State v. BrooksState v. Brooks
Tim A. Dugan, for appellant; Edmund Brooks, pro se.
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DECISION AND JUDGMENT
PIETRYKOWSKI, J.
{¶ 1} Edmund Brooks, appellant, appeals an August 3, 2010 judgment of the Lucas County Court of Common Pleas, denying his April 7, 2010 motion challenging his
{¶ 2} The trial court sentenced appellant to serve eight consecutive sentences of life imprisonment, two concurrent sentences of five to twenty-five years, and five consecutive sentences of one year for the offenses. This court affirmed the trial court judgment of conviction and sentence on direct appeal in State v. Brooks (Sept. 20, 1996), 6th Dist. No. L-95-188.
{¶ 3} This is an Anders case. Counsel for appellant filed an appellate brief, but has also moved for leave to withdraw as counsel under Anders v. California (1967), 386 U.S. 738. Counsel advises the court that he is unable to find a meritorious ground for appeal. Counsel provided appellant with copies of both the appellate brief and the motion to withdraw. Afterwards, appellant filed his own pro se appellate brief.
{¶ 4} Appellant‘s counsel argues two potential assignments of error on appeal:
{¶ 5} “Possible Assignment of Errors
{¶ 6} “1.) The trial court erred by applying the time restraints of
{¶ 8} The trial court denied appellant‘s April 7, 2010 motion on two grounds—res judicata and the time limitations applicable to postconviction relief under
{¶ 9} Appellant has filed successive applications for postconviction relief. They include petitions or motions filed on September 20, 1996, February 8, 1999, June 7, 2007, and April 7, 2010. This appeal is from an August 3, 2010 trial court judgment denying appellant‘s April 7, 2010 motion for the trial court to set aside the convictions and order a new trial.
{¶ 10} In the April 7, 2010 motion, appellant claims his indictment was “fatally defective” and that the trial court lacked subject matter jurisdiction to convict due to defects in the indictment on 12 of 15 counts. In the motion appellant claims prosecutorial misconduct in preparing and proceeding upon such an indictment. Appellant also argues that he was provided ineffective assistance of counsel on two grounds: first that counsel failed to properly challenge the indictment and, second, that trial counsel failed to inform appellant of the availability of an alibi defense based upon the fact that he was a long distance truck driver.
{¶ 11} Some of these issues have been raised before. Appellant challenged his convictions based upon claimed deficiencies in the indictment and claimed lack of subject matter jurisdiction to convict on 12 of 15 counts of the indictment in applications
{¶ 12} Appellant is barred by res judicata from relitigating those claims through the April 7, 2010 motion. The doctrine of res judicata applies to postconviction proceedings. State v. Szefcyk (1996), 77 Ohio St.3d 93, 95; State v. Perry (1967), 10 Ohio St.2d 175, paragraph eight of the syllabus. A basic tenet of the doctrine is that “[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp., 73 Ohio St.3d 379, syllabus.
{¶ 13} Appellant also claims ineffective assistance of counsel based upon a claimed failure of trial counsel to challenge the validity of the indictment in the trial court and claimed prosecutorial misconduct arising from maintaining the prosecution under such an indictment. Such claims do not require consideration of materials outside of the record in the trial court. The necessary facts concerning the nature of the indictment were part of the record in trial court. Whether counsel was deficient in failing to properly challenge the indictment at trial is reviewable on appeal from the record of trial court proceedings.
{¶ 14} Longstanding Ohio law recognizes that res judicata bars a convicted defendant from postconviction relief based on grounds that could have been raised at trial or on direct appeal:
{¶ 15} “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” State v. Perry at paragraph nine of the syllabus.
{¶ 16} As appellant‘s claims of ineffective assistance of counsel based upon a claimed failure of trial counsel to challenge the validity of the indictment and claimed prosecutorial misconduct arising from maintaining the prosecution under such an indictment could have been raised on direct appeal, we conclude res judicata bars consideration of the claims in the April 7, 2010 motion for postconviction relief.
{¶ 17} We find appellant‘s Possible Assignment of Error No. 2 is not well-taken as to the issue of whether res judicata bars appellant‘s claims challenging his convictions based upon claimed deficiencies in the indictment, claimed lack of subject matter jurisdiction, claimed prosecutorial misconduct due to the nature of the indictment, and claimed ineffective assistance of counsel in failing to effectively challenge the indictment in trial court proceedings. The trial court did not err in holding these claims are barred by res judicata.
{¶ 18} This leaves one remaining claim—whether appellant was denied ineffective assistance of counsel due to the claimed failure of trial counsel to pursue an available alibi defense. Under Possible Assignment of Error No. 1 appellant argues that
{¶ 19} We view these issues as moot with respect to the claims that we determined are barred by res judicata. See
{¶ 20} The Ohio Supreme Court in the decision of State v. Reynolds (1997), 79 Ohio St.3d 158 identified the standard for determining whether a motion is to be treated as a motion for postconviction relief under
{¶ 21} The right to effective assistance of counsel is guaranteed by the
{¶ 22} In the April 7, 2010 motion, appellant asserts a new claimed deficiency of counsel, in failing to advise appellant of the availability of an alibi defense. Even if such a claim were not barred generally by res judicata due to piecemeal presentation of ineffective assistance of counsel claims, we agree with the trial court that it is barred because it fails to meet the statutory time limitation under
{¶ 23} Counsel argues that the case comes within exceptions under
{¶ 25} The exception under
{¶ 26} As no exception applies, we conclude
{¶ 27} In his pro se appellant‘s brief, appellant reargues the merits of his motion. He does not address the grounds upon which the trial court denied his motion: whether the motion is to be treated as a motion for postconviction relief, whether the motion is untimely under
{¶ 28} Under the procedure announced in Anders, we have undertaken a review of the entire record of proceedings in the trial court to determine whether this appeal is wholly frivolous. After independently reviewing the record, we find no grounds for a
{¶ 29} On consideration whereof, we find that appellant was not prejudiced or prevented from having a fair proceeding and the judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________ JUDGE
Mark L. Pietrykowski, J. _______________________________
Stephen A. Yarbrough, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.