[Cite as State v. Grace, 2017-Ohio-7652.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF WAYNE ) 

STATE OF OHIO 

 Appellee 

 v. 

CARL GRACE 

 Appellant 

C.A. Nos. 16AP0058 

 16AP0059 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

WAYNE COUNTY MUNICIPAL COURT 

COUNTY OF WAYNE, OHIO 

CASE Nos. 2014 TR-C 000643 

2014 CR-B 000172 

DECISION AND JOURNAL ENTRY 

Dated: September 18, 2017 

 

CALLAHAN, Judge. 

{¶1} Carl Grace appeals from his convictions in the Wayne County Municipal Court. 

This Court affirms. 

I. 

{¶2} Following a traffic stop on February 1, 2014, Mr. Grace was charged with two 

counts of operating a vehicle under the influence of alcohol, one count of speeding, and one 

count of failure to wear a safety belt in case number 2014 TR-C 000643, and possession of 

marijuana in case number 2014 CR-B 000172. Mr. Grace pled not guilty and was appointed 

counsel. 

{¶3} Upon motion of the State, the cases were consolidated. Mr. Grace filed a motion 

to suppress. That motion was denied, and the matter was set for a bench trial. The date of the 
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scheduled trial, the State requested a continuance and Mr. Grace requested new counsel. The 

court granted both requests. 

{¶4} The date of the rescheduled trial, Mr. Grace requested a continuance. Mr. Grace 

explained that he recently reviewed the video of the traffic stop and his counsel could not answer 

certain questions to his satisfaction. He continued that he had made an appointment to speak to 

another attorney and intended to “pay for [his] own attorney.” The trial court denied the 

continuance request. 

{¶5} At the conclusion of the bench trial, the judge took the matter under advisement. 

The next day, he issued journal entries finding Mr. Grace guilty of all the charges. Mr. Grace 

appealed raising one assignment of error. State v. Grace, 9th Dist. Wayne Nos. 15AP0022 and 

15AP0023, 2016-Ohio-4989, ¶ 4. He argued that the trial court violated Crim.R. 43(A)(1) by 

returning its verdict without his physical presence. Id. at ¶ 5. This Court agreed and “remanded 

[the cases] for the trial court to announce its verdict in compliance with Crim.R. 43(A)(1).” Id. 

at ¶ 7. On remand, the trial court announced its guilty verdicts in Mr. Grace’s presence. 

{¶6} Mr. Grace appeals raising two assignments of error. 

II. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO 

GRANT MR. GRACE’S MOTION FOR A CONTINUANCE ON THE DAY OF 

TRIAL. 

ASSIGNMENT OF ERROR NO. 2 

MR. GRACE’S RIGHT TO COUNSEL GUARANTEED BY THE SIXTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO 

CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT REFUSED 

TO GRANT A CONTINUANCE IN THIS CASE TO ALLOW MR. GRACE 

THE OPPORTUNITY TO RETAIN COUNSEL OF HIS CHOOSING. 
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{¶7} In his first and second assignments of error, Mr. Grace argues that the trial court 

abused its discretion and violated his constitutional right to counsel by denying his request for a 

continuance in order to retain new counsel. This Court does not reach the merits of Mr. Grace’s 

arguments as they are barred by res judicata. 

{¶8} “‘Where an argument could have been raised on an initial appeal, res judicata 

dictates that it is inappropriate to consider that same argument on a second appeal following 

remand.’” State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, ¶ 95, quoting State v. 

D’Ambrosio, 73 Ohio St.3d 141, 143 (1995). Res judicata “preclude[s] a defendant who has had 

his day in court from seeking a second on that same issue.” State v. Saxon, 109 Ohio St.3d 176, 

2006-Ohio-1245, ¶ 18. It “promotes the principles of finality and judicial economy by 

preventing endless relitigation of an issue on which a defendant has already received a full and 

fair opportunity to be heard.” Id. 

{¶9} In Mr. Grace’s initial appeal, he had the opportunity to be heard on any issues that 

existed at that time. Mr. Grace’s current assignments of error are based on the trial court’s denial 

of his request for a continuance in 2014. He does not raise any issues regarding actions taken by 

the trial court following this Court’s remand in 2016. In Mr. Grace’s prior appeal, he could have 

challenged the trial court’s denial of his continuance request, but he did not. Mr. Grace cannot 

use this successive appeal in an attempt to raise issues that could have been raised in his first 

appeal. 

{¶10} Mr. Grace’s first and second assignments of error are overruled. 

III. 

{¶11} Mr. Grace’s assignments of error are overruled. The judgment of the Wayne 

County Municipal Court is affirmed. 
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Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Wayne County 

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A 

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

HENSAL, P. J. 

SCHAFER, J. 

CONCUR. 

APPEARANCES: 

NORMAN R. “BING” MILLER, JR., Attorney at law, for Appellant. 

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting 

Attorney, for Appellee.