CROSS-ASSIGNMENT OF ERROR II

{¶ 15} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

COMPLY TO LOCAL RULES THAT IMPLICATES ISSUES OF DUE PROCESS

THEREFORE, DEPRIVING MR. NELMS OF A REASONABLE OPPORTUNITY TO

DEFEND HIMSELF, THE TRIAL COURT IS BOUND TO COMPLY WITH IT'S LOCAL

RULES 7.07 AND 11.05."

I, II, III, IV

{¶ 16} In his first, second, third, and fourth assignments of error, appellant

challenges the trial court's denial of his motion to vacate void judgment due to lack of

jurisdiction. We disagree.

{¶ 17} In his motion filed December 27, 2019, appellant argued his plea and

conviction were void because the count in the indictment for engaging in a pattern of

corrupt activity was invalid for failing to specify that the incidents of corrupt activity

exceeded $1,000; therefore, the invalid indictment never invoked the jurisdiction of the

trial court.

{¶ 18} In its February 26, 2020 judgment entry denying appellant's motion, the

trial court found the motion was barred by the doctrine of res judicata. Notwithstanding

this finding, the trial court went on to find the indictment was valid.
Delaware County, Case No. 20 CAA 03 0018 6

{¶ 19} As stated by the Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d

175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus:

Under the doctrine of res judicata, a final judgment of conviction

bars the convicted defendant 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.

See Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995).

{¶ 20} "To survive preclusion by res judicata, a petitioner must produce new

evidence that would render the judgment void or voidable and must also show that he

could not have appealed the claim based upon information contained in the original

record." State v. Nemchik, 9th Dist. Lorain No. 98CA007279, 2000 WL 254908, *1

(Mar. 8, 2000). Void sentences are "not precluded from appellate review by principles

of res judicata, and may be reviewed at any time, on direct appeal or by collateral

attack." State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,

paragraph one of the syllabus. However, a voidable sentence "can be set aside only if

successfully challenged on direct appeal." State v. Payne, 114 Ohio St.3d 502, 2007-

Ohio-4642, 873 N.E.2d 306, ¶ 28, citing State v. Filiaggi, 86 Ohio St.3d 230, 240, 714

N.E.2d 867 (1999).
Delaware County, Case No. 20 CAA 03 0018 7

{¶ 21} Because appellant failed to include the complained of issues in his direct

appeal, he is attempting to circumvent the doctrine of res judicata by claiming his

convictions were void because the trial court lacked subject matter jurisdiction.

"Because subject matter jurisdiction goes to the power of the court to adjudicate the

merits of a case, it can never be waived and may be challenged at any time." United

States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); State ex

rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998).

{¶ 22} Appellant argues the trial court lacked subject matter jurisdiction due to

defects in the indictment. As explained by our colleagues from the Seventh District in

State v. Bragwell, 7th Dist. Mahoning No. 06-MA-140, 2008-Ohio-3406, ¶ 14:

A defective indictment renders the charge voidable, not void. State

v. Haley, (July 7, 1995), 2d Dist. Nos. 94-CA-89, 94-CA-108, 94-CA-109.

The error does not deprive the trial court of subject matter jurisdiction and

the error is generally "waived on appellate review when a timely objection

before the trial court could have permitted [its] correction." Id., quoting

City of Trotwood v. Wyatt (Jan. 21, 1993), 2d Dist. No. 13319; State v.

Wade (1978), 53 Ohio St.2d 182, 373 N.E.2d 1244, vacated on other

grounds (1978), 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157.

{¶ 23} In reviewing appellant's arguments herein on the alleged deficiency of the

indictment, we find they do not affect the trial court's subject matter jurisdiction.

Appellant could have raised the defects in the indictment in his direct appeal, but failed

to do so; therefore, we concur with the trial court that appellant's arguments are barred
Delaware County, Case No. 20 CAA 03 0018 8

by the doctrine of res judicata. See State v. Brandon, 5th Dist. Muskingum No.

CT2018-0082, 2019-Ohio-2818. We find the same as to appellant's sufficiency of the

factual basis argument.

{¶ 24} Upon review, we find the trial court did not err in denying appellant's

motion to vacate void judgment due to lack of jurisdiction.

{¶ 25} Appellant's Assignments of Error I, II, III, and IV are denied.

CROSS-ASSIGNMENTS OF ERROR I AND II

{¶ 26} In these assignments of error, appellant claims the trial court erred in

denying his motion to strike appellee's memorandum contra to his motion to vacate and

his subsequent motion for reconsideration of the denial. We disagree.

{¶ 27} At the outset, we note there is no rule permitting appellant to file a "cross-

appeal" brief in his own direct appeal. Appellant should have included these

assignments of error in his appellate brief.

{¶ 28} In his motion to strike filed January 27, 2020, appellant argued appellee's

memorandum contra was untimely filed and he was never served with appellee's

request for an extension.

{¶ 29} In its January 28, 2020 judgment entry denying appellant's motion to

strike, the trial court found the extension request was timely filed. In its February 25,

2020 judgment entry denying appellant's motion for reconsideration, the trial court found

"contrary to the erroneous descriptions provided in the Defendant's motion for

reconsideration, the State of Ohio filed its two motions for extensions of time 'before the

expiration of the period originally prescribed.' " The trial court found the extension

requests were "reasonable and justified by good cause. The rules permit this Court to
Delaware County, Case No. 20 CAA 03 0018 9

regulate these proceedings as justice so requires." In support, the trial court cited

Crim.R. 45(B) which states the following:

(B) Time: Enlargement. When an act is required or allowed to be

performed at or within a specified time, the court for cause shown may at

any time in its discretion (1) with or without motion or notice, order the

period enlarged if application therefor is made before expiration of the

period originally prescribed or as extended by a previous order; or (2)

upon motion permit the act to be done after expiration of the specified

period, if the failure to act on time was the result of excusable neglect or

would result in injustice to the defendant.

{¶ 30} Upon review of the filings, we concur appellee filed its extension requests

"before expiration of the period originally prescribed or as extended by a previous

order." As the rule states, the granting of an extension is within a trial court's sound

discretion, and we do not find that the trial court in this case abused that discretion.

{¶ 31} Appellant also complained he did not receive service of the extension

requests or the memorandum contra. The January 10, and 24, 2020 motions for

extension and the January 27, 2020 memorandum contra all included certificates of

service to appellant's address of record. Although there is no record of appellant

receiving the filings, we do not find any prejudice to appellant affecting a substantial

right. Crim.R. 52(A).

{¶ 32} Upon review, we do not find the trial court abused its discretion in denying

appellant's motion to strike and subsequent motion for reconsideration.
Delaware County, Case No. 20 CAA 03 0018 10

{¶ 33} Cross-Assignments of Error I and II are denied.

{¶ 34} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Hoffman, P.J. and

Wise, John, J. concur.

EEW/db