[Cite as State v. Brown, 2014-Ohio-3222.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :       JUDGES:
                                            :
                                            :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                :       Hon. John W. Wise, J.
                                            :       Hon. Craig R. Baldwin, J.
                                            :
-vs-                                        :
                                            :
JUHAN BROWN                                 :       Case No. 14CA3
                                            :
                                            :
        Defendant - Appellant               :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Richland County
                                                    Court of Common Pleas, Case No.
                                                    2010 CR 603 H



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   July 22, 2014



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellee

JAMES J. MAYER, JR.                                 JUHAN BROWN
Prosecuting Attorney                                # A 601-361
                                                    c/o Richland Correctional Instutution
By: JILL M. COCHRAN                                 P.O. Box 8107
Assistant Prosecuting Attorney                      Mansfield, OH 44901
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 14CA3                                                        2



Baldwin, J.

      {¶1}    Defendant-appellant Juhan Brown appeals from the December 27, 2013

Judgment Entry issued by the Richland County Court of Common Pleas overruling and

dismissing his ”Motion for Dismissal of Convictions Based on Inapplicable Offenses and

Motion to Take Judicial Notice”. Plaintiff-appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    In early 2009, METRICH officers began receiving information that an

individual from Detroit, Michigan, using the street name “Moe,” was selling crack

cocaine from a house in Mansfield, Ohio. In February and April 2009, the METRICH

officers, utilizing a confidential informant, made controlled drug purchases from

appellant. The first buy took place inside a house at 21 East Arch Street; the second

took place at 55 East Arch Street.

      {¶3}    In October 2009 METRICH officers arranged a third controlled drug buy

from appellant, using a different confidential informant, this time again at 55 East Arch

Street. Soon thereafter, METRICH officials obtained a search warrant for the premises

at 55 East Arch Street. The warrant was executed on October 22, 2009 by METRICH

and SWAT officers. A rented automobile parked nearby was also searched. Three

baggies of a substance later tested as crack cocaine were discovered, with respective

weights of 5.68 grams, 3.49 grams, and 3.24 grams. A digital scale was also found. In

addition, U.S. currency totaling more than $900.00 was obtained from appellant's pants

pockets.

      {¶4}    On November 11, 2009, appellant was indicted under case 09–CR–797H

by the Richland County Grand Jury on two counts of trafficking between one and ten
Richland County, Case No. 14CA3                                                              3


grams of crack cocaine in the vicinity of a school zone and one count of possession of

between ten and twenty-five grams of crack cocaine.

      {¶5}    On March 31, 2010, appellant filed a motion to suppress the evidence

obtained pursuant to the search warrant. The matter proceeded to a hearing before the

trial court on August 4, 2010. Appellant conceded via counsel that he had no protected

interest in the 55 East Arch residence, and the trial court denied the suppression motion

as to the house. Furthermore, items seized from the vehicle were found to have no

relevance to the case.

      {¶6}    On September 3, 2010, appellant was re-indicted under case 2010–

CR603H as follows:

      {¶7}    Count I: Trafficking in crack cocaine (between one and ten grams) in the

vicinity of a school zone, R.C. 2925.03(A), a felony of the third degree.

      {¶8}    Count II: Trafficking in crack cocaine (between one and ten grams) in the

vicinity of a school zone, R.C. 2925.03(A), a felony of the third degree.

      {¶9}    Count III: Possession of crack cocaine (between ten and twenty-five

grams), R.C. 2925.11, a felony of the second degree, with a forfeiture specification for

$940.00 in currency.

      {¶10}   Count IV: Trafficking in crack cocaine (between one and ten grams) in the

vicinity of a school zone, R.C. 2925.03(A), a felony of the third degree.

      {¶11}   The case proceeded to a jury trial commencing on March 14, 2011. On

March 18, 2011, the jury found appellant guilty on all four counts of the indictment,

including the specifications of trafficking in the vicinity of a school zone and the forfeiture

specification. On March 31, 2011, the trial court sentenced appellant to two years in
Richland County, Case No. 14CA3                                                        4


prison on each of the three trafficking counts, and five years on the possession count.

The terms were ordered to be served consecutively, for a total sentence of eleven years

in prison.

      {¶12}   Appellant then appealed his convictions and sentence. Pursuant to an

Opinion filed on June 13, 2012 in State v. Brown, 5th Dist. Richland No. 11 CA 42,

2012 -Ohio- 2672, this Court affirmed the judgment of the trial court.

      {¶13}   Subsequently, on July 15, 2013, appellant filed a “Motion for Dismissal of

Convictions Based on Inapplicable Offenses and a Motion to Take Judicial Notice”.

Appellant, in his motion, argued that on or about May 17, 2013, he had received digital

maps from his trial counsel and that such maps showed that none of his alleged

offenses were committed within the vicinity of a school zone. Appellant argued that he

could not, therefore, have been convicted of 3rd degree felony trafficking offenses.

Appellant also argued that his conviction for possession of crack cocaine in an amount

equal to or exceeding 10 grams and less than 25 grams was contrary to law based on a

November 2009 drug analysis report prepared by Mansfield Police Forensic Science

Laboratory that was attached to his motion. Finally, appellant argued that there was a

conflict of interest because the charging detective’s sole partner notarized the original

complaint and that “same detective’s signature attests to the items seized without him

ever being present at the home during the search.” Appellant attached a copy of the

Return for Search Warrant form to his motion. Appellant asked the trial court to take

judicial notice of the materials attached to his motion. Appellee filed a response on

December 18, 2013.
Richland County, Case No. 14CA3                                                          5


      {¶14}   The trial court,   pursuant to a December 27, 2013 Judgment Entry

overruled and dismissed appellant’s “Motion for Dismissal of Convictions Based on

Inapplicable Offenses and Motion to Take Judicial Notice”, which it treated as a petition

for post conviction relief. The trial court found that the same had been untimely filed and

that the alleged “new evidence” was available to appellant’s counsel at the time of trial.

The trial court also found that “[a]ny error at trial had to be presented in the appeal

process” and that appellant was attempting to raise issues not presented in his initial

appeal.

      {¶15}   Appellant now raises the following assignments of error on appeal:

      {¶16}   THE TRIAL COURT ENTIRELY ABUSED ITS DISCRETION WHEN IT

FAILED TO GRANT APPELLANT AN EVIDENTIARY HEARING PURSUANT TO

CRIM.R. 33(A)(6) BASED ON NEWLY DISCOVERED EVIDENCE.

      {¶17}   APPELLANT’S CONVICTION FOR POSSESSION OF DRUGS IN AN

AMOUNT EQUAL TO OR EXCEEDING 10 GRAMS BUT LESS THAN 25 GRAMS WAS

CONTRARY TO THE EVIDENCE SEIZED                    AND THUS, BEYOND THE TRIAL

COURT’S JURISDICTION. IN CONTRAVENTION OF R.C. 2925.11(A) OF THE OHIO

REVISED CODE.

      {¶18}   THE CHARGING INSTRUMENT AND SUBSEQUENT JURY VERDICT

CONVICTING APPELLANT OF TRAFFICKING CRACK COCAINE IN AN AMOUNT

EQUAL TO 1 GRAM BUT LESS THAN 10 GRAMS IS VOID AB INITIO. THERE

EXISTS NO SUCH PROVISION IN TH (SIC) OHIO REVISED CODE UNDER R.C.

2929.03(A).
Richland County, Case No. 14CA3                                                            6


                                              I, II, III

      {¶19}   Appellant, in his three assignments of error, challenges the trial court’s

December 27, 2013 Judgment Entry overruling and dismissing appellant’s “Motion for

Dismissal of Convictions Based on Inapplicable Offenses and Motion to Take Judicial

Notice”.

      {¶20}   In the syllabus of State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304,

679 N.E.2d 1131 the Supreme Court of Ohio set forth the standard by which post

conviction motions are to be reviewed in light of R.C. 2953.21: “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 post conviction relief as defined in R.C.

2953.21.”

      {¶21}   The Reynolds court explained that despite its caption, a motion meets the

definition of a petition for post conviction relief if it is (1) filed subsequent to a direct

appeal; (2) claims a denial of constitutional rights; (3) seeks to render the judgment

void; and (4) asks for vacation of the judgment and sentence. Id at 160.

      {¶22}   Accordingly, in reviewing appellant's motion, we find it to be a petition for

post conviction relief (PCR) as defined in R.C. 2953.21.            The motion was filed

subsequent to appellant’s direct appeal, claimed a denial of his constitutional rights and

sought to render the judgment void and also asked for vacation of the judgment and

sentence.

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

2953.21(A)(2) as follows:
Richland County, Case No. 14CA3                                                              7


      {¶24}   “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.”

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

      {¶26}   “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:

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

      {¶28}   “(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. 14CA3                                                           8


      {¶29}   “(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 …”

      {¶30}   In the case sub judice, appellant does not dispute that his petition was

untimely. Rather, he argues that he did not receive the digital maps and              other

evidentiary materials attached to his July 15, 2013 ” Motion for Dismissal of Convictions

Based on Inapplicable Offenses and a Motion to Take Judicial Notice” until

approximately May 17, 2013 and that they were, therefore, newly discovered evidence.

      {¶31}   However, we concur with the trial court that the “new” evidence was

available to appellant’s trial counsel at the time of trial and, therefore, was not newly

discovered evidence. As noted by appellee, the exhibits attached to appellant’s petition

clearly indicated at the top that they were faxed from appellant’s attorney’s office on

November 17, 2011 while the initial appeal was pending and within the time to file a

timely petition. Moreover, the search warrant return and lab test results were presented

at trial as exhibits and the indictment, which appellant argues was deficient, was part of

the trial court record. Because these were not newly discovered evidence, the trial court

did not err in overruling appellant’s untimely petition for post conviction relief without a

hearing.

      {¶32}   We also find that the issues that appellant are barred by the doctrine of

res judicata. Appellant had a prior opportunity to litigate the claims he now sets forth in

the instant appeal in his direct appeal. Such claims, therefore, are barred under the

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

The Perry court explained the doctrine as follows: “Under the doctrine of res judicata, a
Richland County, Case No. 14CA3                                                       9


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.” Id.

Other than the digital maps presented by appellant, the other exhibits and the

indictment were part of the record. As is stated above, the maps were available to

appellant’s trial counsel in November of 2011.

      {¶33}    Appellant’s three assignments of error are, therefore, overruled.

      {¶34}    Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.
