State v. Brown

Sep 29, 2010
C-100050
Versions:2010-Ohio-4599

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Sentences Vacated and Cause Remanded

Date of Judgment Entry on Appeal: September 29, 2010

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Barron Brown, pro se.

Please note: This case has been removed from the accelerated calendar.

D E C I S I O N.

J. HOWARD SUNDERMANN, Judge.

{¶1} In January 2004, defendant-appellant Barron Brown was found guilty by a jury of one count of possession of heroin, a violation of R.C. 2925.11(A), one count of trafficking in heroin, a violation of R.C. 2925.03(A)(2), and one count of conspiracy, a violation of R.C. 2923.01(A)(2). The possession and trafficking counts carried major drug offender (MDO) specifications. In his direct appeal, this court reversed Brown’s conspiracy conviction, but we affirmed the possession and trafficking convictions.1 The Ohio Supreme Court declined further review.2 In August 2008, we affirmed the common pleas court’s judgment denying Brown’s postconviction petition.3

{¶2} In September 2008, Brown filed a successive postconviction petition, seeking to be resentenced on the basis that he had not been advised that he was subject to postrelease control.4 The trial court denied Brown’s petition. On appeal, we held that the trial court “had properly declined to entertain Brown’s postconviction petition on its merits” because “he had failed to satisfy either the time restrictions of R.C. 2953.21(A)(2) or the jurisdictional requirements of R.C. 2953.23.”5 But we vacated Brown’s sentences and remanded his case to the trial court for a new sentencing hearing, because Brown had not been properly notified of postrelease control.6

{¶3} Following our remand, Brown filed a sentencing memorandum with the trial court, a Crim.R. 33 motion for a new trial, and a Crim.R. 29 motion for an acquittal. At Brown’s resentencing hearing, the trial court overruled Brown’s motions and sentenced him to a total of 20 years in prison. The trial court imposed a ten-year prison term for the possession-of-heroin count and a mandatory ten-year prison term for the MDO specification to the possession count. The trial court then merged the trafficking count and its MDO specification with the conviction for possession and its MDO specification. The trial court also imposed a concurrent five-year prison term for the conspiracy count. This appeal followed, with Brown raising eight assignments of error for our review.

{¶4} In his first assignment of error, Brown argues that the trial court abused its discretion in summarily denying his Crim.R. 33 motion for a new trial without making any findings of facts or conclusions of law.

{¶5} Crim.R. 33(A) provides that “an application for new trial * * * shall be filed within fourteen days after the verdict was rendered,” except for claims based on newly discovered evidence, which shall be filed, pursuant to Crim.R. 33(B), “within 120 days after the day upon which the verdict was rendered.”

{¶6} In this case, Brown’s motion for a new trial did not involve any newly discovered evidence and was not filed until October 26, 2009, which was well outside the time requirements in Crim.R. 33(A). As a result, the trial court properly overruled the motion. Furthermore, the trial court was not required to issue findings of fact or conclusions of law when denying the motion.7 Consequently, we overrule Brown’s first assignment of error.

{¶7} In his second assignment of error, Brown argues the trial court erred in denying his Crim.R. 29 motion for an acquittal.

{¶8} Crim.R. 29(C) provides that “if a jury returns a verdict of guilty * * * a motion for judgment of acquittal may be made or renewed within fourteen days after the jury is discharged or within such further time as the court may fix during the fourteen day period.” In Brown’s case, the trial court discharged the jury on January 22, 2004. Brown filed his Crim.R. 29 motion on October 26, 2009. Because Brown’s motion for a judgment of acquittal was untimely, the trial court properly overruled it. As a result, we overrule his second assignment of error.

{¶9} In his third, fourth, and fifth assignments of error, Brown argues (1) that the assistant prosecuting attorney committed misconduct by suborning perjury, (2) that the trial court erred in instructing the jury on aiding and abetting, and (3) that the evidence was legally insufficient to support his convictions.

{¶10} We held in Brown’s direct appeal that all three of his convictions were supported by sufficient evidence. But we acknowledged that R.C. 2923.01(G) prohibited Brown from being separately convicted of conspiracy to commit a specific offense and the specific offense itself. Thus, the arguments raised by Brown in his fifth assignment of error, which challenges the sufficiency of the evidence supporting his convictions, are not well taken under the doctrine of the law of the case.8

{¶11} Moreover, the challenges set forth in Brown’s third, fourth, and fifth assignments of error are all related to the proceedings at the 2004 trial that resulted in the jury’s guilty verdicts. Although we remanded the case for resentencing, the remand did not implicate the jury’s guilty verdicts. Thus, the assignments of error present matters that could have fairly been determined in Brown’s direct appeal from his 2004 judgment of conviction or in his first postconviction petition. Therefore, they are barred under the doctrine of res judicata.9 Accordingly we overrule the third, fourth, and fifth assignments of error.

{¶12} In his seventh assignment of error, Brown argues that his sentences were void because the trial court failed to inform him about a mandatory term of postrelease control. We agree.

{¶13} The Ohio Supreme Court has consistently held that “sentences that fail to impose a mandatory term of post-release control are void.”10 The state concedes, and our review of the record confirms, that the trial court improperly told Brown that he “may be subject to five years post release control.” Because possession of heroin is a first-degree felony, R.C. 2967.28 requires five years of postrelease control. The trial court’s failure to properly advise Brown about postrelease control renders his sentences void and requires that they be vacated and that this case be remanded for another new sentencing hearing.11 As a result, we sustain the seventh assignment of error.

{¶14} Brown has raised two additional assignments of error relating to his sentences. In his sixth assignment of error, Brown argues that the trial court erred in imposing a mandatory ten-year prison term for the MDO specification and in making that ten-year term consecutive to the ten-year prison term for the possession count. In his eighth assignment of error, Brown argues that the trial court erred in imposing separate sentences for the possession and conspiracy counts because they involved allied offenses of similar import. We do not reach the merits of these assignments of error because they have been rendered moot by our disposition of his seventh assignment of error.12 We, therefore, vacate Brown’s sentences and remand this case for a new sentencing hearing in accordance with the law and this decision.

Sentences vacated and cause remanded.

CUNNINGHAM, P.J., and HILDEBRANDT, J., concur.

Please Note:

The court has recorded its own entry this date.

Notes

8
See Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329, at ¶15, citing Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (“The law of the case is a longstanding doctrine in Ohio jurisprudence. ‘[T]he doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.’ “).
12
App.R. 12(A)(1)(c).