[Cite as State v. Brown, 2014-Ohio-4888.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsSHANE W. BROWN 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. 14 CA 64 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case Nos. 2012 CR 692 and 2012 

CR 744 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: October 31, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JILL M. COCHRAN SHANE W. BROWN, PRO SE 

ASSISTANT PROSECUTOR LAKE ERIE CORR. INSTITUTION 

38 South Park Street Post Office Box 8000 

Mansfield, Ohio 44902 Conneaut, Ohio 44030 
Richland County, Case No. 14 CA 64 2 

Wise, J. 

{¶1}. Appellant Shane Brown appeals the denial of his pro se post-conviction 

petition in the Richland County Court of Common Pleas. Appellee is the State of Ohio. 

The relevant facts leading to this appeal are as follows. 

Common Pleas Case No. 2012-CR-692

{¶2}. On September 23, 2012, Henry Conley broke into the home of Floyd 

Shaw, located at 7 Grove Avenue, in Shelby, Ohio, while Mr. Shaw was attending 

church. Items stolen from the Shaw residence included a .45 caliber handgun, 

approximately one hundred dollars in miscellaneous change, a few two-dollar bills, and 

some collectible coins, including a Canadian dollar and several golden dollar pieces. 

{¶3}. Shelby Police were contacted later that day by Ron Hamilton. Hamilton 

told police that Henry Conley had contacted him in attempts to sell a Colt .45 1911 

handgun for $100.00. Hamilton believed the gun to be stolen based on the low asking 

price. Shelby Police arranged for Hamilton to purchase the gun from Conley. Conley 

was subsequently arrested, and it was determined that the gun he had sold to Hamilton 

was the one stolen from the Shaw residence. 

{¶4}. Conley admitted to burglarizing the Shaw residence. When questioned 

about the other missing items, Conley told the police that the coins and the two-dollar 

bills could be found at the home of Appellant Brown. Conley stated that he had traded 

the coins to appellant for heroin. 

{¶5}. As a result of the police investigation, Conley was charged with burglary, 

and a search warrant was obtained for appellant's residence for the purpose of locating 

the property from the Shaw burglary. The search warrant was executed the same day. 
Richland County, Case No. 14 CA 64 3 

As a result of the execution of the search warrant, appellant was charged with aiding 

and abetting possession of heroin in an amount greater than fifty unit doses, a felony of 

the third degree; aiding and abetting trafficking in heroin in a school zone in an amount 

greater than fifty unit doses, a felony of the second degree; aiding and abetting 

receiving stolen property, a misdemeanor of the first degree, and aiding and abetting 

possession of a Schedule IV drug with prior felony drug offense, a felony of the fifth 

degree. The counts of possession and trafficking in heroin both contained forfeiture 

specifications. 

{¶6}. A jury trial in the matter, joined with case 2012–CR–744, infra, was 

conducted between April 15, 2013 and April 19, 2013. Among other things, evidence 

was presented that appellant had a prior conviction for possession of heroin and a prior 

conviction for trafficking in heroin. 

{¶7}. The jury ultimately found appellant guilty on all counts and forfeiture 

specifications. 

{¶8}. The trial court thereafter sentenced appellant to a total sentence of seven 

years in prison. 

{¶9}. Appellant filed a direct appeal to this Court, assigning as errors issues of 

allied offenses of similar import, the right to confront witnesses, and jury instructions. 

We affirmed appellant's convictions and sentence on April 2, 2014. See State v. Brown, 

5th Dist. Richland No. 13CA43, 2014-Ohio-1409 ("Brown I-A"). 

Common Pleas Case No. 2012-CR-744

{¶10}. On October 6, 2012, James McConnell permitted Appellant Brown to test 

drive a vehicle he was selling. The vehicle was returned with damage to the rear 
Richland County, Case No. 14 CA 64 4 

bumper. McConnell filed a police report. Officers from the Shelby Police Department 

went to appellant's home to investigate the incident. Appellant was ultimately arrested, 

and during the search of his person, the officers discovered Alprazolam prescription pills 

and a sum of $3,597.00. 

{¶11}. On November 13, 2012, the Richland County Grand Jury indicted 

appellant on one count of possession of a Schedule IV drug in violation of R.C. 2925.11, 

and one count of trafficking in violation of R.C. 2925.03. A jury trial commenced on April 

15, 2013. The jury found appellant guilty as charged. By sentencing entry filed April 30, 

2013, the trial court sentenced appellant to one year on each count, to be served 

concurrently with each other and to sentences imposed in the jointly-tried case, number 

12–CR–692. 

{¶12}. Appellant filed a direct appeal to this Court, raising issues of ineffective 

assistance and merger of offenses. On June 9, 2014, in a 2-1 decision, this Court 

denied his ineffective assistance claim, but we concluded his convictions for possession 

and trafficking in Alprazolam should have been merged. See State v. Brown, 5th Dist. 

Richland No. 13CA79, 14 N.E.3d 465, 2014-Ohio-2493 ("Brown I-B"). Following 

remand, the trial court issued a resentencing entry on September 18, 2014. 

Post-Conviction Litigation

{¶13}. In the meantime, on June 9, 2014, appellant filed a "Petition to Vacate or 

Set Aside Judgment of Conviction or Sentence" under both of the above case numbers. 

The State filed a response on June 13, 2014. Appellant filed a reply to the response on 

June 26, 2014. 
Richland County, Case No. 14 CA 64 5 

{¶14}. On July 15, 2014, the trial court issued a judgment entry overruling 

appellant's motion without a hearing, finding the petition to be untimely and barred by 

res judicata. 

{¶15}. Appellant filed a notice of appeal on August 5, 2014. He herein raises the 

following sole Assignment of Error: 

{¶16}. “I. DEFENDANT NOW FILES APPEAL, BECAUSE THE TRIAL COURT 

WITH A DIFFERENT JUDGE DENIED THE PETITION FOR RELIEF, AND THE 

JUDGE WHO DENIED THE PETITION WAS IN FACT THE ASSISTANT RICHLAND 

COUNTY PROSECUTOR WHO PROSECUTED THE CASE.” 

I.

{¶17}. In his sole Assignment of Error, appellant argues that the trial court erred 

and/or abused its discretion in denying his post-conviction petition. We disagree. 

{¶18}. It is well-settled that a petition for post-conviction relief brought pursuant to 

R.C. 2953.21 will be granted only where the denial or infringement of constitutional 

rights is so substantial as to render the judgment void or voidable. State v. Jackson,

Delaware App.Nos. 04CA–A–11–078, 04CA–A–11–079, 2005–Ohio–5173, ¶ 13, citing 

State v. Walden (1984), 19 Ohio App.3d 141, 146, 483 N.E.2d 859. A petition for postconviction relief does not provide a petitioner a second opportunity to litigate his or her 

conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the 

petition. State v. Wilhelm, Knox App.No. 05–CA–31, 2006–Ohio–2450, ¶ 10, citing State 

v. Jackson (1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819. 

{¶19}. The time requirements for PCR petitions are set forth in R.C. 

2953.21(A)(2) as follows: 
Richland County, Case No. 14 CA 64 6 

{¶20}. “Except as otherwise provided in section 2953.23 of the Revised Code, a 

petition under division (A)(1) of this section 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 or adjudication or, if the direct appeal 

involves a sentence of death, the date on which the trial transcript is filed in the 

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 one hundred eighty days after 

the expiration of the time for filing the appeal.” 

{¶21}. In turn, R.C. 2953.23(A) states, in relevant part, as follows: 

{¶22}. “Whether a hearing is or is not held on a petition filed pursuant to section 

2953.21 of the Revised Code, a court may not entertain a petition filed after the 

expiration of the period prescribed in division (A) of that section or a second petition or 

successive petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) 

of this section applies: 

{¶23}. “(1) Both of the following apply: 

{¶24}. “(a) Either the petitioner shows that the petitioner was unavoidably 

prevented from discovery of the facts upon which the petitioner must rely to present the 

claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 

2953.21 of the Revised Code or to the filing of an earlier petition, the United States 

Supreme Court recognized a new federal or state right that applies retroactively to 

persons in the petitioner's situation, and the petition asserts a claim based on that right. 
Richland County, Case No. 14 CA 64 7 

{¶25}. “(b) The petitioner shows by clear and convincing evidence that, but for 

constitutional error at trial, no reasonable factfinder would have found the petitioner 

guilty of the offense of which the petitioner was convicted ***.” 

{¶26}. In appellant's direct appeals (see Brown I-A and I-B), the joint trial 

transcript from trial court case numbers 2012-CR-692 and 2012-CR-744 was filed with 

the Richland County appellate clerk on August 9, 2013. As noted in our recitation of 

facts, appellant's post-conviction petition was not filed until June 9, 2014. Appellant's 

limited arguments on appeal1 fail to address his failure to comply with the 180-day 

requirement of R.C. 2953.21(A)(2) and do not invoke the alternative rule of R.C. 

2953.23(A). Even if we were to reach the merits, we note the main thrust of his appeal, 

i.e., his assertion that the successive common pleas judge who denied his petition was 

the assistant county prosecutor who had handled the trial, is belied by the trial record.2

In addition, the remainder of the scant arguments raised herein would be barred by res 

judicata. See State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967), (holding 

"[u]nder 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”). 

 

 

1

 Appellant's entire brief, not including the cover page and appendix, is just two pages 

long. 

2

 The transcript clearly indicates that Assistant Prosecutor Gary Bishop represented 

the State of Ohio during the trial.
Richland County, Case No. 14 CA 64 8 

{¶27}. We hold the trial court did not err in denying appellant's post-conviction 

petition. Appellant's sole Assignment of Error is overruled. 

{¶28}. For the foregoing reasons, the judgment of the Court of Common Pleas, 

Richland County, Ohio, is hereby affirmed. 

By: Wise, J. 

Gwin, P. J., and 

Farmer, J., concur. 

JWW/d 1020