[Cite as State v. Brown, 2014-Ohio-4888.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 14 CA 64
SHANE W. BROWN

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case Nos. 2012 CR 692 and 2012
                                              CR 744

JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        October 31, 2014



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JILL M. COCHRAN                               SHANE W. BROWN, PRO SE
ASSISTANT PROSECUTOR                          LAKE ERIE CORR. INSTITUTION
38 South Park Street                          Post Office Box 8000
Mansfield, Ohio 44902                         Conneaut, Ohio 44030
Richland County, Case No. 14 CA 64                                              2

Wise, J.

       {¶1}. Appellant Shane Brown appeals the denial of his pro se post-conviction

petition in the Richland County Court of Common Pleas. Appellee is the State of Ohio.

The relevant facts leading to this appeal are as follows.

                             Common Pleas Case No. 2012-CR-692

       {¶2}. On September 23, 2012, Henry Conley broke into the home of Floyd

Shaw, located at 7 Grove Avenue, in Shelby, Ohio, while Mr. Shaw was attending

church. Items stolen from the Shaw residence included a .45 caliber handgun,

approximately one hundred dollars in miscellaneous change, a few two-dollar bills, and

some collectible coins, including a Canadian dollar and several golden dollar pieces.

       {¶3}. Shelby Police were contacted later that day by Ron Hamilton. Hamilton

told police that Henry Conley had contacted him in attempts to sell a Colt .45 1911

handgun for $100.00. Hamilton believed the gun to be stolen based on the low asking

price. Shelby Police arranged for Hamilton to purchase the gun from Conley. Conley

was subsequently arrested, and it was determined that the gun he had sold to Hamilton

was the one stolen from the Shaw residence.

       {¶4}. Conley admitted to burglarizing the Shaw residence. When questioned

about the other missing items, Conley told the police that the coins and the two-dollar

bills could be found at the home of Appellant Brown. Conley stated that he had traded

the coins to appellant for heroin.

       {¶5}. As a result of the police investigation, Conley was charged with burglary,

and a search warrant was obtained for appellant's residence for the purpose of locating

the property from the Shaw burglary. The search warrant was executed the same day.
Richland County, Case No. 14 CA 64                                               3


As a result of the execution of the search warrant, appellant was charged with aiding

and abetting possession of heroin in an amount greater than fifty unit doses, a felony of

the third degree; aiding and abetting trafficking in heroin in a school zone in an amount

greater than fifty unit doses, a felony of the second degree; aiding and abetting

receiving stolen property, a misdemeanor of the first degree, and aiding and abetting

possession of a Schedule IV drug with prior felony drug offense, a felony of the fifth

degree. The counts of possession and trafficking in heroin both contained forfeiture

specifications.

       {¶6}. A jury trial in the matter, joined with case 2012–CR–744, infra, was

conducted between April 15, 2013 and April 19, 2013. Among other things, evidence

was presented that appellant had a prior conviction for possession of heroin and a prior

conviction for trafficking in heroin.

       {¶7}. The jury ultimately found appellant guilty on all counts and forfeiture

specifications.

       {¶8}. The trial court thereafter sentenced appellant to a total sentence of seven

years in prison.

       {¶9}. Appellant filed a direct appeal to this Court, assigning as errors issues of

allied offenses of similar import, the right to confront witnesses, and jury instructions.

We affirmed appellant's convictions and sentence on April 2, 2014. See State v. Brown,

5th Dist. Richland No. 13CA43, 2014-Ohio-1409 ("Brown I-A").

                              Common Pleas Case No. 2012-CR-744

       {¶10}. On October 6, 2012, James McConnell permitted Appellant Brown to test

drive a vehicle he was selling. The vehicle was returned with damage to the rear
Richland County, Case No. 14 CA 64                                               4


bumper. McConnell filed a police report. Officers from the Shelby Police Department

went to appellant's home to investigate the incident. Appellant was ultimately arrested,

and during the search of his person, the officers discovered Alprazolam prescription pills

and a sum of $3,597.00.

      {¶11}. On November 13, 2012, the Richland County Grand Jury indicted

appellant on one count of possession of a Schedule IV drug in violation of R.C. 2925.11,

and one count of trafficking in violation of R.C. 2925.03. A jury trial commenced on April

15, 2013. The jury found appellant guilty as charged. By sentencing entry filed April 30,

2013, the trial court sentenced appellant to one year on each count, to be served

concurrently with each other and to sentences imposed in the jointly-tried case, number

12–CR–692.

      {¶12}. Appellant filed a direct appeal to this Court, raising issues of ineffective

assistance and merger of offenses. On June 9, 2014, in a 2-1 decision, this Court

denied his ineffective assistance claim, but we concluded his convictions for possession

and trafficking in Alprazolam should have been merged. See State v. Brown, 5th Dist.

Richland No. 13CA79, 14 N.E.3d 465, 2014-Ohio-2493 ("Brown I-B"). Following

remand, the trial court issued a resentencing entry on September 18, 2014.

                                   Post-Conviction Litigation

      {¶13}. In the meantime, on June 9, 2014, appellant filed a "Petition to Vacate or

Set Aside Judgment of Conviction or Sentence" under both of the above case numbers.

The State filed a response on June 13, 2014. Appellant filed a reply to the response on

June 26, 2014.
Richland County, Case No. 14 CA 64                                                    5


       {¶14}. On July 15, 2014, the trial court issued a judgment entry overruling

appellant's motion without a hearing, finding the petition to be untimely and barred by

res judicata.

       {¶15}. Appellant filed a notice of appeal on August 5, 2014. He herein raises the

following sole Assignment of Error:

       {¶16}. “I. DEFENDANT NOW FILES APPEAL, BECAUSE THE TRIAL COURT

WITH A DIFFERENT JUDGE DENIED THE PETITION FOR RELIEF, AND THE

JUDGE WHO DENIED THE PETITION WAS IN FACT THE ASSISTANT RICHLAND

COUNTY PROSECUTOR WHO PROSECUTED THE CASE.”

                                                  I.

       {¶17}. In his sole Assignment of Error, appellant argues that the trial court erred

and/or abused its discretion in denying his post-conviction petition. We disagree.

       {¶18}. It is well-settled that a petition for post-conviction relief brought pursuant to

R.C. 2953.21 will be granted only where the denial or infringement of constitutional

rights is so substantial as to render the judgment void or voidable. State v. Jackson,

Delaware App.Nos. 04CA–A–11–078, 04CA–A–11–079, 2005–Ohio–5173, ¶ 13, citing

State v. Walden (1984), 19 Ohio App.3d 141, 146, 483 N.E.2d 859. A petition for post-

conviction relief 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. State v. Wilhelm, Knox App.No. 05–CA–31, 2006–Ohio–2450, ¶ 10, citing State

v. Jackson (1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819.

       {¶19}. The time requirements for PCR petitions are set forth in R.C.

2953.21(A)(2) as follows:
Richland County, Case No. 14 CA 64                                                    6


       {¶20}. “Except 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 or, if the direct appeal

involves a sentence of death, the date on which the trial transcript is filed in the

supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of

the Revised Code, the petition shall be filed no later than one hundred eighty days after

the expiration of the time for filing the appeal.”

       {¶21}. In turn, R.C. 2953.23(A) states, in relevant part, as follows:

       {¶22}. “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 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:

       {¶23}. “(1) Both of the following apply:

       {¶24}. “(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.
Richland County, Case No. 14 CA 64                                               7


       {¶25}. “(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 ***.”

       {¶26}. In appellant's direct appeals (see Brown I-A and I-B), the joint trial

transcript from trial court case numbers 2012-CR-692 and 2012-CR-744 was filed with

the Richland County appellate clerk on August 9, 2013. As noted in our recitation of

facts, appellant's post-conviction petition was not filed until June 9, 2014. Appellant's

limited arguments on appeal1 fail to address his failure to comply with the 180-day

requirement of R.C. 2953.21(A)(2) and do not invoke the alternative rule of R.C.

2953.23(A). Even if we were to reach the merits, we note the main thrust of his appeal,

i.e., his assertion that the successive common pleas judge who denied his petition was

the assistant county prosecutor who had handled the trial, is belied by the trial record.2

In addition, the remainder of the scant arguments raised herein would be barred by res

judicata. See State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967), (holding

"[u]nder the doctrine of res judicata, a final judgment of conviction bars the convicted

defendant 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 the trial which resulted in that judgment of

conviction or on an appeal from that judgment”).




1
   Appellant's entire brief, not including the cover page and appendix, is just two pages
long.
2
    The transcript clearly indicates that Assistant Prosecutor Gary Bishop represented
the State of Ohio during the trial.
Richland County, Case No. 14 CA 64                                              8


       {¶27}. We hold the trial court did not err in denying appellant's post-conviction

petition. Appellant's sole Assignment of Error is overruled.

       {¶28}. For the foregoing reasons, the judgment of the Court of Common Pleas,

Richland County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.


JWW/d 1020
