State v. Bennett

[Cite as State v. Bennett, 2013-Ohio-4453.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2013CA00097
JOHN C. BENNETT, JR. :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No.
2009CR0490A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 7, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JOHN C. BENNETT, JR., PRO SE
PROSECUTING ATTORNEY INMATE NO. 570-509
BY: RENEE M. WATSON MCI
110 Central Plaza South, Ste. 510 Box 57
Canton, OH 44702-1413 Marion, OH 43301
[Cite as State v. Bennett, 2013-Ohio-4453.]
Gwin, P.J.
{¶1} Defendant-appellant John C. Bennett, Jr. appeals the April 17, 2013
judgment entry denying his motion to return personal property in the Stark County Court
of Common Pleas. Plaintiff-appellee is the State of Ohio.
Facts & Procedural History
{¶2} In April of 2009, appellant was indicted on charges of aggravated robbery,
kidnapping, aggravated burglary, and felonious assault. The victim of the crimes was
Leonard Cooper (“Cooper”), who hired appellant to do odd jobs. On March 20, 2009,
appellant and an accomplice trespassed into Cooper’s home, attacked him, and forced
him to write a check in appellant’s name. Prior to leaving Cooper’s home, appellant
took Cooper’s wallet, credit cards, and cash. On June 8, 2009, appellant entered a plea
of guilty to the charges.
{¶3} The trial court sentenced appellant to seven years on each count, with
each seven year commitment for counts two, three, and four to be served concurrent
with the seven year commitment on count one. On December 23, 2009, this Court
denied appellant’s motion to file a delayed appeal. In May of 2010, the Ohio Supreme
Court denied appellant’s motion for delayed appeal.
{¶4} Appellant moved the trial court to withdraw his guilty plea on April 5, 2010.
The trial court held a hearing on appellant’s motion and also simultaneously conducted
a resentencing hearing because the trial court’s original sentencing entry failed to
properly inform appellant of the length of his post-release control. On June 28, 2010,
the trial court denied appellant’s motion to withdraw his plea and resentenced him to
correctly notify appellant of the proper length of his post-release control. Appellant
Stark County, Case No. 2013CA00097 3
appealed the trial court’s decision and this Court affirmed the trial court’s decision in
May of 2011 in State v. Bennett, 5th Dist. No. 2010CA00200, 2011-Ohio-2236. The
Ohio Supreme Court declined appellant’s motion for jurisdiction. In August of 2012,
appellant filed a motion to correct his sentence and the trial court denied the motion.
{¶5} On April 15, 2013, appellant filed a motion to return personal property.
Appellant asserts when he was arrested he had the following items: smokeless pipe,
miscellaneous keys, a wallet, $536.00 in cash, a cell phone, credit cards belonging to
the alleged victim, personal identification belonging to the alleged victim, and a
discarded check. The trial court denied appellant’s motion to return property on April
17, 2013. Appellant appeals the April 17, 2013 judgment entry of the trial court and
assigns the following error:
{¶6} “I. THE TRIAL COURT ERRED IN NOT RETURNING PERSONAL
PROPERTY.”
{¶7} Appellant argues the cash and wallet in his possession were never
identified as belonging to the alleged victim and seeks the return of the keys, wallet,
phone, smokeless pipe, and $536.00 in cash because the property seized from him was
his.
{¶8} Appellant’s argument fails for two reasons. First, appellant’s motion to
return property is barred under the doctrine of res judicata. “[A] final judgment of
conviction bars a convicted defendant who was represented by counsel 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 * * * on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175 at
Stark County, Case No. 2013CA00097 4
syllabus, 226 N.E.2d 104 (1967). Appellant pled guilty in June of 2009 and failed to file
an appeal until December of 2009 when a motion for delayed appeal was denied. Since
appellant could have raised the argument regarding the return of his property in his
direct appeal, he is precluded from raising it herein. See Cline v. Urbana Police Div.,
2nd Dist. No. 09-CA-45, 2010-Ohio-5384. Further, the trial court held a hearing on
appellant’s motion to withdraw plea and to resentence him to the correct post-release
control. Appellant failed to bring the issue regarding the personal property to the trial
court’s attention during these proceedings and he again failed to raise the issue
regarding the return of the property in his subsequent appeal of the trial court’s decision.
Thus, he is now precluded from asserting these additional issues which should have
been raised in prior proceedings, particularly when the subject of this appeal does not
involve any new evidence. See State v. Poicus, 11th Dist. No. 95-L-179, 1996 WL
761213 (December 13, 1996).
{¶9} Appellant’s argument must also fail as a result of his guilty plea. Pursuant
to R.C. 2981.03(A)(4):
A person aggrieved by an alleged unlawful seizure of property may
seek relief from the seizure by filing a motion in the appropriate court that
shows the person’s interest in the property, states why the seizure was
unlawful, and requests the property’s return. * * * If the motion is filed by a
defendant after an indictment, information, or a complaint seeking
forfeiture of the property has been filed, the court shall treat the motion as
a motion to suppress evidence.
Stark County, Case No. 2013CA00097 5
{¶10} Pursuant to this statute, a motion to return property is categorized as a
motion to suppress. A defendant who enters a plea of guilty waives the right to appeal
all non-jurisdictional issues arising at prior stages of the proceedings * * *. Ross v.
Auglaize Cty. Court of Common Pleas, 30 Ohio St.2d 323, 285 N.E.2d 25 (1972). Thus,
by entering a guilty plea, a defendant waives the right to raise on appeal the proprietary
of a trial court’s suppression ruling. State v. Elliott, 86 Ohio App.3d 792, 621 N.E.2d
1272 (12th Dist. 1993); State v. Harvey, 5th Dist. No. 20074-CA-00335, 2008-Ohio-
3654. Here, appellant pled guilty in June of 2009 to all of the charges contained in the
indictment. By entering his guilty plea in this case, appellant waived his right assert any
challenge based upon an alleged violation of his rights under the Fourth Amendment.
{¶11} Based upon the foregoing, appellant’s assignment of error is overruled
and the April 17, 2013 judgment entry of the Stark County Common Pleas Court is
affirmed.
By Gwin, P.J., and
Wise, J., concur;
Hoffman, J., concurs
separately
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 0924
Stark County, Case No. 2013CA00097 6
Hoffman, J. concurring
{¶12} I concur in the majority’s decision to affirm the trial court's denial of
Appellant's motion to return property. However, I do so solely on the basis I find
Appellant's remedy lies in the filing of a civil action for replevin or, in the alternative,
conversion against the person or entity in possession of the property.
________________________________
HON. WILLIAM B. HOFFMAN
[Cite as State v. Bennett, 2013-Ohio-4453.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOHN C. BENNETT, JR. :
:
:
Defendant-Appellant : CASE NO. 2013CA00097
For the reasons stated in our accompanying Memorandum-Opinion, the April 17,
2013 judgment entry of the Stark County Common Pleas Court is affirmed. Costs to
appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE