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State v. Harper

Court of Appeals of Ohio, Fifth District

September 9, 2013

STATE OF OHIO Plaintiff-Appellee
v.
HENRY HARPER Defendant-Appellant

Criminal appeal from the Guernsey County Court of Common Pleas, Case No. 10CR000070

DANIEL G. PADDEN Prosecuting Attorney For Plaintiff-Appellee

HENRY N. HARPER For Defendant-Appellant

Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

OPINION

Gwin, P.J.

{¶1} Defendant-appellant Henry N. Harper ["Harper"], appeals a judgment of the Court of Common Pleas of Guernsey County, Ohio, which overruled his motion for "Grand Jury Transcripts pursuant to Ohio Revised Code 2941.26 Variance." Plaintiff-appellee is the State of Ohio.

Facts and Procedural History

{¶2} On May 25, 2010, the Guernsey County Grand Jury indicted Harper 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, Harper pled not guilty to the charges.

{¶3} The matter proceeded to jury trial. The jury found Harper guilty of having weapons while under disability, discharge of firearm on or near prohibited premises and kidnapping. The jury also found that Harper, with respect to the kidnapping charge, had a firearm on or about his person or under his control. The jury found Harper not guilty of the tampering charge. The trial court sentenced Harper to an aggregate term of imprisonment of eight years.

{¶4} Harper filed a timely appeal to this Court. This court upheld Harper's convictions and sentences. State v. Harper, 5th Dist. Guernsey No. 2010-CA-44, 2011-Ohio-4568.

{¶5} On November 22, 2011, Harper filed a Motion for Sentence Reduction in the trial court. The trial court denied the Motion for Sentence Reduction on January 10, 2012.

{¶6} On January 19, 2012, Harper filed a Petition for Post-Conviction Relief. Harper alleged that the trial court had erred in failing to inform his wife, Tina Harper that she did not have to testify against Harper, that his trial counsel, Lindsey Donehue, was ineffective in failing to object when Harper's wife was called as a witness against him, and that his property had been illegally searched without a search warrant. Harper also alleged that his conviction for having weapons while under disability was based on perjured testimony from Detective Sam Williams, that Williams altered Harper'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 Harper's behalf or to subpoena witnesses. The trial court denied Harper's petition pursuant on January 25, 2012, finding that the petition was not timely filed.

{¶7} Harper appealed from the trial court's January 10, 2012 Judgment Entry, he also appealed from the trial court's January 25, 2012 Judgment Entry. Subsequently, via an Opinion filed on July 30, 2012 in State v. Harper, 5th Dist. Guernsey Nos. 12 CA 000003, 12 CA 000008, 2012-Ohio-3541, this Court affirmed the judgment of the trial court in both cases based on res judicata.

{¶8} On March 14, 2012, while the above cases were pending, Harper filed a Second Petition for Post-Conviction Relief. Harper alleged that police had committed an illegal search and seizure of his home, which 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 Harper's Miranda rights form, and that Williams' trial testimony was inconsistent. Harper 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. Harper also alleged that his bail was excessive and that there was insufficient evidence supporting his conviction for having weapons while under disability. Pursuant ...


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