STATE OF OHIO, Plaintiff-Appellee v. JUSTIN D. THOMAS, Defendant-Appellant
Appellate Case No. 2013-CA-11
Trial Court Case No. 2012-CR-78
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY
June 20, 2014
[Cite as State v. Thomas, 2014-Ohio-2666.]
WELBAUM, J.
(Criminal Appeal from Common Pleas Court)
Rendered on the 20th day of June, 2014.
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R. KELLY ORMSBY, III, Atty. Reg. No. 0020615, Darke County Prosecuting Attorney, 504 South Broadway, Greenville, Ohio 45331 Attorney for Plaintiff-Appellee
JUSTIN D. THOMAS, Inmate No. 669-190, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601 Defendant-Appellant-Pro Se
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WELBAUM, J.
Facts and Course of Proceedings
{¶ 2} On May 25, 2012, Thomas was indicted in Case No. 2012-CR-78 for one count of domestic violencе, one count of having weapons while under disability, and one count of attempted murder. The charges arose from a May 7, 2012 domestic dispute between Thomas and his wife. During the dispute, Thomas hit his wife in the face and then attempted to shoot her with a 12-gauge shotgun as she was fleeing their home. Prior to the dispute, Thomas had been charged in Case No. 2011-CR-187 for aggravated robbery and abduction. The charges in that case stemmed from Thomas robbing his grandfather at gunpoint on September 6, 2011.
{¶ 3} Thomas initially pled not guilty to the all charges. Following his plea, the trial court ordered a competency evaluation to be performed, as Thomas had been previously diagnosed and medicated for Post-Traumatic Stress Disorder (PTSD). Based on that evaluation, the trial court found Thomas competent to stand trial.
{¶ 4} On October 15, 2012, Thomas entered into a cоmbined plea agreement for both cases pending against him. Pursuant to the plea agreement, Thomas pled guilty in Case No. 2012-CR-78 to one count of domestic violence in violation of
{¶ 5} At his combined plea and sentencing hearing, Thomas and the Stаte jointly recommended that the trial court impose an aggregate prison term of four years and eleven months for both cases. Under the joint recommendation, Thomas would concurrently serve six months in prison for the domestic violence offense, two years in prison for having weapons under disability, and four years in prison for the felonious assault in Case No. 2012-CR-78. He would then serve a consecutive eleven-month prison term for the attempted abduction offense in Case No. 2011-CR-187. Both parties indicated on the record that they understood if the court werе to impose the jointly recommended sentence, that the sentence may not thereafter be appealed pursuant to
{¶ 6} On October 15, 2012, the trial court imposed the jointly recommended sentence, thereby sentencing Thomas to the agreed upon four years and еleven months in prison. Thomas did not directly appeal from his conviction and sentence; however, he filed multiple postconviction motions, including a motion to correct sentence filed on September 4, 2013. In that motion, Thomas argued: (1) the trial court erred in failing to merge his offenses at sentencing; (2) the trial court imposed consecutive sentences without making the findings required by
{¶ 7} Thomas now appeals from the trial court‘s decision overruling his motion to correct sentence, raising three assignments of error for review.
{¶ 8} For purposes of convenience, we will address Thomas‘s three assignments of error together. They are as follows:
- I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO MERGE COUNTS.
- II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE PROVISIONS OF HOUSE BILL 86.
- III. WHETHER APPELLANT WAS DEPRIVED OF INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 9} Under his first assignment of error, Thomas argues that the trial court erred in failing to merge his оffenses at sentencing, claiming that they are allied offenses of similar import. For his second assignment of error, Thomas argues that the trial court erred in imposing consecutive sentences without making the required findings under
{¶ 10} As noted earlier, Thomas appealеd from the trial court‘s September 27, 2013 decision overruling his motion to correct sentence. While Thomas‘s motion is not denominated a petition for postconviction relief under
{¶ 11} Petitions for postconviction relief are governed by
Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitiоner may file a supporting affidavit and other documentary evidence in support of the claim for relief.
{¶ 12}
{¶ 13} In this case, Thomas was convicted and sentenced on October 15, 2012. According to
{¶ 14} In addition, Thomas failed to demonstrate that he was permitted to file an untimely petition under
{¶ 15} That said, even if Thomas‘s petition had been timely filed, the three claims advanced in his petition have no merit. As for his allied offense claim, in order for his convictions to merge, it must have been possible for Thomas to have committed the offenses in question with the same conduct and he must have in fact committed the offenses with the same conduct—“i.e. ‘a single act, committed with a single state of mind.’ ” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). However, “if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶ 16} Here, the record indicates that Thomas‘s domestic violence and felonious assault convictions arose from separate acts of Thomas hitting his wife in the face and then later attempting to shoot her as she left their home. Thomas‘s attempted abduction of his grandfather was also clearly a separate act, as it occurred on a separate date and involved a separate victim. Accordingly, these are not allied offenses that merge.
{¶ 17} With respect to Thomas‘s weapons under disability charge, this court has prеviously noted that even though a weapons under disability offense may be committed by the same conduct as a felonious assault, the offenses are not allied offenses if they are committed with a separate animus. See Id. at ¶ 41-43. Here, the record indicates that Thomas possessed
{¶ 18} In addition, Thomas‘s claim that the trial court erred in failing to make the required consecutive sentence findings under
{¶ 19} Likewise, Thomas‘s claim that his guilty plea was not entered knowingly and voluntarily also lacks merit. When a defendant seeks “to withdraw his guilty plea after the trial court has imposed a sentence, he bears the burden of establishing the existence of a manifest injustice.” State v. Moore, 2d Dist. Montgomery No. 24378, 2011-Ohio-4546, ¶ 9, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. “A defendant can only establish a manifest injustice in ‘extraordinary cases.’ ” Id., citing Smith at 264. The Supreme Court of Ohio has defined a manifest injustice as a “clear or openly unjust act.” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). “A post-sentence motion to vacate a plea is only permitted in extraordinary circumstаnces because the ‘accused might be encouraged to plead guilty to test the weight of potential punishment and withdraw the plea if the sentence was unexpectedly severe.’ ” Moore at ¶ 9, quoting State v. Peterseim, 68 Ohio App.2d 211, 213, 428 N.E.2d 863 (8th Dist.1980).
{¶ 20} Here, Thomas‘s petition did not establish that his guilty plea resulted in a manifest injustice. His motion merеly contained a bare assertion that his plea was not knowingly and voluntarily made. Contrary to this assertion, the plea hearing transcript establishes that Thomas indicated to the court that despite his mental health issues and medication, he understood the conversation he was having with the trial court, the information in the plea form, and the nature of the charges to which he was pleading guilty. See Plea and Sentencing Hearing Trans. (Oct. 15, 2012), p. 13-17. We also note that Thomas underwent a competency evaluation and
{¶ 21} Finally, as it relates to Thomas‘s claim alleging ineffective assistance of counsel, we note that this claim was not raised in his petition for postconviction relief, and therefore, is not properly before this сourt. See State v. Webb, 2d Dist. Darke No. 06-CA-1694, 2007-Ohio-3446, ¶ 1; see also State v. Garrett, 7th Dist. Belmont No. 06 BE 67, 2007-Ohio-7212, ¶ 8 (“the appellate court can only address those arguments presented to the trial court in the original petition; any new arguments cannot be considered for the first time on appeal“). However, even if Thomas had raised the ineffective assistance сlaim in his petition, the record belies his claim. At his plea hearing, Thomas informed the trial court that he was satisfied with his counsel‘s advice and skills. See Plea and Sentencing Hearing Trans. (Oct. 15, 2012), p. 16. He also told the court that his counsel was competent and worked diligently for his interests. Id.
{¶ 22} Becаuse Thomas‘s petition for postconviction relief was untimely and otherwise lacks merit, it was not erroneous for the trial court to overrule the petition. Therefore, Thomas‘s first, second, and third assignments of error are overruled.
Conclusion
{¶ 23} Having overruled Thomas‘s three assignments of error, the judgment of the trial court is affirmed.
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Copies mailed to:
R. Kelly Ormsby, III
Justin D. Thomas
Hon. Jonathan P. Hein