In re Helfrich

2014 Ohio 1933

IN THE MATTER OF JAMES HELFRICH

Case No.13CA20

COURT OF APPEALS OF OHIO FIFTH APPELLATE DISTRICT LICKING COUNTY

May 2, 2014

DECISION AND

JUDGMENT ENTRY

APPEARANCES:

James Helfrich, Pataskala, Ohio, pro se appellant.

Kenneth W. Oswalt, Licking County Prosecuting Attorney, and Mark A. Zanghi, Licking County Assistant Prosecuting Attorney, Newark, Ohio, for appellee, State of Ohio.

* Harsha, J.:

{¶1} James Helfrich, who is a vexatious litigator under R.C. 2323.52, appeals from a 2013 judgment finding him in contempt of court and sentencing him to concurrent terms of 20 days in jail, fining him $500, and ordering him to pay court costs.

{¶2} Initially, the state has argued that Helfrich's appeal is moot because he served his jail sentence and filed an essay in lieu of paying the fine. However, he neither acquiesced in the judgment nor intentionally abandoned his right to appeal. Therefore, we reject this argument.

{¶3} Next, we cannot address the merits of the October 26, 2011 finding of contempt because the trial court never imposed a sanction on that finding. Nor did the trial court rely on that finding of contempt to increase the sentence on Helfrich's current contempt convictions. Therefore, we dismiss Helfrich's appeal insofar as he attempts to address the court's October 26, 2011 finding of contempt.

{¶4} Helfrich also claims that the trial court's March 15, 2011 instructions do not constitute a valid court order. However, res judicata bars him from relitigating thismatter, which he previously raised in a writ action. Moreover, the trial court did not find him in contempt of these instructions in the convictions that are properly before us. Helfrich's initial claim is meritless.

{¶5} Helfrich primarily argues that the trial court's 2013 finding of criminal contempt is not supported by the evidence. But because Helfrich did not provide a transcript of the contempt trial, he cannot overcome the presumption of validity that surrounds the court's orders. Moreover, the statements made by Helfrich in the filings below support the trial court's determination that they were made for the sole purpose to intimidate the trial court judge and the Justices of the Supreme Court of Ohio, embarrass, impede, and obstruct the trial court judge in the performance of his function as the presiding judge in the case, and to bring the administration of justice into disrespect.

{¶6} Helfrich also complains the trial court denied him due process when it initially informed him it would consolidate the 21 citations for contempt into one count, but subsequently considered the citations in three separate counts. However, he overlooks the fact that subsequent to its initial pronouncement, the court issued a superseding contempt order that repackaged the citations into the five counts, three of which resulted in guilty findings. Therefore, the trial court sufficiently informed Helfrich of the charges and penalties he was facing so that any restructuring of the citations did not prejudice his ability to prepare and defend himself against the charges. Therefore, we reject Helfrich's claims challenging the propriety of his convictions for criminal contempt.

{¶7} Helfrich next argues that the trial court erred when it ordered that he be released under electronic monitoring house arrest for seven days and failed to credit these seven days towards his 20-day jail sentence. However, Helfrich has not established that the trial court abused its discretion in setting house arrest with electronic monitoring as a condition of his release pending sentencing; nor does the condition constitute confinement in lieu of bail entitling him to jail-time credit.

{¶8} Helfrich finally claims that the trial court erred in assessing all of the costs against him. We agree because the trial court included costs that were unrelated to the prosecution of the contempt charges that are the subject of this appeal.

{¶9} Therefore, we dismiss Helfrich's appeal insofar as he attempts to contest the trial court's October 26, 2011 contempt finding; we affirm the judgment involving Helfrich's 2013 contempt convictions and sentence; and we reverse the judgment assessing all costs against him and remand for further proceedings.

I. Facts

{¶10} On March 4, 2011, Judge Richard M. Markus, sitting by assignment in the Licking County Court of Common Pleas, declared Helfrich to be a vexatious litigator under R.C. 2323.52. See http://sc.ohio.gov/ Clerk/vexatious/helfrichJ_030411.pdf. The common pleas court required Helfrich to comply with R.C. 2323.52 by filing an application for leave to proceed if he proposed to file or continue to assert any civil case without duly authorized counsel in the Court of Claims of Ohio or any county, municipal, or common pleas court in the state. Id. We affirmed the trial court's declaration that Helfrich is a vexatious litigator because of "overwhelming evidence that [he] files unnecessary, inappropriate, or supernumerary pleadings and motions" and hisinsistence "on raising and re-raising arguments which have been rejected by the trial court, and this Court, sometimes repeatedly." Helfrich v. Madison, 5th Dist. Licking No. 11 CA 26, 2012-Ohio-551, ¶ 62, appeal not accepted for review, 132 Ohio St.3d 1515, 2012-Ohio-4021, 974 N.E.2d 113.

{¶11} On March 15, 2011, Judge Markus issued an order setting forth procedural requirements for Helfrich to obtain leave of court to commence or pursue any civil case in a state trial court. (OP2) The order appears in Licking County C.P. case No. 2011 MD 0006, the case in which all of Helfrich's applications for leave to proceed were required to be filed. (Id.) The order required that Helfrich's applications for leave be typewritten or on printer font and include an attached typewritten or printer font copy of his pleading for the proposed action and one or more affidavits with any necessary supporting material to show the factual basis for each claim in the pleading. (Id.)

{¶12} After the trial court denied Helfrich's application for leave to file an eviction action because he failed to comply with the trial court's March 15, 2011 order, Helfrich filed an application in this court to appeal that order. He also filed a mandamus claim challenging that order. (OP6) We denied Helfrich's application because we were "not satisfied that these proceedings are not an abuse of process" and there did "not appear to be reasonable grounds for either of these actions." (OP8) The Supreme Court of Ohio dismissed Helfrich's appeal from our judgment. Helfrich v. State ex rel. Markus, 129 Ohio St.3d 1446, 2011-Ohio-4217, 951 N.E.2d 1044. Helfrich later filed a petition in the Supreme Court for writs of prohibition and mandamus against Judge Markus in which he specifically challenged the propriety of the judge's March 15, 2011 order. Seehttp://www.sconet.state.oh.us/pdf_viewer/pdf_viewer.aspx?pdf=707326. Pdf. The Supreme Court dismissed the cause. State ex rel. Helfrich v. Markus, 132 Ohio St.3d 1460, 2012-Ohio-3054, 969 N.E.2d 1229.

{¶13} On October 17, 2011, Judge Markus issued an order requiring Helfrich to appear and show cause why he should not be held in contempt of court and sanctioned for "multiple, deliberate violations" of the court's March 15, 2011 instructions. Following a hearing, the trial court found Helfrich to be in contempt of court on October 26, 2011 for repeatedly violating its instructions. The trial court decided to "impose no penalty beyond its warnings about penalties for future contumacious conduct." On March 12, 2012, we dismissed Helfrich's appeal from the trial court's first contempt entry for lack of a final, appealable order.

{¶14} On August 30, 2012, Helfrich filed an application in the trial court to proceed in two separate eviction cases that he had an attorney file on his behalf in the Licking County Municipal Court. Notwithstanding the trial court's instructions, Helfrich did not attach any supporting affidavits to his application. Id. Helfrich's application contained the following unsupported statements:

[1.] The Supreme Court itself is no better than [Judge] Markus, it had denied Helfrich right of review to challenge [Judge] Markus' actions. In the kindest words, Helfrich has filed direct appeals to challenge [Judge] Markus' violations of the statute and the Supreme Court has been lazy, unlawful and acted to deny Helfrich's Constitutional Rights.

[2.] Let's cut to the chase, both of these complaints were filed by a member of the bar. Helfrich does not apologize to this court for exercising his freedom of speech. He knows now that specifically Chief Justice Maureen O'Connor is nothing but a lazy hypocrite.

[3.] [Judge Markus] ha[s] no credibility and * * * make[s] up laws for [his] own good.

[4.] Chief Justice Moyer has acted no better than a dictator in a third world country.

[5.] [Judge] Markus and the Supreme Court have unlawfully utilized their positions to deny the right of review, freedom of speech and constitutional rights.

{¶15} After Judge Markus denied Helfrich's application, Helfrich filed an application to proceed in one of the previously specified eviction cases on December 4, 2012. Attached to this application were an affidavit from Helfrich as well as unsigned affidavits bearing the names of Judge Markus, Chief Justice Maureen O'Connor, Justices Terrence O'Donnell and Judith Lanzinger, and then Justice Robert Cupp, which had been faxed to them by Helfrich.

{¶16} The affidavit presented by Helfrich to Judge Markus included the following unsupported statements:

[1.] I have used my judicial power and influence to build a house of cards to agitate and discriminate against James Helfrich. * * * I will continue to harass and discriminate against Mr. Helfrich.

[2.] I put the burden on Mr. Helfrich to prove he was not a Vexatious Litigator * * *. * * * During that trial, I had a pre-conceived opinion of Mr. Helfrich, and I formulated questions so I could get answers to support my opinion.

[3.]

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