STATE OF OHIO v. RAYMOND S. BROWN
Case No. 16CA3770
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
RELEASED: 05/26/17
[Cite as State v. Brown, 2017-Ohio-4063.]
Hoover, J.
DECISION AND JUDGMENT ENTRY
Raymond S. Brown, Chillicothe, Ohio, pro se appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Hoover, J.
{1} Defendant-Appellant, Raymond S. Brown (“Brown“), appeals the judgment of the Scioto County Court of Common Pleas that denied his “Motion to Correct Sentence.”
{2} On appeal, Brown sets forth four assignments of error. In Brown‘s first assignment of error, he argues that the trial court erred by increasing his punishment and failing to consider whether his convictions were allied offenses of similar import prior to sentencing him in 2007. In his second assignment of error, Brown claims that the trial court erred by failing to provide him with a statutorily compliant notice of post-release control. In the third assignment of error, Brown contends that the trial court erred by failing to consider his present and future ability to pay court costs and by failing to notify him that community service may result if he fails to pay court costs. Lastly, in Brown‘s fourth assignment of error, he claims that he was denied effective assistance of counsel.
{4} With respect to Brown‘s second assignment of error regarding post-release control, the State remarks that although the trial court‘s entry may have been inartfully drafted, the entry did in fact provide the mandatory notification regarding post release control.
{5} As for Brown‘s third assignment of error regarding court costs and community control, the State contends that these arguments are not proper for a post conviction relief petition and that the entry overruling these arguments does not constitute a final appealable order. The State also claims that these arguments are barred by res judicata.
{6} Finally, the State argues in response to Brown‘s fourth assignment of error of ineffective assistance of counsel that Brown cannot demonstrate a claim of ineffective assistance of counsel. The State further claims that any claim of ineffective assistance is barred by res judicata.
{7} We disagree with all of Brown‘s arguments. We characterize the claims set forth in Brown‘s “Motion to Correct Sentence” which are constitutional claims as a post conviction relief petition that was untimely filed; as a result, the trial court did not have jurisdiction to rule on the merits of the motion with respect to the constitutional claims. Rather, the trial court should have dismissed these constitutional claims.
{9} We, therefore, affirm the judgment of the trial court as to the non-constitutional claims; but we modify the judgment with respect to the constitutional claims to reflect that they shall be dismissed for lack of jurisdiction. We thus, affirm the judgment of the trial court as modified.
I. Facts and Procedural History
{10} In June 2006, a Scioto County Grand Jury indicted Brown on three counts of rape in violation of
{11} The indictment arose from Brown‘s sexual assaults of three different victims, P.B., T.B., and R.S. The girls attended the church where Brown was a youth minister. Brown admitted to having the girls spend the night at his house and having sex over three times with both P.B. and T.B. T. B. was less than thirteen years of age at the time of the offenses. Brown also admitted to rubbing R.S.‘s vaginal area and breast. The events regarding T.B. and P.B. allegedly occurred between January 1, 2006 and March 31, 2006. The event regarding R.S. allegedly occurred between March 1999 and March 2002.
{12} In August 2006, Brown filed a motion to determine his competence to stand trial
{13} In February 2007, Brown pleaded guilty to counts three, four, and five, which were three counts of gross sexual imposition.1 Counts one, two, six, and seven were dismissed. Brown and his trial attorney both signed a “Maximum Penalty” document and a “Waiver” of Brown‘s constitutional rights. In March 2007, the trial court sentenced Brown to five-year prison terms on each count to be served consecutively to one another for an aggregate prison term of fifteen years. It further notified Brown that “post release control [was] mandatory in this case and [he] [would] serve a term of post release control of 5 years on each count.”2 (Docket No. 33).
{14} Brown did not file a direct appeal.
{15} More than nine years later, in August 2016, Brown filed a “Motion to Correct Sentence” claiming multiple constitutional, non-constitutional, and statutory violations relating to his convictions and sentences. The State filed a motion opposing Brown‘s “Motion to Correct Sentence.” In September 2016, the trial court denied Brown‘s motion.
{16} On September 15, 2016, Brown filed a timely notice of appeal.
II. Assignments of Error
{17} On appeal, Brown assigns the following errors for our review:
Assignment of Error I:
The lower court committed prejudicial error in allowing increased punishment and multiple convictions.
Assignment of Error II:
The lower court committed prejudicial error in failing to provide statutory compliant notice of post-release control.
Assignment of Error III:
The lower court committed prejudicial error in ignoring legislative mandates concerning financial sanctions.
Assignment of Error IV:
Appellant was deprived effective assistance of counsel.
A. Brown‘s “Motion to Correct Sentence” is a Post Conviction Relief Petition
{18} In order to review the trial court‘s dismissal of Brown‘s “Motion to Correct Sentence,” we must first determine how to characterize the motion. ” ‘Courts may recast irregular motions into whatever category necessary to identify and establish the criteria by which the motion should be judged.’ ” State v. Burkes, 4th Dist. Scioto No. 13CA3582, 2014–Ohio–3311, ¶ 11, quoting State v. Schlee, 117 Ohio St.3d 153, 2008–Ohio–545, 882 N.E.2d 431, ¶ 12.
{19} The Supreme Court of Ohio has held that “[w]here a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for post-conviction relief as defined in
{20} “[P]ost-conviction relief petitions are used to assert claims that there was a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio or United States Constitutions.” State v. Kelly, 4th Dist. Scioto No. 14CA3637, 2014-Ohio-5840, ¶ 4. “It is a means to resolve constitutional claims that cannot be addressed on direct appeal because the evidence supporting the claims is not contained in the record.” Id., at ¶ 5, citing State v. Shaffer, 4th Dist. Lawrence No. 14CA15, 2014–Ohio–4976, ¶ 9; State v. Knauff, 4th Dist. Adams No. 13CA976, 2014–Ohio–308, ¶ 18.
{21} Here, the constitutional claims set forth in Brown‘s “Motion to Correct Sentence” meet the definition of a petition for post conviction relief pursuant to
B. Standard of Review for Post Conviction Relief Petition
{22} A trial court‘s decision granting or denying a post conviction petition filed pursuant to
{23} First of all, limitations exist with the filing of a post conviction relief petition. A petition for post conviction relief is subject to strict filing requirements. Former
{24} If a defendant fails to file his petition within the prescribed period, the trial court may entertain the petition only if: (1) the petitioner shows either that he was unavoidably prevented from discovery of the facts upon which he must rely to present the claim for relief or that the United States Supreme Court recognized a new federal or state right that applies retroactively to him; and (2) the petitioner shows by clear and convincing evidence that no reasonable factfinder would have found him guilty but for constitutional error at trial.
{26} Specifically, Brown‘s ineffective assistance of counsel claim fails due to the untimeliness of it. Even if not untimely, the ineffective assistance of counsel claim would be barred under the doctrine of res judicata to the extent that Brown‘s claim is based on matters within the record. The proper time to raise this type of ineffective assistance of counsel argument would have been by direct appeal of the original conviction and sentence. State v. Allbaugh, 4th Dist. Athens No. 12CA23, 2013-Ohio-2031; see also State v. Cole, 2 Ohio St.3d 112, 113–114, 443 N.E.2d 169 (1982); Evans, 1990 WL 66937 at *2; State v. Ledger, 17 Ohio App.3d 94, 477 N.E.2d 643 (8th Dist. 1984), paragraph one of the syllabus.
D. Brown‘s Post-Release Notification does not Render Sentence Void
{27} Brown also claims the post-release control portion of his sentence is void. Specifically, he claims the trial court erred in imposing three, five-year periods of post-release control. To resolve this issue, “we must interpret and apply the statutes related to postrelease
{28} ” ‘[I]f a sentence is void for failure to include proper postrelease-control notification, the trial court—or the reviewing court—has an obligation to recognize the void sentence, vacate it, and order resentencing.’ ” State v. Dawson, 2d Dist. Greene No. 2012-CA-54, 2013-Ohio-1817, ¶ 8, citing State v. Harrison, 2d Dist. Montgomery No. 24471, 2011-Ohio-6803, ¶ 20. ” ‘Presumably, a trial court, confronted with an untimely or successive petition for postconviction relief that challenges a void sentence, must ignore the procedural irregularities of the petition and, instead, vacate the void sentence and resentence the defendant.’ ” State v. Hudson, 2d Dist. Clark No. 2014 CA 53, 2014-Ohio-5368, ¶ 19, quoting State v. Holcomb, 184 Ohio App.3d 577, 2009–Ohio–3187, 921 N.E.2d 1077, ¶ 19 (9th Dist.); see also State v. Hartley, 10th Dist. Franklin No. 15AP-192, 2016-Ohio-2854, ¶ 28; State v. Bandy, 8th Dist. Cuyahoga Nos. 101785, 101786, 2015-Ohio-1033, ¶ 11.
{29} Therefore, even though Brown‘s post conviction relief petition was untimely, we will review Brown‘s Assignment of Error II claiming that his sentence is void for failure to notify him properly of his post-release control conditions.
{30}
{32} Brown mistakenly believes he was unlawfully sentenced to a 15-year period of post-release control. But under
{33} After a de novo review, we find that the trial court correctly denied Brown‘s “Motion to Correct Sentence” based on the claim of a statutorily non-compliant notification of post-release control. We overrule Brown‘s Assignment of Error II.
E. Res Judicata Bars all other Non-Constitutional Claims3
{34} “Generally, a petitioner cannot raise, for purposes of postconviction relief, an error that could have been raised on direct appeal. In other words, if a petitioner fails to bring an appeal as of right, he cannot raise in a petition for postconviction relief those issues that should have been raised in a direct appeal.” (Citations omitted.) State v. Hobbs, 4th Dist. Meigs No. 09CA1, 2009-Ohio-7065, ¶ 5.
Res judicata is applicable in all postconviction relief proceedings. * * * “[P]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.” [Citation omitted.] We have stressed that “[the] doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, “of public policy and of private peace,” which should be cordially regarded and enforced by the courts. * * *’ [Citation omitted.]”
State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996), citing Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981).
{35} In this case, Brown failed to file a direct appeal. Brown‘s “Motion to Correct Sentence” raises non-constitutional claims that he could have raised in a timely direct appeal. For example, in Brown‘s Assignment of Error I, he argues that the trial court failed to resolve the issue of merger. This issue could have been raised in a direct appeal and is now barred by res judicata. State v. Knowles, 10th Dist. Franklin No. 15AP–991, 2016–Ohio–2859, ¶ 14 (res judicata barred claims in post conviction motion challenging failure to merge allied offenses and imposition of consecutive sentences).
{36} With respect to Assignment of Error III, Brown alleges that the lower court erred by not complying with legislative mandates concerning financial sanctions. Brown claims that the trial court did not notify him that his failure to pay court costs could result in the imposition of community service. Brown also contends that no evidence exists in the record that the trial court considered Brown‘s present and future ability to pay before the financial sanctions were
{37} All of Brown‘s assignments of error are overruled.
IV. Conclusion
{38} We overrule Brown‘s four assignments of error. With respect to Brown‘s constitutional claims, these claims were set forth in an untimely post conviction relief petition and are time-barred. The trial court lacked jurisdiction to consider these claims. Therefore, under the authority of App.R. 12(A)(1)(a), we shall modify the judgment appealed to reflect the dismissal of Brown‘s constitutional claims. The judgment appealed shall remain intact with respect to Brown‘s remaining meritless claims.
{39} Thus, we affirm the judgment with the modification. See State v. Brewer, 2d Dist. Montgomery No. 24910, 2012-Ohio-5406, ¶ 10; State v. Griffin, 1st Dist. Hamilton Nos. C-150258 and 150005, 2016-Ohio-782, ¶ 13.
JUDGMENT AFFIRMED AS MODIFIED.
It is ordered that the JUDGMENT IS AFFIRMED AS MODIFIED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY: ______________________________
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.