[Cite as State v. Askew, 2015-Ohio-4125.]


                                       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. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2015CA00034
SERO DUVALL ASKEW

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas, Case No. 2004CR0449


JUDGMENT:                                      Affirmed in part and Reversed in part


DATE OF JUDGMENT ENTRY:                        September 30, 2015


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


JOHN D. FERRERO,                              SERO DUVALL ASKEW, PRO SE
Prosecuting Attorney,                         Inmate No. A471-494
Stark County, Ohio                            Richland Correctional Institution
                                              P.O. Box 8107
By: KATHLEEN O. TATARSKY                      Mansfield, Ohio 44901
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2015CA00034                                                          2

Hoffman, J.


         {¶1}   Defendant-appellant Sero Duvall Askew appeals the February 13, 2015

Judgment Entry entered by the 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 pursuant to a

negotiated plea deal to three counts of trafficking in cocaine and three counts of

possession of cocaine, 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 comply with Criminal Rule 32(C).

         {¶5}   On March 3, 2010, the trial court conducted a de novo sentencing hearing

at which time Appellant orally requested the trial court allow him to withdraw his plea.

The trial court denied Appellant's motion to withdraw plea. The trial court continued to

resentence 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.




1   A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Stark County, Case No. 2015CA00034                                                  3


       {¶6}    On September 30, 2014, Appellant filed a motion to vacate his sentence,

challenging the imposition of sentence as being contrary to law and void. Also on

December 3, 2014, Appellant filed another motion to withdraw his no contest plea,

arguing ineffective assistance of counsel at sentencing.

       {¶7}    On January 22, 2015, the State filed a response to the motion to vacate

judgment of sentence and motion to withdraw no contest 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

R.C. 2929.14(B), WHICH WAS DECLARED UNCONSTITUTIONAL AND SEVERED BY

THE OHIO SUPREME COURT.
Stark County, Case No. 2015CA00034                                                      4


       {¶13} "IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT LABELED

APPELLANT A VEXATIOUS LITIGATOR PURSUANT TO O.R.C. §2323.52 WITHOUT

FILING A COMPLAINT."

                                             I, II, III.

       {¶14} Appellant's first three assigned errors 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 Appellant'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 to 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 arguments raised herein in Appellant's first, second and

third assigned errors are barred by the doctrine of res judicata.
Stark County, Case No. 2015CA00034                                                          5

         {¶17} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,

the Ohio Supreme Court established a two-step procedure for reviewing a felony

sentence. The first step is to “examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. Upon review of

Appellant's sentence, we find Appellant's sentence is not void and is within the statutory

range.

         {¶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 vexatious litigator without the filing of a complaint pursuant to R.C. 2323.52.

         {¶20} R.C. 2323.52 reads, in pertinent part,

                (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 action 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.
Stark County, Case No. 2015CA00034                                                            6

              (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, municipal court, or county court may commence a civil

       action in a court of common pleas with jurisdiction over the person 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 chief 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 action or actions in which the habitual and

       persistent vexatious conduct occurred. (Emphasis added).

       {¶21} On February 13, 2015, the State filed a Response 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, "R.C. 2323.52 unambiguously requires the commencement of a 'civil

action' and a motion is not the equivalent of a complaint." The Court further noted,

pursuant to Civil Rule 3, "a civil action is commenced by filing a complaint with the

court." Id.

       {¶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.
Stark County, Case No. 2015CA00034                                                 7


       {¶23} Appellant's fourth assignment of error is sustained.   The trial court's

finding Appellant to be a vexatious litigator is reversed.

       {¶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
