State v. Brack ( 2011 )

[Cite as State v. Brack, 2011-Ohio-2946.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Sheila G. Farmer, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2011CA00031
:
:
JOHNNY V. BRACK : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
09CR0437
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 13, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JOHNNY V. BRACK, pro se
Prosecuting Attorney Inmate No. A584-722
Stark County, Ohio Richland Correctional Institution
P.O. Box 8107
BY: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Brack, 2011-Ohio-2946.]
Edwards, J.
{¶1} Appellant, Johnny Brack, appeals a judgment of the Stark County
Common Pleas Court dismissing his petition for post-conviction relief. Appellee is the
State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} In October 2008, members of the vice unit of the Canton Police
Department began to maintain surveillance on a home occupied by appellant and
Leisha Sherrell-Sims. The home was owned by Sims. During the six months that the
home was under surveillance, officers observed appellant present at the home and his
vehicle was parked at the residence.
{¶3} Officers obtained a search warrant for the home. The master bedroom
contained a free-standing clothes rack holding size XXL men’s clothing, which would fit
appellant. One of the officers had observed appellant wearing some of the items of
clothing while the home was under surveillance.
{¶4} Sgt. Bryan McWilliams searched the master bedroom. He noticed what
appeared to be a gun case between the bed and the night stand. When the officer
opened the case he found a nine millimeter Taurus handgun with one round in the
magazine. On top of the night stand next to the gun, McWilliams found one nine
millimeter round and mail addressed to appellant. A Rubbermaid container in the same
room contained 31 nine millimeter rounds.
{¶5} Sgt. Charles Saler stayed outside the home to direct the SWAT team and
maintain a parameter around the house. While Saler observed, appellant attempted to
Stark County App. Case No. 2011CA00031 3
leave through the back door. Saler ordered appellant to the ground and appellant
complied.
{¶6} In April of 2009, appellant was indicted with one count of possession of
cocaine and one count of having a weapon under a disability. The case initially
proceeded to trial in September, 2009. During the trial it came to the court’s attention
that a juror told a friend it was not necessary for her to hear any more evidence because
of how she felt about people of appellant’s race. The court dismissed the jury and
declared a mistrial. Appellant did not object.
{¶7} The case again proceeded to trial in January, 2010. Appellant was
acquitted of possession of cocaine, but the jury hung on the charge of weapons under
disability.
{¶8} The weapons under disability charge proceeded to a third trial on
February 17, 2010. Appellant was convicted as charged and sentenced to five years
incarceration. His direct appeal from this conviction is pending before this Court.
{¶9} On October 22, 2010, appellant filed a motion for post-conviction relief
arguing that the search of his home was executed pursuant to an invalid warrant. The
trial court dismissed the petition, finding that the issue could have been raised on direct
appeal and was therefore res judicata.
{¶10} On January 3, 2011, appellant filed a second post-conviction petition.
Appellant claimed that he was presenting newly discovered evidence which would
exonerate him. Specifically, appellant claimed that because the state had voluntarily
dismissed the civil forfeiture complaint against him based on its inability to prove that
the property sought to be forfeited was derived from or acquired through the
Stark County App. Case No. 2011CA00031 4
commission of an offense, he could not be guilty of having a weapon under disability.
He also argued that the state withheld exculpatory evidence from him in his weapons
under disability trial, namely that the state could not meet its burden to prove the civil
forfeiture. The court dismissed the petition without a hearing, noting that the currency
which was the subject of the forfeiture was related to the possession of cocaine charge
of which appellant was acquitted and had nothing to do with the weapons under
disability charge. Appellant assigns a single error:
{¶11} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING POST-
CONVICTION RELIEF ON SECOND/SUCCESSIVE PETITION.”
{¶12} Appellant argues that the court erred in sua sponte dismissing his petition
based on memory only, without an official record, and compounded the error by not
allowing the matter to “fully ripen for adjudication.”
{¶13} Appellant’s reliance on State v. Mattox (1966), 8 Ohio App.2d 65, 220
N.E.2d 708 is misplaced. In Mattox, the court denied the petition based on the court’s
personal recollection of what occurred at trial, rather than on the evidence presented at
the evidentiary hearing on the petition:
{¶14} “The record shows that the judge recounted facts bearing on the issues,
which facts were not presented in evidence. In passing upon the truthfulness of
appellant's testimony, the court relied not upon the state's evidence alone, but upon
personal recollections of what had occurred before him at the criminal trial. With
characteristic forthrightness, the court's journal entry recites that the findings of fact
were based in part upon ‘this court's own personal recollection of the events leading up
to and surrounding petitioner's trial.’ When a trier of facts relies upon personal
Stark County App. Case No. 2011CA00031 5
knowledge, he necessarily deprives the litigant of the right of confrontation, cross-
examination and an impartial tribunal.” Id. at 67.
{¶15} In the instant case, the trial court did not rely on evidence outside the
record and did not hold an evidentiary hearing. The transcript attached to appellant’s
brief, which he argues was necessary for the court to review before dismissing his
petition, relates to his motion for disclosure of the identity of the confidential informant
and the state’s motion for a continuance. This transcript is unrelated to the claims in his
post-conviction petition, and further, he did not file this transcript with his petition.
{¶16} As correctly noted by the court, the civil forfeiture case involved money
that related to the possession of cocaine charge, of which he was acquitted. The State
dismissed the forfeiture not because it had exculpatory evidence related to the weapons
under disability charge, but because once appellant was acquitted of the drug charge
the State could not prove the cash was derived through commission of the drug offense.
There was never any allegation or claim in this case that the money was derived from
commission of the weapons under disability charge.
Stark County App. Case No. 2011CA00031 6
{¶17} The assignment of error is overruled.
{¶18} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Edwards, J.
Farmer, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0414
[Cite as State v. Brack, 2011-Ohio-2946.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOHNNY V. BRACK :
:
Defendant-Appellant : CASE NO. 2011CA00031
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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JUDGES