State v. BrownState v. Brown
Rendered on the 10th day of July, 2009.
RICHARD M. HOWELL, Atty. Reg. No. 0002550, Prosecuting Attorney and R. KELLY ORMSBY, III, Atty. Reg. No. 0020615, First Assistant Prosecuting Attorney, Darke County Prosecutor’s Office, Courthouse, Third Floor, Greenville, Ohio 45331 Attorneys for Plaintiff-Appellee
JOSEPH A. BROWN, #467-404, P. O. Box 740, London, Ohio 45036 Defendant-Appellant
FROELICH, J.
{¶ 1} Defendant-appellant Joseph Brown appeals from a trial court judgment denying his “Motion to Vacate Voidable Sentence-Civil Rule 60(B),” which was, in effect, a petition for post-conviction relief. Brown presents several claims that the trial
I
{¶ 2} In 2003, Brown was charged in three separate indictments with one count each of assault on a police officer, illegal manufacturing of methamphetamine, and aggravated trafficking in methamphetamine. Reaching a plea agreement with the State, Brown pled guilty to the charges, and the State agreed not to pursue additional charges. The trial court sentenced Brown to a mandatory five-year prison term on the illegal manufacturing charge and one year on each of the other charges, to run concurrent with each other but consecutive to the five-year term, for a stated sentence of six years. Brown appealed, and for a lack of sufficient findings to justify consecutive sentences, we remanded the case for re-sentencing. State v. Brown, 160 Ohio App.3d 631, 2005-Ohio-1929. Brown was again sentenced to six years, and he appealed from that sentence. In accordance with Foster,
{¶ 3} On August 22, 2008 Brown filed a “Motion to Vacate Voidable Sentence-Civil Rule 60(B)” under case numbers 03-CR-12895 (illegal manufacturing of methamphetamine) and 04-CR-13015 (aggravated trafficking in methamphetamine). The trial court denied the motion, and Brown appeals.
II
{¶ 4} Brown’s first assignment of error:
{¶ 5} “THE TRIAL JUDGE ABUSED HIS DISCRETION BY NEGLECTING TO APPROPRIATELY CONSIDER THE FILED PETITION IN REFERENCE TO APPELLANT’S CLAIMS OF ERROR REGARDING AN UNCONSTITUTIONALLY ENHANCED SENTENCE AND DENIAL OF SEVERAL CONSTITUTIONAL RIGHTS.”
{¶ 6} Brown’s second assignment of error:
{¶ 7} “THE TRIAL JUDGE ABUSED HIS DISCRETION BY NEGLECTING TO CONSIDER AND GIVE DUE DEFERENCE TO THE CLAIM MADE IN REFERENCE TO APPELLANT NOT BEING GIVEN THE MINIMUM SENTENCE DESPITE BEING A FIRST TIME PRISON OFFENDER.”
{¶ 8} Brown’s third assignment of error:
{¶ 9} “THE TRIAL COURT ABUSED HIS DISCRETION BY NEGLECTING TO APPROPRIATELY CONSIDER AND GIVE DUE DEFERENCE TO THE FILED PETITION IN REFERENCE TO APPELLANT’S CLAIM OF ERROR INVOLVING
{¶ 10} In his first and second assignments of error, Brown argues that the trial court was obligated to order him to serve a minimum, concurrent sentence and that the court erred when it ordered a lengthier one. In his third assignment of error, Brown contends that his trial counsel was ineffective in that he failed to object to the trial court’s imposition of more than a minimum, concurrent sentence. The first two assignments of error were addressed in Brown’s third appeal, and the third assignment of error could have been raised at that time. Therefore, the three claims are barred by the doctrine of res judicata.
{¶ 11} In State v. Wilson, Montgomery App. No. 21741, 2007-Ohio-4610, we held that when a defendant’s sentence is affirmed by an appellate court, the doctrine of res judicata precludes the defendant from challenging his sentence in a petition for post-conviction relief. “Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or 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 (1967), 10 Ohio St.2d 175, 180.
{¶ 12} We need not reach the merits of Brown’s first three assignments of error because the arguments presented therein are barred by the doctrine of res judicata. Brown’s first three assignments of error will be overruled.
{¶ 13} Brown’s fourth assignment of error:
{¶ 14} “THE TRIAL JUDGE ABUSED HIS DISCRETION BY FAILING TO FILE ADEQUATE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO EACH INDIVIDUAL AND PARTICULAR CLAIM OF ERROR WITHIN THE FILED PETITION.”
{¶ 15} In his fourth assignment of error, Brown claims that the trial court erred in denying his “Motion to Vacate Voidable Sentence-Civil Rule 60(B).” In the first paragraph of that motion, Brown informed the court in bold print that his motion should “not be misconstrued as a petition for Post-Conviction Relief.” Brown now relies on post-conviction cases in arguing that the court made insufficient findings of fact and conclusions of law. For the following reasons, we will overrule Brown’s fourth assignment of error.
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{¶ 18} Pursuant to
{¶ 19} Brown maintains that Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531 and State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, establish a new right that applies retroactively to his situation. Specifically, Brown insists that he was entitled to minimum, concurrent sentences. However, Blakely was decided two years prior to Brown’s most recent sentencing, and Foster was decided by the Ohio Supreme Court rather than by the United States Supreme Court as required by
{¶ 20} Brown’s fourth assignment of error will be overruled.
IV
{¶ 21} Brown’s fifth assignment of error:
{¶ 22} “THE TRIAL COURT ABUSED ITS DISCRETION IN REFERENCE TO NEGLECTING TO RECOGNIZE RECENT SUPREME COURT RULINGS THAT HOLD PRECEDENT, THEREFORE CREATING A CERTIFIED CONFLICT UNDER ARTICLE IV, SECTION 3(B)(4) OF THE OHIO CONSTITUTION.”
{¶ 23} In his fifth assignment of error, Brown again challenges his sentence, insisting that the trial court failed to follow the holdings of the Ohio Supreme Court when it sentenced him to more than a minimum, concurrent sentence, resulting in a conflict between the Supreme Court and the trial court’s interpretation of Foster, supra (and, apparently, this court’s, since we affirmed his most recent appeal). Brown asks this court to certify the perceived conflict to the Ohio Supreme Court pursuant to
{¶ 24} Brown’s fifth assignment of error will be overruled.
V
{¶ 25} All five of Brown’s assignments of error having been overruled, the judgment of the trial court is Affirmed.
BROGAN, J. and HARSHA, J., concur.
(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Richard M. Howell
R. Kelly Ormsby, III
Joseph A. Brown
Hon. Jonathan P. Hein