State v. Long ( 2014 )

[Cite as State v. Long, 2014-Ohio-2032.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
GUY A. LONG : Case No. 13CA74
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2011-CR-0147 H
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 12, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN J. MAYER, JR. GUY A. LONG # 604650
Prosecuting Attorney Warren Correctional Institution
P.O. Box 120
By: JOHN C. NIEFT Lebanon, OH 45036
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
Richland County, Case No.13CA74 2
Baldwin, J.
{¶1} Defendant-appellant Guy Long appeals from the July 24, 2013 Judgment
Entry of the Richland County Court of Common Pleas. Plaintiff-appellee is the State of
Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 11, 2011, the Richland County Grand Jury indicted appellant on
two counts of possession of drugs in violation of R.C. 2925.11, one count of having a
weapon under disability in violation of R.C. 2923.13, two counts of receiving stolen
property in violation of R.C. 2913.51, and one count of safecracking in violation of R.C.
2911.13. The charges arose from a search of appellant's residence pursuant to a no-
knock search warrant. Appellant also was charged with one count of tampering with
evidence in violation of R.C. 2921.12.
{¶3} On May 18, 2011, appellant filed a Motion to Suppress, challenging the
search warrant. A hearing was held on June 17, 2011. The trial court denied the motion.
{¶4} On September 13, 2011, appellant pled no contest to all the counts except
for one of the receiving stolen property counts which was dismissed. By sentencing
entry filed same date, the trial court sentenced appellant to an aggregate term of seven
years in prison.
{¶5} Appellant filed an appeal, arguing that his trial counsel was ineffective in
failing to attack the sufficiency of the affidavit for the search warrant. Appellant argued
that the affidavit was based on unsubstantiated anonymous tips that were not
corroborated by any other evidence.
Richland County, Case No.13CA74 3
{¶6} Pursuant to an Opinion filed on June 27, 2012 in State v. Long, 5th Dist.
Richland No. 11CA95, 2012 -Ohio- 3091, this Court affirmed the judgment of the trial
court.
{¶7} Previously, while his appeal was pending, appellant, on February 28,
2012, had filed a Motion to Sustain Due Process Rights. Appellant, in his motion,
requested that the trial court “grant a hearing suppressing all evidence from the
unreasonable search and seizure of his home and property.” Appellant, in a motion
filed on March 22, 2012, asked that a hearing be set on his Motion to Suppress. The
trial court, pursuant to a Judgment Entry filed on April 24, 2012, denied appellant’s
request for a hearing, noting that it had ruled on appellant’s Motion to Suppress on
March 21, 2012 and that, therefore, appellant was not entitled to a hearing on such
motion.
{¶8} Appellant, on January 28, 2013, filed another Motion to Sustain Due
Process Rights, arguing that the trial court had failed to do its job and file entries
documenting its decision on hearings. Appellant, in his motion, requested that the trial
court reconsider the suppression issue previously decided. As memorialized in a
Judgment Entry filed on February 4, 2013, the trial court overruled appellant’s January
28, 2013 motion.
{¶9} On February 8, 2012, appellant filed a Motion to Sustain Due Process
Rights. On February 28, 2013, appellant filed a Motion to Grant a Year Old Motion to
Sustain Due Process Rights. Pursuant to a Judgment Entry filed on March 5, 2013, the
trial court overruled appellant’s February 8, 2013 motion on the basis of res judicata.
Richland County, Case No.13CA74 4
{¶10} Thereafter, after filing numerous other motions, appellant, on July 17,
2013, filed a “Motion to Grant the February 28, 2012 Motion to Sustain Due Process
Rights.” Via a Judgment Entry filed on July 24, 2013, the trial court stated, in relevant
part as follows: “Defendant’s motion to sustain was overruled on March 5, 2013 and
therefore the Motion to Grant is moot.”
{¶11} Appellant now appeals from the trial court’s July 24, 2013 Judgment Entry,
raising the following assignments of error on appeal:
{¶12} 1. TRIAL COURT ERRED WHEN IT ISSUED THIS 2013 JULY 24TH
JUDGMENT ENTRY STATING APPELLANTS (SIC) 2012 FEB. 28TH PETITION WAS
OVERRULED ON 2013 MAR 5TH WHEN THE 2013 MARCH 5TH ENTRY OVERRULED
A 2013 FEB 8TH “CLEARLY STATED” 2013 FEB 8TH PETITION.
{¶13} 2. TRIAL COURT DENIAL OF FEDERAL CONSTITUTIONAL RIGHTS.
{¶14} 3. TRIAL COURT VIOLATED APPELLANTS (SIC) RIGHTS UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I SECTION 10 & 14 OF THE OHIO CONSTITUTION
WHEN IT ALLOWED THE USE OF EVIDENCE WHICH WAS OBTAINED AS A
RESULT OF AN INVALID SEARCH WARRANT.
{¶15} 4. PLEA AGREEMENT BETWEEN PROSECUTOR, APPELLANT &
COUNSEL (WAS) NOT HONORED.
{¶16} 5. TRIAL COURT CONVICTED APPELLANT OF WEAPONS UNDER
DISABILITY FOR A GUN THAT WAS NOT OPERABLE.
ASSIGNMENTS 1-5
Richland County, Case No.13CA74 5
{¶17} While appellant raises numerous issues on appeal, the only Judgment
Entry appealed from was the trial court’s July 24, 2013 Judgment Entry. As is stated
above, such entry held that appellant’s Motion to Grant the February 28, 2012 Motion to
Sustain Due Process Rights was moot because appellant’s Motion to Sustain was
overruled on March 5, 2013.
{¶18} It appears that the trial court’s March 5, 2013 overruled appellant’s
February 8, 2013 Motion to Sustain Due Process Rights rather than his February 28,
2012 Motion to Sustain Due Process Rights. However, assuming that appellant is
correct and that the trial court never actually ruled on his February 28, 2012 motion,
when a trial court fails to rule upon a motion, it will be presumed that it was overruled.”
Georgeoff v. O'Brien , 105 Ohio App. 3d 373, 378, 663 N.E.2d 1348 (1995). We note
that appellant has filed at least three Motions to Sustain Due Process Rights, all raising
similar issues, along with numerous other motions.
{¶19} Moreover, while appellant argues the trial court never ruled on his Motion
to Suppress, this Court, in our previous Opinion, stated that the trial court had overruled
appellant’s Motion to Suppress and also found that the search warrant was proper.
Furthermore, the transcript of the June 17, 2011 suppression hearing clearly provides
that the trial court overruled appellant’s Motion to Suppress.
{¶20} Finally, while appellant raises a number of other claims in his appeal, we
find that such claims are barred by the doctrine of res judicata. Appellant had a prior
opportunity to litigate the claims he now sets forth in the instant appeal in his direct
appeal. Such claims, therefore, are barred under the doctrine of res judicata. State v.
Perry, 10 Ohio St. 2d 175, 180, 226 N.E.2d 104 (1967). The Perry court explained the
Richland County, Case No.13CA74 6
doctrine as follows: “Under the doctrine of res judicata, a final judgment of conviction
bars the convicted defendant from raising and litigating in any proceeding, except an
appeal from that judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial which resulted in that
judgment of conviction or on an appeal from that judgment.” Id.
{¶21} Appellant’s five assignment of error are, therefore, overruled.
{¶22} Accordingly, the judgment of the Richland County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.