State v. BrownState v. Brown
Dated: September 22, 2010
WHITMORE, Judge.
{¶1} Defendant-Appellant, Toby Dee Brown, appeals from his conviction and sentence in the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I
{¶2} In 1996, a grand jury indicted Brown on the following counts: (1) aggravated murder, in violation of
{¶3} In late September 1997, Brown filed a notice of appeal and a praecipe for the transcription of the trial. Brown’s praecipe specified that “[j]ury voir dire and opening and closing statements of counsel are not necessary.” Ultimately, Brown’s first appeal resulted in a partial reversal and a remand for resentencing on the basis that Brown was not the principal offender. State v. Brown (Oct. 7, 1998), 9th Dist. No. 18766. The trial court resentenced Brown and issued another judgment entry on February 3, 1999.
{¶4} In 2009, Brown sought resentencing due to an invalid post-release control notification. The trial court held a new sentencing hearing and issued a new sentencing entry on October 27, 2009. Brown’s new counsel filed a motion for the preparation and transcription of all the pretrial, trial, and post-trial proceedings. The trial court ordered the court reporter to transcribe the requested proceedings. On November 3, 2009, Brown filed his notice of appeal in this Court and a praecipe in the trial court for the preparation of an official transcript.
{¶5} On January 25, 2010, Brown filed a motion for a three-month extension to obtain an
{¶6} Brown raises five assignments of error for this Court’s consideration. For ease of analysis, we consolidate several of the assignments of error.
Assignment of Error Number One
“THE NINTH DISTRICT COURT OF APPEALS VIOLATED DEFENDANT’S RIGHTS TO DUE PROCESS AND COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT’S MOTION FOR LEAVE TO AMEND THE DOCKETING STATEMENT TO INCLUDE AN
APP.R. 9(C) STATEMENT, AND COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT’S MOTION FOR AN EXTENSION OF TIME TO FILE ANAPP.R. 9(C) STATEMENT[.]”
Assignment of Error Number Two
“THE NINTH DISTRICT COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT HELD THAT THE TIME REQUIREMENTS CONTAINED WITHIN
APP.R. 9(C) ARE MANDATORY[.]”
{¶7} In his first two assignments of error, Brown argues that this Court violated his due process rights and committed reversible error by not allowing him additional time to obtain an
{¶8} Initially, this Court must consider whether it has the authority to review, by way of direct appeal, an action taken by a single member of this Court during the pendency of an appeal.
“In addition to the authority expressly conferred by these rules or by law, and unless otherwise provided by rule or law, a single judge of a court of appeals may entertain and may grant or deny any request for relief, which under these rules may properly be sought by motion, except that a single judge may not dismiss or otherwise determine an appeal or other proceeding, and except that a court of appeals may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single judge may be reviewed by the court.”
{¶9} The purpose of an assignment of error is to focus the attention of an appellate court upon a potential error that occurred at the trial level. See Black’s Law Dictionary (8th Ed. 2004) 129 (defining an assignment of error as “[a] specification of the trial court’s alleged errors on which the appellant relies in seeking an appellate court’s reversal, vacation, or modification of an adverse judgment“). In determining an appeal, this Court only reviews and affirms, modifies, or reverses final judgments and/or orders from which a party has appealed.
{¶10} While other avenues of relief, such as
Assignment of Error Number Three
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FOUND DEFENDANT GUILTY OF TWO COUNTS OF AGGRAVATED ROBBERY, ON THE GROUNDS THAT THE INDICTMENT WAS FATALLY DEFECTIVE, BECAUSE THE INDICTMENT DID NOT INCLUDE THE MENTAL CULPABILITY ELEMENT FOR THOSE OFFENSES[.]”
{¶11} In his second assignment of error, Brown argues that the trial court committed either plain or structural error by convicting him of aggravated robbery when his indictment was defective and the State failed to prove the missing element of that offense at trial. Specifically, Brown argues that his indictment had to include the mens rea element of theft, the predicate offense for his aggravated robbery convictions. We disagree.
{¶12}
Assignment of Error Number Four
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED DEFENDANT’S RIGHTS TO DUE PROCESS IN FINDING DEFENDANT GUILTY OF AGGRAVATED BURGLARY UNDER RC §2911.11(A)(2), A FELONY OF THE FIRST DEGREE, BECAUSE THE JURY DID NOT FIND DEFENDANT GUILTY OF THIS OFFENSE[.]”
{¶13} In his fourth assignment of error, Brown argues that his aggravated burglary conviction is void as a matter of law because it is inconsistent with the jury’s verdict form. He argues that because the verdict form indicates he violated
{¶14} There is no dispute that the caption of the verdict form the jury signed on Brown’s aggravated burglary count included a citation to the wrong statute. That is, the verdict form indicated that Brown violated
{¶15} The body of the verdict form at issue reads as follows:
“We, the Jury, find the Defendant, TOBY DEE BROWN, Guilty of the offense of Aggravated Burglary, a charge in the indictment, on or about the 5th day of August, 1996.”
The indictment only charged Brown with aggravated burglary, and the court only instructed the jurors on aggravated burglary. It did not give an instruction on the offense of burglary. See
{¶16} While the caption of Brown’s verdict form included a citation to the wrong statute number, the jury had no reason to know that the citation referred to simple burglary rather than aggravated burglary. Moreover, Brown forfeited any argument with regard to the verdict form itself by failing to object to it at trial. State v. Williams, 9th Dist. No. 24169, 2009-Ohio-3162, at ¶60. The jury followed the instructions the trial court issued and convicted Brown of aggravated burglary based on the description, not the citation, of the crime set forth on the verdict form. The record simply does not support the conclusion that Brown suffered any prejudice as a result of the incorrect citation included in the caption of the jury’s verdict form. See State v. McDonald (Jan. 12, 1994), 9th Dist. No. 89CA004720, at *2 (“This Court cannot conclude that use of a verdict form that complied with [the statute at issue] in this case would have resulted in a different outcome.“). Nor are we convinced by Brown’s final argument that his conviction is void under State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256. ”Pelfrey [only] applies to
Assignment of Error Number Five
“DEFENDANT’S CONVICTION FOR FAILURE TO COMPLY WITH ORDER OF SIGNAL OF POLICE OFFICER, A FELONY OF THE FOURTH DEGREE, VIOLATED RC §2945.75(A)(2) AND STATE V. PELFREY, 112 OHIO ST.3D 422, 860 N.E.2D 735, 2007-OHIO-256, BECAUSE THE JURY VERDICT DID NOT INCLUDE THE DEGREE OF THE OFFENSE, NOR ANY AGGRAVATING ELEMENTS[.]”
{¶17} In his fifth assignment of error, Brown argues that his conviction for failing to comply with the order or signal of a police officer must be reduced from a fourth-degree felony offense to a first-degree misdemeanor offense. We agree.
{¶18}
“When the presence of one or more additional elements makes an offense one of more serious degree *** [a] guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.”
In Pelfrey, the Ohio Supreme Court interpreted
{¶19} The crime of failing to comply with the order or signal of a police officer is only a fourth-degree felony if an aggravating element is present. Former
III
{¶20} This Court cannot address Brown’s first two assignments of error. Brown’s third and fourth assignments of error are overruled. Brown’s fifth assignment of error is sustained and his fourth-degree felony conviction and sentence for his failure to comply with the order or signal of a police officer are vacated pursuant to that determination. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with the foregoing opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to both parties equally.
BETH WHITMORE
FOR THE COURT
MOORE, J. CONCURS
CARR, P. J. DISSENTS, SAYING:
{¶21} I respectfully dissent as I would not address Brown’s assignments of error.
{¶22} As the majority noted, on September 5, 1997, Brown was found guilty of all the counts in the indictment. The trial court followed the recommendation of the jury and sentenced Brown to life in prison. On October 7, 1998, this Court reversed Brown’s conviction, in part, and remanded for re-sentencing. The trial court re-sentenced Brown and issued a second sentencing entry on February 3, 1999. More than ten years later, Brown sought re-sentencing due to an invalid post-release control notification. After holding a new sentencing hearing, the trial court issued a new sentencing entry on October 27, 2009. Subsequently, on November 2, 2009, Brown again filed a notice of appeal to this Court.
{¶23} Although I understand the majority’s reasoning, I dissent on the basis that the life of a criminal case in which a defendant has been found guilty must be subject to some temporal limit. A consequence of holding that the failure to properly notify an offender of post-release control renders his sentence void is that the offender, upon being re-sentenced, is afforded a new opportunity to challenge his conviction on appeal. More than eleven years have now elapsed since the trial court issued its sentencing entry on February 3, 1999. Because of an invalid post-
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.