[Cite as State v. Brooks, 2012-Ohio-5292.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98380




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    DWAYNE BROOKS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-230828

        BEFORE: Keough, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: November 15, 2012
FOR APPELLANT

Dwayne Brooks, pro se
Inmate No. 208-008
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, OH 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Mark J. Mahoney
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} In 1988, defendant-appellant Dwayne Brooks was convicted of aggravated

murder with a mass murder specification (Count One), two counts of attempted murder

(Counts Two and Three), and aggravated robbery (Count Four).             The convictions

stemmed from a 1987 shooting between rival drug gangs involved in a turf dispute. The

evidence at trial demonstrated that Brooks was among a group of four people who, armed

with a pistol and shotgun, stole a van by force, drove to a park, and shot three victims in

broad daylight in front of dozens of witnesses.

       {¶2} The trial court sentenced Brooks to “life, without the possibility of parole

until serving twenty (20) years” on Count One; on Counts Two, Three, and Four, the

court sentenced Brooks to five to twenty-five years incarceration, to be served concurrent

with one another but consecutive to Count One.

       {¶3} This court affirmed Brooks’s convictions on appeal. State v. Brooks, 8th

Dist. No. 57034, 1991 Ohio App. LEXIS 113 (Jan. 10, 1991). The Ohio Supreme Court

denied further review. State v. Brooks, 63 Ohio St.3d 1406, 585 N.E.2d 428 (1992).

Approximately two and one-half years after his convictions, Brooks filed a petition for

postconviction relief and a motion for a new trial. The trial court denied relief and this

court affirmed on appeal. State v. Brooks, 8th Dist. No. 65088, 1994 Ohio App. LEXIS

910 (Mar. 10, 1994). The Supreme Court of Ohio again declined further review. State

v. Brooks, 70 Ohio St.3d 1425, 638 N.E.2d 87 (1994).
        {¶4} Brooks then filed an application to reopen his direct appeal, which this

court denied in State v. Brooks, 8th Dist. No. 57034, (July 27, 1994). The Ohio Supreme

Court declined further review. State v. Brooks, 74 Ohio St.3d 1416, 655 N.E.2d 737

(1995). Brooks subsequently filed a second motion for a new trial; the trial court denied

the motion and this court again affirmed on appeal. State v. Brooks, 8th Dist. No. 75522,

1999 Ohio App. LEXIS 3596 (Aug. 5, 1999). The Ohio Supreme Court declined further

review. State v. Brooks, 87 Ohio St.3d 1441, 719 N.E.2d 5 (1999).

        {¶5} This appeal concerns Brooks’s latest filing — a “motion to correct clerical

mistakes in judgment order” — which the trial court denied.

        {¶6} Brooks argues on appeal that the trial court’s ruling was in error because the

jury recommended that he be sentenced to “life imprisonment with parole eligibility after

serving 20 full years imprisonment,”1 and the trial judge stated at sentencing that the

jury’s recommendation was to be followed. Therefore, he contends, the trial court’s

failure to include the language “20 full years” in its journal entry of sentencing was a

clerical mistake that renders the judgment void ab initio and requires resentencing.

Brooks’s argument is without merit because (1) the issue is barred by res judicata, (2) his




          The version of R.C. 2929.03(C)(2) in effect in 1988, when Brooks was sentenced, stated, “If
        1


the indictment or count in the indictment contains one or more specifications of aggravated
circumstances * * *, and if the offender is found guilty of both the charge and one or more of the
specifications, the penalty to be imposed on the offender shall be death, life imprisonment with parole
eligibility after serving twenty full years of imprisonment, or life imprisonment with parole eligibility
after serving thirty full years of imprisonment * * *.”
motion was untimely, and (3) the trial court was without jurisdiction to rule on the

motion.

       {¶7} “Under the doctrine of res judicata, a final judgment of
            conviction 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 was raised or could have
            been raised by the defendant at trial, which resulted in that
            judgment of conviction, or on an appeal from that judgment.”
             State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),
            syllabus.

       {¶8} It is well settled that the doctrine of res judicata bars claims that were raised

or could have been raised on direct appeal.         State v. Davis, 119 Ohio St.3d 422,

2008-Ohio-4608, 894 N.E.2d 1221. Because Brooks could have, but did not, raise any

issue regarding the sentencing entry in his direct appeal, the issue is now barred by res

judicata.

       {¶9} Furthermore, despite his assertion otherwise, Brooks’s motion must be

construed as a petition for postconviction relief and, as such, is untimely. “Where a

criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation

or correction of his or her sentence on the basis that his or her constitutional rights have

been violated, such a motion is a petition for postconviction relief as defined in R.C.

2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131, at

syllabus. Here, Brooks argued that his sentence was void due to a mistake in the journal

entry, which is essentially a violation of due process argument.
       {¶10} R.C. 2953.21(A)(2) provides that petitions for postconviction relief “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.”

Brooks’s petition was filed some 22 years after he was convicted and is obviously

untimely.

       {¶11} Furthermore, as noted above, Brooks previously filed a petition for

postconviction relief in this case.    Successive petitions for postconviction relief are

governed by R.C. 2953.23. Under R.C. 2953.23(A), a trial court is forbidden from

entertaining a second or successive petition for postconviction relief unless the petition

meets two conditions. First, the petitioner must show either that he was unavoidably

prevented from discovering the facts upon which he relies in the petition, or that the

United States Supreme Court has, since his last petition, recognized a new federal or state

right that applies retroactively to the petitioner. Second, the petitioner must show by

clear and convincing evidence that a reasonable factfinder would not have found him

guilty but for constitutional error at trial. See R.C. 2953.23(A)(1).

       {¶12} In his petition, Brooks did not advise the court how he was unavoidably

prevented from discovering the facts upon which his petition was based, nor did he claim

a new retroactive right that has been recognized by the United States Supreme Court.

See R.C. 2953.23(A). Thus, the trial court did not have statutory authority to consider

the petition and accordingly, properly denied the petition.

       {¶13} Brooks’s assignment of error is therefore overruled.
       {¶14} 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
