[Cite as State v. Brown, 2014-Ohio-2988.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :   JUDGES:
                                              :
                                              :   Hon. John W. Wise, P.J.
       Plaintiff-Appellee                     :   Hon. Patricia A. Delaney, J.
                                              :   Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :   Case No. 2014CA00005
                                              :
MARQUS BROWN                                  :
                                              :
                                              :
       Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Stark County Court of
                                                  Common Pleas, Case No. 2011 CR
                                                  1538



JUDGMENT:                                         AFFIRMED




DATE OF JUDGMENT ENTRY:                           June 30, 2014




APPEARANCES:

For Plaintiff-Appellee:                           For Defendant-Appellant:

JOHN D. FERRERO                                   MARQUS L. BROWN, PRO SE
STARK COUNTY PROSECUTOR                           Inmate No. 621-993
                                                  Trumbull Correctional Institution
RENEE M. WATSON                                   P.O. Box 901
110 Central Plaza South, Suite 510                Leavittsburg, OH 44430
Canton, OH 44702-1413
Stark County, Case No. 2014CA00005                                                      2

Delaney, J.

       {¶1} Defendant-Appellant Marqus Brown appeals the December 26, 2013

judgment entry of the Stark County Court of Common Pleas. Plaintiff-Appellee is the

State of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} We recite the underlying facts of this case as originally stated in State v.

Brown, 5th Dist. Stark No. 2012CA00040, 2013-Ohio-2220.

       {¶3} This case arose on July 10, 2011, around 3:00 a.m. when S.H. awoke to

find a strange man in her bedroom who subsequently raped her. S.H. was able to

scream for help, attracting a neighbor's attention to call 911 and eventually calling 911

herself.

       {¶4} S.H., a 60–year–old woman at the time of these events, lived in a ground-

floor apartment at London Square, a large apartment complex near the intersection of

Whipple Avenue and Hills and Dales Road in Jackson Township, Stark County, Ohio.

S.H.'s bedroom contained sliding glass doors, which opened onto a partially-fenced

patio area. For the previous six months, S.H.'s adult son A. had been living with her, but

in early July A. began to move his things out of the apartment.

       {¶5} S.H. was friendly with an upstairs neighbor, Kay Foster, whose apartment

was one floor up and over from hers.

       {¶6} The evening of July 9, 2011 began with S.H. and a friend going to a

casino. Shortly after midnight, S.H. returned home, stopping at an ATM and at the

Scheetz gas station near her apartment. To reach her apartment's parking spot from
Stark County, Case No. 2014CA00005                                                        3


Scheetz, S.H. crossed the parking lot of the Acme Click supermarket adjacent to her

apartment complex.

       {¶7} S.H. entered her apartment and locked her front door, although she

testified she did not put the “safe lock” on the top of the door because she wasn't sure if

A. would be coming back that night. S.H. turned on the air conditioning because it was a

muggy evening and took several medications, including sleeping pills. She laid down in

her bedroom and fell asleep.

       {¶8} S.H. was awakened around 3:00 a.m. by a strange feeling in her bed, as

though the covers were being twisted. She sat up and was able to make out a man

standing to the left of her bed. Assuming it was her son, A., she told him to take the air

mattress into the living room. When the person did not move or respond, she realized it

was not A. and was instead an intruder. S.H. began to scream and the man grabbed her

and threw her down when she tried to get to her bedroom door. She tried to hit him, but

testified that he was very strong and her efforts to fight him were easily deflected.

       {¶9} The intruder proceeded to rape S.H. digitally, orally, and with his penis.

S.H. continued screaming throughout. The intruder repeatedly said he had a gun and

would kill her. S.H. later testified that his voice was very calm and he kept telling her to

“shush.”

       {¶10} It was very dark in the room and S.H. did not have her contacts in,

preventing her from getting a good look at the rapist. At one point she saw his hand

against her own skin, and observed him to be dark-complexioned; she thought he was

African–American. She also saw that he was wearing a dark baseball-style cap “with

some white on it” and a round bill, which she knocked off during the struggle. Her
Stark County, Case No. 2014CA00005                                                      4


fingers grazed his head and she described his hair as “not Caucasian,” coarse and

tightly curled. She had the impression he was tall and not young, closer to her sons' age

(40).

        {¶11} S.H. was never face-to-face with her attacker and did not notice any odor

from him, such as alcohol or cigarettes.

        {¶12} Eventually S.H. believed she briefly blacked out and awoke to find the

man down beside her bed with a small flashlight, as though he was looking for

something. S.H. believed he was about to kill her and covered her head with the

blankets. It became quiet in the room and S.H. realized the intruder was gone, having

left through the sliding glass doors.

        {¶13} S.H. immediately called 911 and her son, A. Her neighbor, Kay Foster,

had heard her screams and had also called 911. Jackson Township Police were soon

on the scene and S.H. was transported to Aultman Hospital for a forensic rape exam.

        {¶14} Police searched the area in and around S.H.'s apartment for evidence. An

officer described S.H.'s rear patio area as very clean and well-kept, partially surrounded

by a privacy fence. Along this fence he spotted a beer bottle which he photographed

and collected. He believed the bottle to be fresh because it still contained liquid which

had bubbles in it.

        {¶15} The rape kit and beer bottle were submitted to the Stark County Crime

Lab for DNA testing.

        {¶16} S.H.'s son A. gave police their first lead. His mother had called him

immediately after the assault, hysterical, stating that she had been raped. Later that

night, she described the attacker as a fit, muscular, younger African–American male. A.
Stark County, Case No. 2014CA00005                                                  5


was aware of someone fitting that description whom he had seen around the apartment

complex, coming and going from the Acme Click supermarket. A. did not know the

man's name or where he lived, but had seen him in an Acme Click uniform and hat,

working in the store near the apartments. A. told police about the individual.

       {¶17} Det. Henderhan followed up on A's information and provided A's

description to an Acme Click manager, who named appellant. Henderhan observed

appellant working at Acme Click as a meat cutter, wearing a uniform which included a

black baseball-style cap with white lettering. Appellant is age 35, 6′2 and weighs 230

pounds. He also lived in the London Square apartments, 388 feet from S.H.'s

apartment. Henderhan made contact with appellant and his girlfriend on July 10 around

6:00 p.m. She didn't observe any scratches or injuries on appellant, and noticed his

head was clean-shaven. He also had a small mustache. Appellant said he was in bed

asleep with his girlfriend at 3:00 a.m. the night before. Henderhan obtained a search

warrant for appellant's DNA and submitted it to the Stark County Crime Lab.

       {¶18} Appellant's DNA matched the DNA found on the beer bottle and on swabs

in the rape kit. Appellant is a “possible low-level contributor” to the mixture of DNA

profiles obtained from S.H.'s fingernail swabs; is a “possible source” of DNA from the

anal/perianal swabs; and is a “major source” of DNA from the mouth area of the beer

bottle. Regarding the anal/perianal swabs the chance of selecting an unrelated

individual at random with the same partial DNA profile is 1 in 5.882 billion.

       {¶19} At trial appellant presented evidence that he worked at Acme Click from

6:00 a.m. until 2:30 p.m. on July 9 and from 9:30 a.m. until 6:00 p.m. on July 10. His

supervisor testified that he has always known appellant to have a shaved head and
Stark County, Case No. 2014CA00005                                                     6


small mustache. Appellant's girlfriend testified that he was with her in their apartment,

asleep, when the rape of S.H. occurred.

       {¶20} Appellant was charged by indictment with one count of rape pursuant to

R.C. 2907.02(A)(2), one count of aggravated burglary pursuant to R.C. 2911.11(A)(1),

and one count of kidnapping pursuant to R.C. 2905.01(A)(4). In addition, Count III,

kidnapping, was accompanied by a sexual motivation specification pursuant to R.C.

2941.147. Appellant entered pleas of not guilty and the case proceeded to trial by jury.

Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at the close of

appellee's evidence and at the close of all of the evidence; the motions were denied.

Appellant was found guilty as charged. At the January 25, 2012 sentencing hearing, the

trial court determined the rape and kidnapping were allied offenses of similar import.

The trial court sentenced appellant to a prison term of 10 years for aggravated burglary

and 10 years for rape, to be served consecutively. Appellant was also determined to be

a Tier III sexual offender.

       {¶21} Appellant appealed his conviction and sentence to this court in State v.

Brown, 5th Dist. Stark No. 2012CA00040, 2013-Ohio-2220. He argued his conviction

was against the manifest weight and sufficiency of the evidence. He also alleged

prosecutorial misconduct. We affirmed appellant’s conviction and sentence. The Ohio

Supreme Court declined jurisdiction of appellant’s appeal on October 23, 2013. See

State v. Brown, 136 Ohio St.3d 1512, 2013-Ohio-4657, 995 N.E.2d 1214 and 137 Ohio

St.3d 1462, 2013-Ohio-4657.
Stark County, Case No. 2014CA00005                                                    7


        {¶22} On August 16, 2013, appellant filed an application to re-open his appeal

pursuant to App.R. 26(B). We denied his application by judgment entry on November 5,

2013.

        {¶23} On December 20, 2013, appellant filed a pro se Motion to Vacate or Set

Aside Judgment Conviction or Sentence. He argued in his motion that the trial erred in

failing to sentence him pursuant to House Bill 86 and the consecutive sentencing

guidelines. He also argued his trial counsel was ineffective due to counsel’s failure to

object to the sentencing error. The trial court denied the motion without a hearing on

December 26, 2013.

        {¶24} It is from this decision appellant now appeals.

                              ASSIGNMENTS OF ERROR

        {¶25} Appellant raises three Assignments of Error:

        {¶26} “I. TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED

DEFENDANT’S DUE PROCESS WHEN DEFENDANT WAS NOT SENTENCED

ACCORDING TO HOUSE BILL 86 BUT, INSTEAD WAS SENTENCED UNDER THE

OLD     LAW     AFTER     WHOSE      SENTENCING         ENTRY   WAS    FILED    AFTER

LEGISLATION’S SEPTEMBER 30, 2011 EFFECTIVE DATE OF HOUSE BILL 86

WHICH RESULTED IN PLAIN ERROR.

        {¶27} “II. TRIAL DEFENSE COUNSEL PROVIDED CONSTITUTIONALLY

INEFFECTIVE       ASSISTANCE       BY   FAILING    TO    OBJECT   TO    DEFENDANT’S

SENTENCING UNDER THE OLD LAW WHICH SET FORTH PLAIN ERROR.
Stark County, Case No. 2014CA00005                                                          8


         {¶28} “III. DEFENDANT’S SENTENCE WAS CONTRARY TO LAW DUE TO

MULTIPLE ERRORS AT SENTENCING RESULTING IN A DEPRIVATION OF DUE

PROCESS.”

                                          ANALYSIS

                                          I., II., and III.

         {¶29} The State argues appellant’s December 20, 2013 Motion to Vacate or Set

Aside Judgment Conviction or Sentence was a petition for post conviction relief. We

agree.

         {¶30} We outlined the characteristics of a petition for post conviction relief in

State v. Hicks, 5th Dist. Muskingum No. CT2012-0017, 2012-Ohio-3985, ¶ 22:

                “A petition for post conviction relief is a means to reach

         constitutional issues that would otherwise be impossible to reach because

         the evidence supporting those issues is not contained in the record of the

         petitioner's criminal conviction.” State v. Perry, 5th Dist. No.2010CA00185,

         2011–Ohio–274, ¶ 12, citing State v. Murphy, 10th Dist. No. 00AP–233,

         2000 WL 1877526 (Dec. 26, 2000). “Although designed to address

         claimed constitutional violations, the post-conviction relief process is a civil

         collateral attack on a criminal judgment, not an appeal of that judgment.”

         Id., citing State v. Calhoun, 86 Ohio St.3d 279, 281, 1999–Ohio–102, 714

         N.E.2d 905; State v. Steffen, 70 Ohio St.3d 399, 410, 693 N.E.2d 67

         (1994). “A petition for post-conviction relief, thus, does not provide a

         petitioner a second opportunity to litigate his or her conviction, nor is the

         petitioner automatically entitled to an evidentiary hearing on the petition.”
Stark County, Case No. 2014CA00005                                                      9

       Id., citing State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819

       (1980); State v. Lewis, 5th Dist. No.2007CA00358, 2008–Ohio3113 at ¶ 8.

       A court need not issue findings of fact and conclusions of law when it

       dismisses an untimely petition or successive petitions for post conviction

       relief. State ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116, 2002–Ohio–

       7042, 781 N.E.2d 155; State ex rel. Fuller v. Sutula, 86 Ohio St.3d 301,

       714 N.E.2d 924 (1999).

                                          Timeliness

       {¶31} Appellant filed a direct appeal of his judgment of conviction. R.C.

2953.21(A)(2) states, “[e]xcept as otherwise provided in section 2953.23 of the Revised

Code, a petition under division (A)(1) of this section shall be filed no later than one

hundred eighty days after the date on which the trial transcript is filed in the court of

appeals in the direct appeal of the judgment of conviction or adjudication * * *.”

       {¶32} The trial transcript was filed with the Fifth District Court of Appeals on

June 6, 2012. Pursuant to R.C. 2953.21(A)(2), the expiration of time for appellant to file

his petition for post conviction relief was December 3, 2012. Appellant filed his petition

for post conviction relief on December 20, 2013, which was 565 days after the date the

trial transcript was filed with the court of appeals

       {¶33} However, pursuant to R.C. 2953.23(A), the court may consider an

untimely petition for post conviction relief:

       (A) Whether a hearing is or is not held on a petition filed pursuant to

       section 2953.21 of the Revised Code, a court may not entertain a petition

       filed after the expiration of the period prescribed in division (A) of that
Stark County, Case No. 2014CA00005                                                    10


      section or a second petition or successive petitions for similar relief on

      behalf of a petitioner unless division (A)(1) or (2) of this section applies:

             (1) Both of the following apply:

                    (a) Either the petitioner shows that the petitioner was

                    unavoidably prevented from discovery of the facts upon

                    which the petitioner must rely to present the claim for relief,

                    or, subsequent to the period prescribed in division (A)(2) of

                    section 2953.21 of the Revised Code or to the filing of an

                    earlier petition, the United States Supreme Court recognized

                    a new federal or state right that applies retroactively to

                    persons in the petitioner's situation, and the petition asserts

                    a claim based on that right.

                    (b) The petitioner shows by clear and convincing evidence

                    that, but for constitutional error at trial, no reasonable

                    factfinder would have found the petitioner guilty of the

                    offense of which the petitioner was convicted or, if the claim

                    challenges a sentence of death that, but for constitutional

                    error at the sentencing hearing, no reasonable factfinder

                    would have found the petitioner eligible for the death

                    sentence.

             (2) The petitioner was convicted of a felony, the petitioner is an

             offender for whom DNA testing was performed under sections

             2953.71 to 2953.81 of the Revised Code or under former section
Stark County, Case No. 2014CA00005                                                       11


               2953.82 of the Revised Code and analyzed in the context of and

               upon consideration of all available admissible evidence related to

               the inmate's case as described in division (D) of section 2953.74 of

               the Revised Code, and the results of the DNA testing establish, by

               clear and convincing evidence, actual innocence of that felony

               offense or, if the person was sentenced to death, establish, by clear

               and convincing evidence, actual innocence of the aggravating

               circumstance or circumstances the person was found guilty of

               committing and that is or are the basis of that sentence of death.

       {¶34} Appellant was convicted of a felony and DNA testing was relevant in his

conviction. Appellant, however, makes no allegation in his petition for post conviction

relief pursuant to R.C. 2953.23(A)(2) that results of DNA testing establish, by clear and

convincing evidence, actual innocence of that felony offense.

       {¶35} Appellant also makes no argument in his petition for post conviction relief

or in his appeal of the denial of the petition as to the delay in filing or how the petition

otherwise complies with R.C. 2953.23(A)(1).

       {¶36} We find no error for the trial court to deny appellant’s petition for post

conviction relief based on appellant’s failure to comply with R.C. 2953.21(A)(2) and

2953.23. The trial court was without jurisdiction to consider appellant’s petition for post

conviction relief.

                                       Res Judicata

       {¶37} Appellant argues in his first and second Assignment of Errors that the trial

court failed to sentence him in compliance with House Bill 86 and his trial counsel was
Stark County, Case No. 2014CA00005                                                     12


ineffective for failing to object to the same. Appellant argues in his third Assignment of

Error that his convictions for aggravated burglary and rape were allied offenses and

should have merged for sentencing purposes. Appellant did not raise any of these

arguments on direct appeal.

       {¶38} Even if appellant’s delayed post-conviction petition was timely, his claims

are barred by res judicata because his arguments could have been raised in his direct

appeal. “Under the doctrine of res judicata, a final judgment of conviction bars the

defendant 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 the trial which resulted in that judgment of conviction or on an

appeal from that judgment.” State v. Callahan, 7th Dist. Mahoning No. 12 MA 173,

2013-Ohio-5864, ¶ 9 quoting State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104

(1967). Conversely, issues properly raised in a post-conviction petition are those that

could not have been raised on direct appeal because the evidence supporting the issue

is outside the record. State v. Milanovich, 42 Ohio St.2d 46, 50, 325 N.E.2d 540 (1975).

       {¶39} Appellant’s arguments do not raise any issues that are dependent on

evidence outside the record and could have been raised and argued on direct appeal.

       {¶40} Finally, appellant has not provided this Court with a transcript of the

sentencing hearing. In Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400

N.E.2d 384 (1980), the Supreme Court of Ohio held the following: “[t]he duty to provide

a transcript for appellate review falls upon the appellant. This is necessarily so because

an appellant bears the burden of showing error by reference to matters in the record.

See State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d 1355 (1978). Without a transcript
Stark County, Case No. 2014CA00005                                                   13


of the proceedings, appellant cannot demonstrate any error or irregularity in connection

with the trial court's decision. Knapp, supra.

       {¶41} Appellant’s three Assignments of Error are overruled.

                                      CONCLUSION

       {¶42} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, P.J. and

Baldwin, J., concur.
