State v. Askew

[Cite as State v. Askew, 2015-Ohio-4125.]
COURT OF APPEALS
STARK 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. 2015CA00034
SERO DUVALL ASKEW
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2004CR0449
JUDGMENT: Affirmed in part and Reversed in part
DATE OF JUDGMENT ENTRY: September 30, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO, SERO DUVALL ASKEW, PRO SE
Prosecuting Attorney, Inmate No. A471-494
Stark County, Ohio Richland Correctional Institution
P.O. Box 8107
By: KATHLEEN O. TATARSKY Mansfield, Ohio 44901
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2015CA00034 2
Hoffman, J.
{¶1} Defendant-appellant Sero Duvall Askew appeals the February 13, 2015
Judgment Entry entered by the Stark County Court of Common Pleas. Plaintiff-appellee
is the state of Ohio.
STATEMENT OF THE CASE.1
{¶2} On July 30, 2004, Appellant entered a plea of no contest pursuant to a
negotiated plea deal to three counts of trafficking in cocaine and three counts of
possession of cocaine, together with a major drug offender specification.
{¶3} Via Judgment Entry of August 4, 2004, the trial court imposed an
aggregate prison term of fifteen years in prison, suspending Appellant's driver's license
for five years and a fine of $10,000. This Court affirmed Appellant's conviction and
sentence via Opinion and Judgment Entry in State v. Askew, Stark App. No. 2004-CA-
00275, 2005-Ohio--3194.
{¶4} On December 18, 2009, Appellant filed a motion to correct/revise the
sentencing journal entry to comply with Criminal Rule 32(C).
{¶5} On March 3, 2010, the trial court conducted a de novo sentencing hearing
at which time Appellant orally requested the trial court allow him to withdraw his plea.
The trial court denied Appellant's motion to withdraw plea. The trial court continued to
resentence Appellant pursuant to the direction of State v. Singleton, 124 Ohio St.3d
173, 2009-Ohio-6434. The trial court journalized the sentence via Judgment Entry of
March 23, 2010.
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Stark County, Case No. 2015CA00034 3
{¶6} On September 30, 2014, Appellant filed a motion to vacate his sentence,
challenging the imposition of sentence as being contrary to law and void. Also on
December 3, 2014, Appellant filed another motion to withdraw his no contest plea,
arguing ineffective assistance of counsel at sentencing.
{¶7} On January 22, 2015, the State filed a response to the motion to vacate
judgment of sentence and motion to withdraw no contest plea. The State's response
asked the trial court to declare Appellant a vexatious litigator.
{¶8} Via Judgment Entry of January 22, 2015, the trial court denied both
motions filed by Appellant and declared Appellant a vexatious litigator.
{¶9} Appellant appeals, assigning as error:
{¶10} "I. THE TRIAL COURT ABUSE [SIC] ITS DISCRETION WHEN IT
DENIED APPELLANT HIS FOURTEENTH AMENDMENT DUE PROCESS
PROTECTION BY FAILING TO CORRECT ITS IMPOSITION OF SENTENCE WHICH
IS CONTRARY TO LAW.
{¶11} "II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT'S CRIM.R. 32.1 MOTION TO WITHDRAW HIS NO CONTEST PLEA
WHERE TRIAL COUNSEL FAILED TO OBJECT TO A SENTENCE BASED UPON
ALLIED OFFENSES OF SIMILAR IMPORT IN VIOLATION OF STATE AND FEDERAL
DOUBLE JEOPARDY PROHIBITIONS.
{¶12} "III. THE TRIAL COURT IMPOSED A VOID SENTENCE WHEN IT
BASED ITS FACT-FINDINGS FOR A NON-MINIMUM PRISON TERM PURSUANT TO
R.C. 2929.14(B), WHICH WAS DECLARED UNCONSTITUTIONAL AND SEVERED BY
THE OHIO SUPREME COURT.
Stark County, Case No. 2015CA00034 4
{¶13} "IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT LABELED
APPELLANT A VEXATIOUS LITIGATOR PURSUANT TO O.R.C. §2323.52 WITHOUT
FILING A COMPLAINT."
I, II, III.
{¶14} Appellant's first three assigned errors challenge the trial court's denial of
Appellant's motions to vacate judgment of sentence and to withdraw his plea.
{¶15} Initially, we note, this Court's February 12, 2010 Judgment Entry finds the
trial court without authority to vacate Appellant's plea after affirming his convictions
herein. Our February 12, 2010 Opinion reads,
We need not analyze the merits of Appellant's argument as it is
clear the trial court is without jurisdiction to vacate Appellant's plea after
this Court has affirmed his conviction. See, State v. Special Prosecutors
v. Judges, Belmont County Court of Common Pleas (1978), 55 Ohio St.2d
94. The Ohio Supreme Court recently reaffirmed its holding in Special
Prosecutors in State v. Letterer, 126 Ohio St.3d 448, 2010-Ohio-3831.
Based on the foregoing authority, Appellant's first assignment of error is
overruled.
{¶16} Appellant was resentenced on March 3, 2010, pursuant to State v.
Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, to correct errors and deficiencies with
regard to notifications of post-release control. We find the arguments raised in
Appellant's first three assigned errors could have been raised or were raised on direct
appeal. Therefore, we find the arguments raised herein in Appellant's first, second and
third assigned errors are barred by the doctrine of res judicata.
Stark County, Case No. 2015CA00034 5
{¶17} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,
the Ohio Supreme Court established a two-step procedure for reviewing a felony
sentence. The first step is to “examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. Upon review of
Appellant's sentence, we find Appellant's sentence is not void and is within the statutory
range.
{¶18} Appellant's first, second and third assigned errors are overruled.
IV.
{¶19} In the fourth assigned error, Appellant challenges the trial court's finding
him a vexatious litigator without the filing of a complaint pursuant to R.C. 2323.52.
{¶20} R.C. 2323.52 reads, in pertinent part,
(3) “Vexatious litigator” means any person who has habitually,
persistently, and without reasonable grounds engaged in vexatious
conduct in a civil action or actions, whether in the court of claims or in a
court of appeals, court of common pleas, municipal court, or county court,
whether the person or another person instituted the civil action or actions,
and whether the vexatious conduct was against the same party or against
different parties in the civil action or actions. “Vexatious litigator” does not
include a person who is authorized to practice law in the courts of this
state under the Ohio Supreme Court Rules for the Government of the Bar
of Ohio unless that person is representing or has represented self pro se
in the civil action or actions.
Stark County, Case No. 2015CA00034 6
(B) A person, the office of the attorney general, or a prosecuting
attorney, city director of law, village solicitor, or similar chief legal officer of
a municipal corporation who has defended against habitual and persistent
vexatious conduct in the court of claims or in a court of appeals, court of
common pleas, municipal court, or county court may commence a civil
action in a court of common pleas with jurisdiction over the person who
allegedly engaged in the habitual and persistent vexatious conduct to
have that person declared a vexatious litigator. The person, office of the
attorney general, prosecuting attorney, city director of law, village solicitor,
or similar chief legal officer of a municipal corporation may commence this
civil action while the civil action or actions in which the habitual and
persistent vexatious conduct occurred are still pending or within one year
after the termination of the civil action or actions in which the habitual and
persistent vexatious conduct occurred. (Emphasis added).
{¶21} On February 13, 2015, the State filed a Response in Opposition which
included a paragraph asking the trial court to label Appellant a vexatious litigator. In
Kinstle v. Union Cty Sheriff's Office, 3rd Dist., 2007-Ohio-6024, the Third District Court
of Appeals held, "R.C. 2323.52 unambiguously requires the commencement of a 'civil
action' and a motion is not the equivalent of a complaint." The Court further noted,
pursuant to Civil Rule 3, "a civil action is commenced by filing a complaint with the
court." Id.{¶22} Based upon the foregoing, we find the trial court erred in finding Appellant
a vexatious litigator without the State having filed a separate complaint.
Stark County, Case No. 2015CA00034 7
{¶23} Appellant's fourth assignment of error is sustained. The trial court's
finding Appellant to be a vexatious litigator is reversed.
{¶24} The January 22, 2015 Judgment Entry of the Stark County Court of
Common Pleas is affirmed in part and reversed in part.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur