[Cite as State v. Harper, 2012-Ohio-3541.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 12CA000003
HENRY N. HARPER                                             12CA000008

        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:                         July 30, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


DANIEL G. PADDEN                               HENRY N. HARPER, PRO SE
Guernsey County Prosecuting Attorney           A638-859
139 West 8th Street                            P.O. Box 5500
P.O. Box 640                                   Chillicothe, Ohio 45601
Cambridge, Ohio 43725
Guernsey County, Case No. 12CA000003, 12CA000008                                        2

Hoffman, P.J.


         {¶1}    In Guernsey App. No. 12CA000003, Defendant-appellant Henry Harper

appeals the January 10, 2012 Judgment Entry entered by the Guernsey County Court

of Common Pleas, which denied his Motion for Sentence Reduction. In Guernsey App.

No. 12CA000008, Appellant appeals the January 25, 2012 Judgment Entry entered by

the same, which denied his petition for post conviction relief. Plaintiff-appellee is the

state of Ohio.

                                  STATEMENT OF THE CASE1

         {¶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; tampering with evidence, in violation

of R.C. 2921.12(A)(1), a felony of the third degree; discharge of firearm on or near

prohibited premises, in violation of R.C. 2923.162, a misdemeanor of the first degree;

and kidnapping in violation of R.C. 2905.01(A)(1) and (2), with a firearm specification, a

felony of the first degree.

         {¶3}    The matter proceeded to jury trial. After hearing all the evidence and

deliberations, the jury found Appellant guilty of having weapons while under disability

and the attendant firearm specification; discharge of firearm on or near prohibited

premises; and kidnapping. The jury found Appellant not guilty of the tampering charge.

The trial court sentenced Appellant to an aggregate term of imprisonment of eight (8)

years.



1
  A Statement of the Facts underlying Appellant’s conviction is not necessary for our
disposition of this Appeal.
Guernsey County, Case No. 12CA000003, 12CA000008                                         3


         {¶4}   Appellant filed a timely appeal to this Court, raising three assignments of

error:

         {¶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}   This Court affirmed Appellant’s conviction and sentence. State v. Harper,

5th Dist. No. 2010-CA-44, 2011-Ohio-4568.

         {¶9}   Appellant filed an application to reopen his appeal which this Court denied

via Judgment Entry filed November 23, 2011. On December 20, 2011, Appellant filed a

“Motion to Object to Fifth District Court of Appeals Denial of Application for Reopening

App. R. (26)B”, and a “Motion to Amend Prosecutor’s Appellee Brief Fifth District Court

of Appeals Opinion of Case No. 10 CA 44”. Via Judgment Entry filed January 5, 2012,

this Court denied the motions treating such as second attempts to reopen his appeal.

This Court also found we were prohibited from considering the second application for

reopening pursuant to the doctrine of res judicata.

         {¶10} Appellant filed a Motion for Sentence Reduction in the trial court on

November 22, 2011, and a memorandum in support thereof on December 13, 2011.

The State filed a memorandum contra, to which Appellant filed a reply. The trial court

denied the motion for sentence reduction via Judgment Entry filed January 10, 2012.
Guernsey County, Case No. 12CA000003, 12CA000008                                        4


On January 19, 2012, Appellant filed a Petition for Post Conviction Relief which the trial

court denied via Judgment Entry filed January 25, 2012.

      {¶11} It is from the January 10, 2012 Judgment Entry Appellant appeals in

Guernsey App. No. 12CA000003, 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 N [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.”
Guernsey County, Case No. 12CA000003, 12CA000008                                      5


      {¶17} It is from the January 25, 2012 Judgment Entry Appellant appeals in

Guernsey App. No. 12CA000008, raising as error:

      {¶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.”

                                 CASE NO. 2012CA000003

                                 CASE NO. 2012CA000008

                                         I, II, III, IV, V

      {¶23} Because our disposition of Appellant’s five assignments of error in both

Appeals requires the same analysis, we shall address said assignments of error

together.

      {¶24} “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
Guernsey County, Case No. 12CA000003, 12CA000008                                        6

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

175, paragraphs eight and nine of the syllabus.

         {¶25} In his direct appeal, Appellant asserted three assignments of error, which

are set forth supra. To summarize, Appellant's first assignment of error challenged the

sufficiency and weight of the evidence; his third assignment of error challenged the

effectiveness, or lack thereof, of trial counsel; and his remaining assignment of error

challenged the propriety of the jury instructions.        As stated supra, we affirmed

Appellant’s conviction and sentence, finding these assignments of error to be without

merit.

         {¶26} In the instant appeals, Appellant again challenges the sufficiency and

weight of the evidence as well as the effectiveness of trial counsel. Because Appellant

raised these issues on direct appeal, he is barred by the doctrine of res judicata from

relitigating such again.

         {¶27} Appellant   did   not,   however,   on   direct   appeal,   challenge   the

constitutionality of his conviction and sentence, or the alleged perjury of Detective Sam

Williams when he testified regarding Appellant’s criminal history. These issues could

have been raised on direct appeal. Having failed to do so, Appellant is likewise barred

by the doctrine of res judicata to assert these two claims.
Guernsey County, Case No. 12CA000003, 12CA000008                                     7


      {¶28} Appellant’s first, second, third, fourth, and fifth assignments of error in

Guernsey No. 2012CA000003 are overruled. Appellant’s first, second, third, fourth, and

fifth assignments of error in Guernsey Case No. 2012CA000008 are overruled.

By: Hoffman, P.J.

Wise, J. and

Edwards, J. concur

                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ John W. Wise______________________
                                           HON. JOHN W. WISE


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
Guernsey County, Case No. 12CA000003, 12CA000008                               8


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


STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
HENRY N. HARPER                          :
                                         :
       Defendant-Appellant               :         Case No. 12CA000003


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

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




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ John W. Wise _____________________
                                         HON. JOHN W. WISE


                                         s/ Julie A. Edwards___________________
                                         HON. JULIE A. EDWARDS
              IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
HENRY N. HARPER                          :
                                         :
       Defendant-Appellant               :         Case No. 12CA000008


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

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




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ John W. Wise______________________
                                         HON. JOHN W. WISE


                                         s/ Julie A. Edwards___________________
                                         HON. JULIE A. EDWARDS
