[Cite as State v. Beechler, 2015-Ohio-4106.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                       :
                                                     :  Appellate Case No. 2014-CA-139
       Plaintiff-Appellee                            :
                                                     :  Trial Court Case No. 09-CR-72
 v.                                                  :
                                                     :  (Criminal Appeal from
 DANA BEECHLER                                       :   Common Pleas Court)
                                                     :
       Defendant-Appellant                           :
                                                     :
                                                ...........
                                               OPINION
                            Rendered on the 2nd day of October, 2015.
                                                ...........

RYAN A SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

DANA BEECHLER, #606639, London Correctional Institution, Post Office Box 69,
London, Ohio 43140
     Defendant-Appellant, pro se


                                               .............

HALL, J.

        {¶ 1} Dana Beechler appeals pro se from the trial court’s denial of his post-

conviction September 25, 2014 “Motion to Vacate Sentence for the Specification and or
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a New Trial.”

       {¶ 2} Beechler advances the following three assignments of error:

                I. The appellant’s motion to vacate sentence for the specification and

       or a new trial was rejected due to the conflict of interest that exist when the

       trial judge ruled on the motion that explains how the trial judge violated the

       appellant’s due process rights, abusing its discretion.

                II. The appellant’s rights to due process of a trial by jury was violated

       by the trial court when it stipulated to the specification without the

       appellant’s consent or knowledge thereof.

                III. The trial court committed plain error when it failed to inquire with

       the appellant during trial about the OVI specification charge being stipulated

       to pursuant to Crim.R. 52(B) & violated Civ.R. 8(C) & (D).

       {¶ 3} The record reflects that Beechler was convicted in 2009 on two felony counts

of operating a vehicle while intoxicated (“OVI”), each with a specification that he had been

convicted of or pled guilty to five or more OVI violations or equivalent offenses within the

prior 20 years. The convictions merged at sentencing, and the trial court imposed a five-

year prison term for the second count and a consecutive five-year prison term for the

specification. This court affirmed on direct appeal. See State v. Beechler, 2d Dist. Clark

No. 09-CA-54, 2010-Ohio-1900. Acting pro se, Beechler then sought various forms of

post-conviction relief, including a motion for relief from judgment and a petition for a writ

of mandamus. We affirmed the trial court’s denial of relief from judgment in State v.

Beechler, 2d Dist. Clark No. 2014-CA-11, 2014-Ohio-3350. The Ohio Supreme Court

affirmed the dismissal of his petition for a writ of mandamus in State ex rel. Beechler v.
                                                                                         -3-

Rastatter, 140 Ohio St.3d 343, 2014-Ohio-4061, 18 N.E.3d 433.

       {¶ 4} Beechler’s present appeal concerns his September 25, 2014 “Motion to

Vacate Sentence for the Specification and or a New Trial.” (Doc. #52). Therein, he

asserted that his trial counsel improperly had stipulated to the prior-offense specification

without his knowledge or consent. He argued: “The trial record will show that at no time

during trial the Defendant was addressed by the court pertaining to the stipulation of the

specification * * *.” (Id. at 2). As a result, he maintained that he was entitled either to

dismissal of the specification and vacation of the sentence thereon or to a new trial. (Id.

at 3). The trial court summarily overruled Beechler’s motion. (Doc. #53). This appeal

followed.

       {¶ 5} In his first assignment of error, Beechler argues that a conflict of interest

should have precluded the trial court judge from ruling on his motion. Beechler asserts

that the same judge improperly had permitted the prosecutor and defense counsel to

stipulate at trial to the prior-offense specification without his knowledge. That being so,

he reasons that the judge should not have been allowed to rule on his motion, which

essentially accused that judge of having violated his due process rights by permitting the

stipulation.

       {¶ 6} Beechler addressed the recusal issue in his September 25, 2014 motion as

follows:

               The Defendant would respectfully request the Honorable Judge

       Douglas M. Rastatter recuse himself from this motion to avoid any further

       mishap of justice that may arise from the conflict of interest that exist,

       because Judge Rastatter was the trial Judge that failed to inquire with the
                                                                                          -4-


       Defendant about the Stipulation that caused the Defendant’s case to be

       prejudiced.

(Doc. #52 at 3).

       {¶ 7} The trial court overruled Beechler’s motion without addressing the request

for recusal. (Doc. #53). On appeal, the State argues that Beechler’s first assignment of

error is barred by the doctrine of res judicata because the issue it raises could have been

raised on direct appeal. (Appellee’s brief at 4-5). We find that argument unpersuasive.

Beechler plainly could not have raised on direct appeal the trial court’s failure to recuse

itself from a motion he did not file until years later. We nevertheless find Beechler’s first

assignment of error unpersuasive. As the State also notes, the only proper procedure

when a defendant believes recusal is appropriate is to file an affidavit with the Ohio

Supreme Court, which has exclusive authority to determine whether recusal is warranted.

In re A.K., 2d Dist. Champaign No. 2013-CA-63, 2015-Ohio-29, ¶19-21. Accordingly, the

first assignment of error is overruled.

       {¶ 8} In his second assignment of error, Beechler claims the trial court erred in

accepting counsel’s stipulation at trial to his guilt on the prior-offense specification when

the stipulation was made without his knowledge or consent. In this regard, Beechler

asserts that the trial court was required by law to address him on the record in open court

to assure that he understood the stipulation and wanted to admit the specification.

Although we disagree with Beechler’s argument, even if what he says is true, he could

have raised this issue in his direct appeal. Indeed, if the trial court was required to, but

did not, address Beechler on the record in open court to ascertain his understanding of

and his agreement to the stipulation, the trial record would reflect that he was not
                                                                                          -5-


informed. Beechler essentially admitted this in his motion, asserting: “Nowhere on the

record does it show that the Defendant was informed of the stipulation that was going to

take place between both parties, and in fact the only people that [were] aware of the

stipulation taking place [were] Judge Rastatter and both attorneys and the Court Reporter

Lisa Rae Wirkner.” (Doc. #52 at 2, citing Trial Tr. pgs. 71-72). Because the record would

have shown the error Beechler alleges, he could have raised the trial court’s failure to

address the stipulation with him as an issue on his prior appeal. The doctrine of res

judicata precludes him from raising that issue now. State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967), paragraph nine of the syllabus (“Under the doctrine of res judicata, a

final judgment of conviction bars a convicted defendant who was represented by counsel

from raising and litigating in any proceeding except an appeal from that judgment, any

defense or claimed lack of due process that was raised or could have been raised by the

defendant at the trial, which resulted in that judgment of conviction, or on an appeal from

that judgment.”). Because he cannot now raise the second assignment of error it is

overruled.

       {¶ 9} In his third assignment of error, Beechler again contends the trial court erred

in failing to inquire on the record in open court about whether he understood and

consented to the stipulation to the prior-offense specification. This is essentially the same

argument raised in Beechler’s second assignment of error. Once again, res judicata

applies because he could have raised on direct appeal the trial court’s alleged failure to

address the stipulation issue with him on the record in open court. The third assignment

of error is therefore likewise overruled.

       {¶ 10} The judgment of the Clark County Common Pleas Court is affirmed.
                                                 -6-


                                 .............




FAIN, J., and WELBAUM, J., concur.


Copies mailed to:

Ryan A. Saunders
Dana Beechler
Hon. Douglas M. Rastatter
