[Cite as State v. Harper, 2013-Ohio-1781.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :   JUDGES:
                                              :
                                              :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                     :   Hon. Sheila G. Farmer, J.
                                              :   Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
HENRY HARPER                                  :   Case No. 12 CA 22
                                              :
                                              :
       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:                           April 26, 2013




APPEARANCES:

For Plaintiff-Appellee:                           For Defendant-Appellant:

DANIEL G. PADDEN                                  HENRY HARPER, PRO SE
Prosecuting Attorney                              A638-859
139 West 8th Street                               P.O. Box 5500
Cambridge, OH 43725                               Chillicothe, OH 45601
Baldwin, J.

      {¶1} Appellant Henry Harper appeals a judgment of the Guernsey County

Common Pleas Court denying his petition to set aside or vacate his judgment of

conviction and sentence. Appellee is the State of Ohio.

                         STATEMENT OF THE FACTS AND CASE

      {¶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, one count of tampering with

evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree, one count of

discharge of firearm on or near prohibited premises in violation of R.C. 2923.162, a

misdemeanor of the first degree, and one count of kidnapping in violation of R.C.

2905.01(A)(1) and (2), with a firearm specification, a felony of the first degree. At his

arraignment on June 8, 2010, appellant pled not guilty to the charges.

      {¶3} The matter proceeded to jury trial. The jury found appellant guilty of

having weapons while under disability, discharge of firearm on or near prohibited

premises and kidnapping.     The jury also found that appellant, with respect to the

kidnapping charge, had a firearm on or about his person or under his control. The jury

found appellant not guilty of the tampering charge. The trial court sentenced appellant

to an aggregate term of imprisonment of eight years.

      {¶4} Appellant filed a timely appeal to this Court, raising the following

assignments of error on appeal:

      {¶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} Pursuant to an Opinion filed on September 9, 2011, this Court affirmed

appellant's conviction and sentence. State v. Harper, 5th Dist. No. 2010–CA–44,

2011–Ohio–4568.

       {¶9} On November 22, 2011, appellant filed a Motion for Sentence Reduction

in the trial court. The trial court denied the Motion for Sentence Reduction on January

10, 2012.

       {¶10} On January 19, 2012, appellant filed a Petition for Post-Conviction

Relief. Appellant alleged that the trial court had erred in failing to inform his wife, Tina

Harper, that she did not have to testify against appellant, that his trial counsel, Lindsey

Donehue, was ineffective in failing to object when appellant’s wife was called as a

witness against him, and that his property had been illegally searched without a

search warrant. Appellant also alleged that his conviction for having weapons while

under disability was based on perjured testimony from Detective Sam Williams, that

Williams altered appellant’s Miranda rights form, that his convictions for kidnapping

and having weapons while under disability were against the manifest weight and

sufficiency of the evidence, and that his trial counsel was ineffective in failing to obtain

any evidence on appellant’s behalf or to subpoena witnesses. The trial court denied

appellant’s petition pursuant on January 25, 2012, finding that the petition was not

timely filed.
      {¶11} Appellant appealed from the trial court’s January 10, 2012 Judgment

Entry, 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 [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.”

      {¶17} Appellant also appealed from the trial court’s January 25, 2012

Judgment Entry, raising the following assignments of error on appeal :
       {¶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.”

       {¶23} The two cases were assigned Case Nos. 2012 CA 000003 and 2012 CA

000008.

       {¶24} Subsequently, via an Opinion filed on July 30, 2012 in State v. Harper,

5th Dist. Nos. 12CA000003, 12CA000008, 2012-Ohio-3541, this Court affirmed the

judgment of the trial court in both cases on the basis of res judicata.

       {¶25} On March 14, 2012, while the above cases were pending, appellant filed

a Second Petition for Post-Conviction Relief. Appellant alleged that police had

committed an illegal search and seizure of his home, that his wife, who testified

against him, was threatened with criminal charges and was lied to by and illegally

detained by police, that Detective Sam Williams tampered with evidence, including

appellant’s Miranda rights form, and that Williams’ trial testimony was inconsistent.

Appellant also alleged that there was insufficient evidence supporting the kidnapping

charge against him and that his conviction was against the manifest weight of the
evidence, and that his trial counsel was ineffective. Appellant also alleged that his bail

was excessive and that there was insufficient evidence supporting his conviction for

having weapons while under disability.

       {¶26} Pursuant to a Judgment Entry filed on May 17, 2012, the trial court

denied appellant’s petition, finding that it was not timely filed and that appellant either

raised, or could have raised, the same issues in his direct appeal.

       {¶27} Appellant appealed from the trial court’s May 17, 2012 Judgment Entry

denying his Second Petition for Post-Conviction Relief, raising the following

assignments of error:

       {¶28} “I. THE COURT FAILS TO ACKNOWLEDGE FACTUAL FACTS TO

SUPPORT THE COURT’S STATEMENTS.

       {¶29} “II.   THE    COURT      FAILS     TO    ACKNOWLEDGE          THE     LEGAL

DOCUMENTS PROVIDED WITH THE POST-CONVICTION RELIEF.

       {¶30} “III. THE TRIAL COURT FAILS TO ACKNOWLEDGE THE SEVERAL

FALSE, INCORRECT, STATEMENTS IN THE STATE OF OHIO’S APPELLEE BRIEF.

       {¶31} “IV. THE TRIAL COURT ERRERED [SIC] IN THE MOTION TO

ACQUITTAL (29)(A).

       {¶32} “V. THE TRIAL COUNSEL WAS INEFFECTIVE BY NOT ASKING FOR

MOTION FOR ACQUITTAL PROPERLY AND VIOLATIONS OF UNITED STATES

CONSTITUTIONAL RIGHT AMEND. SIX.”

       {¶33} This Court affirmed the judgment of the trial court on November 5, 2012,

finding that the second petition for postconviction relief was untimely, and all issues

raised therein were res judicata.
          {¶34} On September 21, 2012, during the pendency of his appeal from the

judgment denying his second petition for postconviction relief, appellant filed a petition

to vacate or set aside his judgment of conviction and sentence. The trial court denied

this petition on September 24, 2012.       Appellant appeals, assigning the following

errors:

          {¶35} “I. THE SENTENCE IS A VOID SENTENCE AND UNCONSTITUTIONAL

SENTENCE AS PURSUANT TO OHIO REVISED CODE 2905.01 KIDNAPPING

(A)(1)(2)(A) NO PERSON, BY FORCE, THREAT, OR DECPTION [SIC], OR IN THE

CASE OF A VICTIM UNDER THE AGE OF THIRTEEN OR MENTALLY

INCOMPETENT, BY ANY MEANS SHALL REMOVE ANOTHER FROM THE PLACE

WHERE THE OTHER PERSON IS FOUND OR RESTRAIN THE LIBERTY OF THE

OTHER PERSON FOR ANY OF THE FOLLOWING PURPOSES; (1) TO HOLD FOR

RANSOM, OR AS A SHEILD [SIC] OR HOSTAGE; (2) TO FACILITATE THE

COMMISSION OF ANY FELONY OR FLIGHT THEREAFTER; SEE AFFIDAVIT

FROM TINA HARPER NEITHER ELEMENT OF THE CRIME OF KIDNAPPING

WHERE [SIC] PROVEN AT TRIUAL [SIC].

          {¶36} “II.   THE   SENTENCE         IS    A     VOID      SENTENCE         AND

UNCONSTITUTIONAL SENTENCE AS PURSUANT TO OHIO REVISED CODE

2941.145; SPECIFICATION CONSERNING [SIC] USE OF A FIREARM TO

FACILITATE OFFENSE: THERE IS NO PROOF OR EVIDENCE SUPPORTING THE

USE OR FACILITATION OF A FIREARM TO COMMIT THE OFFENSE OF

KIDNAPPING.
       {¶37} “III.    THE      SENTENCE         IS           A   VOID   SENTENCE     AND

UNCONSTITUTIONAL SENTENCE AS PURSUANT TO OHIO REVISED CODE

2923.13 HAVING WEAPONS WHILE UNDER DISABILITY: BALDWINS OHIO

PRACTRICE [SIC] KATZ & GANNILLEI OHIO CRIMINAL LAWS AND RULES:

ELEMENTS OF THE OFFENSE: PENALTY 5TH DEGREE FELONY THERE WHERE

[SIC] NO ELEMENTS TO PROVE THAT THE HAVING WEAPONS WHILE UNDER

DISABILITY WAS A THIRD DEGREE FELONY.”

                                             I., II., III.

       {¶38} In State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967), the

Ohio Supreme Court stated, “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 conviction or on an appeal from that judgment.”

       {¶39} In the instant case, appellant challenges the weight and sufficiency of the

evidence as to his convictions for kidnapping and having a weapon under disability,

and also challenges the evidentiary support for the firearm specification. These claims

could have been raised on direct appeal, and were raised on direct appeal as to

kidnapping and having a weapon under disability. Appellant’s claims are therefore

barred by res judicata and the trial court did not err in dismissing his petition.
      {¶40} The first, second and third assignments of error are overruled.

      {¶41} The judgment of the Guernsey County Common Pleas Court is affirmed.



By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.



                                      HON. CRAIG R. BALDWIN



                                      HON. W. SCOTT GWIN



                                      HON. SHEILA G. FARMER


CRB:rad
            IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


                                        :
STATE OF OHIO                           :
                                        :
   Plaintiff - Appellee                 :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No.   12 CA 22
HENRY HARPER                            :
                                        :
   Defendant - Appellant                :
                                        :


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

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




                                        HON. CRAIG R. BALDWIN



                                        HON. W. SCOTT GWIN



                                        HON. SHEILA G. FARMER
