State v. Thurman
2016 Ohio 3064
Ohio Ct. App.2016Background
- State appealed the trial court’s order terminating postrelease control imposed on Anthony Thurman.
- Trial court held the imposition of postrelease control was void ab initio and, because Thurman had already been released, the error was not correctable.
- The State treated the appeal as one of right rather than seeking leave to appeal as required when an appeal does not fall into specific statutory categories.
- The court analyzed R.C. 2945.67(A) and related authority to determine when the State may appeal as of right.
- The State did not file a concurrent motion for leave to appeal within 30 days as required by App.R. 5(C).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State could appeal as of right the trial court’s termination of postrelease control | The State treated the order as appealable as of right | Thurman argued the order was not within categories permitting a right to appeal, so the State needed leave | The court held the order was not appealable as of right; the State needed leave |
| Whether termination of postrelease control is a category listed in R.C. 2945.67(A) allowing State appeals as of right | State implicitly contended it was appealable | Thurman: termination does not fit the listed categories (dismiss, suppress, return property; postconviction relief; direct sentencing appeal) | Court held termination is not among enumerated categories; no appeal as of right |
| Whether a motion to vacate a void sentence may be used when postrelease control was imposed improperly and the prisoner already released | State sought appellate review instead of collateral relief | Thurman relied on authority allowing collateral attack on void sentences (motion to vacate) rather than R.C. 2953.21 relief | Court noted collateral attack on void sentence is appropriate and not the same as a postconviction petition, supporting conclusion that State lacked a right to appeal |
| Effect of failing to timely file a motion for leave to appeal under App.R. 5(C) | State failed to file concurrently | Thurman: failure is jurisdictional and fatal | Court dismissed appeal for lack of jurisdiction due to failure to timely seek leave |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (Ohio 2010) (a motion to vacate a void sentence is an appropriate vehicle to challenge a facially illegal sentence)
- State ex rel. Steffen v. Judges of the Court of Appeals for the First Appellate Dist., 126 Ohio St.3d 405 (Ohio 2010) (failure to file required concurrent motion for leave to appeal is jurisdictional and fatal)