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State v. Brown

Court of Appeals of Ohio, Ninth District, Summit

October 25, 2017

STATE OF OHIO Appellee
v.
DONALD EUGENE BROWN Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 04 12 4150 (A)

          DONALD E. BROWN, pro se, Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER JUDGE.

         {¶1} Defendant-Appellant, Donald E. Brown, appeals the judgment of the Summit County Court of Common Pleas. We affirm.

         I.

         {¶2} In 2005, the trial court sentenced Brown to an 11-year term of imprisonment after a jury convicted him of one count of trafficking in marijuana in violation of R.C. 2925.03(A)(2), a first-degree felony, one count of possession of marijuana in violation of R.C. 2925.11(A), a second-degree felony, one count of possession of marijuana in violation of R.C. 2925.11(A), a fourth-degree misdemeanor, three counts of having weapons while under disability in violation of R.C. 2923.13(A)(2)/(3), all third-degree felonies, one count of endangering children in violation of R.C. 2919.22(A), a first-degree misdemeanor, and one count of criminal trespass in violation of R.C. 2911.21(A)(1), a fourth-degree misdemeanor. The trial court also ordered Brown to serve a five-year period of postrelease control upon his release from prison. This Court affirmed Brown's convictions on appeal. See State v. Brown, 9th Dist. Summit Nos. 23076, 23080, 2006-Ohio-6749.

         {¶3} On October 15, 2009, Brown filed a motion for resentencing arguing that although the trial court's sentencing entry imposed a five-year period of postrelease control, the trial court failed to notify him of postrelease control at his sentencing hearing. The State agreed that Brown should be resentenced. On December 21, 2009, the trial court resentenced Brown on the record to a mandatory eight-year term of imprisonment and ordered him to serve a mandatory five-year period of postrelease control. The trial court journalized this sentence in an entry dated February 1, 2010.

         {¶4} In 2011, Brown filed a motion to vacate his sentence pursuant to State v. Pelfrey, 112 Ohio St.3d 422 (2007), arguing that his sentence for trafficking in marijuana (count one of the indictment) is illegal. The State filed a brief in opposition to Brown's motion to vacate sentence. A review of the record indicates that the trial court never explicitly ruled on Brown's motion to vacate sentence.

         {¶5} On October 31, 2013, Brown filed a "motion to discharge defendant from all obligations related to post release control." The trial court held a hearing on Brown's motion and, upon agreement of the parties, issued a nunc pro tunc entry altering Brown's sentence with respect to his trafficking in marijuana conviction from a mandatory five-year period of postrelease control to a mandatory three-year period of postrelease control. Thereafter, in 2015, Brown again filed a "motion to discharge defendant from all obligations related to post release control, " which was identical to his 2013 motion. The trial court denied Brown's successive motion.

         {¶6} In July of 2016, Brown filed a writ of error coram nobis resident and a motion to quash or hold, to which the State responded in opposition. The trial court ultimately denied Brown's motions concluding that a writ of error coram nobis resident does not exist under Ohio law and that Brown's motion to quash or hold was barred by the doctrine of res judicata. On October 5, 2016, Brown filed a motion to terminate his postrelease control, which the State opposed. The trial court denied Brown's motion to terminate postrelease control.

         {¶7} Brown filed this timely appeal and presents one assignment of error for our review.

         II.

         Assignment ...


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