[Cite as State v. Thomas, 2015-Ohio-3797.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

MICHAEL THOMAS 

Defendant-Appellant 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

Appellate Case No. 2014-CA-142 

Trial Court Case No. 14-CR-473 

(Criminal Appeal from 

 Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 18th day of September, 2015. 

. . . . . . . . . . . 

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 40 

East Columbia Street, 4th Floor, Springfield, Ohio 45502 

 Attorney for Plaintiff-Appellee 

 

JOSHUA M. KIN, Atty. Reg. No. 0086965, 2700 Kettering Tower, Dayton, Ohio 45423 

 Attorney for Defendant-Appellant 

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

 

FAIN, J. 

{¶ 1} Defendant-appellant Michael Thomas appeals from his convictions and 

sentences, following guilty pleas, for Having a Weapon While Under a Disability, in 
-2-

violation of R.C. 2923.13(A)(1), and Failure to Comply, in violation of R.C. 

2921.331(C)(5). His appellate counsel has 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 that he could 

not find any potential assignments of error having arguable merit. Neither can we. 

Accordingly, the judgment of the trial court is Affirmed. 

I. The Course of Proceedings 

{¶ 2} Thomas was charged by indictment with two counts of Failure to Comply, on 

separate dates, in violation of R.C. 2921.331(B) and 2921.331(C)(5), felonies of the third 

degree, one count of Having a Weapon While Under a Disability, in violation of R.C. 

2923.13(A)(1), a felony of the third degree, one count of Carrying a Concealed Weapon, 

in violation of R.C. 2923.12(A)(2), a misdemeanor of the first degree, and one count of 

Tampering with Evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree. 

{¶ 3} Thomas pled guilty to one count of Failure to Comply, and to the count of 

Having a Weapon While Under a Disability; the other charges were dismissed. In a 

separate case, 14-CR-0400, which is not the subject of this appeal, but which is the 

subject of another appeal, Thomas pled guilty to one count of Possession of Heroin. 

{¶ 4} The trial court ordered a pre-sentence investigation. In a single sentencing 

hearing, Thomas was sentenced both in this case, 14-CR-0473, and in the other case, 

14-CR-0400. In this case, Thomas was sentenced to imprisonment for three years for 

the weapons offense, and to two years for the Failure to Comply offense. In the other 

case, Thomas was sentenced to six years for Possession of Heroin. The trial court 

made the findings required by statute for consecutive sentences, and ordered all three 
-3-

sentences to be served consecutively, for a total of eleven years in prison.1 

{¶ 5} In this appeal, Thomas appeals from his conviction and sentence in trial court 

case no. 14-CR-0473. Thomas’s appellate counsel has filed an Anders brief, reflecting 

counsel’s inability to find any potential assignments of error having arguable merit. By 

entry dated June 5, 2015, we afforded Thomas the ability to file his own, pro se brief. He 

has not done so. 

II. We Find No Potential Assignments of Error Having Arguable Merit 

{¶ 6} Appellate counsel has identified two potential assignments of error that he 

considered, before concluding that they had no arguable merit. The first of these was 

that the trial court failed to comply with Crim.R. 11 in taking Thomas’s plea. Upon review 

of the plea transcript, we agree that this potential assignment of error has no arguable 

merit. Although the trial court took the pleas of four defendants, including Thomas, in 

what appear to have been unelated cases, in one proceeding, the trial court gave 

individual attention to each defendant, making sure that each defendant understood the 

nature of the charges against him or her, the possible penalties, and the effects of the 

plea, including the rights that would thereby be waived. We conclude that no reasonable 

argument can be made that the plea colloquy was defective. 

{¶ 7} The second issue that appellate counsel considered was “[w]hether the trial 

court’s felony sentence was clearly and convincingly contrary to law.” The trial court 

made the findings required by statute for consecutive sentences. In reviewing 

consecutive-sentence findings, under R.C. 2953.08(G)(2), we must find that those 

 

1

 The trial court was required to impose the Failure to Comply sentence consecutively to 

the weapons sentence, by virtue of R.C. 2921.331(D). 
-4-

findings are clearly and convincingly not supported by the record before we may reverse. 

State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 30-31 (2d Dist.). 

{¶ 8} R.C. 2929.14(C)(4) prescribes the findings generally required 2 for 

consecutive sentences: 

If multiple prison terms are imposed on an offender for convictions of 

multiple offenses, the court may require the offender to serve the prison 

terms consecutively if the court finds that the consecutive service is 

necessary to protect the public from future crime or to punish the offender 

and 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 if the court also finds any of the following: 

(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 part 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. 

(c)The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime 

 

2

 Again, R.C. 2921.331(D) specifically required that the Failure to Comply sentence be 

imposed consecutively to the sentence for Having a Weapon While Under a Disability. 
-5-

by the offender. 

{¶ 9} The trial court made the necessary findings: 

The Court finds prison terms require consecutive sentence because 

it is necessary to protect the public from future crime and to punish the 

offender and that consecutive sentences are not disproportionate to the 

seriousness of the offender’s conduct and the danger that he poses to the 

public. 

The Court also finds the Defendant committed one or more multiple 

offenses while awaiting trial and was under post-release control for a prior 

offense. Further, the Defendant’s history of criminal conduct demonstrates 

consecutive sentences are necessary to protect the public from future crime 

by the Defendant. 

{¶ 10} In its analysis, the trial court made the following specific findings and 

observations: 

In reviewing the facts of this case and applying the factors under 

2929.12, in order to meet the sentencing guidelines of the Revised Code, 

which is to punish the offender and protect the community, the Court has 

found under 2929.12(B), which was the possession of heroin, significant 

amount to amount to a felony of the second degree by the very nature of the 

offense, I find that it was an offense for hire or part of an organized criminal 

activity. I find no factors that would make the offense set forth in either 

case less serious. 

Under 2929.12(D), the Court finds the Defendant committed the 
-6-

offenses under Case 14-CR-0473, there was a bond while awaiting trial for 

the 14-CR-0400 case. 

As to both of these cases, the Court finds the Defendant was under 

post-release control when he committed the offenses. I don’t know if there 

was official termination, a favorable termination of his post-release control 

when he went back to prison the second time; but he was on post-release 

control when that offense occurred. He has been previously adjudicated 

delinquent. He was not rehabilitated to a satisfactory degree after being 

previously adjudicated delinquent. He has a history of criminal convictions 

and has not responded favorably to sanctions previously imposed for those 

convictions. 

As far as substance abuse problems, as indicated, the Parole 

Authority tried to get him into McKinley Hall; but he committed another 

criminal offense before he could take advantage of that program. 

He does self report that he took some substance abuse and anger 

management programs while incarcerated in the state penitentiary. 

As indicated, he has not responded favorably to sanctions previously 

imposed with the criminal convictions; and having read the Defendant’s 

version of the facts in these cases, I find no genuine remorse for either 

case. There’s no military record to consider. The Defendant did score 

high on the Ohio Risk Assessment Survey. 

The Court makes a note of the very nature of the offense of having a 

weapon while under a disability would require the Defendant to have a 
-7-

firearm on or about his person or under his control when committing the 

offense and, in fact, he had that weapon on or about his person or under his 

control while committing the offense in 14-CR-0473, which was the failure to 

comply as well. As indicated, he has served a prior prison term. He’s 

been to prison twice before. 

As to Case 14-CR-0400, the term of incarceration in the State 

penitentiary is mandatory. As to all of these cases, the Court finds that a 

prison term is necessary in order to comply with the purposes and principles 

of the sentencing statute under 2929.11. 

{¶ 11} We have reviewed the record, including the pre-sentence investigation 

report, and there is evidence in the record to support the trial court’s findings. We agree 

with Thomas’s appellate counsel that no reasonable argument can be made that the trial 

court erred in imposing sentence in this case. Given the “extremely deferential” standard 

of review described in Rodeffer, no reasonable argument can be made that the record 

clearly and convincingly does not support the trial court’s consecutive-sentence findings 

{¶ 12} After independently reviewing the record, as required by Anders, we find no 

potential assignments of error having arguable merit. 

III. Conclusion 

{¶ 13} No potential assignments of error with arguable merit having been found, 

the judgment of the trial court is Affirmed. 

. . . . . . . . . . . . . 
-8-

HALL and WELBAUM, JJ., concur. 

Copies mailed to: 

Ryan A. Saunders 

Joshua M. Kin 

Michael Thomas 

Hon. Richard J. O’Neill