State v. Brown , 2015 Ohio 3957 ( 2015 )

[Cite as State v. Brown, 2015-Ohio-3957.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO )
)
PLAINTIFF-APPELLEE )
) CASE NO. 13 MA 175
VS. )
) OPINION
MILOUS BROWN )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 09 CR 557
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee Attorney Ralph Rivera
Assistant County Prosecutor
Mahoning County Prosecutor's Office
21 W. Boardman Street, 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant Milous Brown, Pro Se
#603-569
P.O. Box 540
Saint Clairsville, Ohio 43950-0540
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: September 23, 2015
[Cite as State v. Brown, 2015-Ohio-3957.]
DeGENARO, J.
{¶1} Defendant-Appellant, Milous Brown, appeals the judgment of the
Mahoning County Court of Common Pleas denying him post-conviction relief.
Although the trial court denied Brown's petition because it contained no substantive
basis and was barred by res judicata; it should have been dismissed because it was
never properly filed and thus untimely. Accordingly, because the trial court reached
the right result, although based upon an incorrect reason, the judgment is affirmed.
{¶2} On May 28, 2009, Milous Brown was indicted on two counts of gross
sexual imposition and one count of rape. The rape count was severed and
proceeded to a bench trial resulting in a conviction for the lesser included offense of
gross sexual imposition. Brown appealed and this court affirmed. State v. Brown, 7th
Dist. No. 12 MA 118, 2014-Ohio-4158, and a motion for post-conviction relief was
deemed untimely. State v. Brown, 7th Dist. No. 13 MA 176, 2014-Ohio-4008.
{¶3} Relevant to the instant appeal, Brown was convicted by a jury on the
gross sexual imposition counts; Brown appealed and this court affirmed. State v.
Brown, 7th Dist. No. 11 MA 117, 2013-Ohio-5528. An application to reopen with this
court was denied, State v. Brown, 7th Dist. No. 11 MA 117, 2014-Ohio-4831, and
motions for delayed appeal and reconsideration were denied by the Ohio Supreme
Court.
{¶4} Based upon the pleadings and the trial court's journal entry, we have
gleaned from this particularly limited record that, apparently, Brown drafted a petition
for post-conviction relief and served the State on March 28, 2012. The State
responded by filing a motion to dismiss two weeks later. However, Brown's petition is
not contained in the record, nor noted on the docket; thus, we are forced to conclude
that the petition was never filed with the clerk of courts. Somehow the trial court
obtained an unfiled copy of Brown's petition, which was considered by the trial court
when it denied the petition. Seeing the discrepancy in the record, this Court issued
an entry ordering the trial court to enter a further order on the omission.
{¶5} The trial court issued a brief judgment entry in response to this Court’s
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mandate: "The record should reflect that the Amended Notice of Post-conviction
Relief was reviewed as part of the record, Nunc Pro Tunc to November 16, 2012,
(sic)." The trial court denied the petition holding that it contained no substantive
grounds for relief and was barred by res judicata as the claims alleged could have
been raised on direct appeal.
{¶6} Brown had 180 days from the date the transcripts were filed in his direct
appeal of the two GSI convictions to file his petition in order for it to be considered
timely. As of the date of this opinion, Brown has yet to file his post-conviction petition.
{¶7} All three of Brown’s assignments of error challenge the trial court's
denial of his petition for post-conviction relief, and they assert:
The trial court violated the appellants (sic) rights with its blanket
denial of "res judicata" on his post-conviction relief petition filed under
R.C. 2953.21 which covered violations of the Fifth, Sixth and
Fourteenth Amendments of the United States Constitution.
The trial court violated the appellants (sic) rights with its blanket
denial of no "substantive grounds for relief" and "failed to establish
these allegations with evidence dehors the record" on his post-
conviction relief petition filed under R.C. 2953.21 which covered
violations of the Fifth, Sixth, and Fourteenth Amendments of the United
States Constitution.
The trial court violated the appellants (sic) rights when it denied
his post-conviction petition without filing findings of fact and conclusions
of law. R.C. 2953.21.
{¶8} The post-conviction relief process is a collateral civil attack on a
criminal judgment, not an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d
279, 281, 1999-Ohio-102, 714 N.E.2d 905. Under R.C. 2953.21, relief from a
judgment or sentence is available for a person convicted of a criminal offense who
demonstrates that "there was such a denial or infringement of the person's rights as
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to render the judgment void or voidable under the Ohio Constitution or the
Constitution of the UnitedStates[.]" Calhoun, at 283.
{¶9} We need not reach the arguments raised by Brown’s post-conviction
motion as it has never been properly filed with the trial court. “A document is ‘filed’
when it is deposited properly for filing with the clerk of courts.” Zanesville v. Rouse,
126 Ohio St.3d 1, 2010-Ohio-2218, 929 N.E.2d 1044, syllabus. The Ninth District
encountered a similar situation in State v. Tierney, 9th Dist. No. 78847, 2002-Ohio-
2607 stating:
We note again that there is no record on the docket that any such
motion was filed. Appellant attached a motion to suppress to his brief
that he submitted to this court. The docket shows other filings Tierney
made pro se. We therefore need not consider this motion at all. The
record on appeal consists of “[t]he original papers and exhibits thereto
filed in the trial court * * * and a certified copy of the docket and journal
entries [.]” App.R. 9(A) (emphasis added). Because appellant's motion
was never properly filed with the trial court, it does not constitute part of
the record for this appeal.
Tierney, ¶ 34.
{¶10} Brown failed to file his motion for post-conviction relief. As such, it was
not a part of the record and cannot be considered herein. “It is the duty of the
appellant to ensure that the record on appeal is complete.” State v. Daniels, 9th Dist.
No. 08CA009488, 2009–Ohio–1712, at ¶ 22, quoting Lunato v. Stevens Painton
Corp., 9th Dist. No. 08CA009318, 2008–Ohio–3206, at ¶ 11. Accordingly, the
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decision of the trial court is affirmed.
Donofrio, PJ, concurs
Waite, J., concurs