State v. Grace

2017 Ohio 7652

• Court: Ohio Court of Appeals
• Decided: September 18, 2017
• Docket: 16AP0058, 16AP0059
• Status: Published

Opinion

[Cite as State v. Grace, 2017-Ohio-7652.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO C.A. Nos. 16AP0058 16AP0059 Appellee

v. APPEAL FROM JUDGMENT CARL GRACE ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT Appellant COUNTY OF WAYNE, OHIO CASE Nos. 2014 TR-C 000643 2014 CR-B 000172

DECISION AND JOURNAL ENTRY

Dated: September 18, 2017

CALLAHAN, Judge.

{¶1} Carl Grace appeals from his convictions in the Wayne County Municipal Court.

This Court affirms.

I.

{¶2} Following a traffic stop on February 1, 2014, Mr. Grace was charged with two

counts of operating a vehicle under the influence of alcohol, one count of speeding, and one

count of failure to wear a safety belt in case number 2014 TR-C 000643, and possession of

marijuana in case number 2014 CR-B 000172. Mr. Grace pled not guilty and was appointed

counsel.

{¶3} Upon motion of the State, the cases were consolidated. Mr. Grace filed a motion

to suppress. That motion was denied, and the matter was set for a bench trial. The date of the 2

scheduled trial, the State requested a continuance and Mr. Grace requested new counsel. The

court granted both requests.

{¶4} The date of the rescheduled trial, Mr. Grace requested a continuance. Mr. Grace

explained that he recently reviewed the video of the traffic stop and his counsel could not answer

certain questions to his satisfaction. He continued that he had made an appointment to speak to

another attorney and intended to “pay for [his] own attorney.” The trial court denied the

continuance request.

{¶5} At the conclusion of the bench trial, the judge took the matter under advisement.

The next day, he issued journal entries finding Mr. Grace guilty of all the charges. Mr. Grace

appealed raising one assignment of error. State v. Grace, 9th Dist. Wayne Nos. 15AP0022 and

15AP0023, 2016-Ohio-4989, ¶ 4. He argued that the trial court violated Crim.R. 43(A)(1) by

returning its verdict without his physical presence. Id. at ¶ 5. This Court agreed and “remanded

[the cases] for the trial court to announce its verdict in compliance with Crim.R. 43(A)(1).” Id.

at ¶ 7. On remand, the trial court announced its guilty verdicts in Mr. Grace’s presence.

{¶6} Mr. Grace appeals raising two assignments of error.

II.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO GRANT MR. GRACE’S MOTION FOR A CONTINUANCE ON THE DAY OF TRIAL.

ASSIGNMENT OF ERROR NO. 2

MR. GRACE’S RIGHT TO COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT REFUSED TO GRANT A CONTINUANCE IN THIS CASE TO ALLOW MR. GRACE THE OPPORTUNITY TO RETAIN COUNSEL OF HIS CHOOSING. 3

{¶7} In his first and second assignments of error, Mr. Grace argues that the trial court

abused its discretion and violated his constitutional right to counsel by denying his request for a

continuance in order to retain new counsel. This Court does not reach the merits of Mr. Grace’s

arguments as they are barred by res judicata.

{¶8} “‘Where an argument could have been raised on an initial appeal, res judicata

dictates that it is inappropriate to consider that same argument on a second appeal following

remand.’” State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, ¶ 95, quoting State v.

D’Ambrosio, 73 Ohio St.3d 141, 143 (1995). Res judicata “preclude[s] a defendant who has had

his day in court from seeking a second on that same issue.” State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, ¶ 18. It “promotes the principles of finality and judicial economy by

preventing endless relitigation of an issue on which a defendant has already received a full and

fair opportunity to be heard.” Id.

{¶9} In Mr. Grace’s initial appeal, he had the opportunity to be heard on any issues that

existed at that time. Mr. Grace’s current assignments of error are based on the trial court’s denial

of his request for a continuance in 2014. He does not raise any issues regarding actions taken by

the trial court following this Court’s remand in 2016. In Mr. Grace’s prior appeal, he could have

challenged the trial court’s denial of his continuance request, but he did not. Mr. Grace cannot

use this successive appeal in an attempt to raise issues that could have been raised in his first

appeal.

{¶10} Mr. Grace’s first and second assignments of error are overruled.

III.

{¶11} Mr. Grace’s assignments of error are overruled. The judgment of the Wayne

County Municipal Court is affirmed. 4

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

LYNNE S. CALLAHAN FOR THE COURT

HENSAL, P. J. SCHAFER, J. CONCUR.

APPEARANCES:

NORMAN R. “BING” MILLER, JR., Attorney at law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.