State v. Brown

[Cite as State v. Brown, 2022-Ohio-1917.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

BELMONT COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

ROY WILTON BROWN,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 21 BE 0012

Application to Reopen

BEFORE:

David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.

JUDGMENT:

Denied.

Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Daniel P. Fry, Assistant

Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio 43950, for Plaintiff-

Appellee (No Response Filed) and

Roy Wilton Brown, Pro Se, Lebanon Correctional Institution, P.O. Box 56, Lebanon,

Ohio 45036, Defendant-Appellant.

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Dated: May 31, 2022

PER CURIAM.

{¶1} On April 18, 2022, Appellant, Roy Wilton Brown, filed a pro se App.R. 26(B)

application to reopen his direct appeal in State v. Brown, 7th Dist. Belmont No. 21 BE

0012, 2022-Ohio-893. Appellee, the State of Ohio, did not file a response.

{¶2} Appellant was consecutively sentenced to seven years in prison for

tampering with evidence, possession of heroin, and possession of cocaine following a

guilty plea. In Appellant’s direct appeal, appellate counsel raised two assignments of

error: (1) that the trial court erred in denying Appellant’s pre-sentence motion to withdraw

his guilty plea following a hearing on the basis that his initially retained trial counsel’s

assistance was ineffective; and (2) that Appellant’s (subsequently) retained trial counsel

(counsel that filed and argued his motion to withdraw guilty plea) also rendered ineffective

assistance. Id. at ¶ 1. This court found no merit in either argument and affirmed the trial

court’s judgment on March 21, 2022. Id. at ¶ 28.

App.R. 26(B)(1) and (2)(b) require applications to reopen based on

ineffective assistance of appellate counsel to be filed within ninety days from

journalization of the decision. App.R. 26(B)(1), (2)(b); State v. Gumm, 103

Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861. The ninety-day

requirement applies to all appellants. State v. Buggs, 7th Dist. Mahoning

Nos. 06 MA 28, 07 MA 187, 2009-Ohio-6628, ¶ 5.

If an application for reopening is not filed within the ninety day time period,

an appellant must make a showing of good cause justifying the delay in

filing. State v. Dew, 7th Dist. Mahoning No. 08 MA 62, 2012-Ohio-434.

State v. Frazier, 7th Dist. Belmont No. 16 BE 0040, 2020-Ohio-993, ¶ 5-6.

{¶3} As stated, Appellant’s application for reopening was filed on April 18, 2022.

Therefore, his application is timely as it was filed within the 90-day timeframe of this

court’s March 21, 2022 decision. Brown, supra; App.R. 26(B)(1) and (2)(b). Upon review,

Case No. 21 BE 0012

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however, Appellant fails to meet the standard for reopening this appeal. See State v.

Romeo, 7th Dist. Mahoning No. 14 MA 0060, 2018-Ohio-2482, ¶ 6.

The test for ineffective assistance of counsel requires a defendant to prove

(1) that counsel’s performance was deficient, and (2) that the deficient

performance prejudiced the defendant. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052 (1984). Under this test, a criminal defendant

seeking to reopen an appeal must demonstrate that appellate counsel was

deficient for failing to raise the issue presented in the application for

reopening and that there was a reasonable probability of success had that

issue been raised on appeal. [State v.] Spivey[, 84 Ohio St.3d 24,] 25

[(1998)].

***

Under App.R. 26(B), an applicant must set forth “(o)ne or more assignments

of error or arguments in support of assignments of error that previously were

not considered on the merits in the case by any appellate court or that were

considered on an incomplete record because of appellate counsel’s

deficient representation.” App.R. 26(B)(2)(c).

State v. Hackett, 7th Dist. Mahoning No. 17 MA 0106, 2019-Ohio-3726, ¶ 6, 9.

[Furthermore] [i]t should finally be noted that appellate counsel need not

raise every possible issue in order to render constitutionally effective

assistance. [State v.] Tenace, 109 Ohio St.3d 451 at ¶ 7, 849 N.E.2d 1,

citing State v. Sanders (2002), 94 Ohio St.3d 150, 151-152, 761 N.E.2d 18.

“Experienced advocates since time beyond memory have emphasized the

importance of winnowing out weaker arguments on appeal and focusing on

one central issue if possible, or at most on a few key issues.” Jones v.

Barnes (1983), 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987.

State v. Jones, 7th Dist. Mahoning No. 06 MA 17, 2008-Ohio-3352, ¶ 6.

Case No. 21 BE 0012

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{¶4} Appellant raises four assignments of error in his application, namely that:

(1) the trial court erred in sentencing him to the maximum; (2) the court erred in sentencing

him consecutively; (3) the court erred in sentencing him regarding allied offenses; and (4)

the court erred in running his sentences consecutively instead of concurrently. (4/18/2022

Appellant’s Application for Reopening, p. 2-3). Appellant, however, fails to provide any

analysis to support his four assignments of error. Because Appellant’s assignments are

interrelated, as they all concern his sentence, we will address them together.

{¶5} This court utilizes R.C. 2953.08(G) as the standard of review in all felony

sentencing appeals. State v. Michaels, 7th Dist. Mahoning No. 17 MA 0122, 2019-Ohio-

497, ¶ 2, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 1.

{¶6} R.C. 2953.08(G) states in pertinent part:

(2) The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or

modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court’s

standard for review is not whether the sentencing court abused its

discretion. The appellate court may take any action authorized by this

division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section

2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,

if any, is relevant;

(b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2)(a)-(b).

Case No. 21 BE 0012

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{¶7} Although trial courts have full discretion to impose any term of imprisonment

within the statutory range, they must consider the sentencing purposes

in R.C. 2929.11 and the guidelines contained in R.C. 2929.12.

{¶8} R.C. 2929.11(A) provides that the overriding purposes of felony sentencing

are (1) “to protect the public from future crime by the offender and others”; and (2) “to

punish the offender * * * using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on state or local

government resources.” Further, the sentence imposed shall be “commensurate with and

not demeaning to the seriousness of the offender’s conduct and its impact upon the victim,

and consistent with sentences imposed for similar crimes committed by similar offenders.”

R.C. 2929.11(B).

{¶9} R.C. 2929.12 provides a nonexhaustive list of sentencing factors the trial

court must consider when determining the seriousness of the offense and the likelihood

that the offender will commit future offenses. The court that imposes a felony sentence

“has discretion to determine the most effective way to comply with the purposes and

principles of sentencing.” R.C. 2929.12(A). The factors a trial court may consider include

the “more serious” factors, such as “[t]he physical or mental injury suffered by the victim

of the offense due to the conduct of the offender was exacerbated because of the physical

or mental condition or age of the victim” and “[t]he victim of the offense suffered serious

physical, psychological, or economic harm as a result of the offense.” R.C. 2929.12(B)(1)

and (2). The court may also consider the “less serious” factors, any recidivism factors,

and any mitigating factors listed in R.C. 2929.12(C)-(F).

R.C. 2929.11 does not require the trial court to make any specific findings

as to the purposes and principles of sentencing. State v. Wilson, 129 Ohio

St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Similarly, R.C. 2929.12

does not require the trial court to “use specific language or make specific

findings on the record in order to evince the requisite consideration of the

applicable seriousness and recidivism factors.” State v. Arnett, 88 Ohio

St.3d 208, 215, 724 N.E.2d 793 (2000).

Case No. 21 BE 0012

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State v. Shaw, 7th Dist. Belmont No. 15 BE 0065, 2017-Ohio-1259, ¶ 36; see also State

v. Morant, 7th Dist. Belmont No. 20 BE 0020, 2021-Ohio-3160, ¶ 56 (“‘[N]either R.C.

2929.11 nor R.C. 2929.12 requires a trial court to make any specific factual findings on

the record[.]’”)

{¶10} “‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.’ State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).” State v. Burkhart, 7th Dist. Belmont No. 18

BE 0020, 2019-Ohio-2711, ¶ 16.

{¶11} Regarding consecutive sentences, R.C. 2929.14(C)(4) states:

(4) If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

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R.C. 2929.14(C)(4)(a)-(c).

It has been held that although the trial court is not required to recite the

statute verbatim or utter “magic” or “talismanic” words, there must be an

indication that the court found (1) that consecutive sentences are necessary

to protect the public from future crime or to punish the offender, (2) that

consecutive sentences are not disproportionate to the seriousness of the

offender’s conduct and to the danger posed to the public, and (3) one of the

findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State v. Bellard, 7th

Dist. Mahoning No. 12-MA-97, 2013-Ohio-2956, ¶ 17. The court need not

give its reasons for making those findings however. State v. Power, 7th Dist.

Columbiana No. 12 CO 14, 2013-Ohio-4254, ¶ 38. A trial court must make

the consecutive sentence findings at the sentencing hearing and must

additionally incorporate the findings into the sentencing entry. State v.

Williams, 7th Dist. Mahoning No. 13-MA-125, 2015-Ohio-4100, ¶ 33-34,

citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, ¶ 37.

State v. Thomas, 7th Dist. Mahoning No. 18 MA 0025, 2020-Ohio-633, ¶ 41.

{¶12} On February 17, 2021, the trial court held a sentencing hearing pursuant to

R.C. 2929.19 and filed a sentencing entry the next day. In his direct appeal, this court

stated:

On February 18, 2021, the trial court consecutively sentenced Appellant

based upon his previously entered guilty plea to 36 months on count two,

tampering with evidence, 36 months on amended count four, possession of

heroin, and 12 months on count five, possession of cocaine, for a total of

seven years in prison.

***

[Regarding his guilty plea and sentence,] Appellant was indicted on five

counts, retained his initial trial counsel, and pled not guilty. Appellant later

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withdrew his not guilty plea and pled guilty to three counts: count two,

tampering with evidence, a felony of the third degree, in violation of R.C.

2921.12(A)(1)(B); an amended count four, possession of heroin, a felony of

the third degree, in violation of R.C. 2925.11(A)(C)(6)(c); and count five,

possession of cocaine, a felony of the fifth degree, in violation of R.C.

2925.11(A)(C)(4)(a). The trial court accepted Appellant's guilty plea after

finding it was made in a knowing, intelligent, and voluntary manner pursuant

to Crim.R. 11 and dismissed counts one and three. Thus, Appellant’s

decision to enter a guilty plea to three of the five counts was a tactical

decision made by him with the advice of his initial trial counsel, which

resulted in a sentencing benefit to him as he faced more years in

prison. See [State v.] Gawron, [7th Dist. Belmont No. 20 BE 0009, 2021-

Ohio-3634,] at ¶ 94.

***

Prior to the current proceeding, Appellant had numerous misdemeanor and

felony offenses beginning in 2004. Again, the PSI includes all of Appellant’s

offenses which span three pages in length.

Brown, supra, at ¶ 11, 16, 19.

{¶13} The record in this case reflects the trial court considered R.C. 2929.11,

2929.12, 2929.13, 2929.14, and the PSI. Specifically, the court “considered the record,

oral statements, the pre-sentence report, as well as the principles and purposes of

sentencing under R.C. 2929.11 and has balanced the seriousness and recidivism factors

under R.C. 2929.12.” (2/18/2021 Sentencing Entry, p. 1). The court found that certain

factors contained in R.C. 2929.12(B) and (D) apply to Appellant:

(1) As an adult, Defendant has a criminal history which includes: Drug

Possession; Failure to Comply with Order or Signal of Police Office[r] (F3);

Attempted Trafficking; Two (2) counts of Disorderly Conduct; Three (3)

counts of Trafficking Offense[s]; Three (3) counts of Possessing Criminal

Tools; Three (3) counts of Drug Possession; Resisting Arrest; Drug Abuse;

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Dangerous Drugs; Attempted Having Weapons Under Disability; Carrying

Concealed Weapons; Having Weapons While Under Disability; Possession

of Deadly Weapon in School Safety Zone;

(2) Defendant has not responded to sanctions previously imposed; and

(3) Defendant has an established criminal history, resulting in escalating

criminal activity without “good faith” treatment and/or an effort to change his

lifestyle.

(2/18/2021 Sentencing Entry, p. 2).

{¶14} The court further stated:

In accord with R.C. 2929.14(C)(4), the Court finds that a consecutive

sentence is necessary to protect the public from future crime and to punish

the offender, and consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and the danger this offender poses

to the public. The Court specifically finds that imposition of consecutive

sentences is reasonable and appropriate, The Court further finds that

consecutive sentences are necessary to protect the public from future

crimes. The Court further finds that the harm to the victim was so great that

a single term does not adequately reflect the seriousness of Defendant’s

conduct and that consecutive sentences are necessary to protect the public

from future crimes by this offender and by others. (Emphasis sic).

(2/18/2021 Sentencing Entry, p. 3).

{¶15} Appellant was sentenced to maximum terms of 36 months for the third

degree felony counts, tampering with evidence in violation of R.C. 2921.12(A)(1)(B), and

possession of heroin in violation of R.C. 2925.11(A)(C)(6)(c). Thus, Appellant’s

sentences are within the statutory ranges for the third-degree felony offenses. R.C.

2929.14(A)(3)(b) (“For a felony of the third degree that is not an offense for which division

(A)(3)(a) of this section applies, the prison term shall be a definite term of nine, twelve,

eighteen, twenty-four, thirty, or thirty-six months.”) Appellant was also sentenced to a

Case No. 21 BE 0012

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maximum term of 12 months for the fifth degree felony count, possession of cocaine in

violation of R.C. 2925.11(A)(C)(4)(a). Thus, Appellant’s sentence is also within the

statutory range for the fifth-degree felony offense. R.C. 2929.14(A)(5) (“For a felony of

the fifth degree, the prison term shall be a definite term of six, seven, eight, nine, ten,

eleven, or twelve months.”)

{¶16} Because the trial court had full discretion to impose any sentence within the

authorized statutory ranges, and Appellant’s maximum terms are within the authorized

statutory ranges for third and fifth-degree felonies, his consecutive sentence is not

contrary to law. See R.C. 2929.14; Burkhart, supra, at ¶ 16. Also, because the offenses

were committed separately and with a separate animus or motivation, the trial court did

not err in failing to merge the convictions. See, e.g., State v. Coffman, 12th Dist. Butler

No. CA2015-01-014, 2015-Ohio-2990, ¶ 24. Therefore, we fail to see any ineffective

assistance of appellate counsel warranting a reopening.

{¶17} For the foregoing reasons, Appellant has failed to comply with the

requirements set forth in App.R. 26(B) and has failed to present issues that establish a

colorable claim of ineffective assistance of appellate counsel.

{¶18} Accordingly, Appellant’s pro se App.R. 26(B) application for reopening is

hereby denied.

JUDGE DAVID A. D’APOLITO

JUDGE GENE DONOFRIO

JUDGE CAROL ANN ROBB

NOTICE TO COUNSEL

This document constitutes a final judgment entry.

Case No. 21 BE 0012

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Case No. 21 BE 0012