STATE OF OHIO -v- ERNEST A. (BOOKER) BROWN

Canton, Ohio - Criminal defense attorney represented Ernest Allen Brown aka Ernest Allen Booker with aggravated burglary, kidnapping and rape charges.

For purposes of this Opinion, the relevant facts and procedural history are

as follows:

{¶4} In July, 1996, Appellant Ernest Allen Brown aka Ernest Allen Booker was

indicted by the Stark County Grand Jury on charges of aggravated burglary, kidnapping

and rape. Because Appellant had previously been convicted of rape in Montgomery

County and was still on parole, the indictment contained three repeat violent offender

specifications.

{¶5} Following a trial by jury, Appellant was convicted of all charges and

sentenced to sixty (60) years in prison.

{¶6} Appellant filed a direct appeal of his convictions and sentences to this Court

arguing that he was denied effective assistance of counsel. This Court sustained his

assignment of error and remanded his case to the trial court for retrial. State v. Booker,

5th Dist., Stark App. No. 1996CA00319. (March 24, 1997, unreported).

{¶7} Appellant's case was retried and in May, 1997, a jury convicted Appellant

of aggravated burglary and kidnapping, both with repeat violent offender specifications.

The jury found Appellant not guilty of the charge of rape. The trial court sentenced

Appellant to forty (40) years in prison, ten (10) years for each first-degree felony conviction

and specification, to be served consecutively. Stark County, Case No. 2020 CA 00099 3

{¶8} In its sentencing entry, the trial court also determined Appellant to be a

sexual predator. In a separate entry, the trial court made separate findings of fact

regarding its determination that the crimes were committed with a separate animus and

did not merge. (Judgment Entry, June 9, 1997).

{¶9} Appellant did not file a direct appeal from his convictions and/or sentence.

{¶10} In 2019, Appellant filed a series of motions requesting resentencing, arguing

that his convictions were the result of a single course of conduct and not done with a

separate animus, and therefore his sentences should have merged.

{¶11} The trial court treated Appellant's motions as a petition for post-conviction

relief.

{¶12} On June 2, 2020, the trial court denied the motions.

{¶13} Appellant appealed the trial court's judgment entry on July 2, 2020. The

trial court appointed an attorney to represent him in a delayed appeal or subsequent postconviction proceedings. (Judgment Entry, Aug. 7, 2020).

{¶14} On September 2, 2020, Appellant filed an Appellant's Brief pro se.

{¶15} On February 10, 2021, Appellant filed a second Appellant's Brief through

counsel.

{¶16} Appellant now appeals, raising the following errors for review:

ASSIGNMENT OF ERROR

{¶17} "I. THE TRIAL COURT ABUSED ITS DISCRETION BY CONVERTING

APPELLANT'S MOTION FOR RESENTENCING TO CORRECT HIS SENTENCE TO A

PETITION FOR POST-CONVICTION RELIEF AND FOR NOT PERMITTING

APPELLANT FROM [SIC] FURTHER HEARINGS ON THIS MATTER.” Stark County, Case No. 2020 CA 00099 4

I.

{¶18} In his sole assignment of error, Appellant asserts that the trial court erred in

treating his motion for resentencing as a petition for post-conviction relief. We disagree.

{¶19} We agree with the trial court that Appellant's motion was, in actuality, a

petition for post-conviction relief because it requested the enforcement of rights

guaranteed by the United States Constitution. The Supreme Court of Ohio has spoken

on this issue in State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131:

{¶20} "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 postconviction relief

as defined in R.C. 2953.21.” Id. at syllabus.

{¶21} In Reynolds, the defendant filed a "Motion to Correct or Vacate Sentence.”

In the case sub juice, Appellant similarly filed a "Motion for Resentencing” arguing his

sentences should have been merged because his convictions were the result of a single

course of conduct.

{¶22} We further find Appellant's petition for post-conviction relief pursuant to R.C.

§2953.21 was not timely filed. R.C. §2953.21(A)(2)(a) states as follows:

(A)(2)(a) Except as otherwise provided in section 2953.23 of the

Revised Code, a petition under division (A)(1)(a)(i), (ii), or (iii) of this section

shall 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 Stark County, Case No. 2020 CA 00099 5

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

three hundred sixty-five days after the expiration of the time for filing the

appeal.

{¶23} Pursuant to R.C. §2953.23, "a court may not entertain a petition filed after

the expiration of the period prescribed in [R.C. 2953.21] unless division (A)(1) or (2) of

this section applies * * *.” R.C. §2953.23(A)(1) governs being unavoidably prevented from

discovering new evidence and R.C. §2953.23(A)(2) governs actual innocence as a result

of DNA testing.

{¶24} As is stated above, Appellant's conviction and sentence were memorialized

in a Judgment Entry filed on June 9, 1997. Since no appeal was taken, Appellant was

required to file his petition for postconviction relief "no later than three hundred sixty-five

days after the expiration of the time for filing the appeal.” Appellant, however, did not file

his first petition until September 9, 2019. Moreover, Appellant failed to make a showing

under R.C. §2953.23 to justify the late filing.

{¶25} Accordingly, we conclude that the trial court was without jurisdiction to hear

Appellant's post-conviction relief motion because he did not file it in a timely manner.

{¶26} Furthermore, we find that Appellant's claims are barred by the doctrine of

res judicata. "Under the doctrine of res judicata, a final judgment of conviction bars the

convicted defendant from raising or litigating in any proceedings, except an appeal from

that judgment, any defense or claimed lack of due process that was raised or could have

been raised ... on an appeal from that judgment.” State v. Perry (1967), 10 Ohio St.2d

175, 180, 226 N.E.2d 104. In this case, Appellant's arguments are based on the record. Stark County, Case No. 2020 CA 00099 6

Therefore, these issues could have been raised on direct appeal. Consequently, the

doctrine of res judicata bars Appellant from raising these issues here. State v. Saunders,

5th Dist. Stark No. 2003CA00141, 2003-Ohio-6794, ¶¶ 10-21.

{¶27} Based on the foregoing, Appellant's assignment of error is overruled.

For the reasons stated in the foregoing opinion, the decision of the Court of

Common Pleas, Stark County, Ohio, is affirmed.