State v. Young

[Cite as State v. Young, 

.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                             No. 108790
                 v.                              :

GEORGE YOUNG,                                    :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: February 20, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-12-566461-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Frank Romeo Zeleznikar, Assistant
                 Prosecuting Attorney, for appellee.

                 George R. Young, pro se.


LARRY A. JONES, SR., P.J.:

                   Defendant-appellant, George Young (“Young”), appeals the trial

court’s denial of his motion for arrest of judgment. We affirm.

                   In 2012, Young was charged with six counts of felonious assault and

one count of discharging a firearm into a habitation. All counts had one-, three-, and
five-year firearm specifications. Young was convicted by a jury of all counts and

specifications and sentenced to 32 years in prison.          This court affirmed his

conviction on appeal and denied his application to reopen his appeal. State v.

Young, 8th Dist. Cuyahoga No. 99752, 

, and State v. Young, 8th

Dist. Cuyahoga No. 99752, 

, respectively.

                 In 2019, Young filed a motion titled “Motion for Arrest of Judgment”

challenging the court’s jurisdiction and the original indictment under Crim.R. 34.

The trial court denied Young’s motion; it is from this decision that Young filed his

pro se appeal.

                 Young raises three assignments of error, which we combine for

review:

      I.     The trial court erred in denying appellant’s motion for arrest of
             judgment when the complaint fails to contain the necessary
             mens rea element pursuant to Crim.R. 3.

      II.    Appellant was denied due process of law as guaranteed by
             Section 10, Article I, of the Ohio/United States Constitution
             when he was not adequately notified of the true nature and
             cause of the accusation against him pursuant to Crim.R. 3, and
             Crim.R. 5(A)(1).

      III.   Appellant was denied effective assistance of counsel as
             guaranteed by Section 10, Article I, of the Ohio/United States
             Constitution and the Sixth and Fourteenth Amendments.

                 Young challenges the sufficiency and constitutionality of his original

indictment and the jurisdiction of the trial court under Crim.R. 34. He also claims

he was denied effective assistance of trial counsel.
               Young’s claims are barred by res judicata. Under the doctrine of res

judicata, “[a] valid, final judgment rendered upon the merits bars all subsequent

actions based upon any claim arising out of the transaction or occurrence that was

the subject matter of the previous action.” State v. Patrick, 8th Dist. Cuyahoga No.

99418, 

, citing Grava v. Parkman Twp., 

, 

 (1995), syllabus. The purpose of res judicata is to promote the principle

of finality of judgments by requiring parties to present every ground for relief in the

first action. State v. Sneed, 8th Dist. Cuyahoga No. 84964, 

,

citing Natl. Amusements, Inc. v. Springdale, 

, 

(1987). Res judicata prevents repeated attacks on a final judgment and applies to

issues that were or might have been previously litigated. Sneed at 

               Pursuant to Crim.R. 12(C)(2), “[d]efenses and objections based on

defects in the indictment” must be raised before trial. State v. Szidik, 8th Dist.

Cuyahoga No. 95644, 

. The “failure to timely object to the

allegedly defective indictment constitutes a waiver of the issues involved.” Szidik at

 citing State v. Biros, 

, 

 (1997). Any claim

Young made with regard to his indictment is further barred by res judicata because

Young filed a similar motion challenging his indictment and the court’s jurisdiction

in July 2015; the trial court denied his motion at that time. Young did not appeal

the trial court’s denial. Young’s new motion merely rephrases issues previously

raised and the facts alleged in the new motion were available to Young at the time

he filed the earlier motion. “Adverse rulings by the trial court in response to the
repeated filings of substantively identical motions in no way constitutes a legitimate

legal basis for a continuation of [a] properly concluded case.” State v. Cody, 8th

Dist. Cuyahoga Nos. 107595, 107607, and 107664, 

, quoting

State v. Hill, 6th Dist. Lucas No. L-16-1086, 

. Thus, any

attempt by Young to relitigate the same issues is barred.

                Additionally, we note that Young made his motion for arrest from

judgment pursuant to Crim.R. 34. Crim.R. 34 provides:

       The court on motion of the defendant shall arrest judgment if the
       indictment, information, or complaint does not charge an offense or
       if the court was without jurisdiction of the offense charged. The
       motion shall be made within fourteen days after verdict, or finding of
       guilty, or after plea of guilty or no contest, or within such further time
       as the court may fix during the fourteen day period.

                Crim.R. 34 plainly states that a defendant has 14 days after a verdict

is rendered in which to file a motion, unless the court grants a continuance of that

time. Young filed his motion approximately six years after the jury returned its

guilty verdict; therefore, his motion was untimely. See State v. Pillow, 2d Dist.

Greene No. 2010-CA-71, 

 (holding that the appellant’s motions

did not comply with the time requirements in Crim.R. 34 when they were filed nearly

three years after trial).

                Young’s claim that trial counsel was ineffective is likewise barred by

res judicata. Young raised an ineffective assistance of counsel claim on direct appeal

and this court found his claim to be without merit. See Young, 8th Dist. Cuyahoga

No. 99752, 

. Here, Young is claiming that his counsel was
ineffective for failing to file a timely motion for arrest from judgment. That specific

claim could have been raised on direct appeal; it was not. Review at this juncture is

prohibited under the doctrine of res judicata.

               Young’s claims are barred by res judicata and have no merit.

Accordingly, the assignments of error are overruled.

               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.

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

of the Rules of Appellate Procedure.



LARRY A. JONES, SR., PRESIDING JUDGE

RAYMOND C. HEADEN, J., and
MARY EILEEN KILBANE, J., CONCUR