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State v. Thompson

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 18, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
LONNIE B. THOMPSON DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-11-553640-A

          FOR APPELLANT Lonnie B. Thompson, pro se

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Brett Hammond Gregory J. Ochocki Assistant Prosecuting Attorneys.

          BEFORE: E.A. Gallagher, A.J., E.T. Gallagher, J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

         {¶1} Defendant-appellant, Lonnie Thompson is again before this court and has raised four assignments of error for our review:

I. The trial court failed to conduct a de novo resentencing denying Appellant his Due Process protections under the Fourteenth Amendment to the U.S. Constitution and Article 1, Section 10 of the Ohio Constitution.
II. The trial court failed to conduct a full allied offense determination and to merge all allied offenses, violating Appellant's protection against Double Jeopardy as provided by the Fifth Amendment to the U.S. Constitution, and his right to Due Process under the Fourteenth Amendment to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.
III. The trial court failed to make required findings under R.C. 2929.14(C)(4) before imposing consecutive sentences at Thompson's resentencing, in violation of his Due Process protections under the Fourteenth Amendment to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.
IV. The trial court violated Appellant's Due Process protections under the Fifth and Fourteenth Amendments to the U.S. Constitution, and Article 1, Section 10 of the Ohio Constitution, when it engaged in vindictive sentencing against him.

         Having reviewed the record and pertinent law, we affirm Thompson's sentence.

         {¶2} This is Thompson's fifth appeal. In his first appeal, Thompson argued that the trial court "abused its discretion by imposing a total sentence of 32½ years." State v. Thompson, 8th Dist. Cuyahoga No. 99628, 2014-Ohio-202, ¶ 21 ("Thompson I "). We concluded that the trial court erred by failing to merge two counts and remanded the matter for resentencing as to those two counts. Thompson did not raise any issue in his first appeal regarding the trial court's imposition of a fine, costs, or restitution or the trial court's failure to give him jail-time credit.

         {¶3} In his second appeal, Thompson argued that the trial court's nunc pro tunc entry correcting his sentence was invalid because the sentence was greater than the 28½ years imposed at the sentencing hearing. State v. Thompson, 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 5 ("Thompson II "). This court held that in his prior appeal, Thompson only argued that the trial court erred by imposing 32½ years and that res judicata prevented him from raising an argument he could have raised on direct appeal. We also concluded that issuing the nunc pro tunc was an appropriate manner to correct the mathematical error with respect to the sentencing error, because it was undisputed that the aggregate prison sentence imposed totaled 31½ years. We held that "[a]lthough Thompson's sentences on each of the individual counts were clearly stated at the sentencing hearing, the record reflects that the trial court, the state, and defense counsel each made a math error in calculating Thompson's aggregate sentence." Thompson II at ¶ 17.

         {¶4} We agreed with Thompson, however, that the trial court erred by not correcting the improper imposition of a fine, costs and restitution, "which were either ordered suspended or not imposed at the sentencing hearing." Id. at ¶ 18. We concluded that "the November 14, 2014 nunc pro tunc entry is incomplete and a new nunc pro tunc entry must be issued correcting all of the mathematical and clerical errors in the March 13, 2013 sentencing journal entry." Id. Although Thompson also argued in Thompson II that the trial court erred by not giving ...


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