STATE OF OHIO v. ANTOYNE LOVELL BRANDON

Dayton, OH - Criminal defense lawyer represented defendant Jeffrey M. Welbaum with , appeals from a judgment of the Clark County Court of Common Pleas denying his “Motion to Vacate Void Sentence.” On December 16, 2019, Brandon’s appellate counsel filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any non-frivolous issues for appeal.

On July 11, 2016, a Clark County grand jury returned a six-count indictment

charging Brandon with two counts of felonious assault, two counts of having a weapon

while under disability, one count of discharging a firearm on or near a prohibited premises,

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and one count of tampering with evidence. Both of the felonious assault counts and the

count for discharging a firearm on or near a prohibited premises included a firearm

specification. The two felonious assault counts also included a specification that

Brandon committed the offenses by discharging a firearm from a motor vehicle.

{¶ 4} On October 26, 2016, Brandon entered a plea agreement with the State

whereby he agreed to plead guilty to one count of felonious assault, a second-degree

felony; one count of having a weapon while under disability, a third-degree felony; and

one count of tampering with evidence, also a third-degree felony. In exchange for his

guilty plea, the State agreed to dismiss the remaining charges in the indictment and all

the attendant specifications. After being advised of the plea agreement, the trial court

accepted Brandon’s guilty plea and ordered a presentence investigation (“PSI”) for

purposes of sentencing.

{¶ 5} On November 10, 2016, the trial court sentenced Brandon to seven years in

prison for felonious assault, 30 months in prison for having a weapon while under

disability, and 18 months in prison for tampering with evidence. The trial court ordered

these prison terms to run consecutively for a total, aggregate sentence of 11 years in

prison. The trial court also ordered Brandon to pay court costs and to forfeit the firearm

that he used while committing his offenses. The trial court further advised Brandon that

post-release control would be mandatory for a period of three years after he served his

time in prison. Brandon did not appeal from his conviction.

{¶ 6} On June 4, 2019, over three years after he was convicted, Brandon filed a

“Motion to Vacate Void Sentence.” In support of that motion, Brandon argued that his

sentence was void because the trial court failed to properly impose a mandatory term of

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post-release control as required by R.C. 2967.28. Specifically, Brandon pointed to

language in the judgment entry of conviction that read: “The Court has further notified the

defendant that post release control is mandatory optional in this case for a period of three

years.” (Emphasis added.) Judgment Entry of Conviction (Nov. 10, 2016), p. 3.

Because the trial court improperly included the word “optional” in the judgment entry,

Brandon claimed that he was never sentenced to a mandatory term of post-release

control. According to Brandon, this error rendered his sentence void and required him

to be resentenced.

{¶ 7} On June 20, 2019, the trial court denied Brandon’s “Motion to Vacate Void

Sentence,” because it found that the word “optional” in the judgment entry was merely a

“typing error” that could be corrected via “a conviction entry nunc pro tunc.” Entry (June

20, 2019). The trial court thereafter filed a nunc pro tunc judgment entry of conviction

that omitted the word “optional.” The nunc pro tunc entry read as follows: “The Court

has further notified the defendant that post release control is mandatory in this case for

a period of three years.” (Emphasis sic.) Amended Nunc Pro Tunc Judgment Entry of

Conviction (June 20, 2019), p. 3.

{¶ 8} Brandon now appeals from the trial court’s denial of his “Motion to Vacate

Void Sentence.” As noted above, in proceeding with the appeal, Brandon’s appellate

counsel filed an Anders brief asserting the absence of any non-frivolous issues for appeal;

he also asked permission to withdraw. The Anders brief includes three potential

assignments of error for this court’s consideration.

Standard of Review

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{¶ 9} Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, this court

must conduct an independent review of the record to determine if the appeal at issue is

wholly frivolous. Id. at 744. “Anders equates a frivolous appeal with one that presents

issues lacking in arguable merit. An issue does not lack arguable merit merely because

the prosecution can be expected to present a strong argument in reply, or because it is

uncertain whether a defendant will ultimately prevail on that issue on appeal.” State v.

Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. Rather, “[a]n issue

lacks arguable merit if, on the facts and law involved, no responsible contention can be

made that it offers a basis for reversal.” Id., citing State v. Pullen, 2d Dist. Montgomery

No. 19232, 2002-Ohio-6788, ¶ 4.

{¶ 10} If we determine the appeal is frivolous, we may grant counsel’s request to

withdraw and then dismiss the appeal without violating any constitutional requirements,

or we can proceed to a decision on the merits if state law requires it. State v. McDaniel,

2d Dist. Champaign No. 2010-CA-13, 2011-Ohio-2186, ¶ 5, citing Anders at 744.

However, “[i]f we find that any issue presented or which an independent analysis reveals

is not wholly frivolous, we must appoint different appellate counsel to represent the

defendant.” Marbury at ¶ 7, citing Pullen at ¶ 2.

First Potential Assignment of Error

{¶ 11} Under the first potential assignment of error, counsel suggests that

Brandon’s 11-year prison sentence is contrary to law because the trial court failed to

consider the principles and purposes of felony sentencing in R.C. 2929.11 and the

sentencing factors in R.C. 2929.12. We, however, do not have jurisdiction to review the

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trial court’s sentencing decision as part of this appeal.

{¶ 12} “When an appeal is taken from a final judgment, only the judgment appealed

from is brought before the appellate court, and upon review, the appellate court will affirm,

modify or reverse the judgment appealed from.” In re J.L., 2d Dist. Montgomery No.

26938, 2016-Ohio-5649, ¶ 19, citing Troyer v. Goodville Mut. Cas. Co., 5th Dist. Holmes

No. CA-467, 1993 WL 107979, *1 (Apr. 1, 1993), citing In re Kurtzhalz, 141 Ohio St. 432,

48 N.E.2d 657 (1943). “Consequently, an appellate court lacks jurisdiction to review a

judgment or order that is not designated in the appellant’s notice of appeal.” (Citation

omitted.) State v. Howard, 2d Dist. Montgomery No. 21678, 2007-Ohio-3582, ¶ 10.

Accord State v. White, 2018-Ohio-2573, 115 N.E.3d 878, ¶ 25 (2d Dist.).

{¶ 13} In this case, Brandon did not appeal from the trial court’s conviction, which

included his sentence, but from the trial court’s judgment denying his “Motion to Vacate

Void Sentence.” In that motion, Brandon’s sole argument for vacating his sentence was

that post-release control was not properly imposed due to a typographical error in the

judgment entry of conviction. As previously noted, the trial court denied Brandon’s

motion after finding that the typographical error could be corrected by way of nunc pro

tunc entry. Therefore, our review on appeal is limited to the trial court’s decision on that

matter. Any other matter is beyond the scope of this appeal and cannot be addressed.

{¶ 14} We also cannot address Brandon’s sentencing argument because it is

barred by the doctrine of res judicata. “Pursuant to the doctrine of res judicata, a valid

final judgment on the merits bars all subsequent actions based on any claim arising out

of the transaction or occurrence that was the subject matter of the previous action.”

State v. Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v.

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Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995). “The res judicata bar applies

to any defense that was raised or could have been raised in a criminal defendant’s prior

direct appeal from his conviction and/or sentence.” Id., citing State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104 (1967). It is well established that a challenge to the trial

court’s consideration of the principles and purposes of felony sentencing in R.C. 2929.11

and the sentencing factors in R.C. 2929.12 is barred by the doctrine of res judicata when

it is not pursued in a direct appeal. See, e.g., State v. Kline, 2d Dist. Montgomery No.

28362, 2019-Ohio-4704, ¶ 4-7; State v. Ray, 8th Dist. Cuyahoga No. 101142, 2014-Ohio4689, ¶ 4-11; State v. Steele, 10th Dist. Franklin No. 18AP-187, 2018-Ohio-3950, ¶ 4-5

and ¶ 16.

{¶ 15} Here, Brandon’s claim that the trial court failed to consider the principles

and purposes of felony sentencing in R.C. 2929.11 and the sentencing factors in R.C.

2929.12 should have been raised in a direct appeal from his judgment of conviction.

Brandon, however, did not file a direct appeal. Because Brandon did not raise the claim

in a direct appeal, it is now barred by the doctrine of res judicata.

{¶ 16} Even if it were proper for this court to review Brandon’s sentencing

argument, the judgment entry of conviction and the transcript of the sentencing hearing

both indicate that the trial court considered the principles and purposes of felony

sentencing in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. See Judgment

Entry of Conviction (Nov. 10, 2016), p. 1; Disposition Tr. (Nov. 10, 2016), p. 8-9.

{¶ 17} Brandon’s first potential assignment of error does not have arguable merit.

Second Potential Assignment of Error

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{¶ 18} Under the second potential assignment of error, counsel suggests that the

trial court erred by issuing a nunc pro tunc entry to correct the post-release control

typographical error in the judgment entry of conviction as opposed to holding a

resentencing hearing. We disagree.

{¶ 19} A nunc pro tunc entry is an appropriate vehicle for the trial court to correct

clerical or typographical errors in a judgment entry. State v. Donley, 2017-Ohio-562, 85

N.E.3d 324, ¶ 103 (2d Dist.), citing Crim.R. 36; State v. Hibbler, 2d Dist. Clark No. 2019-

CA-19, 2019-Ohio-3689, ¶ 20; State v. Berryman, 2d Dist. Montgomery No. 25801, 2012-

Ohio-5208, ¶ 13. The Supreme Court of Ohio has explained that “where notification of

post[-]release control was accurately given at the sentencing hearing, an inadvertent

failure to incorporate that notice into the [sentencing entry] may be corrected by a nunc

pro tunc entry without a new sentencing hearing.” State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 30, citing State v. Qualls, 131 Ohio St.3d 499, 2012-

Ohio-1111, 967 N.E.2d 718, ¶ 15.

{¶ 20} In this case, the trial court properly advised Brandon at the sentencing

hearing that he would be placed on mandatory post-release control for a period of three

years after he completed his 11-year prison term. Since the trial court accurately notified

Brandon about his mandatory term of post-release control at the sentencing hearing, it

was appropriate for the trial court to correct the typographical error in the judgment entry

by issuing a nunc pro tunc entry that omitted the word “optional” from the entry.

Brandon’s claim otherwise lacks merit.

{¶ 21} We also note that the Supreme Court of Ohio recently held that “sentencing

errors in the imposition of post[-]release control render the sentence voidable, not void,

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and the sentence may be set aside if successfully challenged on direct appeal.” State

v. Harper, Ohio Slip Opinion No. 2020-Ohio-2913, __ N.E.3d __, ¶ 42. In so holding, the

Supreme Court explained that “any claim that the trial court has failed to properly impose

post[-]release control in the sentence must be brought on appeal from the judgment of

conviction or the sentence will be subject to res judicata.” Id. at ¶ 43. As a result of this

holding, Brandon’s argument challenging the trial court’s imposition of post-release

control is also barred by res judicata as it should have been raised in a direct appeal from

his judgment of conviction.

Brandon’s second potential assignment of error does not have arguable merit.

Third Potential Assignment of Error

{¶ 22} The third potential assignment of error submitted by counsel is poorly

worded and difficult to discern. We construe it as arguing that Brandon was never given

the opportunity to challenge the imposition of fines and court costs because the trial court

failed to properly impose fines and court costs at sentencing. Like the first potential

assignment of error, this claim is outside the scope of Brandon’s appeal, because the

issue of fines and court costs was not part of the judgment on appeal. Therefore, we do

not have jurisdiction to review Brandon’s third potential assignment of error.

{¶ 23} Even if we had jurisdiction to review the matter, the record establishes that

Brandon was never required to pay any fines; thus, there were no fines for him to

challenge at sentencing. The record also establishes that the trial court properly

imposed court costs both at the sentencing hearing and in the judgment entry. See

Disposition Tr., p. 12; Judgment Entry of Conviction (Nov. 10, 2019), p. 3; Amended Nunc

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Pro Tunc Judgment Entry of Conviction (June 20, 2020), p. 3. Therefore, contrary to

Brandon’s claim otherwise, Brandon was put on notice of his obligation to pay court costs.

{¶ 24} R.C. 2947.23(C) specifically provides that a trial court “retains jurisdiction to

waive, suspend, or modify” court costs “at the time of sentencing or at any time thereafter.”

See also State v. Taylor, Ohio Slip Opinion No. 2020-Ohio-3514, __ N.E.3d __, ¶ 7.

Therefore, a trial court may waive, suspend, or modify the payment of court costs “at any

time, regardless of when the costs were assessed.” State v. Nunez, 2d Dist.

Montgomery No. 28457, 2020-Ohio-46, ¶ 4, citing State v. Braden, 158 Ohio St.3d 462,

2019-Ohio-4204, 145 N.E.3d 235. If Brandon has an issue with paying court costs,

under R.C. 2947.23(C), he has not lost the ability to move for a waiver, suspension, or

modification of those costs. That issue, however, cannot be addressed in the instant

appeal.

{¶ 25} Brandon’s third potential assignment of error does not have arguable merit.

After conducting an independent review of the record as required by

Anders, we find that, based on the facts and relevant law involved, there are no issues

with arguable merit to present on appeal. Accordingly, the judgment of the trial court is

affirmed.