[Cite as State v. Thompson, 2016-Ohio-8310.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 104322



                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 BURLIN THOMPSON
                                                     DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           DISMISSED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-15-596370-A

        BEFORE: Stewart, J., E.A. Gallagher, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: December 22, 2016
ATTORNEY FOR APPELLANT

John T. Castele
Rockefeller Building, Suite 1310
614 West Superior Avenue
Cleveland, OH 44113

Also Listed:

Burlin Thompson, pro se
Inmate No. R 72911
Apalachee Correctional Institution, East
35 Apalachee Drive
Sneads, FL 32460

ATTORNEY FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

      {¶1} Defendant-appellant Burlin Thompson pleaded guilty to two counts of sexual

battery committed against two victims after DNA samples from rape kits identified him as

the perpetrator of the sexual assaults committed nearly 20 years earlier.     The court

ordered Thompson to serve consecutive two-year sentences on each count.

      {¶2} Appellate counsel seeks permission to withdraw from the case pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because

appellate counsel believes that he can raise no nonfrivolous issues on appeal. Thompson

has not filed his own merit brief. Consistent with Anders and Loc.App.R. 16(C) of the

Eighth District Court of Appeals, counsel filed a no-merit brief in conjunction with his

motion to withdraw as counsel. The no-merit brief considered two possible issues that

could be raised on appeal and explained why it would be frivolous for counsel to raise

those issues. We examine those arguments in light of the record and legal precedent.

      {¶3} Appellate counsel first suggests that Thompson could argue that he was

prejudiced by the nearly 20-year delay in bringing the indictment, but believes that the

argument is wholly frivolous because Thompson did not file a motion to dismiss the

indictment and there is no basis in the record for finding that Thompson suffered actual

prejudice from the delay.
       {¶4} We agree that an ineffective assistance of counsel claim based on counsel’s

failure to seek dismissal of the indictment would be wholly frivolous. By pleading

guilty, Thompson waived all constitutional errors apart from those affecting the guilty

plea. State v. Ware, 11th Dist. Lake No. 2007-L-154, 2008-Ohio-3992, ¶ 25; Tollett v.

Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (“When a criminal

defendant has solemnly admitted in open court that he is in fact guilty of the offense with

which he is charged, he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”).

       {¶5} Thompson cannot argue plain error because that doctrine applies only to

forfeited errors — when a right is waived, it is not reviewable, even for plain error.

United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)

(“Mere forfeiture, as opposed to waiver, does not extinguish an ‘error’ under Rule

52(b)”); United States v. Boyd, 86 F.3d 719, 722 (7th Cir.1996) (“the ‘plain error’

doctrine does not ride to the rescue when the choice has been made deliberately, and the

right in question has been waived rather than forfeited.”).

       {¶6} Even if pleading guilty did not waive Thompson’s right to raise preindictment

delay on appeal, there is nothing in the record to show that he suffered actual prejudice

sufficient to prevail on a claim of preindictment delay. State v. Luck, 15 Ohio St.3d 150,

472 N.E.2d 1097 (1984), paragraph two of the syllabus.
       {¶7} Appellate counsel suggests that Thompson could raise an assignment of error

that his prison terms in this case should have been ordered to run concurrent to a prison

term that Thompson was serving in the state of Florida at the time he entered his guilty

plea. Counsel believes, however, that an assignment of error to that effect would be

wholly frivolous because the court’s sentencing entry did not order that the Ohio prison

terms be served consecutive to the Florida prison terms.

       {¶8} We agree with counsel that it would be wholly frivolous for Thompson to

argue that the court erred by ordering consecutive service of the Ohio prison terms. R.C.

2929.41(A) makes it clear that all sentences shall be served concurrently with any other

sentence unless the court makes the specific findings required by R.C. 2929.14(C)(4).1

The court’s sentencing entry does not order the Ohio prison terms to be served

consecutive to the Florida prison term.

       {¶9} We are aware that at sentencing, the court thought that it had to order the

Ohio prison terms to be served consecutive to the Florida term. The court stated:

       I don’t believe that these can be run concurrent to a Florida sentence. If it
       can, I will appoint a lawyer to represent you on appeal and make that
       argument, okay? But I don’t believe they can run concurrent to the
       sentence you’re serving in Florida.




         Thompson does not complain that the court failed to make the findings required by R.C.
       1


2929.14(C)(4) before ordering consecutive service of the sexual battery counts.
Tr. 37. Nevertheless, the court’s sentencing entry did not order consecutive service of

the Ohio prison terms to the Florida prison term. The court speaks only through its

journal “and not by oral pronouncement or mere written minute or memorandum,”

Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d 625 (1953), paragraph one of the

syllabus, so as the record stands, we are required to find that the court ordered the Ohio

sentences to be served concurrently with the Florida prison term. See R.C. 2929.41

(unless otherwise provided, “a prison term, jail term, or sentence of imprisonment shall be

served concurrently with any other prison term, jail term, or sentence of imprisonment

imposed by a court of this state, another state, or the United States.”).

       {¶10} Counsel’s request to withdraw as appellate counsel is granted.

       {¶11} Appeal dismissed.

       It is ordered that appellee recover of said appellant costs herein taxed.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR
