[Cite as State v. Joseph, 2013-Ohio-3023.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
DAVID A. JOSEPH, SR.                         :       Case No. 12-CA-85
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2010 CR 00008



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 11, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHRISTOPHER A. REAMER                                DAVID A. JOSEPH, SR., PRO SE
20 South Second Street                               #626-391
4th Floor                                            WCI
Newark, OH 43055                                     P.O. Box 120
                                                     Lebanon, OH 45036-0120
Licking County, Case No. 12-CA-85                                                      2

Farmer, J.

       {¶1}   On January 4, 2010, the Licking County Grand Jury indicted appellant,

David Joseph, Sr., on eight counts of passing bad checks in violation of R.C. 2913.11.

On March 15, 2010, appellant pled no contest to the charges. By entry filed same date,

the trial court found appellant guilty and sentenced him to an aggregate term of five

years in prison.

       {¶2}   On August 27, 2012, appellant filed a motion for resentencing, claiming his

sentence and the trial court's orders on restitution were void and/or voidable.       On

September 20, 2012, appellant filed a motion to recuse the judge as the trial court judge

was a defendant in a civil action filed by appellant in federal court. By judgment entry

filed September 26, 2012, the trial court denied appellant's motion to recuse.        By

judgment entry filed September 28, 2012, the trial court denied appellant's motion for

resentencing. By judgment entry filed October 2, 2012, the trial court again denied the

motion for resentencing, finding the issue was barred under the doctrine of res judicata

as appellant did not object to nor file an appeal on the restitution orders.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶4}   "THE TR. CT. ERRED IN REFUSING TO RECUSE HIMSELF."

                                              II

       {¶5}   "TR. CT. IMPROPERLY APPLIED THE DOCTORINE (SIC) OF RES

JUDICATA."
Licking County, Case No. 12-CA-85                                                            3


                                              III

      {¶6}     "STATE      FAILED      TO     TIMELY      SERVE       DEFENDANT         WITH

MEMORANDUM CONTRA."

                                               I

      {¶7}     Appellant claims the trial court judge erred in refusing to recuse himself.

We disagree.

      {¶8}     The proper procedure in seeking recusal is to invoke R.C. 2701.03(A)

which states the following:



               If a judge of the court of common pleas allegedly is interested in a

      proceeding pending before the court, allegedly is related to or has a bias

      or prejudice for or against a party to a proceeding pending before the court

      or a party's counsel, or allegedly otherwise is disqualified to preside in a

      proceeding pending before the court, any party to the proceeding or the

      party's counsel may file an affidavit of disqualification with the clerk of the

      supreme court in accordance with division (B) of this section.



      {¶9}     Appellant did not file the required affidavit of disqualification with the clerk

of the supreme court. As held by the Supreme Court of Ohio in State ex rel. Hough v.

Saffold, 131 Ohio St.3d 54, 2012-Ohio-28, ¶ 2:



               Hough is not entitled to a final, appealable order on the judge's

      denial of his motion to recuse herself, because a court of appeals lacks
Licking County, Case No. 12-CA-85                                                        4

      jurisdiction to review these decisions. See Beer v. Griffith (1978), 54 Ohio

      St.2d 440, 441–442, 8 O.O.3d 438, 377 N.E.2d 775 ("Since only the Chief

      Justice or [the chief's] designee may hear disqualification matters, the

      Court of Appeals was without authority to pass upon disqualification or to

      void the judgment of the trial court upon that basis"); Goddard v.

      Children's Hosp. Med. Ctr. (2000), 141 Ohio App.3d 467, 473, 751 N.E.2d

      1062; State v. Ramos (1993), 88 Ohio App.3d 394, 398, 623 N.E.2d 1336.



      {¶10} Assignment of Error I is denied.

                                            II

      {¶11} Appellant claims the trial court erred in applying the doctrine of res

judicata in denying his motion for resentencing. We disagree.

      {¶12} Res judicata is defined as "[a] valid, final judgment rendered upon the

merits bars all subsequent actions based upon any claim arising out of the transaction

or occurrence that was the subject matter of the previous action." Grava v. Parkman

Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus.

      {¶13} In his motion for resentencing filed August 27, 2012, appellant argued his

sentence was void and/or voidable because of errors in the restitution orders. The

restitution orders were included in the trial court's original sentencing entry filed March

15, 2010. Appellant could have challenged the restitution orders on direct appeal, but

chose not to do so.

      {¶14} In his appellate brief, appellant argues he was unable to appeal the

restitution orders because he was heavily sedated by "Haliperidol" at the time of plea
Licking County, Case No. 12-CA-85                                                     5


and sentencing and for six months thereafter. Appellant did not make this argument in

his motion for resentencing and therefore the issue was not before the trial court.

         {¶15} Assignment of Error II is denied.

                                             III

         {¶16} Appellant claims the state failed to timely serve him with its memorandum

contra. We disagree.

         {¶17} Crim.R. 45(D) specifically states a written motion shall be served seven

days prior to hearing date "unless a different period is fixed by rule or order of the

court." In a court order filed August 28, 2012, the trial court scheduled a non-oral

hearing on appellant's motion for resentencing for September 28, 2012, and specifically

stated all responses must be filed in writing prior to the date and time of the non-oral

hearing. The state complied with the trial court's order by filing its memorandum contra

on September 27, 2012. Appellant could have asked for leave to file a reply, but did not

do so.

         {¶18} Assignment of Error III is denied.
Licking County, Case No. 12-CA-85                                             6


      {¶19} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.




                                       _______________________________



                                       _______________________________



                                       _______________________________

                                                    JUDGES

SGF/sg 604
[Cite as State v. Joseph, 2013-Ohio-3023.]


                    IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
DAVID A. JOSEPH, SR.                           :
                                               :
        Defendant-Appellant                    :       CASE NO. 12-CA-85




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to

appellant.




                                               _______________________________



                                               _______________________________



                                               _______________________________

                                                           JUDGES
