State v. Thomas

[Cite as State v. Thomas, 

.]




                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 101630



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                         TIMOTHY THOMAS

                                                        DEFENDANT-APPELLANT




                                           JUDGMENT:
                                       APPLICATION DENIED



                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-14-581697-A
                                    Application for Reopening
                                        Motion No. 486684

        RELEASE DATE: October 28, 2015
FOR APPELLANT

Timothy Thomas
Inmate No. 653-856
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, SR., P.J.:
           {¶1} On June 19, 2015, the applicant, Timothy Thomas, pursuant to App.R. 26(B), applied

to reopen this court’s judgment in State v. Thomas, 8th Dist. Cuyahoga No. 101630, 2015-Ohio-

2152, in which this court affirmed Thomas’s convictions for attempted murder and having a

weapon while under disability, but vacated the sentence in part and remanded for a new sentencing

hearing limited to the advisement of postrelease control.      Thomas now argues that his appellate

counsel was ineffective for (1) not arguing ineffective assistance of trial counsel for not enforcing

the plea agreement for a four-year sentence, and (2) not consulting with Thomas and arguing his

desired assignments of error. On August 19, 2015, the state of Ohio filed its brief in opposition.

For the following reasons, this court denies the application to reopen.

           {¶2} Thomas shot his wife in the back of her head while they were in their car.   Based on

the wife’s remarks made immediately after the shooting, the state charged Thomas with attempted

murder with one- and three-year firearm specifications, kidnapping, improper handling of a

firearm in a motor vehicle, having a weapon while under disability, and two counts of felonious

assault.      Although Thomas insisted the shooting was a drug-fueled accident, he pleaded guilty to

attempted murder and the one-year firearm specification, and having a weapon while under

disability.      Pursuant to the plea bargain, the state nolled the other charges, including the three-

year firearm specification.      The judge sentenced him to a total of six years: one year for the

firearm specification consecutive to five years for the attempted murder, and a concurrent 36-

month sentence for the weapon charge.

           {¶3} Thomas’s appellate counsel argued that his plea was not knowingly, intelligently, and

voluntarily made because the court did not specify the maximum sentence and because he never

actually admitted his guilt.    This court rejected those arguments, but ruled that the trial court did

not properly explain postrelease control.
       {¶4} Thomas now argues that his trial counsel was ineffective for not enforcing the plea

bargain, which Thomas claims was for a four-year sentence so he could obtain early judicial

release.   If he had known that his sentence would have been for six years, he would not have

taken the deal.

       {¶5} However, the transcript does not support Thomas’s argument. At the beginning of

the plea hearing, the prosecutor detailed the plea bargain and specified the maximum sentences.

(Tr. 3-4.) Defense counsel concurred. (Tr. 4.)    The trial judge indicated that he would probably

go five, six, or seven years. (Tr. 7.) Although Thomas asked about judicial release and the

attorneys and judge expended considerable time and effort explaining the provisions of R.C.

2929.20(B), no representations were made that Thomas would receive four years so he could take

advantage of the statute.   Thomas’s first argument is baseless.

       {¶6} Thomas next complains that his appellate counsel did not consult with him about what

arguments should be made. However, appellate counsel has no duty to contact the appellant, and

not contacting the appellant is not ineffective assistance of appellate counsel. State v. Inglesias-

Rodriquez, 8th Dist. Cuyahoga No. 76028, 

 (Mar. 16, 2000),

reopening disallowed, 

 (Oct. 12, 2000).

       {¶7} Thomas also mentions that appellate counsel should have raised sentencing errors and

lists the judicial release statute and two other cases, but he does not state a specific, authentic

assignment of error. Without a proposed assignment of error, it is impossible to determine if a

genuine issue exists as to whether the applicant was deprived of the effective assistance of

appellate counsel, as required by App.R. 26(B)(5). State v. Bonneau, 8th Dist. Cuyahoga No.

97565, 

, reopening disallowed, 

.

       {¶8} Accordingly, the court denies the application to reopen.
LARRY A. JONES, SR., PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
TIM McCORMACK, J., CONCUR