[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

v. TAHLEEF YASMEEN FITZGERALD Defendant-Appellant : : : : : : : : : : Appellate Case No. 2018-CA-45

Trial Court Case No. 2018-CR-87 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 17th day of April, 2020.

. . . . . . . . . . . KEVIN TALEBI, Atty. Reg. No. 0069198, Assistant Prosecuting Att orney, 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 si gnal of a police officer, a felony of the third degree; Count III, receiving stolen propert y (RSP), a felony of the fourth degree; Count IV, obstructing official business, a felony of th e 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 o f 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 comp etency evaluation. The evaluation was completed and, on August 8, 201 8, 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 accep ted 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 completio n of a NGRI evaluation. The trial court ordered an examination “to determine [Fitzgeral d’s] mental condition at the time of the offenses charged.” On September 27, 2018, the tria l court conducted a hearing regarding the NGRI examination. The court’s post-heari ng 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 ord er a second NGRI

evaluation.-3- {¶ 4} On October 26, 2018, Fitzgerald pled guilty to Count II (failur e to comply), Count III (receiving stolen property), Count IV (obstructing of ficial business), Count V (tampering with evidence), and Count VII (receiving stolen prop erty). 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, 201 8, 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 m onths. The trial court ordered that the sentences imposed for Counts III and V to be s erved consecutively to one another but concurrently to the sentences imposed for Count s 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 pr ison 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 p ursuant Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), statin g that she could not find any arguably meritorious appellate issues. Upon review, we con cluded that a complete

1 In relevant part, R.C. 2929.14(C)(3) provides that, “[i]f a pr ison term is imposed for * * * a felony violation of division (B) of section 2921.331 of the R evised 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.” Simil arly, R.C. 2921.331(D) provides that, “[i]f an offender is sentenced pursuant to divis ion (C)(4) or (5) of this section for a violation of division (B) of this section, and the offend er is sentenced to a prison term for that violation, the offender shall serve the prison term co nsecutively to any other prison term or mandatory prison term imposed upon the offender.” Ther efore, 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 f iled. Therefore, we rejected the Anders brief and appointed new counsel, with instructions to suppleme nt 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 rec ord with the August 8, 2018, and September 26, 2018, competency hearing transcripts, a s well as the competency and NGRI evaluations. The competency and NGRI evalu ations were filed on November 18, 2019, and the competency hearing transcripts we re filed on November 22, 2019. {¶ 6} On December 10, 2019, new-appointed counsel for Fitzgerald file d 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) w hether the trial court erred by imposing consecutive sentences in regard to Counts III (rece iving stolen property) and V (tampering with evidence). Though informed of his right to f ile 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 appe al 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 i s not frivolous based upon a conclusion that the State has a strong responsive argume nt. State v. Pullen , 2d-5- Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous i ssue, instead, is one about which, “on the facts and law involved, no responsible con tention can be made that

offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio3242, ¶ 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 p lea, a court must ‘[d]etermin[e] that the defendant is making the plea volun tarily, with understanding of the nature of the charges and of the maximum penalty involve d * * *.’ ” 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. “H owever, 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 de fendant who challenges his guilty plea on the basis that it was not knowing ly, 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. “P rejudice in this context means that the plea would otherwise not have been enter ed.” Id

. {¶ 12} Upon review of the plea transcript, we conclude that the record reveals no arguably meritorious issues regarding the trial court's complia nce with Crim.R. 11 in accepting Fitzgerald's guilty pleas. The record clearly establ ishes that prior to entering his plea, Fitzgerald was advised of the charge, the possible se ntence, 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 infor mation provided by the trial court in its Crim.R. 11 colloquy. Rather, Fitzgerald affirmati vely stated that he understood the rights he was waiving. Furthermore, the agreeme nt negotiated by the parties benefitted Fitzgerald insofar as the State agreed to di smiss Counts I, VI, and VIII in return for Fitzgerald’s pleading guilty to the remaining cou nts. Therefore, we conclude that the trial court did not violate Crim.R. 11(C)(2)(c) in acc epting Fitzgerald's plea, and that he entered his plea knowin gly, intelligently, and voluntar ily. {¶ 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 w hen reviewing felony sentences, as the Supreme Court of Ohio has ma de 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 lan guage 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 convincin g evidence that the record does not support the trial court's findings und er 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 it s findings, but rather, whether we clearly and convincingly find that the recor d 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 statuto ry range, and the court is not required to make any findings or give reas ons for imposing maximum or more than minimum sentences.” (Citation omi tted.)

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 overridi ng principles of felony sentencing. Those purposes are “to protect the publi c from future crime by the offender and others and to punish the offender using the minimu m sanctions that the court determines accomplish those purposes without imposing an unnece ssary burden on state or local government resources.” R.C. 2929.11(A). The court mus t “consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the vict im of the offense, the public, or both.” Id. R.C. 2929.11(B) further provides that “[a] sente nce imposed for a felony shall be reasonably calculated to achieve the two overriding pu rposes of felony sentencing * * *, commensurate with and not demeaning to the se riousness of the offender's conduct and its impact upon the victim, and consiste nt with sentences imposed

for similar crimes committe d by similar offenders.” {¶ 16} R.C. 2929.12(B) sets forth nine factors indicating that an offe nder's conduct is more serious than conduct normally constituting the offense. These factors include whether the physical or mental injury to the victim was exacerb ated because of the physical or mental condition of the victim; serious physical, p sychological, 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 offend er 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 offe nder's conduct is less serious than conduct normally constituting the offense, including whether the victim-9- induced or facilitated the offens e, 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 substantia l grounds to mitigate the offender's conduct, although the grounds are not enough to cons titute a defense. R.C. 2929.12(D) and (E) each lists five factors that trial courts ar e to consider regarding the offender's likelihood of committing future crimes. Finally, R. C. 2929.12(F) requires the sentencing court to c onsider the offender's military service re cord. {¶ 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-Ohio1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appell ate 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 impos ing sentence upon Fitzgerald: Trial Court: Court has reviewed the presentence investigation r eport, statements of Counsel, statements of the Defendant, and Court’s

interaction with the Defendant. Court has also reviewed the St ate sentencing memorandum with exhibits and the Defendant’s sentenc ing memorandum. With regard to pre-sentence investigation – and th e Court also reviewed the written victim impact statement. Regarding pre-sentence conduct, the Court finds that the Defen dant had previously served two terms of imprisonment. His ORAS scor e 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 offic ial business the Court believes that the State did a good job of differentia ting that the obstruction and the risk of physical harm to the officer occurr ed after the termination of the fleeing and eluding by motor vehicle. And i nstead occurred during the foot chase, which was part of the continuin g 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, likelihoo d 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 conc ludes that factors establishing conduct is more serious outweigh factors e stablishing

conduct is less serious. With regard to recidivism, I’ve included five factors as to mo re 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-abidin g life. But the Court also believes that this may be mitigated by the Defen dant’s use of 13 aliases. On the issue of genuine remorse, the Court find s that Defendant shows genuine remorse and that he desires mental heal th-11- treatment. Court concludes the factors establishing Defendant’ s recidivism is more likely [sic] outweigh factors establishing D efendant’s likelihood of recidivism is less likely. Court considered military service. Finds he has no military s ervice. 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 entr y of conviction contains all the findings made by the trial court orally at the sentencing h earing pursuant to R.C.

2929.11 and R.C. 2929.12. {¶ 20} The trial court imposed the maximum sentence (36 months) on Fit zgerald’s conviction for Count II, failure to comply with the order or si gnal of a police officer, a felony of the third degree. The sentence imposed by the trial court w as within the permissible statutory range for a felony of the third degree. The record e stablishes that the trial court reviewed the PSI, Fitzgerald's statements, and the statements o f counsel. The record further establishes that the trial court considered the princip les and purposes of sentencing under R.C. 2929.11, and that it balanced the serious ness and recidivism factors set forth in R.C. 2929.12. Here, the trial court orall y 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, w e 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 impo sed 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 con currently. 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) p ermits a trial court to impose consecutive sentences if it finds that (1) consecutive s entencing 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 c onduct 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 par t 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 tha t 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 incantat ion of the words of the statute” when imposing consecutive sentences, “provided that th e necessary findings can be found in the record and are incorporated in the sentencing e ntry.” Id . at ¶ 37; see also State v. Thomas , 8th Dist. Cuyahoga No. 102976, 2016-Ohio-1221, ¶ 16 (“the tri al court's failure to employ the exact wording of the statute does not mea n that the appropriate analysis is not otherwise reflected in the transcript or that t he necessary finding has not been satisfied”). {¶ 25} With respect to the imposition of consecutive sentences on Coun ts III and V, the trial court made the following findings at the sentencin g hearing: Trial Court: * * * And [on] Counts Three and Five the Court fi nds that consecutive sentencing is necessary to protect the public from future crime by the Defendant or to punish the Defendant. Consecutive sente nces are not disproportionate to the seriousness of the conduct and the danger the Defendant poses to the public. And the Court finds the Defenda nt’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 c ourses of conduct. And the harm caused by two or more of the multiple of fenses so committed was so great or unusual that no single prison term fo r any of the offenses committed as part of any of the courses of conduct ade quately

reflects the seriousness of the conduct or the Defendant’s cond uct. Sentencing Tr. 34. The trial court included its oral findings regarding the imposition of consecutive sentences for Counts III and V in the judgment entr y of conviction. {¶ 26} In Fitzgerald’s case, the trial court made the requisite findi ngs to support the imposition of consecutive sentences regarding Counts III an d V. Specifically, the trial court found that consecutive sentences were necessary to protec t the public from future crime and to punish Fitzgerald, and that they were not dispropo rtionate to the seriousness of Fitzgerald's conduct and to the danger he posed to the publi c. The trial court further found that the offenses were committed as part of a course of c onduct 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 sentencin g hearing, the trial court spent a great deal of time explaining its rationale for the sen tence 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 t he trial court’s proceedings and have found no error having arguable merit. Acc ordingly, the judgment

of the trial court is affirmed.

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

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

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