[Cite as State v. Henry, 2012-Ohio-420.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA116
vs. : T.C. CASE NO. 99CR0584
ANJUAN HENRY : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 3rd day of February, 2012.
. . . . . . . . .
Andrew Wilson, Pros. Attorney; Andrew R. Picek, Asst. Pros.
Attorney, Atty. Reg. No. 0082121, 50 E. Columbia Street, 4th Floor,
P.O. Box 1608, Springfield, OH 45501
Attorneys for Plaintiff-Appellee
Anjuan Henry, Inmate No. 401-154, P.O. Box 69, London, OH 43140
Defendant-Appellant, Pro Se
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Anjuan Henry, appeals from a final order of
the court of common pleas that denied Defendant’s motion for return
of monies law enforcement officers seized during a search of
Defendant’s residence. Finding the error Defendant assigns is
barred by res judicata, we will affirm the final order from which
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the appeal was taken.
{¶ 2} In 1999, Defendant was charged by indictment in Common
Pleas Court Case No. 99-CR-0584 with two counts of drug trafficking
in violation of R.C. 2925.03. Defendant was also charged by
indictment in Case No. 99-CR-296 with one count of drug possession,
R.C. 2925.11, and as a major drug offender. R.C. 2925.01,
2929.13(F). The two indictments were joined for trial.
{¶ 3} Defendant was convicted of the charges in both
indictments following a jury trial. On July 20, 2000, the trial
court imposed prison terms and mandatory fines for all three
offenses. When law enforcement officers searched Defendant’s
residence at the time of his arrest, they seized $2,700 in cash.
Concerning those funds, the judgment of conviction the court
journalized on September 25, 2000, states:
{¶ 4} “The court further finds that the court reporter has
in her possession property belonging to the defendant to-wit:
$2,700.00 that was recovered from defendant and that this money
be released to the Clerk to be applied towards the mandatory fines
imposed herein to-wit: $900.00 to the Clark County Prosecutor’s
Office; $900.00 to the Ohio State Highway Patrol and $900 to the
Mad River Drug Task Force.” (Dkt. 25, p. 2).
{¶ 5} Defendant appealed from his judgment of conviction.
We reversed, finding that the trial court erred when it joined
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the possession and drug trafficking charges in a single trial,
and also abused its discretion when the court denied Defendant’s
motion to continue his trial. The case was remanded for further
proceedings. State v. Henry, Clark App. No. 2000CA0080,
2002-Ohio-391.
{¶ 6} On November 10, 2003, Defendant entered no contest pleas
to the two drug trafficking charges in Case No. 99CR0584.
Defendant was sentenced on November 12, 2003. No judgment of
conviction was journalized until January 7, 2011, however. That
judgment makes no mention of the fines the court previously imposed
or the $2,700.00 the court ordered forfeited and applied toward
those fines.
{¶ 7} Prior to the journalization of his judgment of conviction
in 2011, but six and one-half years after the court had imposed
his sentence in 2003, on April 21, 2010 Defendant filed a motion
asking for return of the $2,700.00 police seized. (Dkt. 46).
Defendant argued that the State failed to follow the statutory
procedures forfeiture requires. The trial court denied
Defendant’s motion on December 10, 2010. (Dkt. 47). Defendant
filed a notice of appeal from that order.
ASSIGNMENT OF ERROR
{¶ 8} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR RECOVERY OF FUNDS.”
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{¶ 9} Defendant argues that the forfeiture of monies law
enforcement officers seized in the search of his home was erroneous
for failure to follow the statutory provisions governing
forfeiture.
{¶ 10} The State responds that any error the forfeiture involved
is nevertheless harmless because a misapplication would benefit
Defendant by reducing fines he is obligated to pay. The State
relies on our decision in State v. Jamison, Montgomery App. No.
23211, 2010-Ohio-965.
{¶ 11} In Jamison, we held that the defendant lacked standing
to invoke the statutory right of the true owner of seized funds
to recover possession of such funds because the defendant denied
ownership of the funds when he testified at trial. Id., at ¶31.
We further held that even if the court’s order applying the seized
funds to court costs the defendant was obliged to pay was improper,
the defendant was not prejudiced, and the error was therefore
harmless, “because the misapplication reduces his obligation to
pay the court costs, unless and until the rightful owner of the
funds comes forward to claim them.” Id., ¶44.
{¶ 12} The facts of the present case do not implicate the issue
of standing in the way that Jamison did. Nevertheless, we find
that Defendant is barred from assigning the error he argues on
appeal.
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{¶ 13} “Under the doctrine of res judicata, a final judgment
of conviction bars a convicted defendant who was represented by
counsel 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
an appeal from that judgment.” State v. Perry (1967), 10 Ohio St.2d
175, 226 N.E. 2d 104, paragraph nine of the syllabus.
{¶ 14} Defendant could have raised the issue of the forfeiture
and application to pay fines of the monies law enforcement officers
seized in a search of his home in his prior direct appeal from
his convictions for drug trafficking in which the forfeiture and
application were ordered. Defendant did not raise those issues
in that appeal. Defendant was therefore barred from raising those
issues in the motion he filed on April 21, 2010. Id. The trial
court did not err when it denied Defendant’s motion to recover
those funds.
{¶ 15} The assignment of error is overruled. The judgment from
which the appeal is taken will be affirmed.
HALL, J., concurs.
FROELICH, J., concurring in judgment:
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{¶ 16} After being convicted by a jury in Case Nos. 99-CR-584
(drug trafficking 2 counts) and 99-CR-296 (possession), Appellant
was ordered to serve 27 years in prison, pay mandatory fines of
$20,000 and costs; further his driver’s license was suspended and
the court ordered that property, to-wit $2,700, which “belongs
to the defendant but was in the possession of the court reporter,”
be released to the clerk “to be applied towards the mandatory fees.”
In October 2000, the “Judgment Entry of Conviction” in both cases
was appealed.
{¶ 17} In February 2002, we reversed the judgment of the trial
court and remanded the case. State v. Henry, 2d Dist. Clark No.
2000-CA-80, 2002 WL 125717 (Feb. 1, 2002). In June 2003, the
possession charge in Case No. 99-CR-296 was retried to a jury.
Henry was convicted and sentenced to mandatory 17 years in prison,
a $10,000 fine, and a five-year driver’s license suspension. The
judgment further states: “The Springfield Police Department has
in its possession property belonging to the defendant, to-wit:
$2,700.00 in Case No. 99-CR-584. The Clerk shall seize this
property for distribution toward the fine imposed once Case No.
99-CR-584 is disposed of.” Appellant filed a Notice of Appeal
in this case (99-CR-296).
{¶ 18} In November 2003, Appellant entered a plea of no contest
in Case No. 99-CR-584, and was found guilty of drug trafficking.
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The plea agreement included an agreed sentence to five years in
prison on each count, to be served consecutively to each other,
but concurrently with the prison sentence in Case No. 99-CR-296.
The trial court signed the plea agreement, but did not file a
separate judgment entry. (No Judgment Entry of Conviction was
filed in Case No. 99-CR-584 until January 7, 2011.) Following
his plea, Appellant filed a Notice of Appeal, attaching the plea
agreement, and the appeals in the possession and drug trafficking
cases were consolidated for briefing.
{¶ 19} In August 2005, we affirmed the judgments in Case Nos.
99-CR-584 and 99-CR-296. State v. Henry, 2d Dist. Clark Nos.
2003-CA-47 & 2003-CA-88, 2005-Ohio-4512. More than four years
later, in April 2010, Appellant filed a motion in Case No. 99-CR-584
for recovery of the $2,700. The trial court held that the “pro
se motion for recovery of funds which were ordered forfeited as
a result of his conviction in this case * * * is not well taken
and the same is denied.” That ruling is the subject of this appeal.
{¶ 20} The subsequent January 2011 Judgment in Case No.
99-CR-584 sentenced Henry to prison and post-release control; there
is no mention of any fine, costs, or the $2,700. On the same date,
the trial court filed an amended judgment entry in Case No.
99-CR-296, apparently for the purpose of correcting post-release
control.
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{¶ 21} Under the doctrine of res judicata, a valid final
judgment precludes the relitigation of the same issue or claim
which could have been raised at trial or in an appeal of the trial
court’s judgment. While it is correct that the Appellant’s
assignments and our 2002 opinion’s rationale dealt with the trial
court’s erroneous joinder of charges on a single trial and its
abuse of discretion in denying a motion to continue, our Final
Entry reversed the judgment of the trial court and remanded the
cause for further proceedings consistent with the opinion.
{¶ 22} “Ordinarily, a reversal of judgment on appeal nullifies
the judgment below, leaving the case standing as if no judgment
had been rendered.” Burns v. Daily, 114 Ohio App.3d 693, 704,
683 N.E.2d 1164 (11th Dist.1996). “The effect of a reversal and
order of remand is to reinstate the case to the docket of the trial
court in precisely the same condition [as] before the error
occurred.” Wilson v. Kreusch, 111 Ohio App.3d 47, 51, 675 N.E.2d
571 (2d Dist.1996). See Armstrong v. Marathon Oil Co., 32 Ohio
St.3d 397, 418, 513 N.E.2d 776 (1987).
{¶ 23} Therefore, the reversed 2000 Judgment in both cases was
a nullity and cannot serve as a valid final judgment for purposes
of res judicata. Appellant was convicted and sentenced in Case
No. 99-CR-584 by the January 2011 Judgment; there has been no
appeal. The January 2011 entry does not order anything or even
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mention the $2,700.
{¶ 24} The June 2003 Judgment in Case No. 99-CR-296, however,
ordered that the $2,700 be seized by the clerk and distributed
after Case No. 99-CR-584 was disposed of. Appellant appealed from
that judgment, raising four assignments of error. None of his
assignments challenged the trial court’s order for the clerk to
seize the $2,700 for distribution toward the mandatory fine.
Appellant could have raised the issue of forfeiture in that direct
appeal (of 99-CR-296). I would find that Appellant was barred
by res judicata from raising the issue of the forfeiture and
application to pay fines due to his failure to raise these issues
in his direct appeal from the June 2003 Judgment in Case No.
99-CR-296.
. . . . . . . . . .
Copies mailed to:
Andrew R. Picek, Esq.
Anjuan Henry
Hon. Richard J. O’Neill