State v. Kimmie , 2014 Ohio 2653 ( 2014 )

[Cite as State v. Kimmie, 2014-Ohio-2653.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100750
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TYSHAWN KIMMIE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-560898-B
BEFORE: Jones, P.J., S. Gallagher, J., and Rocco, J.
RELEASED AND JOURNALIZED: June 19, 2014
ATTORNEY FOR APPELLANT
R. Brian Moriarty
1370 Ontario Street
Suite 2000
Cleveland, Ohio 44113
FOR APPELLANT
Tyshawn Kimmie, pro se
Inmate No. A632995
Mansfield Corectional Institution
1150 N. Main Street
Mansfield, Ohio 44903
ATTORNEY FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant Tyshawn Kimmie appeals from the trial court’s
November 2013 sentencing judgment entry. We affirm.
{¶2} In 2012, Kimmie was charged with several crimes stemming from his
involvement in a shoot-out with rival gang members after a back-to-school party. A
15-year-old girl died and two other youths sustained serious injuries as a result of the
shoot-out. The victims were innocent bystanders.
{¶3} The case proceeded to a jury trial; the jury found him guilty of murder,
reckless homicide, and two counts of felonious assault, along with firearm specifications.
The trial court sentenced him to 24 years to life, which included consecutive sentences.
{¶4} Kimmie appealed, and this court upheld the convictions, but reversed the
sentence for noncompliance with the statutory mandates for consecutive sentences; the
case was remanded for resentencing, limited to a review of whether the record supported
the imposition of consecutive sentences, and if so, making the required findings. State
v. Kimmie, 8th Dist. Cuyahoga No. 99236, 2013-Ohio-4034.
{¶5} In November 2013, the trial court resentenced Kimmie to 24 years to life that
again included consecutive sentences. Kimmie was appointed counsel, who filed a
notice of appeal. Appellate counsel has filed a motion to withdraw and brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), indicating
that, after a thorough review of the record, proceeding with the appeal would be frivolous.
Counsel served Kimmie with a copy of the motion to withdraw and Anders brief. This
court granted Kimmie until May 19, 2014, to file a pro se brief; he has not filed a brief.
{¶6} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that the client chooses. Id.{¶7} Once the defendant’s counsel satisfies these requirements, this court must
fully examine the proceedings below to determine if any arguably meritorious issues
exist. If we also determine that the appeal is wholly frivolous, we may grant counsel’s
request to withdraw and dismiss the appeal without violating constitutional requirements,
or may proceed to a decision on the merits if state law so requires. Id.{¶8} Appellate counsel has complied with the Anders requirements. We proceed
with an independent review of the only issue that could be presented in this appeal: the
imposition of consecutive sentences.
{¶9} In imposing consecutive sentences, R.C. 2929.14(C)(4) requires that the trial
court must find that the sentence is “necessary to protect the public from future crime or
to punish the offender,” 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 the existence of one of the three statutory factors set forth in R.C.
2929.14(C)(4)(a)-(c), which are as follows:
(a) the offender committed one or more of the multiple offenses while
awaiting trial or sentencing, while under a sanction imposed pursuant to
R.C. 2929.16, 2929.17, or 2929.18, or while under postrelease 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 offenses 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; or (c) the offender’s
history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender.
{¶10} At the resentencing hearing, the trial court stated the following in sentencing
Kimmie to consecutive terms:
[W]e have three young people either killed or severely injured and the fact
is that they were innocent bystanders in a crowd.
Certainly they had no stake in this affair. There was nothing at all that
could be pointed to them in terms of any kind of blame or anything of that
nature. In that regard, this is a particularly egregious offense, and it does
require in the Court’s view consecutive sentences in order to punish the
offender for that conduct.
The Court also finds that consecutive sentences in this case would not be
disproportionate to the seriousness of the offender’s conduct and the danger
that the offender [poses] to the public. The Court also finds that at least
two of these multiple offenses were committed as part of one or more
courses of conduct.
Obviously it was a shooting spree on a city street. The harm caused by
two or more of the multiple offenses was so great or unusual that no single
prison term for any of the courses of conduct adequately reflect the
seriousness of the offender’s conduct.
{¶11} On this record, the trial court completely complied with making the findings
under R.C. 2929.14(C) in sentencing Kimmie to consecutive terms. Because the
imposition of consecutive sentences was the only possible issue for review in this appeal,
we find the appeal to be frivolous under Anders. We therefore grant counsel’s request to
withdraw and affirm the trial court’s judgment.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR