State v. Brown

[Cite as State v. Brown, 2020-Ohio-4671.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 29667

Appellee

v. APPEAL FROM JUDGMENT

ENTERED IN THE

TOBY DEE BROWN COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

Appellant CASE No. CR 96 08 2041(A)

DECISION AND JOURNAL ENTRY

Dated: September 30, 2020

CALLAHAN, Presiding Judge.

{¶1} Appellant, Toby D. Brown, appeals an order of the Summit County Court of

Common Pleas that denied his “Motion to Correct Statutorily Invalid Sentence.” This Court

affirms.

I.

{¶2} In 1997, a jury found Mr. Brown guilty of three counts of aggravated murder and

one count each of aggravated robbery, aggravated burglary, tampering with evidence, and failure

to comply with an order or signal of a police officer. The jury also found that Mr. Brown was the

principal offender in the commission of felony murder pursuant to R.C. 2929.04(A)(7) for

purposes of imposing a sentence of death. Following the mitigation hearing, however, the jury

recommended a sentence of life imprisonment with parole eligibility after thirty years. The trial

court imposed that sentence, and Mr. Brown appealed. This court affirmed his convictions, but

reversed with respect to the principal-offender specification. State v. Brown, 9th Dist. Summit No.

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18766, 1998 WL 696770, *5 (Oct. 7, 1998) (“Brown I”). This Court remanded the matter for

resentencing consistent with our opinion. Id.

{¶3} In 1999, the trial court resentenced Mr. Brown for the aggravated murder

conviction to a prison term of twenty years to life. Mr. Brown did not appeal that decision. On

February 15, 2005, Mr. Brown filed a “Motion to Correct Improper Sentence to Conform with the

Ruling of the Ninth District Appellate Court,” in which he argued that he should not have been

resentenced for the aggravated murder conviction. The trial court denied that motion. On

December 22, 2008, Mr. Brown filed a “Motion to Vacate Void Sentence,” arguing that the trial

court erred in its postrelease control notifications with respect to his resentencing. The trial court

denied that motion as well. On June 19, 2009, Mr. Brown moved the trial court to resentence him

again, arguing that his sentence did not comply with Crim.R. 32.

{¶4} The State agreed that Mr. Brown should be resentenced, and on July 15, 2009, the

trial court issued a new sentencing entry that imposed the same penalty for the aggravated murder

conviction. Mr. Brown immediately filed another motion for resentencing, arguing that the trial

court omitted postrelease control notification. The State agreed that Mr. Brown should be

resentenced on that basis. The trial court resentenced him on October 27, 2009, and once again,

the sentencing entry contained the same sentence previously imposed for the aggravated murder

conviction. Mr. Brown appealed, asserting several assignments of error that reached beyond the

scope of his resentencing.1 See State v. Brown, 9th Dist. Summit No. 25077, 2010-Ohio-4453, ¶

11-19 (“Brown II”).

1

In a subsequent appeal, this Court explained we addressed the merits of these assignments

of error because “the Supreme Court had yet to issue its post-release control decision in State v.

Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238.” State v. Brown, 9th Dist. Summit No. 26427,

2012-Ohio-5484, ¶ 11 (“Brown III”).

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{¶5} On August 15, 2011, Mr. Brown was resentenced again in conformity with this

Court’s opinion in Brown II. Because his aggravated murder sentence was not at issue in that

appeal, his sentence for that conviction did not change. On March 9, 2012, Mr. Brown filed

another motion titled “Motion to Correct Illegal Sentence,” again arguing that his sentencing entry

failed to comply with Crim.R. 32. The trial court denied that motion, and Mr. Brown filed another

appeal, arguing that his conviction for aggravated murder was not supported by sufficient

evidence. Brown III at ¶ 8. This Court concluded that Mr. Brown’s arguments were res judicata

because they could have been raised in his direct appeal. Id. at ¶ 11.

{¶6} Mr. Brown filed the “Motion to Correct Statutorily Invalid Sentence” that is at issue

in this appeal on March 11, 2019. In that motion, Mr. Brown argued that his aggravated murder

sentence as set forth in the resentencing order of October 27, 2009, was not authorized by statute.

The trial court denied his motion, and Mr. Brown filed this appeal.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING

APPELLANT[’S] MOTION TO CORRECT A STATUTORILY INVALID

SENTENCE[.]

{¶7} In his assignment of error, Mr. Brown argues that the trial court erred by denying

his motion because the sentence imposed upon him in the 2009 resentencing was contrary to law.

{¶8} This Court must first consider the nature of the motion at issue in this appeal. R.C.

2953.21(A)(1)(a) provides:

Any person who has been convicted of a criminal offense or adjudicated a

delinquent child and who claims that there was such a denial or infringement of the

person’s rights as to render the judgment void or voidable under the Ohio

Constitution or the Constitution of the United States * * * may file a petition in the

court that imposed sentence, stating the grounds for relief relied upon, and asking

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the court to vacate or set aside the judgment or sentence or to grant other appropriate

relief.

This Court may construe an irregular motion “into whatever category necessary to identify and

establish the criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153,

2008-Ohio-545, ¶ 12. “A vaguely titled motion, including a motion to correct or vacate a judgment

or sentence,” may be treated as a petition for postconviction relief under R.C. 2953.21(A)(1) when

the motion was filed after a direct appeal, alleged a denial of constitutional rights, sought to render

the judgment void or voidable, and requested that the judgment and sentence be vacated. State v.

Davis, 9th Dist. Medina No. 15CA0004-M, 2015-Ohio-5182, ¶ 6, citing State v. Reynolds, 79 Ohio

St.3d 158, 160 (1997); R.C. 2953.21(A)(1)(a). This Court has characterized similar motions as

petitions for postconviction relief. See, e.g., State v. Walker, 9th Dist. Summit No. 29151, 2019-

Ohio-605, ¶ 7. Mr. Brown’s motion is appropriately considered to be a petition for postconviction

relief.

{¶9} R.C. 2953.21(A)(2)2 provides that a petition for postconviction relief must be filed

within 365 days of the date on which the transcript is filed in a direct appeal or, if no direct appeal

is taken, within 365 days of the expiration of the time for filing an appeal. After this Court reversed

his aggravated murder conviction in part, Mr. Brown was resentenced on February 3, 1999. The

trial court’s October 27, 2009, order that resentenced Mr. Brown to correct a postrelease control

notification imposed the same sentence, and it did not restart the clock with respect to timely filing

of a petition for postconviction relief. See State v. O’Neal, 9th Dist. Medina No. 08CA0028-M,

2

Mr. Brown filed his petition on March 11, 2019, so the current versions of the

postconviction statutes apply in this case. See State v. Stephens, 9th Dist. Summit No. 27957,

2016-Ohio-4942, ¶ 6. See also State v. McManaway, 4th Dist. Hocking No. 16CA8, 2016-Ohio-

7470, ¶ 11 (explaining that “the triggering event is the filing of the postconviction petition, which

determines the applicable version of the statute.”).

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2008-Ohio-6572, ¶ 12-13. Consequently, because Mr. Brown did not file a direct appeal from the

February 3, 1999, order, he had until March 6, 2000, to petition for postconviction relief.3 Mr.

Brown filed his petition on March 11, 2019, nineteen years after that deadline passed. In addition,

“R.C. 2953.23(A) allows a prisoner to file only one postconviction petition in most situations.”

State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 21. Mr. Brown’s current petition also

represents at least the second that he has filed. Mr. Brown’s petition, therefore, is both untimely

and successive. See Apanovitch at ¶ 21.

{¶10} “R.C. 2953.23(A) permits a prisoner to file an untimely, successive petition for

postconviction relief only under specific, limited circumstances.” Id. at ¶ 22. A trial court may

only entertain an untimely or successive petition for postconviction relief when:

(a) Either the petitioner shows that the petitioner was unavoidably prevented from

discovery of the facts upon which the petitioner must rely to present the claim for

relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21

of the Revised Code or to the filing of an earlier petition, the United States Supreme

Court recognized a new federal or state right that applies retroactively to persons in

the petitioner’s situation, and the petition asserts a claim based on that right.

R.C. 2953.23(A)(1)(a). A petitioner, other than one who challenges a sentence of death, must also

demonstrate by clear and convincing evidence “that, but for constitutional error at trial, no

reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner

was convicted.” R.C. 2953.23(A)(1)(b). When the requirements of R.C. 2953.23(A)(1) have not

been met, a trial court cannot consider an untimely or successive petition. See Apanovitch at ¶ 36.

{¶11} Mr. Brown’s petition did not explain why he was unavoidably prevented from

discovering the facts upon which it was based, and it did not identify a retroactive right that has

been recognized by the United States Supreme Court. See R.C. 2953.23(A)(1)(a). Because Mr.

3

Because March 4, 2000, was a Saturday, Mr. Brown’s deadline for filing his petition was

Monday, March 6, 2000.

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Brown has not satisfied that requirement, we conclude that the trial court could not consider his

untimely and successive petition and need not address whether he has satisfied the requirements

of R.C. 2953.23(A)(1)(b). See Apanovitch at ¶ 26.

{¶12} Mr. Brown’s suggestion that his sentence is void does not change this result. A

sentence is only void “when a sentencing court lacks jurisdiction over the subject-matter of the

case or personal jurisdiction over the accused.” State v. Harper, Slip Opinion No. 2020-Ohio-

2913, ¶ 42. Mr. Brown’s argument is properly characterized as one asserting that his sentence is

voidable, not void. See State ex rel. Rodriguez v. Barker, 158 Ohio St.3d 39, 2019-Ohio-4155, ¶

9, quoting State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 23.

{¶13} Mr. Brown’s assignment of error is overruled.

III.

{¶14} Mr. Brown’s assignment of error is overruled. The judgement of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

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for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

LYNNE S. CALLAHAN

FOR THE COURT

HENSAL, J.

SCHAFER, J.

CONCUR.

APPEARANCES:

TOBY D. BROWN, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant

Prosecuting Attorney, for Appellee.