[Cite as State v. Henry, 2012-Ohio-420.]




               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

STATE OF OHIO                                    :

        Plaintiff-Appellee                       :   C.A. CASE NO. 10CA116

vs.                                              :   T.C. CASE NO. 99CR0584

ANJUAN HENRY                                     :   (Criminal Appeal from
                                                      Common Pleas Court)
        Defendant-Appellant                      :

                                       . . . . . . . . .

                                           O P I N I O N

                  Rendered on the 3rd day of February, 2012.

                                       . . . . . . . . .

Andrew Wilson, Pros. Attorney; Andrew R. Picek, Asst. Pros.
Attorney, Atty. Reg. No. 0082121, 50 E. Columbia Street, 4th Floor,
P.O. Box 1608, Springfield, OH 45501
     Attorneys for Plaintiff-Appellee

Anjuan Henry, Inmate No. 401-154, P.O. Box 69, London, OH 43140
     Defendant-Appellant, Pro Se

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Anjuan Henry, appeals from a final order of

the court of common pleas that denied Defendant’s motion for return

of monies law enforcement officers seized during a search of

Defendant’s residence.                     Finding the error Defendant assigns is

barred by res judicata, we will affirm the final order from which
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the appeal was taken.

     {¶ 2} In 1999, Defendant was charged by indictment in Common

Pleas Court Case No. 99-CR-0584 with two counts of drug trafficking

in violation of R.C. 2925.03.      Defendant was also charged by

indictment in Case No. 99-CR-296 with one count of drug possession,

R.C. 2925.11, and as a major drug offender.            R.C. 2925.01,

2929.13(F).    The two indictments were joined for trial.

     {¶ 3} Defendant   was   convicted   of   the   charges   in   both

indictments following a jury trial.      On July 20, 2000, the trial

court imposed prison terms and mandatory fines for all three

offenses.     When law enforcement officers searched Defendant’s

residence at the time of his arrest, they seized $2,700 in cash.

 Concerning those funds, the judgment of conviction the court

journalized on September 25, 2000, states:

     {¶ 4} “The court further finds that the court reporter has

in her possession property belonging to the defendant to-wit:

$2,700.00 that was recovered from defendant and that this money

be released to the Clerk to be applied towards the mandatory fines

imposed herein to-wit: $900.00 to the Clark County Prosecutor’s

Office; $900.00 to the Ohio State Highway Patrol and $900 to the

Mad River Drug Task Force.”     (Dkt. 25, p. 2).

     {¶ 5} Defendant appealed from his judgment of conviction.

We reversed, finding that the trial court erred when it joined
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the possession and drug trafficking charges in a single trial,

and also abused its discretion when the court denied Defendant’s

motion to continue his trial.        The case was remanded for further

proceedings.      State     v.   Henry,   Clark    App.   No.   2000CA0080,

2002-Ohio-391.

     {¶ 6} On November 10, 2003, Defendant entered no contest pleas

to the two drug trafficking charges in Case No. 99CR0584.

Defendant was sentenced on November 12, 2003.               No judgment of

conviction was journalized until January 7, 2011, however.             That

judgment makes no mention of the fines the court previously imposed

or the $2,700.00 the court ordered forfeited and applied toward

those fines.

     {¶ 7} Prior to the journalization of his judgment of conviction

in 2011, but six and one-half years after the court had imposed

his sentence in 2003, on April 21, 2010 Defendant filed a motion

asking for return of the $2,700.00 police seized.               (Dkt. 46).

Defendant argued that the State failed to follow the statutory

procedures     forfeiture    requires.       The    trial    court   denied

Defendant’s motion on December 10, 2010.           (Dkt. 47).     Defendant

filed a notice of appeal from that order.

     ASSIGNMENT OF ERROR

     {¶ 8} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

FOR RECOVERY OF FUNDS.”
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      {¶ 9} Defendant argues that the forfeiture of monies law

enforcement officers seized in the search of his home was erroneous

for   failure   to   follow   the   statutory   provisions   governing

forfeiture.

      {¶ 10} The State responds that any error the forfeiture involved

is nevertheless harmless because a misapplication would benefit

Defendant by reducing fines he is obligated to pay.          The State

relies on our decision in State v. Jamison, Montgomery App. No.

23211, 2010-Ohio-965.

      {¶ 11} In Jamison, we held that the defendant lacked standing

to invoke the statutory right of the true owner of seized funds

to recover possession of such funds because the defendant denied

ownership of the funds when he testified at trial.       Id., at ¶31.

 We further held that even if the court’s order applying the seized

funds to court costs the defendant was obliged to pay was improper,

the defendant was not prejudiced, and the error was therefore

harmless, “because the misapplication reduces his obligation to

pay the court costs, unless and until the rightful owner of the

funds comes forward to claim them.”      Id., ¶44.

      {¶ 12} The facts of the present case do not implicate the issue

of standing in the way that Jamison did.        Nevertheless, we find

that Defendant is barred from assigning the error he argues on

appeal.
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     {¶ 13} “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 trial, which resulted in that judgment of conviction, or

an appeal from that judgment.” State v. Perry (1967), 10 Ohio St.2d

175, 226 N.E. 2d 104, paragraph nine of the syllabus.

     {¶ 14} Defendant could have raised the issue of the forfeiture

and application to pay fines of the monies law enforcement officers

seized in a search of his home in his prior direct appeal from

his convictions for drug trafficking in which the forfeiture and

application were ordered.    Defendant did not raise those issues

in that appeal.   Defendant was therefore barred from raising those

issues in the motion he filed on April 21, 2010.      Id.   The trial

court did not err when it denied Defendant’s motion to recover

those funds.

     {¶ 15} The assignment of error is overruled.   The judgment from

which the appeal is taken will be affirmed.



     HALL, J., concurs.



     FROELICH, J., concurring in judgment:
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     {¶ 16} After being convicted by a jury in Case Nos. 99-CR-584

(drug trafficking 2 counts) and 99-CR-296 (possession), Appellant

was ordered to serve 27 years in prison, pay mandatory fines of

$20,000 and costs; further his driver’s license was suspended and

the court ordered that property, to-wit $2,700, which “belongs

to the defendant but was in the possession of the court reporter,”

be released to the clerk “to be applied towards the mandatory fees.”

 In October 2000, the “Judgment Entry of Conviction” in both cases

was appealed.

     {¶ 17} In February 2002, we reversed the judgment of the trial

court and remanded the case.    State v. Henry, 2d Dist. Clark No.

2000-CA-80, 2002 WL 125717 (Feb. 1, 2002).       In June 2003, the

possession charge in Case No. 99-CR-296 was retried to a jury.

Henry was convicted and sentenced to mandatory 17 years in prison,

a $10,000 fine, and a five-year driver’s license suspension.    The

judgment further states: “The Springfield Police Department has

in its possession property belonging to the defendant, to-wit:

$2,700.00 in Case No. 99-CR-584.      The Clerk shall seize this

property for distribution toward the fine imposed once Case No.

99-CR-584 is disposed of.”     Appellant filed a Notice of Appeal

in this case (99-CR-296).

     {¶ 18} In November 2003, Appellant entered a plea of no contest

in Case No. 99-CR-584, and was found guilty of drug trafficking.
                                                                         7

 The plea agreement included an agreed sentence to five years in

prison on each count, to be served consecutively to each other,

but concurrently with the prison sentence in Case No. 99-CR-296.

 The trial court signed the plea agreement, but did not file a

separate judgment entry.       (No Judgment Entry of Conviction was

filed in Case No. 99-CR-584 until January 7, 2011.)             Following

his plea, Appellant filed a Notice of Appeal, attaching the plea

agreement, and the appeals in the possession and drug trafficking

cases were consolidated for briefing.

     {¶ 19} In August 2005, we affirmed the judgments in Case Nos.

99-CR-584 and 99-CR-296.       State v. Henry, 2d Dist. Clark Nos.

2003-CA-47 & 2003-CA-88, 2005-Ohio-4512.         More than four years

later, in April 2010, Appellant filed a motion in Case No. 99-CR-584

for recovery of the $2,700.      The trial court held that the “pro

se motion for recovery of funds which were ordered forfeited as

a result of his conviction in this case * * * is not well taken

and the same is denied.”   That ruling is the subject of this appeal.

     {¶ 20} The   subsequent   January   2011   Judgment   in   Case   No.

99-CR-584 sentenced Henry to prison and post-release control; there

is no mention of any fine, costs, or the $2,700.      On the same date,

the trial court filed an amended judgment entry in Case No.

99-CR-296, apparently for the purpose of correcting post-release

control.
                                                                  8

     {¶ 21} Under the doctrine of res judicata, a valid final

judgment precludes the relitigation of the same issue or claim

which could have been raised at trial or in an appeal of the trial

court’s judgment.     While it is correct that the Appellant’s

assignments and our 2002 opinion’s rationale dealt with the trial

court’s erroneous joinder of charges on a single trial and its

abuse of discretion in denying a motion to continue, our Final

Entry reversed the judgment of the trial court and remanded the

cause for further proceedings consistent with the opinion.

     {¶ 22} “Ordinarily, a reversal of judgment on appeal nullifies

the judgment below, leaving the case standing as if no judgment

had been rendered.”    Burns v. Daily, 114 Ohio App.3d 693, 704,

683 N.E.2d 1164 (11th Dist.1996).   “The effect of a reversal and

order of remand is to reinstate the case to the docket of the trial

court in precisely the same condition [as] before the error

occurred.”   Wilson v. Kreusch, 111 Ohio App.3d 47, 51, 675 N.E.2d

571 (2d Dist.1996).   See Armstrong v. Marathon Oil Co., 32 Ohio

St.3d 397, 418, 513 N.E.2d 776 (1987).

     {¶ 23} Therefore, the reversed 2000 Judgment in both cases was

a nullity and cannot serve as a valid final judgment for purposes

of res judicata.    Appellant was convicted and sentenced in Case

No. 99-CR-584 by the January 2011 Judgment; there has been no

appeal.   The January 2011 entry does not order anything or even
                                                                  9

mention the $2,700.

     {¶ 24} The June 2003 Judgment in Case No. 99-CR-296, however,

ordered that the $2,700 be seized by the clerk and distributed

after Case No. 99-CR-584 was disposed of.   Appellant appealed from

that judgment, raising four assignments of error.      None of his

assignments challenged the trial court’s order for the clerk to

seize the $2,700 for distribution toward the mandatory fine.

Appellant could have raised the issue of forfeiture in that direct

appeal (of 99-CR-296).    I would find that Appellant was barred

by res judicata from raising the issue of the forfeiture and

application to pay fines due to his failure to raise these issues

in his direct appeal from the June 2003 Judgment in Case No.

99-CR-296.

                       . . . . . . . . . .




Copies mailed to:

Andrew R. Picek, Esq.
Anjuan Henry
Hon. Richard J. O’Neill
