State v. Askew

[Cite as State v. Askew, 2011-Ohio-687.]
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. John W. Wise, J.
-vs-
Case No. 2010CA00069
SERO D. ASKEW
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2004CR0449
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 14, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO DEREK J. LOWRY
PROSECUTING ATTORNEY Crawford, Lowry & Associates
STARK COUNTY, OHIO 116 Cleveland Avenue N.W.
Suite 800
BY: KATHLEEN O. TATARSKY Canton, Ohio 44702
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010CA00069 2
Hoffman, J.
{¶1} Defendant-appellant Sero D. Askew appeals the March 23, 2010
Judgment Entry entered by the Stark County Court of Common Pleas which
resentenced him on three counts of trafficking in cocaine and three counts of
possession of cocaine, together with a major drug offender specification. The State of
Ohio is plaintiff-appellee.
STATEMENT OF THE CASE1
{¶2} Appellant pled no contest to the aforementioned charges. The trial court
entered convictions thereon and sentenced Appellant via Judgment Entry journalized
August 4, 2004.
{¶3} Appellant filed a direct appeal from the August 4, 2004 Judgment Entry in
this Court. We affirmed the trial court’s judgment entry. See, State v. Askew, Stark
App. No. 2004-CA-00275, 2005-Ohio-3194.
{¶4} As pertinent to this appeal, Appellant was resentenced by the trial court
pursuant to the direction of the Ohio Supreme Court as pronounced in State v.
Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434. The new sentence was journalized
March 23, 2010. It is from that judgment entry Appellant prosecutes this appeal
assigning as error2:
{¶5} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT’S MOTION TO WITHDRAW HIS PLEA.
1
A rendition of the facts is unnecessary for our disposition of this appeal.
2
On September 30, 2010, Appellant filed a Supplemental Brief of Appellant pro se.
Appellant was represented by counsel in this appeal, who filed the Brief of Appellant on
August 31, 2010. This Court will not recognize Appellant’s pro se supplemental brief as
it was submitted without leave of this Court.
Stark County, Case No. 2010CA00069 3
{¶6} “II. THE TRIAL COURT ERRED BY ACCEPTING THE APPELLANT’S
GUILTY PLEA WITHOUT ADVISING HIM OF THE CORRECT TERM OF POST-
RELEASE CONTROL.
{¶7} “III. THE TRIAL COURT ERR [SIC] BY DENYING THE APPELLANT’S
MOTION TO SUPPRESS.
{¶8} “IV. THE TRIAL COURT ERRED IN NOT FINDING THE CHARGES OF
POSSESSION COCAINE TO BE ALLIED OFFENSES WITH THE RELATED
CHARGES OF TRAFFICKING IN COCAINE AND MERGE THESE COUNTS FOR
SENTENCING.”
I
{¶9} During his resentencing hearing pursuant to Singleton, Appellant orally
asked to withdraw his plea. The trial court conducted a hearing at that time with respect
to Appellant’s motion. The trial court denied Appellant’s request. In his first assignment
of error, Appellant asserts the trial court abused its discretion by so doing.
{¶10} 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 ex rel. 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. Ketterer, 126 Ohio St.3d 448,
2010-Ohio-3831. Based upon the foregoing authority, Appellant’s first assignment of
error is overruled.
Stark County, Case No. 2010CA00069 4
II, III, & IV
{¶11} Because the same rationale for our decision applies to all three of these
assignments of error, we shall address them together.
{¶12} The entry under review was generated in accordance with the procedure
set forth in Singleton to correct errors and/or deficiencies involving notification and
journalization of post release control sanctions, committed during a defendant’s initial
sentencing. Appellant’s present assignments of error were or could have been raised in
his initial appeal to this Court.
{¶13} This Court has repeatedly held such resentencings do not allow a
defendant to challenge anew his convictions(s) as such is barred under the principles of
law of the case and/or res judicata. This Court’s position has been validated by two
recent Ohio Supreme Court decisions: State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-
5283; and State v. Fischer, 2010-Ohio-6238. Pursuant to Ketterer and Fischer,
Appellant’s two assignments of error are overruled.
{¶14} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN
s/ John W. Wise______________________
HON. JOHN W. WISE
Stark County, Case No. 2010CA00069 5
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
SERO D. ASKEW :
:
Defendant-Appellant : Case No. 2010CA00069
For the reasons stated in our accompanying Opinion, the March 23, 2010
Judgment Entry of the Stark County Court of Common Pleas is affirmed. Costs
assessed to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ John W. Wise ________________
HON. JOHN W. WISE