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

COURT OF APPEALS 

 GUERNSEY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsHENRY N. HARPER 

 

 Defendant-Appellant 

: JUDGES: 

: W. Scott Gwin, P.J. 

: Sheila G. Farmer, J. 

: Julie A. Edwards, J. 

: 

: Case No. 12 CA 15 

: 

: 

: O P I N I O N

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 postconviction 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. 

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 JUDGES