2017 Ohio 7713
Ohio Ct. App.2017Background
- Timothy Davis pled guilty in two Cuyahoga County cases: five counts of burglary (second-degree felonies) and one count of theft (fourth-degree felony); other counts were nolled/dismissed.
- Trial court initially imposed an aggregate 15-year burglary term plus 1 year for theft; this court reversed for failure to make and journalize R.C. 2929.14(C)(4) findings and remanded (Davis I).
- On first resentencing the court changed individual burglary terms (some 3 years, some 1 year), then announced a 12-year aggregate burglary term consecutive to the 1-year theft term; this court again reversed for lack of statutorily required findings and unclear sentencing (Davis II) and remanded.
- On April 6, 2016, the trial court imposed 3 years on each burglary count, ordered four to run consecutively and one concurrently (12 years total for burglary), and ordered those burglary sentences consecutive to the 1-year theft term, producing a 13-year total.
- Appellate counsel filed an Anders brief and sought to withdraw. Davis filed a pro se brief raising journal-entry defects, claimed failure to follow the mandate, and alleged improper consecutive-sentence findings. The court conducted an independent Anders review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consecutive sentences satisfied R.C. 2929.14(C)(4) | State: trial court made required findings on the record and incorporated them into journal entries; consecutive sentences supported by record. | Davis: trial court used fictitious/factious findings and frivolous accusations; statutory findings improper. | Held: Trial court satisfied Bonnell/Edmonson requirements; findings are supported by the record and incorporated in the journal entry; consecutive sentences affirmed. |
| Whether appeal may raise issues predating April 6, 2016 resentencing | State: scope limited to issues arising from the new sentencing hearing. | Davis: challenges to earlier journal entries and mandate compliance. | Held: Challenges to pre-April 6 matters are outside scope of this appeal and are frivolous. |
| Whether journal entries properly incorporated R.C. findings | State: journal entry explicitly recited necessary consecutive-sentence findings and supporting facts. | Davis: alleged journal defects violate due process. | Held: Journal entries properly incorporated the findings as required by Bonnell; no reversible error. |
| Whether any nonfrivolous appellate issue exists warranting counsel | State: after independent review, no arguable issue for reversal. | Davis: raised multiple claims in pro se brief but none arising from the April 6 resentencing produced reversible error. | Held: No nonfrivolous issues; Anders withdrawal granted and sentence affirmed. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedural requirements for counsel seeking to withdraw on grounds appeal is frivolous)
- Bonnell v. Ohio, 140 Ohio St.3d 209 (Ohio 2014) (trial court must make and incorporate consecutive-sentence findings; reasons need not be exhaustive if findings appear in record and entry)
- Edmonson v. Leesville Concrete Co., 86 Ohio St.3d 324 (Ohio 1999) (discussion of requirement that courts note they engaged in statutory sentencing analysis)
- Marcum v. Ohio, 146 Ohio St.3d 516 (Ohio 2016) (standard of review under R.C. 2953.08(G)(2) for felony sentences)
- Fischer v. Ohio, 128 Ohio St.3d 92 (Ohio 2010) (scope of appeals after new sentencing hearings limited to issues arising at new sentencing)
- Wilson v. State, 129 Ohio St.3d 214 (Ohio 2011) (reaffirming that appeals from new sentencing hearings are limited in scope)