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State v. Thompkins

Court of Appeals of Ohio, Tenth District

August 20, 2013

State of Ohio, Plaintiff-Appellee,
v.
Peter A. Thompkins, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 04CR-6666)

Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.

Peter A. Thompkins, pro se.

DECISION

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 failed 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 sentence 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 the merits of four out of appellant's five assignments of error because they were not based on the judgment at issue on 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 petition, the documents attached thereto, and the record did not contain sufficient operative facts to establish substantive grounds for relief Furthermore, res judicata barred appellant from raising speedy trial and sentencing claims that were raised or could have been raised at trial, during sentencing, or on direct appeal. Accordingly, we held that the trial court did not abuse its discretion in dismissing appellant's petition for postconviction relief without a hearing.

(¶ 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 R.C. 2953.21(A)(2), and it was an impermissible successive petition pursuant to R.C. 2953.23(A). Therefore, the trial court did not err in denying it.

(¶ 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 our review:

[I.] Trial court failed to follow statutory mandated law when sentencing appellant to two allied offenses without proceeding to R.C. 2941.25(B) violating appellant's rights to Due Process and Equal Protection under both United States and the Ohio Constitution and the United States and the Ohio Constitutional Amendment 5 Double Jeopardy and Ohio Constitution Art. 1 Subsection 10 (as it applies).
[II.] The court's imposition of resjudicata [sic] violates an appellant's rights under "Due Process Clauses" of both the United States and the Ohio Constitutions when an appellant's sentence is sustained under an [sic] ...

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