State v. Grace , 2017 Ohio 7652 ( 2017 )

[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
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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.
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{¶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.
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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.