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State v. Brown

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 11, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JEFFREY L. BROWN DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-580403-A

          FOR APPELLANT Jeffrey L. Brown, pro se.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Brett Hammond Assistant County Prosecutor.

          BEFORE: Boyle, P.J., Laster Mays, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, P.J.

         {¶1} Defendant-appellant, Jeffrey L. Brown, appeals from a judgment denying his motion to withdraw his plea and his motion for resentencing. He raises five assignments of error for our review:

1. The trial court erred when it denied Brown's motion for resentencing pursuant to State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, thereby depriving Brown of equal protection and due process of law under the Fourteenth Amendment to the United States Constitution.
2. Brown was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution when trial counsel failed to inform Brown of the mandatory fine prior to Brown pleading guilty.
3. Brown's pleas of guilty were not knowingly intelligent, and voluntary because they were induced by appellee's promise and the trial court's acceptance, of an act prohibited by statute, thereby depriving Brown of due process of law under the Fourteenth Amendment to the United States Constitution.
4. The court erred when it permitted Brown to accept a plea agreement that was the product of a mutual mistake of the facts and law.
5. The trial court erred when it permitted [Brown] to enter and agree to a void contract.

         {¶2} Finding merit to his first assignment of error, we affirm in part and reverse in part, and remand for resentencing.

         I. Procedural History and Factual Background

         {¶3} In April 2014, Brown pleaded guilty to one count of drug trafficking in violation of R.C. 2925.03(A)(2), a second-degree felony. At the same plea hearing, Brown also pleaded guilty to drug trafficking in another case. The following relevant procedural history is taken from Brown's direct appeal in State v. Brown, 8th Dist. Cuyahoga No. 101427, 2014-Ohio-5795.

On April 28, 2014, immediately prior to the plea hearing, defense counsel requested a two-week continuance, stating that Brown needed more time "because of the circumstances." The trial court denied the request. The state indicated that it was seeking concurrent time on the cases, and the trial court stated that it was considering "between four and five years collective on the cases."
The trial court advised Brown of the rights a plea would waive, as well as the possible sentence and period of postrelease control; it did not advise him that [drug trafficking] under Case No. CR-580403 [the underlying case in this appeal] carried a mandatory $7, 500 fine. After being satisfied that Brown was knowingly, intelligently, and voluntarily waiving his rights, the court entered the plea and the remaining counts of the indictments were dismissed.
The trial court indicated that it would immediately proceed to sentencing. Defense counsel again requested a continuance so that Brown "could get his affairs in order." The trial court denied the request, stating that Brown had had plenty of time to do so.
The assistant prosecuting attorney asked the court if it had reminded Brown of his driver's license suspension. The court previously had not and then informed Brown that his license would be suspended for six months. The court sentenced Brown to five years on the second-degree felony and six months on the third-degree felony, to be served concurrently.
The following day, April 29, 2014, another hearing was held because it was brought to the trial court's attention that it had failed to impose the mandatory $7, 500 fine. Defense counsel stated that in "view of that deficiency, [Brown] should be allowed to withdraw his plea and continue this for a little bit * * *." The trial court stated that it was not going to continue the case because "[t]here's nothing he didn't understand, " but defense counsel insisted "[w]ell, that's part of the sentence that was not explained."
The court then asked whether Brown wanted to withdraw his plea; defense counsel responded, "[y]eah, I think he should." The court stated that if Brown withdrew his plea, it would not entertain another plea. Defense counsel was confused as to why not. The trial court again stated that it was its belief that Brown "understood the implication" of the plea, but nonetheless told counsel ...

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