[Cite as Harper v. Harper, 2013-Ohio-5413.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

TINA L. HARPER                                   JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. Sheila G. Farmer, J.
                                                 Hon. Patricia A. Delaney, J.
-vs-
                                                 Case No. 2013 AP 06 0026
HENRY HARPER

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Tuscarawas County Court
                                              of Common Pleas, Case No.
                                              2013TC020087


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       December 9, 2013


APPEARANCES:


For Defendant-Appellant                       For Plaintiff-Appellee


HENRY HARPER, PRO SE                          MICHAEL C. JOHNSON
Bellmont Correctional Inst. - A638-859        Johnson, Urban & Range Co. LPA
P.O. Box 540, 68518 Bannock Road              P.O. Box 1007, 117 South Broadway
St. Clairsville, Ohio 43950                   New Philadelphia, Oio 44663
Tuscarawas County, Case No. 2013 AP 06 0026                                               2

Hoffman, P.J.


         {¶1}    Defendant-appellant Henry Harper appeals the May 29, 2013 Judgment

Entry entered by the Tuscarawas County Court of Common Pleas, which overruled his

objections to the magistrate’s May 1, 2013 decision, and approved and adopted said

decision as order of the court. Plaintiff-appellee is Tina L. Harper.1

                              STATEMENT OF THE CASE AND FACTS

         {¶2}    Appellant and Appellee were married on September 2, 1995. Three sons

were born of the union, one of whom is now emancipated. On February 26, 2013,

Appellee filed a Complaint for Divorce in the Tuscarawas County Court of Common

Pleas, alleging as grounds gross neglect of duty, extreme cruelty, and the parties

having lived separate and apart continuously for more than one year. Appellant had

been incarcerated since May, 2010. Appellant filed a pro se answer on March 20, 2013

         {¶3}    The matter came on for trial on May 1, 2013. The magistrate issued her

decision the same day, recommending Appellee be granted a divorce from Appellant on

the ground of Appellant’s incarceration in a State penal institution. Appellant filed timely

objections to the magistrate’s decision.             Specifically, Appellant objected to the

magistrate’s granting Appellee a divorce based upon his incarceration.             Appellant

argued his incarceration was “wrongful, unlawful, and unconstitutional”; therefore such

should not be grounds upon which to grant the divorce.

         {¶4}    Via Judgment Entry filed May 29, 2013, the trial court overruled

Appellant’s objections, and approved and adopted the magistrate’s decision as order of

the court.

1
    Appellee has not filed a brief in this matter.
Tuscarawas County, Case No. 2013 AP 06 0026                                                3


       {¶5}   It is from this judgment entry Appellant appeals, raising the following

assignments of error:

       {¶6}   “I. THE FIFTH DISTRICT COURT OF APPEALS DENIED THE

APPELLANT-DEFENDANT A FAIR OR PROPER APPEAL WHICH CAUSED THE

APPELLANT-DEFENDANT TO BE INCARCERATED AT THE TIME OF THE FILING

OF THE COMPLAINT AND THE PARTIES TO BE SEPARATED FOR OVER A YEAR.

       {¶7}   “II. THE TUSCARAWAS COUNTY COURT OF COMMON PLEAS

COMMITTED ERROR IN OVERRULING THE APPELLANT-DEFENDANT’S MOTION

TO CONTINUE DUE TOT HE (SIC) FACT THAT THE APPELLANT DEFENDANT IS

UNCONSTITUTIONALL (SIC)             UNLAWFULLY, WRONGFULLY, AND ILLEGALLY

INCARCERATED AND WAS NOT ABLE TO PROPERLY REPRESENT HIMSELF.

THE TRIAL COURT COMPLETELY IGNORED THE APPELLANT-DEFENDANT’S

MOTIONS AND THE CONTENTS.”

                                                 I

       {¶8}   In his first assignment of error, Appellant maintains this Court denied him

a fair or proper appeal which resulted in his being incarcerated at the time of the filing of

Appellee’s complaint for divorce.

       {¶9}   In State v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233, the Ohio

Supreme Court held, “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 at the
Tuscarawas County, Case No. 2013 AP 06 0026                                             4


trial, which resulted in that judgment of conviction, or on an appeal from that judgment.”

Id. at syllabus. (Emphasis added.)

      {¶10} Appellant filed a direct appeal from his conviction and sentence, which this

Court affirmed in State v. Harper, Guernsey App. No. 2010–CA–44, 2011-Ohio-4568.

Under the doctrine of res judiciata, we find Appellant is barred from attempting to

reargue the validity of his conviction and sentence.

      {¶11} Appellant’s first assignment of error is overruled.

                                                II

      {¶12} In his second assignment of error, Appellant contends the trial court erred

in denying his motion for a continuance.               Appellant asserts because he is

unconstitutionally, unlawfully, wrongfully, and illegally incarcerated, he was not able to

properly represent himself.

      {¶13} The decision to grant or deny a continuance is entrusted to the broad,

sound discretion of the trial court and will not be disturbed absent an abuse of

discretion. Lemon v. Lemon, Stark App. No.2010CA00319, 2011–Ohio–1878, citing

State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d 1078.

      {¶14} In determining whether a trial court abused its discretion in denying a

motion for a continuance, an appellate court should consider the following factors: (1)

the length of the delay requested; (2) whether other continuances have been requested

and received; (3) the inconvenience to witnesses, opposing counsel, and the court; (4)

whether there is a legitimate reason for the continuance; (5) whether the defendant

contributed to the circumstances giving rise to the need for the continuance, and other

relevant factors, depending on the unique facts of each case. Unger, supra, at 67–68,
Tuscarawas County, Case No. 2013 AP 06 0026                                            5


423 N.E.2d 1078. The reviewing court must also weigh the potential prejudice to the

movant against the trial court's right to control its own docket. In re Barnick, Cuyahoga

App. No. 88334, 2007–Ohio–1720, ¶ 10, quoting Unger.

      {¶15} Upon review of the record, we find the trial court did not abuse its

discretion in denying Appellant’s request for a continuance. Appellant was incarcerated

as the result of his own actions. Despite Appellant’s assertions to the contrary, this

Court found his conviction and sentence to be lawful and constitutional.

      {¶16} Appellant’s second assignment of error is overruled.

      {¶17} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                            ___________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            ___________________________________
                                            HON. SHEILA G. FARMER


                                            ___________________________________
                                            HON. PATRICIA A. DELANEY
Tuscarawas County, Case No. 2013 AP 06 0026                                      6


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


TINA L. HARPER                            :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
HENRY HARPER                              :
                                          :
       Defendant-Appellant                :         Case No. 2013 AP 06 0026


       For the reasons stated in our accompanying Opinion, the judgment of the

Tuscarawas County Court of Common Pleas is affirmed. Costs to Appellant.




                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. SHEILA G. FARMER


                                          ___________________________________
                                          HON. PATRICIA A. DELANEY
