State v. Tharp

2017 Ohio 2750

• Court: Ohio Court of Appeals
• Decided: May 9, 2017
• Docket: 104216
• Status: Published

Opinion

[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