[Cite as State v. Brown, 2017-Ohio-7833.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 2017 CA 00093
BRENT EARL BROWN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 2016 CR 02107


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        September 25, 2017



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JOHN D. FERRERO                               BRENT EARL BROWN
PROSECUTING ATTORNEY                          PRO SE
KRISTINE W. BEARD                             BELMONT CORR. INSTITUTION
ASSISTANT PROSECUTOR                          Post Office Box 540
110 Central Plaza South, Suite 510            St. Clairsville, Ohio 43950
Canton, Ohio 44702-1414
Stark County, Case No. 2017 CA 00093                                                       2

Wise, John, J.

      {¶1}    Appellant Brent Earl Brown appeals the decision of the Court of Common

Pleas, Stark County, denying his motion to correct sentence regarding his 2015 conviction

for felonious assault. Appellee is the State of Ohio. The relevant procedural facts leading

to this appeal are as follows.

      {¶2}    On or about December 14, 2014, Appellant Brown was involved in incidents

in which he physically assaulted the police chief of Waynesburg, Ohio, damaged public

property, and allegedly assaulted a female household member. As a result of the

aforesaid events, the Stark County Grand Jury indicted appellant on two felony counts

and one misdemeanor count on February 10, 2015.

      {¶3}    On April 23, 2015, appellant appeared with counsel in the trial court and

pled guilty to one count of felonious assault (a felony of the first degree) and one count of

criminal damaging (a misdemeanor of the first degree). Via a judgment entry issued on

April 28, 2015, appellant was sentenced to four years in prison on the count of felonious

assault and ninety days in jail on the count of criminal damaging, to be served

concurrently.1

      {¶4}    Although appellant’s written plea form indicated that a prison term for

felonious assault was mandatory, the aforesaid April 28, 2015 sentencing entry did not

include this language. Accordingly, the trial court issued a judgment entry nunc pro tunc

on May 8, 2015 stating inter alia that his four-year term was mandatory.

      {¶5}    Appellant did not file a timely direct appeal of his conviction and sentence.



1   On the same day, the court issued a separate entry of nolle prosequi by the prosecutor,
thereby granting dismissal of the additional count of domestic violence (a felony of the
fifth degree).
Stark County, Case No. 2017 CA 00093                                                         3

      {¶6}    On December 3, 2015, appellant filed a pro se “motion to compel State to

specifically perform plea agreement.” On December 4, 2015, the trial court issued a

judgment entry indicating it had construed the motion as a request for judicial release,

and denying same without a hearing.

      {¶7}    On June 9, 2016, appellant filed a pro se “motion for sentence reduction.”

In essence, appellant therein maintained that he had not understood the mandatory

nature of his sentence for felonious assault at the time he had entered his guilty pleas.

The trial court denied the motion on June 14, 2016, without a hearing.

      {¶8}    On April 19, 2017, appellant filed a pro se motion to correct his sentence,

claiming that he had agreed to plead guilty with the understanding that his four-year

sentence for felonious assault would be non-mandatory. On May 3, 2017, the State filed

a response urging dismissal of appellant’s motion, on the grounds that it was an untimely

petition for post-conviction relief, that it was barred by the doctrine of res judicata, and/or

that it lacked legal merit based on the extant record.

      {¶9}    On May 15, 2017, the trial court denied appellant’s motion, citing the

reasoning set forth in the State’s response.

      {¶10} On June 8, 2017, appellant filed a notice of appeal. He herein raises the

following two Assignments of Error:

      {¶11} “I. THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION BY FAILING TO

CORRECT THE SENTENCE OF APPELLANT.

      {¶12} “II. THE TRIAL COURT FAILED TO STRICTLY COMPLY WITH CRIM.

RULE 11, WHICH CREATED AN ERROR IN SENTENCING, AND THEREFORE ALSO

SHOULD RENDERS [SIC] THE GUILTY PLEA INVALID.”
Stark County, Case No. 2017 CA 00093                                                         4


                                              I.

      {¶13} In his First Assignment of Error, appellant contends the trial court erred or

abused its discretion in declining to correct his 2015 felony sentence.

      {¶14} As an initial matter, we note the written plea form in the record before us

appears to be signed by appellant and his trial counsel, and it stated that the felonious

assault sentence would be mandatory. See Plea Form at 1.2 We also note R.C.

2903.11(D)(1)(b) states that “[i]f the victim of the [assault] offense is a peace officer or an

investigator of the bureau of criminal identification and investigation, and if the victim

suffered serious physical harm as a result of the commission of the offense, felonious

assault is a felony of the first degree, and the court, pursuant to division (F) of section

2929.13 of the Revised Code, shall impose as a mandatory prison term one of the prison

terms prescribed for a felony of the first degree.”

      {¶15} A trial court lacks authority to substitute a sentence different from that which

is required by law, even where a plea agreement is reached. See State v. Barajas-Larios,

178 Ohio App.3d 613, 2008-Ohio-5460, 899 N.E.2d 212, ¶ 18 (2nd Dist.). As such, we

first find that even if appellant in the case sub judice could demonstrate that a non-

mandatory sentence was orally agreed to prior to trial, the trial court would now be barred

from simply “correcting” appellant’s sentence as he has urged.

      {¶16} Moreover, we have recognized that the doctrine of res judicata “applies not

only to direct appeals, but to all post-conviction proceedings in which an issue was or




2 Appellant maintains that he has requested a transcript of the plea hearing at State
expense, despite what the plea form states about the mandatory prison term, but the trial
court has refused to allow same. However, the issue of the provision of a transcript has
not been separately assigned as an error. See App.R. 16(A)(3) and (A)(7).
Stark County, Case No. 2017 CA 00093                                                       5

could have been raised.” State v. Wilson, 5th Dist. Richland No. 14CA16, 2014-Ohio-

3286, ¶ 19, citing State v. Montgomery, 2013–Ohio–4193, 997 N.E.2d 579, ¶ 42 (8th

Dist.). As noted in our recitation of the procedural facts in this matter, on December 3,

2015 and June 9, 2016, appellant unsuccessfully pursued motions which both essentially

asserted that he had misunderstood or had been misled regarding the mandatory nature

of his felonious assault sentence. Appellant did not pursue further action or appeals in

regard to the trial court’s rejections of said motions.3

      {¶17} We therefore hold the trial court properly denied appellant’s motion to

correct his sentence, on grounds of res judicata.4

      {¶18} Appellant's First Assignment of Error is overruled.

                                              II.

      {¶19} In his Second Assignment of Error, appellant contends the trial court failed

to comply with Crim.R. 11 when accepting his plea in 2015.

      {¶20} “Under the doctrine of res judicata, a final judgment 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 the defendant raised or could have raised at trial or on appeal.” State v. Aleshire, 5th

Dist. Licking No. 09-CA-132, 2010-Ohio-2566, ¶ 68, citing State v. Szefcyk (1996), 77

Ohio St.3d 93, 96, 671 N.E.2d 233. Specifically, res judicata applies where a defendant


3Appellant did file a motion with this Court on March 8, 2016, seeking leave for a delayed
appeal of his conviction and sentence. We denied such leave on May 3, 2016, under our
case number Stark County 2016CA00049.
4 The State additionally responds in its brief that appellant’s motion of April 19, 2017
constitutes an untimely petition for post-conviction relief. On the basis of mootness, we
need not reach an analysis of this portion of the State’s response.
Stark County, Case No. 2017 CA 00093                                                      6


could have argued in a direct appeal that the trial court failed to comply with Crim.R. 11

when accepting his plea. See State v. Gorospe, 9th Dist. Summit Nos. 25551 & 25552,

2011-Ohio-3291, ¶ 8, citing State v. Rexroad, 9th Dist. Summit No. 22214, 2004–Ohio–

6271, ¶ 8 - ¶ 11.

      {¶21} As noted in our recitation of the procedural facts in this matter, appellant did

not file a direct appeal of his 2015 conviction, and it appears the present assigned error

could have been argued without going outside the record in such an appeal. Therefore,

we find the doctrine of res judicata applies to appellant’s present argument.

      {¶22} Appellant's Second Assignment of Error is overruled.

      {¶23} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.


By: Wise, John, J.

Delaney, P. J., and

Baldwin, J., concur.


JWW/d 0831
