State v. Thompson ( 2012 )

[Cite as State v. Thompson, 2012-Ohio-3188.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case Nos. 10CA5 & 10CA13
:
vs. : Released: July 6, 2012
:
DANNY W. THOMPSON, II, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
John A. Bay, Bay Law Office, L.L.C., Columbus, Ohio, for Appellant.1
James E. Schneider, Washington County Prosecuting Attorney, and Alison
L. Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
_____________________________________________________________
Per Curiam:
{¶1} This is a consolidated appeal from a Washington County Court
of Common Pleas judgment entry issued after holding a re-sentencing
hearing in order to properly impose a mandatory five-year term of post
release control (10CA5) and a subsequent journal entry denying Appellant’s
petition for post-conviction relief (10CA13). In case number 10CA5,
Appellant raises twelve combined assignments of error both pro se and
through counsel, which are set forth infra. As to the first assignment of error
raised by counsel, we conclude that the trial court erred in reclassifying
1
Appellant has also filed two pro se briefs in this consolidated appeal.
Washington App. Nos. 10CA5 and 10CA13 2
Appellant under Ohio’s Adam Walsh Act during the re-sentencing hearing.
Accordingly, this assignment of error is sustained, this portion of the trial
court’s decision is reversed, and the matter is remanded to the trial court
with instructions to reinstate Appellant’s original sex offender classification.
{¶2} With respect to the second assignment of error raised by counsel,
as we conclude that the re-sentencing entry is a final, appealable order
despite its failure to state the “manner of conviction,” this assignment of
error is overruled. Further, with regard to Appellant’s first and second pro
se assignments of error, in light of our conclusion that Appellant was
properly re-sentenced in accordance with State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, both of these assignments of error are
overruled. As Appellant’s third, fourth, fifth, sixth, seventh, eighth, and
ninth assignments of error all raise issues stemming from the trial
proceedings, they are barred by res judicata and we do not address them.
Finally, because Appellant suffered no prejudice as a result of the trial
court’s failure to advise him of his right to appeal, the trial court’s failure to
do so is harmless and Appellant’s tenth pro se assignment of error is
overruled.
{¶3} In case number 10CA13, Appellant raises two assignments of
error, one of which is raised pro se and the other through counsel. Counsel
filed an “Anders brief” on Appellant’s behalf with one assignment of error
Washington App. Nos. 10CA5 and 10CA13 3
contending that the trial court erred by conducting a re-sentencing hearing
because the State of Ohio failed to exercise its appeal as of right regarding
the trial court’s failure to impose mandatory five-year post release control,
thereby forfeiting its right to such hearing. Further, in his pro se brief,
Appellant contends that the trial court erred by dismissing his petition when
it failed to inform him of his constitutional right to appeal, to counsel, and
documents at state’s expense after re-sentencing him for a post release
control error. Because we find no merit to either the Anders assignment of
error, or the pro se assignment of error, the decision of the trial court
denying Appellant’s petition for post conviction relief is affirmed, and
counsel’s motion to withdraw is hereby granted.
{¶4} Accordingly, case number 10CA5 is affirmed in part, reversed in
part, and remanded in part. Further, case number 10CA13 is affirmed.
FACTS
{¶5} Appellant was convicted by a jury of three counts of unlawful
sexual conduct with a minor, each third degree felonies in violation of R.C.
2907.04(A) and (B)(3), and was sentenced on May 22, 2006. At that time,
Appellant was classified as a sexually oriented offender. The sentencing
entry issued on May 31, 2006, did not properly impose a mandatory five-
year term of post release control. Subsequently, after a direct appeal and
several post-conviction motions, Appellant was returned to the trial court for
Washington App. Nos. 10CA5 and 10CA13 4
a re-sentencing hearing on January 21, 2010, in order that the trial court
could properly impose a mandatory five-year term of post release control,
which it did by re-sentencing entry filed on January 27, 2010. As part of the
re-sentencing process, the trial court reclassified Appellant, under Ohio’s
Adam Walsh Act, as a tier II sexual offender. Appellant’s direct appeal
from the re-sentencing entry followed, as evidenced in case number 10CA5.
{¶6} Appellant also filed a motion for post-conviction relief in the
trial court, which was denied without a hearing on April 21, 2010.
Appellant has also appealed the denial of his motion for post-conviction
relief, as evidenced in case number 10CA13. These appeals have been
consolidated and together raise the following assignments of error.
CASE NO. 10CA5 ASSIGNMENTS OF ERROR
BY COUNSEL
“I. THE TRIAL COURT ERRED BY RECLASSIFYING MR.
THOMPSON UNDER OHIO’S ADAM WALSH ACT’S R.C.
2950.031 AND 2950.032 WHEN HE HAD ALREADY BEEN
CLASSIFIED BY COURT ORDER UNDER FORMER LAW.
II. THE TRIAL COURT ERRED BY FAILING TO ISSUE A
JOURNAL ENTRY IN COMPLIANCE WITH STATE V. BAKER
(2008), 119 OHIO ST.3D 197 AND CRIM.R. 32(C).”
PRO SE
“I. APPELLANT CONTENDS HIS CONSTITUTIONAL RIGHT TO
BE SENTENCED IN A TIMELY MANNER WAS VIOLATED BY
THE TRIAL COURT FAILING TO DISMISS PROSECUTORS
CASE GIVEN THE UNREASONABLE DELAY IN SENTENCING
Washington App. Nos. 10CA5 and 10CA13 5
APPELLANT ON FELONY CHARGES, THUS, COMMITTING
PLAIN ERROR AND REMOVING JURISDICTION.
II. APPELLANT CONTENDS THAT THE TRIAL COURT ERRED
BY NOT HOLDING A PROPER RESENTENCING HEARING DE
NOVO AFTER PLACING APPELLANT ON POST RELEASE
CONTROL, BUT ONLY SUPPLEMENT THE PROCEEDINGS.
III. COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO
CHALLENGE FOR CAUSE A JUROR WHO TESTIFIED THAT
THE ALLEGED VICTIM STAYED AT HIS HOME OVERNIGHT
WITH HIS OWN TEENAGE DAUGHTER.
IV. TRIAL COUNSEL WAS INEFFECTIVE FOR ALLOWING
INADMISSIBLE HEARSAY WHICH MATERIALLY EFFECTED
THE APPELLANTS RIGHT TO A FAIR TRIAL.
V. TRIAL COUNSEL FAILED TO OBJECT TO IMPROPER
QUESTIONING BY THE PROSECUTOR OF THE LEAD
DETECTIVE THUS VIOLATING THE FIFTH AND SIXTH
AMENDMENTS TO THE UNITED STATES CONST.
VI. APPELLANT WAS PREJUDICED BECAUSE OF THE
TESTIMONY OF A LAY WITNESS AND A NON EXPERT
WITNESS REGARDING THEIR OPINION OF THE VERACITY
OF THE STATEMENT OF A CHILD DECLARANT AND
CONSTITUTES PLAIN ERROR AS A MATTER OF LAW.
VII. THE PROSECUTION TEAM DENIED APPELLANT DUE
PROCESS OF LAW IN ACCORDANCE WITH THE FIFTH
AMENDMENT BY VIOLATING APPELLANTS FOURTH
AMENDMENT RIGHT WHEN DENYING CERTAIN MIRANDA
RIGHTS.
VIII. APPELLANTS CONVICTION WERE NOT SUPPORTED BY
SUFFICIENT EVIDENCE AND WERE AGAINST THE
MANIFEST WEIGHT OF EVIDENCE THEREBY VIOLATING
HIS RIGHTS TO DUE PROCESS PURSUANT TO §10 ARTICLE 1
OF THE OHIO CONSTITUTION AND THE 5TH AND 6TH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
Washington App. Nos. 10CA5 and 10CA13 6
IX. PROSECUTOR RINGS KNOWINGLY MISREPRESENTATION
OF THE TRUTH OR CONCEALMENT OF THE MEDICAL
RECORDS BY INDUCING DEFENSE COUNSEL INTO
BELIEVING THE RECORDS WERE IMMATERIAL VIOLATED
APPELLANTS RIGHT TO A FAIR TRIAL IN ACCORDANCE
WITH ARTICLE 1, SECTION X OF THE OHIO CONSTITUTION
AND THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.
X. THE TRIAL COURT ERRED WHEN IT FAILED TO APPOINT
COUNSEL FOR DIRECT APPEAL OF RIGHT FOLLOWING
RESENTENCING TO CORRECT VOID SENTENCE, THEREBY
DENYING APPELLANT DUE PROCESS AND EQUAL
PROTECTION OF LAW IN VIOLATION OF THE FIFTH, AND
SIXTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, ARTICLE IV, SECTION 3 OF THE OHIO
CONSTITUTION.”
CASE NO. 10CA13 ASSIGNMENTS OF ERROR
BY COUNSEL (ANDERS BRIEF)
“I. THE TRIAL COURT ERRED BY CONDUCTING A
RESENTENCTING HEARING BECAUSE THE STATE OF OHIO
FAILED TO EXERCISE ITS APPEAL OF RIGHT REGARDING
THE TRIAL COURT’S FAILURE TO IMPOSE MANDATORY
FIVE YEAR PERIOD OF POST RELEASE CONTROL, THEREBY
FORFEITING ITS RIGHT TO SUCH HEARING.”
PRO SE
“I. THE TRIAL COURT ERRED BY DISMISSING THE
APPELLANTS PETITION WHEN IT FAILED TO INFORM
APPELLANT OF HIS CONSTITUTIONAL RIGHT TO APPEAL,
TO COUNSEL, AND DOCUMENTS AT STATE’S EXPENSE
AFTER RESENTENCING FOR A POST RELEASE CONTROL
ERROR, THUS, VIOLATING HIS RIGHT TO DUE PROCESS
AND EQUAL PROTECTION OF LAW UNDER BOTH THE OHIO
AND UNITED STATES CONSTITUTION, AND CRIMINAL
RULE 32 OF THE REVISED CODE.”
CASE NO. 10CA5 LEGAL ANALYSIS
Washington App. Nos. 10CA5 and 10CA13 7
BRIEF BY COUNSEL
{¶7} For ease of analysis, we address the assignments of error raised
by Appellant’s court appointed appellate counsel out of order. In his second
assignment of error, Appellant, through counsel, contends that the trial court
erred by failing to issue a journal entry compliant with State v. Baker, 119
Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, and Crim.R. 32(C).
Appellant’s argument is based upon the trial court’s failure to include the
“manner of conviction” in the journal entry.
{¶8} A review of the record reveals that the re-sentencing entry does
not mention the jury verdicts. Instead the entry states that Appellant
“appeared in open court, and was found Guilty of three counts of Unlawful
Sexual Conduct with a minor[.]” Recently, in State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, the Supreme Court of Ohio
held that “[a] judgment of conviction is a final order subject to appeal under
R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the
sentence, (3) the judge's signature, and (4) the time stamp indicating the
entry upon the journal by the clerk.” Id. at syllabus. As set forth above,
Appellant’s journal entry contained these elements. The fact that it failed to
set forth the “manner of conviction” does not affect its finality. Id. at ¶ 12.
As further explained in Lester:
Washington App. Nos. 10CA5 and 10CA13 8
Crim.R. 32(C) does not require a judgment entry of conviction
to recite the manner of conviction as a matter of substance, but
it does require the judgment entry of conviction to recite the
manner of conviction as a matter of form. In this regard, the
identification of the particular method by which a defendant
was convicted is merely a matter of orderly procedure rather
than of substance. A guilty plea, a no-contest plea upon which
the court has made a finding of guilt, a finding of guilt based
upon a bench trial, or a guilty verdict resulting from a jury trial
explains how the fact of a conviction was effected.
Consequently, the finality of a judgment entry of conviction is
not affected by a trial court's failure to include a provision that
indicates the manner by which the conviction was effected,
because that language is required by Crim.R. 32(C) only as a
matter of form, provided the entry includes all the substantive
provisions of Crim.R. 32(C). Id.
Thus, in light of the recent holding in Lester, we conclude that the re-
sentencing entry is a final, appealable order.2 Accordingly,
Appellant’s second assignment of error is overruled.
2
In so holding, we further note that State v. Lester provides in ¶ 16 that “if a judgment entry of conviction
does not indicate how a defendant’s conviction was effected, * * * and if it is not corrected sua sponte, * *
* a party may obtain a correction to the judgment entry by a motion filed with the trial court to correct the
judgment of conviction. See Crim.R. 36, in conjunction with Crim.R. 57(B) and 47 and Civ.R. 7(B).”
Washington App. Nos. 10CA5 and 10CA13 9
{¶9} In his first assignment of error raised by counsel,
Appellant contends that the trial court erred by reclassifying him
under Ohio’s Adam Walsh Act when he had already been classified
by court order under former law. The State concedes that the trial
court erred in reclassifying Appellant and agrees that Appellant’s
former status as a sexually oriented offender should be reinstated.
Based upon the following, we agree.
{¶10} In State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,
933 the N.E.2d 753, Supreme Court of Ohio held that defendants who
had been classified as sex offenders under former law could not be
reclassified under the Adam Walsh Act. Id. at paragraphs two and
three of the syllabus. As a result, the Court struck the sections of the
Ohio Revised Code that instructed the attorney general to reclassify
sex offenders, and held “that the reclassifications of sex offenders by
the attorney general are invalid, and reinstate[d] the prior judicial
classifications of sex offenders.” Id. at ¶ 2. Further, in In Re Sexual
Offender Reclassification Cases, 126 Ohio St.3d 322, 2010-Ohio-
3753, 933 N.E.2d 801, at ¶ 139, the Supreme Court of Ohio held the
proper remedy to be reinstatement of the offender’s original sexual
offender classication.
Washington App. Nos. 10CA5 and 10CA13 10
{¶11} Based upon the rationale of Bodyke, Appellant’s first
assignment of error is sustained. Further, Appellant’s reclassification
as a tier II sexual offender is reversed and this matter is remanded to
the trial court with instructions to reinstate Appellant’s original sex
offender classification. In re Sexual Offender Reclassification Cases
at ¶ 139.
PRO SE BRIEF
ASSIGNMENT OF ERROR I
{¶12} In Appellant’s first pro se assignment of error under Case
No. 10CA5, Appellant contends that his constitutional right to be
sentenced in a timely manner was violated by the trial court failing to
dismiss the prosecutor’s case given the unreasonable delay in
sentencing, which he claims resulted in plain error and lack of
jurisdiction by the court. We disagree.
{¶13} The Supreme Court of Ohio recently provided in State v.
Fischer, supra, at paragraph one of the syllabus, that “[a] sentence that does
not include the statutorily mandated term of postrelease control is void, is
not precluded from appellate review by principles of res judicata, and may
be reviewed at any time, on direct appeal or by collateral attack. (Emphasis
added). Thus, regardless of the delay between Appellant’s convictions and
sentencing, Appellant’s resentencing was appropriate. Further, as Fischer
Washington App. Nos. 10CA5 and 10CA13 11
noted, “when a judge fails to impose statutorily mandated postrelease control
as part of a defendant's sentence, that part of the sentence is void and must
be set aside. Id. at ¶ 26. (footnote omitted). As such, only the incorrect
imposition of postrelease control was void, while all other aspects of the
sentence remained intact. Accordingly, Appellant’s first pro se assignment
of error is overruled.
ASSIGNMENT OF ERROR II
{¶14} In his second pro se assignment of error, Appellant contends
that the trail court erred by only supplementing the proceedings and not
holding a de novo re-sentencing hearing. However, based upon the holding
in State v. Fischer, supra, we disagree.
{¶15} In Fischer, at paragraph one of the syllabus, the Supreme Court
of Ohio reaffirmed that a sentence that failed to include the statutorily
required post release control term is void. However, the only part of the
sentence that is “void” is the portion that fails to comply with the
requirements of post release control statutes. As already mentioned above,
“when a judge fails to impose statutorily mandated postrelease control as
part of a defendant's sentence, that part of the sentence is void and must be
set aside.” Id. at ¶ 26. But “the new sentencing hearing to which an offender
is entitled * * * is limited to proper imposition of postrelease control.” Id. at
¶ 29.
Washington App. Nos. 10CA5 and 10CA13 12
{¶16} Thus, after Fischer, “it is clear that a trial court need not
conduct a ‘de novo’ sentencing hearing, and instead must simply re-sentence
an appellant by reimposing the original sentence, and by adding the proper
post release control notification.” State v. Hawk, Athens App. No. 10CA50,
2011-Ohio-4577, ¶ 13. With the exception of the sexual offender
reclassification, which we have already addressed, this is what the trial court
did. As such, we cannot conclude that the trial court erred. Accordingly,
Appellant’s second pro se assignment of error is overruled.
ASSIGNMENTS OF ERROR III – IX
{¶17} Appellant’s third, fourth, fifth, six, seventh, eighth and ninth
assignments all stem from claimed errors that occurred during trial.
However, the scope of this appeal is limited to issues arising at the re-
sentencing hearing, which we have already addressed. State v. Fischer, at
paragraph four of the syllabus. Res judicata applies to all other aspects of the
merits of the conviction, including the determination of guilt and the lawful
elements of the ensuing sentence. Fischer at paragraph three of the syllabus.
Accordingly, we reject Appellant's third through ninth assignments of error.
ASSIGNMENT OF ERROR X
Washington App. Nos. 10CA5 and 10CA13 13
{¶18} In his tenth pro se assignment of error, Appellant contends that
the trial court erred when it failed to appoint counsel for his direct appeal
from his re-sentencing. Appellant further argues in the body of this
assignment of error that he was not advised of his appellate rights at all
during his re-sentencing hearing, as required by Crim.R. 32(B). Although
Crim.R. 32(B) does in fact obligate the trial court to notify defendants of
their right to appeal their convictions, as well as their right to have counsel
appointed in the event they cannot afford counsel, because Appellant has
filed the within appeal, and was appointed counsel in relation thereto, he has
suffered no prejudice as a result of the trial court’s error. State v. Inman,
Ross App. No. 10CA3176, 2011-Ohio-3438, ¶ 4. Thus, although the trial
court erred in failing to provide these notifications at Appellant’s re-
sentencing hearing, the error was harmless. Id. at ¶ 5.3 Accordingly,
Appellant’s tenth pro se assignment of error is overruled.
CASE NO. 10CA13 LEGAL ANALYSIS
ANDERS BRIEF BY COUNSEL AND PRO SE BRIEF
{¶19} Appellant's counsel has filed an Anders brief in this action.
Under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, counsel
may ask permission to withdraw from a case when counsel has
conscientiously examined the record, can discern no meritorious claims for
3
Although the error was harmless and Appellant suffered no prejudice, because this matter is being
remanded with instructions for the trial court to reinstate Appellant’s original sex offender classification, it
would be prudent for the trial court to provide these notifications at that time.
Washington App. Nos. 10CA5 and 10CA13 14
appeal, and has determined the case to be wholly frivolous. Id. at 744; State
v. Adkins, Gallia App. No. 03CA27, 2004-Ohio-3627, at ¶ 8. Counsel's
request to withdraw must be accompanied with a brief identifying anything
in the record that could arguably support the client's appeal. Anders at 744;
Adkins at ¶ 8. Further, counsel must provide the defendant with a copy of the
brief and allow sufficient time for the defendant to raise any other issues, if
the defendant chooses to do so. Id.{¶20} Once counsel has satisfied these requirements, the appellate
court must conduct a full examination of the trial court proceedings to
determine if meritorious issues exist. If the appellate court determines that
the appeal is frivolous, it may grant counsel's request to withdraw and
address the merits of the case without affording the appellant the assistance
of counsel. Id. If, however, the court finds the existence of meritorious
issues, it must afford the appellant assistance of counsel before deciding the
merits of the case. Anders, 386 U.S. at 744; State v. Duran, Ross App. No.
06CA2919, 2007-Ohio-2743, at ¶ 7.
{¶21} In the current action, Appellant's counsel concludes the appeal
is wholly frivolous and has asked permission to withdraw. Pursuant to
Anders, counsel has filed a brief raising one potential assignment of error for
this court to consider. The potential assignment of error contends that the
trial court erred by conducting a re-sentencing hearing because the State of
Washington App. Nos. 10CA5 and 10CA13 15
Ohio failed to exercise its appeal of right regarding the trial court’s failure to
impose mandatory five-year post release control, thereby forfeiting its right
to such a hearing. Appellant’s counsel notes that Appellant raised this
argument in his motion for post conviction relief, which was denied by the
trial court.
{¶22} We agree with Appellant's counsel that an appeal based upon
this question alone would be wholly frivolous. As noted above, the Supreme
Court of Ohio recently provided in State v. Fischer, supra, at paragraph one
of the syllabus, “[a] sentence that does not include the statutorily mandated
term of postrelease control is void, is not precluded from appellate review by
principles of res judicata, and may be reviewed at any time, on direct appeal
or by collateral attack. (Emphasis added).
{¶23} Here, Appellant’s original sentence did not properly impose a
mandatory five-year term of post release control. The State filed a motion to
return Appellant for a re-sentencing hearing on December 8, 2009, and
Appellant was re-sentenced on January 21, 2010. At the re-sentencing
hearing the trial court, among other things,4 imposed a mandatory five-year
term of post release control and a re-sentencing entry issued on January 27,
2010, reflected this. We believe that the holding in Fischer authorizes such
procedure and we find no error by the trial court. As such, we find this
4
Appellant has alleged additional errors by the trial court in the direct appeal from his re-sentencing, which
we have already addressed above under case number 10CA5.
Washington App. Nos. 10CA5 and 10CA13 16
potential assignment of error to be wholly frivolous. However, because
Appellant has also raised a pro se assignment of error, our analysis does not
end here.
{¶24} In his pro se brief, Appellant contends that the trial court erred
in dismissing his petition for post conviction relief when the court failed to
inform him of his constitutional right to appeal, to counsel, and documents at
state’s expense after re-sentencing for a post release control error. The
State’s brief does not address this issue raised by Appellant.
{¶25} If a petition for post conviction relief does not allege facts
which, if proved, would entitle the prisoner to relief, the trial court may so
find and summarily dismiss the petition. State v. Perry (1967), 10 Ohio St.2d
175, 226 N.E.2d 104, paragraph two of the syllabus. Here, Appellant has
failed to allege facts in his petition for post conviction relief that entitle him
to relief. Appellant’s petition for post conviction relief alleges that, at the
January 21, 2010, resentencing hearing, the trial court failed to notify him of
his right to appeal as well as his right to court appointed counsel. Under
Crim.R. 32(B), a trial court is required to notify the defendant of his
appellate rights. Following the January 21, 2010, re-sentencing hearing, the
trial court issued its January 27, 2010, entry. Appellant timely appealed the
January 27, 2010, entry, which created case number 10CA5. Appellant also
filed an appeal from the trial court’s later denial of his petition for post
Washington App. Nos. 10CA5 and 10CA13 17
conviction relief, which created case number 10CA13. (We have
consolidated case number 10CA5 and case number 10CA13.)
{¶26} The record demonstrates that we ultimately appointed counsel
to represent Appellant on appeal for both case number 10CA5 and case
number 10CA13. Therefore, even assuming the trial court failed to notify
Appellant of his appellate rights as required under Crim.R. 32(B), Appellant
has not suffered any prejudice. See State v. Thomas, Cuyahoga App. No.
94788, 2011-Ohio-214, ¶ 38 (“Although the trial court in this case failed to
advise Thomas of his appellate rights under Crim.R. 32, we find * * * the
error here to be harmless. * * * Here, this court granted Thomas’s motion for
delayed appeal, and subsequently appointed appellate counsel to represent
him in the appeal. Accordingly, we conclude that any argument relative to
the omission is moot.”); State v. Middleton, Preble App. No. CA2004-01-
003, 2005-Ohio-681, ¶ 25 (“Regardless of whether the common pleas court
committed error with regard to Crim.R. 32(B)(2) and (3) appellant has failed
to show prejudice. Appellant was appointed counsel and filed an appeal
within the requisite time period. Accordingly, there was no reversible error
in this case.”).
{¶27} Accordingly, because Appellant did not suffer prejudice from
any alleged error by the trial court, he has failed to allege any facts in his
Washington App. Nos. 10CA5 and 10CA13 18
petition for post conviction relief that would entitle him to relief. As a
result, summary denial of Appellant’s petition was proper.
{¶28} Based upon the foregoing, we conclude that the trial court did
not err in denying Appellant’s petition for post conviction relief and
therefore we affirm the decision of the trial court in case number 10CA13.
Further, having found the issue raised by appellate counsel to be wholly
frivolous, and having found no merit to Appellant’s pro se assignment of
error, we hereby grant counsel’s motion to withdraw.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED IN PART.
Kline, J., concurring in part.
{¶29} I concur in judgment and opinion with the resolution of Case
No. 10CA5, and the Anders portion of Case No. 10CA13. I respectfully
concur in judgment only with the portion of Case No. 10CA13 that
addresses Thompson’s argument regarding the trial court’s failure to notify
him of his appeal rights.
{¶30} Under R.C. 2953.21(C), the trial court was required to issue
findings of fact and conclusions of law when it dismissed Thompson’s
petition for post-conviction relief without a hearing. However, “[a] trial
court need not discuss every issue raised by appellant or engage in an
elaborate and lengthy discussion in its findings of fact and conclusions of
law.” State v. Calhoun, 86 Ohio St.3d 279, 291, 714 N.E.2d 905 (1999).
Washington App. Nos. 10CA5 and 10CA13 19
The reasons to require findings of fact and conclusions of law are “to
apprise petitioner of the grounds for the judgment of the trial court and to
enable the appellate courts to properly determine appeals in such a cause.”
State v. Mapson, 1 Ohio St.3d 217, 219, 438 N.E.2d 910 (1982).
{¶31} In my view, the April 21, 2010 entry satisfied this standard. In
his petition for post-conviction relief, Thompson claimed that the trial court
had no authority to resentence him. The April 21, 2010 entry explains why
the trial court concluded that Thompson’s argument lacked merit.
Thompson also claimed that the trial court failed to notify him of his appeal
rights at resentencing. Although the entry did not address this issue, the
omission is harmless because the record is clear that Thompson suffered no
prejudice from the failure to notify him of his appeal rights. See generally
State v. Ashworth, 5th Dist. No. 99-CA-60, 1999 WL 1071742, * 3 (Nov. 8,
1999) (holding that trial court’s failure “to specifically rule upon” a claim
for relief in a petition for post-conviction relief was “harmless”). Thus, I
conclude that the April 21, 2010 entry satisfied the trial court’s obligation to
submit findings of fact and conclusions of law under R.C. 2953.21(C).
McFarland, J., dissenting, in part.
{¶32} I concur in judgment and opinion with the resolution of case
number 10CA5, as well as the Anders portion of case number 10CA13.
Washington App. Nos. 10CA5 and 10CA13 20
However, I respectfully dissent from the resolution of the pro se assignment
of error in case number 10CA13, as follows.
{¶33} As set forth in the principal opinion, if a petition for post-
conviction relief does not allege facts which, if proved, would entitle the
prisoner to relief, the trial court may so find and summarily dismiss the
petition. State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104,
paragraph two of the syllabus. However, if the petition does allege such
facts, but the files and records of the case negate the existence of facts
sufficient to entitle the prisoner to relief, the trial court may so find and
summarily dismiss the petition without a hearing. In such an instance,
however, the finding of the court should specify the portions of the files and
records which negate the existence of alleged facts that would otherwise
entitle the prisoner to relief. Id. at paragraph three of the syllabus. In those
instances, the court must make findings of fact and conclusions of law
explicit enough to give the appellate court a clear understanding of the basis
of the trial court's decision and to enable it to determine the ground on
which the trial court reached its decision. State v. Chafin, Franklin App.
No. 97APA09-1181, 1998 WL 240498; citing State v. Clemmons (1989), 58
Ohio App.3d 45, 568 N.E.2d 705.
{¶34} Here, in my view, Appellant’s petition for post-conviction relief
alleged facts related to the trial court’s failure to advise him of his appellate
Washington App. Nos. 10CA5 and 10CA13 21
rights, which on their face entitled him to relief. It is only after a review of
the files and records, which indicate that Appellant filed an appeal and was
appointed counsel on appeal in spite of the court’s failure to issue the
appellate right notifications, that we can conclude that facts exist which
negate Appellant’s entitlement to relief. In this circumstance, Perry
provides that the trial court may summarily dismiss the petition, but only
after making findings of fact and conclusions of law explicit enough to give
the appellate court a clear understanding of the basis of the trial court's
decision and to enable it to determine the ground on which the trial court
reached its decision.
{¶35} A review of the record here indicates that the basis of
Appellant’s motion for post-conviction relief was twofold. In overruling the
petition, the trial court did not address Appellant’s argument that he was
entitled to post conviction relief as a result of the trial court’s failure to
inform him of his right to appeal. Instead, the entry denying the petition
only addressed Appellant’s argument that because the State did not appeal
the post release control error after the original sentencing, it had waived the
issue and post release control could not now be imposed. Thus, as the trial
court did not even address this issue, it did not specify the portion of the files
or records which would negate the existence of alleged facts that would
otherwise entitle Appellant to relief as to this particular claim.
Washington App. Nos. 10CA5 and 10CA13 22
{¶36} Although this assignment of error has arguably been rendered
moot in light of the disposition of Appellant’s tenth pro se assignment of
error contained in his appeal of Case No. 10CA5, in my view, this issue is
one for the trial court to determine on remand and not for this Court to
address for the first time on appeal. Further, it should be noted that Thomas
and Middleton, cases relied upon by the majority for the proposition that
Appellant suffered no actual prejudice by the trial court’s failure to issue
appellate right advisements, both involve direct appeals from an original
conviction, rather than an appeal from a petition for post-conviction relief.
In light of the procedural posture of case number 10CA13, which involves
an appeal from a denial of a petition for post-conviction relief, I believe the
analysis outlined in State v. Perry to be applicable, rather than that set forth
in Thomas and Middleton. Accordingly, I respectfully dissent from the
resolution of Appellant’s pro se assignment of error contained in case
number 10CA13.
Washington App. Nos. 10CA5 and 10CA13 23
Washington App. Nos. 10CA5 and 10CA13 24
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED IN PART and that the Appellee and Appellant split 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
Washington County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.
Kline, J.: Concurs in Judgment and Opinion as to Case No. 10CA5 and the Anders
Portion in Case No. 10CA13; Concurs in Judgment with Opinion regarding appeal rights
notification in Case No. 10CA13.
Harsha, J.: Concurs in Judgment only.
McFarland, J.: Dissents, in part, with Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
BY: _________________________
Roger L. Kline, Judge
BY: _________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.