State v. Brown

[Cite as State v. Brown, 2022-Ohio-3032.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

v. : Nos. 110342, 110498, and 110499

DERRICK BROWN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED

RELEASED AND JOURNALIZED: August 30, 2022

Cuyahoga County Court of Common Pleas

Case Nos. CR-18-630666-A, CR-19-636546-A, and CR-19-637566-A

Application for Reopening

Motion No. 553103

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Kristen Hatcher, Assistant Prosecuting

Attorney, for appellee.

Derrick Brown, pro se.

SEAN C. GALLAGHER, A.J.:

On March 4, 2022, the applicant, Derrick Brown, pursuant to App.R.

26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied

to reopen this court’s judgment in State v. Brown, 8th Dist. Cuyahoga Nos. 110342,

110498, and 110499, 2021-Ohio-4311, in which this court affirmed his sentences for

rape, kidnapping, felonious assault, aggravated burglary, aggravated robbery, grand

theft, and improper handling firearms in a motor vehicle. Brown asserts that his

appellate counsel should have argued that (1) his trial counsel was ineffective for

failing to investigate the case, to interview potential witnesses, to prepare for trial,

and to fulfill his adversarial role; and (2) his convictions were not supported by

sufficient evidence. On April 28, 2022, the state of Ohio filed its brief in opposition.

For the following reasons, this court denies the application.

Factual and Procedural Background

In 2013, Brown asked a 30-year-old, mentally impaired woman to

perform fellatio on him. When she refused, he punched her repeatedly in the face,

breaking her nose and giving her two black eyes. He then put on a condom, and the

woman performed fellatio on him. In removing the condom, he spilled some of his

seminal fluid. The police swabbed this during their investigation.

Early on the morning of January 9, 2019, a 76-year-old retired nurse

found Brown in her home. He repeatedly hit her and told her she was going to

perform fellatio on him. He also cut her with a knife. After he put on a condom, she

tried to do that, but Brown complained that she was not doing it right. He then

anally raped her and took what money she had in her home. When that was not

enough, he forced the nurse into her car and had her drive to a bank and remove

$300 from her account. He let her go but stole her car. In his haste to rob her,

Brown left the condom in her home. Police retrieved that during their investigation.

In July 2018, Brown was arrested trying to hide a firearm in an

automobile. This allowed the police to obtain a DNA sample that identified him as

the perpetrator of the two rapes. The nurse subsequently also identified him in a

lineup.

In State v. Brown, Cuyahoga C.P. No. CR-18-630666-A, the grand

jury indicted Brown on one count of improperly handling a firearm in a motor

vehicle, a fourth-degree felony. For the incidents involving the nurse, the grand jury,

in State v. Brown, Cuyahoga C.P. No. CR-19-636546-A, indicted him as follows:

Counts 1 and 2, rape, first-degree felonies with sexually violent predator

specifications; Count 3, kidnapping, a first-degree felony with sexual motivation and

sexually violent predator specifications; Count 4, felonious assault with a knife, a

second-degree felony with a sexual motivation specification; Count 5, aggravated

burglary, a first-degree felony; Count 6, aggravated robbery using a weapon (the

money in the home), a first-degree felony; Count 7, kidnapping (flight in the car), a

first-degree felony; Count 8, aggravated robbery using a weapon (at the ATM), a

first-degree felony; Count 9, grand theft of the car, a fourth-degree felony; Count 10,

theft of money, a fifth-degree felony; and Count 11, theft of her cell phone, a fifth-

degree felony. For the rape of the 30-year-old woman, the grand jury, in State v.

Brown, Cuyahoga C.P. No. CR-19-637566-A, indicted Brown for one count of rape

with a sexually violent predator specification, a first-degree felony; one count of

felonious assault with a sexual motivation specification, a second-degree felony; and

one count of kidnapping with sexual motivation and sexually violent predator

specifications, a first-degree felony.

Brown’s attorneys were able to arrange a plea bargain under which in

the rape of the nurse case Brown pleaded guilty to the two rape charges with the

sexually violent predator specifications deleted; this amendment would keep Brown

from facing a life sentence. He also pleaded guilty to one count each of felonious

assault, aggravated burglary, aggravated robbery, kidnapping, and grand theft. The

other four counts were nolled. In the other rape case, he pleaded guilty to rape with

the sexually violent predator specification deleted and to felonious assault; the

kidnapping charge was nolled. He also pleaded guilty to the weapons charge. The

state and the defense proposed a recommended sentence of 25 to 35 years, and the

trial court imposed a 25-year sentence for all of the offenses.

Brown filed a pro se motion to withdraw the guilty plea. At the

subsequent hearing, the state presented a recording of Brown talking with a woman,

probably his mother, who suggested that he should file the motion to withdraw the

plea for the reasons of duress and ineffective assistance of counsel. The trial judge

denied the motion.

His appellate counsel argued that the judge should have merged some

of the offenses as allied offenses. Brown now argues that his appellate counsel was

ineffective. He argues she should have raised that his trial counsel was ineffective

and that there was insufficient evidence to convict him. Specifically, he claims that

he told his trial counsel about alibi witnesses that would prove his innocence, but

counsel never interviewed those witnesses and did not prepare for trial; rather

counsel coerced him into taking the plea.

In order to establish a claim of ineffective assistance of appellate

counsel, the applicant must demonstrate that counsel’s performance was deficient

and that the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley,

42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 660

N.E.2d 456 (1996).

In Strickland, the United States Supreme Court ruled that judicial

scrutiny of an attorney’s work must be highly deferential. The court noted that it is

all too tempting for a defendant to second-guess his lawyer after conviction and that

it would be all too easy for a court, examining an unsuccessful defense in hindsight,

to conclude that a particular act or omission was deficient. Therefore, “a court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Strickland at 689.

Moreover, appellate review is strictly limited to the record. The

Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (1898). Thus,

“a reviewing court cannot add matter to the record before it, which was not a part of

the trial court’s proceedings, and then decide the appeal on the basis of the new

matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one

of the syllabus. “Nor can the effectiveness of appellate counsel be judged by adding

new matter to the record and then arguing that counsel should have raised these

new issues revealed by the newly added material.” State v. Moore, 93 Ohio St.3d

649, 650, 758 N.E.2d 1130 (2001). “Clearly, declining to raise claims without record

support cannot constitute ineffective assistance of appellate counsel.” State v.

Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, ¶ 10.

Brown pled guilty to multiple, serious charges. A guilty plea is a

complete admission of guilt. State v. Stumpf, 32 Ohio St.3d 95, 512 N.E.2d 598

(1987), and State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51.

Moreover, “[a]n unqualified plea of guilty, legitimately obtained and still in force,

bars further consideration of all but the most fundamental premises for the

conviction, of which the subject-matter jurisdiction of the court is the familiar

example.” Village of Montpelier v. Greeno, 25 Ohio St.3d 170, 171, 495 N.E.2d 581

(1986), fn. 2, quoting United States v. Doyle, 348 F.2d 715, 718-719 (2d Cir.1965). A

guilty plea waives all appealable errors which may have occurred at trial unless those

errors prevented the defendant from voluntarily entering the plea. State ex rel.

Nash v. Fuerst, 8th Dist. Cuyahoga No. 87966, 2006-Ohio-5261.

Specifically, a guilty plea generally waives a claim of ineffective

assistance of counsel. State v. May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio-

5504; State v. Brown, 8th Dist. Cuyahoga No. 104095, 2017-Ohio-184; State v.

Black, 8th Dist. Cuyahoga No. 102586, 2017-Ohio-953.

Brown states that he gave his trial counsel the names of two

individuals who could provide alibis. The court also notes that counsel filed a notice

of alibi in one of the cases. Beyond that the record is silent on counsel’s preparation

or lack of thereof. A court cannot infer a failure to investigate or prepare from a

silent record. Thus, Brown has not met his burden of establishing ineffective

assistance of trial counsel. State v. Mhoon, 8th Dist. Cuyahoga No. 98832, 2013-

Ohio-2090, and State v. Character, 8th Dist. Cuyahoga No. 93765, 2010-Ohio-

4128. The court further notes the incriminating evidence against Brown and the

success of the plea negotiation that eliminated a life sentence, nolled multiple

counts, and obtained the minimum agreed sentence.

Similarly, pleading guilty waives all errors that a defendant could

have claimed had he decided to proceed to trial. Specifically, pleading guilty waives

the right to argue sufficiency of the evidence. State v. Rice, 8th Dist. Cuyahoga No.

106953, 2018-Ohio-5356.

Accordingly, this court denies the application to reopen.

____________________________________

SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and

LISA B. FORBES, J., CONCUR