State v. Ashraf ( 2019 )

[Cite as State v. Ashraf, 2019-Ohio-1605.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2018-0085
WAQAR ASHRAF
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2014-0327
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 29, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX WAQAR ASHRAF
Muskingum County Prosecutor Noble Correctional Institute #A715-169
15708 McConnelsville Road
TAYLOR P. BENNINGTON Caldwell, Ohio 43724-8902
Assistant Prosecuting Attorney
27 North Fifth Street, PO Box 189
Zanesville, Ohio 43702-01889
Muskingum County, Case No. CT2018-0085 2
Hoffman, J.
{¶1} Defendant-appellant Waqar Ashraf appeals the December 5, 2018 Journal
Entry entered by the Muskingum County Court of Common Pleas, which denied his
Motion to Vacate Void Judgment. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On October 22, 2014, the Muskingum County Grand Jury indicted Appellant
on thirty-six counts of illegal use of food stamp benefits, in violation of R.C. 2913.46(B),
all felonies of the fifth degree; and thirteen counts of trafficking in drugs, in violation of
R.C. 2925.03(A)(1), felonies of the third, fourth, and fifth degrees. On March 2, 2015,
Appellant entered a guilty plea to 20 counts of illegal use of food stamp benefits; one
count of trafficking in drugs (oxycodone, percocet) with a school specification; one count
of trafficking in drugs (marijuana); one count of trafficking in drugs (oxycodone, oxycontin)
with a school specification; one count of trafficking in drugs (methamphetamine) with a
school specification; one count of trafficking in drugs (cocaine) with a school/juvenile
specification; and one count of trafficking in drugs (alprazolam) with a school
specification. The remaining 8 counts were dismissed. Following the completion of a pre-
sentence investigation, the trial court sentenced Appellant to an aggregate term of
incarceration of 71 months on April 17, 2015. Appellant did not appeal his sentence.
{¶3} Appellant filed a pro se petition for post-conviction relief on September 14,
2015. Therein, he argued his trial counsel failed to inform him he could face deportation
if he entered a guilty plea. Appellant explained, on June 22, 2015, the United States
Department of Homeland Security advised him an immigration detainer had been issued
1A Statement of the Facts underlying Appellant’s original convictions and sentence is not necessary to our
disposition of this Appeal.
Muskingum County, Case No. CT2018-0085 3
against him, and if he failed to demonstrate he was a legal permanent resident of the
United States, he would be deported to Pakistan. Via Judgment Entry filed September
25, 2015, the trial court denied Appellant's petition without conducting a hearing.
{¶4} Appellant appealed to this Court. Upon review, this Court reversed the trial
court's decision, finding the September 25, 2015 judgment entry denying Appellant's
petition was insufficient as it failed to comply with the requirements of R.C. 2953.21(G).
We remanded the matter to the trial court with instructions to render written findings of
fact and conclusions of law. See State v. Ashraf, 5th Dist. Muskingum No. CT2015–0052,
2015–Ohio–5323.
{¶5} Upon remand, the trial court appointed counsel for Appellant. On April 22,
2016, Appellant filed a motion to set aside plea, asserting he would not have entered his
guilty plea if he had known at the time his deportation was “certain and imminent” under
federal law. On April 25, 2016, the trial court conducted a hearing on Appellant's original
petition for post-conviction relief as well as his motion to set aside plea. Via Judgment
Entry filed June 7, 2016, the trial court denied Appellant's petition for post-conviction relief
as well as his motion to set aside plea.
{¶6} Appellant appealed the June 7, 2016 Judgment Entry to this Court, only
challenging the trial court's denial of his motion to set aside plea, maintaining he was
deprived of the effective assistance of trial counsel during the 2015 plea proceedings. We
affirmed the trial court's decision. State v. Ashraf, 5th Dist. Muskingum No. CT2016-0026,
2017 -Ohio- 4148.
{¶7} On November 26, 2018, Appellant filed a pro se motion to vacate void
judgment. The trial court denied the motion via Journal Entry filed December 5, 2018.
Muskingum County, Case No. CT2018-0085 4
{¶8} It is from this entry Appellant appeals, raising the following assignments of
error:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN
IT FAILED TO VACATE CONVICTIONS FOR VICTIMLESS
ALLEGATIONS.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN
IT FAILED TO VACATE THE SENTENCES FOR COUNTS 37, 39, 40, 41
& 48, AS APPELLANT WAS ONLY CHARGED AND CONVICTED OF
FIFTH-DEGREE VIOLATIONS.
I, II
{¶9} We elect to address Appellant’s two assignments of error together.
{¶10} Appellant pled guilty to 20 counts of illegal use of food stamps. “[B]y
pleading guilty, a defendant admits to committing the offense as charged.” State v.
Jordan, 12th Dist. Warren No. CA2014-04-051, 2015-Ohio-575. Simply stated, a guilty
plea is a complete admission of the defendant's guilt, and also waives “any deficiency in
the indictment.” State v. Barton, 108 Ohio St. 3d 402, 2006-Ohio-1324, ¶ 73.
{¶11} We find Appellant's argument the trial court should have vacated his
convictions because the crimes of which he was convicted were "victimless" is specious.
When food stamps are illegally used or obtained, the victim is the state of Ohio.
{¶12} Further, we find Appellant's first and second assignments of error are barred
by the doctrine of res judicata. State v. Perry, 10 Ohio St. 2d 175, 180, 226 N.E.2d 104
Muskingum County, Case No. CT2018-0085 5
(1967). The Perry Court explained:
Under the doctrine of res judicata, a final judgment of conviction bars
the convicted defendant from raising and litigating in any proceeding, except
an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the
trial which resulted in that judgment of conviction or on an appeal from that
judgment. Id.
{¶13} Appellant's arguments herein could have been raised on direct appeal from
the trial court's sentencing entry. Accordingly, we find res judicata applies. State v. Jones,
5th Dist. No. 12CA22, 2012–Ohio–4957, ¶ 23.
{¶14} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur