COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71094 STATE OF OHIO : ACCELERATED CASE : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CLARENCE MALONE : : PER CURIAM Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-232497 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: RANDI OSTRY LeHOTY (#0042306) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: CLARENCE MALONE, pro se #A214-094 Lorain Correctional Institution 1075 South Avon Belden Road Grafton, Ohio 44044 - 2 - PER CURIAM: Defendant-appellant Clarence Malone ("appellant") appeals from the denial of his Civ.R. 60(B) motion to vacate. Appellant assigns the following error for review: THE TRIAL COURT ABUSED ITS DISCRETION, A DISCRETION THE 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 SEC. 10, ARTICLE I, OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. In 1989, appellant pled guilty to murder in violation of R.C. 2923.02. Appellant's conviction was upheld by this court in State v. Malone (Oct. 24, 1991), Cuyahoga App. No. 59218, unreported. In 1996, appellant filed a Civ.R. 60(B) motion for relief from judgment in which he argued the trial court had lacked subject matter jurisdiction. Appellant asserted the indictment was defective as it did not state the alleged offense was committed within the jurisdiction of the trial court. Appellant requested an evidentiary hearing. The trial court found the indictment to be sufficient and overruled appellant's motion without a hearing. In his assignment of error, appellant contends the trial court abused its discretion in denying appellant's Civ.R. 60(B) motion without holding a hearing. Appellant asserts his conviction is - 3 - void because the indictment did not give him notice of all of the elements of the offense charged as there was no allegation the charged offense was committed at some place within the jurisdiction of the court. The murder indictment in question stated: 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 did cause the death of Daniel Gilmore as a proximate result of committing a felony. A case directly on point was decided by this court in State v. Morgan (Sept. 5, 1996), Cuyahoga App. No. 70407, unreported, in which the same arguments were raised. This court stated that a Civ.R. 60(B) motion to vacate is not the proper form in which to assert lack of jurisdiction but that the argument should be advanced pursuant to a petition for post-conviction relief under R.C. 2953.21. Morgan also held an indictment stating an offense was committed in Cuyahoga County was sufficient to meet the requirements of R.C. 2941.03. Appellant's indictment stated the offense occurred in Cuyahoga County. As the location of the alleged offense was within the jurisdiction of the trial court, the indictment was sufficient. The trial court had subject matter jurisdiction to determine the case. Appellant's assignment of error lacks merit. - 4 - Judgment affirmed. - 5 - This cause is affirmed. 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA BLACKMON, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE LEO M. SPELLACY, JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for - 6 - review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(B). See, also S.Ct.Prac.R. II, Section 2(A)(1). .