Court of Appeals of Ohio, Second District, Montgomery
Court Case No. 2013-CR-377/2 (Criminal Appeal from Common
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Assistant
Prosecuting Attorney, Montgomery County Prosecutor's
Office, Appellate Division, Montgomery County Courts
Building, Attorney for Plaintiff-Appellee.
THOMPSON, Inmate No. 721-446, Warren Correctional
Institution, Attorney for Defendant-Appellant.
1} Defendant-appellant, Craig Thompson, appeals pro
se from a judgment of the Montgomery County Court of Common
Pleas overruling his petition for post-conviction relief,
supplemental petitions for post-conviction relief, and his
motion for new trial. For the reasons outlined below, the
judgment of the trial court will be affirmed.
and Course of Proceedings
2} On March 5, 2013, the Montgomery County Grand
Jury returned an indictment charging Thompson with one count
of complicity to commit burglary in violation of R.C.
2911.12(A)(1) and R.C. 2923.03(A)(2), a felony of the second
degree. The charge arose after Thompson's co-conspirator,
Bradley Burns, unlawfully entered the residence of the
victim, Charles Fox, with the intent to steal $50, 000 from
Fox's residence. It was alleged that Thompson, who had
previously performed repair services at Fox's home, aided
and abetted Burns by informing Burns about the location of
Fox's money and by driving Burns to Fox's residence
for purposes of stealing the money. In exchange, Burns was to
give half of the $50, 000 to Thompson.
3} Thompson pled not guilty to the indicted charge
and subsequently filed a motion to suppress. Following a
suppression hearing, the trial court overruled Thompson's
motion. Thompson's case was then tried to a jury in April
2014. The trial court, however, declared a mistrial after the
jury reported that it was deadlocked. After the mistrial,
Thompson moved to dismiss the indictment on double-jeopardy
grounds. The trial court overruled Thompson's motion to
dismiss, and Thompson then appealed from that decision. On
appeal, this court affirmed the judgment of the trial court.
See State v. Thompson, 2d Dist. Montgomery No.
26280, 2014-Ohio-5583 ("Thompson I ").
4} Following this court's decision in
Thompson I, Thompson's case was again tried to a
jury. Unlike his first trial, the jury at his second trial
found Thompson guilty as charged. Thompson was then sentenced
by the trial court on December 16, 2015. At Thompson's
sentencing hearing, the trial court advised Thompson that it
was not going to impose the maximum possible sentence since
the court did not believe that Thompson had committed the
worst form of the offense. The trial court, however, also
advised Thompson that it was not going to impose the minimum
possible sentence due to Thompson's history of criminal
convictions between 1999 and 2001 for aggravated robbery,
robbery, and complicity to commit aggravated robbery.
After considering Thompson's criminal history and the
fact that Thompson had essentially recruited Burns for the
burglary, the trial court sentenced Thompson to serve six
years in prison. Thompson then appealed from his conviction
and sentence, which this court affirmed in State v.
Thompson, 2d Dist. Montgomery No. 26954, 2016-Ohio-7521
("Thompson II ").
First Petition for Post-Conviction Relief
5} On February 16, 2017, after our decision in
Thompson II, Thompson filed a pro se petition for
post-conviction relief. In the petition, Thompson argued that
he was innocent and that his conviction constituted a
manifest injustice. In support of this claim, Thompson
asserted that certain employment records containing
Burns's work schedule were not presented at trial.
Thompson maintained that evidence of Burns's work
schedule would have impeached the testimony of Burns's
girlfriend, Kaitlynn Kerg, who testified that she was present
when Thompson and Burns planned the burglary. According to
Thompson, Burns's work schedule would have proven that he
and Burns were not together at the time Kerg said she
overhead them planning the burglary. Thompson also argued
that there was evidence not presented at trial establishing
that Kerg could not identify him in a police line-up.
6} To further support his claim of innocence,
Thompson argued that there was additional evidence not
presented at trial establishing that Burns's boss, Jeff
Molton, was Burns's actual accomplice in the burglary.
Specifically, Thompson claimed that there was evidence that
Burns had contacted Molton immediately after the burglary and
that Molton had a previous conviction for burglary. Thompson
also claimed that, during a police interview, Molton stated
that Burns had told him about the plan to burglarize
Fox's residence the day before the offense occurred.
Thompson did not attach any evidence to his petition
supporting the claims concerning Kerg's testimony or
Molton's alleged involvement in the burglary.
7} In addition to arguing his innocence,
Thompson's petition for post-conviction relief also
asserted multiple ineffective assistance of counsel claims.
Thompson first claimed that his trial counsel was ineffective
in failing to present the evidence that would have impeached
Kerg's trial testimony and established Molton as
Burns's accomplice. Thompson further argued that his
trial counsel was ineffective in failing to advise him to
accept an alleged plea offer of three years in prison with
the possibility of judicial release after six months in
exchange for his guilty plea to the indicted charge. In
support of these claims, Thompson attached six affidavits
that generally averred his trial counsel had advised Thompson
that his case was "winnable" and encouraged him to
reject the plea offer in question. The six affidavits were
all from friends and family members of Thompson and from
8} In his own affidavit, Thompson averred that he
had relied on his counsel's advice and declined the
State's plea offer without fully appreciating the
strength of the evidence against him. Thompson supported this
claim by alleging that his trial counsel had incorrectly
advised him that certain incriminating text messages he sent
to his girlfriend would be inadmissible at trial. Thompson
also averred that his trial counsel had advised him that the
jury would not believe Kerg's testimony about him
planning the burglary with Burns due to Kerg's inability
to identify him in a line-up and Burns's work schedule,
but then failed to present any of that evidence at trial.
Thompson claimed that had he known the text messages to his
girlfriend would be admissible at trial and that his counsel
was not going to present the evidence impeaching Kerg's
testimony, he would have accepted the State's plea offer.
9} On August 15, 2017, the State filed a memorandum
opposing Thompson's petition for post-conviction relief.
In its memorandum, the State represented that it had never
made Thompson a plea offer of three years in prison with the
possibility for judicial release after six months. Although
Thompson had attached affidavits to his petition ostensibly
confirming that the aforementioned plea offer had been
proposed to him, the trial court found that Thompson's
argument on that issue was moot because the State had
represented in its opposing memorandum that no such plea
offer was ever made. The trial court also found that Thompson
had failed to provide documentary evidence supporting the
other claims in his petition and relied only on broad,
conclusory statements that did not warrant post-conviction
relief. Therefore, on January 31, 2018, the trial court
issued a decision granting summary judgment in favor of the
State, which effectively denied Thompson's petition for
post-conviction relief without a hearing. Thompson then
appealed from the trial court's judgment.
Second Petition for Post-Conviction Relief and Motion for New
10} On June 5, 2018, while the appeal from the trial
court's denial of Thompson's first petition for
post-conviction relief was still pending, Thompson filed a
second pro se petition for post-conviction relief. In his
second petition, Thompson once again alleged that his trial
counsel had provided ineffective assistance by failing to
advise him to accept the alleged plea offer. In support of
this petition, Thompson attached nine supporting affidavits,
six of which were the same affidavits attached to his
original petition. The three new affidavits were additional
affidavits from Thompson's mother and father, and an
affidavit from Thompson's trial counsel, John Staton.
11} The additional affidavits from Thompson's
mother and father alleged that they had certain
communications with Thompson's trial counsel in 2017 and
2018 regarding the alleged plea offer. However, both
affidavits reference a different plea offer than the one
referenced in Thompson's original petition and
affidavits. Specifically, the affidavit from Thompson's
father averred that during a conversation with Thompson's
trial counsel in February 2018, counsel advised him that the
trial court judge had indicated that if Thompson would plead
guilty, the judge would only sentence Thompson to five years
in prison and would not schedule his sentencing until after
Christmas. The affidavit of Thompson's mother averred
that during a conversation with Thompson's counsel in
2017, counsel advised her that he recalled Thompson being
offered three years in prison with sentencing to occur after
Christmas, but that counsel had no recollection of any
agreement concerning judicial release. Thompson's mother
also averred that counsel had advised her that this offer was
made by the trial court judge.
12} The affidavit from Thompson's trial counsel,
Staton, averred that the trial court judge had advised him
off the record that if Thompson wished to enter a guilty
plea, she would be willing to delay his sentencing until
after Christmas. Staton also averred that the trial court
judge referenced imposing either a three- or five-year prison
sentence for Thompson's offense, noting that she was
going to sentence Thompson to a period of incarceration that
was more than the two-year sentence that was given to Burns.
Staton further averred that he informed Thompson of the trial
court's offer, which Thompson decided to decline in favor
of a jury trial.
13} On June 12, 2018, a few days after filing his
second petition for postconviction relief, Thompson also
filed a pro se Crim.R. 33 motion for leave to file a motion
for new trial and a corresponding motion for new trial. In
those motions, Thompson argued that a new trial was warranted
because the trial court judge allegedly participated in the
plea bargaining process during its off-record conversation
with his trial counsel, which Thompson claimed violated his
constitutional rights to a fair trial and due process.
Thompson argued that, although the motion for new trial was
filed beyond the time limitation provided in Crim.R. 33(B),
the motion should nevertheless be accepted because he was
unavoidably prevented from learning of the off-record
conversation and from obtaining an affidavit from his
attorney averring to the off-record conversation.
of Trial Court's Decision Denying Thompson's First
Petition for Post-Conviction Relief
14} On November 21, 2018, five months after Thompson
filed his second petition for post-conviction relief and
motion for new trial, this court reversed the trial
court's decision overruling Thompson's first
post-conviction relief petition and remanded the matter to
the trial court for further proceedings. See State v.
Thompson, 2d Dist. Montgomery No. 27924, 2018-Ohio-4689
("Thompson III"). That decision was based
on the trial court's failure to provide findings of fact
and conclusions of law that explained why it discounted the
supporting affidavits attached to Thompson's first
petition. Id. at ¶ 17. This court found that,
in the absence of any such analysis, the trial court had
abused its discretion by entering summary judgment in favor
of the State without holding an evidentiary hearing on the
petition. Id. Therefore, we remanded the matter back
to the trial court for purposes of allowing the parties to
renew their arguments and, if warranted by their submissions,
to hold an evidentiary hearing on Thompson's petition for
post-conviction relief. Id. at ¶ 27.
"Renewed" and "Amended" Petitions for
15} On November 29, 2018, in response to our
decision in Thompson III, the trial court issued an
order permitting the parties to renew their arguments
relating to Thompson's original petition for
post-conviction relief. Five days later, on December 4, 2018,
Thompson filed a pro se "renewed" petition for
post-conviction relief that asserted the same arguments
raised in his original petition as well as three additional
arguments. The following week, on December 11, 2018, Thompson
also filed a pro se "amended" petition for
post-conviction relief, in which Thompson further elaborated
on the three additional arguments raised in the
"renewed" petition. The three additional arguments
raised in Thompson's "renewed" and
"amended" petitions were as follows:
(1) The six-year prison sentence imposed by the trial court
is "voidable" because in issuing that sentence the
trial court improperly considered Thompson's prior
convictions from 1999-2000, which are void due to
post-release control not being properly imposed in those
(2) Thompson was unconstitutionally prevented from testifying
on his own behalf at trial because the trial court permitted
a stipulation, without his permission, that his prior
convictions from 1999-2000 would be admissible at trial if he
(3) Trial counsel provided ineffective assistance by failing
to present certain police reports as evidence in support of
his motion to suppress.
16} To his "renewed" petition, Thompson
attached yet another affidavit from his mother. Thompson also
attached the original sentencing memorandum prepared by his
trial counsel. To his "amended" petition, Thompson
attached another affidavit from himself ...