State v. Harper ( 2012 )

[Cite as State v. Harper, 2012-Ohio-3541.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 12CA000003
HENRY N. HARPER 12CA000008
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of
Common Pleas, Case No. 10 CR 70
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 30, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL G. PADDEN HENRY N. HARPER, PRO SE
Guernsey County Prosecuting Attorney A638-859
139 West 8th Street P.O. Box 5500
P.O. Box 640 Chillicothe, Ohio 45601
Cambridge, Ohio 43725
Guernsey County, Case No. 12CA000003, 12CA000008 2
Hoffman, P.J.
{¶1} In Guernsey App. No. 12CA000003, Defendant-appellant Henry Harper
appeals the January 10, 2012 Judgment Entry entered by the Guernsey County Court
of Common Pleas, which denied his Motion for Sentence Reduction. In Guernsey App.
No. 12CA000008, Appellant appeals the January 25, 2012 Judgment Entry entered by
the same, which denied his petition for post conviction relief. Plaintiff-appellee is the
state of Ohio.
STATEMENT OF THE CASE1
{¶2} On May 25, 2010, the Guernsey County Grand Jury indicted Appellant on
one count of having weapons while under disability, in violation of R.C. 2923.13, with a
firearm specification, a felony of the third degree; tampering with evidence, in violation
of R.C. 2921.12(A)(1), a felony of the third degree; discharge of firearm on or near
prohibited premises, in violation of R.C. 2923.162, a misdemeanor of the first degree;
and kidnapping in violation of R.C. 2905.01(A)(1) and (2), with a firearm specification, a
felony of the first degree.
{¶3} The matter proceeded to jury trial. After hearing all the evidence and
deliberations, the jury found Appellant guilty of having weapons while under disability
and the attendant firearm specification; discharge of firearm on or near prohibited
premises; and kidnapping. The jury found Appellant not guilty of the tampering charge.
The trial court sentenced Appellant to an aggregate term of imprisonment of eight (8)
years.
1
A Statement of the Facts underlying Appellant’s conviction is not necessary for our
disposition of this Appeal.
Guernsey County, Case No. 12CA000003, 12CA000008 3
{¶4} Appellant filed a timely appeal to this Court, raising three assignments of
error:
{¶5} “I. THE DECISION WAS AGAINST THE SUFFICIENCY AND MANIFEST
WEIGHT OF THE EVIDENCE.
{¶6} “II. THE TRIAL COURT COMMITTED ERROR BY IMPROPERLY
CHARGING THE JURY.
{¶7} “III. APPELLANT WAS DENIED HIS RIGHT BECAUSE OF INEFFECTIVE
ASSISTANCE OF COUNSEL.”
{¶8} This Court affirmed Appellant’s conviction and sentence. State v. Harper,
5th Dist. No. 2010-CA-44, 2011-Ohio-4568.
{¶9} Appellant filed an application to reopen his appeal which this Court denied
via Judgment Entry filed November 23, 2011. On December 20, 2011, Appellant filed a
“Motion to Object to Fifth District Court of Appeals Denial of Application for Reopening
App. R. (26)B”, and a “Motion to Amend Prosecutor’s Appellee Brief Fifth District Court
of Appeals Opinion of Case No. 10 CA 44”. Via Judgment Entry filed January 5, 2012,
this Court denied the motions treating such as second attempts to reopen his appeal.
This Court also found we were prohibited from considering the second application for
reopening pursuant to the doctrine of res judicata.
{¶10} Appellant filed a Motion for Sentence Reduction in the trial court on
November 22, 2011, and a memorandum in support thereof on December 13, 2011.
The State filed a memorandum contra, to which Appellant filed a reply. The trial court
denied the motion for sentence reduction via Judgment Entry filed January 10, 2012.
Guernsey County, Case No. 12CA000003, 12CA000008 4
On January 19, 2012, Appellant filed a Petition for Post Conviction Relief which the trial
court denied via Judgment Entry filed January 25, 2012.
{¶11} It is from the January 10, 2012 Judgment Entry Appellant appeals in
Guernsey App. No. 12CA000003, raising the following assignments of error:
{¶12} “I. HAVING WEAPONS WHILE UNDER DISABILITY: IMPROPER
DEGREE OF FELONY.
{¶13} “II. PERJURY OHIO REVISED CODE 2921.11 EVIDNCE [SIC] RULE
602: DETECTIVE SAM WILLAIMS [SIC] COMMITTED PERJURY AT TRIAL UNDER
OATH WHEN HE TESTIFIED THAT HE HAD A COPY OF A COMPUTERIZED
CRIMINAL HISTORY ON THRE [SIC] APPELLANT HENRY N. HARPER SHOWING A
1985 FELONY CONVICTION ALSO VIOLATING EVIDENCE RULE 602.
{¶14} “III. CONSECUTIVE SENTENCING OHIO REVISED CODE 2929.41 WAS
IMPROPER DUE TO THE FACT OF JUDICIAL FACT-FINDING MUST OCCUR
BEFORE CONSECUTIVE SENTENCES MAY BE IMPOSED UNDER O.R.C.
2929.14(E)(4).
{¶15} “IV. KIDNAPPING OHIO REVISED CODE 295.01 NO ELEMENTS OF
THE CRIME OF KIDNAPPING WERE PROVEN AT TRIAL. THERE IS NO
KIDNAPPING VICTIM.
{¶16} “V. GUN SPECIFICATIO N [SIC] OHIO REVISED CODE 2941.145 GUN
SPECIFICATION OF O.R.C. IS IMPROPER AND CONTRARY TO LAW. NONE OF
THE ELEMENTS FOR A GUN SPEC. O.R.C. 2941.145 WERE PROVEN AT THE
TRIAL.”
Guernsey County, Case No. 12CA000003, 12CA000008 5
{¶17} It is from the January 25, 2012 Judgment Entry Appellant appeals in
Guernsey App. No. 12CA000008, raising as error:
{¶18} “I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL: LINDSEY K.
DONEHUE.
{¶19} “II. INCORRECT CHARGE OF DEGREE OF FELONY: PERJURY O.R.C.
2921.11.
{¶20} “III. UNITED STATES CONSTITUTIONAL RIGHTS VIOLATION
AMENDMENT FOUR.
{¶21} “IV. UNITED STATES CONSTITUTIONAL RIGHT VIOLATION
AMENDMENT SIX: [SIC] FIVE, FOURTEEN.
{¶22} “V. NO EVIDENCE TO SUPPORT THE ELEMENT OF EITHER CRIME
WERE PROVEN.”
CASE NO. 2012CA000003
CASE NO. 2012CA000008
I, II, III, IV, V
{¶23} Because our disposition of Appellant’s five assignments of error in both
Appeals requires the same analysis, we shall address said assignments of error
together.
{¶24} “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
Guernsey County, Case No. 12CA000003, 12CA000008 6
conviction or on an appeal from that judgment.” State v. Perry (1967), 10 Ohio St.2d
175, paragraphs eight and nine of the syllabus.
{¶25} In his direct appeal, Appellant asserted three assignments of error, which
are set forth supra. To summarize, Appellant's first assignment of error challenged the
sufficiency and weight of the evidence; his third assignment of error challenged the
effectiveness, or lack thereof, of trial counsel; and his remaining assignment of error
challenged the propriety of the jury instructions. As stated supra, we affirmed
Appellant’s conviction and sentence, finding these assignments of error to be without
merit.
{¶26} In the instant appeals, Appellant again challenges the sufficiency and
weight of the evidence as well as the effectiveness of trial counsel. Because Appellant
raised these issues on direct appeal, he is barred by the doctrine of res judicata from
relitigating such again.
{¶27} Appellant did not, however, on direct appeal, challenge the
constitutionality of his conviction and sentence, or the alleged perjury of Detective Sam
Williams when he testified regarding Appellant’s criminal history. These issues could
have been raised on direct appeal. Having failed to do so, Appellant is likewise barred
by the doctrine of res judicata to assert these two claims.
Guernsey County, Case No. 12CA000003, 12CA000008 7
{¶28} Appellant’s first, second, third, fourth, and fifth assignments of error in
Guernsey No. 2012CA000003 are overruled. Appellant’s first, second, third, fourth, and
fifth assignments of error in Guernsey Case No. 2012CA000008 are overruled.
By: Hoffman, P.J.
Wise, J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise______________________
HON. JOHN W. WISE
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Guernsey County, Case No. 12CA000003, 12CA000008 8
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
HENRY N. HARPER :
:
Defendant-Appellant : Case No. 12CA000003
For the reasons stated in our accompanying Opinion, the judgment of the
Guernsey County Court of Common Pleas Costs is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________
HON. JOHN W. WISE
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
HENRY N. HARPER :
:
Defendant-Appellant : Case No. 12CA000008
For the reasons stated in our accompanying Opinion, the judgment of the
Guernsey County Court of Common Pleas Costs is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise______________________
HON. JOHN W. WISE
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS