[Cite as State v. Brooks, 2012-Ohio-5292.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98380 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

DWAYNE BROOKS

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-230828 

BEFORE: Keough, J., Stewart, P.J., and Rocco, J. 

RELEASED AND JOURNALIZED: November 15, 2012 
FOR APPELLANT

Dwayne Brooks, pro se 

Inmate No. 208-008 

Grafton Correctional Institution 

2500 South Avon Belden Road 

Grafton, OH 44044 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

Mark J. Mahoney 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
KATHLEEN ANN KEOUGH, J.: 

{¶1} In 1988, defendant-appellant Dwayne Brooks was convicted of aggravated 

murder with a mass murder specification (Count One), two counts of attempted murder 

(Counts Two and Three), and aggravated robbery (Count Four). The convictions 

stemmed from a 1987 shooting between rival drug gangs involved in a turf dispute. The 

evidence at trial demonstrated that Brooks was among a group of four people who, armed 

with a pistol and shotgun, stole a van by force, drove to a park, and shot three victims in 

broad daylight in front of dozens of witnesses. 

{¶2} The trial court sentenced Brooks to “life, without the possibility of parole 

until serving twenty (20) years” on Count One; on Counts Two, Three, and Four, the 

court sentenced Brooks to five to twenty-five years incarceration, to be served concurrent 

with one another but consecutive to Count One. 

{¶3} This court affirmed Brooks’s convictions on appeal. State v. Brooks, 8th 

Dist. No. 57034, 1991 Ohio App. LEXIS 113 (Jan. 10, 1991). The Ohio Supreme Court 

denied further review. State v. Brooks, 63 Ohio St.3d 1406, 585 N.E.2d 428 (1992). 

Approximately two and one-half years after his convictions, Brooks filed a petition for 

postconviction relief and a motion for a new trial. The trial court denied relief and this 

court affirmed on appeal. State v. Brooks, 8th Dist. No. 65088, 1994 Ohio App. LEXIS 

910 (Mar. 10, 1994). The Supreme Court of Ohio again declined further review. State 

v. Brooks, 70 Ohio St.3d 1425, 638 N.E.2d 87 (1994). 
{¶4} Brooks then filed an application to reopen his direct appeal, which this 

court denied in State v. Brooks, 8th Dist. No. 57034, (July 27, 1994). The Ohio Supreme 

Court declined further review. State v. Brooks, 74 Ohio St.3d 1416, 655 N.E.2d 737 

(1995). Brooks subsequently filed a second motion for a new trial; the trial court denied 

the motion and this court again affirmed on appeal. State v. Brooks, 8th Dist. No. 75522, 

1999 Ohio App. LEXIS 3596 (Aug. 5, 1999). The Ohio Supreme Court declined further 

review. State v. Brooks, 87 Ohio St.3d 1441, 719 N.E.2d 5 (1999). 

{¶5} This appeal concerns Brooks’s latest filing — a “motion to correct clerical 

mistakes in judgment order” — which the trial court denied. 

{¶6} Brooks argues on appeal that the trial court’s ruling was in error because the 

jury recommended that he be sentenced to “life imprisonment with parole eligibility after 

serving 20 full years imprisonment,”1

 and the trial judge stated at sentencing that the 

jury’s recommendation was to be followed. Therefore, he contends, the trial court’s 

failure to include the language “20 full years” in its journal entry of sentencing was a 

clerical mistake that renders the judgment void ab initio and requires resentencing. 

Brooks’s argument is without merit because (1) the issue is barred by res judicata, (2) his 

 1

The version of R.C. 2929.03(C)(2) in effect in 1988, when Brooks was sentenced, stated, “If 

the indictment or count in the indictment contains one or more specifications of aggravated 

circumstances * * *, and if the offender is found guilty of both the charge and one or more of the 

specifications, the penalty to be imposed on the offender shall be death, life imprisonment with parole 

eligibility after serving twenty full years of imprisonment, or life imprisonment with parole eligibility 

after serving thirty full years of imprisonment * * *.” 
motion was untimely, and (3) the trial court was without jurisdiction to rule on the 

motion. 

{¶7} “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 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), 

syllabus. 

{¶8} It is well settled that the doctrine of res judicata bars claims that were raised 

or could have been raised on direct appeal. State v. Davis, 119 Ohio St.3d 422, 

2008-Ohio-4608, 894 N.E.2d 1221. Because Brooks could have, but did not, raise any 

issue regarding the sentencing entry in his direct appeal, the issue is now barred by res 

judicata. 

{¶9} Furthermore, despite his assertion otherwise, Brooks’s motion must be 

construed as a petition for postconviction relief and, as such, is untimely. “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.” State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131, at 

syllabus. Here, Brooks argued that his sentence was void due to a mistake in the journal 

entry, which is essentially a violation of due process argument. 
{¶10} R.C. 2953.21(A)(2) provides that petitions for postconviction relief “shall 

be filed no later than one hundred eighty 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.” 

Brooks’s petition was filed some 22 years after he was convicted and is obviously 

untimely. 

{¶11} Furthermore, as noted above, Brooks previously filed a petition for 

postconviction relief in this case. Successive petitions for postconviction relief are 

governed by R.C. 2953.23. Under R.C. 2953.23(A), a trial court is forbidden from 

entertaining a second or successive petition for postconviction relief unless the petition 

meets two conditions. First, the petitioner must show either that he was unavoidably 

prevented from discovering the facts upon which he relies in the petition, or that the 

United States Supreme Court has, since his last petition, recognized a new federal or state 

right that applies retroactively to the petitioner. Second, the petitioner must show by 

clear and convincing evidence that a reasonable factfinder would not have found him 

guilty but for constitutional error at trial. See R.C. 2953.23(A)(1). 

{¶12} In his petition, Brooks did not advise the court how he was unavoidably 

prevented from discovering the facts upon which his petition was based, nor did he claim 

a new retroactive right that has been recognized by the United States Supreme Court. 

See R.C. 2953.23(A). Thus, the trial court did not have statutory authority to consider 

the petition and accordingly, properly denied the petition. 

{¶13} Brooks’s assignment of error is therefore overruled. 
{¶14} Affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

KATHLEEN ANN KEOUGH, JUDGE 

MELODY J. STEWART, P.J., and 

KENNETH A. ROCCO, J., CONCUR