[Cite as State v. Browning, 2023-Ohio-1467.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
THOMAS CLARENCE BROWNING III,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 CO 0026
Application for Reconsideration
BEFORE:
David A. D’Apolito, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Denied.
Atty. Vito Abruzzino, Columbiana County Prosecutor, and Atty. Tammie M. Jones,
Assistant Prosecuting Attorney, 135 South Market Street, Lisbon, Ohio 44432, for
Plaintiff-Appellee and
Thomas Clarence Browning III, Pro Se, #A782319, Belmont Correctional Institution,
68518 Bannock Road, St. Clairsville, Ohio 43950, Defendant-Appellant.
Dated: May 2, 2023
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PER CURIAM.
{¶1} Appellant, Thomas Clarence Browning III, filed a pro se application
requesting that this court reconsider our decision in State v. Browning, 7th Dist.
Columbiana No. 21 CO 0026, 2023-Ohio-890, in which we affirmed the July 6, 2021
judgment of the Columbiana County Court of Common Pleas convicting and sentencing
him to an indefinite prison term of six years (minimum) to nine years (maximum) for
felonious assault and endangering children following a trial by jury.1 Appellant contends
this court’s decision was in error and that we should, therefore, reconsider the opinion
pursuant to App.R. 26(A).
{¶2} An application for reconsideration must be filed within 10 days of an
appellate court’s judgment. App.R. 26(A)(1)(a). However, a delayed application for
reconsideration pursuant to App.R. 26(A) is permitted if the moving party can establish
“extraordinary circumstances.”2 App.R. 14(B).
{¶3} Here, this court decided Appellant’s appeal and filed our judgment on
Tuesday, March 14, 2023. Thus, Appellant’s application for reconsideration was to be
filed no later than Friday, March 24, 2023. However, Appellant did not file his application
for reconsideration until Monday, March 27, 2023, slightly beyond the 10-day timeframe
under App.R. 26(A)(1)(a). Appellant fails to establish “extraordinary circumstances.” In
addition, we find no obvious error in this court’s decision.
App.R. 26, which provides for the filing of an application for reconsideration
in this court, 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 (10th Dist.1981). The
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 at all or was not fully considered by us
when it should have been. Id. An application for reconsideration is not
1 Appellee, the State of Ohio, did not file a reply.
2 “Extraordinary circumstances” is defined as “[a] highly unusual set of facts that are not commonly
associated with a particular thing or event.” Black’s Law Dictionary (11th Ed.2019).
Case No. 21 CO 0026
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designed for use in instances where a party simply disagrees with the
conclusions reached and the logic used by an appellate court. State v.
Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (11th Dist.1996).
Rather, App.R. 26 provides a mechanism by which a party may prevent
miscarriages of justice that could arise when an appellate court makes an
obvious error or renders an unsupportable decision under the law. Id.
D.G. v. M.G.G., 7th Dist. Mahoning No. 17 MA 0165, 2019-Ohio-1190, ¶ 2.
{¶4} In his application, Appellant disagrees with this court’s analysis and
requests that we reconsider our decision affirming his conviction and sentence.
Specifically, Appellant asserts his trial counsel rendered ineffective assistance, his
constitutional rights were violated, and the weight of the evidence was insufficient to
support his conviction. (3/27/2023 Motion for Reconsideration, p. 1).
{¶5} In Browning, we addressed Appellant’s ineffective assistance of counsel
and constitutional claims under his first assignment of error. Browning, 2023-Ohio-890,
¶ 25-54. Following a 30-paragraph discussion, this court, pursuant to Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), determined: “the record establishes
trial counsel’s representation was constitutionally effective and did not affect Appellant’s
rights. Counsel’s performance was neither deficient nor prejudicial. Appellant fails to
demonstrate ineffective assistance of counsel.” Browning at ¶ 53.
{¶6} In Browning, we also addressed Appellant’s claim that the weight of the
evidence was insufficient to support his conviction under his second assignment of error.
Id. at ¶ 55-70. Following a 16-paragraph discussion, which included a thorough factual
background and witness testimony, this court, pursuant to State v. DeHass, 10 Ohio St.2d
230, paragraph one of the syllabus (1967), determined: “The jury chose to believe the
State’s witnesses.” Browning at ¶ 69. This court, pursuant to State v. Thompkins, 78
Ohio St.3d 380, 387 (1997), further determined: “Based on the evidence presented, as
previously stated, the jury did not clearly lose its way in finding Appellant guilty of felonious
assault and endangering children.” Browning at ¶ 69.
{¶7} Upon consideration of the App.R. 26(A) application filed in the present
matter, it is apparent that Appellant has not demonstrated any obvious errors or raised
Case No. 21 CO 0026
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any issues that were not adequately addressed in our previous opinion. This court is not
persuaded that we erred as a matter of law.
{¶8} 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. Owens, supra, at 336. App.R. 26(A) is meant 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 the law. Id.
Appellant has made no such demonstration.
{¶9} For the foregoing reasons, Appellant’s pro se application for reconsideration
is hereby denied.
JUDGE DAVID A. D’APOLITO
JUDGE CAROL ANN ROBB
JUDGE MARK A. HANNI
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 CO 0026