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State of Ohio v. Toby Dee Brown

November 28, 2012

STATE OF OHIO APPELLEE
v.
TOBY DEE BROWN APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 96 08 2041(A)

The opinion of the court was delivered by: Carr, Judge.

Cite as State v. Brown,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Appellant, Toby Brown, appeals the judgment of the Summit County Court of Common Pleas. This Court affirms.

I.

{¶2} This case stems from the murder of Julius Ricky Norman on August 5, 1996. The substantive facts of the incident are set out in our decision resolving Brown's direct appeal. State v. Brown, 9th Dist. No. 18766, 1998 WL 696770 (Oct. 7, 1998).

{¶3} After a trial in 1997, a jury found Brown guilty of aggravated murder with attendant firearm and death specifications; two counts of aggravated robbery with firearm specifications; one count of aggravated burglary with a firearm specification; one count of tampering with evidence; and failure to comply with the order or signal of a police officer. The jury recommended a sentence of life in prison with parole eligibility after thirty years. The trial court followed the jury's recommendation and sentenced Brown to a life-term.

{¶4} Brown filed a timely notice of appeal and raised three assignments of error. This Court reversed the jury's finding that Brown was the principal offender. Brown, 1998 WL 696770. On remand, the trial court resentenced Brown and issued a new sentencing entry on February 3, 1999.

{¶5} More than ten years later, in July 2009, Brown moved for a resentencing hearing on the basis that he had not been properly notified of post-release control. The trial court conducted a new sentencing hearing and issued a new sentencing entry on October 27, 2009. Brown filed an appeal to this Court and raised five assignments of error. We concluded that we did not have authority to review Brown's first two assignments of error because he asked this Court to review our own orders relating to the application of App.R. 9. State v. Brown, 9th Dist. No. 25077, 2010-Ohio-4453, ¶ 10. While this Court overruled Brown's third and fourth assignments of error, we sustained his fifth assignment of error on the basis that he could not have been convicted of failing to comply with the order or signal of a police officer as a felony of the fourth degree because the verdict form did not include either the degree of the offense or the aggravating element. Id. at ¶ 19, but see id. at ¶ 23 (Carr, J., dissenting) (noting that Brown had an opportunity to raise challenges to his underling convictions in his direct appeal). Thus, this Court held that Brown's fourth-degree felony conviction must be vacated and, upon remand, Brown could only be convicted of a first-degree misdemeanor with respect to that offense. Id. at ¶ 19.

{¶6} Brown was subsequently resentenced and the trial court issued a new sentencing entry on August 15, 2011. On March 9, 2012, Brown filed a pro se motion to correct illegal sentence. The State responded in opposition on March 20, 2012. The trial court issued a journal entry denying the order on April 6, 2012.

{¶7} Brown filed a timely notice of appeal and raises one assignment of error. II.

ASSIGNMENT OF ERROR

THE DEFENDANT WAS DENIED HIS UNITED STATES CONSTITUTION RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS WHEN THE STATE FAILED TO PRODUCE SUFFICIENT EVIDENCE TO SUPPORT THE DEFENDANT'S SENTENCE ...


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