State v. Brown , 2023 Ohio 2064 ( 2023 )

[Cite as State v. Brown, 2023-Ohio-2064.]
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, 2013-Ohio-2100, ¶ 6, citing Nob Hill E. Condominium Assn.
v. Grundstein, 8th Dist. Cuyahoga No. 95919, 2011-Ohio-2552, ¶ 11; 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, 55 Ohio St.2d 94, 378 N.E.2d 162 (1978), in light of State v. Davis,
131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, and State ex rel. Davis v. Janas,
160 Ohio St.3d 187, 2020-Ohio-1462, 155 N.E.3d 822, ¶ 11, fn. 3. 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. Janas at ¶ 11, fn. 3. 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. Id., 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, 143 Ohio St.3d 150, 2014-Ohio-4562, 35
N.E.3d 493, ¶ 3; 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, 160 Ohio St.3d 480, 2020-Ohio-2913, 159
N.E.3d 248, ¶ 30; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884
N.E.2d 568, ¶ 23; State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-
5795, 856 N.E.2d 263, ¶ 19. 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, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 38-39,
41; State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, 137 N.E.3d 1151. 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, 159 Ohio St.3d
442, 2020-Ohio-1069, 151 N.E.3d 613, ¶ 16, citing State v. Dix, 8th Dist. Cuyahoga
No. 101007, 2014-Ohio-3330, ¶ 3; 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, 2006-Ohio-2750, ¶ 9. 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, 55 Ohio St.2d 94, 378 N.E.2d 162, at 97. 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 Apanovitch at ¶ 38-39, 41. And
that continuing jurisdiction to consider the statutory or rule-based motion is no
longer impeded by an appellate decision affirming the conviction. Janas, 160 Ohio
St.3d 187, 2020-Ohio-1462, 155 N.E.3d 822, at ¶ 11, fn. 3.
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, 2022-Ohio-70, ¶ 12;2 State v.
Simmons, 8th Dist. Cuyahoga No. 109786, 2021-Ohio-1656, ¶ 21.
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, 159 Ohio St.3d 82, 2019-Ohio-5206, 147
N.E.3d 623, ¶ 14, quoting State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (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.’” Id., citing State v. Tekulve, 188 Ohio App.3d 792, 2010-
Ohio-3604, 936 N.E.2d 1030, ¶ 7 (1st Dist.), and State ex rel. Schneider v. Kreiner,
83 Ohio St.3d 203, 208, 699 N.E.2d 83 (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 Smith at 264.
Brown has not demonstrated an abuse of discretion based on the
arguments he presents. See id., citing Smith at paragraph two of the syllabus, and
State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 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, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747(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 * * *.” Id. 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, 2021-Ohio-210, ¶ 7 (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 Brown at ¶ 4, 5.
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, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27 L.Ed.2d 162(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