State v. Garner

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[Cite as State v. Garner, 2011-Ohio-1209.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vsCase 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 PROSECUTING ATTORNEY RENEE M. WATSON ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702 CLAIRE R. CAHOON ASSISTANT PUBLIC DEFENDER 250 East Broad Street Suite 1400 Columbus, Ohio 43215 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 {¶5} 3 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. ___________________________________ ___________________________________ ___________________________________ 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 -vsMARCUS GARNER Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY 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. ___________________________________ ___________________________________ ___________________________________ JUDGES

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