[Cite as State v. Graham, 2014-Ohio-1891.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2013-07-066 

 

 : O P I N I O N

 - vs - 5/5/2014 

 : 

ANTHONY L. GRAHAM, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 07 CR 24552 

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, 

Lebanon, Ohio 45036, for plaintiff-appellee 

Neal W. Duiker, 130 East Mulberry Street, Lebanon, Ohio 45036, for defendant-appellant 

 HENDRICKSON, J. 

{¶ 1} Defendant-appellant, Anthony Graham, appeals the decision of the Warren 

County Court of Common Pleas denying his motion to modify or reduce his prison sentence. 

 For the reasons detailed below, we affirm the decision of the trial court. 

{¶ 2} On October 9, 2007, appellant and his accomplice, Winston Thomas, were 

stopped by law enforcement personnel for committing a lane violation while traveling 

northbound on I-71 in Turtlecreek Township. Thereafter, a canine unit was dispatched to the 
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scene, and alerted officers to the presence of marijuana in the vehicle. An inspection of the 

vehicle yielded multiple bundles of marijuana covered in tape and cellophane and hidden in 

various locations in the vehicle. 

{¶ 3} On October 15, 2007, appellant and Thomas were indicted as co-defendants 

for possession of marijuana in violation of R.C. 2925.11(A) and trafficking of marijuana in 

violation of R.C. 2925.03(A)(2). Prior to trial, appellant's co-defendant, Thomas, absconded 

from custody and remained missing for several years. 

{¶ 4} In the meantime, on July 11, 2008, appellant was tried and convicted on both 

counts for possession of marijuana and trafficking in marijuana, both second-degree felonies. 

The jury also made an additional finding that appellant was trafficking in marijuana in an 

amount that equaled or exceeded 20 thousand grams. The trial court then merged the two 

counts and the state elected to proceed on the trafficking charge. Based on the sentencing 

legislation in effect at the time, the trial court was required to sentence appellant to a 

mandatory maximum eight-year prison term. Accordingly, appellant was sentenced to an 

eight-year prison term and $7,500 fine, as well as a five-year driver's license suspension. 

This court affirmed appellant's convictions on direct appeal in State v. Graham, 12th Dist. 

Warren No. CA2008-07-095, 2009-Ohio-2814. 

{¶ 5} Following appellant's conviction and sentence, appellant's co-defendant, 

Thomas, was apprehended on federal drug charges and sentenced to 37 months in federal 

prison in the Mashannon Valley Correctional Center located in Pennsylvania. On June 7, 

2010, Ohio filed a detainer against Thomas and on April 18, 2012, Thomas was transported 

back to Warren County to face the drug charges pertinent to this appeal. Following a jury 

trial, Thomas was convicted of the same offenses as appellant, i.e., possession of marijuana 

and trafficking in marijuana. As in appellant's case, the jury also returned a finding that 

Thomas was trafficking in an amount that equaled or exceeded 20 thousand grams. The trial 
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court then merged the two counts and the state proceeded elected to proceed with the 

trafficking-in-marijuana conviction for sentencing. However, because of recent sentencing 

amendments in House Bill 86 (H.B. 86), the trial court had discretion to impose a mandatory 

prison term of five, six, seven, or eight years. The trial court sentenced Thomas to a six-year 

prison term. This court affirmed Thomas' direct appeal in State v. Thomas, 12th Dist. Warren 

No. CA2012-10-096, 2013-Ohio-3411. 

{¶ 6} On May 2, 2013 appellant filed a "motion for disparity of sentence pursuant to 

Crim.R. 47 and Crim.R. 57(A)(1)(2)," which the court construed as a "motion to modify or 

reduce sentence." On June 11, 2013, the trial court denied appellant's motion. Appellant 

now appeals the decision of the trial court raising two assignments of error for review 

{¶ 7} Assignment of Error No. 1: 

{¶ 8} THE APPELLATE COURT SHOULD EXERCISE ITS RIGHT UNDER O.R.C. 

§2953.08(G)(2) TO REDUCE OR OTHERWISE MODIFY APPELLANT'S SENTENCE AS A 

DISPARITY IN APPELLANT'S SENTENCE COMPARED TO HIS CO-DEFENDANT'S 

SENTENCE. 

{¶ 9} In his first assignment of error, appellant argues this court should modify his 

prison sentence because of the disparity between the eight-year mandatory maximum prison 

term he received and the six-year prison term Thomas received. Appellant's complaint 

centers on the fact that, at the time of appellant's conviction and sentence, the penalty for 

trafficking marijuana in excess of 20 thousand grams was a mandatory maximum eight-year 

prison term. However, because Thomas absconded and was not subsequently convicted 

and sentenced until after the passage of H.B. 86, the trial court was not required to sentence 

Thomas to an eight-year mandatory maximum prison term. Rather, Thomas received a 

shorter, six-year prison term. Therefore, appellant maintains that his sentence should be 

modified to more closely reflect the prison term imposed on Thomas. We find no merit to this 
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argument. 

{¶ 10} We review felony sentences pursuant to the standard of review set forth in R.C. 

2953.08(G)(2) to determine whether the imposition of those sentences is clearly and 

convincingly contrary to law. State v. Stamper, 12th Dist. Butler No. CA2012-08-166, 2013-

Ohio-5669, ¶ 9. A sentence is not clearly and convincingly contrary to law where the record 

supports the trial court's findings under R.C. 2929.14(C)(4) and where the trial court 

considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 

2929.12, properly applies postrelease control, and sentences appellant within the permissible 

statutory range. Id. 

{¶ 11} In the present case, appellant was convicted on two counts for possession of 

marijuana in violation of R.C. 2925.11(A) and trafficking in marijuana in violation of R.C. 

2925.03(A)(2), both second-degree felonies. The trial court then merged the two counts 

together and the state elected to proceed on the trafficking charge. Pursuant to the version 

of R.C. 2929.14 in effect at the time of appellant's sentencing, a second-degree felony was 

punishable by a prison term of two, three, four, five, six, seven, or eight years. Furthermore, 

because the jury made an additional finding that appellant was trafficking marijuana in an 

amount that equaled or exceeded 20 thousand grams, the trial court was also required to 

sentence appellant pursuant to former R.C. 2925.11(C)(3)(f), which provided: 

Except as otherwise provided in this division, if the amount of the 

drug involved equals or exceeds twenty thousand grams, 

trafficking in marihuana is a felony of the second degree, and the 

court shall impose as a mandatory prison term the maximum 

prison term prescribed for a felony of the second degree. 

Accordingly, the trial court's imposition of an eight-year prison term fell within the permissible 

statutory range. Moreover, because of the clear language contained in R.C. 

2925.11(C)(3)(f), the trial court was required to sentence appellant to an eight-year prison 

term. 
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{¶ 12} The record also reflects the trial court considered all relevant seriousness and 

recidivism factors set forth in R.C. 2929.11 and R.C. 2929.12. In the judgment entry of 

sentencing, the trial court expressly noted: 

The Court inquired if the Defendant had anything to say in 

mitigation regarding the sentence. The Court has considered the 

record, oral statements, any victim impact statement and 

presentence report prepared, as well as the principles and 

purposes of sentencing under R.C. §2929.11, and has balanced 

the seriousness and recidivism factors under R.C. §2929.12. 

The Court further finds the Defendant is not amenable to an 

available community control sanction and that prison is 

consistent with the purposes and principles of R.C. §2929.11. 

{¶ 13} On appeal, appellant focuses on the fact that his prison term is longer than the 

prison term imposed on Thomas to support his motion to modify or reduce sentence. 

Appellant complains he received a longer prison term than Thomas in spite of the fact that 

Thomas absconded from custody and evaded authorities after the charges were brought in 

Warren County. Therefore, appellant argues an inequality and disparity exists between his 

sentence and Thomas' sentence. As such, appellant argues that his sentence should be 

modified to be equal to or less than the sentence imposed on Thomas. 

{¶ 14} Appellant correctly notes that "a sentence imposed for a felony shall be * * * 

consistent with sentences imposed for similar crimes committed by similar offenders." R.C. 

2929.11(B). However, as this court has previously acknowledged, consistency in sentencing 

does not mean uniformity. State v. Micomonaco, 12th Dist. Butler No. CA2011-07-139, 

2012-Ohio-5239, ¶ 49; State v. Hall, 10th Dist. Franklin No. 10AP-302, 2009-Ohio-5712, ¶ 

10. "A consistent sentence is not derived from a case-by-case comparison, but from the trial 

court's proper application of the statutory sentencing guidelines." Micomonaco at ¶ 49. "In 

other words, a defendant claiming inconsistent sentencing must demonstrate that the trial 

court failed to properly consider the statutory sentencing factors and guidelines found in R.C. 
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2929.11 and 2929.12." State v. Lang, 12th Dist. No. CA2011-03-007, 2011-Ohio-5742, ¶ 25. 

{¶ 15} Based on our review of the evidence, we find no error in the trial court's denial 

of appellant's motion to modify or reduce his prison sentence. Although, appellant's codefendant, Thomas, received a shorter prison term than appellant, that fact alone does not 

require a finding that the trial court erred in its sentencing decision. See State v. Lee, 12th 

Dist. Butler No. CA2012-09-182, 2013-Ohio-3404, ¶ 13 (a sentence is not contrary to law 

because the trial court failed to impose a sentence that is the same as another offender who 

committed similar conduct); State v. Isreal, 12th Dist. Butler No. CA2010-07-170, 2011-Ohio1474, ¶ 73. In this case, the record reflects the trial court properly considered all relevant 

sentencing factors including, the purposes and principles of R.C. 2929.11, as well as the 

factors listed in R.C. 2929.12 and the trial court's sentence was clearly within the permissible 

statutory range for the offense. Because appellant was sentenced prior to the enactment of 

H.B. 86, the trial court was required to impose a mandatory maximum eight-year prison term. 

As such, appellant's sentence is not contrary to law and the trial court did not err in denying 

appellant's motion to modify or reduce his prison sentence. Therefore, appellant's first 

assignment of error is overruled. 

{¶ 16} Assignment of Error No. 2: 

{¶ 17} APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR 

TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL. 

{¶ 18} In his second assignment of error, appellant alleges he was denied effective 

assistance of counsel. For the first time on appeal, appellant essentially argues his trial 

counsel was ineffective for failing to seek a new trial after Thomas had been captured, in 

order for appellant to be retried jointly with Thomas. Appellant's argument is without merit. 

{¶ 19} "To establish a claim of ineffective assistance of counsel, a defendant must 

show that his or her counsel's actions were outside the wide range of professionally 
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competent assistance, and that prejudice resulted by reason of counsel's actions." State v. 

Ullman, 12th Dist. Warren No. CA2002-10-110, 2003-Ohio-4003, ¶ 43, citing Strickland v. 

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Accordingly, counsel's performance 

will not be deemed ineffective unless (1) his counsel's performance was deficient in that it fell 

below an objective standard of reasonableness, and (2) he was prejudiced by that deficient 

performance in that there is a reasonable probability that, but for his counsel's deficient 

performance, the outcome of his trial would have been different. State v. Russell, 12th Dist. 

Butler No. CA2012-08-156, 2013-Ohio-3079, ¶ 49, citing Strickland at 687. 

{¶ 20} We note appellant failed to raise the issue of ineffective assistance of counsel 

in his motion to modify or reduce sentence. In his motion, appellant quoted numerous cases 

involving the joinder of cases and stated the "intention[ ] of quoting the above case law in this 

action, is to show some of the many circumstances and different situations, that codefendants have had their cases merged together and tried together." Appellant further 

explained the "ending [sic] result of co-defendants having their cases merged together, 

usually ends in those co-defendants receiving the same punishment." At no point did 

appellant complain his counsel was ineffective for failing to seek a new trial following 

Thomas' arrest. "It is well-settled that issues not raised in the trial court may not be raised for 

the first time on appeal." State v. Abney, 12th Dist. Warren No. CA2004-02-018, 2005-Ohio146, ¶ 17, citing State v. Awan, 22 Ohio St.3d 120, 122 (1986); State v. Guzman-Martinez, 

12th Dist. Warren No. CA2010-06-059, 2011-Ohio-1310, ¶ 9. Therefore, because appellant 

did not specifically raise this issue with the trial court, this matter is waived and we need not 

consider it for the first time on appeal. 

{¶ 21} However, even if appellant's argument were properly raised, we would still 

reach the same conclusion. It is well-established,"'[a]ttorneys need not pursue every 

conceivable avenue; they are entitled to be selective.'" State v. Were, 118 Ohio St.3d 448, 
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2008-Ohio-2762, ¶ 222, quoting State v. Murphy, 91 Ohio St.3d 516, 542 (2001). 

Furthermore, "[c]ounsel is not deficient for failing to raise a meritless issue." State v. 

Massey, 10th Dist. Franklin No. 12AP-649, 2013-Ohio-1521, ¶ 13. 

{¶ 22} Based on our review of the record and the argument raised in appellant's brief, 

we fail to see any merit to appellant's assignment of error. As we have previously stated, 

"the petitioner bears the burden to submit evidentiary materials demonstrating the lack of 

competent counsel and that the defense was prejudiced by counsel's ineffectiveness." State 

v. Hackney, 12th Dist. Clermont No. CA96-08-071, 1997 WL 10916, *1 (Jan. 13, 1997). 

While appellant complains his counsel was ineffective for failing to request a retrial following 

Thomas' transfer to Warren County, appellant fails to present any evidence that: (1) his 

counsel was notified when Thomas was placed in custody and returned to Warren County, or 

(2) appellant notified counsel of his interest in seeking a new trial upon Thomas' return to 

Warren County. Indeed, appellant does not even indicate whether his trial counsel, appellate 

counsel, or some other counsel of record was ineffective for the alleged failure to request a 

retrial, nor has appellant presented any evidence that he was still represented by counsel at 

the time he alleges his counsel should have filed the motion for retrial. 

{¶ 23} Furthermore, the record in this case reflects that appellant failed to raise the 

issue of ineffective assistance of counsel until more than five years after his conviction and 

more than four years after the completion of his direct appeal.1

 Finally, while appellant 

 

1 We also note that if appellant had raised this issue properly, his motion would be considered a motion for 

postconviction relief. See State v. Reynolds, 79 Ohio St.3d 158 (1997), syllabus; State v. Rose, 12th Dist. Butler 

No. CA2012-03-050, 2012-Ohio-5957, ¶ 14. Pursuant to R.C. 2953.21(A)(2), a motion for postconviction relief 

"shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court 

of appeals in the direct appeal of the judgment of conviction," unless appellant meets the requirements for a 

delayed petition under R.C. 2953.23. In the present case, appellant was convicted of possession of marijuana 

and trafficking marijuana on July 11, 2008, sentenced on July 14, 2008, and the record was completed on 

November 5, 2008. However, appellant did not file his "motion for disparity of sentence pursuant to Crim.R. 47 

and Crim.R. 57(A)(1)(2)," until May 2, 2013. Thus, appellant's motion was clearly filed beyond the 180-day time 

limitation set forth in R.C. 2953.21. Furthermore, appellant has made no attempt to argue, much less establish, 

that any exception for a delayed petition under R.C. 2953.23 applied in the present case. State v. Banks, 10th 

Dist. Franklin No. 12AP-96, 2012-Ohio-3770, ¶ 10; State v. Czaplicki, 2d Dist. Montgomery No. 16589,1998 WL 
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argues that Thomas' presence in a retrial would exculpate him of any wrongdoing, appellant 

fails to offer any more than conclusory, self-serving allegations in support of his theory. 

Hackney at *1 ("[a]lthough appellant's affidavit makes several self-serving claims, he provides 

no evidence in support of his claims of ineffective assistance of counsel"). Therefore, we fail 

to see how appellant's counsel was deficient or that appellant was in any way prejudiced by 

his counsel's actions. Accordingly, appellant's second assignment of error is overruled. 

{¶ 24} Judgment affirmed. 

RINGLAND, P.J., and S. POWELL, J., concur. 

 

272034 (May 29, 1998) ("the 'facts' contemplated by this provision are the historical facts of the case, which 

occurred up to and including the time of conviction").