State v. Brown , 2022 Ohio 2645 ( 2022 )

[Cite as State v. Brown, 2022-Ohio-2645.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellant,
v.
ROY WILTON BROWN,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0012
Motion for Reopening
BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Denied.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Daniel P. Fry, Assistant
Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio 43950, for Plaintiff-
Appellee (No Response Filed) and
Roy Wilton Brown, Pro Se, Lebanon Correctional Institution, P.O. Box 56, Lebanon,
Ohio 45036, Defendant-Appellant.
Dated: June 30, 2022
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PER CURIAM.
{¶1} By way of background, on April 18, 2022, Appellant, Roy Wilton Brown, filed
his first pro se App.R. 26(B) application to reopen his direct appeal in State v. Brown, 7th
Dist. Belmont No. 21 BE 0012, 2022-Ohio-893.
{¶2} Appellant was consecutively sentenced to seven years in prison for
tampering with evidence, possession of heroin, and possession of cocaine following a
guilty plea. In Appellant’s direct appeal, appellate counsel raised two assignments of
error: (1) that the trial court erred in denying Appellant’s pre-sentence motion to withdraw
his guilty plea following a hearing on the basis that his initial retained trial counsel’s
assistance was ineffective; and (2) that Appellant’s second retained trial counsel (counsel
that filed and argued his motion to withdraw guilty plea) also rendered ineffective
assistance. Id. at ¶ 1. This court found no merit in either argument and affirmed the trial
court’s judgment on March 21, 2022. Id. at ¶ 28.
{¶3} Although Appellant’s April 18, 2022 first application for reopening was timely
filed, this court found, on May 31, 2022, that he failed to meet the standard for reopening
the appeal. State v. Brown, 7th Dist. Belmont No. 21 BE 0012, 2022-Ohio-1917, ¶ 3;
Brown, 2022-Ohio-893; App.R. 26(B)(1) and (2)(b); State v. Romeo, 7th Dist. Mahoning
No. 14 MA 0060, 2018-Ohio-2482, ¶ 6.
{¶4} In his first application for reopening, Appellant took issue with his
consecutive sentence, namely arguing that his appellate counsel was ineffective because
his sentence should have ran concurrently. (4/18/2022 Appellant’s First Application for
Reopening, p. 2-3). Regarding Appellant’s first application, this court held:
Because the trial court had full discretion to impose any sentence within the
authorized statutory ranges, and Appellant’s maximum terms are within the
authorized statutory ranges for third and fifth-degree felonies, his
consecutive sentence is not contrary to law. See R.C. 2929.14; [State v.]
Burkhart, [7th Dist. Belmont No. 18 BE 0020, 2019-Ohio-2711,] ¶ 16. Also,
because the offenses were committed separately and with a separate
animus or motivation, the trial court did not err in failing to merge the
convictions. See, e.g., State v. Coffman, 12th Dist. Butler No. CA2015-01-
Case No. 21 BE 0012
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014, 2015-Ohio-2990, ¶ 24. Therefore, we fail to see any ineffective
assistance of appellate counsel warranting a reopening.
Brown, 2022-Ohio-1917, ¶ 16.
{¶5} Thus, because Appellant failed to comply with the requirements set forth in
App.R. 26(B) and failed to present issues that establish a colorable claim of ineffective
assistance of appellate counsel, this court denied his first App.R. 26(B) application for
reopening. Id. at ¶ 17-18.
{¶6} Presently before us is Appellant’s pro se “Objection and Reconsideration”
filed on June 10, 2022. In his current application, which this court construes as his second
pro se App.R. 26(B) application to reopen his direct appeal in Brown, 2022-Ohio-893,
Appellant again takes issue with his consecutive sentence, namely arguing that his
appellate counsel was ineffective because his sentence should have ran concurrently.
(6/10/2022 Appellant’s Second Application for Reopening, p. 1-2). Appellant concludes
by “humbly request[ing] a reopening on the merits contained in [his] motion.” (Id. at p. 3).
{¶7} Appellant is attempting for the second time to reopen the judgment rendered
by this court in Brown, 2022-Ohio-893. Appellant again fails to comply with the
requirements set forth in App.R. 26(B) and fails to present issues that establish a
colorable claim of ineffective assistance of appellate counsel. Furthermore, Appellant’s
arguments were either raised or could have been raised in his prior reopening and, thus,
are barred by the doctrine of res judicata. Brick Processors, Inc. v. Culbertson, 2 Ohio
App.3d 478, paragraph one of the syllabus, 442 N.E.2d 1313 (8th Dist.1981). Also, we
find no case authority authorizing a party to file successive applications for reopening
and/or reconsiderations of applications for reopening.
{¶8} Accordingly, Appellant’s pro se “Objection and Reconsideration,” construed
by this court as Appellant’s second pro se App.R. 26(B) application for reopening, is
hereby denied.
Case No. 21 BE 0012
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JUDGE DAVID A. D’APOLITO
JUDGE GENE DONOFRIO
JUDGE CAROL ANN ROBB
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 BE 0012