COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70407 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LESLIE MORGAN : : PER CURIAM Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 5, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-214140 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. LESLIE MORGAN, PRO SE CUYAHOGA COUNTY PROSECUTOR Lorain Correctional Institution BY: L CHRISTOPHER FREY, ESQ. 2075 South Avon Belden Road The Justice Center Grafton, Ohio 44044 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This accelerated appeal is presented for the Court's review pursuant to App.R. 11.1 and Loc.App.R. 25. In the fourth appeal to this Court stemming from his conviction for complicity in aggravated murder with a gun specification, appellant appeals from the trial court's denial of his Civ.R. 60(B) motion for relief from judgment based upon lack of subject matter jurisdiction. Appellant asserts the following assignment of error. I THE TRIAL COURT ABUSED ITS DISCRETION, A DISCRETION THAT COURT DID NOT HAVE, WHEN DENYING APPELLANT'S CIV. R. 60(B) MOTION WITHOUT HOLDING AN EVIDENTIARY HEARING, WHERE THE MOTION SET FORTH A MERITORIOUS DEFENSE WHERE THE COURT POSSESSED THE INHERENT POWER TO VACATE A VOID JUDGMENT WHEN THE INDICTMENT IS DEFECTIVE DEPRIVING THE TRIAL COURT OF SUBJECT MATTER JURISDICTION AND POWER TO HEAR IN VIOLATION OF 10, ARTICLE I, OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. Appellant asserts that he was entitled to an evidentiary hearing on his Civ.R. 60(B) motion to vacate the judgment of conviction. Appellant further asserts that his motion set forth a valid argument that his conviction was void for lack of subject matter jurisdiction and, therefore, should have been granted. Appellant bases his assertion of lack of jurisdiction on the allegation that the indictment did not contain the element of the offense which specifies the jurisdiction in which the crime took place. Appellant's assertions are without merit. - 3 - First, we note that a Civ.R. 60(B) motion to vacate is not the proper form in which to assert lack of jurisdiction in a post- conviction criminal proceeding. The proper motion in which to assert a claim of lack of jurisdiction would have been under the post-conviction relief statute, R.C. 2953.21. Even if appellant had brought this appeal from the denial of post-conviction relief, the appeal would not stand. Appellant claims that the indictment was insufficient because it lacked the element specifying the jurisdiction in which the crime took place. This claim is wholly unsupported by the record. R.C. 2941.03 states in relevant part: An indictment or information is sufficient if it can be understood therefrom: * * * (D) That an offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein; * * * The indictment served upon appellant for complicity to commit aggravated murder with a gun specification read as follows: The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, in the name and by the authority of the State of Ohio, do find and present, that the above named Defendant(s), on or about the date of the offense set forth above, in the County of Cuyahoga, unlawfully and purposely did purposely solicit or procure James Kusinko and/or Denise Wahl and/or Leslie Morgan to commit a violation of Section 2903.01 of the Revised Code and/or aid or abet each other in committing a violation of Section 2903.01 of the Revised Code and/or conspired with each other to commit the offense in violation of Section 2903.01 of the Revised Code, to-wit: with prior calculation and design, caused the death of another, to- wit: Kenneth Wahl. - 4 - The trial court properly found that the above quoted indictment sufficiently met the requirements of R.C. 2941.03. Appellant was not entitled to a hearing on his motion for relief from his conviction where he failed to set forth grounds which could have been proven true and would have justified relief. See CompuServe, Inc. v. Trionfo (1993), 91 Ohio App.3d 157. Appellant's assignment of error is overruled. The trial court's denial of appellant's motion is affirmed. - 5 - It is ordered that appellee recover of appellant its 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. __________________________________ JAMES D. SWEENEY, PRESIDING JUDGE __________________________________ ANN DYKE, JUDGE __________________________________ JOHN T. PATTON, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .