[Cite as Harper v. Harper, 2013-Ohio-5413.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TINA L. HARPER JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2013 AP 06 0026
HENRY HARPER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court
of Common Pleas, Case No.
2013TC020087
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 9, 2013
APPEARANCES:
For Defendant-Appellant For Plaintiff-Appellee
HENRY HARPER, PRO SE MICHAEL C. JOHNSON
Bellmont Correctional Inst. - A638-859 Johnson, Urban & Range Co. LPA
P.O. Box 540, 68518 Bannock Road P.O. Box 1007, 117 South Broadway
St. Clairsville, Ohio 43950 New Philadelphia, Oio 44663
Tuscarawas County, Case No. 2013 AP 06 0026 2
Hoffman, P.J.
{¶1} Defendant-appellant Henry Harper appeals the May 29, 2013 Judgment
Entry entered by the Tuscarawas County Court of Common Pleas, which overruled his
objections to the magistrate’s May 1, 2013 decision, and approved and adopted said
decision as order of the court. Plaintiff-appellee is Tina L. Harper.1
STATEMENT OF THE CASE AND FACTS
{¶2} Appellant and Appellee were married on September 2, 1995. Three sons
were born of the union, one of whom is now emancipated. On February 26, 2013,
Appellee filed a Complaint for Divorce in the Tuscarawas County Court of Common
Pleas, alleging as grounds gross neglect of duty, extreme cruelty, and the parties
having lived separate and apart continuously for more than one year. Appellant had
been incarcerated since May, 2010. Appellant filed a pro se answer on March 20, 2013
{¶3} The matter came on for trial on May 1, 2013. The magistrate issued her
decision the same day, recommending Appellee be granted a divorce from Appellant on
the ground of Appellant’s incarceration in a State penal institution. Appellant filed timely
objections to the magistrate’s decision. Specifically, Appellant objected to the
magistrate’s granting Appellee a divorce based upon his incarceration. Appellant
argued his incarceration was “wrongful, unlawful, and unconstitutional”; therefore such
should not be grounds upon which to grant the divorce.
{¶4} Via Judgment Entry filed May 29, 2013, the trial court overruled
Appellant’s objections, and approved and adopted the magistrate’s decision as order of
the court.
1
Appellee has not filed a brief in this matter.
Tuscarawas County, Case No. 2013 AP 06 0026 3
{¶5} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
{¶6} “I. THE FIFTH DISTRICT COURT OF APPEALS DENIED THE
APPELLANT-DEFENDANT A FAIR OR PROPER APPEAL WHICH CAUSED THE
APPELLANT-DEFENDANT TO BE INCARCERATED AT THE TIME OF THE FILING
OF THE COMPLAINT AND THE PARTIES TO BE SEPARATED FOR OVER A YEAR.
{¶7} “II. THE TUSCARAWAS COUNTY COURT OF COMMON PLEAS
COMMITTED ERROR IN OVERRULING THE APPELLANT-DEFENDANT’S MOTION
TO CONTINUE DUE TOT HE (SIC) FACT THAT THE APPELLANT DEFENDANT IS
UNCONSTITUTIONALL (SIC) UNLAWFULLY, WRONGFULLY, AND ILLEGALLY
INCARCERATED AND WAS NOT ABLE TO PROPERLY REPRESENT HIMSELF.
THE TRIAL COURT COMPLETELY IGNORED THE APPELLANT-DEFENDANT’S
MOTIONS AND THE CONTENTS.”
I
{¶8} In his first assignment of error, Appellant maintains this Court denied him
a fair or proper appeal which resulted in his being incarcerated at the time of the filing of
Appellee’s complaint for divorce.
{¶9} In State v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233, the Ohio
Supreme Court held, “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
Tuscarawas County, Case No. 2013 AP 06 0026 4
trial, which resulted in that judgment of conviction, or on an appeal from that judgment.”
Id. at syllabus. (Emphasis added.)
{¶10} Appellant filed a direct appeal from his conviction and sentence, which this
Court affirmed in State v. Harper, Guernsey App. No. 2010–CA–44, 2011-Ohio-4568.
Under the doctrine of res judiciata, we find Appellant is barred from attempting to
reargue the validity of his conviction and sentence.
{¶11} Appellant’s first assignment of error is overruled.
II
{¶12} In his second assignment of error, Appellant contends the trial court erred
in denying his motion for a continuance. Appellant asserts because he is
unconstitutionally, unlawfully, wrongfully, and illegally incarcerated, he was not able to
properly represent himself.
{¶13} The decision to grant or deny a continuance is entrusted to the broad,
sound discretion of the trial court and will not be disturbed absent an abuse of
discretion. Lemon v. Lemon, Stark App. No.2010CA00319, 2011–Ohio–1878, citing
State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d 1078.
{¶14} In determining whether a trial court abused its discretion in denying a
motion for a continuance, an appellate court should consider the following factors: (1)
the length of the delay requested; (2) whether other continuances have been requested
and received; (3) the inconvenience to witnesses, opposing counsel, and the court; (4)
whether there is a legitimate reason for the continuance; (5) whether the defendant
contributed to the circumstances giving rise to the need for the continuance, and other
relevant factors, depending on the unique facts of each case. Unger, supra, at 67–68,
Tuscarawas County, Case No. 2013 AP 06 0026 5
423 N.E.2d 1078. The reviewing court must also weigh the potential prejudice to the
movant against the trial court's right to control its own docket. In re Barnick, Cuyahoga
App. No. 88334, 2007–Ohio–1720, ¶ 10, quoting Unger.
{¶15} Upon review of the record, we find the trial court did not abuse its
discretion in denying Appellant’s request for a continuance. Appellant was incarcerated
as the result of his own actions. Despite Appellant’s assertions to the contrary, this
Court found his conviction and sentence to be lawful and constitutional.
{¶16} Appellant’s second assignment of error is overruled.
{¶17} The judgment of the Tuscarawas County Court of Common Pleas is
affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. PATRICIA A. DELANEY
Tuscarawas County, Case No. 2013 AP 06 0026 6
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TINA L. HARPER :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
HENRY HARPER :
:
Defendant-Appellant : Case No. 2013 AP 06 0026
For the reasons stated in our accompanying Opinion, the judgment of the
Tuscarawas County Court of Common Pleas is affirmed. Costs to Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. PATRICIA A. DELANEY