State v. Garner , 2011 Ohio 1209 ( 2011 )

[Cite as State v. Garner, 2011-Ohio-1209.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 2010 CA 00236
MARCUS GARNER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2009 CR 00855
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 14, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO CLAIRE R. CAHOON
PROSECUTING ATTORNEY ASSISTANT PUBLIC DEFENDER
RENEE M. WATSON 250 East Broad Street
ASSISTANT PROSECUTOR Suite 1400
110 Central Plaza South, Suite 510 Columbus, Ohio 43215
Canton, Ohio 44702
Stark County, Case No. 2010 CA 00236 2
Wise, J.
{¶1} Appellant Marcus Garner appeals the trial court’s July 20, 2010, Judgment
Entry granting Appellee State of Ohio’s Motion to Dismiss and For Summary Judgment.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 21, 2009, Appellant Marcus Garner visited a bar known as The
Spot in Canton, Ohio. At the bar, Appellant got into a heated argument with Monaray
Jones and Daryle Bryant about something that had occurred the week before. Monaray
Jones left the patio area of the bar and walked back into the bar. Appellant followed. A
fight then erupted inside the bar between Appellant and Jones. Bryant observed
Appellant throw a chair and saw him fighting with a number of people. The bar's
bouncers broke up the fight and made the participants leave the bar.
{¶3} Outside of the bar, Quinn Bradley witnessed Appellant and Jones arguing
in the parking lot. She saw Appellant with a gun but did not see Jones with a gun. She
saw Jones backing away from Appellant with his hands up and telling Appellant to put
the gun down. Appellant then shot into the air once and then again at Jones' feet.
Following the second shot, Appellant turned around and walked back toward the bar. As
he did, Jones obtained a gun and returned fire. Appellant shot back, shooting Jones in
the face. Appellant then got on his motorcycle and fled the scene. Jones died as a result
of his injuries.
{¶4} Appellant was subsequently arrested and charged with one count of
voluntary manslaughter with a firearm specification and one count of having weapons
under disability.
Stark County, Case No. 2010 CA 00236 3
{¶5} Following a jury trial, Appellant was found guilty of the charges. The trial
court sentenced Appellant to ten years for voluntary manslaughter, three years for the
gun specification and two years for having a weapon under disability. The sentences
were to run consecutively for a total of fifteen years incarceration.
{¶6} Appellant filed a direct appeal from his conviction and sentence. In said
appeal, Appellant raised four assignments of error: the trial court committed error when
it denied his motion to instruct the jury on self defense; his conviction was against the
manifest weight of the evidence presented at trial; the trial court erred in not granting his
motion for a criminal rule 29 acquittal; and, he was denied his right to effective
assistance of counsel. This Court’s August 16, 2010, Opinion overruled Appellant’s
assignments of error and affirmed his conviction. See State v. Garner, Stark App.No.
2009-CA-286, 2010-Ohio-3891.
{¶7} On June 25, 2010, Appellant filed a Petition for Post-Conviction Relief.
{¶8} On July 12, 2010, the State filed a Motion to Dismiss and For Summary
Judgment.
{¶9} By Judgment Entry dated July 20, 2010, the trial court granted the State of
Ohio’s Motion to Dismiss.
{¶10} Appellant now appeals to this Court, assigning the following errors for
review:
ASSIGNMENTS OF ERROR
{¶11} “I. THE TRIAL COURT ERRED AND DENIED MR. GARNER DUE
PROCESS OF LAW BY DISMISSING HIS POSTCONVICTION PETITION BEFORE
Stark County, Case No. 2010 CA 00236 4
THE EXPIRATION OF TIME FOR FILING A RESPONSE TO THE STATE’S MOTION
TO DISMISS AND FOR SUMMARY JUDGMENT.
{¶12} “II. THE TRIAL COURT ERRED IN DISMISSING MR. GARNER’S
POSTCONVICTION PETITION AS BARRED BY RES JUDICATA WHEN THE
PETITION INCLUDED EVIDENCE DEHORS THE RECORD.
{¶13} “III. THE TRIAL COURT ERRED IN DISMISSING MR. GARNER’S
POSTCONVICTION PETITION, BECAUSE MR. GARNER PRESENTED A
SUBSTANTIVE GROUND FOR RELIEF IN OFFERING SUFFICIENT EVIDENCE
THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
{¶14} “IV. THE TRIAL COURT ERRED IN DISMISSING MR. GARNER’S
POSTCONVICTION PETITION WITHOUT AN EVIDENTIARY HEARING WHEN THE
PETITION DEMONSTRATED SUFFICIENT OPERATIVE FACTS TO ESTABLISH
SUBSTANTIVE GROUNDS FOR RELIEF.”
I.
{¶15} In his first assignment of error, Appellant claims that the trial court erred in
granting the State’s motion to dismiss prior to the expiration of the time for a response.
We agree.
{¶16} Civ.R. 56(E) states, in pertinent part:
{¶17} “When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or denials
of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must
set forth specific facts showing that there is a genuine issue for trial. If he does not so
respond, summary judgment, if appropriate, shall be entered against him.”
Stark County, Case No. 2010 CA 00236 5
{¶18} Loc. R. 10.01 of the Court of Common Pleas of Stark County provides: ***
Motions for summary judgment taken pursuant to Civil Rule 56 will be set for hearing
and briefs will be due as required by Civil Rule 56(C).
{¶19} The Ohio Rules of Civil Procedure clearly contemplate that a party will
have at least fourteen days following service of a motion for summary judgment to file
opposing affidavits. See, Civ.R. 56(C).
{¶20} In the present case, the trial court ruled upon the State's motion for
summary judgment prior to the expiration of the fourteen-day time limit for Appellant's
response. By failing to provide Appellant with an opportunity to respond, the trial court
denied Appellant his right to due process.
{¶21} Based on the foregoing, we find that Appellant's right of due process was
infringed upon as he was not given an opportunity to respond to the motion for summary
judgment.
{¶22} Accordingly, we find Appellant's first assignment of error well-taken and
hereby sustain same.
II., III., IV.
{¶23} Based on our disposition of Appellant’s first assignment of error and our
remand to the trial court to consider Appellant’s response to the State’s Motion to
Dismiss and For Summary Judgment, we decline to rule on Appellant’s remaining
assignments of error.
Stark County, Case No. 2010 CA 00236 6
{¶24} Accordingly the judgment of the Court of Common Pleas, Stark County,
Ohio, is reversed and this matter is remanded for further proceedings consistent with
the law and this opinion.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0228
Stark County, Case No. 2010 CA 00236 7
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MARCUS GARNER :
:
Defendant-Appellant : Case No. 2010 CA 00236
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is reversed and
remanded for further proceedings consistent with this opinion.
Costs assessed to Appellee.
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JUDGES