[Cite as State v. Brooks, 2017-Ohio-2832.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.       28381

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MAURICE EDWARD LAPAUL BROOKS                         COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 1992 09 2196 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: May 17, 2017



        TEODOSIO, Judge.

        {¶1}     Appellant, Maurice Edward LaPaul Brooks, appeals from an order denying his

petition for post-conviction relief by the Summit County Court of Common Pleas. This Court

affirms.

                                                I.

        {¶2}     In 1993, Mr. Brooks was convicted of three counts of aggravated murder with

firearm and death specifications and was sentenced to death.          The convictions and death

sentences were affirmed on appeal. State v. Brooks, 9th Dist. Summit No. 16192, 1994 WL

362143 (July 13, 1994). The Supreme Court of Ohio affirmed the convictions, but reversed the

death sentences and remanded for resentencing. State v. Brooks, 75 Ohio St.3d 148, 1996-Ohio-

134. The trial court resentenced Mr. Brooks to three consecutive life sentences with parole

eligibility after ninety years. The State appealed, but the life sentences were affirmed on appeal.

State v. Brooks, 118 Ohio App.3d 444 (9th Dist.1997).
                                                 2


         {¶3}   In 2008, Mr. Brooks filed a common law petition to vacate void judgment,

arguing that his true name is Maurice Edward LaPaul Brooks, not the name listed on the

indictment, to wit: Antonio M. Brooks. The trial court denied the petition as “an untimely

petition for post-conviction relief and/or a misfiled petition for writ of habeas corpus.” The

decision was affirmed on appeal. State v. Brooks, 9th Dist. Summit No. 24510, 2009-Ohio-2341.

In 2010, the trial court denied another untimely petition for post-conviction relief, but Mr.

Brooks did not appeal.

         {¶4}   In 2016, Mr. Brooks filed another petition for post-conviction relief, which was

denied. Mr. Brooks now appeals from the trial court’s order denying his most recent petition for

post-conviction relief and raises two assignments of error for this Court’s review.

         {¶5}   For ease of analysis, we consolidate Mr. Brooks’ first and second assignments of

error.

                                                II.

                               ASSIGNMENT OF ERROR ONE

         DID THE TRIAL COURT ERR WHEN IT EXCEEDED SUBJECT-MATTER
         JURISDICTION IN SENTENCING APPELLANT AS ONE “ANTONIO M.
         BROOKS” UNDER THE NAME WILLFULLY GIVEN BY THE STATE OF
         OHIO [SUMMIT COUNTY, OHIO] AND WITHOUT ALLEGING ANY
         MISNOMER WHILE APPELLANT’S TRUE IDENTITY WAS AVAILABLE
         IN VIOLATION OF R.C. 2941.03(C) & R.C. 2941.17 AND THE UNITED
         STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO
         CONSTITUTION.

                              ASSIGNMENT OF ERROR TWO

         WHETHER     APPELLANT      WAS     PROVIDED    DEFICIENT
         REPRESENTATION OF COUNSELS DURING HIS TRIAL AND
         APPELLATE STAGES IN THEIR FAILURES TO ARGUE A PROPER
         INDICTMENT NEEDED TO CHARGE THE APPELLANT UNDER HIS
         LEGAL IDENTITY WAS THE PRODUCT OF A SIXTH AMENDMENT
         VIOLATION OF HIS CONSTITUTIONAL RIGHT TO PRESENTMENT OF
         AN INDICTMENT AND THE RIGHT TO EFFECTIVE ASSISTANCE OF
                                                 3


       COUNSELS, ALSO CONFERRED IN ARTICLE I, SECTION 10, 16[,] OF THE
       OHIO CONSTITUTION.

       {¶6}    In his first assignment of error, Mr. Brooks argues that the trial court did not have

subject-matter jurisdiction because either he is not the person who was indicted in this case or he

was indicted under the wrong name, and his convictions are therefore void. In his second

assignment of error, Mr. Brooks argues that his trial attorneys were ineffective because they did

not challenge the sufficiency of the indictment regarding the error in the indicted name. We

disagree with both propositions.

       {¶7}    Generally, “[w]e review a trial court’s decision denying a petition for post-

conviction relief under an abuse of discretion standard.” State v. Daniel, 9th Dist. Summit No.

26670, 2013-Ohio-3510, ¶ 7. Our standard of review is de novo, however, when the trial court

denies a petition solely on the basis of an issue of law. State v. Childs, 9th Dist. Summit No.

25448, 2011-Ohio-913, ¶ 9. “Whether a defendant’s post-conviction relief petition satisfied the

procedural requirements set forth in R.C. 2953.21 and R.C. 2953.23 is an issue of law.” Id.

Here, the trial court denied Mr. Brooks’ petition presumably as an untimely petition or

successive petition for similar relief under R.C. 2953.23(A) by stating:

       Defendant previously filed a petition for post[-]conviction relief in 2009 alleging
       the trial court lacked jurisdiction to sentence him because he was not the person
       identified in the original indictment. This is the same basis for Defendant’s
       current Petition. In 2009, the trial court denied Defendant’s Petition which was
       affirmed by the 9[th] District [C]ourt of Appeals. * * * The Court denies
       Defendant’s petition for post[-]conviction relief.

Therefore, a de novo standard of review applies here. See Childs at ¶ 9.

       {¶8}    R.C. 2953.21(A)(2) provides that petitions for post-conviction relief:

       [S]hall be filed no later than three hundred sixty-five 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.
                                                 4



A court may not entertain successive or untimely petitions unless the petitioner satisfies certain

requirements. He must show that he was unavoidably prevented from discovering the facts he

relies on or that, subsequent to the R.C. 2953.21(A)(2) deadline, the United States Supreme

Court recognized a new federal or state right that applies retroactively to persons in his situation,

and the petition asserts a claim based on that right. R.C. 2953.23(A)(1)(a). He must further

show “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 [he] was convicted” or,

“if the claim challenges a sentence of death that, but for constitutional error at the sentencing

hearing, no reasonable factfinder would have found the petitioner eligible for the death

sentence.” R.C. 2953.23(A)(1)(b).

       {¶9}    “The fact that a petitioner raises a defective indictment argument in his petition

does not constitute an exception to R.C. 2953.23’s procedural requirements.” State v. Morris,

9th Dist. Summit No. 24613, 2009-Ohio-3183, ¶ 7. Mr. Brooks was initially sentenced to death

and the trial transcript was filed in the Supreme Court of Ohio on September 15, 1994. After

being resentenced to life in prison, the trial transcript was filed in this Court on September 3,

1996. Mr. Brooks filed the instant petition on August 15, 2016, two decades after the R.C.

2953.21(A)(2) deadline. He has also already filed two previous untimely petitions for post-

conviction relief, which were both denied. He has not shown this Court how he has satisfied his

burden under R.C. 2953.23(A)(1). Therefore, we conclude that the trial court did not have

statutory authority to consider the merits of the petition and correctly denied it. See State v.

Russell, 9th Dist. Summit No. 28206, 2017-Ohio-723, ¶ 5.

       {¶10} Mr. Brooks’ first and second assignments of error are overruled.
                                                 5


                                                III.

       {¶11} Mr. Brooks’ assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT




CALLAHAN, J.
CONCURS.
                                                 6


CARR, P. J.
CONCURRING.

        {¶12} I concur but write separately to emphasize that an offender cannot evade the

requirements of R.C. 2953.23(A) simply by alleging that his convictions are “void.” See State v

Wright, 9th Dist. Summit No. 27880, 2016-Ohio-3542, ¶ 7-9. Thus, merely asserting that a

conviction is void does not trigger a void conviction analysis when the substance of the

challenge falls squarely in the realm of post-conviction relief. Though Brooks attempts to couch

his argument in terms of voidness, his most recent challenge to his convictions in the trial court

constituted a petition for post-conviction relief that was both untimely and successive. Because

he failed to satisfy the requirements set forth in R.C. 2953.23(A), the trial court did not have the

authority to entertain his petition.


APPEARANCES:

MAURICE EDWARD LAPAUL BROOKS, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
