Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-15-598816-A
Application for Reopening Motion No. 504499
APPELLANT Harry Tharp, Jr. Grafton Correctional Institution
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Gregory J. Ochocki, John Farley
Hirschauer Assistant County Prosecutors
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, J.
Applicant Harry Tharp, Jr. has filed a timely application for
reopening pursuant to App.R. 26(B). Tharp seeks to reopen the
appellate judgment rendered in State v. Tharp, 8th
Dist. Cuyahoga No. 104216, 2016-Ohio-8316, that affirmed
Tharp's conviction and sentence for two counts of
corrupting another with drugs and two counts of importuning.
For the reasons that follow, we deny Tharp's application.
Tharp alleges that his appellate counsel was ineffective for
failing to challenge the trial court's imposition of
postrelease control. The record reflects, however, that
Tharp's appointed appellate counsel was permitted to
withdraw after filing a brief under Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), and that Tharp filed his own pro se assignments of
error. Generally, a reopening of an appeal under App.R. 26(B)
is not available to a defendant who chooses to file pro se
assignments of error. See, e.g., State v. Tyler, 71
Ohio St.3d 398, 643 N.E.2d 1150 (1994); State v.
Boone, 114 Ohio App.3d 275, 279, 683 N.E.2d 67 (7th
Dist.1996); and State v. Hurt, 8th Dist. Cuyahoga
No. 96032, 2012-Ohio-4268. Indeed, the scope of App.R. 26(B)
is limited to a claim of ineffective assistance of appellate
counsel, and a defendant who represents himself on appeal
cannot later argue his own ineffectiveness in an application
to reopen under App.R. 26(B). See State v. Perotti,
8th Dist. Cuyahoga No. 73743, 1998 Ohio App. LEXIS 5962 (Dec.
10, 1998), reopening disallowed, 2005-Ohio-2175.
Moreover, even if Tharp's application was not barred by
his self-representation, his proposed assignment of error
fails on the merits and therefore cannot support a
"colorable claim of ineffective assistance of counsel on
appeal" as required under App.R. 26(B)(5). State v.
Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998).
According to Tharp, his appointed appellate counsel should
have argued that the trial court improperly notified him
regarding the term of postrelease control for the two counts
of corrupting another with drugs. Tharp contends that the
trial court's notification of a five-year period of
postrelease control was wrong because the corrupting another
with drugs charge is subject to only three years of
postrelease control. This argument is misplaced.
Pursuant to R.C. 2967.28(F)(4)(c), if a defendant may be
subject to multiple terms of postrelease control, "the
period of post-release control for all of the sentences shall
be the period of post-release that expires last, as
determined by the parole board or court. Periods of
post-release control shall be served concurrently and shall
not be imposed consecutively to each other." Relying on
this statutory language, "Ohio appellate courts have
held that trial courts are permitted only to impose one term
of post-release control even when the defendant has been
convicted of multiple felony offenses." State v.
Brown, 2d Dist. Montgomery No. 25653, 2014-Ohio-2551,
¶ 23, citing State v. Orr, 8th Dist. Cuyahoga
No. 96377, 2011-Ohio-6269, ¶ 50; State v. Reed,
2012-Ohio-5983, 983 N.E.2d 394, ¶ 12 (6th Dist.).
Here, the record reflects that the trial court properly
notified Tharp that he was subject to a mandatory five-year
period of postrelease control. Apart from the corrupting
another with drugs counts, Tharp also pled guilty to two
counts of importuning in violation of R.C. 2907.07(B)(1)
(fifth-degree felony sex offenses). Under R.C. 2967.28(B)(1),
a five-year term of postrelease control is mandatory for a
felony sex offense. State v. Smith, 6th Dist.
Sandusky No. S-14-037, 2015-Ohio-1867, ¶ 9. Thus, in
ordering the imposition of a five-year postrelease control
term, the trial court had no obligation to impose shorter
terms for the remaining offenses. Brown at ¶
23; see also State v. Morris, 8th Dist. Cuyahoga No.
97215, 2012-Ohio-2498, ¶ 18 (recognizing that the trial
court's imposition of a single term of postrelease
control was proper and that R.C. 2967.28(F)(4)(c) precludes
the court or the parole board from imposing more than one
period of postrelease control in cases that involve multiple
Accordingly, the application ...