[Cite as State v. Allen , 2020-Ohio-1151.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals Nos. L-19-1148 L-19-1149 Appellee Trial Court Nos. CR0199702184 v. CR0199702581 Ronald S. Allen, Jr. DECISION AND JUDGMENT Appellant Decided: March 27, 2020

* * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee. Ronald S. Allen, Jr., pro se.

* * * * * PIETRYKOWSKI, J. {¶ 1} In this consolidated, accelerated appeal, defendant-appellant, Ronald Allen, Jr., appeals the July 1, 2019 judgment of the Lucas County Cour t of Common Pleas which denied his “Motion Challenging Subject Matter Jurisdictio n.” For the reasons that follow, we affirm.2. {¶ 2} This case was first before this court over 20 years ago on dire ct appeal with appellant raising several arguments relating to pretrial, evide ntiary, and post-trial rulings and ineffective assistance of counsel; we affirmed appellant’s murder conviction and

sentence. State v. Allen , 6th Dist. Lucas No. L-97-1444, 1999 WL 146259 (Mar. 19, 1999). Since then, appellant has filed several pro se motions challenging his convictions.

See State v. Allen , 6th Dist. Lucas No. L-17-1225, 2018-Ohio-878, ¶ 4. {¶ 3} The history relevant to the assignment of error before us is as follows. Shortly after appellant was indicted in June 1997, he refused t o sign the remittal of disqualification form allowing Judge James Bates, husband of Lu cas County Prosecutor Julia Bates, to preside over his case. Judge Bates offered thi s option to criminal defendants to avoid any appearance of a conflict. The case was then transferred to Judge

James Jensen. {¶ 4} In February 2013, Judge Jensen took office in the Sixth Distric t Court of Appeals; shortly thereafter, appellant, pro se, filed the follo wing three motions in the trial court: 1) Motion for a Final Judgment; 2) Motion to be present at the imposition of sentence Crim.R. 43; and 3) Motion for (52B Plain Error Evident iary hearing requested). At the time the motions were filed, Judge Jensen’s seat remaine d vacant. On September 4, 2013, Judge Bates, as the administrative judge, de nied appellant’s motion for a final judgment. On August 14, 2013, Judge Bates initiall y granted appellant’s motion to be present at the imposition of sentence (resentencin g); on September 4, 2013, the court denied the motion as well as the Crim.R. 52(B) plain error motion. The court3. concluded that it improperly granted appellant’s motion for res entencing “not knowing the extent of the case and former rulings of the prior judge as well as the extensive contact with the court of appeals.” The court further conclude d that the subjects of appellant’s motion were barred by res judicata. {¶ 5} On September 27, 2013, following the appointment of a new judge , appellant filed a “Motion of Re-sentencing of void illegal sent ence” arguing that Judge Bates erred in reversing his decision. The motion also pointed to the fact that in 1997, Judge Bates had originally recused himself and, thus, should no t have made any substantive, legal rulings in violation of his due process righ ts. The motion was summarily denied on October 8, 2013. Appellant commenced an ap peal to this court; it was dismissed as being untimely. {¶ 6} On March 8, 2019, appellant filed a motion challenging subject- matter jurisdiction again arguing that because Judge Bates recused him self in 1997, he lacked the authority and subject-matter jurisdiction to enter an order either granting or denying the motion filed in 2013. In response, the state argued that t he rulings made by Judge Bates, if in error, were voidable rather than void and that app ellant waived any challenge by failing to timely object. The state further argued that any error in Judge Bates’ September 4, 2013 ruling was harmless. {¶ 7} On July 1, 2019, the trial court denied appellant’s motion. Th e court first found that Judge Bates, as a common pleas court judge, had juri sdiction over the prosecution of felony offenses. Next, the court noted that as administrative judge, Judge4. Bates had the authority to “‘exercise control over the administ ration, docket, and calendar of the court * * *.’ Sup.R. 4.01(A).” Finally, the court conc luded that even assuming that the Rules of Superintendence did not give Judge Bates the authority to act, appellant waived any objection due to the six-year delay. Appellant then commenced the instant appeal. {¶ 8} Appellant, pro se, now raises the following assignment of error : Did Judge Bates have jurisdiction pursuant to Sup.R. 1(B) Sup.R . 4, Article IV sc.5(A) of the United State[s] Constitution once he had been

recused. {¶ 9} In appellant’s sole assignment of error he argues that Judge Ba tes’ illegal ruling was “structural error” and because his due process right s were violated he should be released. The Supreme Court of Ohio has addressed the issue of the effect of a lack of subject matter jurisdiction on a court’s judgment in a death-pe nalty case. Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992. The court explained the distinction between a court’s subject matter jurisdiction or po wer to hear a case and a court’s jurisdiction over a person. Id. at ¶ 11-12. “‘It is only when the trial court lacks subject matter jurisdiction that its judgment is void; lack of jurisdiction over the particular case merely renders the judgment voidable.’” Parker at ¶ 22 (Cook, J., dissenting), quoting [ State v. ] Swiger , 125 Ohio App.3d at 462, 708 N.E.2d 1033.” Id. at ¶ 12. See Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d

1040.5. {¶ 10} More akin to the present facts, in Tissue v. Tissue , 8th Dist. Cuyahoga No. 83708, 2004-Ohio-5968, the appellant challenged the trial court ’s authority to modify a spousal support order after the judge had recused herself. On appeal, the court first noted that “[t]he voluntary recusal of a judge from a case makes all judicial acts by that judge on that case voidable, subject to a timely objection.” Id. at ¶ 12. The court then concluded that because the parties were fully aware that the ju dge continued to preside over the case following her recusal and no objection was raised , the argument was

waived. Id. at ¶ 13-14. {¶ 11} In the present matter, Judge Bates’ practice of having criminal defendants sign a remittal of disqualification was voluntary as disqualifi cation is not required “solely because the judge is related to the prosecuting attorney of a l arge metropolitan area.” In re Disqualification of Bates , 134 Ohio St.3d 1249, 2012-Ohio-6342, 984 N.E.2d 17, ¶ 9, citing In re Corrigan , 47 Ohio St.3d 602, 603, 546 N.E.2d 925 (1989) and In re Disqualification of Carr , 105 Ohio St.3d 1233, 2004-Ohio-7357, 826 N.E.2d 294. ¶ 15, 17. Thus, we find that the disputed rulings were voidable, not void, and were subject to

waiver. {¶ 12} Reviewing the history of the 2013 rulings, we find that while a ppellant did address the issue of Judge Bates’ jurisdiction at that time, he failed to pursue the issue through motion and he also failed to timely file an appeal in t he matter. Appellant then waited six years to raise the issue by filing his motion challe nging subject-matter jurisdiction. Based on the foregoing, we conclude that appella nt waived his challenge to6. the issue and, alternatively, the issue is barred by res judica ta. Appellant’s assignment of

error is not well-taken. {¶ 13} On consideration whereof, we find that appellant was not prejud iced or prevented from having a fair proceeding and the judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal. Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Thomas J. Osowik, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.