Court of Appeals of Ohio, Fourth District, Scioto
Raymond S. Brown, Chillicothe, Ohio, pro se appellant.
E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis,
Scioto County Assistant Prosecuting Attorney, Portsmouth,
Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
Defendant-Appellant, Raymond S. Brown ("Brown"),
appeals the judgment of the Scioto County Court of Common
Pleas that denied his "Motion to Correct Sentence."
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.
In contrast, Plaintiff-Appellee, the state of Ohio
("State") responds to Brown's first assignment
of error by first arguing that the sentences that were
imposed upon Brown were agreed upon by both Brown and his
trial counsel. As a result, the agreed sentence is not
reviewable on appeal pursuant to R.C. 2953.08(D)(1). Next,
the State contends that Brown's "Motion to Correct
Sentence" is actually an untimely petition for post
conviction relief that should have been dismissed by the
trial court. The State also argues that res judicata bars
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.
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.
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.
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.
Brown also included in his "Motion to Correct
Sentence" non-constitutional claims. Brown had not filed
a direct appeal; and using the vehicle of a "Motion to
Correct Sentence, " he attempts to circumvent appellate
procedure by bootstrapping the non-constitutional claims to
the constitutional claims. We find that the
non-constitutional claims fail because Brown could have
argued them in a direct appeal; but he did not do so. The
non-constitutional claims are barred by res judicata.
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.
Facts and Procedural History
In June 2006, a Scioto County Grand Jury indicted Brown on
three counts of rape in violation of R.C. 2907.02(A)(1)(b)
and (A)(2), felonies of the first degree; three counts of
rape in violation of R.C. 2907.02(A)(2), felonies of the
first degree; and one count of gross sexual imposition in
violation of R.C. 2907.05(A)(1), a felony of the fourth
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
In August 2006, Brown filed a motion to determine his
competence to stand trial and to evaluate his sanity at the
time of the act. After the parties stipulated to the
psychological report, the trial court found Brown competent
to stand trial.
In February 2007, Brown pleaded guilty to counts three, four,
and five, which were three counts of gross sexual
imposition. 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." (Docket No. 33).
Brown did not file a direct appeal.
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
On September 15, 2016, Brown filed a timely notice of appeal.
Assignments of Error
On appeal, Brown assigns the ...