[Cite as State v. Brown , 2022-Ohio-2645.]

A tty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Daniel P. Fry, Assistant Prosecuting Attorney, 52160 Na tional Road, St. Clairsville, Ohi o 43950, for PlaintiffA ppellee (No Response Filed) and
Roy Wilton Brown, Pro Se, Lebanon Correctional Institution, P.O. Box 56, Lebanon, Ohio 45036, Defendant-Appellant

.

Dated: June 30, 2022 

## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT BELMONT COUNTY

STATE OF OHIO,
Plaintiff-Appellant,

v. ROY WILTON BROWN,
Defendant-Appellee.

OPINION AND JUDGMENT ENTRY Case No. 21 BE 0012

Motion for Reopenin g

BEFORE: David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Jud g es.

JUDGMENT: Denied.– 2 –

Case No. 21 BE 0012 PER CURIAM.
{¶1} By way of background, on April 18, 2022, Appellant, Roy Wilton Brown, filed his first pro se App.R. 26(B) application to reopen his direct appeal in State v. Brown , 7th Dist. Belmont No. 21 BE 0012, 2022-Ohio-893. {¶2} Appellant was consecutively sentenced to seven years in prison for tampering with evidence, possession of heroin, and possession o f cocaine following a guilty plea. In Appellant’s direct appeal, appellate counsel raised two assi gnments of

error: (1) that the trial court erred in denying Appellant’s pre-sente nce motion to withdraw his guilty plea following a hearing on the basis that his initi al retained trial counsel’s assistance was ineffective; and (2) that Appellant’s second ret ained trial counsel (counsel that filed and argued his motion to withdraw guilty plea) also rendered ineffective
assistance. Id. at ¶ 1. This court found no merit in either argument and affirmed the t rial court’s judgment on March 21, 2022. Id. at ¶ 28. {¶3} Although Appellant’s April 18, 2022 first application for reope ning was timely filed, this court found, on May 31, 2022, that he failed to mee t the standard for reopening the appeal. State v. Brown , 7th Dist. Belmont No. 21 BE 0012, 2022-Ohio-1917, ¶ 3; Brown, 2022-Ohio-893; App.R. 26(B)(1) and (2)(b); State v. Romeo , 7th Dist. Mahoning No. 14 MA 0060, 2018-Ohio-2482, ¶ 6. {¶4} In his first application for reopening, Appellant took issue wi th his consecutive sentence, namely arguing that his appellate counsel was ineffective because his sentence should have ran concurrently. (4/18/2022 Appellan t’s First Application for Reopening, p. 2-3). Regarding Appellant’s first application, t his court held:

Because the trial court had full discretion to impose any sente nce within the authorized statutory ranges, and Appellant’s maximum terms are within the authorized statutory ranges for third and fifth-degree felonies , his consecutive sentence is not contrary to law. See R.C. 2929.14; [ State v. ] Burkhart, [7th Dist. Belmont No. 18 BE 0020, 2019-Ohio-2711,] ¶ 16. Also, because the offenses were committed separately and with a separ ate animus or motivation, the trial court did not err in failing to merge the
convictions. See, e.g., State v. Coffman , 12th Dist. Butler No. CA2015-01-– 3 –

Case No. 21 BE 0012 014, 2015-Ohio-2990, ¶ 24. Therefore, we fail to see any ineff ective assistance of appellate counsel warranting a reopening.

Brown , 2022-Ohio-1917, ¶ 16.
{¶5} Thus, because Appellant failed to comply with the requirements set forth in App.R. 26(B) and failed to present issues that establish a colo rable claim of ineffective assistance of appellate counsel, this court denied his first Ap p.R. 26(B) application for reopening. Id. at ¶ 17-18. {¶6} Presently before us is Appellant’s pro se “Objection and Recons ideration” filed on June 10, 2022. In his current application, which this court construes as his second pro se App.R. 26(B) application to reopen his direct appeal in Brown , 2022-Ohio-893, Appellant again takes issue with his consecutive sentence, name ly arguing that his appellate counsel was ineffective because his sentence should h ave ran concurrently. (6/10/2022 Appellant’s Second Application for Reopening, p. 1-2 ). Appellant concludes by “humbly request[ing] a reopening on the merits contained in [his] motion.” ( Id. at p. 3). {¶7} Appellant is attempting for the second time to reopen the judgm ent rendered by this court in Brown , 2022-Ohio-893. Appellant again fails to comply with the requirements set forth in App.R. 26(B) and fails to present iss ues that establish a colorable claim of ineffective assistance of appellate counsel. Furthermore, Appellant’s arguments were either raised or could have been raised in his p rior reopening and, thus, are barred by the doctrine of res judicata. Brick Processors, Inc. v. Culbertson , 2 Ohio App.3d 478, paragraph one of the syllabus, 442 N.E.2d 1313 (8th Dist.1981). Also, we find no case authority authorizing a party to file successive a pplications for reopening and/or reconsiderations of applications for reopening. {¶8} Accordingly, Appellant’s pro se “Objection and Reconsideration, ” construed by this court as Appellant’s second pro se App.R. 26(B) applica tion for reopening, is hereby denied.– 4 –

Case No. 21 BE 0012 JUDGE DAVID A. D’APOLITO

JUDGE GENE DONOFRIO

JUDGE CAROL ANN ROBB

NOTICE TO COUNSEL
This document constitutes a final judgment entry.