[Cite as State v. Tackett, 2015-Ohio-4923.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2014-A-0070
        - vs -                                  :

DALE L. TACKETT,                                :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011
CR 159.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Dale L. Tackett, pro se, PID: A623-605, Richland Correctional Institution, P.O. Box
8107, 1001 Olivesburg Road, Mansfield, OH 44905 (Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     Appellant Dale L. Tackett was convicted of one count of operating a

 vehicle while under the influence of alcohol (OVI) with a specification that he was

 convicted of five prior OVI offenses in the past 20 years. In a collateral attack on his

 conviction, Tackett argued that the trial court should “void and vacate” the specification

 to his OVI conviction and also argued his specification violates the Due Process and

 Equal Protection Clauses to the U.S. and Ohio Constitutions. The trial court overruled
the motion. On appeal, Tackett claims the trial court erred. For the following reasons,

we affirm.

      {¶2}   We previously detailed the facts underlying Tackett’s conviction in State v.

Tackett, 11th Dist. Ashtabula No. 2012-A-0015, 2013-Ohio-4286. Consequently, we

will only briefly recite the underlying facts from Tackett’s prior appeal as necessary.

      {¶3}   A police officer initiated a traffic stop after he observed Tackett passing

another vehicle at a high rate of speed in a no passing zone. The officer asked Tackett

to perform field sobriety tests which Tackett failed.        Consequently, Tackett was

arrested for violating Ohio’s OVI statute.

      {¶4}   A jury found Tackett guilty of two counts of operating a vehicle under the

influence with the accompanying specification that Tackett had five prior OVI

convictions in the past 20 years.      The trial court found the offenses merged for

sentencing purposes and sentenced Tackett to a 120-day mandatory sentence for the

OVI and a consecutive two-year sentence on the specification. On appeal, we found

that the trial court’s 120-day sentence for the OVI was contrary to law as the minimum

mandatory sentence was one year. Id. ¶13. Consequently, we remanded the case to

the trial court for resentencing.   On remand the trial court sentenced Tackett to a

mandatory one year sentence on the OVI count and a consecutive two-year sentence

on the specification.

      {¶5}   On April 4, 2014, Tackett filed a motion for judicial release. On April 18,

2014, Tackett filed a motion to vacate void judgment and sentence for good cause and

correct judgment entry of sentence. The trial court overruled both motions on June 4,

2014, and Tackett appealed those orders to this court. While that appeal was pending,




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on August 18, 2014, Tackett filed a motion to void and vacate the specification to his

OVI offense. The trial court overruled the motion, and this appeal followed.

      {¶6}   As his first assignment of error, Tackett alleges:

      {¶7}   “[The] trial court erred by not accepting jurisdiction of appellant’s motion to

void and vacate specification to OVI.”

      {¶8}   Within this assignment, Tackett argues that the trial court erred in

concluding it lacked jurisdiction because, as we understand it, his motion currently

under review is a petition for post-conviction relief, and his prior appeals were a direct

appeal from his conviction. As jurisdiction is a question of law, we review de novo.

City of Akron v. Ohio Dept. of Ins., 10th Dist. Franklin Nos. 13AP-473, 13AP-486,

13AP-483, 13AP-496, Nos. 13AP-484 and 13AP-495, 2014-Ohio-96, ¶21. Tackett is

incorrect that his other appeal is a direct appeal from his conviction. Rather, that

appeal concerns the trial court’s denial of other post-final judgment motions concerning

the propriety of his sentence.

      {¶9}   Furthermore, the trial court correctly concluded it lacked jurisdiction.

When an appeal is taken from a trial court, the trial court is divested of jurisdiction

“‘except to take action in aid of the appeal, until the case is remanded to it by the

appellate court.’” State ex rel. Special Prosecutors v. Judges, Court of Common Pleas,

55 Ohio St.2d 94, 97 (1978), quoting 7 Moore's Federal Practice (2 Ed.) 419,

Paragraph 60.30[2].     Tackett had already appealed motions which challenged the

propriety of his sentence. The underlying motion seeking to vacate and void Tackett’s

OVI specification would not aid Tackett’s other appeal. Consequently, the trial court

lacked jurisdiction to rule on the motion.

      {¶10} The first assignment of error is without merit.


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      {¶11} As his second assignment of error, Tackett asserts:

      {¶12} “Because R.C. 4511.19 contains two different penalties for persons who

have committed six offenses within twenty years with no difference of proof required to

trigger the greater penalties, R.C. 4511.19 violates due process and equal protection.”

      {¶13} As best we can tell, Tackett claims the imposition of his sentence on the

specification violates the Equal Protection Clause of the U.S. and Ohio Constitutions

because the state did not have to prove any additional facts apart from his underlying

offense. He also alleges the same argument makes his punishment arbitrary and thus

violates the Due Process Clauses of the U.S. and Ohio Constitutions.          The state

argues Tackett’s arguments are barred by res judicata. We agree with the state. Res

judicata bars a defendant from raising an issue in a post-conviction proceeding that he

failed to raise on direct appeal. State v. Adams, 11th Dist. Trumbull No. 2003-T-0064,

2005-Ohio-348, ¶38. Tackett failed to raise these issues in his direct appeal, and

therefore he cannot raise them now. Tackett, supra.

      {¶14} The second assignment of error is without merit.

      {¶15} The judgment of the Ashtabula County Court of Common Pleas is

affirmed.



TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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