[Cite as State v. Haney, 2013-Ohio-2823.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                       LAKE COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2012-L-098
        - vs -                                  :

JAMES A. HANEY, JR.,                            :

                 Defendant-Appellant.           :


Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 11 CR 000690.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Matthew C. Bangerter, 1360 West 9th Street, Suite 200, Cleveland, OH 44113 (For
Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, James A. Haney, Jr., appeals the jury verdict finding him guilty

of the following: identity fraud, a first-degree felony in violation of R.C. 2913.49(B)(1);

theft from an elderly person, a first-degree felony in violation of R.C. 2913.02(A)(3);

forgery, a second-degree felony in violation of R.C. 2913.02(A)(3); telecommunications

fraud, a third-degree felony in violation of R.C. 2913.05; and aggravated theft, a second-

degree felony in violation of R.C. 2913.02(A)(3).         Each count contained forfeiture
specifications under R.C. 2941.1417 and R.C. 2981.04. For the following reasons, we

affirm the trial court’s judgment.

       {¶2}   The facts of this case are relatively undisputed.       During the jury trial,

appellant did not dispute his conduct, i.e., that he utilized his father’s personal

identifying information to obtain and cash monies from his father’s annuities during the

last months of his father’s life.    However, appellant claimed that although he was

disinherited from his father’s will, his father, prior to his death, had given him permission

to engage in such acts.

       {¶3}   The jury heard that appellant’s father, James A. Haney, Sr., changed his

will in 2009 disinheriting appellant due to his criminal past and the fact that he owed a

significant sum in child support.    Appellant admitted he was upset by this change.

Appellant testified that while his father was in the hospital, he took his father’s “dinner

bucket,” the place where his father stored all of his personal paperwork. Appellant took

the original paperwork contained in the “dinner bucket,” made copies of the paperwork,

and put the copies back into the “dinner bucket.”

       {¶4}   The two annuities at issue are from Lincoln Financial Group and Western

National Life Insurance Company, neither of which named appellant as a beneficiary.

Beginning when appellant’s father was in the hospital, appellant called Lincoln Financial

and indicated that he was James Haney, Sr. Appellant provided Lincoln Financial with

his father’s personal identifying information, including his date of birth and social

security number. Appellant then completed paperwork from Lincoln Financial to cause

a distribution; appellant received a check in the amount of $193,975.              Appellant




                                             2
deposited this check in a Fifth Third Bank Account in appellant’s name; these funds

were later transferred to KeyBank.

       {¶5}   Appellant also called Western National Life Insurance Company

identifying himself as James A. Haney, Sr.         Again, utilizing his father’s personal

identifying information, appellant completed documentation to obtain a check in the

amount of $80,027.73 from Western National Life Insurance from his father’s account.

Appellant also deposited this check in his Fifth Third Bank Account. Appellant then

moved some of the monies to KeyBank. Appellant eventually withdrew $182,000 in

cash from KeyBank.      Appellant testified that with the money he obtained from his

father’s annuities, he bought a boat, gambled, gave some to his cousin to buy a Harley,

distributed an amount to his girlfriend, then took the rest to North Carolina and buried it

in a hole.

       {¶6}   At trial, appellant, during his testimony, acknowledged that he made the

telephone calls, utilized his father’s personal information, signed the forms as James

Haney, Sr., and deposited the checks into appellant’s personal account.          Appellant

maintained, however, that his father had given him permission prior to his death.

       {¶7}   Appellant was found guilty of all the aforementioned counts.              At

sentencing, the trial court merged Counts 2 and 4 (identity fraud and forgery) with Count

1 (identity fraud) and merged Count 3 (theft from an elderly person) with Count 6

(aggravated theft). Appellant was sentenced to a total term of 8 years imprisonment:

four years on Count 1 (identity fraud), two years on Count 5 (telecommunications fraud),

and two years on Count 6 (aggravated theft), to run consecutively.




                                            3
       {¶8}   Appellant filed a notice of appeal and, as his first assignment of error,

alleges:

       {¶9}   “Defendant-appellant was denied effective assistance of counsel in

violation of the Sixth Amendment of the United States Constitution.”

       {¶10} In order to prevail on an ineffective assistance of counsel claim, appellant

must demonstrate from the record that trial counsel’s performance fell below an

objective standard of reasonable representation, and there is a reasonable probability

that, but for counsel’s error, the result of the proceeding would have been different.

State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus, adopting the

test set forth in Strickland v. Washington, 466 U.S. 668 (1984). If a claim can be

disposed of by showing a lack of sufficient prejudice, there is no need to consider the

first prong, i.e., whether trial counsel’s performance was deficient. Id. at 142, citing

Strickland at 695-696. There is a general presumption that trial counsel’s conduct is

within the broad range of professional assistance. Id. at 142-143.

       {¶11} Furthermore, decisions on strategy and trial tactics are generally granted a

wide latitude of professional judgment, and it is not the duty of a reviewing court to

analyze the trial counsel’s legal tactics and maneuvers. State v. Gau, 11th Dist. No.

2005-A-0082, 2006-Ohio-6531, ¶35, citing Strickland at 689. Debatable trial tactics and

strategies do not constitute ineffective assistance of counsel. State v. Phillips, 74 Ohio

St.3d 72, 85 (1995).

       {¶12} Under this assigned error, appellant presents this court with five issues for

review. First, appellant claims his trial counsel was ineffective for failing to make a

motion with the trial court to dismiss his case for violation of his right to a speedy trial.




                                               4
        {¶13} Here, the record indicates that appellant was incarcerated in North

Carolina on October 2, 2011. The indictment in this case was filed on November 17,

2011, along with an arrest warrant on the indictment. Appellant arrived in Ohio on

January 16, 2012.

        {¶14} At the sentencing hearing, there was discussion regarding appellant’s jail-

time credit.   The state indicated appellant was to receive 184 days credit for time

served, which totaled the number of days from the time appellant was returned to Ohio,

January 16, 2012, until the sentencing hearing of July 18, 2012. In its sentencing entry,

however, the trial court granted appellant 290 days—the total number of days from

when appellant was first incarcerated in North Carolina on October 2, 2011, until the

sentencing hearing of July 18, 2012.

        {¶15} Appellant argues that because the trial court granted him jail-time credit

for the time served in North Carolina, his term of confinement in North Carolina should

count toward his speedy trial calculation. Appellant maintains he is entitled to discharge

because he was not brought to trial within the statutory time period. Conversely, the

state maintains that appellant’s speedy trial calculation did not begin until January 16,

2012—the date appellant arrived in Ohio. Therefore, the issue is whether the duration

of appellant’s confinement in North Carolina is to be counted toward appellant’s speedy

trial time.

        {¶16} To support appellant’s argument on appeal, he cites State v. Koester, 3d

Dist. Nos. 16-03-07 and 16-03-08, 2003-Ohio-6098, ¶9. In Koester, the appellant was

confined in Nebraska on unrelated charges during the time he was scheduled to appear




                                            5
in Ohio on two separate cases. The trial court ordered that speedy trial time limits in

both cases be tolled pursuant to R.C. 2945.72. R.C. 2945.72 provides, in part:

       {¶17} The time within which an accused must be brought to trial, or, in the

              case of felony, to preliminary hearing and trial, may be extended

              only by the following:

       {¶18} (A) Any period during which the accused is unavailable for hearing

              or trial, by reason of other criminal proceedings against him, within

              or outside the state, by reasons of his confinement in another state,

              or by reason of the pendency of extradition proceedings, provided

              that the prosecution exercises reasonable diligence to secure his

              availability * * *.

       {¶19} The appellant in Koester argued that the state did not exercise reasonable

diligence in its attempts to secure him for prosecution in Ohio. The Third Appellate

District, after acknowledging that speedy trial time is extended when an accused is

unavailable by reason of his incarceration in another state, focused its analysis on

whether the prosecution met the “reasonable diligence” standard required by R.C.

2945.72(A) (“speedy trial time is tolled only for as long as the defendant is unavailable

and the prosecution can show reasonable diligence was exercised to secure [the

defendant’s] availability”). Id. at ¶14. The court concluded that while the initial efforts of

the prosecution constituted reasonable diligence, the prosecution did nothing for nearly

300 days after its motion to toll the speedy trial time limits in both cases. Id. at ¶17. At

that time, the state proposed a plea agreement, which was rejected by the appellant.

Id. at ¶18.   Thereafter, the prosecution again did nothing to secure the appellant’s




                                              6
availability until he was returned to the jurisdiction of Ohio—a period of an additional

396 days from the time of the plea offer. Id. The court held that based on the facts of

the case, the prosecution did not demonstrate “reasonable diligence” in securing the

appellant’s availability for disposition of the pending charges. Id. at ¶20. Additionally,

the court noted that the burden is on the prosecution to document its efforts in obtaining

the availability of the defendant for trial. “The state has the burden of bringing the

defendant before the court on pending charges and the record should reflect the efforts

made by the state to do so and, in cases in which the state is unable to do so, the

reasons why such efforts were unsuccessful.” Id. at ¶22.

       {¶20} The state argues the instant case is analogous to State v. Patrick, 2d Dist.

No. 15225, 1996 Ohio App. LEXIS 2516 (June 14, 1996). In Patrick, the appellant was

indicted in Ohio on March 7, 1994, but was then incarcerated in New Jersey, serving the

remainder of a term after revocation of his prior parole. Id. at *2. While the appellant

was confined in New Jersey, a warrant on the Ohio indictment was served on New

Jersey authorities. Id. The appellant was discharged with regard to the New Jersey

charge on July 29, 1994; appellant remained confined on the Ohio warrant, waived

extradition, and was returned to Ohio and arrested on the indictment on August 11,

1994. Id. The appellant’s jury trial was scheduled for November 2, 1994. Id. In

denying the appellant’s motion to dismiss for denial of his right to a speedy trial, the trial

court held that his speedy trial time did not commence until August 11, 1994, when the

appellant was returned to Ohio.

       {¶21} The appellate court affirmed, stating:




                                              7
      {¶22} R.C. 2945.72(A) applies to extend the Defendant’s speedy trial time

             in this instance. The extension provision in the statute also applies

             to any period ‘during which the accused is unavailable for hearing

             or trial * * * by reason of his confinement in another state.’ Patrick

             was confined in New Jersey after July 29 and until August 11,

             1994, albeit on an Ohio warrant.          While the cause of his

             confinement was instituted by Ohio, the decision to confine him was

             made by New Jersey in the exercise of its police powers.

             Therefore, Patrick’s speedy trial time was extended to August 11,

             1994, when he was released to Ohio and was arrested here.

             Patrick has not demonstrated that his confinement by New Jersey

             after July 29 was unreasonably extended by any failure of due

             diligence on the part of the Ohio prosecutor to bring him back. Id.

             at *5-*6.

      {¶23} This court has spoken on the effect of R.C. 2945.72(A) in extradition

cases. In State v. Olcese, we stated:

      {¶24} [W]here a defendant is incarcerated in another state and waives

             extradition, the speedy trial clock is tolled as the ‘accused is

             unavailable for hearing or trial[.]’   See State v. Adkins, 4 Ohio

             App.3d 231, 232 (1982) (holding where a defendant is arrested in

             another state, waives extradition, and is transported to Ohio, the

             speedy trial requirements of R.C. 2945.71, et seq., toll until the




                                            8
               defendant is in Ohio and arrested under an Ohio charge). 11th

               Dist. No. 2008-P-0094, 2009-Ohio-5057, ¶115.

       {¶25} We recognized that this tolling provision is not absolute, but is triggered

“only if the prosecution exercises reasonable diligence in securing the defendant’s

availability.” Id. at ¶116.

       {¶26} Based on the record before us, we are unable to review appellant’s claim

that his trial counsel was ineffective for failing to file a motion to dismiss based on the

denial of his right to a speedy trial. We note that at the conclusion of the sentencing

hearing, appellant inquired as to why he was not brought to trial within 90 days, as he

was returned to Ohio from North Carolina on January 16, 2012. The trial court informed

appellant that he may seek advice from his new legal counsel during the appellate

process. The record before us, however, does not indicate whether appellant waived

extradition nor does it contain any evidence demonstrating what, if any, efforts the

prosecution made in securing appellant’s availability. Appellant’s claim would be more

properly presented in a postconviction relief proceeding where testimony regarding

counsel’s strategy and the relative merits of the motion, or lack thereof, could be

properly presented.

       {¶27} In addition, the fact that the trial court gave credit for the time spent in jail

in North Carolina has no bearing on the speedy trial analysis. Whether credit should be

given for time served is governed by other factors, including the statutory requirements

of R.C. 2967.191. Whether the time should be included in the speedy trial calculation

includes entirely different considerations, including those set forth in R.C. 2945.72 as

discussed herein.




                                              9
        {¶28} Appellant next claims his trial counsel was ineffective for (2) proceeding to

trial without preparing a defense, (3) failing to sufficiently cross-examine the state’s

witnesses, and (4) failing to inquire into the evidence potentially missed by two sleeping

jurors. The record does not support appellant’s arguments.

        {¶29} At trial, appellant and trial counsel had discussions regarding trial strategy;

appellant, after being advised by the trial court and his counsel, chose to testify in his

own behalf and present his proposed defense of consent, against the advice of his

counsel. Appellant’s counsel informed the trial court that he did not plan to proceed on

the consent defense, as proposed by appellant himself, and “the only way that we’re

going to be able to get that message conveyed to the jury is if [appellant] want[s] to

testify.”   Appellant, against the advice of counsel, chose to testify and present his

defense of consent, which was ultimately unsuccessful.

        {¶30} Next, appellant maintains that his trial counsel failed to sufficiently cross-

examine the state’s witnesses.       Appellant focuses his argument on the number of

questions asked of each witness. The record does not support appellant’s ineffective

assistance of counsel claim as to the cross-examination of the witnesses. Generally,

“[t]he scope of cross-examination falls within the ambit of trial strategy” and, as a result,

will not serve as a basis for an ineffective assistance claim. State v. Conway, 109 Ohio

St.3d 412, 2006-Ohio-2815, ¶101.

        {¶31} Appellant next alleges that his trial counsel failed to inquire into the

evidence potentially missed by two sleeping jurors. After the jury began to deliberate,

appellant informed the trial court that “one of the girls that I know that was in this

courtroom and watched two of the trial people from the jury dozing off or sleeping while




                                             10
important facts were issued.” The trial court then explored appellant’s contention noting

that it did not observe any of the jurors sleeping. Additionally, appellant has not cited to

what portion of the testimony, if any, was missed by the jurors.

       {¶32} Lastly, appellant maintains trial counsel was ineffective for agreeing to an

erroneous merger analysis.      Appellant maintains that all of his counts should have

merged into a single count, as they were all part of the same scheme.

       {¶33} At sentencing, the trial court merged Counts 2 and 4 (identity fraud and

forgery) with Count 1 (identity fraud) and merged Count 3 (theft from an elderly person)

with Count 6 (aggravated theft). Consequently, appellant was sentenced on Count 1

(identity fraud), Count 5 (telecommunications fraud), and Count 6 (aggravated theft).

       {¶34} The test to determine whether two offenses should be merged pursuant to

the constitutional protections codified in R.C. 2941.25 has evolved considerably from its

initial, oft-criticized statutory abstraction methodology—a paradigm subsequently

acknowledged as capable of producing absurd results. See State v. Williams, 134 Ohio

St.3d 482, 2012-Ohio-5699, ¶16-20 (detailing the history of the merger analysis).

       {¶35} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio

Supreme Court developed the current standard, holding that, “[w]hen determining

whether two offenses are allied offenses of similar import subject to merger under R.C.

2941.25, the conduct of the accused must be considered.” Id. at syllabus. In making

such a determination, a court must consider whether it is possible to commit the

offenses by the same conduct and, if so, whether the offenses were, in fact, committed

by the same conduct: i.e., “‘a single act committed with a single state of mind.’” Id. at

¶49. If both questions are answered affirmatively, then merger is appropriate. The




                                            11
results of the analysis will vary by case as the examination of the defendant’s conduct is

necessarily non-formulaic and inherently subjective. Id. at ¶52.

       {¶36} Nothing in the record supports appellant’s assertion that he committed a

single act with a single state of mind. Rather, the evidence presented at trial contains

sufficient facts to demonstrate that appellant committed the three offenses through

separate and distinct conduct.      Appellant made numerous telephone calls to both

Lincoln Financial Group and Western National Life Insurance Company and utilized his

father’s personal information with the purpose to obtain disbursements from his father’s

annuities. Then, upon receiving the paperwork from both Lincoln Financial Group and

Western National Life Insurance Company, appellant signed his father’s name to cause

the monies to be dispersed. Appellant then, after moving the funds between two banks,

withdrew and subsequently spent a large portion of the funds from the annuities.

       {¶37} Appellant’s first assignment of error is without merit.

       {¶38} In his second assignment of error, appellant states:

       {¶39} “The trial court erred to the prejudice of the defendant-appellant when it

returned a verdict of guilty against the manifest weight of the evidence.”

       {¶40} To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether the trier

of fact “lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio

St.3d 380, 387 (1997).     In weighing the evidence submitted at a criminal trial, an

appellate court must defer to the factual findings of the trier of fact regarding the weight




                                            12
to be given the evidence and credibility of the witnesses. State v. DeHass, 10 Ohio

St.2d 230 (1967), paragraph one of the syllabus.

       {¶41} Appellant maintains that his convictions are against the manifest weight of

the evidence because appellant testified that his father intended for him to have the

inheritance, and further, his father’s will was changed to disinherit appellant during the

time his father lived with appellant’s sister, Cindy Creegan.        Appellant alleges the

evidence at trial demonstrated that he was entitled to “his inheritance or, at worst, his

father was manipulated while not in his right mind into disinheriting [him].”

       {¶42} The jury heard appellant’s testimony that he utilized his father’s personal

information to obtain and cash checks from his deceased father’s annuities. Appellant

did not dispute this conduct; instead, he maintained that he had permission to engage in

such conduct.     The defense only presented appellant’s self-serving testimony to

buttress this assertion. At trial, the jury also heard testimony from the 12 witnesses

presented by the state.

       {¶43} The trier of fact is free to believe or disbelieve all or any of the

              testimony.   The trier of fact is in the best position to take into

              account inconsistencies, along with the witnesses’ manner and

              demeanor, and determine whether the witnesses’ testimony is

              credible. Consequently, although an appellate court must act as a

              ‘thirteenth juror’ when considering whether the manifest weight of

              the evidence requires reversal, it must also give great deference to

              the fact finder’s determination of the witnesses’ credibility. State v.

              Sevilla, 10th Dist. No. 06AP-954, 2007-Ohio-2789, ¶13.




                                             13
       {¶44} Therefore, after reviewing the record and weighing the evidence and all

reasonable inferences, we cannot conclude the jury lost its way and created such a

manifest miscarriage of justice that the convictions must be reversed and a new trial

ordered. Appellant’s second assignment of error is not well founded.

       {¶45} As his third assignment of error, appellant alleges:

       {¶46} “The trial court erred to the prejudice of the defendant-appellant in denying

his motion for acquittal made pursuant to Crim.R. 29(A).”

       {¶47} Appellant claimed the evidence was insufficient to support a conviction.

The test for determining the issue of sufficiency is “whether, after viewing the evidence

in a light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks,

61 Ohio St.3d 259 (1991), paragraph two of the syllabus, citing Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781 (1979). Thus, the claim of insufficient evidence invokes a

question of due process, the resolution of which does not allow for a weighing of the

evidence. State v. Lee, 11th Dist. No. 2010-L-084, 2011-Ohio-4697, ¶9. Crim.R. 29(A)

requires the trial court to grant a motion for acquittal if the evidence is insufficient to

sustain a conviction on the charged offenses.

      {¶48} Under this assigned error, appellant merely asserts “the evidence

presented was insufficient to prove that he lacked consent to claim his portion of the

inheritance.” Appellant defines his sufficiency argument strictly in terms that there was

inadequate evidence but, in doing so, fails to support or put forth a substantive

argument in support of this conclusion. App.R. 16(A)(7). We therefore conclude that,




                                            14
given the record and testimony at the trial court, there was sufficient evidence to support

appellant’s convictions.

       {¶49} Appellant’s third assignment of error is without merit.

       {¶50} Appellant’s fourth assignment of error states:

       {¶51} “The trial court erred by sentencing the defendant-appellant to a term of

imprisonment where its findings were not supported by the record.”

       {¶52} After the Ohio Supreme Court’s decision in State v. Foster, “[t]rial courts

have full discretion to impose a prison sentence within the statutory range and are no

longer required to make findings or give their reasons for imposing maximum,

consecutive, or more than the minimum sentences.” State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, paragraph seven of the syllabus.

       {¶53} The Ohio Supreme Court, in a plurality opinion, has held that felony

sentences are to be reviewed under a two-step process. State v. Kalish, 120 Ohio

St.3d 23, 2008-Ohio-4912, ¶26. The Court held:

       {¶54} First, [appellate courts] must examine the sentencing court’s

              compliance with all applicable rules and statutes in imposing the

              sentence to determine whether the sentence is clearly and

              convincingly contrary to law. If this first prong is satisfied, the trial

              court’s decision in imposing the term of imprisonment is reviewed

              under the abuse-of-discretion standard. Id.

       {¶55} The Kalish Court affirmed the sentence of the trial court as not being

contrary to law, since the trial court expressly stated that it had considered the R.C.




                                             15
2929.11 and R.C. 2929.12 factors, post-release control was applied properly, and the

sentence was within the statutory range. Id. at ¶18.

         {¶56} An abuse of discretion is the trial court’s “‘failure to exercise sound,

reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. No. 09-CA-54,

2010-Ohio-1900, at ¶62, quoting Black’s Law Dictionary 11 (8 Ed.Rev.2004).

         {¶57} On appeal, appellant does not argue his sentence is contrary to law;

instead, he maintains the trial court failed to conduct an analysis of the factors in R.C.

2929.12(C).     R.C. 2929.12(C) provides several factors that suggest an “offender’s

conduct is less serious” than conduct generally associated with the offense.

Specifically, appellant argues the trial court failed to consider that he did not intend

physical harm; he acted under a strong provocation; and he expressed genuine

remorse.

         {¶58} It is well established that when considering R.C. 2929.11 and R.C.

2929.12, a trial court “is not required to make findings of fact under the seriousness and

recidivism factors in R.C. 2929.12.” State v. ONeil, 11th Dist. No. 2010-P-0041, 2011-

Ohio-2202, ¶34.

         {¶59} We initially note that the trial court, in its judgment entry of sentence,

explicitly stated it had considered and balanced the seriousness and recidivism factors

under R.C. 2929.12 when determining appellant’s sentence. As the sentence is within

the relevant felony range and there is nothing to otherwise indicate the trial court acted

unreasonably in imposing sentence, the sentence is legally sufficient under Kalish,

supra.

         {¶60} Appellant’s fourth assignment of error is without merit.




                                             16
      {¶61} Based on the opinion of this court, the judgment of the Lake County Court

of Common Pleas is hereby affirmed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




                                        17
