N;- JAH 2, CLERK OF COURT SUPREME COURT 0F OHI. CLERK OF OOURT SUPREME COUR I O_ ichiu CASE NO Appellant Pro Se RI G NAL

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1 . RI G NAL IN THE SUPREME COURT OF OHIO STATE OF OHIO, Plaintiff-Appellee FELIX BROWN, JR. Defendant-Appellant CASE NO On Appeal From the Trumbull County Court of Appeals, Eleventh Appellate District Court of Appeals Case NO.2011-T-0101 STATE'S MEMORANDUM IN OPPOSITION TO JURISDICTION DENNIS WATKINS (# ) Trumbull County Prosecuting Attorney LuWAYNE ANNOS (# ) Assistant Prosecuting Attorney 160 High St. N.W., 4th Floor Warren, Ohio Telephnne; (33(l) Fax: (330) Counsel for Plaintiff-Appellee, The State of Ohio FELIX BROWN, JR. #A Lorain Correctional Institution 2075 S. Avon Beldon Rd. Grafton, Ohio Appellant Pro Se -vs- N;- JAH 2, CLERK OF COURT SUPREME COURT 0F OHI ^,.. IO JA^ ^ 2 NQ CLERK OF OOURT SUPREME COUR I O_ ichiu

2 TABLE OF CONTENTS Pa e s...1 STATEMENT OF THE CASE AND FACTS...:...3 ARGUMENT IN OPPOSITION TO APPELLANT'S PROPOSITIONS OF LAW...6 APPELLANT'S PROPOSITION OF LAW NO. 1: The trial court abused its discretion, to the prejudice of Appellant, thereby committing reversible error when it failed to hold an evidentiary hearing on Appellant's motion for relief... APPELLANT'S PROPOSITION OF LAW NO. 2: The trial court abused its discretion, to the prejudice of Appellant, thereby committing reversible error when it failed to hold an evidentiary hearing on Appellant's motion for relief... APPELLANT'S PROPOSITION OF LAW NO. 3: The trial court committed reversible error, to the prejudice of Appellant, when it denied or failed to consider a "Motion for Leave to Amend"... (See Appellant's Appendix [C]) APPELLANT'S PROPOSITION OF LAW NO. 4: The trial court committed reversible error, to the prejudice of Appellant, when it denied or failed to consider a "Motion for Leave to Amend... (See Appellant's Appendix [C]) CONCLUSION PROOF OF SERVICE ii

3 EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION Though it is entirely unclear from the Memorandum in Support of Jurisdiction submitted by Defendant-Appellant Felix Brown Jr., A.K.A. Felix O. Brown, Jr. ("Appellant"), the subject of the instant appeal is the Eleventh District's Court's decision of Nov. 8, 2012, to deny his application to reopen an appeal filed pursuant to App. R. 26(A). The State submits that this entire appeal was improvidently filed. Appellant labels page one of his Memorandum, "Explanationof [sic] why this is a case of public or great general interest and involves a substantial statutory mandate question." First, this Court's rule does not provide for a "substantial statutory mandate" review. S.Ct.Prac.R. 7.02(C) mandates: "A memorandum in support of jurisdiction shall contain all of the following: (2) A thorough explanation of why a substantial constitutional question is involved, why the case is of public or great general interest, or, in a felony case, why leave to appeal should be granted." (Emphasis added). Note: this rule makes no allowances for statutory mandate reviews. Moreover, the court below- in the opinion which Appellant asked them to reconsider- stated, "appellant did not allege a denial of his constitutional rights." State v. Brown, 11th Dist. No T-0101, 2012-Ohio- 4465, at 13. Therefore, this case presents absolutely no constitutional question. More importantly, Appellant offers absolutely no "explanation" why he submits a case of public or great general interest. He doesn't even mention whether the case is a felony case worthy of further review and with good reason: It isn't. He took the liberty of filing a civil action - a Civ. R. 60(B) motion - under his long-resolved felony-murder case number, Trumbull County Court of Common Pleas No CR-127. Thus, this is not a felony case, but a misfiled civil case. Further, his so-called "explanation" is not an explanation at all, but a reprinting of

4 potential propositions of law or assignments of error. The Plaintiff-Appellee State of Ohio ("State") submits these deficiencies exhibit a clear non-compliance with S.Ct. Prac. R. 7.02(C) and that this appeal should be dismissed as improvidently filed. In the alternative, the State would simply argue that there is no public or great general interest in reviewing the Eleventh District's decision to deny his frivolous App.R. 26(A) application. To the contrary, there is a public and great general interest in ignoring the entire Civ. R. 60(B) motion that triggered this avalanche of vexatious filings in the Trumbull County Common Pleas Court, Eleventh District Court of Appeals and now this Court. As will be discussed infra, Appellant sought to use a Civ. R. 60(B) motion to reopen his 1995 murder conviction in the shooting death of his girlfriend, Monica Brandon. Appellant argued, for the first time, that his conviction should be overturned because he was indicted under the wrong name, "Felix Brown, Jr.," when his name is in fact "Felix O. Brown, Jr." The reader is invited to review the cover of his Memorandum wherein he designates himself as "Felix Brown, Jr.," not once, but twice. The irony is rich. The public coffers saddled with financing this abuse of judicial process are not. It is well-settled law that there is no constitutional right to appeal under the U.S. Constitution, Ross v. Moffit, 417 U.S. 600, , 94 S.Ct. 2437, 41 L.Ed.2d 341 ( 1974), nor does the Ohio Constitution guarantee such a right. Middletown v. City Commission, 138 Ohio St. 596, 603 (1941). If there is no constitutional right to appeal, then it is axiomatic that there is no constitutional right to cause an appellate court to reconsider a prior decision. Not only does Appellant fail to articulate a substantial constitutional question, he fails to articulate any constitutional question, a core requirement of S.Ct.Prac. R. 7.02(C). 2

5 Very simply, there is no constitutional right, nor great or public general interest, in the Eleventh District Court of Appeals reconsidering a hopelessly stale and baseless claim that Appellant was indicted and convicted under the wrong name. As was referenced repeatedly in the court's original decision, his Civ. R. 60(B) motion was barred by the doctrine of res judicata and the trial court was correct in so finding. Appellant's memorandum is procedurally deficient and was improvidently filed. It was subject to dismissal before it was time-stamped. In the alternative, Appellant doesn't even attempt to articulate an "explanation" compliant with the rules of this Court. Rigorous examination by this Court will not find any excuse for further review and jurisdiction should be denied. STATEMENT OF THE CASE AND FACTS On March 16, 1995, Appellant was indicted by the Trumbull County Grand Jury on one count of murder with a firearm specification in violation of R.C and , and one count of having weapons while under disability in violation of R.C. 2923(A)(3) in the shooting death of Monica L. Brandon, Appellant's girlfriend. Appellant was convicted on both counts by a Trumbull County Jury on September 29, The Late Trumbull County Common Pleas Judge Mitchell F. Shaker, who presided over the trial, sentenced Appellant to an aggregate sentence of 18 years to life. Appellant appealed his conviction to the Eleventh District Court of Appeals which unanimously affirmed his conviction and life sentence in State v. Felix O. Brown, Jr. (March 32, 2002), 11th Dist. No. 95-T-5349, 98-T-0061, unreported (Brown 1). This Court declined jurisdiction in State v. Brown, 91 Ohio St. 3d 1482 (2001). In his direct appeal, Appellant raised nine assignments of error, none of which had anything to do with how his name appeared on his indictment. Moreover, there was never any confusion as to which "Felix Brown" shot and killed Monica Brandon. Appellant called 911 and

6 was with the mortally wounded Monica when the police arrived. He claimed she committed suicide because he was involved with another woman. He never argued that another "Felix Brown" fired the fatal shot. Brown I, supra, at * 1-2. For roughly nine years, no activity occurred in this case. Then, on August 20, 2011, Appellant filed a motion styled Defendant's Civil Rules of the Procedure Rule 60(B) Motion for Relief from Judgment, or in the Alternative, Crim. R. 47 Motion to Vacate Judgment in the Trumbull County Common Pleas Court. This motion raised for the first time an alleged error in how Appellant's name appeared on his indictment. Judge Andrew Logan was assigned Appellant's case following the retirement of Judge Shaker. Judge Logan denied Appellant's motion on September 20, The very same day, Appellant filed a motion for leave to amend his motion. However, before Judge Logan could rule on the motion for leave, Appellant filed a notice of appeal with the Eleventh District Court of Appeals thereby divesting Judge Logan of jurisdiction to rule on the motion for leave. The Court of Appeals remanded the case to Judge Logan for a ruling on the motion for leave to amend. Judge Logan denied the motion on June 13, 2012, and the case was returned to the Eleventh District. Appellant has attached a copy of the June 13th ruling to his Memorandum as "Appendix C." The only reason this ruling is germane to the instant appeal is because Appellant has filed a Motion to Hold Memorandum in Support of Jurisdiction in Abeyance so that the Eleventh District Court of Appeals can adjudicate a writ of mandamus which Appellant has filed against Judge Logan to force him to issue the very ruling which Appellant has stapled to his Memorandum. Politely stated, it is of absolutely no consequence to undersigned counsel whether this Court decides jurisdiction in the instant matter tomorrow or never. But so the Court 4

7 is aware, Appellant is asking this Court to delay his own pro se appeal in anticipation of a ruling which is actually affixed to the instant appeal. Nevertheless, the Eleventh District affirmed Judge Logan's denial of Appellant's Civ. R. 60(B) motion on September 28, The court reasoned: "Appellant has failed to demonstrate that he is entitled to relief under Civ.R. 60(B). Appellant waited nearly 16 years to file the instant motion alleging that he was improperly indicted under his father's name and address. Furthermore, in his direct appeal, appellant alleged the trial court erred in failing to answer the jury's question regarding the discrepancy in apartment numbers. In his direct appeal, appellant could have raised misnomer, and consequently, these claims are further barred by the doctrine of res judicata." State v. Brown, 11t' Dist. No T-0101, 2012-Ohio-4465, at 19 (Brown II). Appellant did NOT seek a discretionary appeal of that affirmation in this Court. Instead, Appellant filed an App. R. 26(A) application for the court below to reconsider its well-reasoned opinion. The court below denied that application Nov. 8, That entry, provided by Appellant to this Court as Appendix A, is the subject of the instant appeal, even though you'd never know it by reading Appellant's Memorandum.

8 ARGUMENT IN OPPOSITION TO APPELLANT'S PROPOSITIONS OF LAW APPELLANT'S PROPOSITION OF LAW NO.1: The trial court abused its discretion, to the prejudice of Appellant, thereby committing reversible error when it failed to hold an evidentiary hearing on Appellant's motion for relief... APPELLANT'S PROPOSITION OF LAW NO. 2: The trial court abused its discretion, to the prejudice of Appellant, thereby committing reversible error when it failed to hold an evidentiary hearing on Appellant's motion for relief... APPELLANT'S PROPOSITION OF LAW NO. 3: The trial court committed reversible error, to the prejudice of Appellant, when it denied or failed to consider a "Motion for Leave to Amend"... (See Appellant's Appendix [C]) APPELLANT'S PROPOSITION OF LAW NO. 4: The trial court committed reversible error, to the prejudice of Appellant, when it denied or failed to consider a "Motion for Leave to Amend"... (See Appellant's Appendix [C]) In the interest of complying with this Court's rule limiting the responses to memorandums in support of jurisdiction to 15 pages (see S.Ct.Prac.R. 7.03[B]), the State will address all four of Appellant's propositions of law under this single heading. At issue in this appeal is whether the Eleventh District Court of Appeals erred in denying Appellant's App. R. 26(A) application for reconsideration. Appellant offers absolutely no argument on this topic. Instead, he focuses on the court's September 28, 2012, opinion which is decidedly NOT the issue in this appeal. App.R. 26, which provides for the filing of an application for reconsideration, includes no guidelines to be used in the determination of whether a decision is to be reconsidered and changed. Matthews v. Matthews, 5 Ohio App.3d 140, 143, 450 N.E.2d 278, 282 (10th Dist.1981). However, "(t)he test generally applied is whether the motion for reconsideration calls to the attention of the court an obvious error in its decision or raises an issue for our consideration that was either not considered at all or was not fully considered by us when it should have been." Id. 6

9 Moreover, an application for reconsideration is not designed to be used in situations wherein a party simply disagrees with the logic employed or the conclusions reached by an appellate court. State v. Owens, 112 Ohio App. 3d 334, 336 (11th Dist. 1997). App. R. 26(A) is reserved to provide a mechanism by which a party may prevent a miscarriage of justice that could arise when an appellate court makes an obvious error or renders a decision that is not supported by law. Id. Appellant's Memorandum cites to no error, obvious or otherwise, which the Eleventh District failed to consider in affirming Judge Logan's denial of his motion. Appellant sought to use a Civ. R. 60(B) motion to resurrect a long-abandoned claim that he was indicted under the wrong name. There was never any dispute at the trial level whether Niles City Police arrested the wrong Felix Brown in the Monica Brandon homicide. Both the trial court and the Eleventh District found that misnomer issue, raised 16 years after his conviction, was barred by the doctrine of res judicata. Unless this Court has some hidden agenda to jettison this sacrosanct theory of issue preclusion, Appellant's claim transcends from the baseless to the bogus and does not merit further review. CONCLUSION For the reasons thus stated, the State respectfully requests that this Court denies jurisdiction in this matter. Further, the State requests that this appeal be dismissed. 7

10 Respectfully submitted by: DENNIS WATKINS (# ) I^ WA ANNOS (# ) ssistant rosecuting Attorney Trumbull County Prosecutor's Office 160 High St. 4th Floor Warren, Ohio Telephone:(330) Fax (330) COUNSEL FOR PLAINTIFF APPELLEE THE STATE OF OHIO PROOF OF SERVICE I do hereby certify that a copy of the foregoing document was sent by ordinary mail to Defendant-Appellant Felix Brown, Jr., A.K.A Felix O. Brown, Jr., (Inmate #A ), Appellant pro se, Lorrain Correctional Institution, 2075 S. Avon Belden Rd., Grafton, Ohio 44044, on this 18th Day of January, WAYNNNOS (# ) sistant osecuting Attorney 8