Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Brown

Court of Appeals of Ohio, Fourth District, Scioto

May 26, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
RAYMOND S. BROWN, Defendant-Appellant.

          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.

          DECISION AND JUDGMENT ENTRY

          MARIE HOOVER, JUDGE

         {¶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.

         {¶3} 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 Brown's claims.

         {¶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.

         {¶8} 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.

         {¶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 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 degree.

         {¶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 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.

         {¶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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.