[Cite as State v. Brown,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 16CA15 JUHAN BROWN : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 10-CR- 603R

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 19, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BAMBI COUCH PAGE JUHAN BROWN DANIEL M. ROGERS P.I.N. a-601-361 Richland County Prosecutor's Office Richland Correctional Inst. 38 South Park Street 1001 Olivesburg Road Mansfield, OH 44902 Mansfield, OH 44901-8107 Richland County, Case No. 16CA15 2

Gwin, P.J.

{¶1} Defendant-appellant Juhan Brown [“Brown”] appeals from the February 23,

2016 Judgment Entry issued by the Richland County Court of Common Pleas overruling

his “Motion for a Final Appealable Order.”

Facts and Procedural History

{¶2} This Court upheld Brown’s convictions and sentences for 1). Trafficking in

crack cocaine (between one and ten grams) in the vicinity of a school zone, R.C.

2925.03(A), a felony of the third degree; 2). Trafficking in crack cocaine (between one

and ten grams) in the vicinity of a school zone, R.C. 2925.03(A), a felony of the third

degree; 3). Possession of crack cocaine (between ten and twenty-five grams), R.C.

2925.11, a felony of the second degree, with a forfeiture specification for $940.00 in

currency; and 4). Trafficking in crack cocaine (between one and ten grams) in the vicinity

of a school zone, R.C. 2925.03(A), a felony of the third degree. For a complete

background underlying Brown’s convictions see, State v. Brown, 5th Dist. Richland No.

11 CA 42,

. [“Brown I”]. The Ohio Supreme Court declined to exercise

jurisdiction. State v. Brown,

,

,

(Table). This Court denied Brown’s motion to re-open his appeal by Judgment Entry

filed November 2, 2012.

{¶3} Subsequently, on July 15, 2013, Brown filed a “Motion for Dismissal of

Convictions Based on Inapplicable Offenses and a Motion to Take Judicial Notice.” The

trial court, pursuant to a December 27, 2013 Judgment Entry overruled and dismissed

Brown’s “Motion for Dismissal of Convictions Based on Inapplicable Offenses and Motion

to Take Judicial Notice”, which it treated as a petition for post-conviction relief. This Court Richland County, Case No. 16CA15 3

affirmed the judgment of the trial court. State v. Brown, 5th Dist. Richland No. 14CA3,

[Brown II”]. This Court denied Brown’s motion to reconsider by

Judgment Entry filed August 27, 2014. The Ohio Supreme Court declined to exercise

jurisdiction. State v. Brown,

,

,

(Table.)

{¶4} Thereafter, on August 8, 2014, Brown filed a Motion to Vacate Sentence

Pursuant to R.C. 2945.75(A)(2). The trial court overruled that motion on October 9, 2014.

This Court affirmed the trial court’s decision. State v. Brown, 5th Dist. Richland No.

14CA83,

[“Brown III”].

{¶5} Thereafter on February 11, 2016, Brown filed a “Motion for a Final

Appealable Order.” The trial court overruled Brown’s motion by Judgment Entry filed

February 23, 2016.

Assignments of Error

{¶6} Brown raises four assignments of error,

{¶7} “I. THE TRIAL COURT'S IMPOSITION OF SENTENCE DOES NOT

CONSTITUTE A FINAL, APPEALABLE ORDER PURSUANT TO CRIMINAL RULE

32(C).

{¶8} “II. THE TRIAL COURT ABUSES ITS DISCRETION WHEN IT FAILED TO

CORRECT THE IMPOSITION OF A VOID SENTENCE BY PROPERLY NOTIFYING MR.

BROWN THE CONSEQUENCES OF VIOLATING POST-RELEASE CONTROL AS

MANDATED BY R.C. 2929.141.

{¶9} “III. THE TRIAL COURT FAILED TO PROVIDE MR. BROWN

NOTIFICATION AT SENTENCING THAT THE FAILURE TO PAY COURT COSTS AND Richland County, Case No. 16CA15 4

FINE MAY RESULT IN THE COURT ORDERING THE PERFORMANCE OF

COMMUNITY SERVICE AS REQUIRED R.C. 2947.23(A)(1) RENDERS HIS

SENTENCE VOID.

{¶10} “IV. THE TRIAL COURT WAS WITHOUT JURISDICTION TO SUSPEND

MR. BROWN'S MICHIGAN DRIVER LICENSE, BUT ONLY REQUIRED TO SUSPEND

HIS DRIVING PRIVILEGES IN OHIO.”

Pro se Appellants

{¶11} We understand that Brown has filed this appeal pro se. Nevertheless, “like

members of the bar, pro se litigants are required to comply with rules of practice and

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-

3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022,

.

We also understand that “an appellate court will ordinarily indulge a pro se litigant where

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th

Dist. No. 86154,

, ¶4 (internal quotation omitted).

{¶12} In State v. Hooks,

,

,

(2001),

the Supreme Court noted, “a reviewing court cannot add matter to the record before it

that was not a part of the trial court's proceedings, and then decide the appeal on the

basis of the new matter. See, State v. Ishmail,

,

(1978).”

It is also a longstanding rule "that the record cannot be enlarged by factual assertions in

the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411,

(Feb. 28, 1980),

citing Scioto Bank v. Columbus Union Stock Yards,

,

(1963). New material and factual assertions contained in any brief in this court may

not be considered. See, North v. Beightler,

,

, 858 Richland County, Case No. 16CA15

, ¶7, quoting Dzina v. Celebrezze,

,

,

. Therefore, we have disregarded facts and documents in the parties’

briefs that are outside of the record.

{¶13} In the interests of justice, we shall attempt to consider Brown’s assignments

of error.

Post-conviction Relief

{¶14} In the syllabus of State v. Reynolds,

, 1997–Ohio–304,

the Supreme Court of Ohio set forth the standard by which post-

conviction motions are to be reviewed in light of R.C. 2953.21: “Where a criminal

defendant, subsequent to his or her direct appeal, files a motion seeking vacation or

correction of his or her sentence on the basis that his or her constitutional rights have

been violated, such a motion is a petition for post-conviction relief as defined in R.C.

2953.21.”

{¶15} The Reynolds court explained that despite its caption, a motion meets the

definition of a petition for post-conviction relief if it is (1) filed subsequent to a direct

appeal; (2) claims a denial of constitutional rights; (3) seeks to render the judgment void;

and (4) asks for vacation of the judgment and sentence.

.

{¶16} Accordingly, in reviewing Brown’s motion, we find it to be a petition for post-

conviction relief (PCR) as defined in R.C. 2953.21. The motion was filed subsequent to

Brown’s direct appeal, claimed a denial of his constitutional rights and sought to render

the judgment void and asked for vacation of the judgment and sentence. Richland County, Case No. 16CA15 6

{¶17} R.C. 2953.23(A) provides that a defendant may file only one petition for

post-conviction relief, unless he can satisfy one of the narrow exceptions set forth in the

statute. This statute provides in pertinent part:

(A) Whether a hearing is or is not held on a petition filed pursuant to

section 2953.21 of the Revised Code, a court may not entertain a petition

filed after the expiration of the period prescribed in division (A) of that

section or a second petition or successive petitions for similar relief on

behalf of a petitioner unless both of the following apply:

(1) Either of the following applies:

(a) 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.

(b) 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.

(2) The petitioner shows 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 or,

if the claim challenges a sentence of death that, but for constitutional error

at the sentencing hearing, no reasonable factfinder would have found the

petitioner eligible for the death sentence. Richland County, Case No. 16CA15 7

{¶18} In the case at bar, each of Brown’s assignments of error concern the

imposition of sentence. Thus, Brown was aware of the facts upon which his motion to

vacate was based on March 31 2011. As such, Brown has failed to meet his burden

under R.C. 2953.23(A)(1) to file an untimely petition for post-conviction relief and the trial

court therefore lacked jurisdiction to entertain the petition. See State v. Kelly, 6th Dist.

No. L–05–1237, 2006–Ohio–1399, at ¶ 12; State v. Smith, 9th Dist. No. 05CA008772,

2006–Ohio–2045 at ¶ 9; State v. Luther, 9th Dist. No. 05CA008770, 2006–Ohio–2280 at

¶ 13; State v. Downey, 5th Dist. Stark No. 2013CA00157,

. We find

that the trial court’s denial of Brown’s “Motion for a Final Appealable Order” is proper

because the court was not statutorily authorized to entertain the petition because of its

untimeliness.

I.

{¶19} In his first assignment of error, Brown contends that his sentencing entry is

not a final appealable order because the trial court failed to advise him during the

sentencing hearing that, should he commit a felony while on post-release control, his

post-release control could be terminated and he could be sentenced to an additional term

of imprisonment equal to the greater of the remaining period of post release control or

one year for committing a felony while on post release control; the trial court failed to

advise him that failure to pay court costs could result in an order to perform community

service; and the trial court improperly suspended his driver’s license.

1. Post release control notification does not require notification of the

penalty provisions in R.C. 2929.141(A). Richland County, Case No. 16CA15 8

{¶20} We begin by noting that the sentencing entry in Brown’s case was filed

March 31, 2011. At that time, R.C. 2929.19 provided that the trial court,

(c) Notify the offender that the offender will be supervised under

section 2967.28 of the Revised Code after the offender leaves prison if the

offender is being sentenced for a felony of the first degree or second

degree, for a felony sex offense, or for a felony of the third degree that is

not a felony sex offense and in the commission of which the offender caused

or threatened to cause physical harm to a person. If a court imposes a

sentence including a prison term of a type described in division (B)(3)(c) of

this section on or after July 11, 2006, the failure of a court to notify the

offender pursuant to division (B)(3)(c) of this section that the offender will

be supervised under section 2967.28 of the Revised Code after the offender

leaves prison or to include in the judgment of conviction entered on the

journal a statement to that effect does not negate, limit, or otherwise affect

the mandatory period of supervision that is required for the offender under

division (B) of section 2967.28 of the Revised Code. Section 2929.191 of

the Revised Code applies if, prior to July 11, 2006, a court imposed a

sentence including a prison term of a type described in division (B)(3)(c) of

this section and failed to notify the offender pursuant to division (B)(3)(c) of

this section regarding post-release control or to include in the judgment of

conviction entered on the journal or in the sentence a statement regarding

post-release control. Richland County, Case No. 16CA15 9

(d) Notify the offender that the offender may be supervised under

section 2967.28 of the Revised Code after the offender leaves prison if the

offender is being sentenced for a felony of the third, fourth, or fifth degree

that is not subject to division (B)(3)(c) of this section. Section 2929.191 of

the Revised Code applies if, prior to July 11, 2006, a court imposed a

sentence including a prison term of a type described in division (B)(3)(d) of

this section and failed to notify the offender pursuant to division (B)(3)(d) of

this section regarding post-release control or to include in the judgment of

conviction entered on the journal or in the sentence a statement regarding

post-release control.

(e) Notify the offender that, if a period of supervision is imposed

following the offender’s release from prison, as described in division

(B)(3)(c) or (d) of this section, and if the offender violates that supervision

or a condition of post-release control imposed under division (B) of section

2967.131 of the Revised Code, the parole board may impose a prison term,

as part of the sentence, of up to one-half of the stated prison term originally

imposed upon the offender. If a court imposes a sentence including a prison

term on or after July 11, 2006, the failure of a court to notify the offender

pursuant to division (B)(3)(e) of this section that the parole board may

impose a prison term as described in division (B)(3)(e) of this section for a

violation of that supervision or a condition of post-release control imposed

under division (B) of section 2967.131 of the Revised Code or to include in

the judgment of conviction entered on the journal a statement to that effect Richland County, Case No. 16CA15 10

does not negate, limit, or otherwise affect the authority of the parole board

to so impose a prison term for a violation of that nature if, pursuant to

division (D)(1) of section 2967.28 of the Revised Code, the parole board

notifies the offender prior to the offender’s release of the board’s authority

to so impose a prison term. Section 2929.191 of the Revised Code applies

if, prior to July 11, 2006, a court imposed a sentence including a prison term

and failed to notify the offender pursuant to division (B)(3)(e) of this section

regarding the possibility of the parole board imposing a prison term for a

violation of supervision or a condition of post-release control.

{¶21} In the case at bar, the trial court informed Brown as follows,

Three years post-release control, meaning that once you serve

whatever time you will serve in this matter, you will be on post-release

control for a period of three years. A violation of post-release control rules

will put you in a position to be sent back to prison for up to one half the time

you’ve already done.

Sent. T. March 28, 2011 at 795.

{¶22} The Sentencing Entry filed March 31, 2011 provided the following

notification,

This sentence includes 3 years of mandatory post-release control

(PRC) with a condition to complete Richland County ReEntry Court if the

defendant resides in Richland County. Violation of PRC could result in

additional prison time up to 50% of this sentence. If the violation is a new Richland County, Case No. 16CA15 11

felony, the defendant could receive a new prison term in this case of the

greater of one year or the time remaining on the post-release control.

{¶23} Thus, Brown was notified in accordance with R.C. 2929.14(B)(3)(c) of the

consequences of violating post-release control. However, Brown argues that the trial

court was required to notify him in accordance with R.C. 2929.141 that, should he commit

a felony while on post-release control, his post-release control could be terminated and

he could be sentenced to an additional term of imprisonment equal to the greater of the

remaining period of post-release control or one year and that the sentence would run

consecutively to any new prison term imposed for the new felony.

{¶24} In State v. Adkins, 4th Dist. Lawrence No. 14CA29, 2015–Ohio–2830, the

Court observed,

We are cognizant that a number of other appellate districts have

considered whether the post-release control notification of R.C.

2929.19(B)(2)(e) must include notification of the penalty provisions in R .C.

2929.141(A)(1)-(2) and have held that this notification is not required. See

State v. Bybee, 2015–Ohio–878,

(8th Dist.) ( ... refusing to

extend the post-release control notification requirements set forth in State

v. Jordan,

, 2004–Ohio–6085,

and

codified in R.C. 2929.19(B) to require additional notification of penalties

under R.C. 2929.141 but agreeing with Mullins, infra, that it is a better

practice to do so); State v. Burgett, 3rd Dist. Marion App. No. 9–10–37,

2010–Ohio–5945 (“we find no such requirement contained in the statute

mandating the trial court to notify a defendant of all the possible Richland County, Case No. 16CA15 12

consequences of his commission of a felony while on post-release control,

as set forth under R.C. 2929.141”); State v. Lane, 3rd Dist. Allen App. No.

1–10–10, 2010–Ohio–4819 (the possible consequences of the commission

of a felony under R.C. 2929.141 are discretionary options of the trial court,

and no notice to a defendant of those options is required); State v.

Witherspoon, 8th Dist. Cuyahoga No. 90498, 2008–Ohio–4092; State v.

Mullins, 12th Dist. Butler App. No. CA2007–01–028, 2008–Ohio–1995, ¶ 14

(holding that there is no requirement that the trial court at the sentencing

hearing notify defendant of the possible penalties under R.C. 2929.141,

though “we do note that the better practice would be to include notification

of the potential implications of R.C. 2929.141 when notifying defendants of

the other potential implications of post-release control”); State v. Susany,

7th Dist. Mahoning App. No. 07MA7, 2008–Ohio-1543 (there is no

requirement that the defendant must also be informed of the penalties under

R.C. 2929.141 as part of the notification required under R.C. 2929.19(B)).

{¶25} We find Adkins to be persuasive and similarly find no error in the trial court’s

failure, at Brown’s sentencing on his original offense, to inform him of the potential

sentence for committing a new felony while on post release control.

2. Failure to advise that the failure to pay mandatory court costs could result

in the trial court ordering him to perform community service.

{¶26} The Ohio Supreme Court has held that “[t]he civil nature of the imposition

of court costs does not create the taint on the criminal sentence that the failure to inform

a defendant of post-release control does.” State v. Chapman, 2015–Ohio–3114 at ¶ 11 Richland County, Case No. 16CA15 13

quoting State v. Joseph,

, 2010–Ohio–954,

(2010). Therefore, the failure of the court to notify a defendant of the obligation to pay

costs so that he may move for a waiver of costs may be error cognizable on direct appeal,

but it does not render the sentence void.

See, State v. Massey, 5th Dist. Delaware

No. 15 CAA 05 0043,

.

{¶27} Further, the Supreme Court of Ohio had held that “the time to appeal a trial

court’s failure to provide the notice required by R.C. 2947.23(A)(1) begins to run from the

date of the trial court’s sentencing entry. See State v. Threatt,

, 2006–

Ohio–905,

, paragraph three of the syllabus (a sentencing entry is a final,

appealable order as to costs.).” State v. Smith,

, 2012–Ohio–781,

, ¶ 10.

{¶28} Accordingly, a defendant must challenge on direct appeal the trial court’s

failure to provide the notice required by R.C. 2947.23(A)(1)(a), and the failure to do so

renders the issue barred by res judicata. See State v. Thompson, 2nd Dist. Montgomery

No. 26364, 2015–Ohio–1984 (“Since Thompson could have raised his argument

regarding the court’s failure to comply with R.C. 2947.23 in his direct appeal from his 2009

conviction and failed to do so, res judicata bars him from subsequently raising the issue.”);

see also, e.g., State v. Barnes, 12th Dist. Warren No. CA2014–03–049, 2015–Ohio–651,

¶ 11 (“While a void judgment may be challenged at any time, a trial court’s failure to

properly advise a defendant as to court costs does not render a judgment void.”); State

v. Massey at ¶24. Richland County, Case No. 16CA15 14

3. Suspension of driver license.

{¶29} App.R. 16(A)(7) states that appellant shall include in his brief "[a]n argument

containing the contentions of the appellant with respect to each assignment of error

presented for review and the reasons in support of the contentions, with citations to the

authorities, statutes, and parts of the record on which appellant relies. The argument may

be preceded by a summary.” [Emphasis added].

{¶30} Because Brown fails to properly reference portions of the record supporting

his claim that he had only a Michigan driver’s license, Brown cannot demonstrate the

claimed error. See Daniels v. Santic, 11th Dist. Geauga No. 2004-G-2570, 2005-Ohio-

1101, ¶ 13-15. See, also, App.R. 12(A)(2) and 16(A)(7); Graham v. City of Findlay Police

Dept. 3rd Dist. Hancock No. 5–01–32, 2002–Ohio–1215 (stating, "[t]his court is not

obliged to search the record for some evidence of claimed error. * * * Rather, an appellant

must tell the appellate court specifically where the trial court's alleged errors may be

located in the transcript"); State ex rel. Physicians Commt. for Responsible Medicine v.

Ohio State Univ. Bd. of Trustees,

,

, ¶ 13; State ex rel.

Petro v. Gold,

,

(10th Dist.), ¶ 94, appeal not allowed,

,

, reconsideration denied,

,

2006- Ohio-5083; Porter v. Keefe, 6th Dist. Erie No. E-02-018,

, ¶109-

113.

{¶31} Brown’s first assignment of error is overruled.

II.

{¶32} In his second assignment of error, Brown contends that his sentence is void

because the trial court failed to notify him of the consequences of violating post-release Richland County, Case No. 16CA15 15

control; the trial court failed to impose post-release control on all counts and the trial court

failed to specify the order in which Brown’s consecutive sentences are to run.

1. Post-release control.

{¶33} We have found in our disposition of Brown’s first assignment of error that

the trial court properly advised Brown concerning post-release control.

2. Failure to impose post-release control on each count.

{¶34} In multiple-offense cases, the sentencing court need only notify the

defendant of the longest applicable period of post-release control. State v. Cortez, 5th

Dist. Licking No. 15-CA-55,

, ¶14-¶15. See also, R.C. 2967.28(F)(4)(c).

3. Order of consecutive sentences.

{¶35} R.C. 2929.14(E)(6) in effect at the time Brown was sentenced provides that

when consecutive prison terms are imposed, the term to be served is the aggregate of all

of the terms so imposed.

{¶36} We must be mindful of the “ * * * elementary proposition of law that an

appellant, in order to secure reversal of a judgment against him, must not only show some

error but must also show that that error was prejudicial to him.” Smith v. Flesher,

,

(1967); Accord, Hampel v. Food Ingredients Specialties,

Inc.,

, 185,

,

State v. Stanton,

,

(1968); Wachovia Mtg. Corp. v Aleshire, 5th Dist.

Licking No. 09 CA 4,

, ¶16. See, also, App.R. 12(D).

{¶37} In the case at bar, Brown will serve the aggregate of all consecutive

sentences imposed. Brown has failed to elucidate how the failure to specify a particular

order in which the sentences are to be served has prejudiced him. Richland County, Case No. 16CA15 16

{¶38} Brown’s second assignment of error is overruled.

III, and IV

{¶39} Brown argues in his third assignment of error that the trial court erred in

informing him concerning the imposition of court costs. In his fourth assignment of error,

Brown contends that the trial court improperly suspended his driver’s license.

{¶40} Another proper basis upon which to deny a petition for post-conviction relief

without holding an evidentiary hearing is res judicata. State v. Lentz,

,

(1994); State v. Phillips, 9th Dist. Summit No. 20692, 2002–Ohio–

823.

{¶41} Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or on an appeal from that judgment. State v.

Szefcyk,

,

(1996), syllabus, approving and following State

v. Perry,

,

(1967), paragraph nine of the syllabus. It is

well settled that, “pursuant to res judicata, a defendant cannot raise an issue in a [petition]

for post-conviction relief if he or she could have raised the issue on direct appeal.” State

v. Reynolds,

,

(1997). Accordingly, “[t]o survive

preclusion by res judicata, a petitioner must produce new evidence that would render the

judgment void or voidable and must also show that he could not have appealed the claim

based upon information contained in the original record.” State v. Nemchik, 9th Dist. Richland County, Case No. 16CA15 17

Lorain No. 98CA007279,

(Mar. 8, 2000); see, also, State v. Ferko, 9th

Dist. Summit No. 20608,

(Oct. 3, 2001).

{¶42} In the case at bar, the facts and information upon which Brown bases his

third and fourth assignments of error are contained in the trial court record. Brown has

appealed the trial court’s decision and judgment entry on three prior occasions.

{¶43} Brown’s third and fourth assignments of error are overruled.

{¶44} The judgment of the Richland County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur