State v. Harding , 2023 Ohio 753 ( 2023 )

[Cite as State v. Harding, 2023-Ohio-753.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-09-019
: OPINION
- vs - 3/13/2023
:
KELLY L. HARDING, :
Appellant. :
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case No. CRI20160016
Nicholas A. Adkins, Madison County Prosecuting Attorney, and Rachel M. Price, Assistant
Prosecuting Attorney, for appellee.
Kelly L. Harding, pro se.
S. POWELL, P.J.
{¶ 1} Appellant, Kelly L. Harding, appeals the decision of the Madison County Court
of Common Pleas denying his third successive petition for postconviction relief upon finding
his claims were once again barred by the doctrine of res judicata. For the reasons outlined
below, we affirm the trial court's decision.
Madison CA2022-09-019
Facts and Procedural History
{¶ 2} On November 17, 2016, the trial court sentenced Harding to serve an
aggregate eight-year prison term after a jury found him guilty of one count of second-degree
felony possession of drugs and one count of fifth-degree felony possession of criminal tools.
The charges arose after a lawful traffic stop was effectuated on the vehicle Harding was
driving eastbound on Interstate 70 through Madison County, Ohio, during which troopers
with the Ohio State Highway Patrol located 123 pounds of marijuana inside the vehicle.
The pursuit, traffic stop, and subsequent search of the vehicle Harding had been driving
were all recorded and captured by the arresting trooper's dashboard cruiser camera.
{¶ 3} Harding directly appealed his conviction, raising four assignments of error for
review. Specifically, Harding challenged the trial court's denial of his motion to suppress
and his eight-year prison sentence. Harding also argued that his conviction was not
supported by sufficient evidence and that he received ineffective assistance of trial counsel.
This court disagreed with each of Harding's claims set forth within his four assignments of
error and affirmed Harding's conviction in its entirety. State v. Harding, 12th Dist. Madison
No. CA2016-11-029, 2017-Ohio-8930. The Ohio Supreme Court thereafter denied
Harding's motion for leave to file a delayed appeal. State v. Harding, 152 Ohio St.3d 1440,
2018-Ohio-1600.
{¶ 4} On December 12, 2017, Harding filed his first petition for postconviction relief.
To support his first petition, Harding argued the video recording of the traffic stop presented
at both the suppression hearing and at trial was not the same video that was sent to his
expert, Primeau Forensics, for authentication, thereby depriving him of backseat telemetry
and audio evidence that could have supported his defense. Harding also argued the state
committed Brady violations, withheld payment to Primeau so that Primeau's final report was
not ready for trial, and never provided Harding with the raw data of the video recording
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despite his pro se requests.1 Harding further argued his trial counsel was ineffective for not
subpoenaing a certain witness, for allowing the trial to proceed without Primeau's final
report, for failing to compare the video recording of the traffic stop presented at the
suppression hearing and at trial with the video sent to Primeau, and for failing to investigate
backseat telemetry and audio evidence.
{¶ 5} On May 6, 2019, the trial court issued a decision denying Harding's first
postconviction relief petition on the basis of res judicata.2 In so doing, the trial court found
Harding's ineffective assistance of counsel claims could have been raised on direct appeal
because the evidence and exhibits Harding used to support his position "would have
reasonably been in his possession such that any argument could have been included" in
his direct appeal. The trial court also found Harding's claims that the video recording of the
traffic stop captured by the arresting trooper's dashboard cruiser camera had been altered
or tampered with could have likewise been raised on direct appeal because issues
regarding the allegedly altered video was "raised early in the process and continuously at
the trial court level." This included a pretrial hearing held in the spring of 2016 shortly after
Harding was indicted, as well as at another pretrial hearing held several months later in the
fall of that same year.
{¶ 6} Harding appealed the trial court's decision denying his initial petition for
1. The term Brady refers to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), a case in which the United
States Supreme Court held that prosecutors have a duty to disclose potentially exculpatory evidence to
criminal defendants.
2. We note that, initially, the trial court summarily denied Harding's petition without a hearing and without
issuing findings of fact and conclusions of law. Harding then appealed and we dismissed the appeal pursuant
to the Ohio Supreme Court's decision in State v. Mapson, 1 Ohio St.3d 217 (1982), which held that a judgment
entry denying postconviction relief without findings of fact and conclusions of law was not a final appealable
order. State v. Harding, 12th Dist. Madison No. CA2018-03-008, 2018-Ohio-5051. The Ohio Supreme Court
subsequently overruled Mapson upon finding that, "pursuant to R.C. 2953.23(B), a judgment granting or
denying postconviction relief is a final, appealable order. If a trial court errs by failing to issue statutorily
required findings of fact and conclusions of law, the petitioner may obtain relief by raising that issue in an
appeal from the trial court's judgment." State ex rel. Penland v. Dinkelacker, 162 Ohio St.3d 59, 2020-Ohio-
3774, ¶ 28.
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postconviction relief. In support of his appeal, Harding argued the trial court erred by finding
his claims were barred by res judicata because they involved newly discovered evidence
that was outside the record. This court disagreed and upheld the trial court's decision in
full. State v. Harding, 12th Dist. Madison No. CA2019-05-012, 2020-Ohio-1067. In so
holding, this court noted that:
[w]ithin Harding's direct appeal, this court addressed the
dashcam video issue, and also determined that Harding was not
denied effective assistance of counsel. Harding argued issues
related to the dashcam video multiple times before the trial and
during it. The dashcam video issue in no way constituted newly
discovered evidence or provided Harding with an issue that was
not or could not have been argued on direct appeal. Harding
has argued the dashcam video to the trial court and this court,
and has simply "re-packaged" those arguments by virtue of his
petition for postconviction relief.
Id. at ¶ 11. This court further noted that "[t]he information and the fact that he was not
provided a final report from the expert was obviously known to Harding, as his trial occurred
without such report being made." Id. at ¶ 12.
{¶ 7} On September 24, 2021, Harding filed his second petition for postconviction
relief. To support his second petition, Harding argued his conviction should be vacated in
accordance with Civ.R. 60(B)(5) because his trial counsel engaged in inexcusable neglect
and because both his trial counsel and the state had committed fraud upon the court. More
specifically, Harding argued the state acted fraudulently by presenting an altered video
recording of the traffic stop at trial because the video that was sent to Primeau, which had
backseat telemetry and audio, was not the same video that was presented at trial. Harding
also argued his trial counsel acted fraudulently when his counsel advised the trial court on
the morning of the trial that counsel had spoken to Primeau and that Primeau had expressed
an opinion about the video recording. Harding further argued that his trial counsel's failure
to compare the video recordings and request that Primeau do the same, counsel's refusal
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to file a motion to continue the trial to compare the video recordings, and counsel's failure
to contact a certain witness, constituted inexcusable neglect.
{¶ 8} On October 14, 2021, the trial court denied Harding's second petition for
postconviction relief upon again finding Harding's claims were barred by the doctrine of res
judicata. The trial court reached this decision based on its finding Harding had "raise[d] no
new issues that have not been litigated on appeal or in his first post-conviction relief motion."
Harding appealed that decision and this court affirmed. State v. Harding, 12th Dist. Madison
No. CA2021-10-018, 2022-Ohio-3595. In so holding, this court stated:
[Harding] argued issues related to the dashcam video multiple
times before the trial, during trial, and in his initial [postconviction
relief] petition. Likewise, [Harding] argued issues regarding the
lack of a final report by Primeau in his initial [postconviction
relief] petition. Primeau's email to appellant's girlfriend, written
six days after the trial, precedes Exhibit E, an October 2017
affidavit from [Harding's] girlfriend that appellant submitted with
his second [postconviction relief] petition. In her affidavit,
[Harding's] girlfriend asserts that Primeau's final report was
never prepared and that she "personally spoke with [Primeau]
via telephone and emails several times." Exhibit E duplicates
an exhibit attached to [Harding's] initial [postconviction relief]
petition. Therefore, Primeau's email is not newly-discovered
evidence and [Harding] was not unavoidably prevented from
discovering facts necessary for his fraud-upon-the-court claim
for relief. As this issue could have been raised in [Harding's]
initial [postconviction relief] petition, res judicata bars [Harding]
from raising this issue. Res judicata bars a petitioner from "re-
packaging" evidence or issues that either were or could have
been raised.
(Internal citations omitted.) Id. at ¶ 20.
{¶ 9} On December 30, 2021, Harding filed his third petition for postconviction
relief.3 To support his third petition, Harding argued the same essential claims that he had
advanced previously at trial, on direct appeal, and/or within his first and second petitions for
3. Harding filed his third petition for postconviction relief while his appeal from the trial court's denial of his
second postconviction relief petition was still pending before this court.
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postconviction relief. This includes, most notably, purported issues related to the alleged
alteration of the video recording of the traffic stop captured by the arresting trooper's
dashboard cruiser camera. Because of this, on August 16, 2022, the trial court issued a
decision denying Harding's third petition for postconviction relief upon once again finding
Harding's claims were barred by the doctrine of res judicata. In so doing, the trial court
noted that each of the issues Harding had raised within his petition had "already been or
could have been fully litigated by Mr. Harding while represented by counsel either before
the judgment of conviction or on direct appeal from that judgment." The trial court also
noted that "the issue of video altering has been litigated in this case from the beginning
through multiple attorneys, from [Harding], through appeals, and through multiple post-
conviction relief motions." This was in addition to the trial court noting that "[Primeau] was
the defense expert in this case notably meaning that the evidence at issue has been in the
possession of the defense from the very beginning," and that "[t]he raw data and the video
presented at trial has been in the possession of the defense from a time prior to the actual
jury trial and well before any appeals were filed in this matter."
Harding's Appeal and Two Assignments of Error
{¶ 10} On September 6, 2022, Harding filed a notice of appeal from the trial court's
decision denying his third successive petition for postconviction relief on the basis of res
judicata. Harding's appeal was submitted to this court for review on February 15, 2023.
Harding's appeal now properly before this court for decision, Harding has raised two
assignments of error for this court's consideration.
{¶ 11} Assignment of Error No. 1:
{¶ 12} [THE TRIAL COURT'S] DECISION IS ARBITRARY, UNREASONABLE AND
UNCONSCIONABLE, WHEN WITHOUT HOLDING AN EVIDENTIARY HEARING, [THE
TRIAL COURT] OVERRULED HARDING'S "PETITION TO VACATE OR SET ASIDE
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JUDGMENT OF CONVICTION" BASED UPON "FRAUD UPON THE COURT PURSUANT
TO [CIV.R.] 60(B)(5) DUE TO INTENTIONAL, FRAUDULENT, NONDISCLOSURE
DURING DISCOVERY, NEWLY DISCOVERED EVIDENCE AFTER TRIAL AND DIRECT
APPEAL.
{¶ 13} In his first assignment of error, Harding argues the trial court erred by denying
his third successive postconviction relief petition upon finding his claims were once again
barred on the basis of res judicata. However, because this court has already rejected
substantially similar, if not outright identical, claims to those Harding raised within that
petition, the trial court did not err by denying Harding's most recent petition for
postconviction relief on the basis of res judicata without first holding an evidentiary hearing
on the matter. This is because, as is well established, "a petition for postconviction relief
may be dismissed without an evidentiary hearing when the claims raised are barred by the
doctrine of res judicata." State v. Ruggles, 12th Dist. Warren No. CA2021-03-023, 2022-
Ohio-1804, ¶ 22, citing State v. Perry, 10 Ohio St.2d 175 (1967); see, e.g., State v. King,
12th Dist. Butler Nos. CA2013-11-199 and CA2014-06-138, 2014-Ohio-5393, ¶ 34 (trial
court did not err in denying appellant's petition for postconviction relief without first holding
an evidentiary hearing where appellant's petition was barred by res judicata and otherwise
unsupported by the record).
{¶ 14} In this case, just as he has done previously, Harding is doing nothing more
than "re-packaging" evidence or issues that he either did raise or could have raised
previously. This includes Harding's claims related to the "raw data" taken from the video
recording of the traffic stop captured by the arresting trooper's dashboard cruiser camera.
This court has already advised Harding that res judicata bars a petitioner from "re-
packaging" evidence or issues that either were or could have been raised previously. See
Harding, 2022-Ohio-3595, at ¶ 20, citing State v. Brown, 12th Dist. Preble No. CA2019-04-
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006, 2020-Ohio-971, ¶ 50. This court has, in fact, advised Harding of this twice. See also
Harding, 2020-Ohio-1067, at ¶ 7, citing State v. Rose, 12th Dist. Butler No. CA2012-03-
050, 2012-Ohio-5957, ¶ 20. Therefore, because the issues Harding raised within his third
successive postconviction relief petition are still and always will be barred by res judicata,
the trial court did not err by denying Harding's petition without first holding an evidentiary
hearing on the matter. Accordingly, finding no error in the trial court's decision, Harding's
first assignment of error lacks merit and is overruled.
{¶ 15} Assignment of Error No. 2:
{¶ 16} [THE TRIAL COURT'S] DECISION IS BIASED, ARBITRARY,
UNREASONABLE AND UNCONSCIONABLE, WHEN [THE TRIAL COURT] RULED THAT
THE COURT HAS DISCRETION TO ALLOW FILINGS BEYOND THE DATE SET BY THE
COURT, WHILE OVERLOOKING THE PERTINENT PART OF PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT FILED ON MARCH 4, 2022, NAMELY THAT: THE STATE
FILED A BRIEF BUT LEFT THE DATE BLANK. THE STATE'S BRIEF SHALL NOT BE
CONSIDERED AS IT WAS FILED WITH AN INCOMPLETE PROOF OF SERVICE. THE
STATE'S BRIEF WAS NOT IN ACCORDANCE WITH CIV.R. 5(B)(4).4
{¶ 17} In his second assignment of error, Harding argues the trial court erred by
accepting the state's memorandum in opposition to his third petition for postconviction relief
because the state left the date on its certificate of service blank contrary to the requirements
set forth in Crim.R. 49(C).5 However, although we agree with Harding's claim that the state's
4. We note the reference Harding makes within this assignment of error to a motion for summary judgment
he filed with the trial court on March 4, 2022. Harding did file such a motion, which the trial court subsequently
denied. Harding's notice of appeal, however, expressly states that his appeal is a challenge to just the trial
court's August 16, 2022 decision denying his third successive petition for postconviction relief that he filed
with the trial court on December 30, 2021. The trial court's decision denying Harding's motion for summary
judgment is therefore not currently before this court as Harding did not appeal from that decision.
5. Crim.R. 49(C) is the corresponding criminal rule to Civ.R. 5(B)(4), both of which require the necessary
certificate of service to state the date and the manner of service being performed.
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certificate of service did not include a date, any error the trial court may have made by
accepting the state's filing was harmless given the state's brief two-page memorandum did
nothing more than advise the trial court that Harding's arguments were barred by the
doctrine of res judicata. The record is clear that the trial court did not rely upon the state's
memorandum when reaching that same conclusion. The record instead plainly indicates
that the trial court conducted a thorough review of the entire record prior to issuing its
decision in this case. This is evidenced by the detail the trial court included within its 12-
page decision, as well as the trial court's express statement that, in order to put Harding's
arguments into their "proper perspective," it was "necessary to review the history of the
case" so that Harding's arguments could be analyzed in the "proper context." Therefore,
because Crim.R. 52(A) instructs this court to disregard any error, defect, irregularity, or
variance that does not affect substantial rights, Harding's second assignment of error also
lacks merit and is overruled.
Conclusion
{¶ 18} For the reasons outlined above, and finding no merit to any of the arguments
raised by Harding herein in support of his two assignments of error, the trial court's decision
denying Harding's third successive petition for postconviction relief on the basis of res
judicata is affirmed.
{¶ 19} Judgment affirmed.
HENDRICKSON and M. POWELL, JJ., concur.
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