[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
