Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Barber

Court of Appeals of Ohio, Tenth District

December 26, 2017

State of Ohio, Plaintiff-Appellee,
Michael Barber, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 12CR-4433

         On Brief:

          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

         On Brief:

          Michael Barber, pro se.


          BRUNNER, J.

         {¶ 1} Defendant-appellant, Michael Barber, appeals a decision of the Franklin County Court of Common Pleas originally filed on May 11, 2015, and thereafter amended and filed on September 17, 2015, concerning a motion for postconviction relief. We agree that one of Barber's claims in his postconviction petition was res judicata and appropriately dismissed without a hearing. We find that the trial court committed legal error in not using the appropriate legal analysis in deciding whether to consider Barber's affidavits. This error makes it premature to determine whether the trial court properly denied Barber a hearing, and we remand this matter to the trial court with instructions.


         {¶ 2} On August 30, 2012, a Franklin County Grand Jury indicted Barber and a co-defendant, Kelly Rupe, for possession of heroin in an amount equal to or exceeding 250 grams and possession of marijuana in an amount equal to or exceeding 5, 000 grams but less than 20, 000 grams.[1] (Aug. 30, 2012 Indictment.) He pled not guilty on September 12. (Sept. 12, 2012 Plea Form.)

         {¶ 3} On three occasions prior to trial (the last of which was the morning trial began) the State made plea offers, all of which Barber declined. (Apr. 17, 2013 Hearing Tr. at 11, filed Oct. 6, 2014; Jan. 6, 2014 Plea Form; Jan. 13, 2014 Trial Tr. Vol. 1 at 6-9, filed Oct. 6, 2014.) Under what was most likely the most favorable of these, Barber would have served eight years in prison to resolve all charges against him, including some in other pending cases. (Trial Tr. Vol. 1 at 6-9.) After Barber turned down the last plea offer on the morning of trial, Barber's attorney indicated to the trial court that Barber had lost faith in him and that Barber did not want to continue to be represented by that attorney. Id. at 9. The trial court informed Barber that it would not continue the case at that late juncture, and that Barber could proceed pro se or he could keep current counsel. Id. at 9-18. Faced with that choice, Barber elected to keep his counsel. Id. at 18. At one point in the pretrial discussions, Barber asked if he could act as co-counsel but that matter was tabled in order to address the jury waiver with respect to the weapon under disability charge; Barber never renewed the request. Id. at 22-23.

         {¶ 4} We have previously summarized the facts as presented in the trial:

After complaints were made about possible drug activity at an apartment building located at 500 South Westgate Avenue in Columbus, Ohio, a police investigation discovered evidence of possible drug trafficking at that address. Subsequently, the police obtained and executed a warrant to search 2 upstairs units in the building, labeled apartment A and apartment B. Among other things, police found 12 wrapped bricks of marijuana weighing more than 5, 000 grams, a gun, a baggie containing 315 grams of heroin, scales, and miscellaneous pills in apartment A. In apartment B, they found $17, 000 in cash, some heroin, a scale, a ledger sheet, and the tape used to wrap the bricks of marijuana.
Rupe testified that he was living in apartment A at the time of the search. Sometime before the search, appellant moved in with Rupe. Appellant and Rupe had known one another for a long time. Two or three months before the search, however, appellant moved to apartment B after they had a fight. Appellant was living in apartment B on the day of the search.
According to Rupe, when appellant lived with him in apartment A, appellant began bringing heroin into the apartment. Appellant would cut the heroin, weigh it, and package it in baggies for sale. Rupe became involved in the drug transactions after appellant asked him to sell some heroin to someone. Rupe testified that he sold drugs for appellant between 50 and 100 times. He said that when people contacted appellant to purchase heroin, appellant would let Rupe know they were coming to his apartment and the quantity of drugs they wanted to buy. Rupe then took care of the transaction. (Tr. 319.) Rupe thought that by helping appellant out in this way, he would get appellant out of his apartment faster.
With respect to the drugs found in his apartment pursuant to the search warrant, Rupe denied knowing how the drugs got there. However, he stated that appellant might have had keys to his apartment. Appellant's fingerprint was found on the baggie of heroin recovered from apartment A. Rupe also explained that appellant liked to keep his money separate from his drugs, which could account for why the drugs were found in Rupe's apartment and the money was found in appellant's apartment. Paperwork found in appellant's apartment appeared to be a ledger sheet which kept track of how much money people owed and the quantity of drugs they wanted. (Tr. 256.)
Appellant presented one witness who testified that she bought a lot of heroin from Rupe in apartment A but never saw appellant or purchased heroin from him. In closing arguments, appellant's trial counsel argued that the drugs were Rupe's, not appellant's, and that it was Rupe who kept the money away from his drugs in apartment B. The jury rejected that argument and found appellant guilty of both drug possession counts and the trial court sentenced him accordingly.

State v. Barber, 10th Dist. No. 14AP-557, 2015-Ohio-2653, ¶ 3-7.

         {¶ 5} The trial court sentenced Barber to 14 years in prison; 11 years on the heroin count and 3 years on the marijuana count. (June 13, 2014 Jgmt Entry.) Barber timely appealed and, among his other assignments of error, argued that "[t]he trial court committed reversible error in denying appellant's request to represent himself." Barber, 2015-Ohio-2653, ¶ 8. This Court ultimately overruled that assignment of error in our decision on June 30, 2015, but we remanded the case to the trial court because it had failed to make the appropriate findings for imposing consecutive sentences under R.C. 2929.14(C)(4). Id. at ¶ 24-30. At a hearing on July 30, 2015, the trial court reimposed the 14-year sentence, this time making the relevant findings for consecutive sentences pursuant to R.C. 2929.14(C)(4). (July 30, 2015 Hearing Tr., filed Nov. 17, 2015; July 31, 2015 Jgmt. Entry; Aug. 28, 2015 Am. Jgmt. Entry.) Appeals from that sentence have proven unsuccessful. State v. Barber, 10th Dist. No. 15AP-902, 2016-Ohio-1409; State v. Barber, 10th Dist. No. 15AP-1140 (Jan. 22, 2016) (dismissing duplicate appeal in light of case No. 15AP-902).

         {¶ 6} While the direct appeal was pending, on April 3, 2015, Barber filed pro se a petition for postconviction relief with exhibits. (Apr. 3, 2015 Postconviction Petition.) On April 15, before the State responded, Barber filed two supplemental affidavits, including his own. (Apr. 15, 2015 Postconviction Petition Supp.) Barber's petition proposed six claims for relief:

1. That his counsel was ineffective (claims 1-3) in failing to interview and subpoena witnesses or otherwise develop evidence on the following topics:
a. That Barber did not have unlimited access to Rupe's apartment or keys thereto;
b. That Rupe was a regular user and dealer of heroin, independent of Barber;
c. That Rupe had nice cars, funded an expensive drug habit, collected valuable exotic fish, had sold a great deal of heroin over many years, and had other indications of being a large-volume drug dealer to rebut the State's contrasting photographs showing Barber's nice apartment and Rupe's less luxurious apartment;
2. That the trial court abused its discretion in not permitting Barber to replace his counsel before the trial began (claim 4);
3. That counsel failed to develop evidence to contest the State's fingerprint expert who testified that Barber's fingerprint was on a package of heroin found in Rupe's apartment (claim 6); and
4. That counsel misled Barber into believing that he had obtained an expert to refute the State's expert on the fingerprint analysis and thus misled Barber into rejecting the offered plea (claim 5).

(Apr. 3, 2015 Postconviction Petition.)

         {¶ 7} Barber's affidavit supported his petition's claims by swearing that defense counsel told him he had hired a fingerprint expert and that there were not enough points of similarity to match his fingerprints to the print on a baggie of heroin recovered from the scene. (Apr. 1, 2015 Barber Aff. at ¶ 16, 22, 24, filed Apr. 15, 2015.) His affidavit explained that counsel indicated that he was contacting witnesses whom Barber had identified. Id. at ¶ 16. Barber averred, however, that during trial, counsel failed to call the expert he had hired, failed to visually compare Barber's fingerprints with the evidence fingerprint due to counsel's inability to competently use courthouse display technology, and had forgotten to contact (and thus was unable to call) any of Barber's witnesses. Id. at ¶ 25-28. Barber, in his affidavit, concluded that, had he been accurately advised by counsel of counsel's lack of preparation, he would have taken the eight-year plea deal that was offered. Id. at ¶ 28.

         {¶ 8} The State filed a memorandum in opposition and motion to dismiss on May 8, 2015. (May 8, 2015 Memo. Contra & Mot. to Dismiss.) Three days later, without giving reasoning of any kind, the trial court summarily denied Barber's postconviction petition. (May 11, 2015 Entry Denying Postconviction Petition.) On June 29, 2015, Barber sought leave to amend his petition with a fingerprint report obtained from his former counsel. (June 29, 2015 Mot. for Leave to Amend.) The following day, the State responded that the motion should be denied as the petition had already been denied and there was thus nothing to amend. (June 30, 2015 Memo. Contra Mot. to Amend.) On July 2, the trial court summarily denied leave to amend, stating no reason for judgment. (July 2, 2015 Entry Denying Leave to Amend.)

         {¶ 9} Shortly thereafter, on August 31, 2015, Barber filed a motion for a final order pointing out that his postconviction petition could not, as a matter of statute, be dismissed without findings of fact and conclusions of law. (Aug. 31, 2015 Mot. for Final Appealable Order at 1, citing former[2] R.C. 2953.21(C)). On September 14, 2015, Barber again sought to amend his petition, this time with an affidavit from his landlord to the effect that he and Rupe did not live together and that, to his knowledge, Barber did not have a key to Rupe's apartment. (Sept. 14, 2015 Mot. for Leave to Amend.)

         {¶ 10} Three days later, on September 17, 2015, the trial court issued an order granting Barber leave to amend and supplement in respect to the April 15 and September 14 motions, but leaving in place the denial of the June 29, 2015 attempt to amend. (Sept. 17, 2015 Entry Denying Postconviction Petition.) The same order ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.