[Cite as State v. Pitts,
2025-Ohio-3012.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Andrew J. King, P.J.
Plaintiff-Appellee : Hon. Kevin W. Popham, J.
: Hon. David M. Gormley, J.
-vs- :
:
MARCUS PITTS : Case No. CT2025-0045
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2023-0130
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 22, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD WELCH MARCUS PITTS, PRO SE
JOSEPH A. PALMER #815-940
27 North Fifth Street Southern Ohio Correctional Facility
#201 P.O. Box 45699
Zanesville, OH 43701 Lucasville, OH 45699
King, J.
{¶ 1} Defendant-Appellant, Marcus Pitts, appeals the April 14, 2025 journal entry
of the Court of Common Pleas of Muskingum County, Ohio, denying his second motion
to dismiss. Appellee is the State of Ohio. We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 23, 2023, the Muskingum County Grand Jury indicted Pitts on
one count of aggravated trafficking in drugs in violation of R.C. 2925.03, one count of
aggravated possession of drugs in violation of R.C. 2925.11, and two counts of having
weapons while under disability in violation of R.C. 2923.13. The indictment contained six
specifications.
{¶ 3} On April 27, 2023, Pitts pled guilty to the possession count with a major drug
offender specification and one of the weapons counts. The remaining counts and
specifications were dismissed. By entry filed May 1, 2023, the trial court sentenced Pitts
to an aggregate term of fourteen years, eleven of which are mandatory, to a maximum
indefinite nineteen and one-half years in prison. The trial court ordered the sentence to
be served consecutively to any possible sentence coming out of Morgan County.
{¶ 4} Pitts filed an appeal, contesting the consecutive service to a possible
Morgan County sentence. This court vacated that portion of the sentence, finding the trial
court did not have the authority "to order the instant sentence to be served consecutively
with a future potential term imposed by the Morgan County Court," and remanded the
matter for resentencing. State v. Pitts, 2024-Ohio-987, ¶ 39 (5th Dist.).
{¶ 5} By nunc pro tunc entry filed May 1, 2024, the trial court corrected the
sentence, striking the consecutive service to any time imposed out of Morgan County.
{¶ 6} On April 7, 2025, Pitts filed a motion to dismiss, claiming his indictment was
deficient because it was not signed by the grand jury foreperson and therefore, the trial
court lacked jurisdiction. By journal entry filed April 9, 2025, the trial court denied the
motion. This decision was subsequently affirmed on appeal (Case No. CT2025-0044).
State v. Pitts, 2025-Ohio-2703 (5th Dist.).
{¶ 7} On April 11, 2025, Pitts filed a second motion to dismiss, claiming his
indictment was unlawful because the grand jury panel consisted of nine persons instead
of fifteen in violation of R.C. 2939.02 and the indictment was signed by seven persons
instead of twelve in violation of R.C. 2939.20. By journal entry filed April 14, 2025, the
trial court denied the motion.
{¶ 8} Pitts filed an appeal with the following assignments of error:
I
{¶ 9} "THE TRIAL COURT ERRED BY NOT GRANTING MR. PITTS MOTION
TO DISMISS DUE TO THE STATE'S FAILURE [TO] STRICTLY COMPLY WITH THE
STATUTORY MANDATE OF OHIO REVISED CODE 2939.20 IN VIOLATION OF MR.
PITTS, 14TH AMENDMENT RIGHT TO DUE PROCESS."
II
{¶ 10} "THE STATE VIOLATED MR. PITTS 5TH AMENDMENT RIGHT TO
INDICTMENT."
III
{¶ 11} "THE TRIAL COURT ABUSED THEIR DISCRETION BY FAILING TO
TAKE JUDICIAL NOTICE OF THE FACTS AS REQUESTED BY APPELLANT AND
MANDATORY BY LAW."
I, II, III
{¶ 12} In his assignments of error, Pitts claims the trial court erred in denying his
motion to dismiss because his indictment was deficient and therefore, the trial court
lacked jurisdiction over his case. We disagree.
{¶ 13} The appellate brief in this case is identical to the appellate brief Pitts filed in
his other appeal, Case No. CT2025-0044. In this brief, Pitts argues the grand jury
foreperson failed to sign the indictment with the words "A True Bill" in violation of R.C.
2939.20 which we found to be contrary because the indictment did contain the grand jury
foreperson's signature under the words "A True Bill." Pitts, 2025-Ohio-2703, at ¶ 12 (5th
Dist.). Pitts did not include any argument on the number of grand jury panel members or
the number of grand jury signatures on the indictment which was the basis of his second
motion to dismiss, the denial of which is the subject of this appeal.
{¶ 14} R.C. 2939.02 states: "Grand juries shall consist of fifteen persons who
satisfy the qualifications of a juror specified in section 2313.17 of the Revised Code." R.C.
2939.20 states: "At least twelve of the grand jurors must concur in the finding of an
indictment." But Crim.R. 6(A) states: "The grand jury shall consist of nine members,
including the foreperson" plus a number of alternates. The Supreme Court of Ohio has
held: "The number of jurors on a grand jury does not affect a substantive right.
Accordingly, Crim.R. 6(A) controls the issue of how many grand jurors are needed to
issue an indictment. R.C. 2939.02 and 2939.20 are superseded insofar as they conflict
with this rule." State v. Brown, 38 Ohio St.3d 305 (1988), paragraph one of the syllabus,
following Wells v. Maxwell,
174 Ohio St. 198 (1963); accord State v.
Holmes, 2019-Ohio-
2485, ¶ 9-17 (3d Dist.). See, Ohio Const., art. IV, ¶ 5(B) ("The supreme court shall
prescribe rules governing practice and procedure in all courts of the state, which rules
shall not abridge, enlarge, or modify any substantive right"). The arguments that Pitts
made in his second motion to dismiss (but failed to make in his appellate brief) have no
merit.
{¶ 15} In addition, Pitts's arguments are barred by res judicata:
Under the doctrine of res judicata, a final judgment of conviction bars
the convicted defendant from raising and litigating in any proceeding, except
an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the
trial which resulted in that judgment of conviction or on an appeal from that
judgment.
State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. See also Grava
v. Parkman Township,
73 Ohio St.3d 379 (1995).
{¶ 16} Our colleagues from the Fourth District explained the following:
"The manner by which an accused is charged with a crime is
procedural rather than jurisdictional, and after a conviction for crimes
charged in an indictment, the judgment binds the defendant for the crime
for which he was convicted." Orr v. Mack, 83 Ohio St.3d 429, 430,
700
N.E.2d 590 (1998). In the case at bar, appellant challenges the manner by
which he was charged with the crimes. He has been convicted. That
judgment thus binds him for those crimes. Thus, appellant's claim that a
defect in the procedure by which he was indicted rendered the trial court
without jurisdiction is meritless. Consequently, he should have raised any
challenges to the indictment on direct appeal—not fourteen years later.
State v. Hatton, 2012-Ohio-2019, ¶ 11 (4th Dist.).
{¶ 17} Pitts could have challenged the lawfulness of his indictment in his direct
appeal when he challenged his consecutive sentence, but he failed to do so. Pitts never
objected to the indictment or raised the issue of an unlawful indictment until his second
motion to dismiss, almost one year after his resentencing.
{¶ 18} Upon review, we find the trial court did not err in denying Pitts's second
motion to dismiss.
{¶ 19} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By: King, P.J.
Popham, J. and
Gormley, J. concur.
