STATE OF OHIO -vs- ROMERO BATTIGAGLIA

Canton, Ohio - Criminal defense attorney represented Romero Battigaglia with Driving While Under the Influence of Alcohol or Drugs (OVI), Driving Under Suspension or Violation of License Restriction, Leaving the Scene, Signals Before Changing Course charges.

Appellant was charged with Driving While Under the Influence of Alcohol or

Drugs (OVI) in violation of R.C. 4511.19, Driving Under Suspension or Violation of

License Restriction in violation of R.C. 4510.11, Leaving the Scene in violation of R.C.

4549.02, Signals Before Changing Course in violation of R.C. 4511.39, and Endangering

Children in violation of R.C. 2919.22.

{¶3} On October 6, 2009, a pretrial hearing was held. At the hearing, Appellant

appeared with Attorney Matthew Kuhn and entered a plea of No Contest to all counts.

{¶4} On October 6, 2009, the Canton Municipal Court sentenced Appellant to

costs associated with each count, 180 days in jail for the Endangering Children, $625 and

180 days in jail for OVI, 180 days in jail for Driving Under Suspension or Violation of

License Restriction, 180 days in jail for Leaving the Scene, and no jail time for Signals

Before Changing Course. All jail sentences are to be served concurrent to each other.

Appellant did not directly appeal the judgment entry of October 6, 2009.

{¶5} Separately, on September 17, 2009, Appellant was charged in the Portage

County Court of Common Pleas with OVI in violation of R.C. 4511.19, Driving Under

Suspension or Violation of License Restriction in violation of R.C. 4510.11, Reckless

Operation in violation of R.C. 4511.20, Hit Skip in violation of R.C. 4549.021, Stopping Stark County, Case No. 2020 CA 00144 3

After Accident in violation of R.C. 4549.02. Appellant entered a plea of not guilty to all

charges.

{¶6} On September 22, 2009, Appellant was appointed a Public Defender.

{¶7} On January 15, 2010, the Portage County Prosecutor dismissed all charges

filed on September 17, 2009.

{¶8} On February 23, 2010, Appellant was charged in the Portage County Court

of Common Pleas with Failure to Comply with an order from a police officer in violation of

R.C. 2921.331, Vandalism in violation of R.C. 2909.05, Grand Theft in violation of R.C.

2913.02, Endangering Children in violation of R.C. 2919.22, Failure to Stop After Accident

in violation of R.C. 4549.02, and Driving Under Suspension in violation of R.C. 4510.11,

OVI in violation of R.C. 4511.19.

{¶9} On March 19, 2010, Appellant was appointed a Public Defender.

{¶10} On May 4, 2010, Appellant, in the presence of counsel, entered a plea of

guilty to Failure to Comply with an Order or Signal of a Police Officer, a felony in the third

degree; Endangering Children, a misdemeanor in the first degree; and OVI, a

misdemeanor in the first degree.

{¶11} On September 4, 2020, Appellant filed a Motion to Vacate Void Judgment

on the ground of "double jeopardy” and that he was not afforded his Sixth Amendment

right to have the "assistance of counsel.”

{¶12} On September 8, 2020, the trial court denied Appellant's Motion to Vacate

Void Judgment.

Stark County, Case No. 2020 CA 00144 4

ASSIGNMENTS OF ERROR

{¶13} On October 5, 2020, Appellant filed a notice of appeal. He herein raises the

following three Assignments of Error:

{¶14} "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, BY

FAILING TO DETERMINE APPELLANT'S ELIGIBILITY FOR COURT APPOINTED

COUNSEL AND PROVIDING COURT APPOINTED COUNSEL TO APPELLANT, IN

VIOLATION OF APPELLANT'S RIGHTS PURSUANT TO THE SIXTH AND

FOURTEENTH AMENDMENTS.

{¶15} "II. THE TRIAL COURT COMMITTED PLAIN ERROR, REVERSIBLE

ERROR, TO THE PREJUDICE OF APPELLANT WHEN IT ACCEPTED APPELLANT'S

GUILTY PLEA WITHOUT FIRST DETERMINING WHETHER THE CRIMES CHARGED

CONSTITUTED DOUBLE JEOPARDY.

{¶16} "III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

ACTUALLY CONSIDER APPELLANT'S ARGUMENTS PRESENTED IN HIS MOTION

TO VACATE VOID JUDGMENT, THE TRIAL COURT FURTHER ABUSED ITS

DISCRETION WHEN IT FAILED TO ORDER TRANSCRIPTS TO SUPPORT

APPELLANT'S CLAIMS.”

I., II., III.

{¶17} In Appellant's Assignments of Error, Appellant argues the trial court erred

by denying his Motion to Vacate Void Judgment because he was not represented by

counsel, and that his prosecution in this matter was barred by the Double Jeopardy

Clause of the United States and State of Ohio's Constitution. We disagree. Stark County, Case No. 2020 CA 00144 5

{¶18} When reviewing the denial of a motion to dismiss an indictment on the

ground of double jeopardy, we apply a de novo standard of review. State v. Anderson,

148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶20.

{¶19} The Ohio Supreme Court has clarified the distinction between void and

voidable sentences. In State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162

N.E.3d 776, ¶43, the Court held,

A judgment or sentence is void only if it is rendered by a court that

lacks subject-matter jurisdiction over the case or personal jurisdiction over

the defendant. If the court has jurisdiction over the case and the person,

any sentence based on an error in the court's exercise of that jurisdiction is

voidable. Neither the state nor the defendant can challenge the voidable

sentence through a post-conviction motion.

{¶20} The Supreme Court observed,

There is no dispute that the trial court's sentence was

unlawful. Former R.C.2929.02(B), Am.Sub.S.B. No. 107, 157 Ohio

Laws, Part IV, 7435 required that Henderson receive and indefinite

sentence of 15 years to life, and the court failed to impose that

sentence. The state had a full and fair opportunity to object to or

challenge the trial court's sentence. It did not. In fact, it did not seek

to correct the error for almost 12 years, and it then waited 6 more

years before filing the motion at issue in this appeal. Because the

sentencing error rendered the sentence voidable, the state's attempt

to correct the error in a postconviction motion for resentencing was Stark County, Case No. 2020 CA 00144 6

improper. Henderson at ¶40. See also, State v. Tate, 5th Dist.

Richland No. 2019CA119, 2020-Ohio-4980.

{¶21} In the case sub judice, Appellant had a full and fair opportunity to challenge

the voidable sentence on direct appeal. Appellant waited over ten years before filing the

motion in the trial court. Because any alleged error in the manner in which the trial court

accepted Appellant's plea of no contest rendered the sentence voidable, Appellant's

attempt to correct the error in a post-conviction motion is improper. Accordingly, the trial

court did not err in denying Appellant's Motion to Vacate Void Judgment.

{¶22} Appellant's First, Second, and Third Assignments of Error are overruled.

For the foregoing reasons, the judgments of the Court of Common Pleas of Stark County, Ohio, are hereby affirmed.