[Cite as State v. Brooks, 2021-Ohio-2427.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29004 : v. : Trial Court Case No. 2009-CR-593 : FREDERICK BROOKS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 16th day of July, 2021.
MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
FREDERICK BROOKS, Inmate No. A618-389, Pickaway Correctional Institution, P.O. Box 209, Orient, Ohio 43143 Attorney for Defendant-Appellant
.............
WELBAUM, J. -2-
{¶ 1} Defendant-appellant, Frederick Brooks, appeals pro se from the judgment of
the Montgomery County Court of Common Pleas denying his Motion to Correct
Conviction. For the reasons outlined below, the judgment of the trial court will be
affirmed.
Facts and Course of Proceedings
{¶ 2} On November 20, 2009, a jury found Brooks guilty of one count of aggravated
robbery (deadly weapon) in violation of R.C. 2911.01(A)(1), one count of aggravated
robbery (serious harm) in violation of R.C. 2911.01(A)(3), one count of felonious assault
(serious harm) in violation of R.C. 2903.11(A)(1), one count of felonious assault (deadly
weapon) in violation of R.C. 2903.11(A)(2), and one count of having weapons while under
disability (prior drug conviction) in violation of R.C. 2923.13(A)(3). Brooks was also
found guilty of four firearm specifications that were attached to the aggravated robbery
and felonious assault counts.
{¶ 3} At sentencing, the trial court imposed ten years in prison for each of the two
aggravated robbery counts, eight years in prison for each of the two felonious assault
counts, and four years in prison for having weapons while under disability. The trial court
ordered the sentences for aggravated robbery to run concurrently with each other and
concurrently with one of the sentences for felonious assault and the sentence for having
weapons while under disability. The second sentence for felonious assault was ordered
to run consecutively to the other sentences. The trial court also imposed three years in
prison for each of the four firearm specifications and ordered those sentences to run
concurrently with each other and consecutively and prior to the definite term of -3-
imprisonment, for a total sentence of 21 years.
{¶ 4} Brooks appealed from his conviction. In support of his appeal, Brooks
argued that his conviction was against the manifest weight of the evidence because the
evidence established that he committed the offenses in question while acting in self-
defense. Brooks also argued that the trial court erred by failing to merge the two counts
of felonious assault as allied offenses of similar import. Upon review, we determined
that Brooks’s conviction was not against the manifest weight of the evidence. We did,
however, find that the felonious assault counts were allied offenses that should have been
merged at sentencing. Therefore, we reversed Brooks’s sentences for felonious assault
and remanded the matter to the trial court for purposes of merging the felonious assault
counts and resentencing Brooks accordingly. See State v. Brooks, 2d Dist. Montgomery
No. 23784, 2010-Ohio-5886.
{¶ 5} On December 22, 2010, the trial court resentenced Brooks. In doing so, the
trial court merged the felonious assault counts and their attendant firearm specifications.
Following the merger, the trial court once again imposed a total, aggregate sentence of
21 years in prison.
{¶ 6} Over the next ten years, Brooks filed multiple pro se motions with the trial
court, including a Motion to Correct Conviction1 filed on November 18, 2020. In that
motion, Brooks challenged his conviction for having weapons while under disability on
grounds that it was based on a nonexistent felony drug conviction. Brooks also briefly
argued that his two counts of aggravated robbery were allied offenses of similar import
1 The full caption of Brooks’s motion is titled “Motion to Correct a Conviction that was not in Accordance with Statutory Authority (Evidentiary Hearing Requested) Conviction Contrary to Law.” -4-
that the trial court should have merged at sentencing. On December 29, 2020, the trial
court issued a decision denying Brooks’s motion on grounds that the claims asserted
therein were barred by the doctrine of res judicata. Brooks now appeals from that
decision, raising two assignments of error for review.
First and Second Assignments of Error
{¶ 7} Under his first assignment of error, Brooks claims to be challenging his
sentence, but actually raises a sufficiency of the evidence argument concerning his
conviction for having weapons while under disability under R.C. 2923.13(A)(3).
Specifically, Brooks argues that the State failed to establish that he had a prior felony
drug conviction, which is required for a violation of R.C. 2923.13(A)(3). Under his second
assignment of error, Brooks contends that his two counts of aggravated robbery were
allied offenses of similar import that the trial court should have merged at sentencing.
Upon review, we find that both of Brooks’s arguments are barred by the doctrine of res
judicata.
{¶ 8} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel 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, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
Therefore, “any issue that could have been raised on direct appeal,” but was not, is “not
subject to review in subsequent proceedings.” State v. Saxon, 109 Ohio St.3d 176, -5-
2006-Ohio-1245, 846 N.E.2d 824, ¶ 16, citing State v. Hutton, 100 Ohio St.3d 176, 2003-
Ohio-5607, 797 N.E.2d 948, ¶ 37 and State v. D'Ambrosio, 73 Ohio St.3d 141, 143, 652
N.E.2d 710 (1995).
{¶ 9} Whether the evidence was sufficient to convict Brooks of having weapons
while under disability is an issue that could have been raised during Brooks’s direct
appeal. Brooks did not raise that issue on direct appeal; therefore, his attempt to do so
now is barred by the doctrine of res judicata. See State v. Florence, 2d Dist. Montgomery
No. 28674, 2021-Ohio-867, ¶ 37; State v. Walls, 2d Dist. Miami No. 99-CA-9, 1999 WL
957825, *1 (Aug. 20, 1999). The same holds true for Brooks’s allied offense claim. See
Florence at ¶ 35. We note that the Supreme Court of Ohio has held that “[t]he imposition
of compound sentences for allied offenses is an error in the exercise of jurisdiction, to be
challenged at sentencing and remedied on direct appeal.” (Emphasis added.) State v.
State ex rel. Romine v. McIntosh, 162 Ohio St.3d 501, 2020-Ohio-6826, 165 N.E.3d 1262,
¶ 15. Therefore, because Brooks did not raise the aggravated robbery allied offense
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[Cite as State v. Brooks, 2021-Ohio-2427.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29004 : v. : Trial Court Case No. 2009-CR-593 : FREDERICK BROOKS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 16th day of July, 2021.
MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
FREDERICK BROOKS, Inmate No. A618-389, Pickaway Correctional Institution, P.O. Box 209, Orient, Ohio 43143 Attorney for Defendant-Appellant
.............
WELBAUM, J. -2-
{¶ 1} Defendant-appellant, Frederick Brooks, appeals pro se from the judgment of
the Montgomery County Court of Common Pleas denying his Motion to Correct
Conviction. For the reasons outlined below, the judgment of the trial court will be
affirmed.
Facts and Course of Proceedings
{¶ 2} On November 20, 2009, a jury found Brooks guilty of one count of aggravated
robbery (deadly weapon) in violation of R.C. 2911.01(A)(1), one count of aggravated
robbery (serious harm) in violation of R.C. 2911.01(A)(3), one count of felonious assault
(serious harm) in violation of R.C. 2903.11(A)(1), one count of felonious assault (deadly
weapon) in violation of R.C. 2903.11(A)(2), and one count of having weapons while under
disability (prior drug conviction) in violation of R.C. 2923.13(A)(3). Brooks was also
found guilty of four firearm specifications that were attached to the aggravated robbery
and felonious assault counts.
{¶ 3} At sentencing, the trial court imposed ten years in prison for each of the two
aggravated robbery counts, eight years in prison for each of the two felonious assault
counts, and four years in prison for having weapons while under disability. The trial court
ordered the sentences for aggravated robbery to run concurrently with each other and
concurrently with one of the sentences for felonious assault and the sentence for having
weapons while under disability. The second sentence for felonious assault was ordered
to run consecutively to the other sentences. The trial court also imposed three years in
prison for each of the four firearm specifications and ordered those sentences to run
concurrently with each other and consecutively and prior to the definite term of -3-
imprisonment, for a total sentence of 21 years.
{¶ 4} Brooks appealed from his conviction. In support of his appeal, Brooks
argued that his conviction was against the manifest weight of the evidence because the
evidence established that he committed the offenses in question while acting in self-
defense. Brooks also argued that the trial court erred by failing to merge the two counts
of felonious assault as allied offenses of similar import. Upon review, we determined
that Brooks’s conviction was not against the manifest weight of the evidence. We did,
however, find that the felonious assault counts were allied offenses that should have been
merged at sentencing. Therefore, we reversed Brooks’s sentences for felonious assault
and remanded the matter to the trial court for purposes of merging the felonious assault
counts and resentencing Brooks accordingly. See State v. Brooks, 2d Dist. Montgomery
No. 23784, 2010-Ohio-5886.
{¶ 5} On December 22, 2010, the trial court resentenced Brooks. In doing so, the
trial court merged the felonious assault counts and their attendant firearm specifications.
Following the merger, the trial court once again imposed a total, aggregate sentence of
21 years in prison.
{¶ 6} Over the next ten years, Brooks filed multiple pro se motions with the trial
court, including a Motion to Correct Conviction1 filed on November 18, 2020. In that
motion, Brooks challenged his conviction for having weapons while under disability on
grounds that it was based on a nonexistent felony drug conviction. Brooks also briefly
argued that his two counts of aggravated robbery were allied offenses of similar import
1 The full caption of Brooks’s motion is titled “Motion to Correct a Conviction that was not in Accordance with Statutory Authority (Evidentiary Hearing Requested) Conviction Contrary to Law.” -4-
that the trial court should have merged at sentencing. On December 29, 2020, the trial
court issued a decision denying Brooks’s motion on grounds that the claims asserted
therein were barred by the doctrine of res judicata. Brooks now appeals from that
decision, raising two assignments of error for review.
First and Second Assignments of Error
{¶ 7} Under his first assignment of error, Brooks claims to be challenging his
sentence, but actually raises a sufficiency of the evidence argument concerning his
conviction for having weapons while under disability under R.C. 2923.13(A)(3).
Specifically, Brooks argues that the State failed to establish that he had a prior felony
drug conviction, which is required for a violation of R.C. 2923.13(A)(3). Under his second
assignment of error, Brooks contends that his two counts of aggravated robbery were
allied offenses of similar import that the trial court should have merged at sentencing.
Upon review, we find that both of Brooks’s arguments are barred by the doctrine of res
judicata.
{¶ 8} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel 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, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
Therefore, “any issue that could have been raised on direct appeal,” but was not, is “not
subject to review in subsequent proceedings.” State v. Saxon, 109 Ohio St.3d 176, -5-
2006-Ohio-1245, 846 N.E.2d 824, ¶ 16, citing State v. Hutton, 100 Ohio St.3d 176, 2003-
Ohio-5607, 797 N.E.2d 948, ¶ 37 and State v. D'Ambrosio, 73 Ohio St.3d 141, 143, 652
N.E.2d 710 (1995).
{¶ 9} Whether the evidence was sufficient to convict Brooks of having weapons
while under disability is an issue that could have been raised during Brooks’s direct
appeal. Brooks did not raise that issue on direct appeal; therefore, his attempt to do so
now is barred by the doctrine of res judicata. See State v. Florence, 2d Dist. Montgomery
No. 28674, 2021-Ohio-867, ¶ 37; State v. Walls, 2d Dist. Miami No. 99-CA-9, 1999 WL
957825, *1 (Aug. 20, 1999). The same holds true for Brooks’s allied offense claim. See
Florence at ¶ 35. We note that the Supreme Court of Ohio has held that “[t]he imposition
of compound sentences for allied offenses is an error in the exercise of jurisdiction, to be
challenged at sentencing and remedied on direct appeal.” (Emphasis added.) State v.
State ex rel. Romine v. McIntosh, 162 Ohio St.3d 501, 2020-Ohio-6826, 165 N.E.3d 1262,
¶ 15. Therefore, because Brooks did not raise the aggravated robbery allied offense
claim in his direct appeal, res judicata bars him from doing so now.
{¶ 10} Because all of Brooks’s claims are barred by res judicata, his first and
second assignments of error are overruled.
Conclusion
{¶ 11} Having overruled both of Brooks’s assignments of error, the judgment of the
trial court denying Brooks’s Motion to Correct Conviction is affirmed.
TUCKER, P.J. and EPLEY, J., concur. -6-
Copies sent to:
Mathias H. Heck, Jr. J. Joshua Rizzo Frederick Brooks Hon. Mary Lynn Wiseman