[Cite as State v. Cline,

.]

IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2013 CA 51

v. : T.C. NO. 00CR163

JAMES M. CLINE : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 10th day of October , 2014.

..........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

JAMES M. CLINE, Inmate No. 418660, Warren Correctional Institution, 5787 State Route 63, P. O. Box 120, Lebanon, Ohio 45036 Defendant-Appellant

..........

FROELICH, P.J.

{¶ 1} James M. Cline appeals from a judgment of the Champaign County 2

Court of Common Pleas, which denied his pro se “Motion to Vacate Sentence and Judgment

Due to Lack of Subject-Matter Jurisdiction and Lack of a Charging Instrument.” For the

following reasons, the judgment of the trial court will be affirmed.

{¶ 2} In 2003, Cline was convicted by a jury of numerous counts of unauthorized

use of a computer, menacing by stalking, conspiracy to commit aggravated arson, criminal

mischief, intimidation of a crime witness, and telecommunications harassment; in all, he was

convicted of 76 counts. These convictions were reversed on appeal, due to problems with

Cline’s waiver of his right to counsel. See State v. Cline,

,

,

(reversing our decision in State v. Cline, 2d Dist.

Champaign No. 2002-CA-5,

, on the authority of State v. Martin,

,

,

, which held that a trial court must substantially,

but not literally, comply with Crim.R. 44(C)’s requirements for the waiver of counsel) and

State v. Cline,

,

,

(2d Dist.) (holding

that the trial court had not substantially complied with the Crim.R. 44 requirements for the

waiver of counsel).

{¶ 3} Before Cline was retried, the State indicted him on an additional 255 counts

of telecommunications harassment. A second jury trial was held in November 2006.

Cline was found guilty of four counts of unauthorized use of a computer, two counts of

conspiracy to commit aggravated arson, one count of menacing by stalking, one count of

criminal mischief, one count of intimidation of a crime witness/victim, and 176 counts of

telecommunications harassment. The trial court sentenced Cline to prison terms totaling

fifty-eight and one-half years. On appeal, we affirmed his conviction on all counts, except 3

one count of conspiracy to commit arson, which we reversed and vacated. State v. Cline, 2d

Dist. Champaign No. 07CA02,

.

{¶ 4} In February 2008, while Cline’s appeal from his second conviction was

pending, he filed a petition for post-conviction relief, pursuant to R.C. 2953.21, alleging

ineffective assistance of trial counsel, vindictive prosecution, and a disproportionate,

excessive sentence. The State moved for summary judgment. The trial court granted

summary judgment, concluding that Cline’s claims for relief either were raised or could

have been raised on direct appeal and were therefore barred by res judicata. We reversed

and remanded the trial court’s decision with respect to one aspect of the alleged ineffective

assistance of counsel; otherwise, we affirmed the trial court’s judgment. State v. Cline, 2d

Dist. Champaign No. 08CA21,

. On remand, the trial court again granted

summary judgment to the State on Cline’s petition for postconviction relief. Cline’s appeal

from that judgment was dismissed in October 2011 for lack of prosecution.

{¶ 5} On August 22, 2013, Cline filed in the trial court a pro se “Motion to

Vacate Sentence and Judgment Due to Lack of Subject-Matter Jurisdiction and Lack of a

Charging Instrument.” The motion alleged that the indictments on which his convictions

were based were fraudulent; specifically, Cline alleged that the charges had never been

presented to a grand jury, that the foreperson had signed a blank piece of paper, and that the

prosecutor had attached to the foreperson’s blank signature page “whatever charges he/she

wishes.” Cline did not offer any evidence in support of this claim; rather, he apparently

relied on the State’s inability to disprove his claim. The trial court concluded that Cline’s

attack on the indictments and allegation of fraud in its procurement were not jurisdictional in 4

nature and could have been raised at his trial. The court also observed that Cline had

offered no evidence to support his allegations of fraud in the procurement of the indictments.

The court denied Cline’s motion.

{¶ 6} Cline appeals from the trial court’s denial of his Motion to Vacate Sentence

and Judgment, raising three assignments of error. His first two assignments assert that

unanswered questions about the validity of the indictments affected the trial court’s

subject-matter jurisdiction, and the third assignment asserts that his due process rights were

violated when the trial court convicted and sentenced him without subject-matter

jurisdiction. The State refutes Cline’s arguments that there were any defects in the

indictments and that the trial court lacked subject-matter jurisdiction; it also argues that

Cline’s motion is properly classified as a petition for postconviction relief, that it was

untimely, and that it failed to satisfy the requirements for filing a successive petition for

postconviction relief.

{¶ 7} The trial court did not address the nature of Cline’s motion or the standard

under which it should be reviewed, and it did not discuss the requirements for a petition for

postconviction relief. However, the State correctly observes that Cline’s motion, despite its

caption, would have been properly treated as a petition for postconviction relief under R.C.

2953.21(A)(1), because it (1) was filed subsequent to Cline’s direct appeal, (2) claimed a

denial of constitutional rights, (3) sought to render the judgment void, and (4) asked for

vacation of the judgment and sentence. State v. Reynolds,

,

(1997); State v. Spencer, 2d Dist. Clark No. 2006 CA 42,

. Accordingly, the trial court should have addressed Cline’s Motion to Vacate Sentence 5

and Judgment as a petition for postconviction relief.

{¶ 8} Under R.C. 2953.21(A)(2), Cline was required to file a petition for

postconviction relief “no later than one hundred eighty 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 or

adjudication ***.” “A court may not entertain a petition filed after the [180-day period] *

* * or a second petition or successive petitions for similar relief on behalf of a petitioner

unless division (A)(1) or (2) of this section applies.” R.C. 2953.23. R.C. 2953.23(A)(1)

and (2) address situations in which the petitioner can show that he was unavoidably

prevented from discovering the facts upon which he must rely to present the claim for relief,

in which the United States Supreme Court has recognized a new federal or state right that

applies retroactively to persons in the petitioner’s situation, or in which the petitioner was

convicted of a felony and is an offender for whom DNA testing was performed, the results

of which show actual innocence of that felony offense. Cline’s claims do not fall within

the parameters for an untimely or successive petition, and his petition was not filed within

180 days of the date on which the trial transcript was filed in this court on direct appeal.

The trial court could have denied the petition on that basis.

{¶ 9} Looking beyond the untimeliness of Cline’s motion, the substance of his

arguments suggests that the grand jury’s foreman’s signatures were not properly obtained

and that the prosecutor’s signatures on the indictments were improperly attached by

lithographic means. The foreman’s signature on an indictment is required under Crim.R.

6(C) and 6(F); the prosecutor’s signature is required under Crim.R. 7(B).

{¶ 10} Even if Cline had set forth any facts showing that the foreman may have 6

signed a blank document, the Supreme Court has held that a grand jury foreman’s failure to

sign an indictment does not deprive the trial court of jurisdiction. Kroger v. Engle,

,

(1978). Further, Crim.R. 12(C)(2) states that defects in an

indictment must be raised before trial, which refutes Cline’s assertion that such a defect

deprives the court of subject-matter jurisdiction. The Supreme Court has also held that

alleged fraud on the part of the authorities involved in the prosecution of a case does not

implicate the jurisdiction of the sentencing court. State ex rel. Justice v. McMackin,

,

(1990), citing Wireman v. Adult Parole Auth.,

,

(1988). With regard to misconduct on the part of the

prosecutor, it is well established that “the Ohio Supreme Court has exclusive jurisdiction to

determine violations of attorney disciplinary rules. * * * All grievances involving alleged

misconduct by attorneys and judges are to be brought and disposed of in accordance with the

provisions of Rule 5 of the Supreme Court Rules for the Government of the Bar of Ohio.”

Madison Cty. Bd. of Commrs. v. Bell, 12th Dist. Madison No. CA2005-09-036,

. See also Watterson v. King,

,

,

(5th Dist.).

{¶ 11} Cline contends that the “charging instrument” or indictments in his case

were not constitutionally sufficient to confer jurisdiction on the trial court because they

“contai[n] a lithographic signature * * * alleged to be that of the prosecuting attorney.”

Cline asserts that any person or company in possession of such equipment could have

printed the lithographic signature on the document. He also contends that the indictments

are “simply a group of papers with a pre-printed signature purporting to be that of the 7

prosecutor and a purported signature of a grand jury foreperson. There is absolutely

nothing in the purported indictment[s] that would distinguish it from other papers filed in

Champaign County purporting to be indictments. A very significant paper related to this

matter does not show a case number having nexus to Appellant.” He contends that these

alleged defects in the indictments divested the trial court of subject-matter jurisdiction, and

that he may challenge his conviction based on lack of subject-matter jurisdiction at any time.

In other words, Cline argues that the defects in his indictments left the trial court without

jurisdiction to convict him, that his judgment was therefore void, and that a void judgment

can be challenged at any time.

{¶ 12} Under Ohio law, there are generally “but two reasons that a judgment is

void: ‘[the judgment] has been imposed by a court that lacks subject-matter jurisdiction over

the case or the authority to act.’” Lamb v. Lamb, 2d Dist. Montgomery No. 24076, 23538,

, quoting State v. Simpkins,

,

,

, ¶ 12; State v. Johnston, 2d Dist. Montgomery No. 25652,

. A voidable order is one that is defective or irregular, whereas a void order is one

entered by a court without the jurisdiction to enter it. City of Parma v. Hudgeons,

,

(8th Dist. 1979); State v. Louden, 2d Dist. Champaign No.

97-CA-05,

, *2 (Oct. 24, 1997). For the reasons discussed above, the

alleged problems with Cline’s indictments did not deprive the trial court of subject-matter

jurisdiction over his case or the authority to act.

{¶ 13} Further, we have held that “the sufficiency of the indictment is not a matter

for post-conviction relief; and * * * even if it were, the doctrine of res judicata would 8

preclude such relief. ‘Postconviction relief is available only for errors based upon facts and

evidence (dehors) outside the record.’ State v. Rodriguez (1989),

,

. Errors or deficiencies in an indictment are not outside the record;

therefore, they can only be attacked on direct appeal. Midling v. Perrini (1968),

,

. It follows that a court may apply the doctrine of res

judicata to bar a petition for post-conviction relief if it is based upon a claim that the

indictment is insufficient or defective, since this claim would not require the use or

consideration of matters outside the original record. State v. Perry, [(1967),

,

], supra, at paragraph nine of the syllabus.” State v. Grimm, 2d Dist.

Miami Nos. 96-CA-37 and 96-CA-38,

, * 2-3 (Apr. 25, 1997). Thus, the

trial court did not err in denying Cline’s petition on this basis that the sufficiency of the

indictments should have been raised in prior proceedings.

{¶ 14} We note that Cline repeatedly asserts that the State cannot prove that the

foreman signed a completed document, that the indictments originated in the prosecutor’s

office, or otherwise prove the authenticity of the indictments. However, in a petition for

postconviction relief, the petitioner, Cline, bears the burden of proof. State v. Aldridge,

,

(2d Dist. 1997). Cline has presented no

evidence to support his speculation and “hypotheticals” about the circumstances surrounding

the execution of the indictments. In the absence of such evidence, we will not presume that

his indictments were the product of a conspiracy on the part of the foreman, prosecutor,

and/or others. Based on our review of the record, the indictments appear to be properly

signed, and Cline has presented no evidence of the subterfuge suggested in his brief. 9

{¶ 15} Finally, we note that, in a supplemental letter to this court filed on

September 12, 2014, Cline alleges irregularities in that 1) the case number did not appear on

every page of the indictments, and 2) the prosecutor’s signature did not appear under each

count of the indictments. He suggests that the indictments are not authentic, because

authentic documents created by the State of Ohio would be “identically created” and

“accurate,” which, he believes, the indictments in his case are not. He also infers

misconduct from the facts that multiple grand juries were involved in his case, as counts

were added, and that the same case number was used throughout the proceedings,

notwithstanding the multiple indictments.

{¶ 16} Cline has not cited any authority for his assertions that inclusion of the case

number on each page of an indictment or of the signature of the prosecutor under each count

is required, and we are aware of none. Although Crim.R. 7 sets forth the basic

requirements for an indictment, there is no requirement that multiple indictments in a

particular case or indictments in different cases be “identically created”; minor variations in

the formatting of such documents do not call into question their authenticity. Moreover,

where counts are added to a case over time, the involvement of more than one grand jury

and the addition of new counts under an existing case number are neither unusual nor

suspicious.

{¶ 17} For the forgoing reasons, Cline’s “motion” or petition to vacate his

conviction was properly denied.

{¶ 18} Cline’s assignments of error are overruled.

{¶ 19} The judgment of the trial court will be affirmed. 10

..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Jane A. Napier James M. Cline Hon. David C. Faulkner, Visiting Judge