State v. BriscoState v. Brisco
Rendered on September 24, 2020
On brief: Ron O‘Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.
On brief: Bryon L. Brisco, Sr., pro se.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Bryon L. Brisco, Sr., pro se, appeals the judgment of the Franklin County Court of Common Pleas denying his postconviction motion to vacate his convictions and sentence. For the following reasons, we affirm.
{¶ 2} The facts of this case are summarized in this court‘s decision resolving appellant‘s direct appeal. State v. Brisco, 10th Dist. No. 16AP-759, 2017-Ohio-8089. Pertinent to this appeal, appellant was charged with multiple offenses arising from the shooting death of his wife. He was convicted, pursuant to jury verdict, of one count of reckless homicide as a stipulated lesser included offense of purposeful murder with firearm specification (Count 1), one count of felony murder with firearm specification (Count 2), one count of involuntary manslaughter with firearm specification (Count 3), one count of
The Court hereby imposes the following sentence: FIFTEEN YEARS TO LIFE WITH AN ADDITIONAL CONSECUTIVE THREE (3) YEARS AS TO THE FIREARM SPECIFICATION ON TO [sic] COUNT TWO, TWENTY-FOUR (24) MONTHS AS TO COUNT FOUR AND TWENTY-FOUR (24) MONTHS AS TO COUNT FIVE, to be served at the OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS. Counts Two, Four, and Five shall be served concurrent to each other. For purposes of sentencing, Counts One, Two and Three were all subject to merger, and the State of Ohio represented that it wished to have the Defendant sentenced as to Count Two. Therefore, Counts One and Three merge into Count Two. The sentence in Count Two shall be served consecutive to the three year Firearm Specification on Count Two.
(Oct. 28, 2016 Jgmt. Entry at 2.)
{¶ 3} In his direct appeal, appellant argued that his convictions for felony murder, involuntary manslaughter, and tampering with evidence were against the manifest weight of the evidence and not supported by sufficient evidence. Finding no merit to appellant‘s contentions, we affirmed. Brisco. The Supreme Court of Ohio declined further appeal.
{¶ 4} Thereafter, appellant filed with this court an
{¶ 5} On June 24, 2019, appellant filed in the trial court a “Motion To File
{¶ 6} Appellant appeals that judgment, assigning three errors for our review:
[I]. The trial court abused its discretion when instead of an independent analysis of the issues raised in my
Crim.R. 52(B) motion thus violating my due process and equal protection rights protected under the 5th and 14th amendments to the United States Constitution and Section 10 of the Ohio Constitution [sic].[II]. A full allied offense hearing is mandatory and if not conducted the court commits plain error, violating due process and equal protection of the 5th, 6th, and 14th amendments to the United States Constitution and Section 10 of the Ohio Constitution.
[III]. Double jeopardy violations are plain error and contrary to law.
{¶ 7} Before considering the merits of appellant‘s assignments of error, we must first address this court‘s jurisdiction to consider this appeal.
{¶ 8} Pursuant to
{¶ 9} As previously mentioned, the trial court, construing appellant‘s June 24, 2019 motion to vacate his convictions and sentence as a petition for postconviction relief under
{¶ 10} On December 18, 2019, appellant filed a notice of appeal from the trial court‘s August 28, 2019 judgment. In the notice of appeal, appellant asserted that the clerk of court never served him with notice of the August 28, 2019 judgment as required by
{¶ 11} “Although arising from a criminal conviction, a proceeding for postconviction relief under
RULE 4. Appeal as of Right--When Taken
(A) Time for appeal
(1) Appeal from order that is final upon its entry. Subject to the provisions of
App.R. 4(A)(3) , a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required byApp.R. 3 within 30 days of that entry.* * *
(3) Delay of clerk‘s service in civil case. In a civil case, if the clerk has not completed service of the order within the three-day period prescribed in
Civ.R. 58(B) , the 30-day periods referenced inApp.R. 4(A)(1) * * * begin[s] to run on the date when the clerk actually completes service.
{¶ 12}
Notice of filing. 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 thenotice 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) .
{¶ 13}
{¶ 14} Consistent with appellant‘s claim in his notice of appeal and acknowledged by the state in its brief, the trial court did not direct the clerk to serve, nor did the clerk serve, notice of the August 28, 2019 judgment upon appellant as required by
{¶ 15} Having determined this court‘s jurisdiction, we now turn to the merits of the appeal. Because appellant‘s assignments of error all concern whether the trial court properly denied his motion to vacate, we will address them together.
{¶ 16} At the outset, we note appellant‘s claim that the trial court violated his due process rights by failing to conduct an independent analysis of the issues presented in his motion. Appellant argues that instead of conducting “a thoughtful and independent legal
{¶ 17} Admittedly, the trial court‘s decision adopts, nearly verbatim, the format and analysis set forth in the state‘s memorandum contra. However, appellant fails to direct us to any authority condemning or even criticizing a trial court for taking a similar approach. Moreover, simply because the trial court adopted the state‘s position in its entirety does not mean that the trial court failed to exercise its independent judgment. Appellant having failed to affirmatively demonstrate that the trial court did not conduct an independent review of his motion to vacate, we must presume regularity of the trial court proceedings and conclude that the trial court conducted an independent analysis of the pertinent issues and applicable law prior to entering judgment. See Powell v. Lawson, 10th Dist. No. 18AP-289, 2019-Ohio-4993, ¶ 27. Finally, appellant does not allege or explain how he was prejudiced by the trial court‘s action, other than to argue that it improperly denied his motion. Accordingly, we conclude that the trial court did not violate appellant‘s due process rights in the manner by which it resolved appellant‘s motion.
{¶ 18}
{¶ 19} In addition to these substantive limitations, postconviction relief petitions are subject to statutory timeliness requirements, subject to specific, limited exceptions. Id. at ¶ 10. Pursuant to
{¶ 20} Unless a petitioner establishes an exception to the timeliness requirement, a trial court lacks jurisdiction to consider the merits of an untimely postconviction relief petition. Bell at ¶ 12, citing State v. Mason, 10th Dist. No. 12AP-120, 2012-Ohio-4510, ¶ 8. Whether a trial court has jurisdiction to consider an untimely postconviction relief petition is a question of law to which appellate courts apply a de novo standard of review. Id., citing State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 24, citing State v. Kane, 10th Dist. No. 16AP-781, 2017-Ohio-7838, ¶ 9.
{¶ 21} Here, it is undisputed that appellant‘s motion was filed well beyond the 365-day deadline set forth in
{¶ 22} The trial court further concluded that even if appellant‘s filing had been timely, his allied offense claims could have been raised on direct appeal and, therefore, were barred by res judicata. We review this determination for an abuse of discretion. Connally, 2019-Ohio-4441, at ¶ 9, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58. Res judicata applies in all postconviction relief proceedings. Id. at ¶ 10, quoting State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). Further, “[t]his court has held that purported merger errors under
{¶ 23} For the foregoing reasons, appellant‘s first, second, and third assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
BRUNNER and NELSON, JJ., concur.