State v. AskewState v. Askew
For Plaintiff-Appellee
JOHN D. FERRERO, Prosecuting Attorney, Stark County, Ohio
By: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South - Suite 510 Canton, Ohio 44702-1413
For Defendant-Appellant
SERO DUVALL ASKEW, PRO SE Inmate No. A471-494 Richland Correctional Institution P.O. Box 8107 Mansfield, Ohio 44901
Hoffman, J.
{¶1} Defendant-appellant Sero Duvall Askew appeals the February 13, 2015 Judgment Entry entered by thе 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 рursuant to a negotiated plea deal to three counts of trafficking in cocaine and three counts of possession of сocaine, 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 сomply with
{¶5} On March 3, 2010, the trial court conducted a de novo sentencing hearing at which time Appellant orally requested the trial cоurt allow him to withdraw his plea. The trial court denied Appellant‘s motion to withdraw plea. The trial court continued to resentencе 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.
{¶7} On January 22, 2015, the State filed a response to the motion to vacate judgment of sentence and motion to withdraw no contеst 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
I, II, III.
{¶14} Appellant‘s first three assigned еrrors 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 Apрellant‘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 tо 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 аrguments raised herein in Appellant‘s first, second and third assigned errors are barred by the doctrine of res judicata.
{¶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 vеxatious litigator without the filing of a complaint pursuant to
{¶20}
(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 аction 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.
(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, municiрal court, or county court may commence a civil action in a court of common pleas with jurisdiction over the persоn 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 chiеf 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 aсtion or actions in which the habitual and persistent vexatious conduct occurred. (Emphasis added).
{¶21} On February 13, 2015, the State filed a Respоnse 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, ”
{¶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.
{¶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