[Cite as State v. Garner, 2011-Ohio-1209.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2010 CA 00236
MARCUS GARNER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2009 CR 00855


JUDGMENT:                                      Reversed and Remanded



DATE OF JUDGMENT ENTRY:                         March 14, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                CLAIRE R. CAHOON
PROSECUTING ATTORNEY                           ASSISTANT PUBLIC DEFENDER
RENEE M. WATSON                                250 East Broad Street
ASSISTANT PROSECUTOR                           Suite 1400
110 Central Plaza South, Suite 510             Columbus, Ohio 43215
Canton, Ohio 44702
Stark County, Case No. 2010 CA 00236                                                   2

Wise, J.

       {¶1}    Appellant Marcus Garner appeals the trial court’s July 20, 2010, Judgment

Entry granting Appellee State of Ohio’s Motion to Dismiss and For Summary Judgment.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}    On May 21, 2009, Appellant Marcus Garner visited a bar known as The

Spot in Canton, Ohio. At the bar, Appellant got into a heated argument with Monaray

Jones and Daryle Bryant about something that had occurred the week before. Monaray

Jones left the patio area of the bar and walked back into the bar. Appellant followed. A

fight then erupted inside the bar between Appellant and Jones. Bryant observed

Appellant throw a chair and saw him fighting with a number of people. The bar's

bouncers broke up the fight and made the participants leave the bar.

       {¶3}    Outside of the bar, Quinn Bradley witnessed Appellant and Jones arguing

in the parking lot. She saw Appellant with a gun but did not see Jones with a gun. She

saw Jones backing away from Appellant with his hands up and telling Appellant to put

the gun down. Appellant then shot into the air once and then again at Jones' feet.

Following the second shot, Appellant turned around and walked back toward the bar. As

he did, Jones obtained a gun and returned fire. Appellant shot back, shooting Jones in

the face. Appellant then got on his motorcycle and fled the scene. Jones died as a result

of his injuries.

       {¶4}    Appellant was subsequently arrested and charged with one count of

voluntary manslaughter with a firearm specification and one count of having weapons

under disability.
Stark County, Case No. 2010 CA 00236                                                       3


       {¶5}   Following a jury trial, Appellant was found guilty of the charges. The trial

court sentenced Appellant to ten years for voluntary manslaughter, three years for the

gun specification and two years for having a weapon under disability. The sentences

were to run consecutively for a total of fifteen years incarceration.

       {¶6}   Appellant filed a direct appeal from his conviction and sentence. In said

appeal, Appellant raised four assignments of error: the trial court committed error when

it denied his motion to instruct the jury on self defense; his conviction was against the

manifest weight of the evidence presented at trial; the trial court erred in not granting his

motion for a criminal rule 29 acquittal; and, he was denied his right to effective

assistance of counsel. This Court’s August 16, 2010, Opinion overruled Appellant’s

assignments of error and affirmed his conviction. See State v. Garner, Stark App.No.

2009-CA-286, 2010-Ohio-3891.

       {¶7}   On June 25, 2010, Appellant filed a Petition for Post-Conviction Relief.

       {¶8}   On July 12, 2010, the State filed a Motion to Dismiss and For Summary

Judgment.

       {¶9}   By Judgment Entry dated July 20, 2010, the trial court granted the State of

Ohio’s Motion to Dismiss.

       {¶10} Appellant now appeals to this Court, assigning the following errors for

review:

                               ASSIGNMENTS OF ERROR

       {¶11} “I. THE TRIAL COURT ERRED AND DENIED MR. GARNER DUE

PROCESS OF LAW BY DISMISSING HIS POSTCONVICTION PETITION BEFORE
Stark County, Case No. 2010 CA 00236                                                       4


THE EXPIRATION OF TIME FOR FILING A RESPONSE TO THE STATE’S MOTION

TO DISMISS AND FOR SUMMARY JUDGMENT.

       {¶12} “II. THE TRIAL COURT ERRED IN DISMISSING MR. GARNER’S

POSTCONVICTION PETITION AS BARRED BY RES JUDICATA WHEN THE

PETITION INCLUDED EVIDENCE DEHORS THE RECORD.

       {¶13} “III.   THE TRIAL COURT ERRED IN DISMISSING MR. GARNER’S

POSTCONVICTION          PETITION,     BECAUSE        MR.    GARNER       PRESENTED         A

SUBSTANTIVE GROUND FOR RELIEF IN OFFERING SUFFICIENT EVIDENCE

THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶14} “IV. THE TRIAL COURT ERRED IN DISMISSING MR. GARNER’S

POSTCONVICTION PETITION WITHOUT AN EVIDENTIARY HEARING WHEN THE

PETITION DEMONSTRATED SUFFICIENT OPERATIVE FACTS TO ESTABLISH

SUBSTANTIVE GROUNDS FOR RELIEF.”

                                             I.

       {¶15} In his first assignment of error, Appellant claims that the trial court erred in

granting the State’s motion to dismiss prior to the expiration of the time for a response.

We agree.

       {¶16}   Civ.R. 56(E) states, in pertinent part:

       {¶17} “When a motion for summary judgment is made and supported as

provided in this rule, an adverse party may not rest upon the mere allegations or denials

of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue for trial. If he does not so

respond, summary judgment, if appropriate, shall be entered against him.”
Stark County, Case No. 2010 CA 00236                                                   5


       {¶18} Loc. R. 10.01 of the Court of Common Pleas of Stark County provides: ***

Motions for summary judgment taken pursuant to Civil Rule 56 will be set for hearing

and briefs will be due as required by Civil Rule 56(C).

       {¶19} The Ohio Rules of Civil Procedure clearly contemplate that a party will

have at least fourteen days following service of a motion for summary judgment to file

opposing affidavits. See, Civ.R. 56(C).

       {¶20} In the present case, the trial court ruled upon the State's motion for

summary judgment prior to the expiration of the fourteen-day time limit for Appellant's

response. By failing to provide Appellant with an opportunity to respond, the trial court

denied Appellant his right to due process.

       {¶21} Based on the foregoing, we find that Appellant's right of due process was

infringed upon as he was not given an opportunity to respond to the motion for summary

judgment.

       {¶22} Accordingly, we find Appellant's first assignment of error well-taken and

hereby sustain same.

                                          II., III., IV.

       {¶23} Based on our disposition of Appellant’s first assignment of error and our

remand to the trial court to consider Appellant’s response to the State’s Motion to

Dismiss and For Summary Judgment, we decline to rule on Appellant’s remaining

assignments of error.
Stark County, Case No. 2010 CA 00236                                               6


       {¶24} Accordingly the judgment of the Court of Common Pleas, Stark County,

Ohio, is reversed and this matter is remanded for further proceedings consistent with

the law and this opinion.


By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.



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                                                             JUDGES
JWW/d 0228
Stark County, Case No. 2010 CA 00236                                           7


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




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
MARCUS GARNER                               :
                                            :
       Defendant-Appellant                  :         Case No. 2010 CA 00236




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is reversed and

remanded for further proceedings consistent with this opinion.

       Costs assessed to Appellee.




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                                                                 JUDGES
