State v. Anderson

• Decision Date: 30 July 2019
• Docket Number: Case No. 19-CA-9
• Parties: STATE OF OHIO Plaintiff-Appellee v. ERNEST ANDERSON Defendant-Appellant
• Court: Ohio Court of Appeals

2019 Ohio 3077

STATE OF OHIO Plaintiff-Appellee
v.
ERNEST ANDERSON Defendant-Appellant

Case No. 19-CA-9

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

July 30, 2019

JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.

OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court of Common Pleas, Case No. 18CV841R

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee

MAURA O'NEILL JAITE
Senior Assistant Attorney General
150 East Gay Street
Columbus, OH 43215

For Defendant-Appellant

ERNEST ANDERSON #688-244
Richland Correctiona Institution
Box 8107
Mansfield, OH 44905

Page 2

Gwin, P.J.

{¶1} Appellant Ernest Anderson ["Anderson"] appeals the January 14, 2019 Judgment Entry of the Richland County Court of Common Pleas that dismissed his petition for a writ of habeas corpus.

Facts and Procedural History

{¶2} Anderson was arrested on August 1, 2012, as law enforcement officers executed a search warrant issued by a judge of the Toledo Municipal Court. State v. Anderson, 6th Dist. Lucas No. L-15-1078, ¶2. Following his on-scene arrest, complaints were filed against Anderson in the Toledo Municipal Court, but were ultimately nolled. On January 29, 2013, Anderson was indicted by a Lucas County Grand Jury on charges of possession of cocaine, in violation of R.C. 2925.11(A) and (C)(4)(c), trafficking in cocaine, in violation of R.C. 2925.03(A)(2) and (C)(4)(d), aggravated possession of drugs, in violation of R.C. 2925 .11(A) and (C)(1)(b), aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(2) and (C)(1)(c), trafficking in marijuana, in violation of R.C. 2925.03(A)(2) and (C)(3)(b), and tampering with evidence, in violation of R.C. 2921.12(A)(1) and (B). A jury found Anderson guilty of all counts, and in a judgment entry journalized on August 12, 2013, the trial court sentenced Anderson to an aggregate prison term of eight years and imposed fines totaling $25,000. Anderson elected not to file an appeal.

{¶3} Anderson did, however, file various post-conviction motions. For example, he filed a "petition for reimbursement," a "jurisdictional challenge" based on the U.C.C., and a petition arguing he was a Moorish National and thus was not subject to the state

Page 3

government's jurisdiction. These motions were all denied. State v. Anderson, 6th Dist. Lucas No. l-18-1003, 2018-Ohio-3300, ¶3.

{¶4} On October 18, 2013, while Anderson was imprisoned in Marion County, Anderson filed a R.C. Chapter 2725 petition for a writ of habeas corpus under Marion County Common Pleas Court Case No. 2013 CV 0635, Ernest Anderson #A688-244 v. Neil Turner, Warden, et al. On October 30, 2013, the prior habeas trial court sua sponte dismissed Anderson's habeas petition for failure to state a cause of action upon which relief may be granted, citing Wells v. Hudson, 113 Ohio St.3d 308, 2007-Ohio-1955, 865 N.E.2d 46. The Third District Court of Appeals affirmed the dismissal on direct appeal. Anderson v. Turner, 3rd Dist. Marion No. 9-13- 68, (Apr. 14, 2014). See, Exhibit B attached to Respondent's Civ.R.12 (B)(6) Motion to Dismiss and/or Summary Judgment Motion, filed Dec. 26, 2018. [Docket Number 9].

{¶5} On December 4, 2014, approximately 16 months after his sentencing entry was journalized, Anderson filed a petition for post-conviction relief. The trial court denied Anderson's petition, holding that it was untimely filed and that his claims were barred by the doctrine of res judicata. State v. Anderson, 6th Dist. Lucas No. L-15-1078, ¶3. The Court of Appeals affirmed the trial court's decision. Anderson, ¶12.

{¶6} On June 5, 2014, the Petitioner filed a writ of habeas corpus with the United States Supreme Court in case 14-5975. It was denied on October 6, 2014. In re Ernest M. Anderson, 135 S.Ct. 310, 190 L.Ed.2d 239, 83 USLW 3195(Oct. 6, 2014).

{¶7} Anderson filed a second petition for habeas in the Marion County Common Pleas Court on January 19, 2016. It was dismissed on May 2, 2016, and he

Page 4

appealed it to the Third District Court of Appeal on May 3, 2016 in case number 9-16-027. The appeal was dismissed on July 8, 2016. See, Judgment Entry of Dismissal of Habeas Corpus, filed Jan. 14, 2019 at 2. [Docket Number 11].

{¶8} On November 30, 2018, Anderson filed a petition for a writ of habeas corpus. On December 26, 2018, the Office of the Ohio Attorney General filed a motion to dismiss and/or motion for summary judgment. Anderson filed a reply on January 7, 2019. Anderson claimed that the trial court lacked subject-matter jurisdiction, thereby rendering his convictions void. He bases this claim on the Ohio Supreme Court's decision in State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, where the court ruled that the Toledo Municipal Court's written checklist to its deputy clerks for evaluating requests for arrest warrants failed to instruct that they make a finding of probable cause before issuing an arrest warrant. Accordingly, the Ohio Supreme Court found the misdemeanor arrest warrants invalid.

{¶9} By Judgment Entry filed January 14, 2019, the trial court dismissed Anderson's petition for a writ of habeas corpus. The trial court found the petition was barred by res judicata. The trial court further found that the trial court's jurisdiction was properly invoked by a valid indictment.

Assignments of Error

{¶10} Anderson raises two assignments of error,

{¶11} "I. THE TRIAL COURT ABUSED ITS DISCRETION TO DISMISS PETITIONER'S PETITION BASED UPON RESPONDENT'S DECEMBER 26, 2018 MOTION TO DISMISS OR MOTION FOR SUMMARY JUDGMENT. PURSUANT CIV.R.56(C); CIV.R.1(A), HABEAS CORPUS PROCEEDINGS IS A SPECIAL STATUTORY PROCEEDING WHEREIN, CIV.R.56(C) CONFLICT WITH R.C.2725,et seq;

{¶12} "II. THE TRIAL COURT ABUSED ITS DISCRETION BY LITIGATING A MATTER WITH WHICH THE TRIAL COURT DID NOT ENJOY SUBJECT MATTER JURISDICTION."

PRO SE LITIGANTS.

Page 5

{¶13} We understand that Anderson has filed this appeal pro se. Nevertheless, "like members of the bar, pro se litigants are required to comply with rules of practice and procedure." Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. We also understand that "an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).

{¶14} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, "a reviewing court cannot add matter to the record before it that was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978)." It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in...