State v. BrownState v. Brown
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: June 23, 2023
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Owen W. Knapp, Assistant Prosecuting Attorney, for appellee.
Earnest Brown, pro se
MARY EILEEN KILBANE, J.:
{¶ 1} On February 22, 2023, the applicant, Earnest Brown, pursuant to
{¶ 2} In July 2020, the Lakewood Police Department began a narcotics investigation on Brown. They arranged several controlled buys before arresting him in his car and conducting a search of his home pursuant to a search warrant. (Tr. 28-29.) The grand jury in September 2020 indicted Brown on the following charges: (1) trafficking in a fentanyl-related compound with a juvenile specification, a first-degree felony; (2) drug possession of a fentanyl-related compound, a second-degree felony; (3) drug possession of 4-ANPP, a schedule II drug, a second-degree felony; (4) drug possession of cocaine, a fifth-degree felony; (5) possession of criminal tools, a fifth-degree felony; (6) child endangerment; and (7) child endangerment, both first-degree misdemeanors.1
{¶ 4} The state nolled the juvenile specification for Count 1, which reduced the crime to a second-degree felony. Brown pleaded guilty to Counts 1, 3, 5 and 6. The state nolled the other counts. Both the state and the defense proposed an agreed three-year sentence. During his statement, Brown reiterated his desire to have the independent analysis of the drugs. The trial judge sentenced Brown to three years on Count 1, which under the Reagan Tokes Law became a three year to a four and a half year sentence, 12 months on Count 3, 12 months on Count 5, and six months on Count 6; all counts to run concurrently. The judge also imposed a mandatory $7500 fine on Count 1.
{¶ 5} Brown’s appellate counsel argued that the trial court abused its discretion in failing to grant a continuance and that it erred by imposing an unconstitutional sentence pursuant to the Reagan Tokes Law. Counsel argued that for most of the previous 12 months, Brown had been in prison for violating postrelease control and could not have arranged for the independent testing. Given
{¶ 6} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel’s performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996).
{¶ 7} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an attorney’s work must be highly deferential. The court noted that it is all too tempting for a defendant to second-guess his lawyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. Therefore, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland at 689.
{¶ 8} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate’s prerogative to decide strategy and tactics by selecting what he thinks are the most
{¶ 9} Moreover, even if a petitioner establishes that an error by his lawyer was professionally unreasonable under all the circumstances of the case, the petitioner must further establish prejudice: but for the unreasonable error there is a reasonable probability that the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court need not determine whether counsel’s performance was deficient before examining prejudice suffered by the defendant as a result of alleged deficiencies.
{¶ 10} Appellate review is strictly limited to the record. The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E.97 (1898). Thus, “a reviewing court cannot add matter to the record that was not part of the trial court’s proceedings and then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. “Nor can the effectiveness of appellate counsel be judged by adding new matter to the record and then arguing that counsel should have raised these new issues revealed by the newly added material.” State v. Moore, 93 Ohio St.3d 649, 650, 758 N.E.2d 1130 (2001). “Clearly, declining to raise claims without record support cannot constitute ineffective assistance of appellate counsel.” State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, ¶ 10.
{¶ 11} Brown first argues that his appellate counsel should have framed the first assignment of error as a matter of the ineffective assistance of trial counsel. Trial counsel knew that Brown wanted an independent analysis, because Brown thought he was only dealing in cocaine. Moreover, Brown continues, trial counsel had a year to move for an independent analysis but did not. The failure to pursue a reasonable investigatory step that could lead to a viable defense constitutes ineffective assistance of counsel.
{¶ 12} Appellate counsel chose to address the issue of continuing the trial for drug testing directly through an abuse-of-discretion argument rather than through the lens of ineffective assistance of counsel. Such an approach avoided the additional analysis of examining whether trial counsel’s decisions came within the ambit of reasonable strategy and tactics. Following the admonition of the Supreme Court this court will not second-guess appellate counsel’s decision to attack an issue directly. State v. Reynolds, 8th Dist. Cuyahoga No. 106979, 2019-Ohio-4456; State v. Hilliard, 8th Dist. Cuyahoga No. 102214, 2016-Ohio-2828; and State v. Schwarzman, 8th Dist. Cuyahoga No. 100337, 2015-Ohio-516.
{¶ 13} Furthermore, Brown has not shown prejudice. Other than Brown’s assertions that he dealt only in cocaine, there is no evidence of what the drug analysis would have shown. The results of those tests are purely speculative, and not the sound foundation of an appellate argument. State v. Hartman, 93 Ohio St. 3d 274, 754 N.E.2d 1150 (2001). Brown’s assertions do not undermine this court’s confidence in the result.
{¶ 14} Brown’s second argument is that the trial court erred in imposing fines and costs on him, when the trial judge did not hold a hearing on his present and future ability to pay the costs.
{¶ 15} Brown pled guilty to a second-degree drug trafficking offense under
For a first, second, or third degree felony violation of any provision of Chapter 2925, * * *, the sentencing court shall impose upon the offender a mandatory fine of at least one-half of, but not more than, the maximum statutory fine amount authorized for the level of the offense pursuant to division (A)(3) of this section.2 If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.
Moreover, the burden is upon the offender to affirmatively demonstrate that he is indigent and is unable to pay the mandatory fine. This includes the future ability to
{¶ 16} By the day of the final pretrial, which also was the sentencing day, Brown had not submitted an indigency affidavit. He had retained counsel. Additionally, three times during the sentencing hearing, Brown represented that he had employment: “I just be trying to do the right thing. I’m working a job now.” Tr. 39. In discussing his children, he said, “I can send money, stuff like that * * *.” Tr. 40. “I got people giving me jobs. Like I’m doing everything I can to not sell drugs.” Tr. 45. Given this record, it is understandable that appellate counsel in the exercise of professional judgment declined to argue that the judge abused her discretion in imposing the minimum mandatory fine.
{¶ 17} Moreover, to the extent that Brown’s argument includes costs, there is no prejudice.
{¶ 18} Brown’s final argument is that Counts 1 and 3 should have merged as allied offenses of similar import. He argues that both offenses occurred on the same date, at the same time, with the same drug, and with the same animus. Thus, the crimes should have merged. This argument is ill founded because different drugs
{¶ 19} Accordingly, this court denies the application.
MARY EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, P.J., and EILEEN T. GALLAGHER, J., CONCUR