[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 : O P I N I O N

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 

 

-vsHENRY HARPER 

 Defendant - Appellant 

 

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 JUDGMENT ENTRY 

 Case No. 12 CA 22 

 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