State v. Thompson
2016 Ohio 8310
Ohio Ct. App.2016Background
- Burlin Thompson pleaded guilty to two counts of sexual battery based on DNA matches from rape kits for assaults nearly 20 years earlier and was sentenced to consecutive two-year terms on each count.
- Appellate counsel filed an Anders no‑merit brief seeking permission to withdraw, identifying two potential appellate issues but concluding they were frivolous; Thompson filed no pro se brief.
- Potential Issue A: Preindictment delay — counsel noted delay but found no record that Thompson moved to dismiss or suffered actual prejudice.
- Potential Issue B: Whether the Ohio sentences should run concurrent to a Florida sentence Thompson was already serving — counsel noted the sentencing entry did not order consecutive service to Florida.
- The trial court orally suggested it believed the Ohio sentences could not run concurrent to the Florida term, but the journalized sentencing entry controlled and did not order consecutive service.
- The appellate court granted counsel’s motion to withdraw and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preindictment delay | State: No claim raised; indictment valid | Thompson: Delay (~20 years) prejudiced ability to defend | Frivolous — Thompson waived pretrial constitutional claims by pleading guilty; no record of actual prejudice |
| Ineffective assistance for not moving to dismiss indictment | State: Counsel’s performance need not be reviewed after plea | Thompson: Counsel should have sought dismissal for delay | Frivolous — claim barred by guilty plea waiver and record lacks prejudice |
| Plain‑error review of preindictment delay | State: No plain‑error relief available here | Thompson: Could seek plain‑error despite waiver | Rejected — plain‑error doctrine inapplicable where right was knowingly waived by plea |
| Whether Ohio terms must run consecutive to Florida term | State: Sentencing entry governs; concurrent unless ordered otherwise | Thompson: Ohio terms should be concurrent with Florida term (or court erred) | Frivolous — sentencing entry did not order consecutive service; under R.C. 2929.41 terms run concurrent absent specific findings |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedural requirements for withdrawal when counsel finds appeal frivolous)
- Tollett v. Henderson, 411 U.S. 258 (1973) (guilty plea waives pre-plea constitutional claims)
- Olano v. United States, 507 U.S. 725 (1993) (plain‑error review applies to forfeited, not waived, rights)
- Boyd v. United States, 86 F.3d 719 (7th Cir. 1996) (plain‑error doctrine does not rescue deliberately waived rights)
- State v. Luck, 15 Ohio St.3d 150 (1984) (standard for showing actual prejudice from preindictment delay)
- Schenley v. Kauth, 160 Ohio St. 109 (1953) (court speaks through its journal entry rather than oral pronouncements)