State v. Brown
2017 Ohio 4063
| Ohio Ct. App. | 2017Background
- In 2006 Raymond S. Brown was indicted for multiple sexual offenses against three minors from his church; he pleaded guilty in 2007 to three counts of gross sexual imposition and was sentenced to three consecutive five-year prison terms (aggregate 15 years). Counts charging rape were dismissed. Brown did not file a direct appeal.
- The sentencing entry stated post-release control was mandatory and would be five years on each count; a nunc pro tunc corrected a statutory citation.
- In August 2016 (more than nine years after sentencing), Brown filed a “Motion to Correct Sentence” alleging (1) increased punishment/multiple convictions/allied-offenses error, (2) defective post-release control notice, (3) failure to consider ability to pay court costs and to warn about community service, and (4) ineffective assistance of counsel.
- The State opposed; the trial court denied Brown’s motion. Brown timely appealed that denial.
- The appellate court treated Brown’s filing as an untimely petition for post-conviction relief for the constitutional claims and applied res judicata to non-constitutional claims. The court affirmed the judgment as modified: it held the trial court lacked jurisdiction over the untimely constitutional claims (they should be dismissed) but rejected Brown’s post-release control argument on the merits and barred his non-constitutional claims by res judicata.
Issues
| Issue | State's Argument | Brown's Argument | Held |
|---|---|---|---|
| Whether trial court erred by increasing punishment / failing to merge allied offenses and by imposing consecutive sentences | Sentence was agreed to by Brown and counsel; agreed sentence not reviewable under R.C. 2953.08(D)(1). Non-constitutional merger/sequencing claims are barred by res judicata because Brown could have appealed. | Trial court improperly increased punishment and failed to determine allied offenses before imposing consecutive terms. | Barred by res judicata; overruled. Appellate court affirms trial court as to these non-constitutional claims. |
| Whether post-release control notice was statutorily deficient so the sentence is void | Although wording was inartful, the entry provided the mandatory post-release control notification; parole/post-release terms properly imposed and run concurrently by statute. | Trial court failed to provide statutorily compliant notice and imposed multiple consecutive post-release control terms. | Rejected on the merits. Statutes required one five-year term per sex-offense sentence but those terms run concurrently; total supervision is five years. Assignment II overruled. |
| Whether court failed to consider ability to pay costs or warn that nonpayment could lead to community service | These are non-constitutional claims that should have been raised on direct appeal and are thus barred by res judicata; trial court’s ruling on them is not a standalone final appealable order. | Trial court did not consider present/future ability to pay and failed to warn that community service could be ordered for nonpayment. | Barred by res judicata; overruled. |
| Whether Brown was denied effective assistance of counsel | Any ineffective-assistance claim based on the record is barred by res judicata and the claim here is also untimely as a post-conviction petition. | Counsel was ineffective during plea/sentencing. | Constitutional ineffective-assistance claim was part of an untimely post-conviction petition; court lacked jurisdiction to hear it and it fails on timeliness/res judicata grounds. |
Key Cases Cited
- State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (Ohio 1997) (a post-appeal motion seeking vacation or correction of sentence as a constitutional claim is a petition for post-conviction relief)
- State v. Gondor, 112 Ohio St.3d 377, 860 N.E.2d 77 (Ohio 2006) (standard of review and evidentiary considerations for post-conviction relief)
- Hartt v. Munobe, 67 Ohio St.3d 3, 615 N.E.2d 617 (Ohio 1993) (presumption of regularity where transcript is not provided)
- State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (Ohio 1996) (res judicata applies to post-conviction proceedings to bar issues that could have been raised on direct appeal)