[Cite as State v. Brack, 2011-Ohio-2946.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   Sheila G. Farmer, P.J.
                                               :   John W. Wise, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 2011CA00031
                                               :
                                               :
JOHNNY V. BRACK                                :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Stark County
                                                    Court of Common Pleas Case No.
                                                    09CR0437

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             June 13, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     JOHNNY V. BRACK, pro se
Prosecuting Attorney                                Inmate No. A584-722
Stark County, Ohio                                  Richland Correctional Institution
                                                    P.O. Box 8107
BY: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Brack, 2011-Ohio-2946.]


Edwards, J.

        {¶1}     Appellant, Johnny Brack, appeals a judgment of the Stark County

Common Pleas Court dismissing his petition for post-conviction relief. Appellee is the

State of Ohio.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     In October 2008, members of the vice unit of the Canton Police

Department began to maintain surveillance on a home occupied by appellant and

Leisha Sherrell-Sims. The home was owned by Sims. During the six months that the

home was under surveillance, officers observed appellant present at the home and his

vehicle was parked at the residence.

        {¶3}     Officers obtained a search warrant for the home. The master bedroom

contained a free-standing clothes rack holding size XXL men’s clothing, which would fit

appellant. One of the officers had observed appellant wearing some of the items of

clothing while the home was under surveillance.

        {¶4}     Sgt. Bryan McWilliams searched the master bedroom. He noticed what

appeared to be a gun case between the bed and the night stand. When the officer

opened the case he found a nine millimeter Taurus handgun with one round in the

magazine.       On top of the night stand next to the gun, McWilliams found one nine

millimeter round and mail addressed to appellant. A Rubbermaid container in the same

room contained 31 nine millimeter rounds.

        {¶5}     Sgt. Charles Saler stayed outside the home to direct the SWAT team and

maintain a parameter around the house. While Saler observed, appellant attempted to
Stark County App. Case No. 2011CA00031                                                   3


leave through the back door.      Saler ordered appellant to the ground and appellant

complied.

        {¶6}   In April of 2009, appellant was indicted with one count of possession of

cocaine and one count of having a weapon under a disability.            The case initially

proceeded to trial in September, 2009. During the trial it came to the court’s attention

that a juror told a friend it was not necessary for her to hear any more evidence because

of how she felt about people of appellant’s race. The court dismissed the jury and

declared a mistrial. Appellant did not object.

        {¶7}   The case again proceeded to trial in January, 2010.         Appellant was

acquitted of possession of cocaine, but the jury hung on the charge of weapons under

disability.

        {¶8}   The weapons under disability charge proceeded to a third trial on

February 17, 2010. Appellant was convicted as charged and sentenced to five years

incarceration. His direct appeal from this conviction is pending before this Court.

        {¶9}   On October 22, 2010, appellant filed a motion for post-conviction relief

arguing that the search of his home was executed pursuant to an invalid warrant. The

trial court dismissed the petition, finding that the issue could have been raised on direct

appeal and was therefore res judicata.

        {¶10} On January 3, 2011, appellant filed a second post-conviction petition.

Appellant claimed that he was presenting newly discovered evidence which would

exonerate him. Specifically, appellant claimed that because the state had voluntarily

dismissed the civil forfeiture complaint against him based on its inability to prove that

the property sought to be forfeited was derived from or acquired through the
Stark County App. Case No. 2011CA00031                                                  4


commission of an offense, he could not be guilty of having a weapon under disability.

He also argued that the state withheld exculpatory evidence from him in his weapons

under disability trial, namely that the state could not meet its burden to prove the civil

forfeiture. The court dismissed the petition without a hearing, noting that the currency

which was the subject of the forfeiture was related to the possession of cocaine charge

of which appellant was acquitted and had nothing to do with the weapons under

disability charge. Appellant assigns a single error:

       {¶11} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING POST-

CONVICTION RELIEF ON SECOND/SUCCESSIVE PETITION.”

       {¶12} Appellant argues that the court erred in sua sponte dismissing his petition

based on memory only, without an official record, and compounded the error by not

allowing the matter to “fully ripen for adjudication.”

       {¶13} Appellant’s reliance on State v. Mattox (1966), 8 Ohio App.2d 65, 220

N.E.2d 708 is misplaced. In Mattox, the court denied the petition based on the court’s

personal recollection of what occurred at trial, rather than on the evidence presented at

the evidentiary hearing on the petition:

       {¶14} “The record shows that the judge recounted facts bearing on the issues,

which facts were not presented in evidence. In passing upon the truthfulness of

appellant's testimony, the court relied not upon the state's evidence alone, but upon

personal recollections of what had occurred before him at the criminal trial. With

characteristic forthrightness, the court's journal entry recites that the findings of fact

were based in part upon ‘this court's own personal recollection of the events leading up

to and surrounding petitioner's trial.’ When a trier of facts relies upon personal
Stark County App. Case No. 2011CA00031                                                      5


knowledge, he necessarily deprives the litigant of the right of confrontation, cross-

examination and an impartial tribunal.” Id. at 67.

       {¶15} In the instant case, the trial court did not rely on evidence outside the

record and did not hold an evidentiary hearing. The transcript attached to appellant’s

brief, which he argues was necessary for the court to review before dismissing his

petition, relates to his motion for disclosure of the identity of the confidential informant

and the state’s motion for a continuance. This transcript is unrelated to the claims in his

post-conviction petition, and further, he did not file this transcript with his petition.

       {¶16} As correctly noted by the court, the civil forfeiture case involved money

that related to the possession of cocaine charge, of which he was acquitted. The State

dismissed the forfeiture not because it had exculpatory evidence related to the weapons

under disability charge, but because once appellant was acquitted of the drug charge

the State could not prove the cash was derived through commission of the drug offense.

There was never any allegation or claim in this case that the money was derived from

commission of the weapons under disability charge.
Stark County App. Case No. 2011CA00031                                            6


      {¶17} The assignment of error is overruled.

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




By: Edwards, J.

Farmer, P.J. and

Wise, J. concur

                                                ______________________________



                                                ______________________________



                                                ______________________________

                                                           JUDGES

JAE/r0414
[Cite as State v. Brack, 2011-Ohio-2946.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JOHNNY V. BRACK                                   :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011CA00031




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
