State v. ThompkinsState v. Thompkins
Rendered on August 20, 2013
Ron O‘Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.
Peter A. Thompkins, pro se.
APPEAL from the Franklin County Court of Common Pleas
O‘GRADY, J.
{¶ 1} Defendant-appellant, Peter A. Thompkins, appeals from the November 28, 2012 judgment of the Franklin County Court of Common Pleas that denied his February 29, 2012 petition for postconviction relief. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This is the fourth time appellant has appealed to this court following his convictions for attempted murder and two counts of felonious assault in 2005. On November 21, 2006, we affirmed appellant‘s convictions and sentence finding that he failеd to establish he received ineffective assistance of counsel, the trial court properly did not merge appellant‘s attempted murder and felonious assault convictions for the purposes of sentencing, and the sеntence imposed by the trial court did not violate appellant‘s double jeopardy rights. State v. Thompkins, 10th Dist. No. 06AP-310, 2006-Ohio-6148 (”Thompkins I“), discretionary appeal not allowed, 114 Ohio St.3d 1425, 2007-Ohio-2904.
{¶ 3} On August 23, 2007, we affirmed the trial court‘s judgment denying appellant‘s November 2, 2006 petition for postconviction relief. State v. Thompkins, 10th Dist. No. 07AP-74, 2007-Ohio-4315 (”Thompkins II“). We lacked jurisdiction to address thе merits of four out of appellant‘s five assignments of error because they were not based on the judgment at issue оn appeal. In the sole assignment of error we considered, appellant argued the trial court erred in dismissing his petition without holding an evidentiary hearing. We overruled that assignment of error because appellant‘s petitiоn, the documents attached thereto, and the record did not contain sufficient operative facts to estаblish substantive grounds for relief. Furthermore, res judicata barred appellant from raising speedy trial and sentencing clаims that were raised or could have been raised at trial, during sentencing, or on direct appeal. Accordingly, wе held that the trial court did not abuse its discretion in dismissing appellant‘s petition for postconviction relief without a hеaring.
{¶ 4} On October 16, 2008, we affirmed the trial court‘s judgment denying appellant‘s April 24, 2008 petition for postconviction relief. State v. Thompkins, 10th Dist. No. 08AP-454, 2008-Ohio-5373 (”Thompkins III“). We determined that res judicata barred appellant‘s claims because he had either previously litigated them or could have previously litigated them. Additionally, appellant‘s petition was untimely pursuant to
{¶ 5} On February 29, 2012, appellant filed the instant petition for postconviction relief. The trial court dismissed it on November 28, 2012, finding the petition was barred by res judicata and appellant‘s claims lacked merit. Appellant filed a timely appeal to this court.
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant designates the following two assignments of error for оur review:
[I.] Trial court failed to follow statutory mandated law when sentencing appellant to two allied offensеs without proceeding to
R.C. 2941.25(B) violating appellant‘s rights to Due Process and Equal Protection under both United States and the OhioConstitution and the United States and the Ohio Constitutional Amendment 5 Double Jeopardy and Ohio Constitution Art. 1 Subsection 10 (as it aрplies). [II.] The court‘s imposition of resjudicata [sic] violates an appellant‘s rights under “Due Process Clauses” of bоth the United States and the Ohio Constitutions when an appellant‘s sentence is sustained under an [sic] misinterpretation of law made by the court itself .
Because the assignments of error are interrelated, we will address them together.
III. DISCUSSION
{¶ 7} We review the trial court‘s ruling on appellant‘s petition for postconviction relief for an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 60. An abusе of discretion exists when the trial court‘s attitude in reaching its judgment was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 8} We begin by noting, as we did in Thompkins III, thаt this appeal is based on an untimely petition for postconviction relief. Thompkins III at ¶ 14. Under
{¶ 9} Furthermore, appellant only raises sentencing issues in his petition. He does not contest his guilt. Therefore, the exceptiоn to the 180-day filing deadline that appears in
{¶ 10} Additionally, appellant‘s claims regarding merger at sentencing and dоuble jeopardy were raised and adjudicated in his 2006 direct appeal. See Thompkins I. Appellant was represented by counsel at trial and in that appeal. Id. Therefore, res judicata bars appellant from relitigating thosе issues now. Thompkins III at ¶ 12, citing
{¶ 11} Finally, appellant‘s arguments attacking his sentence are based on his contention that the Supreme Court of Ohio‘s decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, which guides the analysis of allied offenses under
{¶ 12} Accordingly, we find that the trial court did not abuse its discretion in dismissing aрpellant‘s February 29, 2012 petition for postconviction relief. Thus, we overrule appellant‘s assignments of error.
IV. CONCLUSION
{¶ 13} For the foregoing reasons, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and SADLER, JJ., concur.