Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Thompson

Court of Appeals of Ohio, Second District, Montgomery

December 13, 2019

STATE OF OHIO Plaintiff-Appellee
v.
CRAIG THOMPSON Defendant-Appellant

          Trial Court Case No. 2013-CR-377/2 (Criminal Appeal from Common Pleas Court).

          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.

          CRAIG THOMPSON, Inmate No. 721-446, Warren Correctional Institution, Attorney for Defendant-Appellant.

          OPINION

          WELBAUM, P.J.

         {¶ 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.

         Facts 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. [1] 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 ").

         Thompson's 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 Thompson himself.

         {¶ 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.

         Thompson's Second Petition for Post-Conviction Relief and Motion for New Trial

         {¶ 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.

         Reversal 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.

         Thompson's "Renewed" and "Amended" Petitions for Post-Conviction Relief

         {¶ 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 cases.
(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 testified.
(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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.