[Cite as State v. Askew,

.]

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. John W. Wise, J. -vs- Case No. 2010CA00069 SERO D. ASKEW

Defendant-Appellant OPINION

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

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 14, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO DEREK J. LOWRY PROSECUTING ATTORNEY Crawford, Lowry & Associates STARK COUNTY, OHIO 116 Cleveland Avenue N.W. Suite 800 BY: KATHLEEN O. TATARSKY Canton, Ohio 44702 Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South - Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2010CA00069 2

Hoffman, J.

{¶1} Defendant-appellant Sero D. Askew appeals the March 23, 2010

Judgment Entry entered by the Stark County Court of Common Pleas which

resentenced him on three counts of trafficking in cocaine and three counts of

possession of cocaine, together with a major drug offender specification. The State of

Ohio is plaintiff-appellee.

STATEMENT OF THE CASE1

{¶2} Appellant pled no contest to the aforementioned charges. The trial court

entered convictions thereon and sentenced Appellant via Judgment Entry journalized

August 4, 2004.

{¶3} Appellant filed a direct appeal from the August 4, 2004 Judgment Entry in

this Court. We affirmed the trial court’s judgment entry. See, State v. Askew, Stark

App. No. 2004-CA-00275,

.

{¶4} As pertinent to this appeal, Appellant was resentenced by the trial court

pursuant to the direction of the Ohio Supreme Court as pronounced in State v.

Singleton,

,

. The new sentence was journalized

March 23, 2010. It is from that judgment entry Appellant prosecutes this appeal

assigning as error2:

{¶5} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT’S MOTION TO WITHDRAW HIS PLEA.

1 A rendition of the facts is unnecessary for our disposition of this appeal. 2 On September 30, 2010, Appellant filed a Supplemental Brief of Appellant pro se. Appellant was represented by counsel in this appeal, who filed the Brief of Appellant on August 31, 2010. This Court will not recognize Appellant’s pro se supplemental brief as it was submitted without leave of this Court. Stark County, Case No. 2010CA00069 3

{¶6} “II. THE TRIAL COURT ERRED BY ACCEPTING THE APPELLANT’S

GUILTY PLEA WITHOUT ADVISING HIM OF THE CORRECT TERM OF POST-

RELEASE CONTROL.

{¶7} “III. THE TRIAL COURT ERR [SIC] BY DENYING THE APPELLANT’S

MOTION TO SUPPRESS.

{¶8} “IV. THE TRIAL COURT ERRED IN NOT FINDING THE CHARGES OF

POSSESSION COCAINE TO BE ALLIED OFFENSES WITH THE RELATED

CHARGES OF TRAFFICKING IN COCAINE AND MERGE THESE COUNTS FOR

SENTENCING.”

I

{¶9} During his resentencing hearing pursuant to Singleton, Appellant orally

asked to withdraw his plea. The trial court conducted a hearing at that time with respect

to Appellant’s motion. The trial court denied Appellant’s request. In his first assignment

of error, Appellant asserts the trial court abused its discretion by so doing.

{¶10} 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 ex rel. Special Prosecutors v. Judges, Belmont County Court

of Common Pleas (1978),

. The Ohio Supreme Court recently

reaffirmed its holding in Special Prosecutors in State v. Ketterer,

,

. Based upon the foregoing authority, Appellant’s first assignment of

error is overruled. Stark County, Case No. 2010CA00069 4

II, III, & IV

{¶11} Because the same rationale for our decision applies to all three of these

assignments of error, we shall address them together.

{¶12} The entry under review was generated in accordance with the procedure

set forth in Singleton to correct errors and/or deficiencies involving notification and

journalization of post release control sanctions, committed during a defendant’s initial

sentencing. Appellant’s present assignments of error were or could have been raised in

his initial appeal to this Court.

{¶13} This Court has repeatedly held such resentencings do not allow a

defendant to challenge anew his convictions(s) as such is barred under the principles of

law of the case and/or res judicata. This Court’s position has been validated by two

recent Ohio Supreme Court decisions: State v. Ketterer,

, 2006-Ohio-

5283; and State v. Fischer,

. Pursuant to Ketterer and Fischer,

Appellant’s two assignments of error are overruled.

{¶14} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin_____________________ HON. W. SCOTT GWIN

s/ John W. Wise______________________ HON. JOHN W. WISE Stark County, Case No. 2010CA00069 5

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : SERO D. ASKEW : : Defendant-Appellant : Case No. 2010CA00069

For the reasons stated in our accompanying Opinion, the March 23, 2010

Judgment Entry of the Stark County Court of Common Pleas is affirmed. Costs

assessed to Appellant.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

s/ John W. Wise ________________ HON. JOHN W. WISE