[Cite as State v. Kimmie, 2014-Ohio-2653.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100750 

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs.

TYSHAWN KIMMIE

 DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-12-560898-B 

BEFORE: Jones, P.J., S. Gallagher, J., and Rocco, J. 

 

RELEASED AND JOURNALIZED: June 19, 2014 
ATTORNEY FOR APPELLANT 

R. Brian Moriarty 

1370 Ontario Street 

Suite 2000 

Cleveland, Ohio 44113

FOR APPELLANT 

Tyshawn Kimmie, pro se 

Inmate No. A632995 

Mansfield Corectional Institution 

1150 N. Main Street 

Mansfield, Ohio 44903

ATTORNEY FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
LARRY A. JONES, SR., P.J.: 

{¶1} Defendant-appellant Tyshawn Kimmie appeals from the trial court’s 

November 2013 sentencing judgment entry. We affirm. 

{¶2} In 2012, Kimmie was charged with several crimes stemming from his 

involvement in a shoot-out with rival gang members after a back-to-school party. A 

15-year-old girl died and two other youths sustained serious injuries as a result of the 

shoot-out. The victims were innocent bystanders. 

{¶3} The case proceeded to a jury trial; the jury found him guilty of murder, 

reckless homicide, and two counts of felonious assault, along with firearm specifications. 

 The trial court sentenced him to 24 years to life, which included consecutive sentences. 

{¶4} Kimmie appealed, and this court upheld the convictions, but reversed the 

sentence for noncompliance with the statutory mandates for consecutive sentences; the 

case was remanded for resentencing, limited to a review of whether the record supported 

the imposition of consecutive sentences, and if so, making the required findings. State 

v. Kimmie, 8th Dist. Cuyahoga No. 99236, 2013-Ohio-4034. 

{¶5} In November 2013, the trial court resentenced Kimmie to 24 years to life that 

again included consecutive sentences. Kimmie was appointed counsel, who filed a 

notice of appeal. Appellate counsel has filed a motion to withdraw and brief pursuant to 

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), indicating 

that, after a thorough review of the record, proceeding with the appeal would be frivolous. 

 Counsel served Kimmie with a copy of the motion to withdraw and Anders brief. This 
court granted Kimmie until May 19, 2014, to file a pro se brief; he has not filed a brief. 

{¶6} In Anders, the United States Supreme Court held if, after a conscientious 

examination of the record, a defendant’s counsel concludes the case is wholly frivolous, 

then he should so advise the court and request permission to withdraw. Id. at 744. 

Counsel must accompany his request with a brief identifying anything in the record that 

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client 

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time 

to raise any matters that the client chooses. Id. 

{¶7} Once the defendant’s counsel satisfies these requirements, this court must 

fully examine the proceedings below to determine if any arguably meritorious issues 

exist. If we also determine that the appeal is wholly frivolous, we may grant counsel’s 

request to withdraw and dismiss the appeal without violating constitutional requirements, 

or may proceed to a decision on the merits if state law so requires. Id. 

{¶8} Appellate counsel has complied with the Anders requirements. We proceed 

with an independent review of the only issue that could be presented in this appeal: the 

imposition of consecutive sentences. 

{¶9} In imposing consecutive sentences, R.C. 2929.14(C)(4) requires that the trial 

court must find that the sentence is “necessary to protect the public from future crime or 

to punish the offender,” that consecutive sentences are “not disproportionate to the 

seriousness of the offender’s conduct and to the danger the offender poses to the public,” 

and the existence of one of the three statutory factors set forth in R.C. 
2929.14(C)(4)(a)-(c), which are as follows: 

(a) the offender committed one or more of the multiple offenses while 

awaiting trial or sentencing, while under a sanction imposed pursuant to 

R.C. 2929.16, 2929.17, or 2929.18, or while under postrelease control for a 

prior offense; (b) at least two of the multiple offenses were committed as 

part of one or more courses of conduct, and the harm caused by two or more 

of the offenses 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; or (c) the offender’s 

history of criminal conduct demonstrates that consecutive sentences are 

necessary to protect the public from future crime by the offender. 

{¶10} At the resentencing hearing, the trial court stated the following in sentencing 

Kimmie to consecutive terms: 

[W]e have three young people either killed or severely injured and the fact 

is that they were innocent bystanders in a crowd. 

Certainly they had no stake in this affair. There was nothing at all that 

could be pointed to them in terms of any kind of blame or anything of that 

nature. In that regard, this is a particularly egregious offense, and it does 

require in the Court’s view consecutive sentences in order to punish the 

offender for that conduct. 

The Court also finds that consecutive sentences in this case would not be 

disproportionate to the seriousness of the offender’s conduct and the danger 

that the offender [poses] to the public. The Court also finds that at least 

two of these multiple offenses were committed as part of one or more 

courses of conduct. 

Obviously it was a shooting spree on a city street. The harm caused by 

two or more of the multiple offenses was so great or unusual that no single 

prison term for any of the courses of conduct adequately reflect the 

seriousness of the offender’s conduct. 

{¶11} On this record, the trial court completely complied with making the findings 

under R.C. 2929.14(C) in sentencing Kimmie to consecutive terms. Because the 

imposition of consecutive sentences was the only possible issue for review in this appeal, 
we find the appeal to be frivolous under Anders. We therefore grant counsel’s request to 

withdraw and affirm the trial court’s judgment. 

 It is ordered that appellee recover from appellant costs herein taxed. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

LARRY A. JONES, SR., PRESIDING JUDGE 

SEAN C. GALLAGHER, J., and 

KENNETH A. ROCCO, J., CONCUR