[Cite as State v. Jensen , 2020-Ohio-1411.]

COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : ANDREW JENSEN : Case No. 19 AP 0004 : Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Morgan County Court of Common Pleas, Case No. 18-CR-0017

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 9, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

DAVE YOST WILLIAM L. BURTON Ohio Attorney General DONALD W. BURTON By: LINDA MAJESKA POWERS 119 Maple Street 615 W. Superior Ave., 11th Fl. Marietta, Ohio 45750 Cleveland, Ohio 44113

JANNA C. WOODBURN Assistant Prosecuting Attorney 19 East Main Street McConnelsville, Ohio 43756-1125

MARK HOWDYSHELL Prosecuting Attorney 19 East Main Street McConnelsville, Ohio 43756-1125Morgan County, Case No. 19 CA 0004 2

Baldwin, J. {¶1} Andrew Jensen appeals the sentence imposed by the Morgan County Court of Common Pleas claiming the trial court lacked subject matter jurisdiction to impose the sentence and that the trial court erred by not ruling that witn ess Gary Foster was not competent to testify, violating his right to prepare a defense. Appellee is the State of

Ohio.

STATEMENT OF FACTS AND THE CASE {¶2} After exchanging several pleadings disputing various legal issu es and an attempt to solicit the aide of the Supreme Court of Ohio, Andre w Jensen changed his plea to guilty and admitted the facts alleged in the indictment. He was sentenced to eight and one half years in prison, ordered to pay restitution and to pay the costs of prosecution, all of which were part of a negotiated plea. He now contends that the trial court erred in sentencing him as it did not have jurisdiction to do so, and th at it erred by failing to find a potential witness not competent to testify, violating his const itutional right to prepare his

defense. {¶3} On May 11, 2018, the Morgan County Grand Jury issued a twenty-n ine count indictment against Jensen, asserting various fraudulent a nd theft offenses. The indictment’s introductory paragraph stated that Jensen committe d the offenses "while in Morgan County, Ohio, or another county whereby venue is properl y placed in Morgan County, Ohio.” Each count of the indictment referenced the pert inent Revised Code section allegedly violated and the relevant language of the sta tute, the alleged date of the offense and a reference to the general allegation that the offe nse took place in Morgan County.Morgan County, Case No. 19 CA 0004 3

{¶4} Jensen was arrested in Clark County, Nevada, extradited to Ohio and held on a $500,000.00 bond. He requested that his bond be reduced, and the trial court denied the request. (Journal Entry, July 27, 2018, Docket # 8). Jense n filed a motion to dismiss all counts contending that the court did not have jurisdiction to proceed. (Motion to Dismiss and Request for Hearing, October 11, 2018, Docket # 16) . Jensen filed a Motion requesting disclosure of the grand jury proceedings, alleging t hat the prosecutor misstated the law regarding jurisdiction when addressing the gr and jury and that the indictments were without probable cause or a basis in law. (Mot ion for the Grand Jury Record, December 19, 2018, Docket #26). The trial judge recuse d himself on December 20, 2018 without ruling on the motions and requested that the S upreme Court of Ohio appoint a new judge. (Journal Entry: Order of Recusal, December 20, 2018, Docket # 27). Judge Michael Ward was appointed to hear the case with an effec tive date of December 24, 2018. (Certificate of Assignment, January 7, 2019, Docket # 32). {¶5} Appellee opposed Jensen's motions and a motion hearing was sche duled for January 29, 2019. The trial court conducted a pretrial on January 15, 2019 and heard oral argument on the motion for the grand jury record and the m otion to dismiss, with the latter argument limited to whether Jensen was entitled to an ev identiary hearing on January 29, 2019. The trial court granted Jensen leave to file a post hearing memorandum regarding the request for grand jury transcript, and the appellee was permitted to respond. Both parties submitted pleadings in supp ort of their position on disclosure of the grand jury proceedings. {¶6} The trial court denied the motion to dismiss and the motion for disclosure of the grand jury proceedings. The trial court found the motion to disclose the grand juryMorgan County, Case No. 19 CA 0004 4

proceedings premature, and noted that it may be renewed at tria l but that the precedent did not support disclosure for the purposes intended by Jensen. (Entry Denying Motion for Grand Jury Transcript, February 11, 2019, p. 2, Docket # 45 ). The trial court also found the motion to dismiss premature and that the court was li mited to "determining whether the language in the charging document alleges an offens e." (Entry on Defendant's Motion to Dismiss, February 11, 2019, p. 2, Docket # 46). The trial court found that Jensen’s motion to dismiss would be more properly ad dressed in a Crim.R. 29 Motion at trial. The trial court concluded its entry by outlini ng the issues it believed may arise in such a motion by referring to the indictment and the a rguments of counsel and invited the parties to submit pre-trial briefs on or before Apr il 1 for the May 13, 2019 trial. {¶7} Jensen then filed a motion to sever counts, a motion to suppres s documents and records, and a motion to dismiss for selective prosecution. (February 15, 2019, Docket # 47, 48, 49). Appellee opposed the motions and the tria l court denied all three on March 11, 2019. (March 11, 2019 Entries, Docket # 56, 57, 58 ). Jensen filed an Affidavit for Disqualification with the Supreme Court of Ohio o n March 12, 2019 alleging that the trial court judge had a "fixed anticipatory judgment o f major issues in this case," expressed "blatant favoritism toward the prosecution" and " bia s toward the defendant" and refused to "abide by the Rules of Professional Conduct and Judicial Code of Conduct." (Affidavit for Disqualification, March 15, 2019, p. 1 5, Docket #59). The Supreme Court of Ohio denied the affidavit of disqualification, concluding that a "judge is presumed to follow the law and not to be biased, and the appear ance of bias must be compelling to overcome these presumptions. *** Those presumptio ns have not beenMorgan County, Case No. 19 CA 0004 5

overcome in this case." (Judgment Entry and Decision, issued Ap ril 3, 2019, filed with the trial court April 9, 2019, p. 3, Docket #63). {¶8} The appellee filed a motion to amend the indictment, alleging t hat the amendment clarified the charges and does not change the name or identity of the crimes charged. Appellee contended that the amendments were offered t o accomplish these goals: 1. Clarify the Telecommunication Fraud offense alleged in Count 1. 2. Clarify the dates of offense alleged. 3. Make a stylistic change to insert "within Morgan County, Ohi o or another county whereby venue is properly placed in Morgan Count y, Ohio" within the language of each count, instead of having all the co unts relate back to the language contained on page 1 of the indictment (whi ch states that each offense occurred "while in Morgan County, Ohio or ano ther county whereby venue is properly placed in Morgan County, Ohio"). 4. Clarify the value of the property taken in each count. 5. Clarify the "transaction" alleged in the Money Laundering of fense alleged in Count 21. 6. Clarify the Theft offense alleged in Count 24. {¶9} The amendment also alerted the court that Counts 3-10 and 29 wo uld be dismissed by separate entry. (Motion to Amend Indictment, March 22, 2019, p. 1-2, Docket #62).

-Morgan County, Case No. 19 CA 0004 6

{¶10} The record does not contain a pleading from Jensen opposing the Motion to Amend the Indictment, but he did file a supplement to his mo tion to suppress and a motion for a discovery order. (Motions, April 16, 2019, Docket # 67, 68). {¶11} The trial court granted the motion to amend the indictment and dismiss several counts, allowed Jensen until April 23, 2019 to suppleme nt his motion for discovery and ordered that Jensen supplement his motion to suppress with specificity as to Exhibit A attached to his April 16, 2019 supplement by that same date. (Journal Entry, April 22, 2019, Docket # 71). {¶12} Jensen filed a motion in limine regarding the competency of Gar y Foster (Motion in Limine to Disallow Gary Foster from Testifying Due t o Incompetence and Request for Hearing, April 25, 2019, Docket #72). and appellee opposed the motion. On the date the motion was filed, the trial court dismissed Jensen 's motion for discovery and set a hearing date of May 1, 2019 for Jensen's motion to suppre ss documents and Motion in Limine regarding Gary Foster's Competency. At that hearing t he trial court denied the motion to suppress and "reserved ruling" on Mr. Foster's compet ency. The trial court invited the parties to file supplemental memoranda on that issu e on or before May 6, 2019 as well as case law and memoranda regarding the hypothetical qu estion regarding theft by deception committed in Ohio when the proceeds were expended in another state, specifically addressing the jurisdiction of the court. The par ties filed pleadings on both

issues. {¶13} Jensen requested a continuance of the trial on May 8, 2019, app ellee opposed the motion, and the motion was denied on May 8, 2019 du ring a phone conference. (Journal Entry, May 9, 2019, Docket # 88). Jensen filed a second motion toMorgan County, Case No. 19 CA 0004 7

continue on May 10, 2019 and a supplement to that motion on May 11, 2019. That motion was denied. Jensen filed a complaint for writ of prohibition a nd a motion for emergency stay with the Supreme Court of Ohio on May 13, 2019. Ultimatel y, on July 24, 2019 the Supreme Court of Ohio dismissed both matters upon consideration of the trial judge's motion to dismiss and sua sponte for failure to state a claim i n prohibition. The emergency stay was denied as moot as the trial had been resolved by a gui lty plea. {¶14} On the second day of trial, May 14, 2019, Jensen withdrew his n ot guilty plea, expressly waived his right to a jury trial and entered a guilty plea to all pending charges. His written guilty plea is patterned after the indict ment and contains a comprehensive description of each charge, including the date of the offense and that the offense occurred "within Morgan County, Ohio or another county whereby venue is properly placed in Morgan County, Ohio ***." Jensen also acknow ledged that by the advice of competent counsel, he "knowingly, intelligently and v oluntarily agree[d] to the factual basis as stipulated on the record in court and assert[e d] that it is true and accurate as it relates to my plea of guilty for" all of the counts in th e amended indictment. (Plea of Guilty, May 14, 2019, p. 13, Docket # 97). {¶15} On June 24, 2019, the Court imposed an eight year and six month prison term, gave Jensen credit for time served of 361 days, ordered J ensen to pay court costs, prosecution costs and reimbursement of indigent counsel fee, an d ordered him to pay restitution totaling $610,006.00. {¶16} Jensen filed a notice of appeal and submitted two assignments o f error: {¶17} “I. THE TRIAL COURT ERRED, AND VIOLATED DUE PROCESS, WHEN

IT ENTERED CONVICTIONS AND SENTENCES FOR FOURTEEN COUNTS OFMorgan County, Case No. 19 CA 0004 8

TELECOMMUNICATIONS FRAUD, THEFT, AND MONEY LAUNDERING FOR WHICH IT DID NOT HAVE JURISDICTION. COUNTS 1, 2, 11, 12, 13, 14, 15, 16, 17, 18, 21, 24, 27, AND 28, AS THE TRIAL COURT LACKED JURISDICTION OVER THOSE A LLEGED

OFFENSES.” {¶18} “II. THE TRIAL COURT ERRED IN NOT RULING THAT GARY FOSTER, THE STATE'S MAIN WITNESS, WAS INCOMPETENT TO TESTIFY, AND IN DO ING

SO VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO PLAN A DEFENSE

. (SIXTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; SECTIONS 10 AND 16, ARTIC LE I, OHIO CONSTITUTION).”

STANDARD OF REVIEW {¶19} Jensen challenges the trial court's implicit finding that it ha d subject matter jurisdiction to proceed to judgment and impose a sentence in hi s first assignment of error. Questions regarding a trial court's jurisdiction present an iss ue of law. See, e.g., State v. Spezzalli , 2nd Dist., Clark App. No. 97-CA-0127, 1998 WL 771408 (Sept. 2 5, 1998) *2. An appellate court reviews such legal determinations de novo wi thout any deference to

the conclusion of the trial court. Dazey v. Pollock , 5th Dist. Stark No. 2006 CA 00064, 2006-Ohio-4850, ¶ 9 (Citations omitted). Accord Burns v. Daily (1996), 114 Ohio App.3d 693, 683 N.E.2d 1164 (The trial court's entry of a support orde r in this case implies that the court believed it possessed subject-matter jurisdiction. Th is court will review that legal determination de novo without any deference to the conclusion o f the trial court.). {¶20} In his second assignment of error, Jensen alleges the trial cou rt erred in failing to rule on a motion in limine to bar the testimony of a witness due to lack of competency. "We review a trial court's determination of a witn ess' competency under anMorgan County, Case No. 19 CA 0004 9

abuse of discretion standard. In demonstrating an abuse of disc retion, appellant must show more than error of law or judgment, he must show the trial court's attitude was unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144." State v. Graber, 95 N.E.3d 631, 638 (5th Dist.2003). However, Jensen's guilty plea has an impact on our analysis as "a guilty plea renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction i f factual guilt is validly

established.” State v. Fitzpatrick , 102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 78. We will first determine whether the error was waived by the guilty plea upon consideration of the second assignment.

ANALYSIS {¶21} In his first assignment of error, Jensen contends that "[b]ecau se jurisdiction cannot be established under R.C. 2901.11 for counts 1-2, 11-18, 21, 24, and 27-28, the trial court violated his due process rights when it convicted a nd sentenced him on those counts." “The trial court" he concludes "erred in entering judg ments of conviction on fourteen counts which were jurisdictionally barred from being p rosecuted in Ohio." Appellant's Brief, p. 30. {¶22} Jensen entered a guilty plea to the charges in the indictment a nd therefor waived any error committed by the trial court, with the excepti on of subject matter jurisdiction. “‘Jurisdiction’ means the courts' statutory or c onstitutional power to adjudicate the case. *** Because subject-matter jurisdiction go es to the power of the court to adjudicate the merits of a case, it can never be waived and may be challenged at any

time.” Pratts v. Hurley, 102 Ohio St.3d 81, 2004–Ohio–1980, ¶ 11 (Citations omitted.).Morgan County, Case No. 19 CA 0004 10

Consequently, we review the record to determine whether the tri al court had subject matter jurisdiction. {¶23} A court of common pleas has subject matter jurisdiction of crim inal cases pursuant to R.C. 2931.03 State v. Mitchell , 5th Dist. Guernsey No. 07–CA–17, 2008– Ohio–101, ¶ 32. A common pleas court has original jurisdiction in felony cases and its jurisdiction is invoked by the return of an indictment. Click v. Eckle, 174 Ohio St. 88, 89, 186 N.E.2d 731 (1962). Revised Code 2901.11(A) provides " A per son is subject to criminal prosecution and punish ment in this state if *** [t]he person commits an offense under the laws of this state, any element of which takes place in this state." {¶24} In the matter before us, the charges in the amended indictment contain an allegation that felony offenses occurred "within Morgan County, Ohio or another county whereby venue is properly placed in Morgan County, Ohio" or, in charges relating to Count one in which the aforementioned languages is contained, a reference to "in the county aforesaid." The indictments also contain a citation to the relevant code section, the date of the offense and the appropriate statutory language. {¶25} Jensen and his counsel executed a guilty plea that mimicked the language of the indictment stating that the offenses occurred “within Mo rgan County, Ohio or another county whereby venue is properly placed in Morgan Count y, Ohio." The Morgan County Court of Common Pleas therefore had subject-matter juris diction over appellant's

case. State v. Poissant, Fairfield No. 08 CA 7, 2009–Ohio–4235, ¶ 20, appeal not allowed, 123 Ohio St.3d 1510, 917 N.E.2d 812, 2009–Ohio–6210. {¶26} Jensen argues that the trial court lacked jurisdiction because the offenses did not occur within Morgan County or the State of Ohio, citing to motions exchanged byMorgan County, Case No. 19 CA 0004 11

the parties in the trial court. Jensen characterizes his argum ent as an assertion that the trial court lacked jurisdiction, but a more complete descriptio n of his assignment of error would be that he is attacking the factual basis of subject matt er jurisdiction relying upon motions filed and assertions made prior to his submission of a guilty plea. Jensen's argument, therefor, is that the trial court ignored material fa cts. {¶27} The fault in Jensen's argument is that "*** a plea of guilty, f rom an early period in the history of criminal procedure, both in England an d in the several states of the Union, has been regarded as an admission of every material fact well pleaded in the indictment, dispensing with the necessity of proving them, and authorizing the court to proceed to judgment." 4 Bl. Comm. 329; 1 Chit. Crim. Law, 429; Crow v. State, 6 Tex. 334; 1 Bish. Crim. Pr. 795. Craig v. State , 49 Ohio St. 415, 417–18, 30 N.E. 1120, 1121 (1892), Accord Rodriguez v. Sacks , 173 Ohio St. 456, 457, 184 N.E.2d 93, 94 (1962) (By pleading guilty petitioner admitted all the well pleaded materi al facts in the indictment and waived a trial.) The amended indictment contained a clear and e xpress allegation that the offenses occurred in Morgan County and Jensen's plea admitted t hat fact as well as the commission of the crimes described within every count. His guil ty plea waived any objection to the factual basis for the finding of guilt. State v. Strong , 6th Dist. Lucas No. L-18-1049, 2018-Ohio-5289, ¶¶ 13-15; Menna v. New York (1975), 423 U.S. 61,-63, 96 S.Ct. 241, 46 L.Ed.2d 195 fn. 2. Appellant's plea provides the necessary proof of the elements of the crime and sufficient evidence to support the co nviction. State v. Isbell, 12th Dist. Butler No. CA2003–06–152, 2004–Ohio–2300, ¶ 16 as qu oted in State v.

Ahmad , 5th Dist. Licking No. 17-CA-71, 2018-Ohio-181, ¶ 12. "A plea of guilty obviates the necessity of a trial and the presentation of evidence to es tablish the guilt of theMorgan County, Case No. 19 CA 0004 12

accused. No duty was imposed on the trial court to require or t o examine *** evidence to determine whether the evidence justified appellant's plea of gu ilty." McAuley v. Maxwell , 174 Ohio St. 567, 568–69, 190 N.E.2d 922 (1963). {¶28} The facts before the trial court, as admitted by the guilty ple a, established that the offenses occurred in Morgan County, Ohio or in another county such that venue in Morgan County would be proper. Venue would be properly plac ed in Morgan County under R.C. 2901.12 only if "the offense or any element of the o ffense was committed" in Morgan County, so that provision does not alter the conclusion that Jensen has agreed to facts that support the Morgan County Court of Common Pleas' subject matter jurisdiction. Further Jensen's plea waived objections to venue and personal jurisdiction. State v. McCartney, 55 Ohio App.3d 170, 563 N.E.2d 350, 351 (9th Dist. Summit 1988 ) as quoted in State v. Buchman , 5th Dist. Stark No. 2019CA00109, 2019-Ohio-4276, ¶ 13.

Accord State v. Santana, 6th Dist. Williams No. WM-14-002, 2015-Ohio-563, ¶¶ 8-10 (Appellant waived the personal jurisdiction issue by entering i nto his original plea of not guilty.). {¶29} We hold that the indictment was sufficient to establish subject matter jurisdiction in the Morgan County Court of Common Plea and that Jensen's guilty plea accepted the facts as stated in the indictment. State v. Thacker , 4th Dist. Lawrence No. 04CA5, 2004-Ohio-3978, ¶ 1. The motions, arguments and other re ferences to locations where some or all of any offense allegedly occurred were render ed irrelevant by Jensen's guilty plea. {¶30} Appellant's first assignment of error is overruled.Morgan County, Case No. 19 CA 0004 13

{¶31} Jensen asserts in his second assignment of error that the trial court erred by not ruling in his favor on a motion in limine to exclude the testimony of Gary Foster due to his incompetency as a witness. Jensen's plea of guilty waives any error regarding this motion. Further, the trial court’s ruling on that motion w ould not have an impact on Jensen’s ability to plan a defense, and, in the context of this case, the court's ruling is not a final appealable order subject to review. {¶32} Jensen filed a Motion in Limine to Disallow Gary Foster from Te stifying Due to Incompetence and Request for Hearing and within the motion d escribed what he described as Mr. Foster's inability "to correctly state matters which have come within his perception." (Motion in Limine, April 25, 2019, p.8, Docket # 7 2). The trial court issued some preliminary findings in an email to counsel and journalize d the email with an entry on May 1, 2019. The trial court heard argument regarding the m otion in limine on May 1, 2019 but reserved ruling and invited the parties to submit supp lemental memoranda on or before May 6, 2019. (Entry on May 1, 2019 Hearing, May 6, 20 19, p. 1, Docket #79). Both parties submitted supplemental memoranda on May 6, 2019, b ut the trial court had no need to rule on the issue because Jensen changed his plea to guilty. {¶33} Jensen cannot contest a pretrial evidentiary ruling after havin g entered a guilty plea. Such a plea waives any alleged error in the trial court's ruling on witness competency. A voluntary guilty plea waives nonjurisdictional d efects. Johnson v. Petrovsky ( C.A.8, 1980), 626 F.2d 72. State v. Brunner , 4th Dist. Ross No. 1654, 1991 WL 99669, *2 Thus, when a defendant enters a plea of guilty as a part of a plea bargain he waives all appealable errors, unless such errors are shown t o have precluded the defendant from entering a knowing and voluntary plea. State v. Kelley , 57 Ohio St.3d 127,Morgan County, Case No. 19 CA 0004 14

566 N.E.2d 658 (1991); State v. Barnett, 73 Ohio App.3d 244, 24 9, 596 N.E.2d 1101 (1991). See also, State v. Wotring, 11th Dist. Lake No. L-99-114, 2003-Ohio-326, at ¶ 22, appeal denied, 99 Ohio St.3d 1452, 790 N.E.2d 1217 (2003).The e ffect of a voluntary, knowing, and intelligent guilty plea is the waiver of any” “ind ependent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”

State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 117, q uoting State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 78 quoti ng

Tollett v. Henderson , 411 U.S. 258, 267, 93 S.Ct 1602, 36 L.Ed.2d 235 (1973). Jense n waived any argument he may have had regarding the ruling when h e entered a plea of guilty, admitting that he committed the crimes described in the indictment and making the decision regarding Foster’s competency and his testimony unnece ssary. {¶34} Even had the trial court ruled on the motion in Jensen’s favor: A decision denying or granting a motion in limine does not fina lly determine the admissibility of the evidence to which it is dire cted. Rather, it is a “‘tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment of the evidentiary issue. ’” The trial court is at liberty to change its ruling once the hearing or trial ha s begun. Therefore, finality does not attach when a motion in limine is decided and

those decisions are not final orders.

Henderson v. Henderson, 10th Dist. No. 02AP-200, 150 Ohio App.3d 339, 2002-Ohio6496, 780 N.E.2d 1072, ¶ 8 (Citations omitted.). {¶35} So, regardless of the trial court's decision, or absence of dec ision, Jensen's complaint that he was unable to properly prepare for trial with out knowing whether theMorgan County, Case No. 19 CA 0004 15

trial court would permit Foster's testimony is unsupportable as the state would still have the option to present the testimony and Jensen would still have to accept the risk that it would be allowed and prepare accordingly. {¶36} Appellant's second assignment of error is denied and the decisi on of the Morgan County Court of Common Pleas is affirmed.

By: Baldwin, J. Gwin, P.J. and Wise, John, J. concur.