State v. Henderson

2014 Ohio 2274

Ohio Court of Appeals·Decided May 29, 2014·No. 100374·Published·Cited by 2 cases

Opinion

[Cite as State v. Henderson, 2014-Ohio-2274.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100374

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

PAUL S. HENDERSON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-09-520709 and CR-09-530899-A

BEFORE: S. Gallagher, P.J., Rocco, J., and McCormack, J.

RELEASED AND JOURNALIZED: May 29, 2014 FOR APPELLANT

Paul S. Henderson, pro se No. 573-468 Marion Correctional Institution 940 Marion-Williamsport Road Marion, Ohio 43302-0057

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Diane Smilanick Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, P.J.:

{¶1} Appellant Paul S. Henderson appeals from the trial court’s decision denying

his motion to correct a void sentence. We find neither any merit nor any reasonable

grounds justifying Henderson’s appeal. For the following reasons, we affirm the trial

court’s decision and, sua sponte, find Henderson to be a vexatious litigator pursuant to

Loc.App.R. 23(A).

{¶2} On June 7, 2010, in Cuyahoga C.P. No. CR-09-530899-A, a jury found

appellant guilty of trafficking in marijuana in excess of 20,000 grams, in violation of R.C.

2925.03(A)(2); drug possession in excess of 20,000 grams of marijuana, in violation of

R.C. 2925.11(A); and possession of criminal tools, in violation of R.C. 2923.24(A).

State v. Henderson, 8th Dist. Cuyahoga No. 95655, 2012-Ohio-1040, ¶ 2, 8 (“Henderson

I”). Henderson was sentenced to an aggregate nine-year term of imprisonment, a $7,750

fine, court costs, driver’s license suspension, and the forfeiture of two cell phones. Id. at

¶ 8. Thereafter, Henderson directly appealed that conviction. See id. In Cuyahoga

C.P. No. CR-09-520709, Henderson pleaded guilty to a trafficking offense in violation of

R.C. 2925.03(A)(2), with a forfeiture specification. Henderson never appealed from his

guilty plea in the latter case. On August 26, 2013, the trial court denied Henderson’s

motion to vacate his sentence in both lower court cases.1

{¶3} Henderson timely appealed that decision, advancing six assignments of error:

1 Henderson included other trial orders in his current appeal, but the August 26, 2013 order was the only order timely appealed. I. The trial court erred in construing this appellant’s pleadings as a post-conviction petition on the face of the pleading it is clearly a direct jurisdictional challenge [based on a defect in the indictment] which should have been addressed as such, the failure of the trial court to do so violates this appellant’s Constitutional rights under the 5th and 14th Amendments of the U.S. Constitution.

II. The trial court erred to the prejudice of appellant in violation of his Fourth and Fourteenth Amendment right to be free from illegal seizure of a person and properties.

III. The trial court erred to the prejudice of appellant in violation of his 4th, 5th, and 14th Amendments rights against self incrimination[, in light of the fact the court lacked subject matter jurisdiction because of a defect in the indictment].

IV. Being wrongfully imprisoned for operating a legitimate business was cruel and unusual punishment because it violated the Eighth Amendment.

V. Trial counsel was not effective, and had counsel been as guaranteed under the Sixth Amendment the outcome would have been different.

VI. The cumulative effect of claims I through V denied appellant due process in violation of his Fourteenth Amendment [rights].

{¶4} All of Henderson’s current assigned errors mimic those advanced in his direct

appeal. In his direct appeal, in Henderson I, 8th Dist. Cuyahoga No. 95655,

2012-Ohio-1040, Henderson advanced the following assigned errors:

I. The trial court erred to the prejudice of appellant in violation of his Fourth Amendment right to be free from illegal seizure of a person and property.

II. The trial court erred to the prejudice of appellant in violation of the First Amendment right [to assembly and association].

III. Trial counsel was not effective and had counsel been counsel as guaranteed under the Sixth Amendment, the outcome would have been different. IV. Being wrongfully imprisoned for operating a legitimate business was cruel and unusual punishment because it violated the Eighth Amendment.

V. The cumulative effect of claims I through IV denied appellant due process in violation of the Fourteenth Amendment.

VI. The trial court erred to the prejudice of appellant in violation of his Fourth and Eighth Amendment rights to be free from illegal seizure of a person, and cruel and unusual punishment because it violated the Eighth Amendment, [and the court lacked subject matter jurisdiction in light of an alleged defect in the complaint.]

{¶5} “Res judicata bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal.” State v. Ketterer,

126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59, citing State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Every one of

Henderson’s current arguments were already addressed by this court in Henderson’s

direct appeal and found to be without merit. See Henderson I. Henderson’s assigned

errors are collectively overruled. Henderson’s arguments were already determined to be

without merit, and Henderson cannot collaterally attack that judgment through yet another

appeal. There was no reasonable basis for filing the current appeal. Henderson had his

opportunity to challenge his conviction on the basis of the facts and arguments presented

in his direct appeals. In fact, this is Henderson’s third attempt to raise the same set of

facts and arguments.

{¶6} In Henderson v. Saffold, Henderson filed an original action, in part, claiming

that his indictments in CR-09-520709 and CR-09-530899-A were defective, both cases

were shams, his arrest warrant was without the proper affidavits, his convictions were based on illegally seized evidence, and his sentences were generally void ab initio.

Henderson v. Saffold, 8th Dist. Cuyahoga No. 100406, 2014-Ohio-306. This court not

only dismissed the original action primarily based on the fact that Henderson had an

adequate remedy in his direct appeals, but also admonished Henderson for filing frivolous

appeals. This court could not have been more clear:

[T]he conduct of Henderson, through the continued filing of appeals and original actions, may result in Henderson being declared a vexatious litigator. Pursuant to Loc.App.R. 23(A), an appeal or original action shall be considered frivolous if it is not reasonably grounded in fact or warranted by existing law. Loc.App.R. 23(B) further provides that a party that habitually, persistently, and without reasonable cause engages in frivolous conduct, may be declared a vexatious litigator subject to filing restrictions. Henderson has continually taxed the limited resources of this court through the filing of ten appeals and eighteen original actions since 1991. Even in a light most favorable to Henderson, the ten appeals and eighteen original actions were or are not reasonably grounded in fact or warranted by existing law.

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