[Cite as State v. Pudelski,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100551

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JOHN PUDELSKI DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-99-375060

BEFORE: Keough, P.J., Kilbane, J., and McCormack, J.

RELEASED AND JOURNALIZED: March 27, 2014 APPELLANT

John J. Pudelski, pro se Inmate No. 379-995 Grafton Correctional Institution 2500 S. Avon-Belden Road Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Mary H. McGrath Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, P.J.:

{¶1} This cause was heard on the accelerated calendar pursuant to App.R. 11.1 and

Loc.R. 11.1. Defendant-appellant, John Pudelski, appeals the trial court’s decision

denying his motion to vacate a void conviction. For the reasons that follow, we affirm

the trial court’s decision.

{¶2} In 1999, Pudelski was indicted by a Cuyahoga County Grand Jury in a two

count indictment charging Count 1, aggravated murder with a death specification, and

Count 2, murder, under the felony murder statute. Following a jury trial, Pudelski was

convicted of Count 2 and was sentenced to a prison term of 15 years to life. His

conviction and sentence were affirmed in State v. Pudelski, 8th Dist. Cuyahoga No.

77172,

(Mar. 15, 2001).

{¶3} Following an unsuccessful petiton for postconviction relief in the trial court

and a dismissed writ of habeas corpus in the federal district court, Pudelski filed a motion

to vacate a void conviction. He claimed that because no criminal complaint was filed

with the court prior to the commencement of prosecution, the trial court lacked subject

matter jurisdiction over his case. The trial court denied his motion.

{¶4} Pudelski appeals this decision, raising two assignments of error.

{¶5} Initially, we note that objections based upon lack of subject matter

jurisdiction may be raised at any stage of the proceedings, and may even be raised for the

first time on appeal. In re Byard,

,

(1996); Jenkins v. Keller,

,

(1966), paragraph five of the

syllabus. We review the determination of subject matter jurisdiction de novo, without

any deference to the trial court. McClure v. McClure,

,

(4th Dist. 1997), citing Burns v. Daily,

,

(11th Dist. 1996)

{¶6} In his first assignment of error, Pudelski contends that the trial court erred in

denying his motion to vacate a void conviction “due to lack of a complaint at the onset of

the proceedings to establish subject matter jurisdiction for the court and to provide a case

to be bound over to a grand jury; such lack of subject matter jurisdiction nullifying all

subsequent proceedings.”

{¶7} Succinctly stated, Pudelski claims that the trial court did not have subject

matter jurisdiction because no criminal complaint was filed against him. While it is true

that a complaint was not filed, Pudelski fails to recognize that he was indicted by a grand

jury. State v. Klingenberger,

,

(1925) (noting that

grand juries have plenary and inquisitorial powers and may lawfully, upon their own

motion, originate charges against offenders).

{¶8} Moreover, as recently recognized by this court in State v. Moore, 8th Dist.

Cuyahoga No. 99360,

, a criminal case may be brought by indictment,

which is procedural — not jurisdictional.

“A criminal case may be instituted not only by a complaint, but also by an indictment or by information.” Richardson v. Winston, 8th Dist. Cuyahoga No. 80425,

, [* * *] see also Crim.R. 3 and 7. Further, even if there had been a defect relating to the issuance of a criminal complaint, it would have been rendered harmless by the issuance of the indictment and had no effect upon the subject matter jurisdiction of the trial court. See State v. Porterfield, 11th Dist. Trumbull No. 2012-T-0039,

; State v. Henderson, 8th Dist. Cuyahoga No. 95655,

. As the Ohio Supreme Court has recognized, the manner of charging an accused with a crime is procedural in nature, as opposed to jurisdictional, and the judgment on a conviction arising from an indictment is binding on the defendant. Gotel v. Gansheimer,

,

,

.

Id. at ¶ 10.

{¶9} Accordingly, Pudelski’s first assignment of error is overruled.

{¶10} In his second assignment of error, Pudelski contends that the trial court erred

in denying his motion to vacate a void conviction because

Count 2 of the indictment, the count defendant was convicted of, does not contain all the essential elements of the crime charged and is ambiguous as to what the underlying felony is and as such does not charge a crime rendering it void for lack of subject matter jurisdiction and thus unable to be the charging instrument in defendant’s conviction.

{¶11} Section 10, Article I of the Ohio Constitution guarantees every defendant

the right to know the “nature and cause of the accusation against him.” The primary

purpose of a charging instrument in a criminal prosecution is to inform the defendant of

the nature of the offense with which he is charged. State v. Thacker, 4th Dist. Lawrence

No. 04CA5,

, citing State v. Lindway,

,

(1936); Holt v. State,

,

(1923).

Therefore, an indictment, affidavit, or complaint must set forth all the essential elements

of the crime charged or it is invalid.

citing State v. Burgun,

,

(8th Dist. 1976). {¶12} In this case, Count 2 (felony murder) of the indictment read, in pertinent

part, Pudelski “unlawfully did cause the death of [the victim], as a proximate result of the

offender committing or attempting to commit an offense of violence that is a felony of the

first or second degree, to wit: Felonious Assault.” Pudelski contends that because the

elements of felonious assault were not identified in the indictment and no separate count

of felonious assault was charged, this failure rendered the indictment ambiguous and

vague.

{¶13} We first note that Pudelski did not raise this argument with the trial court in

his motion to vacate. Additionally, he failed to make any challenge regarding his

indictment prior to trial; thus, waiving any argument on appeal. State v. Yates, 8th Dist.

Cuyahoga No. 96774,

, citing State v. Myers, 2d Dist. Darke No.

1643,

(“defects in an indictment, such as * * * vagueness, must be

raised prior to trial or the issue is waived”); see also Crim.R. 12(C)(2); R.C. 2941.29.

{¶14} However, because Pudelski makes this argument under the guise of “lack of

subject mattter jurisdiction,” this court will address the merits of the assignment of error.

Even so addressing the merits, Pudelski’s argument is not well taken. This court has

repeatedly held that in an indictment for felony murder that predicates itself on an

underlying offense, specification of the underlying felony is not required. See State v.

Duncan, 8th Dist. Cuyahoga No. 87220,

; State v. Jones, 8th Dist.

Cuyahoga No. 80737,

; State v. Hunter, 8th Dist. Cuyahoga No. 86048,

; see also R.C. 2941.14(A). An indictment that tracks the language of the statute is not defective. State v. Horner,

,

,

, at paragraph one of the syllabus, citing State v. Buehner,

,

,

{¶15} In this case, Count 2 of the indictment tracked the language of R.C.

2903.02(B), felony murder, and specified the underlying felony, to wit: felonious

assault. Accordingly, it follows that any further identification of the elements of

felonious assault was not required under R.C. 2941.14(A), and Count 2 of the indictment

properly charged felony murder. See Horner at paragraph one of the syllabus (“because

the indictment follows the wording of the statute, the indictment is proper”).

{¶16} Pudelski’s second assignment of error is overruled.

{¶17} Judgment 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE MARY EILEEN KILBANE, J., and TIM McCORMACK, J., CONCUR