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State v. Thomson

Court of Appeals of Ohio, Second District

September 20, 2013

STATE OF OHIO Plaintiff-Appellee
v.
JOSEPH THOMSON Defendant-Appellant

Criminal appeal from Common Pleas Court T.C. NO. 12CR480

LISA M. FANNIN, Atty. Reg. No. 0082337, Attorney for Plaintiff-Appellee

SEAN J. VALLONE, Atty. Reg. No. 0064053 Attorney for Defendant-Appellant

JOSEPH THOMSON, #667532, Defendant-Appellant

OPINION

DONOVAN, J.

(¶ 1} Appointed counsel for defendant-appellant Joseph Thomson submitted an appellate brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging there were no arguably meritorious issues that existed on appeal. After a thorough review of the record, this Court agrees with the lower court's findings, and we affirm the trial court's judgment. This matter is now before us for our independent review of the record. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

(¶ 2} On July 12, 2012, Thomson entered a plea of guilty to a Bill of Information charging him with Involuntary Manslaughter, a violation of R.C.2903.04(A), a felony of the first degree. The underlying felony is Failure to Comply with Order or Signal of Police Officer, in violation of R.C. 2921.331(B)(C)(5)(a)(i). The trial court conducted a thorough Crim. R. 11 dialogue with Thomson, and the transcript reflects that his plea was entered knowingly and voluntarily. On August 14, 2012, a sentencing hearing was held, and Thomson was sentenced to serve eleven years in prison.

(¶ 3} Thomson filed a timely notice of appeal with this Court on September 11, 2012. Thomson was informed that his counsel filed an Anders brief and of its significance. Thomson was also given the opportunity to file a pro se brief assigning any arguments for our review, but he has not filed a brief with this Court.

(¶ 4} Under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, a trial court has discretion to impose a felony sentence. In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Ohio Supreme Court provided appellate courts with a two-step analysis for reviewing felony sentencing. Under this test, an appellate court first considers whether the trial court followed all pertinent rules and statutes when imposing the sentence in order to find whether the sentence is contrary to law. Next, the reviewing court considers whether the trial court abused its discretion in selecting the sentence with reference to the general principles of felony sentencing and the seriousness and recidivism factors set forth in R.C.2929.11 and 2929.12.

(¶ 5} Pursuant to R.C. 2929.14(A)(1), Thomson's sentence was within the statutory range and thus not contrary to law. Furthermore, in determining Thomson's sentence, the trial court indicated that it considered the purposes and principles of felony sentencing under R.C. 2929.11, and also the seriousness and recidivism factors under R.C.2929.12, finding several that weighed in favor of imposing the maximum sentence. These factors included the death of an innocent 12-year-old child as a result of the offense, Thomson's past adult criminal convictions, and his lack of satisfactory rehabilitation after adjudications of delinquency. The only mitigating factor present was that Thomson showed remorse.

(¶ 6} Pursuant to our responsibilities under Anders to conduct an independent review of the entire record, we have concluded, as did appointed appellate counsel, that there are no arguably meritorious issues for appellate review. We conclude that the appeal is wholly ...


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