State v. Tharp

[Cite as State v. Tharp, 2017-Ohio-2750.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104216
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
HARRY THARP, JR.
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-15-598816-A
Application for Reopening
Motion No. 504499
RELEASE DATE: May 9, 2017
FOR APPELLANT
Harry Tharp, Jr.
Inmate No. A681-335
Grafton Correctional Institution
2500 S. Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Gregory J. Ochocki
John Farley Hirschauer
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Applicant Harry Tharp, Jr. has filed a timely application for reopening
pursuant to App.R. 26(B). Tharp seeks to reopen the appellate judgment rendered in
State v. Tharp, 8th Dist. Cuyahoga No. 104216, 2016-Ohio-8316, that affirmed Tharp’s
conviction and sentence for two counts of corrupting another with drugs and two counts
of importuning. For the reasons that follow, we deny Tharp’s application.
{¶2} Tharp alleges that his appellate counsel was ineffective for failing to
challenge the trial court’s imposition of postrelease control. The record reflects,
however, that Tharp’s appointed appellate counsel was permitted to withdraw after filing
a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
and that Tharp filed his own pro se assignments of error. Generally, a reopening of an
appeal under App.R. 26(B) is not available to a defendant who chooses to file pro se
assignments of error. See, e.g., State v. Tyler, 71 Ohio St.3d 398, 643 N.E.2d 1150(1994); State v. Boone, 114 Ohio App.3d 275, 279, 683 N.E.2d 67 (7th Dist.1996); and
State v. Hurt, 8th Dist. Cuyahoga No. 96032, 2012-Ohio-4268. Indeed, the scope of
App.R. 26(B) is limited to a claim of ineffective assistance of appellate counsel, and a
defendant who represents himself on appeal cannot later argue his own ineffectiveness in
an application to reopen under App.R. 26(B). See State v. Perotti, 8th Dist. Cuyahoga
No. 73743, 1998 Ohio App. LEXIS 5962 (Dec. 10, 1998), reopening disallowed,
2005-Ohio-2175.
{¶3} Moreover, even if Tharp’s application was not barred by his
self-representation, his proposed assignment of error fails on the merits and therefore
cannot support a “colorable claim of ineffective assistance of counsel on appeal” as
required under App.R. 26(B)(5). State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696(1998). According to Tharp, his appointed appellate counsel should have argued that the
trial court improperly notified him regarding the term of postrelease control for the two
counts of corrupting another with drugs. Tharp contends that the trial court’s
notification of a five-year period of postrelease control was wrong because the corrupting
another with drugs charge is subject to only three years of postrelease control. This
argument is misplaced.
{¶4} Pursuant to R.C. 2967.28(F)(4)(c), if a defendant may be subject to multiple
terms of postrelease control, “the period of post-release control for all of the sentences
shall be the period of post-release that expires last, as determined by the parole board or
court. Periods of post-release control shall be served concurrently and shall not be
imposed consecutively to each other.” Relying on this statutory language, “Ohio
appellate courts have held that trial courts are permitted only to impose one term of
post-release control even when the defendant has been convicted of multiple felony
offenses.” State v. Brown, 2d Dist. Montgomery No. 25653, 2014-Ohio-2551, ¶ 23,
citing State v. Orr, 8th Dist. Cuyahoga No. 96377, 2011-Ohio-6269, ¶ 50; State v. Reed,
2012-Ohio-5983, 983 N.E.2d 394, ¶ 12 (6th Dist.).
{¶5} Here, the record reflects that the trial court properly notified Tharp that he
was subject to a mandatory five-year period of postrelease control. Apart from the
corrupting another with drugs counts, Tharp also pled guilty to two counts of importuning
in violation of R.C. 2907.07(B)(1) (fifth-degree felony sex offenses). Under R.C.
2967.28(B)(1), a five-year term of postrelease control is mandatory for a felony sex
offense. State v. Smith, 6th Dist. Sandusky No. S-14-037, 2015-Ohio-1867, ¶ 9. Thus,
in ordering the imposition of a five-year postrelease control term, the trial court had no
obligation to impose shorter terms for the remaining offenses. Brown at ¶ 23; see also
State v. Morris, 8th Dist. Cuyahoga No. 97215, 2012-Ohio-2498, ¶ 18 (recognizing that
the trial court’s imposition of a single term of postrelease control was proper and that
R.C. 2967.28(F)(4)(c) precludes the court or the parole board from imposing more than
one period of postrelease control in cases that involve multiple convictions).
{¶6} Accordingly, the application for reopening is denied.
PATRICIA ANN BLACKMON, JUDGE
LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR