State v. Askew
2011 Ohio 687
Ohio Ct. App.2011Background
- Appellant Sero D. Askew pled no contest to six cocaine-related counts and a major drug offender specification in 2004.
- A Stark County Court of Common Pleas judgment entered August 4, 2004, adjudicated him accordingly and sentenced him.
- Askew's direct appeal to this court affirmed the 2004 judgment entry.
- The Ohio Supreme Court later directed resentencing under State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434.
- In March 2010, the trial court resentenced Askew; he challenged the resentencing via three appellate assignments of error (I–IV).
- The appellate court held the first assignment lacked jurisdiction to vacate the plea after affirmance, and denied the remaining three as barred by law-of-the-case/res judicata.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court abuse its discretion by denying withdrawal of plea? | Askew contends denial of plea withdrawal was an abuse of discretion. | Askew asserts the court should permit withdrawal to correct manifest injustice. | Denied; lack of jurisdiction to vacate after affirmation. |
| Did the court err by not advising correct post-release control term in the plea? | Askew asserts improper post-release control terms were not properly communicated. | Askew argues the sentencing error warrants reversal. | Overruled; res judicata/law-of-the-case applies; not revisited on resentencing. |
| Did the court err by denying suppression motion in the resentencing context? | Askew claims suppression errors were not resolved or preserved. | Askew contends suppression issues should be decided anew. | Overruled; same rationale as other assignments; barred by law-of-the-case/res judicata. |
| Should possession-of-cocaine and trafficking-in-cocaine counts be allied offenses and merged for sentencing? | Askew argues merger should apply to related charges. | Askew argues the offenses are allied and must merge. | Overruled; resentencing under Singleton precludes new challenges to convictions. |
Key Cases Cited
- State ex rel. Special Prosecutors v. Judges, 55 Ohio St.2d 94 (1978) (trial court lacks jurisdiction to vacate affirmed pleas)
- State v. Singleton, 124 Ohio St.3d 173 (2009) (directive to resentence post-release-control issues)
- State v. Ketterer, 111 Ohio St.3d 70 (2006) (law-of-the-case/res judicata principles governing resentencing)
- State v. Fischer, 2010-Ohio-6238 (2010) (divides issues stemming from Singleton resentencing)
- State v. Ketterer, 126 Ohio St.3d 448 (2010) (clarifies application of law-of-the-case/res judicata to resentencing)