[Cite as State v. Lane, 2018-Ohio-1320.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 27347
                                                 :
 v.                                              :   Trial Court Case No. 2016-CR-874
                                                 :
 JAMES M. LANE                                   :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                              Rendered on the 6th day of April, 2018.

                                            ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

DANIEL E. BRINKMAN, Atty. Reg. No. 0025365, Suite 2000 Liberty Tower, 120 West
Second Street, Dayton, Ohio 45402
     Attorney for Defendant-Appellant

JAMES M. LANE, Inmate No. 729-999, North Central Correctional Complex, P.O. Box
1812, Marion, Ohio 43301
      Defendant-Appellant-Pro Se

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

WELBAUM, P.J.
                                                                                         -2-




       {¶ 1} Defendant-appellant, James M. Lane, appeals from his conviction and

sentence in the Montgomery County Court of Common Pleas after he pled guilty to

attempted kidnapping, menacing by stalking, and violating a protection order. On April

10, 2017, Lane’s assigned counsel filed a brief under the authority of Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating there are no issues with

arguable merit to present on appeal and raising one potential assignment of error. On

April 12, 2017, we notified Lane that his counsel found no meritorious claim for review

and granted him 60 days to file a pro se brief assigning any errors. Thereafter, Lane

filed a pro se brief raising two assignments of error that challenge certain aspects of his

sentence. The State then filed a brief opposing Lane’s assigned errors and Lane filed a

reply brief in response. After reviewing Lane’s assigned errors and counsel’s potential

assignment of error, we find they are without arguable merit. Also, in conducting our

independent Anders review, we find no issues with arguable merit for Lane to advance

on appeal. Accordingly, the judgment of the trial court will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On March 25, 2016, the Montgomery County Grand Jury returned a ten-count

indictment charging Lane with three counts of attempted murder, three counts of

attempted kidnapping, two counts of violating a protection order, one count of menacing

by stalking, and one count of possessing criminal tools. The alleged victims for the three

attempted murder and three attempted kidnapping charges were Lane’s ex-wife and his

two twin daughters. Lane’s ex-wife was also the alleged victim for the menacing by
                                                                                         -3-


stalking charge.

       {¶ 3} The charges arose after Lane’s ex-wife filed a protection order against Lane

on February 9, 2016. Approximately a month after the protection order was issued,

Lane’s ex-wife contacted the Riverside Police Department and reported that Lane was

following her in his vehicle while she was leaving a domestic violence support group

meeting. Lane’s ex-wife also advised that she had received letters in Lane’s handwriting

and several e-mails from him. She further advised that she was in the military and that

the Air Force Office of Special Investigations (AFOSI) was currently investigating

allegations of rape she had made against Lane.

       {¶ 4} Approximately two hours after Lane’s ex-wife reported that Lane was

following her in his vehicle, AFOSI contacted the Riverside Police Department and

advised that their agents had observed Lane parked in an area near Wright Patterson Air

Force Base. Thereafter, a Riverside officer went to that location and arrested Lane for

violating the protection order. Because Lane’s vehicle had to be towed, an inventory

search of Lane’s vehicle was conducted and the search yielded $1,800 in cash, a stun

gun, a hand gun, duct tape, black latex gloves, a lock picking set, a white plastic bag, and

yellow zip ties looped together so that they could be used as handcuffs.

       {¶ 5} Once indicted, Lane filed a motion to suppress on April 13, 2016, for which a

hearing was held on June 30, 2016. After the hearing, the trial court took the matter

under advisement and issued a decision overruling the motion on August 23, 2016.

Thereafter, Lane filed a motion to dismiss for lack of a speedy trial on October 7, 2016.

The trial court overruled that motion as well, finding that the statutory speedy-trial time

was tolled due to Lane filing his motion to suppress.
                                                                                         -4-


       {¶ 6} Lane’s case was set for a jury trial on October 11, 2016. Prior to the start of

trial, Lane moved the court in limine to exclude two audio tapes from evidence that

contained telephone conversations between Lane and his ex-wife wherein Lane

threatened violence against his ex-wife and another individual. The court overruled the

motion on grounds that the recordings could be used as evidence of Lane’s pattern of

conduct as it relates to the menacing by stalking charge.

       {¶ 7} Following the trial court’s ruling on Lane’s motion in limine, the parties

negotiated a plea agreement whereby Lane agreed to plead guilty to one count of

attempted kidnapping in violation of R.C. 2905.01(A)(3) and 2923.02(A), a felony of the

second degree; one count of menacing by stalking in violation of R.C. 2903.211(A) and

(B)(2)(e), a felony of the fourth degree; and one count of violating a protection order in

violation of R.C. 2919.27(A)(1), a misdemeanor of the first degree. In exchange for

Lane’s guilty pleas, the State agreed to dismiss the other seven charges in the indictment.

While no agreement was made with respect to sentencing, the parties agreed that the

trial court would order a presentence investigation report.

       {¶ 8} After the parties advised the trial court of the plea agreement, the court

conducted a plea colloquy in compliance with Crim.R. 11, and specifically advised Lane

that his guilty pleas would waive his right to appeal any of the court’s pretrial rulings.

Following the plea colloquy, Lane entered his guilty pleas, which the trial court found to

be knowingly, intelligently, and voluntarily made. The trial court thereafter ordered a

presentence investigation and scheduled the matter for sentencing on October 26, 2016.

       {¶ 9} At sentencing, the trial court indicated that it had reviewed the presentence

investigation report, the sentencing memorandums filed by each party, and the victim
                                                                                             -5-


impact statement submitted by Lane’s ex-wife. The court further advised that it had

considered the purposes and principles of sentencing in R.C. 2929.11 and the

seriousness and recidivism factors in R.C. 2929.12.               Additionally, the trial court

considered that, pursuant to R.C. 2929.13, a prison term is presumed to apply to Lane’s

second-degree felony offense of attempted kidnapping.

       {¶ 10} Continuing, the trial court indicated that it found the facts of the case to be

“troubling and disturbing.” Sentencing Trans. (Oct. 26, 2016), p. 34. The presentence

investigation report indicated that Lane admitted to violating the protection order and that

Lane acknowledged it was possible that he had acquired the items found in his vehicle in

order to detain his ex-wife and force her to talk to him. The court noted that Lane’s

actions and words demonstrate “that had not law enforcement intervened when they did,

that things would have ended up a much more serious situation.” Id. The court further

noted that Lane had “terrified [his] family and * * * violated a specific order of the court not

to have any contact.” Id.

       {¶ 11} After discussing its sentencing considerations, the trial court sentenced

Lane to eight years in prison for attempted kidnapping, 18 months in prison for menacing

by stalking, and 180 days in jail for violating the protection order. The trial court then

ordered each of these sentences to be served concurrently for a total prison term of 8

years. The trial court also imposed a three-year mandatory term of post-release control

for attempted kidnapping and a three-year discretionary term of post-release control for

menacing by stalking. The trial court did not order the terms of post-release control to be

served consecutively, as concurrent service is mandatory pursuant to R.C. 2967.28. In

addition, the trial court imposed 225 days of jail time credit.
                                                                                          -6-


       {¶ 12} Following his conviction and sentence, Lane filed the instant appeal.

Lane’s appellate counsel then filed an Anders brief indicating that there were no issues

with arguable merit to advance on appeal. However, as a potential assignment of error,

appellate counsel suggested that the trial court may have erred in overruling Lane’s

motion to dismiss for a speedy-trial violation. Thereafter, Lane filed a pro se brief that

raised two assignments of error challenging his eight-year prison sentence. The State

then filed a brief opposing Lane’s assigned errors to which Lane filed a reply brief in

response. The matter is now ripe for an Anders review.



                                    Law and Analysis

       {¶ 13} Pursuant to Anders, this court must conduct an independent review of the

record to determine if the appeal at issue is wholly frivolous. Anders, 386 U.S. at 744,

87 S.Ct. 1396, 18 L.Ed.2d 493.        “Anders equates a frivolous appeal with one that

presents issues lacking in arguable merit. An issue does not lack arguable merit merely

because the prosecution can be expected to present a strong argument in reply, or

because it is uncertain whether a defendant will ultimately prevail on that issue on appeal.”

State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. Rather, “[a]n

issue lacks arguable merit if, on the facts and law involved, no responsible contention can

be made that it offers a basis for reversal.”        Id., citing State v. Pullen, 2d Dist.

Montgomery No. 19232, 2002-Ohio-6788, ¶ 4.

       {¶ 14} If we determine the appeal is frivolous, we may grant counsel’s request to

withdraw and then dismiss the appeal without violating any constitutional requirements,

or we can proceed to a decision on the merits if state law requires it. State v. McDaniel,
                                                                                       -7-

2d Dist. Champaign No. 2010 CA 13, 2011-Ohio-2186, ¶ 5, citing Anders at 744.

However, “[i]f 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.” Marbury at ¶ 7, citing Pullen at ¶ 2.

      {¶ 15} We note that, even though Lane has elected to file a pro se brief, we review

this appeal in accordance with Anders and consider whether Lane and his appellate

counsel’s potential assignments of error are frivolous.       State v. Harris, 2d Dist.

Montgomery No. 27179, 2017-Ohio-9052, ¶ 5. In addition, we continue to have the

obligation to conduct an independent review of the entire record for any non-frivolous

issues. Id., citing Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

      {¶ 16} We will first determine whether the two potential assignments of error raised

by Lane have arguable merit. Under his first assignment of error, Lane contends that his

eight-year prison sentence is contrary to law because the trial court failed to impose a

sentence that is consistent with sentences imposed for similar crimes committed by

similar offenders in violation of R.C. 2929.11(B). Under his second assignment of error,

Lane contends that his sentence is contrary to law because the trial court failed to make

the findings required by R.C. 2929.13 and include those findings in the sentencing entry.

For the following reasons, we find both of Lane’s assignments of error are without

arguable merit.

      {¶ 17} Felony sentences are reviewed in accordance with 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, ¶ 7, 16. Pursuant to 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
                                                                                        -8-


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.” Id. 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 State v. Rodeffer,

2013-Ohio-5759, 5 N.E.3d 1069, ¶ 31 (2d Dist.).          (Other citation omitted.)    “[A]n

appellate court may vacate or modify any sentence that is not clearly and convincingly

contrary to law only if the appellate court finds by clear and convincing evidence that the

record does not support the sentence.” Marcum at ¶ 23.

       {¶ 18} Under his second assignment of error, Lane contends that the trial court

was required to make findings under one of the “relevant statutes” listed in R.C.

2953.08(G)(2); namely, R.C. 2929.13(B). Lane specifically references sections (B)(2)(a)

and (B)(2)(b) of the statute, which are former provisions that have since been deleted.

Under the current version of R.C. 2929.13, section (B)(1)(a) and (B)(1)(b) provide certain

findings a trial court must make when determining whether community control sanctions

are mandatory for fourth-degree felonies that are not offenses of violence, or whether the

court has discretion to impose a prison term for those offenses. However, these sections

of R.C. 2929.13 do not apply to this case because Lane’s fourth-degree-felony offense of

menacing by stalking is an offense of violence.         See R.C. 2901.01(A)(9)(a).       In

sentencing Lane for menacing by stalking, the trial court was only required to “comply

with the purposes and principles of sentencing under section 2929.11 of the Revised

Code and with section 2929.12 of the Revised Code.” R.C. 2929.13(B)(2).
                                                                                          -9-


       {¶ 19} Although not specifically argued by Lane, we note that the findings required

by R.C. 2929.13(D) also do not apply here. Those findings only apply when the trial

court decides to impose community control sanctions for a first or second-degree felony

offense in which a prison term is presumed. In order to overcome the presumption of a

prison term, the trial court must make the findings set forth in R.C. 2929.13(D)(2). Here,

the trial court sentenced Lane to prison for his second-degree felony offense of attempted

kidnapping, not community control; accordingly, the trial court was not required to make

the findings under section (D)(2) of the statute.

       {¶ 20} Given that the trial court was not required to make any of the findings under

R.C. 2929.13(B) or (D), or under any of the other statutes listed in R.C. 2953.08(G)(2), in

reviewing Lane’s sentence, it must be determined whether his sentence is otherwise

contrary to law. “ ‘[C]ontrary to law’ means that a sentencing decision manifestly ignores

an issue or factor which a statute requires a court to consider.” (Citation omitted.) State

v. Lofton, 2d Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 11. “[A] sentence is not

contrary to law when the trial court imposes a sentence within the statutory range, after

expressly stating that it had considered the purposes and principles of sentencing set

forth in R.C. 2929.11, as well as the factors in R.C. 2929.12.” Rodeffer, 2013-Ohio-5759,

5 N.E.3d 1069 at ¶ 32, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124, ¶ 18. We note that “[n]either R.C. 2929.11 nor 2929.12 requires trial courts

to give reasons for their sentencing decisions or to make specific findings.” State v.

Brandon, 2d Dist. Clark Nos. 2014-CA-143, 2014-CA-144, 2014-CA-145, 2016-Ohio-227,

¶8

       {¶ 21} In this case, the trial court indicated that it had considered the purposes and
                                                                                         -10-


principles of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in

R.C. 2929.12. In addition, the prison/jail terms imposed by the trial court for each of

Lane’s offenses are within the authorized statutory range. See R.C. 2929.14(A)(1); R.C.

2929.24(A)(1). Under these circumstances, Lane’s sentence is not contrary to law.

       {¶ 22} Nevertheless, Lane argues under his first assignment of error that his

sentence is contrary to law because the trial court failed to impose a sentence “consistent

with sentences imposed for similar crimes committed by similar offenders” as required by

R.C. 2929.11(B). In support of this argument, Lane cites multiple cases in which he

claims the offender was sentenced less harshly for the offense of attempted kidnapping.

However, none of the cases cited by Lane are factually similar to the instant case.

Moreover, unlike this case, the cases cited by Lane either do not involve any additional

offenses or involve additional offenses other than menacing by stalking or violating a

protection order.

       {¶ 23} Regardless of these differences, “a consistent sentence is not achieved

from a case-by-case comparison, but by the trial court’s proper application of the statutory

sentencing guidelines.” State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892,

¶ 16, citing State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228, 903 N.E.2d 676, ¶ 10

(10th Dist.). Accord State v. Silknitter, 3d Dist. Union No. 14-16-07, 2017-Ohio-327,

¶ 19. As noted in State v. Battle, 10th Dist. Franklin No. 06AP-863, 2007-Ohio-1845:

       “ ‘Consistency * * * does not necessarily mean uniformity. Instead,

       consistency aims at similar sentences. Accordingly, consistency accepts

       divergence within a range of sentences and takes into consideration a trial

       court’s discretion to weigh relevant statutory factors. The task of an
                                                                                          -11-


       appellate court is to examine the available data, not to determine if the trial

       court has imposed a sentence that is in lockstep with others, but to

       determine whether the sentence is so unusual as to be outside the

       mainstream of local judicial practice. Although offenses may be similar,

       distinguishing factors may justify dissimilar sentences.’ ”

Id. at ¶ 24, quoting State v. King, 5th Dist. Muskingum No. CT06-0020, 2006-Ohio-6566,

¶ 23, quoting State v. Ryan, 1st Dist. Hamilton No. C–020283, 2003-Ohio-1188, ¶ 10.

       {¶ 24} “Thus, a sentencing court is not required to make a comparison of the

current case to previous cases, but is required to appropriately apply the statutory

sentencing guidelines in order to maintain consistency.” Hites at ¶ 16, citing State v.

Saur, 10th Dist. Franklin No. 10AP-1195, 2011-Ohio-6662, ¶ 37.               (Other citation

omitted.)   “Therefore, an offender cannot simply present other cases in which an

individual convicted of the same offense received a lesser sentence to demonstrate that

his sentence is disproportionate.” Id., citing State v. Hayes, 10th Dist. Franklin No.

08AP-233, 2009-Ohio-1100, ¶ 10.            “Rather, a defendant claiming inconsistent

sentencing must show that the trial court failed to properly consider the statutory

sentencing factors and guidelines in R.C. 2929.11 and 2929.12.” Hayes at ¶ 10, citing

State v. Holloman, 10th Dist. Franklin No. 07AP-875, 2008-Ohio-2650, ¶ 19. Accord

State v. Richards, 3d Dist. Union No. 14-15-27, 2016-Ohio-1293, ¶ 7.

       {¶ 25} As a further matter, “ ‘[a] consistency-in-sentencing determination * * * is a

fact-intensive inquiry that does not lend itself to being initially reviewed at the appellate

level.’ ” State v. Adams, 2016-Ohio-7772, 84 N.E.3d, 155, ¶ 46 (4th Dist.), quoting State

v. Montanez–Roldon, 8th Dist. Cuyahoga No. 103509, 2016-Ohio-3062, ¶ 14. “[C]ourts
                                                                                           -12-


have long concluded, a ‘defendant must raise [the consistency-in-sentencing] issue

before the trial court and present some evidence, however minimal, in order to provide a

starting point for analysis and to preserve the issue for appeal.’ ” Montanez-Roldon at ¶

14, quoting State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 37. (Other

citations omitted.)

       {¶ 26} Here, there is nothing in the record indicating that the trial court did not

properly consider the statutory sentencing factors and guidelines in R.C. 2929.11 and

R.C. 2929.12.     Furthermore, Lane never raised the R.C. 2929.11(B) consistency-in-

sentencing issue before the trial court, and thus failed to preserve the issue for appeal.

Accordingly, Lane’s R.C. 2929.11(B) claim lacks arguable merit, as well as his claim that

his sentence is clearly and convincingly contrary to law.

       {¶ 27} As previously noted, “an appellate court may vacate or modify any sentence

that is not clearly and convincingly contrary to law only if the appellate court finds by clear

and convincing evidence that the record does not support the sentence.” Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 at ¶ 23. We do not, however, clearly

and convincingly find that the record does not support Lane’s eight-year prison sentence,

and further, any claim to the contrary lacks arguable merit. The record indicates that

Lane’s actions have caused great distress to his ex-wife and his eight-year-old daughters.

According to the presentence investigation report, Lane has a history of physically

abusing his ex-wife to the extent that she has suffered from Traumatic Brain Injury and

Post Traumatic Stress Disorder.        Lane also has a history of being physically and

emotionally abusive towards his daughters. Lane’s ex-wife indicated that she is currently

in the “Air Force version of Witness Protection” as a result of Lane’s conduct. She
                                                                                         -13-


claimed that she had to move to a new military base with her daughters and that she

cannot have any contact with her family that lives in another state. She also indicated

that she and her daughters are in regular therapy and that her daughters are having

trouble dealing with their father’s actions.   Lane’s ex-wife further indicated that she

continues to fear for her and her daughters’ safety, as she believes Lane will begin

“hunting [them] again” when he is released.

       {¶ 28} For the foregoing reasons, we find that both of Lane’s potential assignments

of error challenging his eight-year prison sentence lack arguable merit.

       {¶ 29} Under the potential assignment of error raised by Lane’s appellate counsel,

counsel suggests that the trial court may have erred in overruling Lane’s motion to dismiss

for a speedy-trial violation. A guilty plea, however, waives any challenge to the trial

court’s pretrial rulings, including a motion alleging a speedy-trial violation. See State v.

McQuirt, 2d Dist. Montgomery No. 26667, 2016-Ohio-1095, ¶ 14 (“a defendant’s guilty

plea precludes, among other claims, that (1) defendant’s statutory speedy trial rights were

violated”), citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph

one of the syllabus.

       {¶ 30} Here, Lane pled guilty to attempted kidnapping, menacing by stalking, and

violating a protection order. Because we find nothing in the record from which it could

be argued that Lane was precluded from knowingly, intelligently, and voluntarily entering

his guilty plea, Lane’s plea waived any challenge to the trial court’s ruling on his motion

alleging a speedy-trial violation. As a result, the potential assignment of error raised by

appellate counsel also lacks arguable merit.

       {¶ 31} In addition to considering the potential assignments of error raised by Lane
                                                                                     -14-

and his appellate counsel, we have performed our duty under Anders to conduct an

independent review of the record. Having conducted our independent review, we find

that there are no issues with arguable merit for Lane to advance on appeal. Accordingly,

we conclude that Lane’s appeal is wholly frivolous and affirm the judgment of the trial

court.

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



DONOVAN, J. and TUCKER, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
James M. Lane
Daniel E. Brinkman
Hon. Dennis J. Adkins
