State v. Tharp
2017 Ohio 2750
| Ohio Ct. App. | 2017Background
- Applicant Harry Tharp, Jr. filed an App.R. 26(B) application to reopen his direct appeal affirming convictions for two counts of corrupting another with drugs and two counts of importuning.
- Appointed appellate counsel filed an Anders brief and was permitted to withdraw; Tharp then filed pro se assignments of error on appeal.
- Tharp claims appellate counsel was ineffective for not challenging the trial court’s postrelease-control notification.
- Trial court informed Tharp of a single five-year period of postrelease control.
- Tharp contends corrupting another with drugs carries only three years of postrelease control, so counsel should have raised that error.
- The record also shows Tharp pleaded guilty to two importuning counts (felony sex offenses) for which a five-year postrelease-control term is mandatory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for failing to challenge postrelease-control notification | Tharp: counsel should have argued the corrupting-with-drugs counts carry only three years postrelease control | Appellee: only one postrelease-control term may be imposed; the longest term governs | Denied — claim fails on procedural and substantive grounds |
| Whether App.R. 26(B) reopening is available after a defendant files pro se assignments of error | Tharp: may assert ineffective assistance of appellate counsel via reopening | State: a defendant who pursues pro se assignments on appeal generally may not later seek reopening for appellate counsel’s ineffectiveness | Denied — procedural bar to reopening where appellant represented himself after Anders withdrawal |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedures when counsel seeks to withdraw after finding appeal frivolous)
- State v. Tyler, 71 Ohio St.3d 398 (1994) (defendant who represents himself on appeal generally cannot later seek App.R. 26(B) reopening)
- State v. Boone, 114 Ohio App.3d 275 (7th Dist. 1996) (same principle regarding App.R. 26(B) limitations)
- State v. Spivey, 84 Ohio St.3d 24 (1998) (App.R. 26(B) requires a colorable claim of ineffective assistance of appellate counsel)
- State v. Reed, 983 N.E.2d 394 (6th Dist. 2012) (trial courts may impose a single postrelease-control term equal to the longest applicable term)