[Cite as State v. Fitzgerald, 2020-Ohio-1525.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                      CHAMPAIGN COUNTY

 STATE OF OHIO                                        :
                                                      :
          Plaintiff-Appellee                          :   Appellate Case No. 2018-CA-45
                                                      :
 v.                                                   :   Trial Court Case No. 2018-CR-87
                                                      :
 TAHLEEF YASMEEN FITZGERALD                           :   (Criminal Appeal from
                                                      :   Common Pleas Court)
          Defendant-Appellant                         :
                                                      :

                                                 ...........

                                                 OPINION

                              Rendered on the 17th day of April, 2020.

                                                 ...........

KEVIN TALEBI, Atty. Reg. No. 0069198, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

ANDREW C. SCHLUETER, Atty. Reg. No. 0086701, P.O. Box 96, Xenia, Ohio 45385
    Attorney for Defendant-Appellant

                                                 .............




TUCKER, P.J.
                                                                                           -2-


       {¶ 1} On May 7, 2018, defendant-appellant Tahleef Yasmeen Fitzgerald was

indicted for the following offenses: Count I, grand theft of a motor vehicle, a felony of the

fourth degree; Count II, failure to comply with the order or signal of a police officer, a

felony of the third degree; Count III, receiving stolen property (RSP), a felony of the fourth

degree; Count IV, obstructing official business, a felony of the fifth degree; Count V,

tampering with evidence, a felony of the third degree; Count VI, possession of criminal

tools, a felony of the fifth degree; Count VII, RSP, a felony of the fourth degree; and Count

VIII, RSP, a felony of the fifth degree. At his arraignment on May 9, 2018, Fitzgerald

pled not guilty to the charged offenses.

       {¶ 2} On June 14, 2018, Fitzgerald, through counsel, requested a competency

evaluation. The evaluation was completed and, on August 8, 2018, the trial conducted

a competency hearing. The trial court’s entry filed following the hearing indicates the

trial court was in receipt of the evaluation, the parties accepted the evaluator’s findings,

and Fitzgerald was found competent to stand trial.

       {¶ 3} On August 27, 2018, Fitzgerald, again through counsel, filed a plea of not

guilty by reason of insanity (NGRI) and requested the completion of a NGRI evaluation.

The trial court ordered an examination “to determine [Fitzgerald’s] mental condition at the

time of the offenses charged.” On September 27, 2018, the trial court conducted a

hearing regarding the NGRI examination. The court’s post-hearing entry indicates that

the evaluator concluded that Fitzgerald “knew the wrongfulness of the acts charged.”

The entry also states that Fitzgerald “challenged” the examiner’s conclusions and

requested a second evaluation.        The trial court declined to order a second NGRI

evaluation.
                                                                                             -3-


       {¶ 4} On October 26, 2018, Fitzgerald pled guilty to Count II (failure to comply),

Count III (receiving stolen property), Count IV (obstructing official business), Count V

(tampering with evidence), and Count VII (receiving stolen property). As part of the plea

agreement, the State dismissed the remaining counts.               The trial court accepted

Fitzgerald’s guilty pleas and ordered the probation department to prepare a presentence

investigation report (PSI).     At disposition on November 21, 2018, the trial court

sentenced Fitzgerald as follows: Count II, 36 months in prison; Count III, 18 months;

Count IV, six months; Count V, nine months; and Count VII, 11 months. The trial court

ordered that the sentences imposed for Counts III and V to be served consecutively to

one another but concurrently to the sentences imposed for Counts IV and VII. The trial

court ordered that the sentence imposed for Count II be served consecutively to all of the

other sentences pursuant to R.C. 2921.331(D).           The aggregate prison term was 63

months.1 Fitzgerald was also ordered to pay restitution in the amount of $3,652.77.

       {¶ 5} Fitzgerald filed a timely notice of appeal on December 21, 2018. On May

15, 2019, Fitzgerald’s former appellate counsel filed a brief pursuant Anders v. California,

386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that she could not find

any arguably meritorious appellate issues. Upon review, we concluded that a complete



1 In relevant part, R.C. 2929.14(C)(3) provides that, “[i]f a prison term is imposed for * * *
a felony violation of division (B) of section 2921.331 of the Revised Code, the offender
shall serve that prison term consecutively to any other prison term or mandatory prison
term previously or subsequently imposed on the offender.” Similarly, R.C. 2921.331(D)
provides that, “[i]f an offender is sentenced pursuant to division (C)(4) or (5) of this section
for a violation of division (B) of this section, and the offender is sentenced to a prison term
for that violation, the offender shall serve the prison term consecutively to any other prison
term or mandatory prison term imposed upon the offender.” Therefore, the trial court
was required to order that the sentence for Count II be served consecutively to all of the
other sentences imposed.
                                                                                          -4-


record of the proceedings before the trial court had not been filed.         Therefore, we

rejected the Anders brief and appointed new counsel, with instructions to supplement the

record and then to file, as appropriate, a merit brief or an Anders brief. Specifically, we

ordered newly-appointed appellate counsel to supplement the record with the August 8,

2018, and September 26, 2018, competency hearing transcripts, as well as the

competency and NGRI evaluations. The competency and NGRI evaluations were filed

on November 18, 2019, and the competency hearing transcripts were filed on November

22, 2019.

       {¶ 6} On December 10, 2019, new-appointed counsel for Fitzgerald filed a second

Anders brief, stating that he could not find any arguably meritorious appellate issues.

However, counsel asserted the following potentially meritorious issues for our review: 1)

whether the trial court erred by accepting Fitzgerald’s guilty pleas because they were not

knowingly, intelligently, and voluntarily made; 2) whether the trial court erred by imposing

the maximum sentence for Count II (failure to comply); and 3) whether the trial court erred

by imposing consecutive sentences in regard to Counts III (receiving stolen property) and

V (tampering with evidence). Though informed of his right to file a pro se brief, Fitzgerald

has not done so.

                                        Anders Standard

       {¶ 7} An appellate court, upon the filing of an Anders brief, has a duty to determine,

“after a full examination of the proceedings,” whether the appeal is, in fact, “wholly

frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488

U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous based

upon a conclusion that the State has a strong responsive argument. State v. Pullen, 2d
                                                                                             -5-


Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one

about which, “on the facts and law involved, no responsible contention can be made that

offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-

3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders

brief and appoint new counsel. Id. at ¶ 7, citing Pullen. In order to perform the required

complete examination, we must, of course, have a full record of the proceedings before

the trial court.

       {¶ 8} Fitzgerald’s first potentially meritorious assignment of error is as follows:

       THE TRIAL COURT ERRED IN ACCEPTING MR. FITZGERALD’S PLEA

       OF     GUILTY     BECAUSE       IT   WAS      NOT     MADE      KNOWINGLY,

       INTELLIGENTLY, AND VOLUNTARILY.

       {¶ 9} “Crim.R. 11(C)(2)(a) provides that, before accepting a guilty plea, a court

must ‘[d]etermin[e] that the defendant is making the plea voluntarily, with understanding

of the nature of the charges and of the maximum penalty involved * * *.’ ” State v. Jones,

2d Dist. Montgomery No. 24772, 2013-Ohio-119, ¶ 6.

       {¶ 10} “The Supreme Court of Ohio has urged trial courts to literally comply with

Crim.R. 11.” State v. Jennings, 2d Dist. Clark No. 2013 CA 60, 2014-Ohio-2307, ¶ 6, citing

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. “However,

because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial court need

only substantially comply with those requirements.” Id., citing State v. Nero, 56 Ohio St.3d

106, 108, 564 N.E.2d 474 (1990). “Substantial compliance means that under the totality

of the circumstances the defendant subjectively understands the implications of his plea

and the rights he is waiving.” (Citations omitted.) Nero at 108.
                                                                                         -6-


       {¶ 11} “Furthermore, when non-constitutional rights are at issue, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and

voluntarily made generally must show a prejudicial effect.” Jennings at ¶ 7, citing State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. “Prejudice in this

context means that the plea would otherwise not have been entered.” Id.

       {¶ 12} Upon review of the plea transcript, we conclude that the record reveals no

arguably meritorious issues regarding the trial court's compliance with Crim.R. 11 in

accepting Fitzgerald's guilty pleas. The record clearly establishes that prior to entering

his plea, Fitzgerald was advised of the charge, the possible sentence, and the

constitutional and non-constitutional rights he was waiving by pleading guilty. At no point

did Fitzgerald express any confusion regarding any of the information provided by the trial

court in its Crim.R. 11 colloquy.        Rather, Fitzgerald affirmatively stated that he

understood the rights he was waiving. Furthermore, the agreement negotiated by the

parties benefitted Fitzgerald insofar as the State agreed to dismiss Counts I, VI, and VIII

in return for Fitzgerald’s pleading guilty to the remaining counts. Therefore, we conclude

that the trial court did not violate Crim.R. 11(C)(2)(c) in accepting Fitzgerald's plea, and

that he entered his plea knowingly, intelligently, and voluntarily.

       {¶ 13} Fitzgerald’s second potentially meritorious assignment of error is as follows:

       THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE

       WITH RESPECT TO COUNT 2 OF THE INDICTMENT.

       {¶ 14} With respect to sentencing, this court has previously noted:

              “This court no longer applies an abuse of discretion standard when

       reviewing felony sentences, as the Supreme Court of Ohio has made clear
                                                                                    -7-


that felony sentences are to be reviewed in accordance with the standard

set forth in R.C. 2953.08(G)(2).” State v. McCoy, 2d Dist. Clark No. 2016-

CA-28, 2016-Ohio-7415, ¶ 6, citing State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16. Accord State v. Rodeffer, 2013-

Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.). Under the plain language of

R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence

that the record does not support the trial court's findings under relevant

statutes or that the sentence is otherwise contrary to law.” Marcum at ¶ 1.

“This is a very deferential standard of review, as the question is not whether

the trial court had clear and convincing evidence to support its findings, but

rather, whether we clearly and convincingly find that the record fails to

support the trial court's findings.” State v. Cochran, 2d Dist. Clark No. 2016-

CA-33, 2017-Ohio-217, ¶ 7, citing Rodeffer at ¶ 31.

       Even before Marcum, we had indicated “[t]he trial court has full

discretion to impose any sentence within the authorized statutory range,

and the court is not required to make any findings or give reasons for

imposing maximum or more than minimum sentences.” (Citation omitted.)

State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-Ohio-5759. Accord

State v. Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-4201, ¶ 14. But

“in exercising its discretion, a trial court must consider the statutory policies

that apply to every felony offense, including those set out in R.C. 2929.11

and R.C. 2929.12.” (Citations omitted.) State v. Castle, 2016-Ohio-4974, 67
                                                                                          -8-


       N.E.3d 1283, ¶ 26 (2d Dist.). * * *

State v. Folk, 2d Dist. Montgomery No. 27375, 2017-Ohio-8105, ¶ 5-6.

       {¶ 15} R.C. 2929.11 requires trial courts to be guided by the overriding principles

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). The court must “consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony

shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the

offender's conduct and its impact upon the victim, and consistent with sentences imposed

for similar crimes committed by similar offenders.”

       {¶ 16} R.C. 2929.12(B) sets forth nine factors indicating that an offender's conduct

is more serious than conduct normally constituting the offense. These factors include

whether the physical or mental injury to the victim was exacerbated because of the

physical or mental condition of the victim; serious physical, psychological, or economic

harm suffered by the victim as a result of the offense; whether the offender's relationship

with the victim facilitated the offense; and whether the offender committed the offense for

hire or as a part of an organized criminal activity.

       {¶ 17} R.C. 2929.12(C) sets forth four factors indicating that an offender's conduct

is less serious than conduct normally constituting the offense, including whether the victim
                                                                                            -9-


induced or facilitated the offense, whether the offender acted under strong provocation,

whether, in committing the offense, the offender did not cause or expect to cause physical

harm to any person or property, and the existence of substantial grounds to mitigate the

offender's conduct, although the grounds are not enough to constitute a defense. R.C.

2929.12(D) and (E) each lists five factors that trial courts are to consider regarding the

offender's likelihood of committing future crimes. Finally, R.C. 2929.12(F) requires the

sentencing court to consider the offender's military service record.

       {¶ 18} In reviewing felony sentences, appellate courts must apply the standard of

review 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, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,

reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,

only if it “clearly and convincingly” finds either (1) that the record does not support certain

specified findings or (2) that the sentence imposed is contrary to law.

       {¶ 19} At disposition, the trial court stated the following when imposing sentence

upon Fitzgerald:

              Trial Court: Court has reviewed the presentence investigation report,

       statements of Counsel, statements of the Defendant, and Court’s

       interaction with the Defendant.        Court has also reviewed the State

       sentencing memorandum with exhibits and the Defendant’s sentencing

       memorandum. With regard to pre-sentence investigation – and the Court

       also reviewed the written victim impact statement.

              Regarding pre-sentence conduct, the Court finds that the Defendant

       had previously served two terms of imprisonment. His ORAS score is 33,
                                                                                -10-


which is considered high. Court finds that Counts Two, Three, Four, Five,

and Seven are not allied offenses of similar import and do not merge.

Court wants to make specific note that on the obstructing official business

the Court believes that the State did a good job of differentiating that the

obstruction and the risk of physical harm to the officer occurred after the

termination of the fleeing and eluding by motor vehicle.       And instead

occurred during the foot chase, which was part of the continuing course of

criminal conduct.

      In imposing sentences the Court considered and applied the

purposes and principles of sentences of sentencing as modified by the new

legislation and as set forth in [R.C.] 2929.11 divisions A, B, and C. The

Court also considered the seriousness of the conduct, likelihood of

recidivism, and lack of service in the Armed Forces. The Court is going to

set forth the seriousness and recidivism factors in the journal entry of

sentencing. I’ve included six seriousness factors. Court concludes that

factors establishing conduct is more serious outweigh factors establishing

conduct is less serious.

      With regard to recidivism, I’ve included five factors as to more likely

to commit future crimes. And two factors under less likely to commit future

crimes. I do recognize that the Defendant has led a law-abiding life. But

the Court also believes that this may be mitigated by the Defendant’s use

of 13 aliases.   On the issue of genuine remorse, the Court finds that

Defendant shows genuine remorse and that he desires mental health
                                                                                             -11-


       treatment.      Court concludes the factors establishing Defendant’s

       recidivism is more likely [sic] outweigh factors establishing Defendant’s

       likelihood of recidivism is less likely.

              Court considered military service. Finds he has no military service.

       Court also makes the [R.C.] 2929.13(B)(1)(b) findings that the Defendant

       previously served a prison term.

Sentencing Tr. 30-32. Additionally, Fitzgerald’s judgment entry of conviction contains all

the findings made by the trial court orally at the sentencing hearing pursuant to R.C.

2929.11 and R.C. 2929.12.

       {¶ 20} The trial court imposed the maximum sentence (36 months) on Fitzgerald’s

conviction for Count II, failure to comply with the order or signal of a police officer, a felony

of the third degree. The sentence imposed by the trial court was within the permissible

statutory range for a felony of the third degree. The record establishes that the trial court

reviewed the PSI, Fitzgerald's statements, and the statements of counsel. The record

further establishes that the trial court considered the principles and purposes of

sentencing under R.C. 2929.11, and that it balanced the seriousness and recidivism

factors set forth in R.C. 2929.12. Here, the trial court orally advised Fitzgerald at the

sentencing hearing of its findings pursuant to R.C. 2929.11 and 2929.12, and the

judgment entry of conviction contained those findings. Thus, we are unable to find “by

clear and convincing evidence that the record does not support the sentence.” Marcum

at ¶ 23. The sentence is not contrary to law. See State v. Brammer, 2d Dist. Greene No.

2017-CA-56, 2018-Ohio-3067, ¶ 19.

       {¶ 21} In light of the foregoing, we conclude that the record reveals no arguably
                                                                                           -12-


meritorious issues regarding the maximum 36-month sentence imposed by the trial court

on Fitzgerald’s conviction for Count II, failure to comply with the order or signal of a police

officer.

       {¶ 22} Fitzgerald’s third potentially meritorious assignment of error is as follows:

       THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES

       WITH RESPECT TO COUNTS 3 AND 5 OF THE INDICTMENT.

       {¶ 23} In general, it is presumed that prison terms will be served concurrently. R.C.

2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23

(“judicial fact-finding is once again required to overcome the statutory presumption in

favor of concurrent sentences”). However, R.C. 2929.14(C)(4) permits a trial court to

impose consecutive sentences if it finds that (1) consecutive sentencing is necessary to

protect the public from future crime or to punish the offender, (2) consecutive sentences

are not disproportionate to the seriousness of the offender's conduct and to the danger

the offender poses to the public, and (3) any 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 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.
                                                                                        -13-


       (c) The offender's history of criminal conduct demonstrates that consecutive

       sentences are necessary to protect the public from future crime by the

       offender.

       {¶ 24} The trial court must both make the statutory findings required for

consecutive sentences at the sentencing hearing and incorporate those findings into its

sentencing journal entry. Bonnell at syllabus. To make the requisite “findings” under the

statute, “ ‘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.’ ” Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d

131 (1999). A trial court need not give a “talismanic incantation of the words of the

statute” when imposing consecutive sentences, “provided that the necessary findings can

be found in the record and are incorporated in the sentencing entry.” Id. at ¶ 37; see also

State v. Thomas, 8th Dist. Cuyahoga No. 102976, 2016-Ohio-1221, ¶ 16 (“the trial court's

failure to employ the exact wording of the statute does not mean that the appropriate

analysis is not otherwise reflected in the transcript or that the necessary finding has not

been satisfied”).

       {¶ 25} With respect to the imposition of consecutive sentences on Counts III and

V, the trial court made the following findings at the sentencing hearing:

       Trial Court: * * * And [on] Counts Three and Five the Court finds that

       consecutive sentencing is necessary to protect the public from future crime

       by the Defendant or to punish the Defendant. Consecutive sentences are

       not disproportionate to the seriousness of the conduct and the danger the

       Defendant poses to the public. And the Court finds the Defendant’s history
                                                                                        -14-


      of criminal conduct demonstrates that consecutive sentences are

      necessary to protect the public from future crime. And that at least two of

      the multiple offenses were committed as a 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 conduct or the Defendant’s conduct.

Sentencing Tr. 34. The trial court included its oral findings regarding the imposition of

consecutive sentences for Counts III and V in the judgment entry of conviction.

      {¶ 26} In Fitzgerald’s case, the trial court made the requisite findings to support

the imposition of consecutive sentences regarding Counts III and V. Specifically, the trial

court found that consecutive sentences were necessary to protect the public from future

crime and to punish Fitzgerald, and that they were not disproportionate to the seriousness

of Fitzgerald's conduct and to the danger he posed to the public. The trial court further

found that the offenses were committed as part of a course of conduct and the harm

caused by these offenses was so great or unusual that no single prison term adequately

reflected the seriousness of his conduct.

      {¶ 27} Fitzgerald does not contend that the trial court was incorrect in any of its

findings. As is obvious from its comments during the sentencing hearing, the trial court

spent a great deal of time explaining its rationale for the sentence it ultimately imposed.

Upon review, we cannot conclude that the trial court's findings pursuant to R.C.

2929.14(C)(4) were clearly and convincingly unsupported by the record, and we can find

no arguably meritorious issues regarding its decision to impose consecutive sentences.
                                                                                         -15-


       {¶ 28} In addition to reviewing the possible issues for appeal raised by Fitzgerald’s

appellate counsel, we have conducted an independent review of the trial court’s

proceedings and have found no error having arguable merit. Accordingly, the judgment

of the trial court is affirmed.

                                     .............



FROELICH, J. and WELBAUM, J., concur.



Copies sent to:

Kevin Talebi
Andrew C. Schlueter
Tahleef Yasmeen Fitzgerald
Hon. Nick A. Selvaggio
