State v. Davis

[Cite as State v. Davis, 2017-Ohio-7713.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104442

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

TIMOTHY DAVIS
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-13-580150-B and CR-14-584240-A

BEFORE: Celebrezze, J., Keough, A.J., and Blackmon, J.

RELEASED AND JOURNALIZED: September 21, 2017
ATTORNEYS FOR APPELLANT

John T. Forristal
P.O. Box 16832
Rocky River, Ohio 44116

Harvey B. Bruner
John D. Mizanin, Jr.
Harvey B. Bruner & Co.
700 W. St. Clair Avenue, Suite 110
Cleveland, Ohio 44113

Also Listed

Timothy A. Davis
Inmate No. 654-379
Trumbull Correctional Institution
P.O. Box 901
5701 Burnett Road
Leavittsburg, Ohio 44030

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant Timothy Davis appeals from his sentence following

guilty pleas. Appellate counsel has filed a motion to withdraw and a brief pursuant to

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

conducting an independent review of Davis’s case, we affirm the trial court’s judgment

and grant appointed counsel’s motion to withdraw.

I. Procedural History

{¶2} Davis was charged in two separate cases. In Cuyahoga C.P. No.

CR-13-580150-B, Davis pled guilty to five counts of burglary, second-degree felonies in

violation of R.C. 2911.12(A)(2). In Cuyahoga C.P. No. CR-14-584240-A, Davis pled

guilty to one count of theft, a fourth-degree felony in violation of R.C. 2913.02(A)(1).

The remaining counts in the two cases were nolled.

{¶3} At the June 2014 sentencing hearing, the trial court imposed an aggregate

15-year prison sentence on the five counts of burglary and a one-year prison sentence on

the theft count. The trial court ordered the 15-year sentence and the one-year sentence

to run consecutively.

{¶4} On direct appeal, this court reversed Davis’s sentence, concluding that the

trial court failed to make the statutory findings required by R.C. 2929.14(C)(4) during the

sentencing hearing and failed to incorporate those findings into its sentencing journal

entry. State v. Davis, 8th Dist. Cuyahoga Nos. 102130 and 102132, 2015-Ohio-1037, ¶

7 (“Davis I”). This court remanded the matter for resentencing.
 {¶5} The trial court held a resentencing hearing on July 9, 2015. The trial court

imposed a one-year prison term on the theft count. Furthermore, the trial court decided

to modify Davis’s sentence on the burglary counts based on his cooperation with law

enforcement. The trial court imposed three-year prison sentences on three of the

burglary counts and one-year prison sentences on the remaining two burglary counts.

The trial court then advised Davis that his sentence on the burglary counts was 12 years.

The trial court ordered Davis to serve the burglary counts consecutively to one another

and consecutively to the one-year sentence on the theft count. The trial court stated that

Davis’s total sentence in both cases was 12 years.

{¶6} On appeal from resentencing, this court concluded that Davis’s sentence was

contrary to law because the trial court failed to make the statutory findings under R.C.

2929.14(C)(4) and incorporate those findings into its sentencing journal entry. State v.

Davis, 8th Dist. Cuyahoga No. 103348, 2016-Ohio-1127, ¶ 13 (“Davis II”).

Furthermore, this court determined that it was not clear what sentence the trial court

actually imposed on the burglary counts. Id. at ¶ 16. As a result, this court remanded

the matter to the trial court for resentencing to (1) specify the sentence on each of the

burglary counts and (2) make the requisite R.C. 2929.14(C)(4) findings. Id. Finally,

this court instructed the trial court on remand to correct the errors in its journal entries

regarding the counts to which Davis pled guilty and the counts that were dismissed. Id.

at ¶ 11.

{¶7} The trial court held a resentencing hearing on April 6, 2016. The trial court
imposed a three-year prison sentence on each of the five burglary counts. The trial court

ordered the three-year sentences on four of the five burglary counts to run consecutively

to one another; the court ordered the thee-year sentence on the fifth burglary count to run

concurrently, for a total prison term of 12 years. Regarding the theft count, the trial

court stated, “[y]ou pled guilty to grand theft, motor vehicle, Count 1, that’s a felony of

the fourth degree. On that case I gave you one year. Counts 2 and 3 shall be dismissed

and the Journal Entry shall so reflect it. So [Davis is] only being sentenced on Count 1

in that case.” (Tr. 8.) The trial court ordered Davis to serve the sentence on the

burglary counts consecutively to the sentence on the theft count, making the total prison

term for both cases 13 years.

{¶8} On May 5, 2016, Davis, pro se, filed a notice of appeal and motions for

appointment of counsel and transcripts at the state’s expense. Davis retained counsel,

and counsel filed a notice of appearance on June 20, 2016. Davis’s retained counsel

filed an Anders brief and motions to withdraw on July 15, 2016 and September 13, 2016.

Appointed counsel also filed a motion to withdraw as Davis’s attorney of record on

August 24, 2016.

{¶9} On November 15, 2016, this court granted retained counsel’s motion to

withdraw but denied counsel’s request to dismiss the appeal because the transcript of the

April 6, 2016 resentencing hearing was not made part of our record. This court

appointed counsel to represent Davis and ordered a transcript of the resentencing hearing

at the state’s expense.
 {¶10} Appointed counsel filed a motion to withdraw and an Anders brief on

January 31, 2017. Therein, counsel indicated that he had thoroughly reviewed the record

and determined that proceeding with the appeal would be frivolous. Counsel served

Davis with a copy of the motion to withdraw and the Anders brief.

II. Law and Analysis

{¶11} In Anders cases, we are charged with conducting an independent review of

the record to determine

whether any issues involving potentially reversible error that are raised by
appellate counsel or by a defendant in his pro se brief are “wholly
frivolous.” * * * If we find that any issue presented or which an
independent analysis reveals is not wholly frivolous, we must appoint
different appellate counsel to represent the defendant.

(Citation omitted.) State v. Marbury, 2d Dist. Montgomery No. 19226,

2003-Ohio-3242, ¶ 7. An appeal is frivolous if it “presents issues lacking in arguable

merit. * * * An issue lacks arguable merit if, on the facts and law involved, no responsible

contention can be made that it offers a basis for reversal.” (Citation omitted.) Id. at ¶

8.

{¶12} In his Anders brief, appellate counsel identified one potential assignment of

error regarding whether the trial court erred in imposing consecutive sentences and made

the necessary findings required under R.C. 2929.14(C)(4).

{¶13} On August 8, 2017, Davis filed a pro se brief in which he raised the

following three assignments of error:

I. The journal entries in CR-14-584240-A are flawed in violation of
appellant’s right to due process of law.
 II. The trial court erred in imposing consecutive sentences in
CR-13-[580150-B] and CR-14-584240-A without making the necessary
statutory findings on the record and in the journal entries, and without orally
informing the appellant of the court’s calculations of sentence on each
count.

III. The trial court erred in failing to obey the court of appeals’s mandate
upon remand.

{¶14} We have examined and considered the potential argument identified by

appointed counsel and the arguments raised in Davis’s pro se brief. Furthermore, we

have conducted an independent review of the record from the resentencing, including the

transcript from the April 6, 2016 resentencing hearing, to determine if any arguably

meritorious issues exist. Anders, 386 U.S. at 744, 87 S.Ct.1396, 18 L.Ed.2d 493. We

find no error nor any arguably meritorious issues regarding the sentence imposed by the

trial court.
 A. Scope of Appeal

{¶15} As an initial matter, we must note that the pro se brief that Davis filed on

August 8, 2017, is nearly identical to the appellate brief that counsel filed on Davis’s

behalf in Davis II. However, “an appeal from a resentencing following a remand from a

successful appeal is limited to those issues that arise from the resentencing.” State v.

Romanko, 8th Dist. Cuyahoga No. 104158, 2017-Ohio-739, ¶ 14. The Ohio Supreme

Court has made clear that “[t]he scope of an appeal from a new sentencing hearing is

limited to issues that arise at the new sentencing hearing.” State v. Wilson, 129 Ohio

St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 30, citing State v. Fischer, 128 Ohio St.3d

92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 40. Accord State v. Hicks, 8th Dist. Cuyahoga

No. 104676, 2016-Ohio-8062, ¶ 8.

{¶16} The scope of this appeal is limited to issues that arise from the April 6,

2016 resentencing hearing. The three assignments of error that Davis raises in his pro se

appellate brief, however, pertain to either the July 9, 2015 resentencing hearing or journal

entries that predate the April 6, 2016 resentencing hearing. Accordingly, we summarily

overrule Davis’s three assignments of error because they are outside the scope of the

present appeal, and therefore frivolous.
 B. Consecutive Sentences

{¶17} The only new argument that Davis appears to raise is that the trial court

made a “factious” or “ficticous [sic]” finding and considered “friviously [sic] made

accusations” during its consecutive sentencing analysis under R.C. 2929.14(C)(4).

Davis does not, however, identify the specific finding or accusations to which he is

referring.

{¶18} This court reviews felony sentences under the standard set forth in

R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a

reviewing court may overturn the imposition of consecutive sentences where the court

“clearly and convincingly” finds that (1) “the record does not support the sentencing

court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to

law.”

{¶19} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences,

the trial court must find that consecutive sentences are (1) necessary to protect the public

from future crime or to punish the offender, (2) that such sentences would not be

disproportionate to the seriousness of the conduct and to the danger the offender poses to

the public, and (3) that one of the following applies:

(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 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
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
by the offender.

{¶20} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the

statutory findings at the sentencing hearing, which means that “‘the [trial] court must note

that it engaged in the analysis’ and that it ‘has considered the statutory criteria and

specifie[d] which of the given bases warrants its decision.’” State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio

St.3d 324, 326, 715 N.E.2d 131 (1999). Further, the reviewing court must be able to

discern that the record contains evidence to support the findings. State v. Davis, 8th

Dist. Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial court

is not, however, required to state its reasons to support its findings, nor is it required to

give a rote recitation of the statutory language, “provided that the necessary findings can

be found in the record and are incorporated in the sentencing entry.” Bonnell at ¶ 37.

{¶21} In the instant matter, the record reflects that the trial court made the requisite

R.C. 2929.14(C)(4) findings in support of its imposition of consecutive sentences. In

making the first finding, the trial court stated, “[s]o there’s 12 years on Count — in Case

No. 580150 which will run consecutive to the sentence in 584240. The reason why I’m

running these sentences consecutive is that it’s necessary to protect the public from future

crime and to punish the offender.” (Tr. 8-9.) In making the second finding, the trial
court stated, “[a]nd consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public.” (Tr. 9.)

{¶22} Regarding the third finding, the trial court found that R.C. 2929.14(C)(4)(a),

(b), and (c) applied:

[Davis] committed these multiple offenses while he was on Community
Control Sanctions to the Cleveland Municipal Court.

***

Case No. 2013-CRB-032625, he was placed on Community Control
Sanctions on — that was November 13th, 2013, he was placed on
Community Control Sanctions. * * *

These offenses in Case No. 580150, you have five separate victims. Many
items of personal heirlooms were stolen and pawned and never returned to
their owners. It was a pattern of behavior or conduct on your part that any
single prison term would not adequately reflect the seriousness of your
conduct.

Additionally, your history of criminal conduct demonstrates that
consecutive sentences are necessary. You have, from your presentence
investigative report, a record dating back to — you have a juvenile record
starting in 2001 dealing with thefts and breaking and enterings. You then
graduated to adult court in 2003, picking up burglaries and — drug cases
and burglaries starting in 2004. You’ve got one, two, three, four, five, six
— six prior theft related cases, forgetting about the drugs and driving under
suspension, obstruction of official business, falsification. So you’ve got a
long history of criminal behavior.

And I don’t believe that the length of the sentence is disproportionate to the
serious nature of the crime. At the time of your original sentencing
Detective Lentz came into court and described for the Court, and you were
present, the harm that you caused to the various victims. There was war
medals of [one victim] that were never recovered, there was jewelry from
maternal grandmothers that was never recovered. These are things that are
not replaceable. So you took their — and you invaded their home, the
sanctity of their home. They don’t feel safe there anymore. And that was
because of your behavior. So that is the reason why I’m imposing
 consecutive sentences.

(Tr. 9-11.)

{¶23} The trial court properly incorporated its findings into the sentencing journal

entries as required. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at

syllabus. The trial court’s sentencing journal entries provide, in relevant part,

The court imposes prison terms consecutively finding that consecutive
sentences are necessary to protect the public from future crime or to punish
defendant; that the consecutive sentences are not disproportionate to the
seriousness of defendant’s conduct and to the danger defendant poses to the
public; and that, the defendant committed one or more of the multiple
offenses while the defendant was awaiting trial or sentencing or was under
a community control or was under post-release control for a prior offense
and at least two of the multiple offenses were committed in this case as part
of one or more courses of conduct, and the harm caused by said multiple
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 defendant’s conduct and defendant’s history of
criminal conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by defendant. In case number 580150
there were 5 separate victims and many items were taken along with war
medals and personal heirloom jewelry. Defendant has a long history of
criminal behavior. Defendant has a juvenile record for theft and breaking
and entering and has an extensive adult criminal record dating back to 2003
that includes 6 prior theft related offenses. Detective Lentz came into
court and spoke on the record regarding the harm caused to the various
victims and how the victims do not feel safe.

{¶24} Based on the foregoing analysis, we conclude that the trial court made the

appropriate consecutive sentence findings and engaged in the analysis required under

R.C. 2929.14(C)(4). We cannot “clearly and convincingly” find that the record does not

support the trial court’s findings. Furthermore, the trial court properly incorporated its

findings into the sentencing journal entry as required. Bonnell at syllabus.
Accordingly, the trial court did not err in imposing consecutive sentences.

{¶25} For all of these reasons, we find that there are no arguable legal issues

regarding Davis’s consecutive sentences, and a direct appeal on this matter would be

wholly frivolous.

III. Conclusion

{¶26} We have performed our duty under Anders to conduct an independent

review of the record. We have thoroughly reviewed the record and have found no

nonfrivolous issues for review. Accordingly, appellate counsel’s request to withdraw is

granted. Davis’s sentence is affirmed.

{¶27} Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

KATHLEEN ANN KEOUGH, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR