State v. Brown, Case No. 16CA15
| Decision Date | 19 September 2016 |
| Docket Number | Case No. 16CA15 |
| Citation | 2016 Ohio 5893 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. JUHAN BROWN Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
For Plaintiff-Appellee
BAMBI COUCH PAGE
DANIEL M. ROGERS
Richland County Prosecutor's Office
38 South Park Street
Mansfield, OH 44902
For Defendant-Appellant
JUHAN BROWN
P.I.N. a-601-361
Richland Correctional Inst.
1001 Olivesburg Road
Mansfield, OH 44901-8107
{¶1} Defendant-appellant Juhan Brown ["Brown"] appeals from the February 23, 2016 Judgment Entry issued by the Richland County Court of Common Pleas overruling his "Motion for a Final Appealable Order."
{¶2} This Court upheld Brown's convictions and sentences for 1). Trafficking in crack cocaine (between one and ten grams) in the vicinity of a school zone, R.C. 2925.03(A), a felony of the third degree; 2). Trafficking in crack cocaine (between one and ten grams) in the vicinity of a school zone, R.C. 2925.03(A), a felony of the third degree; 3). Possession of crack cocaine (between ten and twenty-five grams), R.C. 2925.11, a felony of the second degree, with a forfeiture specification for $940.00 in currency; and 4). Trafficking in crack cocaine (between one and ten grams) in the vicinity of a school zone, R.C. 2925.03(A), a felony of the third degree. For a complete background underlying Brown's convictions see, State v. Brown, 5th Dist. Richland No. 11 CA 42, 2012-Ohio-2672. ["Brown I"]. The Ohio Supreme Court declined to exercise jurisdiction. State v. Brown, 134 Ohio St.3d 1448, 2013-Ohio-347, 982 N.E.2d 727(Table). This Court denied Brown's motion to re-open his appeal by Judgment Entry filed November 2, 2012.
{¶3} Subsequently, on July 15, 2013, Brown filed a "Motion for Dismissal of Convictions Based on Inapplicable Offenses and a Motion to Take Judicial Notice." The trial court, pursuant to a December 27, 2013 Judgment Entry overruled and dismissed Brown's "Motion for Dismissal of Convictions Based on Inapplicable Offenses and Motion to Take Judicial Notice", which it treated as a petition for post-conviction relief. This Court affirmed the judgment of the trial court. State v. Brown, 5th Dist. Richland No. 14CA3, 2014-Ohio-3222 [Brown II"]. This Court denied Brown's motion to reconsider by Judgment Entry filed August 27, 2014. The Ohio Supreme Court declined to exercise jurisdiction. State v. Brown, 141 Ohio St.3d 1475, 2015-Ohio-554, 25 N.E.3d 1081(Table.)
{¶4} Thereafter, on August 8, 2014, Brown filed a Motion to Vacate Sentence Pursuant to R.C. 2945.75(A)(2). The trial court overruled that motion on October 9, 2014. This Court affirmed the trial court's decision. State v. Brown, 5th Dist. Richland No. 14CA83, 2015-Ohio-850 ["Brown III"].
{¶5} Thereafter on February 11, 2016, Brown filed a "Motion for a Final Appealable Order." The trial court overruled Brown's motion by Judgment Entry filed February 23, 2016.
{¶6} Brown raises four assignments of error,
{¶7} "I. THE TRIAL COURT'S IMPOSITION OF SENTENCE DOES NOT CONSTITUTE A FINAL, APPEALABLE ORDER PURSUANT TO CRIMINAL RULE 32(C).
{¶8} "II. THE TRIAL COURT ABUSES ITS DISCRETION WHEN IT FAILED TO CORRECT THE IMPOSITION OF A VOID SENTENCE BY PROPERLY NOTIFYING MR. BROWN THE CONSEQUENCES OF VIOLATING POST-RELEASE CONTROL AS MANDATED BY R.C. 2929.141.
{¶10}
Pro se Appellants
{¶11} We understand that Brown has filed this appeal pro se. Nevertheless, "like members of the bar, pro se litigants are required to comply with rules of practice and procedure." Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. We also understand that "an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).
{¶12} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in the parties' briefs that are outside of the record.
{¶13} In the interests of justice, we shall attempt to consider Brown's assignments of error.
{¶14} In the syllabus of State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131 the Supreme Court of Ohio set forth the standard by which post-conviction motions are to be reviewed in light of R.C. 2953.21: "Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for post-conviction relief as defined in R.C. 2953.21."
{¶15} The Reynolds court explained that despite its caption, a motion meets the definition of a petition for post-conviction relief if it is (1) filed subsequent to a direct appeal; (2) claims a denial of constitutional rights; (3) seeks to render the judgment void; and (4) asks for vacation of the judgment and sentence. Id. at 160.
{¶16} Accordingly, in reviewing Brown's motion, we find it to be a petition for post-conviction relief (PCR) as defined in R.C. 2953.21. The motion was filed subsequent to Brown's direct appeal, claimed a denial of his constitutional rights and sought to render the judgment void and asked for vacation of the judgment and sentence.
{¶17} R.C. 2953.23(A) provides that a defendant may file only one petition for post-conviction relief, unless he can satisfy one of the narrow exceptions set forth in the statute. This statute provides in pertinent part:
{¶18} In the case at bar, each of Brown's assignments of error concern the imposition of sentence. Thus, Brown was aware of the facts upon which his motion to vacate was based on March 31 2011. As such, Brown has failed to meet his burden under R.C. 2953.23(A)(1) to file an untimely petition for post-conviction relief and the trial court therefore lacked jurisdiction to entertain the petition. See State v. Kelly, 6th Dist. No. L-05-1237, 2006-Ohio-1399, at ¶ 12; State v. Smith, 9th Dist. No. 05CA008772, 2006-Ohio-2045 at ¶ 9; State v. Luther, 9th Dist. No. 05CA008770, 2006-Ohio-2280 at ¶ 13; State v. Downey, 5th Dist. Stark No. 2013CA00157, 2013-Ohio-4693, ¶25. We find that the trial court's denial of Brown's "Motion for a Final Appealable Order" is proper because the court was not statutorily authorized to entertain the petition because of its untimeliness. Id.
{¶19} In his first assignment of error, Brown contends that his sentencing entry is not a final appealable order because the trial court failed to advise him during the sentencing hearing that, should he commit a felony while on post-release control, his post-release control could be terminated and he could be sentenced to an additional term of imprisonment equal to the greater of the remaining period of post release control or one year for committing a felony while on post release control; the trial court failed to advise him that failure to pay court costs could result in an order to perform community service; and the trial court improperly suspended his driver's license.
To continue reading
Request your trial