[Cite as State v. Staats,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : GARY CYRIL STAATS : Case No. 2015CA00207 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2014- CR-1179(A)

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 9, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO GARY CYRIL STAATS, pro se Prosecuting Attorney Inmate No. A661-652 Richland Correctional Institution By: RENEE M. WATSON P.O. Box 8107 Assistant Prosecuting Attorney Mansfield, Ohio 44901 Appellate Section 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2015CA00207 2

Baldwin, J.

{¶1} Defendant-appellant Gary Cyril Staats appeals from the September 24,

2015 Judgment Entry of the Stark County Court of Common Pleas denying his

“Successive Motions for Post-Conviction Relief”. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 25, 2014, the Stark County Grand Jury indicted appellant on one

count of aggravated burglary in violation of R.C. 2911.11(A)(1), a felony of the first degree,

and one count of felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2), a

felony of the second degree. At his arraignment on August 29, 2014, appellant entered a

plea of not guilty to the charges.

{¶3} Thereafter, on October 6, 2014, appellant withdrew his former not guilty plea

and entered a plea of guilty to the charges. As memorialized in a Judgment Entry filed on

October 9, 2014, appellant was sentenced to six (6) years on each count. The trial court

ordered that the sentences be served concurrently, for an aggregate sentence of six (6)

years in prison.

{¶4} Appellant filed a Notice of Appeal from the trial court’s October 9, 2014

Judgment Entry. Appellant’s appeal was assigned Case No. 2014CA00197 and, on May

5, 2015, was dismissed for want of prosecution.

{¶5} On May 18, 2015, appellant filed a Petition to Vacate or Set Aside Judgment

of Conviction or Sentence. Appellant, in his petition, alleged that his trial counsel had a

conflict of interest because he represented a co-defendant, David Staats, in a probate

matter and that his trial counsel was ineffective because he failed to investigate and/or

interview witnesses, failed to prepare for trial, and failed to subpoena records. Appellant Stark County, Case No. 2015CA00207 3

further alleged that his trial counsel was ineffective in failing to file a motion “For a Review

of prosecuting attorney’s Cirtification (sic) of non-disclosure” and failed to share with

appellant discovery material that was marked “counsel only.” Appellant also alleged that

he was prejudiced by the State’s withholding of evidence and that his plea was not

knowing, intelligent and voluntary.

{¶6} On May 18, 2015, appellant also filed a supplement to his Petition for Post-

Conviction Relief. Appellant, in the same, argued that his right to confront his accusers

and cross-examine witnesses was violated and that Detective Victor George, the

investigating officer, “distorted the true nature of the facts and evidence to fit his agenda.”

Appellant, on the same date, also filed a motion seeking to withdraw his guilty plea.

{¶7} Appellant, on May 28, 2015, filed a supplemental affidavit in support of his

Petition for Post-Conviction Relief and Motion for Withdrawal of Guilty Plea.

{¶8} On June 26, 2015, appellant filed a supplement to his Petition for Post-

Conviction Relief, again arguing that his counsel had a conflict of interest involving David

Staats, and a Motion for Summary Judgment. Appellant, on July 16, 2015, filed an

“Amendment to Supplicate Motion to Withdraw Guilty Plea”, arguing that the State failed

to comply with an order of discovery. On July 24, 2015, appellant filed an amendment to

his Petition for Post-Conviction Relief, arguing ineffective assistance of trial counsel and

on August 24, 2015, he filed a brief in support of Post-Conviction.

{¶9} The trial court, as memorialized in a Judgment Entry filed on September 24,

2015, denied appellant’s May 18, 2015 Petition for Post-Conviction Relief finding and the

supplement to the same that was filed the same day, finding, in part, that appellant could

have raised the claims on direct appeal and that the claims, therefore, were barred under Stark County, Case No. 2015CA00207 4

the doctrine of res judicata. The trial court further found that appellant had failed to support

his allegations and that he had been provided with all witness statements by receipt.

Finally, the trial court found that appellant had entered his plea freely and voluntarily with

the effective assistance of counsel.

{¶10} Pursuant to a separate Judgment Entry filed on September 24, 2015, the

trial court denied appellant’s documents that were filed after his May 18, 2015 Petition for

Post-Conviction Relief and the supplement to the same filed the same day, finding that

they were successive petitions and that appellant had failed to prove either or the two

required factors for successive petitions set forth in R.C. 2953.23(A)(1).

{¶11} Appellant now raises the following assignments of error on appeal:

{¶12} THE TRIAL COURT ERRORED (SIC) AND ABUSED IT’S (SIC)

DISCREATION (SIC) IN DENYING THE POSTCONVICTION PETITION AS BEING

SUCCESSIVE MOTIONS FOR POSTCONVICTION RELIEF, AND FAILED TO SERVE

PROPER NOTICE: CIVIL RULE 58(B).

{¶13} THE TRIAL COURT ERRED AND ABUSED IT’S (SIC) DISCREATION

(SIC) WHEN IT DENIED THE POSTCONVICTION RELIEF PETITION WITHOUT THE

FINDINGS OF FACTS AND CONCLUSIONS OF LAW AS REQUIRED BY O.R.C.

2953.21.

I, II

{¶14} Appellant, in his first assignment of error, argues that the trial court erred

when, in its September 24, 2015 Judgment Entry, it denied all of appellant’s motions

and/or documents filed after May 18, 2015, finding that they were successive Petitions

for Post-Conviction Relief and that appellant had failed to satisfy the factors set forth in Stark County, Case No. 2015CA00207 5

R.C. 2953.23(A)(1) for filing a successive petition. In his second assignment of error,

appellant contends that the trial court erred in denying his Petition for Post-Conviction

Relief without issuing findings of fact and conclusions of law.

{¶15} In the case sub judice, appellant filed his original Petition for Post-

Conviction Relief and his first supplement to the same on May 18, 2015. Between May

28, 2015 and August 24, 2015, appellant filed numerous supplements to his original

petition. The State never responded to the same.

{¶16} R.C. 2953.21(F) allows the petitioner to amend his petition with or without

leave of court at any time before an answer is filed, or any time thereafter with leave of

court. Thus, pursuant to R.C. 2953.21(F), appellant was entitled to amend his original,

petition, which was not answered by the prosecutor nor ruled upon by the trial court.

Appellant is correct, therefore, that his amendments to his original petition were not

successive Petition for Post-Conviction Relief.

{¶17} However, as noted by the trial court, the arguments that appellant raised in

the later filings “are reiterations of the arguments made to the Court in the original petition

for postconviction relief.” We concur with appellee that, therefore, appellant cannot

demonstrate that he suffered any prejudice. Any error that the trial court made in

dismissing appellant’s later filings as successive Petitions for Post-Conviction Relief was

harmless.

{¶18} As is stated above, appellant, in his second assignment of error, argues that

the trial court erred in denying his Petition for Post-Conviction Relief without making

findings of fact and conclusions of law as required by R.C. 2953.21. Stark County, Case No. 2015CA00207 6

{¶19} Pursuant to R.C. 2953.21, if a trial court dismisses a petition for post-

conviction relief without a hearing it has to provide findings of fact and conclusions of law

as to why the petition was dismissed. See State v. Lester,

,

(1975), paragraph two of the syllabus. The trial court does not need to specifically

label the findings of fact and conclusions of law as such in its journal entry, so long as the

purpose is served of informing the petitioner of the grounds for denial. State v. Farley,

10th Dist. No. 03AP–555, 2004–Ohio–1781, ¶ 16.

{¶20} The purpose of requiring the trial court to include findings of fact and

conclusions of law in its judgment entry is to sufficiently apprise both the petitioner and

the potential appellate court of the grounds for its decision. State v. Foster, 9th Dist.

Summit No. 18169,

(Sept. 24, 1997) at 3, citing State ex. rel. Carrion v.

Harris,

,

(19888). In State v. Mapson,

, 438 N.E .2d 910(1982), the Court stated as follows:

The obvious reasons for requiring findings are “ * * * to apprise

petitioner of the grounds for the judgment of the trial court and to enable the

appellate courts to properly determine appeals in such a cause.” Jones v.

State (1966),

,

. The existence of findings

and conclusions are essential in order to prosecute an appeal. Without

them, a petitioner knows no more than he lost and hence is effectively

precluded from making a reasoned appeal. In addition, the failure of a trial

judge to make the requisite findings prevents any meaningful judicial review,

for it is the findings and the conclusions which an appellate court reviews

for error. Stark County, Case No. 2015CA00207 7

{¶21} In the case sub judice, we find that the trial court's decision denying

appellant's Petition for Post-Conviction Relief satisfies the policy considerations

announced in Mapson. While the trial court did not label a section of its Judgment Entry

as “findings of fact and conclusions of law,” the trial court's September 24, 2015 Judgment

Entry adequately addresses appellant's arguments and explains that the trial court's

reasons for denying his claims were res judicata, failure of appellant to support his

allegations, and its belief that appellant’s plea was knowing, intelligent and voluntary. We

find that the trial court provided enough information to apprise appellant of the reasons it

was denying his Petition for Post-Conviction Relief.

{¶22} Finally, we note that appellant argues that, with respect to all of the

Judgment Entries denying his Petition and supplements, he was not served with the same

as required by Civ.R. 58(B). Such section states as follows:

When the court signs a judgment, the court shall endorse thereon a

direction to the clerk to serve upon all parties not in default for failure to

appear notice of the judgment and its date of entry upon the journal. Within

three days of entering the judgment upon the journal, the clerk shall serve

the parties in a manner prescribed by Civ. R. 5(B) and note the service in

the appearance docket. Upon serving the notice and notation of the service

in the appearance docket, the service is complete. The failure of the clerk

to serve notice does not affect the validity of the judgment or the running of

the time for appeal except as provided in App. R. 4(A).

{¶23} Appellee, in its brief, agrees that the “record does appear to reflect that

[appellant] was not properly served,…” However, because this Court, via a Judgment Stark County, Case No. 2015CA00207 8

Entry filed on January 12, 2016, permitted appellant’s appeal to proceed as if timely, we

find that appellant was not prejudiced.

{¶24} Based on the foregoing, appellant’s two assignments of error are overruled.

{¶25} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.