The Akron Legal News

Murder appeal rejected because it was filed 20 years after conviction

ANNIE YAMSON
Special to the Legal News
Published: April 2, 2014

The 9th District Court of Appeals recently ruled that a defendant’s petition for postconviction relief was untimely when it found that he filed it 20 years after his direct appeal.

The defendant, Leo Caldwell, was indicted in 1990 on charges of aggravated murder, two counts of attempted aggravated murder and four counts of having a weapon under disability.

The appellate court’s case summary noted that the copy of the first indictment in the record was not signed by the grand jury foreperson.

The case proceeded to a jury trial in the Summit County Court of Common Pleas where Caldwell was found guilty of aggravated murder, two counts of having a weapon under disability and one count of attempted aggravated murder.

The convictions were affirmed upon direct appeal and the court heard nothing from Caldwell until he filed a motion to dismiss or vacate his sentence in 2013.

According to him, the trial court lacked subject matter jurisdiction because the indictment was not signed, but the Summit County court denied the motion on the basis that it was untimely filed.

In his sole assignment of error upon appeal, Caldwell maintained that the trial court lacked jurisdiction and contended that it erred in construing his motion as a motion for postconviction relief.

The 9th District’s three-judge appellate panel disagreed.

In the opinion she wrote on behalf of the court of appeals, Presiding Judge Carla Moore cited a 1997 case in which the 9th District held that “a grand jury foreman’s failure to sign the indictment does not deprive the trial court of jurisdiction.”

“The question of the sufficiency of the indictment does not relate to the jurisdiction of the court to try appellant for the crime for which he was convicted,” the 1997 opinion in State v. Young read. “Appellant’s remedy, if any, is by way of appeal from the judgment of conviction.”

Accordingly, Judge Moore noted that Caldwell’s claim that the trial court lacked jurisdiction because of the absence of a signature on the indictment was without merit.

“However, as the trial court found Mr. Caldwell’s motion to be ‘untimely,’ it appeared that the trial court considered whether Mr. Caldwell’s motion could be successful if construed as a petition for postconviction relief,” wrote Judge Moore.

According to R.C. 2953.21, “where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief.”

The statute also states that such petitions must be filed no later than 180 days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of a judgment of conviction.

“An exception to the time limit exists if it can be shown both that the petitioner was unavoidably prevented from discover of the facts upon which the petitioner must rely to present the claim for relief,” wrote Judge Moore, “or, the United States Supreme Court recognized a new federal or state right that applies to persons in the petitioner’s situation and the petition asserts a claim based on that right.”

The appellate panel noted that more than 20 years elapsed between Caldwell’s direct appeal and his motion to vacate.

Construed as a petition for postconviction relief, the court of appeals ruled that it was in fact untimely and the trial court lacked authority to consider it.

The judgment of the Summit County court was subsequently affirmed with judges Eve Belfance and Jennifer Hensal concurring.

The case is cited State v. Caldwell, 2014-Ohio-1032.

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