[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
