[Cite as State v. Tackett, 2015-Ohio-4923.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-A-0070
- vs - :
DALE L. TACKETT, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011
CR 159.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).
Dale L. Tackett, pro se, PID: A623-605, Richland Correctional Institution, P.O. Box
8107, 1001 Olivesburg Road, Mansfield, OH 44905 (Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant Dale L. Tackett was convicted of one count of operating a
vehicle while under the influence of alcohol (OVI) with a specification that he was
convicted of five prior OVI offenses in the past 20 years. In a collateral attack on his
conviction, Tackett argued that the trial court should “void and vacate” the specification
to his OVI conviction and also argued his specification violates the Due Process and
Equal Protection Clauses to the U.S. and Ohio Constitutions. The trial court overruled
the motion. On appeal, Tackett claims the trial court erred. For the following reasons,
we affirm.
{¶2} We previously detailed the facts underlying Tackett’s conviction in State v.
Tackett, 11th Dist. Ashtabula No. 2012-A-0015, 2013-Ohio-4286. Consequently, we
will only briefly recite the underlying facts from Tackett’s prior appeal as necessary.
{¶3} A police officer initiated a traffic stop after he observed Tackett passing
another vehicle at a high rate of speed in a no passing zone. The officer asked Tackett
to perform field sobriety tests which Tackett failed. Consequently, Tackett was
arrested for violating Ohio’s OVI statute.
{¶4} A jury found Tackett guilty of two counts of operating a vehicle under the
influence with the accompanying specification that Tackett had five prior OVI
convictions in the past 20 years. The trial court found the offenses merged for
sentencing purposes and sentenced Tackett to a 120-day mandatory sentence for the
OVI and a consecutive two-year sentence on the specification. On appeal, we found
that the trial court’s 120-day sentence for the OVI was contrary to law as the minimum
mandatory sentence was one year. Id. ¶13. Consequently, we remanded the case to
the trial court for resentencing. On remand the trial court sentenced Tackett to a
mandatory one year sentence on the OVI count and a consecutive two-year sentence
on the specification.
{¶5} On April 4, 2014, Tackett filed a motion for judicial release. On April 18,
2014, Tackett filed a motion to vacate void judgment and sentence for good cause and
correct judgment entry of sentence. The trial court overruled both motions on June 4,
2014, and Tackett appealed those orders to this court. While that appeal was pending,
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on August 18, 2014, Tackett filed a motion to void and vacate the specification to his
OVI offense. The trial court overruled the motion, and this appeal followed.
{¶6} As his first assignment of error, Tackett alleges:
{¶7} “[The] trial court erred by not accepting jurisdiction of appellant’s motion to
void and vacate specification to OVI.”
{¶8} Within this assignment, Tackett argues that the trial court erred in
concluding it lacked jurisdiction because, as we understand it, his motion currently
under review is a petition for post-conviction relief, and his prior appeals were a direct
appeal from his conviction. As jurisdiction is a question of law, we review de novo.
City of Akron v. Ohio Dept. of Ins., 10th Dist. Franklin Nos. 13AP-473, 13AP-486,
13AP-483, 13AP-496, Nos. 13AP-484 and 13AP-495, 2014-Ohio-96, ¶21. Tackett is
incorrect that his other appeal is a direct appeal from his conviction. Rather, that
appeal concerns the trial court’s denial of other post-final judgment motions concerning
the propriety of his sentence.
{¶9} Furthermore, the trial court correctly concluded it lacked jurisdiction.
When an appeal is taken from a trial court, the trial court is divested of jurisdiction
“‘except to take action in aid of the appeal, until the case is remanded to it by the
appellate court.’” State ex rel. Special Prosecutors v. Judges, Court of Common Pleas,
55 Ohio St.2d 94, 97 (1978), quoting 7 Moore's Federal Practice (2 Ed.) 419,
Paragraph 60.30[2]. Tackett had already appealed motions which challenged the
propriety of his sentence. The underlying motion seeking to vacate and void Tackett’s
OVI specification would not aid Tackett’s other appeal. Consequently, the trial court
lacked jurisdiction to rule on the motion.
{¶10} The first assignment of error is without merit.
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{¶11} As his second assignment of error, Tackett asserts:
{¶12} “Because R.C. 4511.19 contains two different penalties for persons who
have committed six offenses within twenty years with no difference of proof required to
trigger the greater penalties, R.C. 4511.19 violates due process and equal protection.”
{¶13} As best we can tell, Tackett claims the imposition of his sentence on the
specification violates the Equal Protection Clause of the U.S. and Ohio Constitutions
because the state did not have to prove any additional facts apart from his underlying
offense. He also alleges the same argument makes his punishment arbitrary and thus
violates the Due Process Clauses of the U.S. and Ohio Constitutions. The state
argues Tackett’s arguments are barred by res judicata. We agree with the state. Res
judicata bars a defendant from raising an issue in a post-conviction proceeding that he
failed to raise on direct appeal. State v. Adams, 11th Dist. Trumbull No. 2003-T-0064,
2005-Ohio-348, ¶38. Tackett failed to raise these issues in his direct appeal, and
therefore he cannot raise them now. Tackett, supra.
{¶14} The second assignment of error is without merit.
{¶15} The judgment of the Ashtabula County Court of Common Pleas is
affirmed.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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