State v. Harper , 2013 Ohio 1781 ( 2013 )

[Cite as State v. Harper, 2013-Ohio-1781.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
HENRY HARPER : Case No. 12 CA 22
:
:
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: April 26, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
DANIEL G. PADDEN HENRY HARPER, PRO SE
Prosecuting Attorney A638-859
139 West 8th Street P.O. Box 5500
Cambridge, OH 43725 Chillicothe, OH 45601
Baldwin, J.
{¶1} Appellant Henry Harper appeals a judgment of the Guernsey County
Common Pleas Court denying his petition to set aside or vacate his judgment of
conviction and sentence. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶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, one count of tampering with
evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree, one count of
discharge of firearm on or near prohibited premises in violation of R.C. 2923.162, a
misdemeanor of the first degree, and one count of kidnapping in violation of R.C.
2905.01(A)(1) and (2), with a firearm specification, a felony of the first degree. At his
arraignment on June 8, 2010, appellant pled not guilty to the charges.
{¶3} The matter proceeded to jury trial. The jury found appellant guilty of
having weapons while under disability, discharge of firearm on or near prohibited
premises and kidnapping. The jury also found that appellant, with respect to the
kidnapping charge, had a firearm on or about his person or under his control. The jury
found appellant not guilty of the tampering charge. The trial court sentenced appellant
to an aggregate term of imprisonment of eight years.
{¶4} Appellant filed a timely appeal to this Court, raising the following
assignments of error on appeal:
{¶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} Pursuant to an Opinion filed on September 9, 2011, this Court affirmed
appellant's conviction and sentence. State v. Harper, 5th Dist. No. 2010–CA–44,
2011–Ohio–4568.
{¶9} On November 22, 2011, appellant filed a Motion for Sentence Reduction
in the trial court. The trial court denied the Motion for Sentence Reduction on January
10, 2012.
{¶10} On January 19, 2012, appellant filed a Petition for Post-Conviction
Relief. Appellant alleged that the trial court had erred in failing to inform his wife, Tina
Harper, that she did not have to testify against appellant, that his trial counsel, Lindsey
Donehue, was ineffective in failing to object when appellant’s wife was called as a
witness against him, and that his property had been illegally searched without a
search warrant. Appellant also alleged that his conviction for having weapons while
under disability was based on perjured testimony from Detective Sam Williams, that
Williams altered appellant’s Miranda rights form, that his convictions for kidnapping
and having weapons while under disability were against the manifest weight and
sufficiency of the evidence, and that his trial counsel was ineffective in failing to obtain
any evidence on appellant’s behalf or to subpoena witnesses. The trial court denied
appellant’s petition pursuant on January 25, 2012, finding that the petition was not
timely filed.
{¶11} Appellant appealed from the trial court’s January 10, 2012 Judgment
Entry, 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 [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.”
{¶17} Appellant also appealed from the trial court’s January 25, 2012
Judgment Entry, raising the following assignments of error on appeal :
{¶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.”
{¶23} The two cases were assigned Case Nos. 2012 CA 000003 and 2012 CA
000008.
{¶24} Subsequently, via an Opinion filed on July 30, 2012 in State v. Harper,
5th Dist. Nos. 12CA000003, 12CA000008, 2012-Ohio-3541, this Court affirmed the
judgment of the trial court in both cases on the basis of res judicata.
{¶25} On March 14, 2012, while the above cases were pending, appellant filed
a Second Petition for Post-Conviction Relief. Appellant alleged that police had
committed an illegal search and seizure of his home, that his wife, who testified
against him, was threatened with criminal charges and was lied to by and illegally
detained by police, that Detective Sam Williams tampered with evidence, including
appellant’s Miranda rights form, and that Williams’ trial testimony was inconsistent.
Appellant also alleged that there was insufficient evidence supporting the kidnapping
charge against him and that his conviction was against the manifest weight of the
evidence, and that his trial counsel was ineffective. Appellant also alleged that his bail
was excessive and that there was insufficient evidence supporting his conviction for
having weapons while under disability.
{¶26} Pursuant to a Judgment Entry filed on May 17, 2012, the trial court
denied appellant’s petition, finding that it was not timely filed and that appellant either
raised, or could have raised, the same issues in his direct appeal.
{¶27} Appellant appealed from the trial court’s May 17, 2012 Judgment Entry
denying his Second Petition for Post-Conviction Relief, raising the following
assignments of error:
{¶28} “I. THE COURT FAILS TO ACKNOWLEDGE FACTUAL FACTS TO
SUPPORT THE COURT’S STATEMENTS.
{¶29} “II. THE COURT FAILS TO ACKNOWLEDGE THE LEGAL
DOCUMENTS PROVIDED WITH THE POST-CONVICTION RELIEF.
{¶30} “III. THE TRIAL COURT FAILS TO ACKNOWLEDGE THE SEVERAL
FALSE, INCORRECT, STATEMENTS IN THE STATE OF OHIO’S APPELLEE BRIEF.
{¶31} “IV. THE TRIAL COURT ERRERED [SIC] IN THE MOTION TO
ACQUITTAL (29)(A).
{¶32} “V. THE TRIAL COUNSEL WAS INEFFECTIVE BY NOT ASKING FOR
MOTION FOR ACQUITTAL PROPERLY AND VIOLATIONS OF UNITED STATES
CONSTITUTIONAL RIGHT AMEND. SIX.”
{¶33} This Court affirmed the judgment of the trial court on November 5, 2012,
finding that the second petition for postconviction relief was untimely, and all issues
raised therein were res judicata.
{¶34} On September 21, 2012, during the pendency of his appeal from the
judgment denying his second petition for postconviction relief, appellant filed a petition
to vacate or set aside his judgment of conviction and sentence. The trial court denied
this petition on September 24, 2012. Appellant appeals, assigning the following
errors:
{¶35} “I. THE SENTENCE IS A VOID SENTENCE AND UNCONSTITUTIONAL
SENTENCE AS PURSUANT TO OHIO REVISED CODE 2905.01 KIDNAPPING
(A)(1)(2)(A) NO PERSON, BY FORCE, THREAT, OR DECPTION [SIC], OR IN THE
CASE OF A VICTIM UNDER THE AGE OF THIRTEEN OR MENTALLY
INCOMPETENT, BY ANY MEANS SHALL REMOVE ANOTHER FROM THE PLACE
WHERE THE OTHER PERSON IS FOUND OR RESTRAIN THE LIBERTY OF THE
OTHER PERSON FOR ANY OF THE FOLLOWING PURPOSES; (1) TO HOLD FOR
RANSOM, OR AS A SHEILD [SIC] OR HOSTAGE; (2) TO FACILITATE THE
COMMISSION OF ANY FELONY OR FLIGHT THEREAFTER; SEE AFFIDAVIT
FROM TINA HARPER NEITHER ELEMENT OF THE CRIME OF KIDNAPPING
WHERE [SIC] PROVEN AT TRIUAL [SIC].
{¶36} “II. THE SENTENCE IS A VOID SENTENCE AND
UNCONSTITUTIONAL SENTENCE AS PURSUANT TO OHIO REVISED CODE
2941.145; SPECIFICATION CONSERNING [SIC] USE OF A FIREARM TO
FACILITATE OFFENSE: THERE IS NO PROOF OR EVIDENCE SUPPORTING THE
USE OR FACILITATION OF A FIREARM TO COMMIT THE OFFENSE OF
KIDNAPPING.
{¶37} “III. THE SENTENCE IS A VOID SENTENCE AND
UNCONSTITUTIONAL SENTENCE AS PURSUANT TO OHIO REVISED CODE
2923.13 HAVING WEAPONS WHILE UNDER DISABILITY: BALDWINS OHIO
PRACTRICE [SIC] KATZ & GANNILLEI OHIO CRIMINAL LAWS AND RULES:
ELEMENTS OF THE OFFENSE: PENALTY 5TH DEGREE FELONY THERE WHERE
[SIC] NO ELEMENTS TO PROVE THAT THE HAVING WEAPONS WHILE UNDER
DISABILITY WAS A THIRD DEGREE FELONY.”
I., II., III.
{¶38} In State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967), the
Ohio Supreme Court stated, “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.”
{¶39} In the instant case, appellant challenges the weight and sufficiency of the
evidence as to his convictions for kidnapping and having a weapon under disability,
and also challenges the evidentiary support for the firearm specification. These claims
could have been raised on direct appeal, and were raised on direct appeal as to
kidnapping and having a weapon under disability. Appellant’s claims are therefore
barred by res judicata and the trial court did not err in dismissing his petition.
{¶40} The first, second and third assignments of error are overruled.
{¶41} The judgment of the Guernsey County Common Pleas Court is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Farmer, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
CRB:rad
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
STATE OF OHIO :
:
Plaintiff - Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Case No. 12 CA 22
HENRY HARPER :
:
Defendant - Appellant :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Guernsey County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER