State v. Brown , 2017 Ohio 4241 ( 2017 )

[Cite as State v. Brown , 2017-Ohio-4241.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-T-0105
- vs - :
FELIX O. BROWN, JR., :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 1995 CR 00127.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Felix O. Brown, Jr., pro se, PID: A312-676, Lorain Correctional Institution, 2075 South
Avon-Belden Road, Grafton, OH 44044 (Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Felix O. Brown, Jr., appeals the October 14, 2016 judgment of
the Trumbull County Court of Common Pleas denying his “Motion to Vacate Void
Judgment.” For the following reasons, we affirm the trial court’s judgment.
{¶2} Seventeen years ago, a jury found appellant guilty of murder, in violation
of R.C. 2903.02, with a firearm specification under R.C. 2941.145 and having weapons
while under disability, in violation of R.C. 2923.13. Appellant appealed from his
conviction. The conviction was upheld by this court in State v. Brown, 11th Dist. Nos.
95-T-5349 & 98-T-0061, 2000 WL 522339 (Mar. 31, 2000).
{¶3} On August 25, 2011, appellant filed a “Civil Rules Rule 60(B) motion for
relief from judgment, or in the alternative, Crim.R. 47 motion to vacate judgment,”
arguing the trial court’s judgment of conviction was void due to misnomer. On
September 20, 2011, appellant filed a motion to amend the Civ.R. 60(B)/Crim.R. 47
motion, requesting to include the argument that the trial court violated the statutory
mandate of R.C. 2945.11 when it refused to instruct the jury on the law of accident.
{¶4} The trial court denied appellant’s Civ.R. 60(B)/Crim.R. 47 motion and
overruled his motion to amend. On appeal, this court affirmed. State v. Brown, 11th
Dist. Trumbull No. 2011-T-0101, 2012-Ohio-4465. We found the argument in
appellant’s motion to amend was barred by res judicata because he could have raised it
on direct appeal.
{¶5} On August 25, 2016, appellant filed a motion to vacate void judgment,
stating the motion was filed in accordance with Crim.R. 47. Appellant alleged his
judgment of conviction is void because the trial court acted without authority when it
failed to instruct the jury on the lesser-included offenses of reckless homicide and
involuntary manslaughter and on the defense of accident.
{¶6} Appellee, the state of Ohio, filed a brief in opposition to appellant’s motion
to vacate void judgment, arguing appellant’s arguments were barred by the doctrine of
the law of the case. Appellee maintained appellant raised the same or similar issues in
his prior Civ.R. 60(B)/Crim.R. 47 motion and that, on appeal, this court held his
argument regarding failing to instruct the jury on the defense of accident was barred by
res judicata. Appellant filed a reply to appellee’s brief in opposition.
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{¶7} On October 14, 2016, the trial court denied appellant’s motion to vacate
void judgment filed August 25, 2016, finding appellant’s arguments were barred by res
judicata.
{¶8} On November 7, 2016, appellant filed a timely notice of appeal from the
trial court’s October 14, 2016 judgment.
{¶9} Appellant raises two assignments of error on appeal:
[1.] The Court erred as a matter of law, when it applied the Doctrine
of Res judicata to a void judgment. Where it has been clearly
shown that the trial court, during Appellant’s criminal jury trial
proceedings, acted in a manner wholly unauthorized by law, and
thereby worked a manifest injustice, by blatantly disregarding the
applicable rules of law – issued by, both, the Supreme Court of
Ohio (State v. Loudermill, 2 Ohio St. 2d 79), and the Ohio General
Assembly (O.R.C. § 2945.11) – when [it] totally refused to properly
charge the jury on the law on any lesser included offense on
murder; where the evidence presented in support was obvious, and
when the reading of a lesser included offense instruction had been
properly and timely requested by defense counsel.
[2.] The Court abused its’ discretion when the Doctrine of Res
judicata was applied to Appellant’s Ground For Relief; where the
Court pronounced the following: ‘[The defendant has already taken
this matter before the Eleventh District Court of Appeals. Therefore,
upon review, the Court finds the relief requested is barred by res
judicata. The Motion to Vacate Void Judgment is not well taken and
the same is hereby denied.’ Whereas, the merit of Appellant’s
Ground One For Relief, as well as the controlling law of the Ohio
Supreme Court offered in support; has never been raised, argued
or reviewed by any court: state or federal.
{¶10} Appellee waived its right to submit an answer brief, but referred this court
to its brief in opposition to appellant’s motion to vacate void judgment. Appellee
maintains the trial court properly applied the doctrine of res judicata and requests this
court affirm the trial court’s decision to deny the motion.
{¶11} We address appellant’s assignments of error together. Appellant argues
the trial court erred in finding his arguments were barred by res judicata. Appellant
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maintains his judgment of conviction was void and not subject to res judicata because
the trial court acted in contravention of R.C. 2945.11, which states in pertinent part: “In
charging the jury, the court must state to it all matters of law necessary for the
information of the jury in giving its verdict.” Appellant argues the trial court failed to
instruct the jury on “all matters of law necessary” when it did not instruct the jury on any
lesser-included offenses or on the defense of accident.
{¶12} “In general, a void judgment is one that has been imposed by a court that
lacks subject-matter jurisdiction over the case or the authority to act.” State v. Bozek,
11th Dist. Portage No. 2015-P-0018, 2016-Ohio-1305, ¶20 (emphasis deleted), citing
State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, ¶27. Res judicata does not apply
to challenges to void judgments, which can be challenged at any time. State v. Bennett,
4th Dist. Scioto No. 15CA3682, 2015-Ohio-3832, ¶11 (citations omitted). In contrast, “a
voidable judgment is one rendered by a court that has both jurisdiction and authority to
act, but the court’s judgment is invalid, irregular, or erroneous.” Bozek, supra, at ¶20
(citations omitted). Challenges to voidable judgments are barred by res judicata if not
raised on direct appeal. State v. Parson, 2d Dist. Montgomery No. 24641, 2012-Ohio-
730, ¶10 (citation omitted).
Under 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.
State v. Perry, 10 Ohio St. 2d 175, 180 (1967) (citation omitted).
{¶13} Here, the trial court had jurisdiction over appellant’s case. See R.C.
2931.03. Any potential error in the trial court’s legitimate exercise of its jurisdiction,
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including the omission of an instruction on a lesser-included offense or on a defense,
rendered the court’s judgment voidable and not void. See State v. Evans, 2d Dist.
Montgomery No. 26574, 2015-Ohio-3161, ¶12 (“any alleged error in jury instructions is
something that must be raised on direct appeal”).
{¶14} It has not been established that the trial court committed any error in
instructing the jury at appellant’s trial. However, even if it did, an erroneous decision on
how to instruct the jury does not render a judgment “void”. Because appellant did not
raise any alleged error in this regard on direct appeal, his argument is barred by res
judicata.
{¶15} Furthermore, “the decision of a reviewing court in a case remains the law
of that case on the legal questions involved for all subsequent proceedings in the case
at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St. 3d 1, 3 (1984)
(citations omitted). This court previously determined that appellant’s argument
regarding the trial court’s failure to give a jury instruction on the defense of accident was
barred by res judicata. Brown, supra, at ¶22. Therefore, our previous judgment with
regard to that issue remains the law for all subsequent proceedings in this case.
{¶16} Appellant’s assignments of error are overruled.
{¶17} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas is affirmed.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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