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The State of Ohio v. Marcus Garner

October 24, 2011

THE STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MARCUS GARNER, DEFENDANT-APPELLANT.



Appeal from the Stark County Court of Common Pleas Case No. 2009-CR-0855

The opinion of the court was delivered by: Delaney, J.

Cite as State v. Garner,

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT ENTRY:

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J.

OPINION

AFFIRMED

[Cite as State v. Garner, 2011-Ohio-5582.]

{¶1} Defendant-Appellant, Marcus Garner, appeals the judgment of the Stark County Court of Common Pleas, denying his petition for post-conviction relief. The State of Ohio is Plaintiff-Appellee.

{¶2} On May 21, 2009, Appellant was at a bar, The Spot, in Canton, Ohio. At the bar, Appellant got into a heated argument with Monaray Jones. 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, and several others. The bar's bouncers broke up the fight and the participants subsequently left the bar.

{¶3} Outside of the bar, witnesses testified Appellant and Jones arguing in the parking lot. Appellant then pointed a gun and fired a shot at Jones' feet and then again into the air. Appellant turned around and walked back toward the bar. As he did, Jones obtained a gun and fired at Appellant as he was walking away. 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} In July, 2009, Appellant was indicted on one count of voluntary manslaughter, a felony of the first degree, with a firearm specification, and one count of having a weapon under disability. In October, 2009, Appellant exercised his right to a jury trial and was found guilty as charged. He was then sentenced to an aggregate of 15 years in prison.

{¶5} Appellant filed a direct appeal with this Court, and raised four assignments of error. In his first assignment of error, he argued that the trial court erred in refusing to issue a jury instruction on self-defense. In his second and third assignments of error, he challenged the weight and sufficiency of the evidence. In his fourth assignment of error, he argued that he received the ineffective assistance of trial counsel for failing to call witnesses or to provide evidence in support of his self-defense claim.

{¶6} This Court, in State v. Garner, 5th Dist. No. 2009CA286, 2010-Ohio-3891, affirmed Appellant's convictions, finding no error in the trial proceedings below. This Court noted that Appellant argued to the jury the case was about mistaken identity, not self-defense. After reviewing the law in regards to self-defense, including the requirement that a defendant must prove he is not at fault for creating the situation giving rise to the affray, this Court stated that "numerous witnesses testified they witnessed Appellant brandish a gun, point at Jones and make intimidating statements. The testimony established Appellant brandished and shot his gun first." Id. at ¶ 20. Accordingly, we concluded "* * * the trial court did not abuse its discretion in not instructing the jury as to self defense. The evidence demonstrates Appellant was at fault in creating the situation giving rise to the shooting of Monaray Jones." Id. at ¶ 112.

{¶7} On June 25, 2010, Appellant filed a petition for post-conviction relief, claiming ineffective assistance of trial counsel. Specifically, Appellant argued trial counsel was ineffective for failing to investigate exculpatory eyewitnesses to support a self-defense theory. In support, Appellant submitted the affidavit of Christopher Huff, a bar bouncer, who did not testify at trial. Appellee filed a response to the petition and a motion to dismiss and for summary judgment.

{¶8} The trial court dismissed Appellant's petition, finding his claim of ineffective assistance to be res judicata. Additionally, the court stated that even if the claim were not barred by res judicata, Appellant's complaint was without merit.

{¶9} Appellant appealed the denial of the post-conviction petition, and argued that the trial court erred in failing to give him fourteen days to respond to the Appellee's motion for summary judgment. This Court reversed and remanded the case in State v. Garner, 5th Dist. No. 2010-CA-236, 2011-Ohio-1209, finding that the trial court violated Appellant's rights in denying him the opportunity to respond to the Appellee's motion within the time limit proscribed by law.

{¶10} The trial court again denied Appellant's petition and dismissed it without an evidentiary hearing, finding Appellant's ineffective assistance claim to be barred and also without merit.

{¶11} It is from that judgment that Appellant now appeals, raising three Assignments of Error:

{ΒΆ12} "I. THE TRIAL COURT ERRED IN DISMISSING MR. GARNER'S POST-CONVICTION PETITION AS BARRED BY RES JUDICATA WHEN THE PETITION ...


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