[Cite as State v. Davis, 2017-Ohio-7713.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104442

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

TIMOTHY DAVIS

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-13-580150-B and CR-14-584240-A 

BEFORE: Celebrezze, J., Keough, A.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: September 21, 2017 
ATTORNEYS FOR APPELLANT

John T. Forristal 

P.O. Box 16832 

Rocky River, Ohio 44116 

Harvey B. Bruner 

John D. Mizanin, Jr. 

Harvey B. Bruner & Co. 

700 W. St. Clair Avenue, Suite 110 

Cleveland, Ohio 44113 

Also Listed 

Timothy A. Davis 

Inmate No. 654-379 

Trumbull Correctional Institution 

P.O. Box 901 

5701 Burnett Road 

Leavittsburg, Ohio 44030 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Amy Venesile 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
FRANK D. CELEBREZZE, JR., J.: 

{¶1} Defendant-appellant Timothy Davis appeals from his sentence following 

guilty pleas. Appellate counsel has filed a motion to withdraw and a brief pursuant to 

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

conducting an independent review of Davis’s case, we affirm the trial court’s judgment 

and grant appointed counsel’s motion to withdraw. 

I. Procedural History 

{¶2} Davis was charged in two separate cases. In Cuyahoga C.P. No. 

CR-13-580150-B, Davis pled guilty to five counts of burglary, second-degree felonies in 

violation of R.C. 2911.12(A)(2). In Cuyahoga C.P. No. CR-14-584240-A, Davis pled 

guilty to one count of theft, a fourth-degree felony in violation of R.C. 2913.02(A)(1). 

The remaining counts in the two cases were nolled. 

{¶3} At the June 2014 sentencing hearing, the trial court imposed an aggregate 

15-year prison sentence on the five counts of burglary and a one-year prison sentence on 

the theft count. The trial court ordered the 15-year sentence and the one-year sentence 

to run consecutively. 

{¶4} On direct appeal, this court reversed Davis’s sentence, concluding that the 

trial court failed to make the statutory findings required by R.C. 2929.14(C)(4) during the 

sentencing hearing and failed to incorporate those findings into its sentencing journal 

entry. State v. Davis, 8th Dist. Cuyahoga Nos. 102130 and 102132, 2015-Ohio-1037, ¶ 

7 (“Davis I”). This court remanded the matter for resentencing. 
{¶5} The trial court held a resentencing hearing on July 9, 2015. The trial court 

imposed a one-year prison term on the theft count. Furthermore, the trial court decided 

to modify Davis’s sentence on the burglary counts based on his cooperation with law 

enforcement. The trial court imposed three-year prison sentences on three of the 

burglary counts and one-year prison sentences on the remaining two burglary counts. 

The trial court then advised Davis that his sentence on the burglary counts was 12 years. 

The trial court ordered Davis to serve the burglary counts consecutively to one another 

and consecutively to the one-year sentence on the theft count. The trial court stated that 

Davis’s total sentence in both cases was 12 years. 

{¶6} On appeal from resentencing, this court concluded that Davis’s sentence was 

contrary to law because the trial court failed to make the statutory findings under R.C. 

2929.14(C)(4) and incorporate those findings into its sentencing journal entry. State v. 

Davis, 8th Dist. Cuyahoga No. 103348, 2016-Ohio-1127, ¶ 13 (“Davis II”). 

Furthermore, this court determined that it was not clear what sentence the trial court 

actually imposed on the burglary counts. Id. at ¶ 16. As a result, this court remanded 

the matter to the trial court for resentencing to (1) specify the sentence on each of the 

burglary counts and (2) make the requisite R.C. 2929.14(C)(4) findings. Id. Finally, 

this court instructed the trial court on remand to correct the errors in its journal entries 

regarding the counts to which Davis pled guilty and the counts that were dismissed. Id. 

at ¶ 11. 

{¶7} The trial court held a resentencing hearing on April 6, 2016. The trial court 
imposed a three-year prison sentence on each of the five burglary counts. The trial court 

ordered the three-year sentences on four of the five burglary counts to run consecutively 

to one another; the court ordered the thee-year sentence on the fifth burglary count to run 

concurrently, for a total prison term of 12 years. Regarding the theft count, the trial 

court stated, “[y]ou pled guilty to grand theft, motor vehicle, Count 1, that’s a felony of 

the fourth degree. On that case I gave you one year. Counts 2 and 3 shall be dismissed 

and the Journal Entry shall so reflect it. So [Davis is] only being sentenced on Count 1 

in that case.” (Tr. 8.) The trial court ordered Davis to serve the sentence on the 

burglary counts consecutively to the sentence on the theft count, making the total prison 

term for both cases 13 years. 

{¶8} On May 5, 2016, Davis, pro se, filed a notice of appeal and motions for 

appointment of counsel and transcripts at the state’s expense. Davis retained counsel, 

and counsel filed a notice of appearance on June 20, 2016. Davis’s retained counsel 

filed an Anders brief and motions to withdraw on July 15, 2016 and September 13, 2016. 

Appointed counsel also filed a motion to withdraw as Davis’s attorney of record on 

August 24, 2016. 

{¶9} On November 15, 2016, this court granted retained counsel’s motion to 

withdraw but denied counsel’s request to dismiss the appeal because the transcript of the 

April 6, 2016 resentencing hearing was not made part of our record. This court 

appointed counsel to represent Davis and ordered a transcript of the resentencing hearing 

at the state’s expense. 
{¶10} Appointed counsel filed a motion to withdraw and an Anders brief on 

January 31, 2017. Therein, counsel indicated that he had thoroughly reviewed the record 

and determined that proceeding with the appeal would be frivolous. Counsel served 

Davis with a copy of the motion to withdraw and the Anders brief. 

II. Law and Analysis

{¶11} In Anders cases, we are charged with conducting an independent review of 

the record to determine 

whether any issues involving potentially reversible error that are raised by 

appellate counsel or by a defendant in his pro se brief are “wholly 

frivolous.” * * * If 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. 

(Citation omitted.) State v. Marbury, 2d Dist. Montgomery No. 19226, 

2003-Ohio-3242, ¶ 7. An appeal is frivolous if it “presents issues lacking in arguable 

merit. * * * An issue lacks arguable merit if, on the facts and law involved, no responsible 

contention can be made that it offers a basis for reversal.” (Citation omitted.) Id. at ¶ 

8. 

{¶12} In his Anders brief, appellate counsel identified one potential assignment of 

error regarding whether the trial court erred in imposing consecutive sentences and made 

the necessary findings required under R.C. 2929.14(C)(4). 

{¶13} On August 8, 2017, Davis filed a pro se brief in which he raised the 

following three assignments of error:

I. The journal entries in CR-14-584240-A are flawed in violation of 

appellant’s right to due process of law. 
II. The trial court erred in imposing consecutive sentences in 

CR-13-[580150-B] and CR-14-584240-A without making the necessary 

statutory findings on the record and in the journal entries, and without orally 

informing the appellant of the court’s calculations of sentence on each 

count. 

III. The trial court erred in failing to obey the court of appeals’s mandate 

upon remand. 

{¶14} We have examined and considered the potential argument identified by 

appointed counsel and the arguments raised in Davis’s pro se brief. Furthermore, we 

have conducted an independent review of the record from the resentencing, including the 

transcript from the April 6, 2016 resentencing hearing, to determine if any arguably 

meritorious issues exist. Anders, 386 U.S. at 744, 87 S.Ct.1396, 18 L.Ed.2d 493. We 

find no error nor any arguably meritorious issues regarding the sentence imposed by the 

trial court. 
A. Scope of Appeal

{¶15} As an initial matter, we must note that the pro se brief that Davis filed on 

August 8, 2017, is nearly identical to the appellate brief that counsel filed on Davis’s 

behalf in Davis II. However, “an appeal from a resentencing following a remand from a 

successful appeal is limited to those issues that arise from the resentencing.” State v. 

Romanko, 8th Dist. Cuyahoga No. 104158, 2017-Ohio-739, ¶ 14. The Ohio Supreme 

Court has made clear that “[t]he scope of an appeal from a new sentencing hearing is 

limited to issues that arise at the new sentencing hearing.” State v. Wilson, 129 Ohio 

St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 30, citing State v. Fischer, 128 Ohio St.3d 

92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 40. Accord State v. Hicks, 8th Dist. Cuyahoga 

No. 104676, 2016-Ohio-8062, ¶ 8. 

{¶16} The scope of this appeal is limited to issues that arise from the April 6, 

2016 resentencing hearing. The three assignments of error that Davis raises in his pro se 

appellate brief, however, pertain to either the July 9, 2015 resentencing hearing or journal 

entries that predate the April 6, 2016 resentencing hearing. Accordingly, we summarily 

overrule Davis’s three assignments of error because they are outside the scope of the 

present appeal, and therefore frivolous. 
B. Consecutive Sentences

{¶17} The only new argument that Davis appears to raise is that the trial court 

made a “factious” or “ficticous [sic]” finding and considered “friviously [sic] made 

accusations” during its consecutive sentencing analysis under R.C. 2929.14(C)(4). 

Davis does not, however, identify the specific finding or accusations to which he is 

referring. 

{¶18} This court reviews felony sentences under 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, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a 

reviewing court may overturn the imposition of consecutive sentences where the court 

“clearly and convincingly” finds that (1) “the record does not support the sentencing 

court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to 

law.” 

{¶19} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences, 

the trial court must find that consecutive sentences are (1) necessary to protect the public 

from future crime or to punish the offender, (2) that such sentences would not be 

disproportionate to the seriousness of the conduct and to the danger the offender poses to 

the public, and (3) that one 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 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 

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 

by the offender. 

{¶20} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the 

statutory findings at the sentencing hearing, which means that “‘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.’” State v. Bonnell, 140 Ohio 

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio 

St.3d 324, 326, 715 N.E.2d 131 (1999). Further, the reviewing court must be able to 

discern that the record contains evidence to support the findings. State v. Davis, 8th 

Dist. Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial court 

is not, however, required to state its reasons to support its findings, nor is it required to 

give a rote recitation of the statutory language, “provided that the necessary findings can 

be found in the record and are incorporated in the sentencing entry.” Bonnell at ¶ 37. 

{¶21} In the instant matter, the record reflects that the trial court made the requisite 

R.C. 2929.14(C)(4) findings in support of its imposition of consecutive sentences. In 

making the first finding, the trial court stated, “[s]o there’s 12 years on Count — in Case 

No. 580150 which will run consecutive to the sentence in 584240. The reason why I’m 

running these sentences consecutive is that it’s necessary to protect the public from future 

crime and to punish the offender.” (Tr. 8-9.) In making the second finding, the trial 
court stated, “[a]nd consecutive sentences are not disproportionate to the seriousness of 

the offender’s conduct and to the danger the offender poses to the public.” (Tr. 9.) 

{¶22} Regarding the third finding, the trial court found that R.C. 2929.14(C)(4)(a), 

(b), and (c) applied: 

[Davis] committed these multiple offenses while he was on Community 

Control Sanctions to the Cleveland Municipal Court. 

* * * 

Case No. 2013-CRB-032625, he was placed on Community Control 

Sanctions on — that was November 13th, 2013, he was placed on 

Community Control Sanctions. * * * 

These offenses in Case No. 580150, you have five separate victims. Many 

items of personal heirlooms were stolen and pawned and never returned to 

their owners. It was a pattern of behavior or conduct on your part that any 

single prison term would not adequately reflect the seriousness of your 

conduct. 

Additionally, your history of criminal conduct demonstrates that 

consecutive sentences are necessary. You have, from your presentence 

investigative report, a record dating back to — you have a juvenile record 

starting in 2001 dealing with thefts and breaking and enterings. You then 

graduated to adult court in 2003, picking up burglaries and — drug cases 

and burglaries starting in 2004. You’ve got one, two, three, four, five, six 

— six prior theft related cases, forgetting about the drugs and driving under 

suspension, obstruction of official business, falsification. So you’ve got a 

long history of criminal behavior. 

And I don’t believe that the length of the sentence is disproportionate to the 

serious nature of the crime. At the time of your original sentencing 

Detective Lentz came into court and described for the Court, and you were 

present, the harm that you caused to the various victims. There was war 

medals of [one victim] that were never recovered, there was jewelry from 

maternal grandmothers that was never recovered. These are things that are 

not replaceable. So you took their — and you invaded their home, the 

sanctity of their home. They don’t feel safe there anymore. And that was 

because of your behavior. So that is the reason why I’m imposing 
consecutive sentences. 

(Tr. 9-11.) 

 

{¶23} The trial court properly incorporated its findings into the sentencing journal 

entries as required. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at 

syllabus. The trial court’s sentencing journal entries provide, in relevant part, 

The court imposes prison terms consecutively finding that consecutive 

sentences are necessary to protect the public from future crime or to punish 

defendant; that the consecutive sentences are not disproportionate to the 

seriousness of defendant’s conduct and to the danger defendant poses to the 

public; and that, the defendant committed one or more of the multiple 

offenses while the defendant was awaiting trial or sentencing or was under 

a community control or was under post-release control for a prior offense 

and at least two of the multiple offenses were committed in this case as part 

of one or more courses of conduct, and the harm caused by said multiple 

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 defendant’s conduct and defendant’s history of 

criminal conduct demonstrates that consecutive sentences are necessary to 

protect the public from future crime by defendant. In case number 580150 

there were 5 separate victims and many items were taken along with war 

medals and personal heirloom jewelry. Defendant has a long history of 

criminal behavior. Defendant has a juvenile record for theft and breaking 

and entering and has an extensive adult criminal record dating back to 2003 

that includes 6 prior theft related offenses. Detective Lentz came into 

court and spoke on the record regarding the harm caused to the various 

victims and how the victims do not feel safe. 

{¶24} Based on the foregoing analysis, we conclude that the trial court made the 

appropriate consecutive sentence findings and engaged in the analysis required under 

R.C. 2929.14(C)(4). We cannot “clearly and convincingly” find that the record does not 

support the trial court’s findings. Furthermore, the trial court properly incorporated its 

findings into the sentencing journal entry as required. Bonnell at syllabus. 
Accordingly, the trial court did not err in imposing consecutive sentences. 

{¶25} For all of these reasons, we find that there are no arguable legal issues 

regarding Davis’s consecutive sentences, and a direct appeal on this matter would be 

wholly frivolous. 

III. Conclusion

{¶26} We have performed our duty under Anders to conduct an independent 

review of the record. We have thoroughly reviewed the record and have found no 

nonfrivolous issues for review. Accordingly, appellate counsel’s request to withdraw is 

granted. Davis’s sentence is affirmed. 

{¶27} Judgment affirmed. 

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

The court finds there were reasonable grounds for this appeal. 

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

pleas court to carry this judgment into execution. The defendant’s convictions having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

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

the Rules of Appellate Procedure. 

FRANK D. CELEBREZZE, JR., JUDGE 

KATHLEEN ANN KEOUGH, A.J., and 

PATRICIA ANN BLACKMON, J., CONCUR