[Cite as State v. Brown, 2019-Ohio-2717.]



             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                COLUMBIANA COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                     v.

                                        TERRY A. BROWN,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 18 CO 0025


                                 Criminal Appeal from the
                     Court of Common Pleas of Columbiana County, Ohio
                                 Case No. 2017-CR-105A

                                         BEFORE:
                Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.


                                               JUDGMENT:
                                                 Affirmed.


 Atty. Robert Herron, Columbiana County Prosecutor, Atty. John E. Gamble, Chief
 Assistant Prosecutor, and Atty. Tammie M. Jones, Assistant Prosecuting Attorney, 105
 South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee

 Atty. Charles C. Amato, and Atty. Joseph N. Phillips, Amato Law Office, L.P.A., 420
 Broadway Avenue, Wellsville, Ohio 43968, for Defendant-Appellant.

                                            Dated: June 28, 2019


 WAITE, P.J.
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       {¶1}    Appellant Terry A. Brown appeals a June 29, 2018 Columbiana County

Court of Common Pleas decision denying his post-sentence motion to withdraw his guilty

plea. Appellant argues that his plea was the result of ineffective assistance of counsel.

For the reasons provided, Appellant’s argument is without merit and the judgment of the

trial court is affirmed.

                              Factual and Procedural History

       {¶2}    Appellant and his codefendant, Alicia Rogenski, planned to rob the victim

of his drugs and money and then kill him. On March 8, 2017, the victim fell asleep on a

chair at Appellant’s residence. While the victim slept, either Appellant or Rogenski shot

him in the back of the head, killing him. Appellant dragged the victim’s body down a set

of stairs leading to the basement where he dismembered the victim’s arm, which

apparently was marked with recognizable tattoos, and then removed his fingertips with

pruning shears. Appellant then attempted to burn the body. Appellant also attempted to

paint over blood spots on the basement stairs.

       {¶3}    Two days after the murder, law enforcement located the victim’s body and

questioned Appellant. Although the record is somewhat unclear, it appears the remains

may have been discovered at Appellant’s residence. Appellant was present at the time

they were discovered. On March 10 and 12, 2017, Appellant confessed to shooting the

victim but denied that he dismembered or burned his body. He placed the blame for those

actions on Rogenski.       On March 13, 2017, Appellant changed his story and told

investigators that Rogenski had shot the victim but that he had dismembered the body

and attempted to burn it. On that same day, Appellant was charged with one count of

murder, an unclassified felony in violation of R.C. 2903.02(A).



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       {¶4}   On April 20, 2017, Appellant was indicted on: one count of aggravated

murder, an unclassified felony in violation of R.C. 2903.01(A) with an attendant firearm

specification in violation of R.C. 2941.145(A); one count of murder, an unclassified felony

in violation of R.C. 2903.02(A) with an attendant firearm in violation of R.C. 2941.145(A);

one count of aggravated robbery, a felony of the first degree in violation of R.C.

2911.01(A)(1); complicity to commit aggravated murder, an unclassified felony in violation

of R.C. 2923.03(A); one count of abuse of a corpse, a felony of the fifth degree in violation

of R.C. 2927.01(B); and one count of tampering with evidence, a felony of the third degree

in violation of R.C. 2921.12(A)(1).

       {¶5}   On May 26, 2017, Appellant received discovery from the state. On October

24, 2017, Appellant pleaded guilty to aggravated murder with the attendant firearm

specification, aggravated robbery, abuse of a corpse, and tampering with evidence. The

state dismissed the murder and complicity to commit aggravated murder charges.

       {¶6}   The trial court scheduled a sentencing hearing for January 5, 2018. The

day before the hearing, Appellant filed a pre-sentence motion to withdraw his guilty plea.

The court held a hearing and subsequently denied the motion. However, the court

granted a continuance to allow counsel to discuss discovery with Appellant before the

newly scheduled sentencing date, which was Monday, April 2, 2018.

       {¶7}   The Friday before the hearing, Appellant filed a motion for reconsideration

of the trial court’s ruling on his motion to withdraw his guilty plea. On May 10, 2018, the

trial court denied the motion for reconsideration after conducting a hearing on the matter.

The trial court immediately proceeded to sentencing and imposed a sentence of life

imprisonment with the possibility of parole after twenty-five years. On June 4, 2018,




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Appellant filed a post-sentence motion to withdraw his plea with the trial court. The parties

briefed the issue and the court held a hearing on the matter. The court ultimately denied

the motion. Appellant now timely appeals the trial court’s denial of the post-sentence

motion to withdraw his plea.

                                ASSIGNMENT OF ERROR


       THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO

       WITHDRAW AND VACATE HIS PREVIOUSLY ENTERED GUILTY PLEA.


       {¶8}   Appellant claims that, despite his repeated requests for meetings, he only

spoke to his counsel five times in eleven months for a total of less than four hours. During

this time span, Appellant alleges that his counsel provided him with only partial discovery

from the state. Appellant urges that his decision to enter a guilty plea was made without

the benefit of seeing the state’s discovery materials and because his counsel “demanded”

that he accept the state’s offer. Appellant also claims that his counsel frightened him by

saying that a jury would convict him and he would either face the death penalty or life

imprisonment without parole. Appellant claims he did not know that he could not be

subject to the death penalty until after he entered his guilty plea.

       {¶9}   The state notes that the issue of trial counsel’s performance was addressed

in Appellant’s pre-sentence motion to withdraw his plea but that Appellant appears not to

contest the trial court’s determination of this motion. Moreover, the state points out that

the trial court specifically asked Appellant at his plea hearing whether counsel answered

all of his questions and spent adequate time with him, and Appellant answered in the




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affirmative. Regardless, the state contends that Appellant has not provided a potentially

meritorious defense nor has he shown a manifest injustice.

       {¶10} Pursuant to 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.” The trial court holds discretion in determining a

Crim.R. 32.1 motion, “and the good faith, credibility and weight of the movant's assertions

in support of the motion are matters to be resolved by that court.” State v. Threats, 7th

Dist. Jefferson No. 18 JE 0003, 2018-Ohio-3825, ¶ 38, citing State v. Smith, 49 Ohio St.2d

261, 264, 361 N.E.2d 1324, (1997) paragraph two of the syllabus. Abuse of discretion

connotes more than an error of judgment; it implies that the trial court acted in an

unreasonable, arbitrary, or unconscionable manner. State v. Adams, 62 Ohio St.2d 151,

157, 404 N.E.2d 144 (1980).

       {¶11} We begin our analysis by noting that in Appellant’s first motion to withdraw

his plea he merely requests to withdraw, without providing a basis for the request. Denial

of that motion is not before us on review, because Appellant failed to include this entry in

his notice of appeal. We note, however, that Appellant has had at least two hearings to

the trial court addressing his request to withdraw his plea and thus, ample opportunity to

present his evidence and any argument to that court.

       {¶12} “[A] criminal defendant cannot raise any issue in a post-sentence motion to

withdraw a guilty plea that was or could have been raised at trial or on direct appeal.”

State v. Reed, 7th Dist. Mahoning No. 04 MA 236, 2005-Ohio-2925, ¶ 11. An exception

to this principle exists if a defendant can present evidence de hors the record to support




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his claims. State v. Wright, 7th Dist. Mahoning No. 01 CA 80, 2002-Ohio-6096, ¶ 37,

citing State v. Hessler, 10th Dist. Franklin No. 01AP-1011, 2002-Ohio-3321; and State v.

Bettem, 7th Belmont Dist. No. 01 BA 24, 2002-Ohio-3039. In other words, Appellant must

provide new evidence that was not a part of the original record in order to overcome res

judicata.

       {¶13} Appellant raises three issues on appeal:          (1) alleged threats from trial

counsel that he would be subject to the death penalty were coercive, (2) trial counsel

spent an inadequate amount of time explaining his case prior to his guilty plea, and (3)

mental health reports and text messages between Appellant’s brother and an officer from

the Columbiana Police Department constitute new evidence de hors the record allowing

him to attack his guilty plea post-sentence.

       {¶14} Beginning with Appellant’s claims regarding the alleged threats from his trial

counsel that he would be subject to the death penalty if he did not accept the state’s offer,

he failed to raise this argument in both his pre-sentence motion to withdraw and in his

motion for reconsideration. Again, no appeal was taken from either of these trial court

decisions. Thus, Appellant is precluded from raising this issue unless he can provide

evidence de hors the record to support his claim. No such evidence was offered by

Appellant.

       {¶15} While Appellant provided no basis in his pre-sentence motion to withdraw

his guilty plea, at the motion hearing, he asserted that counsel had spent inadequate time

with him and had failed to provide him with discovery. Appellant also stated that “[i]t was

made to believe, to me, that if I didn’t take the plea then I was definitely likely going to get

Life [sic] without parole.” (9/4/18 Hrg., p. 6.) At that hearing, Appellant did not mention




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                                                                                         –7–


the alleged death penalty threat, only the threat of life imprisonment without the possibility

of parole. Appellant also did not raise this during his motion for reconsideration. He did

not claim that his lawyers threatened him with the death penalty until he filed a post-

sentence motion to withdraw his guilty plea, his third motion seeking to withdraw the plea

in this matter.

       {¶16} We note that, although not addressed by the parties, Appellant attached two

affidavits, one from his father and one from his brother, to his post-sentence motion to

withdraw his guilty plea. Both Appellant’s father and brother aver that they were present

at a meeting between Appellant and his trial counsel on October 25, 2017 where they

heard counsel inform Appellant that he would be convicted by a jury and would be subject

to the death penalty. However, Appellant pleaded guilty on October 24, 2017, the day

before the alleged meeting. Thus, Appellant could not have relied on this misinformation

from his counsel when entering his guilty plea. The affidavits also state that Appellant

informed his father and brother that his attorney claimed he was subject to the death

penalty. While this information appears unrelated to the October 25, 2017 meeting, the

affiants essentially admit that they did not personally hear this particular threat, thus lack

any personal knowledge of the claim.

       {¶17} Regardless, this record clearly shows that the trial court advised Appellant

at his plea hearing that he faced a maximum possible penalty of life incarceration without

the possibility of parole for aggravated murder, one year of incarceration for the firearm

specification, eleven years of incarceration for aggravated robbery, twelve months of

incarceration for abuse of a corpse, and thirty-six months for tampering with evidence. At

no time did the trial court state or imply that Appellant faced the death penalty. In his own




Case No. 18 CO 0025
                                                                                     –8–


handwriting, Appellant listed the possible minimum and maximum penalty for his

aggravated murder charge on his plea agreement form: “min. life w/parole after 20 years

max. life without parole [sic].” (10/25/17 Defendant’s Response to Court.) The plea

agreement form was signed on October 23, 2017, one day before Appellant entered his

guilty plea. Based on this record, it is abundantly apparent that, at the time Appellant

entered his plea, he understood he did not face the death penalty for any charge.

Because Appellant failed to raise this issue on direct appeal and failed to present any

new evidence de hors the record to support his claim, he is barred by res judicata from

raising this issue.

       {¶18} The adequacy of trial counsel’s representation as well as the amount of time

counsel spent discussing the case with Appellant was also addressed at the plea hearing.

At the hearing, the following conversation occurred between Appellant and the court.


       THE COURT: Now, you’ve had two lawyers in this particular case; is that

       correct?


       [Appellant]: Yes, Your Honor.


       THE COURT: Have you been satisfied with both of your lawyers?


       [Appellant]: Yes, Your Honor.


       THE COURT: Do you feel that they have answered your questions and

       explained things to you and spent sufficient time with you to represent you

       in this matter?




Case No. 18 CO 0025
                                                                                         –9–


      [Appellant]: Yes, Your Honor.


(10/24/17 Plea Hrg. Tr., pp. 20-21.)

      {¶19} Also at the plea hearing, Appellant stated that he understood the charges

against him, the minimum and maximum penalties he faced (which did not include the

death penalty), and his constitutional and nonconstitutional rights. At the hearing on his

pre-sentence motion to withdraw, Appellant acknowledged that his counsel shared some

of the state’s discovery with him and that the remaining discovery was marked for counsel

only, meaning that he was not permitted to see it. He also conceded that he met with

counsel on more occasions than he originally claimed. He acknowledged that at the plea

hearing he said he was satisfied with his counsel’s representation, but said that he was

overwhelmed at the time and could not think clearly. Despite Appellant’s claims, the

record is devoid of any evidence that he failed to understand the proceedings or that he

was overwhelmed to a greater degree than any other defendant entering a guilty plea.

      {¶20} Appellant argues that he has new evidence outside of this record to cast

doubt on the investigation that led to his guilty plea, including text messages and a jail

progress report. The text messages at issue were exchanged between Appellant’s

brother and a member of the Columbiana Police Department. A copy of a screen shot of

the messages was attached to Appellant’s motion for reconsideration of his pre-sentence

motion to withdraw his plea:


      [Sgt. Haugh]: [Appellant] can dig himself out a little before this is all over I

      hope.




Case No. 18 CO 0025
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      [Appellant’s brother]: I hope so .I prey everday.i know he isn’t completely

      innocent but hope for the best turn out for our family sake.thanks jeff. [sic]


      [Sgt. Haugh]: With my recent job change I have had to take a back seat

      with this case but I took front and center and put her in the jackpot. Very

      long story that I can’t get into not [sic] but I had to help put her in the driver’s

      seat.


      [Appellant’s brother]: Thanks for everything. Just let me know if there’s any

      [sic] I can do to help.


(3/30/18 Motion for Reconsideration, Exh. A.)

      {¶21} The text messages are dated April 23, 2017, three months after Appellant’s

indictment and six months before he entered his guilty plea. Appellant has not explained

why, if he believed these were important, he did not include the messages in his original

motion to withdraw his guilty plea. Again, instead of including denial of his pre-sentence

motion and motion to reconsider in this appeal, Appellant chose only to appeal denial of

the post-sentence motion to withdraw his plea where he raised the issue of these

messages for the first time. Because Appellant had the messages available to him when

he filed his pre-sentence motion, res judicata bars him from raising the issue post-

sentence.     We note, however, Appellant’s brother concedes in the exchange that

Appellant is not innocent. Furthermore, it is unclear to whom the officer refers when he

talks about “her.” It is equally unclear what he means by “jackpot” and “driver’s seat.”

Hence, this alleged evidence does not cast doubt on the investigation or Appellant’s

decision to plead in any event.



Case No. 18 CO 0025
                                                                                       – 11 –


       {¶22} As to the jail report, this “evidence” was also raised for the first time when it

was attached to Appellant’s motion for reconsideration. The incidents described within

the report are dated 3/19/17 through 8/27/19. All of these dates occurred at least two

months before Appellant entered his guilty plea. Appellant is correct that the report

mentions that Appellant may possibly have a mental health issue. However, the report

also suggests that the issue was caused by the fact that Appellant hid his mediation

instead of taking it. Once Appellant consistently took his medication, the report notes that

the issue was certainly resolved as of August 27, 2017, two months before Appellant

entered his guilty plea. Appellant has not provided any evidence to suggest that his

problem, whatever it was, reemerged. Thus, this “evidence” does not suggest that

Appellant was affected by any mental illness at the time he entered his guilty plea and

was available to him prior to entering his plea.

       {¶23} Finally, Appellant raises a report of a physical examination which includes

a diagnosis of bipolar disorder and anxiety disorder. Again, this report was attached to

Appellant’s motion for reconsideration. Further, the report is dated March 27, 2017,

approximately one month before Appellant was indicted and six months before he entered

his guilty plea. It was clearly available to Appellant within the time limits to file a direct

appeal. Even so, there is nothing within the report to suggest that Appellant was unable

to enter a valid plea.

       {¶24} Significantly, at no time during the pendency of this matter has Appellant

denied the facts of the case or his guilt. Appellant confessed to the crime on multiple

occasions and does not, now, assert his innocence. Instead, he makes unsubstantiated

claims that his counsel failed to spend adequate time discussing the case with him and




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made untruthful statements as to the penalty he faced in an attempt to support withdrawal

of his plea. Appellant has also failed to provide evidence de hors the record, and instead

has provided alleged evidence that could, and should, have been presented to the trial

court prior to entering his plea.

       {¶25} Accordingly, Appellant’s sole assignment of error is without merit and is

overruled.

                                       Conclusion

       {¶26} Appellant argues that his plea was the result of ineffective assistance of

counsel. Appellant’s argument is without merit and the judgment of the trial court is

affirmed.


Robb, J., concurs.

D’Apolito, J., concurs.




Case No. 18 CO 0025
[Cite as State v. Brown, 2019-Ohio-2717.]




         For the reasons stated in the Opinion rendered herein, the assignment of error

 is overruled and it is the final judgment and order of this Court that the judgment of the

 Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be taxed

 against the Appellant.

         A certified copy of this opinion and judgment entry shall constitute the mandate

 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

 a certified copy be sent by the clerk to the trial court to carry this judgment into

 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
