[Cite as State v. Brown,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112027 v. :

JOHNNY BROWN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 22, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-08-510427-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Katherine Mullin and Gregory J. Ochocki, Assistant Prosecuting Attorneys, for appellee.

Mary Catherine Corrigan and Allison F. Hibbard, for appellant.

SEAN C. GALLAGHER, J.:

Johnny Brown appeals the denial of his third motion to withdraw his

guilty plea under Crim.R. 32.1, all of which were filed following his 2008 convictions

stemming from his participation in causing the death of Charles Goodwin. Brown is in the midst of serving a 17 years-to-life aggregate term of imprisonment for the

felony murder conviction in violation of R.C. 2903.02(B) (providing that “no person

shall cause the death of another as a proximate result of the offender’s committing

or attempting to commit an offense of violence”) and for his having committed that

offense while on probation or under community-control sanctions. For the

following reasons, the trial court’s decision is affirmed.

Under Crim.R. 32.1, “A motion to withdraw a plea of guilty or no

contest may be made only before sentence is imposed; but to correct manifest

injustice the court after sentence may set aside the judgment of conviction and

permit the defendant to withdraw his or her plea.”

Brown, in attempting to demonstrate his need to withdraw a guilty

plea, proffers two affidavits proclaiming his innocence in causing the death of

Goodwin, who was beaten to death during an altercation with Brown and others.

Brown makes no effort to otherwise fill in the factual gaps. He instead solely relies

on the contents of his postsentence motion to withdraw his plea. The transcript of

the change-of-plea colloquy is included within the record, but that lacks a

description of the events leading to Goodwin’s death.1

1 It is not this court’s responsibility to scour the record to find information relevant to the appellate arguments. Mayfair Village Condominium Owners Assn. v. Grynko, 8th Dist. Cuyahoga No. 99264,

, citing Nob Hill E. Condominium Assn. v. Grundstein, 8th Dist. Cuyahoga No. 95919,

; Concrete Creations & Landscape Design LLC v. Wilkinson, 7th Dist. Carroll No. 20 CA 0946, 2021-Ohio- 2508, ¶ 52. App.R. 16(A)(6) requires the parties to identify the portion of the record establishing the information relevant to the arguments presented. Thus, and although this should go without saying, our conclusion with respect to the state of the record is a direct result of the manner in which Brown presented it. In the first affidavit, the mother of Brown’s child, Channel Burns, who

was present during the murder of Goodwin, claims that Goodwin punched Brown

and then other “people” jumped on Goodwin, who was “basically unconscious”

before Brown got back to his feet. Another defendant, Paris Moore, supposedly put

Goodwin in a headlock, causing Goodwin to pass out and then he, not Brown,

stomped on Goodwin’s head. Those purported facts are of little consequence in light

of the limited record. Brown has not identified any portion of the appellate record

containing evidence of how Goodwin’s death was brought about, although from

Burns’s statement, the state’s likely theory can be surmised. Burns now remembers

that Brown “exclaimed ‘child, you’re over-doing it’” during the altercation. To whom

that statement was directed is not clear. And importantly, she did not disclose

whether that statement was made before or after the beating ended.

The second affidavit is from Ralph Brown, Brown’s brother. Ralph

evidently pleaded guilty to involuntary manslaughter for his involvement in

Goodwin’s murder. Ralph reiterated that Goodwin threw the first punch before

“other people” hit or punched Goodwin. Ralph was unable to provide information

as to Brown’s conduct after the first punch other than “I never saw my brother stomp

on [Goodwin’s] head[,]” before Ralph ran from the scene, but he did “not believe

that [Brown] stomped on [Goodwin’s] head.”

The fact that Brown was punched first or that other people were

involved in the attack on Goodwin is far from novel. According to the transcript of

the sentencing hearing, Brown’s trial counsel told the trial court: “[Brown] initially started off with conversation [with Goodwin] and then [Brown] was punched and

that set the whole matter into play. [Brown] was the first one that was hit that night,

[and] unfortunately the matter clearly went too far[;] Mr. [Goodwin] lost his life.”

Tr. 18:15-22. Thus, Brown’s counsel was aware of Brown’s version of events. The

affidavits provide no new insight. Further, according to Brown’s trial counsel, “I

don’t think he was the main player[,] but I think he was certainly part of that cast of

individuals that have come forth and pled guilty to various offenses.” Tr. 19:2-5. In

other words, Brown’s counsel believed, ostensibly from his conversations with

Brown, that “other people” were involved in the killing but Brown was criminally

responsible for his conduct that in part brought about Goodwin’s death.

In this appeal, the parties focus their arguments on the nuances of

belated or successive postsentence motions to withdraw guilty pleas involving the

continued application of State ex rel. Special Prosecutors v. Judges, Court of

Common Pleas,

,

(1978), in light of State v. Davis,

,

,

, and State ex rel. Davis v. Janas,

,

,

. In Special

Prosecutors, the Ohio Supreme Court unambiguously held that “Crim. R. 32.1 does

not vest jurisdiction in the trial court to maintain and determine a motion to

withdraw the guilty plea subsequent to an appeal and an affirmance by the appellate

court.” Id. at ¶ 97. In Janas, after describing Special Prosecutors as a general rule

that the trial court “loses jurisdiction” to modify its judgment following a direct

appeal, the Ohio Supreme Court concluded that Special Prosecutors also does not apply to any motion filed under the criminal rules or permitted by statute, including

Crim.R. 32.1 motions.

. According to the Ohio Supreme Court,

“Special Prosecutors does not bar the trial court’s jurisdiction over posttrial motions

permitted by the Ohio Rules of Criminal Procedure,” which expressly includes

Crim.R. 32.1.

citing Davis.

Special Prosecutors, as it relates to finality following an appellate

affirmance of convictions, was limited to the proposition that a trial court loses

continuing jurisdiction over postconviction proceedings following an appellate

affirmance, even if that continuing jurisdiction is established by a criminal rule. In

general, a trial court loses jurisdiction to modify a conviction upon issuing the final

entry of conviction, see State v. Gilbert,

,

,

; therefore, Special Prosecutors stood for the proposition that a trial

court is divested of its continuing jurisdiction to review postsentence motions

following the appellate court’s affirmance of a conviction in a direct appeal. This

distinction was overlooked in Janas, but it impacts the viability of Special

Prosecutors on the finality question.

A trial court’s continuing jurisdiction to act in postconviction

proceedings is limited. State v. Harper,

,

,

; State v. Simpkins,

,

,

, ¶ 23; State ex rel. Cruzado v. Zaleski,

, 2006-Ohio-

5795,

. There must be a jurisdictional basis for the trial court

to act or to decide a postconviction motion following the final entry of conviction. State v. Apanovitch,

,

,

; State v. Parker,

,

,

. If a trial

court lacks continuing jurisdiction to consider postconviction motions, “any ruling

on such a motion is a nullity.” State ex rel. Dobson v. Handwork,

,

,

, citing State v. Dix, 8th Dist. Cuyahoga

No. 101007,

; State v. Ford, 9th Dist. Summit No. 26466, 2012-

Ohio-5050, ¶ 8-10; State v. Wilson, 10th Dist. Franklin Nos. 05AP-939, 05AP-940,

and 05AP-941,

. As a result, the only postconviction motions a

trial court is authorized to consider are those expressly provided by a criminal rule

or statute. See generally Apanovitch.

Special Prosecutors once concluded that the trial court is divested of

that continuing jurisdiction to consider a motion filed under Crim.R. 32.1 after the

appellate court affirms a final conviction because the rule does not authorize a trial

court to take actions inconsistent with that appellate affirmance. Special

Prosecutors,

,

. That presented an additional

hurdle to a trial court’s postconviction authority to act. But after the slow walk-back

of that general rule with respect to other motions provided for under the criminal

rules, Special Prosecutors no longer applies to Crim.R. 32.1 motions. See Janas.

The only motions a trial court possesses continuing jurisdiction to consider,

following the final entry of conviction, arise under a statute or the Criminal Rules —

unless the motion is to vacate a void judgment. See

. And

that continuing jurisdiction to consider the statutory or rule-based motion is no longer impeded by an appellate decision affirming the conviction. Janas,

,

,

.

This district’s continued adherence to Special Prosecutors in

disposing of any postconviction motions authorized by statute or the criminal rules

is questionable in light of the overlooked conclusions reached in Janas. See, e.g.,

State v. Lewis, 8th Dist. Cuyahoga No. 110448,

;2 State v.

Simmons, 8th Dist. Cuyahoga No. 109786,

.

Notwithstanding, Brown has not demonstrated an entitlement to

relief.

In order to withdraw a plea of guilty after the issuance of the final

entry of conviction, the offender “‘has the burden of establishing the existence of

manifest injustice.’” State v. Straley,

,

,

, ¶ 14, quoting State v. Smith,

,

(1977),

paragraph one of the syllabus. “[M]anifest injustice” is defined as a “‘clear or openly

unjust act,’ and relates to a fundamental flaw in the plea proceedings resulting in a

‘miscarriage of justice.’”

citing State v. Tekulve,

, 2010-

Ohio-3604,

(1st Dist.), and State ex rel. Schneider v. Kreiner,

,

(1998). Although there is no set deadline

for filing the motion to withdraw a plea after a sentence is imposed, any “‘undue

delay between the occurrence of the alleged cause for withdrawal and the filing of

2 Unlike in this appeal, the parties did not brief the impact of Janas in Lewis. the motion is a factor adversely affecting the credibility of the movant and militating

against the granting of the motion.’” Id. at ¶ 15, quoting

.

Brown has not demonstrated an abuse of discretion based on the

arguments he presents. See

citing Smith at paragraph two of the syllabus, and

State v. Francis,

,

,

, ¶ 32. As

the state aptly observes, it has long been recognized that “[t]he rule that a plea must

be intelligently made to be valid does not require that a plea be vulnerable to later

attack if the defendant did not correctly assess every relevant factor entering into his

decision.” Brady v. United States,

,

,

(1970). “A defendant is not entitled to withdraw his plea merely because he

discovers long after the plea has been accepted that his calculus misapprehended

the quality of the State’s case * * *.”

Brady is instructive.

Brown’s twofold claim in this appeal starts with his attempt to

demonstrate that his trial counsel rendered ineffective assistance by failing to

investigate “exculpatory” witnesses, and that but for that failure to investigate, he

would not have pleaded guilty. According to Brown, “[t]here can truly be no

question that had [he] known about [Burns’s and Ralph’s] testimony, he would have

refused this plea and insisted upon proceeding to trial.” For the sake of the

ineffective assistance of counsel claim, we will overlook the fact that both affiants

expressly state that they purposely withheld themselves from Brown’s defense:

Ralph because he exercised his right to remain silent in anticipation of his own trial based on the underlying events,3 and Burns because she feared being implicated in

the murder given her presence and relationship with the Brown brothers.4

Even if Brown were given every benefit of every doubt regarding his

latest attempt to withdraw his guilty plea, the delay between his motion and the

occurrence of the alleged cause for the withdrawal is too great.

Brown’s latest motion is entirely based on information that he had

available at the time of the original conviction in 2008. The affiants both have

personal relationships with Brown, and both were present with Brown on the night

of the murder — information Brown would have been aware of at the time of the

original proceeding and the resulting guilty plea. See, e.g., State v. Mitchell, 8th

Dist. Cuyahoga No. 109634,

(defendant was aware of the issues

cited as the basis for postconviction relief, and therefore, he could not demonstrate

that his plea was anything but knowing, voluntary, and intelligent). Brown does not

claim to have been incapacitated at the time he participated in Goodwin’s killing to

such an extent that he was unaware of Ralph’s and Burns’s presence. Further, the

alleged facts contained in the affidavits would have been known to him since they

relate to his point of view and his trial counsel demonstrated an understanding of

Brown’s version of the altercation leading to Goodwin’s death.

3 “While my brother was facing his charges, I never spoke to * * * his attorney[,] about what I saw. I was afraid to tell the truth in 2008 because I was facing my own charges, and had a right to remain silent.” Affidavit of Ralph

.

4 “I never was willing to testify on behalf of Johnny because it seemed like everyone

was being charged with murder, and I was terrified I would be as well.” Affidavit of Channel Burns at ¶ 13. The time for seeking to withdraw his guilty plea based on Brown’s

version of events, which directly conflicts with his unreserved5 admission of guilt to

the conduct leading to Goodwin’s death, has long-since passed. The undue delay in

attempting to withdraw a guilty plea based on extrinsic evidence known to Brown at

the time of his admission of guilt militates against the credibility of his request to

declare the existence of a manifest injustice.

It cannot be concluded that the trial court abused its discretion in

denying the third postsentence motion to withdraw the guilty plea. The decision of

the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

5 See North Carolina v. Alford,

,

,

(1970) (permitting courts to accept guilty pleas where defendants profess innocence). A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________ SEAN C. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, P.J., and EMANUELLA D. GROVES, J., CONCUR