[Cite as State v. Askew, 2015-Ohio-43.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2014-L-072 - vs - :
JAMES D. ASKEW, III, :
Defendant-Appellant. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000539.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
James D. Askew, III, pro se, PID: A642-217, Lake Erie Correctional Institution, P.O. Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, James D. Askew, III, seeks reversal of the trial court’s denial of
his second petition for post-conviction relief. Appellant primarily asserts that the trial
court erred in not addressing the merits of his second petition raising issues pertaining
to the court’s jurisdiction to sentence him to a fifteen-year prison term.
{¶2} In September 2012, the Lake County Grand Jury returned a four-count
indictment against appellant. Under the second count, appellant was charged with
felonious assault, a second-degree felony under R.C. 2903.11(A)(1). This count also had a repeat violent offender specification. The specification alleged that he had a
prior conviction for felonious assault.
{¶3} Appellant ultimately pleaded guilty to the felonious assault charge and the
“repeat violent offender” specification and the remaining three counts were dismissed.
Upon accepting the guilty plea and conducting a sentencing hearing, the trial court
sentenced appellant to eight years on the felonious assault and seven years on the
specification, for an aggregate prison term of fifteen years.
{¶4} The sentencing judgment was issued in May 2013. Appellant did not
appeal.
{¶5} Six months later, appellant filed his first petition for post-conviction relief
arguing that the trial court exceeded the scope of its authority by failing to submit the
repeat violent offender specification to a jury for determination. After the state filed its
response, the trial court issued a judgment, dated February 10, 2014, dismissing the
petition on the grounds of res judicata. The court held that appellant’s “specification”
argument could not be asserted in a post-conviction petition because it could have
been addressed on a direct appeal.
{¶6} Appellant did not appeal the foregoing judgment. Instead, in June 2014,
he filed a second petition for post-conviction relief. This petition set forth two claims for
relief, and appellant summarized his claims in the following manner:
{¶7} “[1.] This Court selected or elected the penalty in this case, which offer
alternative sentences and options for the court to choose from, whether this Court
elected or is required by R.C. 2929.14 and the divisions thereunder would be
unconstitutional, and reflects a conclusion that is not based on the truth of a specific
requirement of law, an act that is outside or beyond this Court’s judicial power to act in
2 the particular manner that it has because the provisions of the statute are required, or
mandatory.
{¶8} “[2.] This court construed the provisions of R.C. 2901.04 (A)(B) in a
manner inconsistent with its function as a Court whose powers are constitutionally
conferred, the manner in which the Court acted under the statute causes the judgment
to be void, a denial of equal protection and due process that cannot be transferred or
taken away.”
{¶9} After receiving an extension of time to respond, the state argued that the
merits of the second petition could not be addressed because: (1) it was untimely, R.C.
2953.23 et seq.; and (2) appellant had not established a justifiable reason for filing a
successive post-conviction petition. In moving for summary judgment on his claims,
appellant essentially asserted that he was not required to comply with the statutory
time requirements for post-conviction petitions because his claims for relief
demonstrate that the sentencing judgment must be declared moot or void.
{¶10} In its July 10, 2014 judgment entry, the trial court dismissed appellant’s
second post-conviction petition, primarily concluding that he failed to satisfy the
statutory requirements for submitting a successive petition. The court further held that
his two claims for relief were barred from consideration under the doctrine of res
judicata.
{¶11} In appealing the July 2014 judgment, appellant raises one assignment of
error for review:
{¶12} “The Court in denying defendant’s petition for post-conviction relief is an
abuse of discretion claiming that res judicata and R.C. 2953.23(A)(1)(a) bar the
petition, the court erred for not considering the issues raised and presented in the
3 petition.”
{¶13} As noted above, in dismissing appellant’s second post-conviction petition,
the trial court held that he had not complied with the specific statutory requirements for
the filing of successive petitions under R.C. 2953.23(A)(1)(a). In challenging the trial
court’s ruling, appellant does not dispute that he did not attempt to provide a proper
justification for a second petition. Instead, he contends that he was not required to
establish any justification because the claims in the second petition were sufficient to
show that the trial court’s sentencing judgment should be declared void. Based upon
this, he further contends that he was free to assert his two claims at any time,
regardless of whether he had filed a prior petition for post-conviction relief.
{¶14} As a general proposition, if a trial court commits an error which renders its
final judgment void, it is not necessary for the criminal defendant to raise the issue in a
direct appeal from the conviction; rather, he can also challenge the error in a collateral
attack. State v. Parson, 2d Dist. Montgomery No. 24641, 2012-Ohio-730, ¶8, quoting
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph one of syllabus. In
other words, the doctrine of res judicata does not bar the defendant from raising the
“void” issue in a subsequent submission even if it could have been asserted in the
direct appeal from the conviction. Id. In regard to when the sentencing judgment in a
criminal case is void, this court has recently stated:
{¶15} “‘(A) sentence that does not contain a statutorily mandated term is a void
sentence.’ State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶14, citing State v.
Beasley, 14 Ohio St.3d 74, (1984). The Supreme Court of Ohio in Simpkins held that,
where the sentencing judge ‘disregards what the law clearly commands, such as when
a judge fails to impose a nondiscretionary sanction required by sentencing statute, the
4 judge acts without authority.’ Id. at ¶21. Further, ‘if a judge imposes a sentence that is
unauthorized by law, the sentence is unlawful.’ Id. If a sentence is unlawful, it is not
merely erroneous or voidable; rather, it is unauthorized and void. Id. By way of
example, the Court cited Beasley, supra. In Beasley, the applicable sentencing statute
required the judge to impose a prison term and permitted the judge to impose a fine.
Id. at 75. The trial court disregarded the statutory mandate and imposed only a fine.
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[Cite as State v. Askew, 2015-Ohio-43.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2014-L-072 - vs - :
JAMES D. ASKEW, III, :
Defendant-Appellant. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000539.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
James D. Askew, III, pro se, PID: A642-217, Lake Erie Correctional Institution, P.O. Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, James D. Askew, III, seeks reversal of the trial court’s denial of
his second petition for post-conviction relief. Appellant primarily asserts that the trial
court erred in not addressing the merits of his second petition raising issues pertaining
to the court’s jurisdiction to sentence him to a fifteen-year prison term.
{¶2} In September 2012, the Lake County Grand Jury returned a four-count
indictment against appellant. Under the second count, appellant was charged with
felonious assault, a second-degree felony under R.C. 2903.11(A)(1). This count also had a repeat violent offender specification. The specification alleged that he had a
prior conviction for felonious assault.
{¶3} Appellant ultimately pleaded guilty to the felonious assault charge and the
“repeat violent offender” specification and the remaining three counts were dismissed.
Upon accepting the guilty plea and conducting a sentencing hearing, the trial court
sentenced appellant to eight years on the felonious assault and seven years on the
specification, for an aggregate prison term of fifteen years.
{¶4} The sentencing judgment was issued in May 2013. Appellant did not
appeal.
{¶5} Six months later, appellant filed his first petition for post-conviction relief
arguing that the trial court exceeded the scope of its authority by failing to submit the
repeat violent offender specification to a jury for determination. After the state filed its
response, the trial court issued a judgment, dated February 10, 2014, dismissing the
petition on the grounds of res judicata. The court held that appellant’s “specification”
argument could not be asserted in a post-conviction petition because it could have
been addressed on a direct appeal.
{¶6} Appellant did not appeal the foregoing judgment. Instead, in June 2014,
he filed a second petition for post-conviction relief. This petition set forth two claims for
relief, and appellant summarized his claims in the following manner:
{¶7} “[1.] This Court selected or elected the penalty in this case, which offer
alternative sentences and options for the court to choose from, whether this Court
elected or is required by R.C. 2929.14 and the divisions thereunder would be
unconstitutional, and reflects a conclusion that is not based on the truth of a specific
requirement of law, an act that is outside or beyond this Court’s judicial power to act in
2 the particular manner that it has because the provisions of the statute are required, or
mandatory.
{¶8} “[2.] This court construed the provisions of R.C. 2901.04 (A)(B) in a
manner inconsistent with its function as a Court whose powers are constitutionally
conferred, the manner in which the Court acted under the statute causes the judgment
to be void, a denial of equal protection and due process that cannot be transferred or
taken away.”
{¶9} After receiving an extension of time to respond, the state argued that the
merits of the second petition could not be addressed because: (1) it was untimely, R.C.
2953.23 et seq.; and (2) appellant had not established a justifiable reason for filing a
successive post-conviction petition. In moving for summary judgment on his claims,
appellant essentially asserted that he was not required to comply with the statutory
time requirements for post-conviction petitions because his claims for relief
demonstrate that the sentencing judgment must be declared moot or void.
{¶10} In its July 10, 2014 judgment entry, the trial court dismissed appellant’s
second post-conviction petition, primarily concluding that he failed to satisfy the
statutory requirements for submitting a successive petition. The court further held that
his two claims for relief were barred from consideration under the doctrine of res
judicata.
{¶11} In appealing the July 2014 judgment, appellant raises one assignment of
error for review:
{¶12} “The Court in denying defendant’s petition for post-conviction relief is an
abuse of discretion claiming that res judicata and R.C. 2953.23(A)(1)(a) bar the
petition, the court erred for not considering the issues raised and presented in the
3 petition.”
{¶13} As noted above, in dismissing appellant’s second post-conviction petition,
the trial court held that he had not complied with the specific statutory requirements for
the filing of successive petitions under R.C. 2953.23(A)(1)(a). In challenging the trial
court’s ruling, appellant does not dispute that he did not attempt to provide a proper
justification for a second petition. Instead, he contends that he was not required to
establish any justification because the claims in the second petition were sufficient to
show that the trial court’s sentencing judgment should be declared void. Based upon
this, he further contends that he was free to assert his two claims at any time,
regardless of whether he had filed a prior petition for post-conviction relief.
{¶14} As a general proposition, if a trial court commits an error which renders its
final judgment void, it is not necessary for the criminal defendant to raise the issue in a
direct appeal from the conviction; rather, he can also challenge the error in a collateral
attack. State v. Parson, 2d Dist. Montgomery No. 24641, 2012-Ohio-730, ¶8, quoting
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph one of syllabus. In
other words, the doctrine of res judicata does not bar the defendant from raising the
“void” issue in a subsequent submission even if it could have been asserted in the
direct appeal from the conviction. Id. In regard to when the sentencing judgment in a
criminal case is void, this court has recently stated:
{¶15} “‘(A) sentence that does not contain a statutorily mandated term is a void
sentence.’ State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶14, citing State v.
Beasley, 14 Ohio St.3d 74, (1984). The Supreme Court of Ohio in Simpkins held that,
where the sentencing judge ‘disregards what the law clearly commands, such as when
a judge fails to impose a nondiscretionary sanction required by sentencing statute, the
4 judge acts without authority.’ Id. at ¶21. Further, ‘if a judge imposes a sentence that is
unauthorized by law, the sentence is unlawful.’ Id. If a sentence is unlawful, it is not
merely erroneous or voidable; rather, it is unauthorized and void. Id. By way of
example, the Court cited Beasley, supra. In Beasley, the applicable sentencing statute
required the judge to impose a prison term and permitted the judge to impose a fine.
Id. at 75. The trial court disregarded the statutory mandate and imposed only a fine.
The Supreme Court held in Beasley that the trial court had exceeded its authority by
disregarding the statutory-sentencing requirement and that the purported sentence was
a nullity and must be considered void. Id.” (Emphasis sic.) State v. Wells, 11th Dist.
Trumbull No. 2013-A-0014, 2013-Ohio-5821, ¶21.
{¶16} In his second petition, appellant did not provide an extensive explanation
of his two claims. As a result, it is difficult to fully discern the nature of his arguments.
However, in his motion for summary judgment on his claims, appellant stated the
following:
{¶17} “The provisions under the Statutes used is imposing a duty, or obligation
on the Court to act in a manner contrary to its true functions, Courts are to determine
what law is and what the rights of the parties are, see Union Pacific R.R. v. United
States (1878), 99 U.S. 700, 721 (Field, J., dissenting.) Here, the defendant was
subject of a statutory judicial proceeding.” (Emphasis added.)
{¶18} Although the substance of appellant’s arguments are still somewhat
vague, he appears to be arguing that his sentence is void because the trial court
complied with applicable statutory provisions. This argument clearly conflicts with the
Wells precedent, which holds that a sentence is void when it does not comply with the
governing statutes. For this reason, the two claims in appellant’s second petition did
5 not raise viable arguments for declaring the final sentencing judgment void. Thus, the
second petition had to satisfy the requirements of R.C. 2953.23(A)(1)(a) in order to be
properly before the trial court.
{¶19} As noted above, appellant was sentenced to an eight-year term on the
felonious assault charge and a seven-year term on the repeat violent offender
specification. Felonious assault is a second-degree felony, R.C. 2929.14(A)(2) and,
therefore, a prison term of “two, three, four, five, six, seven, or eight years” is
authorized. As to the repeat violent offender specification, R.C. 2929.14(B)(2)(a) states
that, if the longest term possible is imposed on the underlying offense, an additional
definite term of “one, two, three, four, five, six, seven, eight, nine, or ten years” is
authorized. As the trial court imposed a maximum term for the underlying felonious
assault, the additional seven years on the repeat offender specification was lawful.
{¶20} Pursuant to R.C. 2953.23(A), a trial court is not permitted to consider a
second petition for post-conviction relief unless one of three exceptions apply: (1) the
defendant has discovered new evidence; (2) the United States Supreme Court has
recognized a new federal or state right that can be retroactively applied to the
defendant; or (3) the results of DNA testing has recently established that the defendant
did not commit the underlying crime. In submitting his second petition, appellant never
asserted that any of the three exceptions apply. Therefore, as his sentence is not void,
the trial court properly dismissed the second petition addressing the merits of his two
claims.
{¶21} Consistent with the foregoing discussion, appellant’s sole assignment of
error lacks merit. Accordingly, the judgment of the Lake County Court of Common
Pleas is affirmed.
6 CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.
____________________
{¶22} I concur with the majority’s well reasoned opinion but write separately to
note that these types of post-conviction filings are frequently made by defendants who
fail to file a timely appeal and/or who have not filed (or cannot meet the criteria for
filing) a delayed appeal. What many of these post-conviction filings have in common is
that the defendants have never received the benefit of appellate review of their case.
{¶23} Appellate Rule 5(A) provides specifically for a delayed appeal if the thirty-
day deadline to file is missed. There is also no set deadline for a delayed appeal to be
filed. A more flexible approach to delayed appeals would be more cost effective as it
would allow courts to consider any such alleged error, bring matters to a quick, final
close and possibly avoid the presentation of futile post-conviction motions to the trial
court—at taxpayer’s expense.