[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. Thus, Henderson is forewarned that the continued filing of appeals or
original actions, that are not reasonably grounded in fact or warranted by
existing law, shall result in the declaration of him being a vexatious
litigator.
Id. at ¶ 19.
{¶7} In State ex rel. McGrath v. McClelland, 8th Dist. Cuyahoga No. 97209,
2012-Ohio-157, this court determined, in a similar situation, that a party’s conduct in
refiling original actions premised on the same arguments already determined to be
without merit by the appellate court, constituted grounds to deem the party a vexatious
litigator pursuant to Loc.R. 23(A). Id. at ¶ 7. McGrath filed two unsuccessful original
actions based on the claim that his sentence was defective. Id. at ¶ 6. In deciding relief
was unwarranted, that court noted that McGrath “ha[d] continually taxed the limited
resources of this court through the filing of 23 appeals and 13 original actions over the
past 10 years.” Id. This court also imposed prospective filing restrictions based on that
finding. Id. at ¶ 7.
{¶8} In the current case, Henderson previously and unsuccessfully filed an original
action, titled as a writ of procedendo/mandamus, and now another appeal, alleging the
same facts and issues raised in his direct appeal. This is Henderson’s third attempt to
litigate the same disputes advanced in Henderson I. We, sua sponte, find Henderson to
be a vexatious litigator under Loc.App.R. 23. In addition to attempting to prosecute the
same arguments a third time, Henderson has filed ten appeals and eighteen original
actions since 1999, several of which were not reasonably grounded in fact or warranted
by existing law. Saffold, 8th Dist. Cuyahoga No. 100406, 2014-Ohio-306, ¶ 19; see,
e.g., Henderson v. State, 8th Dist. Cuyahoga No. 97042,
2011-Ohio-5679; Henderson v.
Saffold, 8th Dist. Cuyahoga No. 94769,
2010-Ohio-2609; Henderson v. Shaffer, 8th Dist.
Cuyahoga No. 94485,
2010-Ohio-915; Henderson v. Saffold, 8th Dist. Cuyahoga No.
94581,
2010-Ohio-536; Henderson v. Houk, 8th Dist. Cuyahoga No. 94426,
2010-Ohio-368; Henderson v. Houk, 8th Dist. Cuyahoga No. 94254,
2009-Ohio-6475;
Henderson v. Saffold, 8th Dist. Cuyahoga No. 93449,
2009-Ohio-4028; State ex rel.
Henderson v. Friedman, 8th Dist. Cuyahoga No. 84309,
2004-Ohio-3106; Henderson v.
Lebarron, 8th Dist. Cuyahoga No. 84030,
2004-Ohio-1002; State ex rel. Henderson v.
McCormick, 8th Dist. Cuyahoga No. 77008,
1999 Ohio App. LEXIS 5226 (Nov. 4, 1999).
Accordingly, Henderson is prohibited from instituting any future legal proceedings in
the Eighth District Court of Appeals without first obtaining leave. He is further
prohibited from filing any proceedings in the Eighth District Court of Appeals without the
filing fee and security for costs required by Loc.App.R. 3(A). See McGrath, 8th Dist.
Cuyahoga No. 97209,
2012-Ohio-157. Any request to file an appeal or original action
shall be submitted to the clerk of this court for the court’s review.
{¶9} We affirm the judgment of the trial court. It is further ordered that
Henderson be declared a vexatious litigator pursuant to Loc.App.R. 23. It is ordered
that appellee recover from appellant costs herein taxed.
The court finds there were no reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
TIM McCORMACK, J., CONCUR
