Pratts v. Hurley
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[Cite as Pratts v. Hurley, 2003-Ohio-864.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY Ruben Pratts, : : Petitioner-Appellant, : : v. : Case No. 02CA2674 : Pat Hurley, Warden, : DECISION AND JUDGMENT ENTRY : Respondent-Appellee. : Released 2/12/03 ____________________________________________________________ APPEARANCES: Harry R. Reinhart, Columbus, Ohio, for Appellant. Betty D. Montgomery, Ohio Attorney General, and Diane Mallory, Assistant Attorney General, Columbus, Ohio, for Appellee. _____________________________________________________________ Harsha, J. {¶1} trial This appeal presents us with the issue of whether a court's failure to follow the requirement of R.C. 2945.06 to convene a three judge panel to accept a guilty plea in a capital offense can be raised in a collateral attack under state habeas corpus proceedings. We conclude that the trial court's error did not divest it of subject matter jurisdiction. And because an error in the exercise of jurisdiction must be raised on direct appeal, we hold that the appellant is not entitled to a writ of habeas corpus, notwithstanding the trial court's noncompliance with R.C. 2945.06. {¶2} Petitioner Ruben Pratts is incarcerated at the Ross Correctional Institution. In 1988, he pled guilty in Summit County to aggravated murder with death penalty and firearm specifications, and specification. aggravated burglary with a firearm He waived his rights to trial by jury and a three-judge panel, pled guilty, and a single judge received his guilty plea and sentenced him. Apparently, he did not appeal from the conviction and sentence. {¶3} In 2001, Pratts filed a petition for a writ of habeas corpus in the Court of Common Pleas of Summit County, arguing that the single judge lacked jurisdiction under R.C. 2945.06 to accept his guilty plea and sentence him for a capital offense. The court dismissed the petition as barred by res judicata because Pratts had failed to raise the issue on direct appeal postconviction and relief. in State a v. previous Pratts application (Nov. 30, for 2001), Summit Cty. C.P. No. CR 1988 12 1771. Apparently, Pratts did not appeal from that judgment either. {¶4} the Court In 2002, Pratts filed the petition in this case in of Common Pleas of Ross County. That court dismissed this second petition on grounds that the claim is not cognizable in habeas corpus and is also barred by res judicata. Pratts appealed to this court and simultaneously filed an original action in this court petitioning a third time for a writ of habeas corpus on the same grounds as the previous petitions. Unaware of the previous action in Summit County we, nevertheless, dismissed the original action as barred by res judicata because of the previously petition in the Ross County common pleas court. filed Pratts v. Hurley (Aug. 30, 2002), Ross App. No. 02CA2675. {¶5} On appeal, Pratts argues that (1) the single judge lacked subject-matter jurisdiction to accept his plea and sentence him, (2) lack of subject-matter jurisdiction cannot be waived and may be collaterally attacked, and (3) therefore, lack of subject-matter jurisdiction is not subject to the doctrine of res judicata. Pratts bases his argument primarily on State v. Parker, 95 Ohio St.3d 524, 2002-Ohio2833, 769 N.E.2d 846. {¶6} Parker pled guilty to aggravated murder death penalty specification before a single judge. with a The State had agreed not to seek the death penalty in exchange for the guilty plea. Parker filed a direct appeal contending that the single judge lacked jurisdiction to accept his plea and sentence him. The Eighth District Court of Appeals agreed and reversed and remanded the case for further proceedings. The court did not discuss or even mention jurisdiction, but did state that the three-judge panel requirement could not be waived, citing, inter alia, State v. Filiaggi (1999), 86 Ohio St.3d 230, 714 N.E.2d 867. The {¶7} court of Supreme appeals. Court In affirmed the the syllabus, judgment it of the emphasized the necessity for strict compliance with the statute, even if the State agrees not to seek the death penalty. However, the majority opinion did not state that the trial court lacked subject-matter jurisdiction. It said only, The three-judge panel requirement of R.C.2945.06 is a jurisdictional matter that cannot be waived. Subject-matter jurisdiction is the only type of jurisdiction that cannot be waived. Waller, Highland App. No. 02CA8, State v. 2002-Ohio-6080. But Parker s citation to Filiaggi is confusing because Filiaggi held that failure to convene a three-judge panel under R.C. 2945.06 was an error in the exercise of jurisdiction, not a divestiture or loss of subject-matter jurisdiction. {¶8} Filiaggi was also a direct appeal in which the defendant had pled guilty to aggravated murder with a death penalty specification and other noncapital offenses. A three-judge panel accepted his plea to aggravated murder and sentenced him to death on that count, but only the presiding judge accepted his plea and sentenced him on the noncapital charges. Filiaggi appealed, contending that a three-judge panel should have heard all charges. The court of appeals affirmed all sentences. {¶9} However, the Supreme Court held that R.C. 2945.06 requires a three-judge panel to try the noncapital charges as well as the capital charge and reversed and remanded the case to the trial court for further proceedings. Filiaggi stated that the requirement of a three-judge panel is jurisdictional and cannot be waived, 86 Ohio St.3d at 239-240. However, the court also clearly indicated that the type of jurisdiction involved was not subject-matter jurisdiction by citing In re Waite (1991), 188 Mich. App. 189, 200, 468 N.W.2d 912, 917, which in turn was quoting Jackson City Bank & Trust Co. v. Fredrick (1935), 271 Mich. 538. 544-546, 260 N.W. 908, 909: "[W]here it is apparent from the allegations that the matter alleged is within the class of cases in which a particular court has been empowered to act, jurisdiction is present. Any subsequent error in the proceedings is only error in the exercise of jurisdiction, as distinguished from the want of jurisdiction in the first instance. * * * [I]n cases where the court has undoubted jurisdiction of the subject matter and of the parties, the action of the trial court, though involving an erroneous exercise of jurisdiction, which might be taken advantage of by direct appeal, or by direct attack, yet the judgment or decree is not void though it might be set aside for the irregular or erroneous exercise of jurisdiction if appealed from. collaterally. It may not (Emphasis sic.) be called into question State v. Filiaggi, 86 Ohio St.3d at 240." {¶10} Filiaggi established procedures in in also referred prior cases capital that cases must to the statutes be principle prescribing followed strictly, citing State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766, paragraph one of the syllabus. Pless involved R.C. 2945.05 s 86 Ohio St.3d at 240. procedure for right to trial by jury in capital cases. requires the waiver to be in writing, waiving the The procedure signed by the defendant, filed in the cause, and made part of the record. In Pless, there was some evidence that a written waiver had been made and filed, but it was not in the record. the court conviction reversed and death the defendant s sentence and aggravated ordered a new Thus, murder trial, holding that the three-judge panel that tried Pless lacked jurisdiction to do so. The court did not specify the type of jurisdiction involved, nor did it state directly that strict compliance could be waived. these issues through the However, it resolved interaction of the strict- compliance principle and a prohibition against collateral attack as stated in the syllabus paragraphs: "1. In a criminal case where the defendant elects to waive the right to trial by jury, R.C. 2945.05 mandates that the waiver must be in writing, signed by the defendant, filed in the criminal Absent action strict 2945.05, a and made compliance trial court part with lacks defendant without a jury. of the the record requirements jurisdiction to thereof. of R.C. try the (State v. Tate [1979], 59 Ohio St.2d 50, 130.O.3d 36, 391 N.E.2d 738, and State ex rel. Jackson v. Dallman [1994], 70 Ohio St.3d 261, 638 N.E.2d 563, construed and applied.) 2. The failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction. (State v. Tate [1979] 59 Ohio St.2d 50, 130 O.O.3d 36, 391 N.E.2d 738; State ex rel. Jackson v. Dallman [1994], 70 Ohio St.3d 261, 638 N.E.2d 563; and State ex rel. Larkins v. Baker [1995], 13 Ohio St.3d 658, 653 N.E.2d 701, harmonized.)" {¶11} Even though it was hearing a direct appeal, the Pless court had to address the issue of collateral attack in order to harmonize the Tate, Dallman, and Larkins cited in the syllabus. In all three cases, the court had held that failure to strictly comply with R.C. 2945.05 created a jurisdictional defect. Tate was a direct appeal. However, Dallman and Larkins were habeas corpus cases, and the court had ordered Dallman's release but declined to release Larkins under similar facts. The Pless court "harmonized" the cases by holding in paragraph two of the syllabus that the error may only be remedied on direct appeal. This resolution strongly suggests that the failure to strictly comply with the statute results in an improper exercise of jurisdiction, not lack of subject-matter jurisdiction. In re Waite quoted in Filiaggi, supra. Pless did not expressly address the See Moreover, although issue of waiver of strict compliance, the fact that it confined the remedy to direct appeal logically implies that if the issue is not raised on direct appeal it is, in effect, waived thereafter. {¶12} Though it has no syllabus, the Filiaggi opinion relies on Pless and expressly indicates that the type of error involved is the improper exercise of jurisdiction, which, by definition, is subject only to direct appeal and not collateral attack. {¶13} Contrast Parker, Filiaggi, and Pless with State v. Wilson (1995), 73 Ohio St.3d 40, 652 N.E.2d 196, a case in which procedural error did deprive the trial court of subject-matter jurisdiction. Wilson was convicted of grand theft and served sixty days before being released on shock probation. Twelve years later, he filed a motion to vacate his conviction, alleging he was a juvenile at the time of the offense. On appeal, the Supreme Court found that juvenile courts had exclusive original jurisdiction to hear cases in which juveniles were charged with violations of criminal law with one exception--where the juvenile was bound over to the court of common pleas, general division, to stand trial as an adult, under R.C. 2125.26. found that Wilson had never even appeared The court before the juvenile court, much less had a proper bind-over procedure. Thus, it concluded that since the juvenile court had never properly relinquished its exclusive original jurisdiction through a proper bindover, the general division had never acquired subject-matter jurisdiction of the cause. Treating Wilson s motion as an independent civil action, the court held that the action was not barred by res judicata because it was based on lack of subject-matter jurisdiction in the trial court , and the conviction was void ab initio. St.3d 614, In Johnson v. Timmerman-Cooper, 93 Ohio 2001-Ohio-1803, 757 N.E.2d 1153, the court affirmed Wilson in the context of a habeas corpus action. In Johnson, there had been a bindover proceeding under R.C. 2125.26, but the statute. Thus, statute divests court when a had failure trial failed to to comply strictly court of with comply the with a subject-matter jurisdiction, the Supreme Court either on direct appeal or in a collateral decisive void terms ab attack, such as initio. has no trouble subject-matter Those terms are using clear, jurisdiction notably absent and from Parker, Filiaggi, and Pless. {¶14} It is the obligation of this court to follow the Supreme Court s pronouncements of law and, if possible, to reconcile them. Holm v. Smilowitz (July 25, 1990), Athens App. No. 1428. treat the Although Parker, Filiaggi, and Pless do not principles involved in complying with R.C. 2945.05 and 2945.06 with equal emphasis, we believe that the cases statutes all stand require for strict the same principles: compliance, 2) that 1) the failure to strictly comply is error in the exercise of jurisdiction, 3) that strict compliance may not be voluntarily waived and is always reversible error on direct appeal, but 4) after direct appeal, any error is, in effect, waived and cannot be remedied through collateral attack. Moreover, if the error is not raised on direct appeal, a collateral attack is subject to the defense of res judicata. State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. {¶15} Three courts of appeals conclusion in varying degrees. have reached this In State v. Swiger (1998), 125 Ohio App.3d 456, 708 N.E.2d 1033, the Ninth District Court of Appeals, ruling on an application for post- conviction relief, held that the issue of whether a single judge of the trial court lacked jurisdiction to try and sentence the applicant was barred by the doctrine of res judicata, stating that the single judge did not lack subject-matter jurisdiction and that the issue could have been raised on direct appeal. 125 Ohio App.3d at 465. App. No. Swiger was decided before Filiaggi and Parker. {¶16} In Collier v. Gansheimer, Ashtabula 2001-A-0087, 2002-Ohio-1054, p. 5, a habeas corpus action that cited Swiger and Pless, the Eleventh District Court of Appeals held that "* * * the failure to follow the procedure under R.C. 2945.06 and Crim.R. 11(C)(3) does not constitute a defect in the trial court s subject matter jurisdiction instead, (sic.) it is a defect in the court s jurisdiction over that particular case.1 We further conclude that an error in the use of a three-judge panel only renders a subsequent sentencing judgment voidable and can be challenged conviction. (Fn. only in added)" a direct Collier appeal was from decided the after Filiaggi, but before Parker. {¶17} In State ex rel. Nash v. Jackson (Dec. 4, 2002), Warren App. No. CA2002-09-100, the Twelfth District Court of Appeals dismissed a petition for a writ of habeas corpus that claimed that a single judge lacked jurisdiction under R.C. 2945.06 to accept the petitioner s guilty pleas to five counts of aggravated murder. Parker. The petitioner relied on The court of appeals held that even if it was error for a single judge to accept the pleas, this did not deprive the court of subject-matter jurisdiction and that the defendant would at most be entitled to have his case remanded for further proceedings, citing Parker and Filiaggi. {¶18} The Third District Court of Appeals has taken the opposite view, holding that a single judge lacks subjectmatter jurisdiction to try a defendant under R.C. 2945.06, and therefore the judgment is void ab initio. State v. Brock (1996), 110 Ohio App.3d 656, 675 N.E.2d 18, State v. Garris (1998), 129 Ohio App.3d 126, 713 N.E.2d 1135, State v. Noggle (June 24, 1999), Crawford App. No. 3-99-08. All three cases were direct appeals and so should have arrived at the same result on a finding that the error was in the exercise of jurisdiction only. All three were decided before Filiaggi and Parker. {¶19} R.C. 2725.05 states in part: If it appears that a person alleged to be restrained of his liberty * * * by virtue or order of a court of record, and that the court * * * had 1 Jurisdiction over the particular case is used by some courts as a jurisdiction to * * * render the judgment * * *, the writ of habeas corpus shall not be allowed. Whether jurisdiction, as used in that section includes error in the exercise of jurisdiction, is a question of first impression. However, Filiaggi holds, and because of its reference to Filiaggi, we construe Parker to hold that an error in the exercise of jurisdiction under R.C. 2945.06 is not subject to collateral attack. Habeas corpus is a collateral action. Ex parte Cattell (1945), 146 Ohio St. 112, 32 O.O. 43, 64 N.E.2d 416, 164 A.L.R. 312. {¶20} Accordingly, the trial court correctly determined that the cause is not cognizable in habeas corpus and also correctly determined that the issue of strict compliance with procedure under R.C. 2945.06 is res judicata if not raised on direct appeal. Its judgment is therefore AFFIRMED. JUDGMENT AFFIRMED. synonym for error in the exercise of jurisdiction. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that Appellee recover of 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 Ross County Common Pleas Court to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, J. & Kline, J.: Concur in Judgment and Opinion. For the Court BY: ________________________ William H. Harsha, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
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