State v. Browning

[Cite as State v. Browning, 2023-Ohio-1467.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

COLUMBIANA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

THOMAS CLARENCE BROWNING III,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 21 CO 0026

Application for Reconsideration

BEFORE:

David A. D’Apolito, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:

Denied.

Atty. Vito Abruzzino, Columbiana County Prosecutor, and Atty. Tammie M. Jones,

Assistant Prosecuting Attorney, 135 South Market Street, Lisbon, Ohio 44432, for

Plaintiff-Appellee and

Thomas Clarence Browning III, Pro Se, #A782319, Belmont Correctional Institution,

68518 Bannock Road, St. Clairsville, Ohio 43950, Defendant-Appellant.

Dated: May 2, 2023

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PER CURIAM.

{¶1} Appellant, Thomas Clarence Browning III, filed a pro se application

requesting that this court reconsider our decision in State v. Browning, 7th Dist.

Columbiana No. 21 CO 0026, 2023-Ohio-890, in which we affirmed the July 6, 2021

judgment of the Columbiana County Court of Common Pleas convicting and sentencing

him to an indefinite prison term of six years (minimum) to nine years (maximum) for

felonious assault and endangering children following a trial by jury.1 Appellant contends

this court’s decision was in error and that we should, therefore, reconsider the opinion

pursuant to App.R. 26(A).

{¶2} An application for reconsideration must be filed within 10 days of an

appellate court’s judgment. App.R. 26(A)(1)(a). However, a delayed application for

reconsideration pursuant to App.R. 26(A) is permitted if the moving party can establish

“extraordinary circumstances.”2 App.R. 14(B).

{¶3} Here, this court decided Appellant’s appeal and filed our judgment on

Tuesday, March 14, 2023. Thus, Appellant’s application for reconsideration was to be

filed no later than Friday, March 24, 2023. However, Appellant did not file his application

for reconsideration until Monday, March 27, 2023, slightly beyond the 10-day timeframe

under App.R. 26(A)(1)(a). Appellant fails to establish “extraordinary circumstances.” In

addition, we find no obvious error in this court’s decision.

App.R. 26, which provides for the filing of an application for reconsideration

in this court, includes no guidelines to be used in the determination of

whether a decision is to be reconsidered and changed. Matthews v.

Matthews, 5 Ohio App.3d 140, 143, 450 N.E.2d 278 (10th Dist.1981). The

test generally applied is whether the motion for reconsideration calls to the

attention of the court an obvious error in its decision or raises an issue for

our consideration that was either not at all or was not fully considered by us

when it should have been. Id. An application for reconsideration is not

1 Appellee, the State of Ohio, did not file a reply.

2 “Extraordinary circumstances” is defined as “[a] highly unusual set of facts that are not commonly

associated with a particular thing or event.” Black’s Law Dictionary (11th Ed.2019).

Case No. 21 CO 0026

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designed for use in instances where a party simply disagrees with the

conclusions reached and the logic used by an appellate court. State v.

Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (11th Dist.1996).

Rather, App.R. 26 provides a mechanism by which a party may prevent

miscarriages of justice that could arise when an appellate court makes an

obvious error or renders an unsupportable decision under the law. Id.

D.G. v. M.G.G., 7th Dist. Mahoning No. 17 MA 0165, 2019-Ohio-1190, ¶ 2.

{¶4} In his application, Appellant disagrees with this court’s analysis and

requests that we reconsider our decision affirming his conviction and sentence.

Specifically, Appellant asserts his trial counsel rendered ineffective assistance, his

constitutional rights were violated, and the weight of the evidence was insufficient to

support his conviction. (3/27/2023 Motion for Reconsideration, p. 1).

{¶5} In Browning, we addressed Appellant’s ineffective assistance of counsel

and constitutional claims under his first assignment of error. Browning, 2023-Ohio-890,

¶ 25-54. Following a 30-paragraph discussion, this court, pursuant to Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), determined: “the record establishes

trial counsel’s representation was constitutionally effective and did not affect Appellant’s

rights. Counsel’s performance was neither deficient nor prejudicial. Appellant fails to

demonstrate ineffective assistance of counsel.” Browning at ¶ 53.

{¶6} In Browning, we also addressed Appellant’s claim that the weight of the

evidence was insufficient to support his conviction under his second assignment of error.

Id. at ¶ 55-70. Following a 16-paragraph discussion, which included a thorough factual

background and witness testimony, this court, pursuant to State v. DeHass, 10 Ohio St.2d

230, paragraph one of the syllabus (1967), determined: “The jury chose to believe the

State’s witnesses.” Browning at ¶ 69. This court, pursuant to State v. Thompkins, 78

Ohio St.3d 380, 387 (1997), further determined: “Based on the evidence presented, as

previously stated, the jury did not clearly lose its way in finding Appellant guilty of felonious

assault and endangering children.” Browning at ¶ 69.

{¶7} Upon consideration of the App.R. 26(A) application filed in the present

matter, it is apparent that Appellant has not demonstrated any obvious errors or raised

Case No. 21 CO 0026

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any issues that were not adequately addressed in our previous opinion. This court is not

persuaded that we erred as a matter of law.

{¶8} An application for reconsideration is not designed to be used in situations

wherein a party simply disagrees with the logic employed or the conclusions reached by

an appellate court. Owens, supra, at 336. App.R. 26(A) is meant to provide a mechanism

by which a party may prevent a miscarriage of justice that could arise when an appellate

court makes an obvious error or renders a decision that is not supported by the law. Id.

Appellant has made no such demonstration.

{¶9} For the foregoing reasons, Appellant’s pro se application for reconsideration

is hereby denied.

JUDGE DAVID A. D’APOLITO

JUDGE CAROL ANN ROBB

JUDGE MARK A. HANNI

NOTICE TO COUNSEL

This document constitutes a final judgment entry.

Case No. 21 CO 0026