[Cite as State v. Harper, 2012-Ohio-5161.]


                                        COURT OF APPEALS
                                     GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   Sheila G. Farmer, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 12 CA 15
                                               :
                                               :
HENRY N. HARPER                                :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Guernsey
                                                    County Court of Common Pleas Case
                                                    No. 10 CR 70

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             November 5, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

DANIEL G. PADDEN                                    HENRY N. HARPER
Guernsey County Prosecuting Attorney                A638-859
139 West 8th Street                                 P.O. Box 5500
P.O. Box 640                                        Chillicothe, Ohio 45601
Cambridge, Ohio 43725
[Cite as State v. Harper, 2012-Ohio-5161.]


Edwards, J.

        {¶1}     Defendant-appellant, Henry Harper, appeals from the May 17, 2012,

Judgment Entry of the Guernsey County Court of Common Pleas denying his Second

Petition for Post-Conviction Relief. Plaintiff-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 pleaded not guilty to the charges.

        {¶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,

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. As memorialized in a Judgment Entry filed on November 3, 2010, the trial court

sentenced appellant to an aggregate term of imprisonment of eight (8) years.

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

assignments of error on appeal:
Guernsey County App. Case No. 10 CA 15                                                         3


       {¶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 via Judgment

Entry filed January 10, 2012.

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

Appellant, in his petition, 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
Guernsey County App. Case No. 10 CA 15                                                  4


appellant’s petition pursuant to an Entry filed on January 25, 2012, finding that the same

was not timely filed.

       {¶11} Appellant then 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.”
Guernsey County App. Case No. 10 CA 15                                                  5


       {¶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 such cases. This Court, in our Opinion, held, in relevant

part, as follows:

       {¶25} “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.

       {¶26} “‘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
Guernsey County App. Case No. 10 CA 15                                                   6


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.’” State v. Perry (1967), 10 Ohio St.2d

175, 226 N.E.2d 104, paragraphs eight and nine of the syllabus.

         {¶27} “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.

         {¶28} “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.

         {¶29} “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.” Id at paragraphs 23-27.

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

Second Petition for Post-Conviction Relief. Appellant, in his petition, alleged that

Deputies had committed an illegal search and seizure of his home without a search
Guernsey County App. Case No. 10 CA 15                                                       7


warrant, that his wife, who testified against him, was threatened with criminal charges,

was lied to by and illegally detained by police and 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, Lindsey Donehue,

was ineffective in failing to subpoena two witnesses after appellant asked her about

them and in failing to show transcripts to the jury. Appellant also alleged that his bail

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

having weapons while under disability. Appellant, in his petition, also alleged that this

Court, in our previous opinion, incorrectly stated that appellant was convicted of

kidnapping, a felony of the first degree, and a firearm specification to count one while

appellant actually was convicted of kidnapping, a felony of the second degree, and was

not convicted of a firearm specification as to count one.

       {¶31} 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.

       {¶32} Appellant now appeals from the trial court’s May 17, 2012 Judgment Entry

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

assignments of error on appeal :

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

SUPPORT THE COURT’S STATEMENTS.
Guernsey County App. Case No. 10 CA 15                                                   8


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

PROVIDED WITH THE POST-CONVICTION RELIEF.

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

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

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

ACQUITTAL (29)(A).

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

MOTION FOR ACQUITTAL PROPERLY AND VIOLATIONS OF UNITED STATES

CONSTITUTIONAL RIGHT AMEND. SIX.”

                                           I, II, III, IV, V

       {¶38} Appellant, in his five assignments of error, argues that the trial court erred

in denying his Second Petition for Post-Conviction Relief. We disagree.

       {¶39} As an initial matter, we note the pertinent jurisdictional time requirements

for a post-conviction petition are set forth in R.C. 2953.21(A)(2) as follows: “Except as

otherwise provided in section 2953.23 of the Revised Code, a petition under division

(A)(1) of this section shall be filed no later than one hundred eighty days after the date

on which the trial transcript is filed in the court of appeals in the direct appeal of the

judgment of conviction or adjudication * * *. If no appeal is taken, except as otherwise

provided in section 2953.23 of the Revised Code, the petition shall be filed no later than

one hundred eighty days after the expiration of the time for filing the appeal.”

       {¶40} In the case sub judice, appellant filed a direct appeal from his conviction.

Appellant thus was required to file his petition no later than one hundred eighty days
Guernsey County App. Case No. 10 CA 15                                                     9


after the date on which the trial transcript was filed. Appellant, however, did not do so.

Appellant's petition was, therefore, untimely.

       {¶41} In order for a trial court to recognize an untimely or successive post-

conviction petition pursuant to R.C. 2953.23(A)(1), both of the following requirements

must apply:

       {¶42} “(a) Either the petitioner shows that the petitioner was unavoidably

prevented from discovery of the facts upon which the petitioner must rely to present the

claim for relief, or, subsequent to the period prescribed in division (A)(2) of section

2953.21 of the Revised Code or to the filing of an earlier petition, the United States

Supreme Court recognized a new federal or state right that applies retroactively to

persons in the petitioner's situation, and the petition asserts a claim based on that right.

       {¶43} “(b) The petitioner shows by clear and convincing evidence that, but for

constitutional error at trial, no reasonable factfinder would have found the petitioner

guilty of the offense of which the petitioner was convicted * * *.”

       {¶44} A court has no jurisdiction to hear an untimely petition for post-conviction

relief unless the movant meets the requirements in R.C. 2953.23(A).

       {¶45} As noted by the trial court in its May 17, 2012 Judgment Entry, neither of

the exceptions set forth above apply. As noted by the trial court, appellant “did not show

any reason pursuant to R.C. 2953.23(A)(1) as to why the untimely petition should be

permitted.”   The trial court, therefore, properly held that appellant's petition was

untimely.

       {¶46} Moreover, appellant's arguments were either raised, or could have been

raised, in his direct appeal or in his previous Post-Conviction Petition. Therefore,
Guernsey County App. Case No. 10 CA 15                                               10


appellant's arguments are barred under the doctrine of res judicata. As stated by the

Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104

(1967): “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.”

       {¶47} Appellant’s five assignments of error are, therefore, overruled.

       {¶48} Accordingly, the judgment of the Guernsey County Court of Common

Pleas is affirmed.



By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                               JUDGES




JAE/d0910
[Cite as State v. Harper, 2012-Ohio-5161.]


             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. 12 CA 15




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

judgment of the Guernsey County Court of Common Pleas is affirmed. Costs assessed

to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
