State v. Thomas , 2015 Ohio 3797 ( 2015 )

[Cite as State v. Thomas, 2015-Ohio-3797.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2014-CA-142
Plaintiff-Appellee :
: Trial Court Case No. 14-CR-473
v. :
: (Criminal Appeal from
MICHAEL THOMAS : Common Pleas Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 18th day of September, 2015.
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RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 40
East Columbia Street, 4th Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JOSHUA M. KIN, Atty. Reg. No. 0086965, 2700 Kettering Tower, Dayton, Ohio 45423
Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant Michael Thomas appeals from his convictions and
sentences, following guilty pleas, for Having a Weapon While Under a Disability, in
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violation of R.C. 2923.13(A)(1), and Failure to Comply, in violation of R.C.
2921.331(C)(5). His appellate counsel has filed a brief under the authority of Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), indicating that he could
not find any potential assignments of error having arguable merit. Neither can we.
Accordingly, the judgment of the trial court is Affirmed.
I. The Course of Proceedings
{¶ 2} Thomas was charged by indictment with two counts of Failure to Comply, on
separate dates, in violation of R.C. 2921.331(B) and 2921.331(C)(5), felonies of the third
degree, one count of Having a Weapon While Under a Disability, in violation of R.C.
2923.13(A)(1), a felony of the third degree, one count of Carrying a Concealed Weapon,
in violation of R.C. 2923.12(A)(2), a misdemeanor of the first degree, and one count of
Tampering with Evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree.
{¶ 3} Thomas pled guilty to one count of Failure to Comply, and to the count of
Having a Weapon While Under a Disability; the other charges were dismissed. In a
separate case, 14-CR-0400, which is not the subject of this appeal, but which is the
subject of another appeal, Thomas pled guilty to one count of Possession of Heroin.
{¶ 4} The trial court ordered a pre-sentence investigation. In a single sentencing
hearing, Thomas was sentenced both in this case, 14-CR-0473, and in the other case,
14-CR-0400. In this case, Thomas was sentenced to imprisonment for three years for
the weapons offense, and to two years for the Failure to Comply offense. In the other
case, Thomas was sentenced to six years for Possession of Heroin. The trial court
made the findings required by statute for consecutive sentences, and ordered all three
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1
sentences to be served consecutively, for a total of eleven years in prison.
{¶ 5} In this appeal, Thomas appeals from his conviction and sentence in trial court
case no. 14-CR-0473. Thomas’s appellate counsel has filed an Anders brief, reflecting
counsel’s inability to find any potential assignments of error having arguable merit. By
entry dated June 5, 2015, we afforded Thomas the ability to file his own, pro se brief. He
has not done so.
II. We Find No Potential Assignments of Error Having Arguable Merit
{¶ 6} Appellate counsel has identified two potential assignments of error that he
considered, before concluding that they had no arguable merit. The first of these was
that the trial court failed to comply with Crim.R. 11 in taking Thomas’s plea. Upon review
of the plea transcript, we agree that this potential assignment of error has no arguable
merit. Although the trial court took the pleas of four defendants, including Thomas, in
what appear to have been unelated cases, in one proceeding, the trial court gave
individual attention to each defendant, making sure that each defendant understood the
nature of the charges against him or her, the possible penalties, and the effects of the
plea, including the rights that would thereby be waived. We conclude that no reasonable
argument can be made that the plea colloquy was defective.
{¶ 7} The second issue that appellate counsel considered was “[w]hether the trial
court’s felony sentence was clearly and convincingly contrary to law.” The trial court
made the findings required by statute for consecutive sentences. In reviewing
consecutive-sentence findings, under R.C. 2953.08(G)(2), we must find that those
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The trial court was required to impose the Failure to Comply sentence consecutively to
the weapons sentence, by virtue of R.C. 2921.331(D).
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findings are clearly and convincingly not supported by the record before we may reverse.
State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 30-31 (2d Dist.).
2
{¶ 8} R.C. 2929.14(C)(4) prescribes the findings generally required for
consecutive sentences:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a)The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b)At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c)The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
2
Again, R.C. 2921.331(D) specifically required that the Failure to Comply sentence be
imposed consecutively to the sentence for Having a Weapon While Under a Disability.
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by the offender.
{¶ 9} The trial court made the necessary findings:
The Court finds prison terms require consecutive sentence because
it is necessary to protect the public from future crime and to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and the danger that he poses to the
public.
The Court also finds the Defendant committed one or more multiple
offenses while awaiting trial and was under post-release control for a prior
offense. Further, the Defendant’s history of criminal conduct demonstrates
consecutive sentences are necessary to protect the public from future crime
by the Defendant.
{¶ 10} In its analysis, the trial court made the following specific findings and
observations:
In reviewing the facts of this case and applying the factors under
2929.12, in order to meet the sentencing guidelines of the Revised Code,
which is to punish the offender and protect the community, the Court has
found under 2929.12(B), which was the possession of heroin, significant
amount to amount to a felony of the second degree by the very nature of the
offense, I find that it was an offense for hire or part of an organized criminal
activity. I find no factors that would make the offense set forth in either
case less serious.
Under 2929.12(D), the Court finds the Defendant committed the
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offenses under Case 14-CR-0473, there was a bond while awaiting trial for
the 14-CR-0400 case.
As to both of these cases, the Court finds the Defendant was under
post-release control when he committed the offenses. I don’t know if there
was official termination, a favorable termination of his post-release control
when he went back to prison the second time; but he was on post-release
control when that offense occurred. He has been previously adjudicated
delinquent. He was not rehabilitated to a satisfactory degree after being
previously adjudicated delinquent. He has a history of criminal convictions
and has not responded favorably to sanctions previously imposed for those
convictions.
As far as substance abuse problems, as indicated, the Parole
Authority tried to get him into McKinley Hall; but he committed another
criminal offense before he could take advantage of that program.
He does self report that he took some substance abuse and anger
management programs while incarcerated in the state penitentiary.
As indicated, he has not responded favorably to sanctions previously
imposed with the criminal convictions; and having read the Defendant’s
version of the facts in these cases, I find no genuine remorse for either
case. There’s no military record to consider. The Defendant did score
high on the Ohio Risk Assessment Survey.
The Court makes a note of the very nature of the offense of having a
weapon while under a disability would require the Defendant to have a
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firearm on or about his person or under his control when committing the
offense and, in fact, he had that weapon on or about his person or under his
control while committing the offense in 14-CR-0473, which was the failure to
comply as well. As indicated, he has served a prior prison term. He’s
been to prison twice before.
As to Case 14-CR-0400, the term of incarceration in the State
penitentiary is mandatory. As to all of these cases, the Court finds that a
prison term is necessary in order to comply with the purposes and principles
of the sentencing statute under 2929.11.
{¶ 11} We have reviewed the record, including the pre-sentence investigation
report, and there is evidence in the record to support the trial court’s findings. We agree
with Thomas’s appellate counsel that no reasonable argument can be made that the trial
court erred in imposing sentence in this case. Given the “extremely deferential” standard
of review described in Rodeffer, no reasonable argument can be made that the record
clearly and convincingly does not support the trial court’s consecutive-sentence findings
{¶ 12} After independently reviewing the record, as required by Anders, we find no
potential assignments of error having arguable merit.
III. Conclusion
{¶ 13} No potential assignments of error with arguable merit having been found,
the judgment of the trial court is Affirmed.
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HALL and WELBAUM, JJ., concur.
Copies mailed to:
Ryan A. Saunders
Joshua M. Kin
Michael Thomas
Hon. Richard J. O’Neill