State v. Tillis , 2023 Ohio 673 ( 2023 )

[Cite as State v. Tillis, 2023-Ohio-673.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2022-T-0072
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
CAMERON D. TILLIS,
Trial Court No. 2021 CR 01103
Defendant-Appellant.
OPINION
Decided: March 6, 2023
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Dennis Day Lager, 1025 Chapel Ridge, N.E., Canton, OH 44740 (For Defendant-
Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Cameron D. Tillis, appeals from his convictions and
sentence for Having Weapons While Under Disability and Possession of Cocaine in the
Trumbull County Court of Common Pleas. For the following reasons, we affirm the
judgment of the lower court.
{¶2} On March 15, 2022, the Trumbull County Grand Jury indicted Tillis for
Having Weapons While Under Disability, a felony of the third degree, in violation of R.C.
2923.13(A)(3), and Possession of Cocaine, a felony of the third degree, in violation of
R.C. 2925.11(A) and (C)(4)(c), with a forfeiture specification.
{¶3} On May 19, 2022, Tillis entered a plea of guilty to the foregoing charges.
Pursuant to the written plea agreement, Tillis waived a presentence investigation and the
State and Tillis agreed to a jointly recommended sentence of 18 months on each count,
to run concurrently. At the plea hearing, the court advised Tillis, inter alia, of the rights he
waived by entering a plea. This included the following advisement: “First and foremost,
you have a right to a trial by a jury of your peers, which means 12 people from Trumbull
County would have to sit in that jury box over there and listen to all of the evidence that
the State would present against you at trial and those 12 citizens would have to
unanimously agree that you’re guilty of both crimes. By changing your pleas today, you
are going to be waiving your right to a trial by jury.” At the conclusion of the plea hearing,
the court recognized that Tillis indicated he was willing to waive a presentence
investigation and proceed directly to sentencing. Defense counsel stated that Tillis
wished to be sentenced on the present matter but wanted to remain in Trumbull County
pending a subsequent Aggravated Murder trial in Trumbull County Court of Common
Pleas Case No. 2021 CR 026. It was agreed that sentencing would be scheduled for a
date subsequent to the resolution of the Murder case.
{¶4} The sentencing hearing was held on June 30, 2022. The prosecutor
indicated that the parties had agreed to an 18-month sentence and did not “contemplate
concurrent or consecutive” to the “Murder sentence.” Defense counsel indicated that Tillis
entered a plea in Case No. 2021 CR 026 and received a prison sentence of 25 years.
Counsel requested the court order the 18-month agreed sentence for the present matter
and “consider that concurrent to the other case.” The court ordered Tillis to serve a term
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of 36 months in prison for Having Weapons While Under Disability and a consecutive
sentence of 18 months for Possession of Cocaine, for an aggregate sentence of 54
months. The court further ordered that this sentence be served consecutively with the
term in Case No. 2021 CR 026.
{¶5} Tillis timely appeals and raises the following assignments of error:
{¶6} “[1.] The trial court committed prejudicial and reversible error by failing
during [the] plea colloquy with defendant to properly advise him of the jury trial right he
would be waiving and giving up by entering a plea of guilty to charges indicted against
him, all as required and mandated by Ohio Crim.R. 11(C).
{¶7} “[2.] The trial court committed prejudicial and reversible error by fashioning
and ordering a sentence that was invalid, contrary to law and not supported by the record.
{¶8} “[3.] The trial court committed prejudicial and reversible error by committing
cumulative errors at the plea and sentencing stage of proceedings, which thereby denied
defendant-appellant due process of law.”
{¶9} In his first assignment of error, Tillis argues that the trial court provided a
definition and explanation of a jury trial that was “fundamentally wrong, misrepresentative
and mis-informative” and thereby failed to comply with Crim.R. 11.
{¶10} “This court reviews de novo whether the trial court accepted a plea in
compliance with Crim.R. 11.” State v. Willard, 2021-Ohio-2552, 175 N.E.3d 989, ¶ 51
(11th Dist.).
{¶11} In a felony case, “the court * * * shall not accept a plea of guilty * * * without
first addressing the defendant personally” and complying with the requirements to
determine the voluntary nature of the plea and that the defendant understands the
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charges and maximum penalty; informing the defendant of the effect of his plea and that
the court may proceed to judgment and sentencing; and advising the defendant of rights
waived by entering the plea. Crim.R. 11(C)(2)(a)-(c). These include “the rights to jury
trial, to confront witnesses against him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt
beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify
against himself or herself.” Crim.R. 11(C)(2)(c). A trial court must “strictly comply with
Crim.R. 11(C)(2)(c) and orally advise a defendant” of the constitutional rights contained
therein or his plea is rendered invalid. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-
5200, 897 N.E.2d 621, ¶ 31.
{¶12} While strict compliance is required, such compliance is “not literal.” State
v. McDaniel, 11th Dist. Portage No. 2017-P-0098, 2020-Ohio-7003, ¶ 12, citing Veney at
¶ 29. “Failure to use the exact language contained in Crim.R. 11(C), in informing a
criminal defendant of his constitutional right to a trial and the constitutional rights related
to such trial, including the right to trial by jury, is not grounds for vacating a plea as long
as the record shows that the trial court explained these rights in a manner reasonably
intelligible to that defendant.” State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981),
paragraph two of the syllabus; State v. Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151
N.E.3d 617, ¶ 17 (“[w]e have never mandated that a trial court use particular words in
order to comply with Crim.R. 11(C)(2)(c)”).
{¶13} Here, Tillis contends that the court, when advising him of the right to a jury
trial, gave a description that was a “Cliffs Notes version” and was inaccurate. There is no
requirement that a court give an extensive explanation of the right to a jury trial. It is
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sufficient that the defendant is apprised of the rights being waived. The court advised
Tillis specifically that he had the “right to a trial by a jury of your peers,” which conveys
the required right to a jury trial. Further, we fail to see how the explanation given by the
court was “fundamentally wrong” or “mis-informative,” as Tillis claims. The court indicated
that the right to a trial by jury means “12 people from Trumbull County would have to sit
in that jury box over there and listen to all of the evidence that the State would present
against you at trial and those 12 citizens would have to unanimously agree that you’re
guilty of both crimes.” It is accurate that a jury consists of twelve members who listen to
the evidence presented by the State and must reach a unanimous verdict. We hold that
this explained the right “in a manner reasonably intelligible” to Tillis. Tillis cites no
authority supporting a conclusion to the contrary.
{¶14} We agree with Tillis that, “[i]f a trial judge chooses to offer an expanded
explanation of the law in a Crim.R. 11 plea colloquy, the information conveyed must be
accurate.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 39
(“[t]he fact that the trial court provided some correct information as well does not alter this
conclusion, because the [correct] information was not provided in such a manner as to
remedy the erroneous information”). However, we find the information conveyed was
accurate, as discussed above. Tillis argues that the right to a jury trial was not reasonably
intelligible to him because the court’s expanded explanation conveyed the idea that only
the State would be able to present evidence, rendering a trial fruitless. The fact that the
court specified that it hears evidence from the State was merely an indication that the
State is required to prove the charges. It is not a reasonable interpretation to infer that
the advisement meant such trial would not be fair, particularly since the description of the
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right to a jury trial was also followed by accurate advisements that the State had to prove
the charges beyond a reasonable doubt, that Tillis’ counsel could cross-examine
witnesses, and that Tillis could subpoena witnesses and evidence.
{¶15} The first assignment of error is without merit.
{¶16} In his second assignment of error, Tillis raises arguments relating to the trial
court’s order of consecutive sentences.
{¶17} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing * * * if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court’s findings
under division * * * (C)(4) of section 2929.14 [or] * * * [t]hat the sentence is otherwise
contrary to law.” Id.{¶18} First, Tillis argues that the court’s order that he serve his sentence
consecutive with that ordered in Trumbull County Case No. 2021-CR-00026 was made
in error since, although the sentence in Case No. 2021-CR-00026 was ordered at a June
21 sentencing hearing, it was not journalized in an entry until July 22, 2021, after the
sentencing in the present matter. He contends that since a court speaks through its
judgment entries and the sentence in Case No. 2021-CR-00026 was not entered in a
written judgment until after the sentence in the present matter, the consecutive sentence
was an improper sentence “in futuro” which is prohibited under the law.
{¶19} We initially note that the State argues the judgment entry presented by Tillis
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to demonstrate the date of the sentencing in Case No. 2021-CR-00026 was not part of
the record before the lower court, a fact which is necessarily true since Tillis’ argument is
centered around the fact that the entry was issued after the date of sentencing in this
matter. Assuming, arguendo, that the entry in Case No. 2021-CR-00026 was entered
after the sentencing entry in this case, as the State concedes is the case, we find Tillis’
argument to lack merit.
{¶20} “[T]he grant of discretion to a trial court concerning the imposition of a
consecutive sentence is based upon the premise that the other sentence is either one
being imposed by the trial court at that time or is a sentence previously imposed, even if
by another court, and is not a sentence in futuro.” State v. White, 18 Ohio St.3d 340, 342,
481 N.E.2d 596 (1985). “When a trial court imposes a sentence and orders it to be served
consecutively with any future sentence to be imposed, it appears that such a sentence
interferes with the discretion granted the second trial judge to fashion an appropriate
sentence or sentences pursuant to the provisions of the Revised Code.” Id. at 342-343.
(finding that “the Delaware County court has exceeded the authority granted it by the
General Assembly by ordering its sentence to run consecutively with a sentence that had
not yet been imposed by the Clermont County court”).
{¶21} Tillis argues that the foregoing law applies because although a verbal
pronouncement of sentence in Case No. 2021-CR-00026 was made prior to sentencing
in the present matter, failure to place it in an entry means the sentence was not yet
imposed. In support, he cites State ex rel. White v. Junkin, 80 Ohio St.3d 335, 686 N.E.2d
267 (1997), for the proposition that “[a] court of record speaks only through its journal and
not by oral pronouncement or mere written minute or memorandum.” (Citations omitted.)
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Id. at 337; Crim.R. 32(C) (“[a] judgment is effective only when entered on the journal by
the clerk”).
{¶22} It has been recognized, in circumstances relating to motions to withdraw a
plea, that “[a]lthough it is true that courts generally speak only through their journal entries,
* * * the terms ‘imposition of sentence’ and ‘sentence is imposed’ in the pertinent Rules
of Criminal Procedure have a different meaning than journalization of the sentence.”
(Citation omitted.) State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601,
¶ 28. Imposition of sentence is the act of the court’s deciding and stating the sentence
which the defendant will serve. In contrast, journalizing a sentence is the act necessary
for the purposes of creating a final, appealable order. State v. Bryant, 168 Ohio St.3d
250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 23; Crim.R. 32(C) (a judgment becomes effective
when it is entered on the journal).
{¶23} Such an interpretation is logical in the present circumstances as well. The
Supreme Court found that a sentence could not be ordered before a sentence in another
case had been “imposed,” not placed in a judgment entry or journalized. The imposition
of the sentence at the time of the sentencing hearing evidenced the court’s intention to
give such a sentence. More importantly, in these circumstances, where both parties
concede the same judge sentenced Tillis in both matters, the court did not “interfere[] with
the discretion granted the second trial judge to fashion an appropriate sentence,” which
was the rationale behind the Supreme Court’s holding that a court could not order a
sentence to be served consecutively with a future sentence. White, 18 Ohio St.3d at 342-
343, 481 N.E.2d 596.
{¶24} Next, Tillis argues that the court’s consecutive sentencing findings were not
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supported by the record. Specifically, he contends that the court did not give reasons for
its findings and that its finding that Tillis was “on some type of community control” is
unsupported by the record, observing that no PSI was conducted which would
demonstrate whether he was actually on community control.
{¶25} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses
may be ordered to be served consecutively if the court finds it 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 finds any of the R.C. 2929.14(C)(4)(a)-(c) factors are
present. These factors are:
(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 by the offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶26} To reverse the consecutive sentencing findings, this court must clearly and
convincingly find they are unsupported by the record. R.C. 2953.08(G)(2). “‘[T]he clear
and convincing standard used by R.C. 2953.08(G)(2) is written in the negative. It does
not say that the trial judge must have clear and convincing evidence to support its findings.
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Instead, it is the court of appeals that must clearly and convincingly find that the record
does not support the court’s findings.’” (Citation omitted.) State v. Guth, 11th Dist.
Portage No. 2015-P-0083, 2016-Ohio-8221, ¶ 23; State v. Forsell, 11th Dist. Portage Nos.
2019-P-0116, et al., 2020-Ohio-5381, ¶ 15. This standard has been characterized as
“extremely deferential.” Forsell at ¶ 15. There must be an “evidentiary basis” that is
“adequate to fully support the trial court’s consecutive-sentence findings.” State v.
Gwynne, __ Ohio St.3d __, 2022-Ohio-4607, ___ N.E.3d __, ¶ 29. “This requires the
appellate court to focus on both the quantity and quality of the evidence in the record that
either supports or contradicts the consecutive-sentence findings. An appellate court may
not, for example, presume that because the record contains some evidence relevant to
and not inconsistent with the consecutive-sentence findings, that this evidence is enough
to fully support the findings.” Id. In evaluating consecutive sentences, the appellate court
is “authorized to substitute its judgment for the trial court’s judgment if [it] has a firm
conviction or belief, after reviewing the entire record, that the evidence does not support
the specific findings made by the trial court to impose consecutive sentences.” Id.{¶27} The trial court made the following findings at the sentencing hearing:
consecutive sentences are “necessary to protect the public from future crimes by the
Defendant; that consecutive sentences are not disproportionate to the seriousness of the
Defendant’s conduct; the offenses were committed while on some type of community
control; the conduct of the Defendant indicates that a single prison term would not
adequately reflect the seriousness of the conduct; the Defendant’s long criminal history
demonstrates consecutive sentences * * * are necessary to protect the public.” The court
included these findings in its sentencing entry, although stating more broadly that
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“defendant committed one or more of the multiple offenses while [a]waiting trial or
sentencing or was under community control sanctions or was on post release control.”
The entry also found that “two of the multiple offenses were committed as part of the
same course of conduct and the harm caused by two or more of the multiple offenses so
committed was so great that no single prison term for any of the offenses committed
adequately reflects the seriousness of the offender’s conduct.”
{¶28} It is accurate that the court did not discuss the reasons for these findings.
However, “the sentencing court is not required to state exact reasons supporting its
[consecutive sentencing] findings.” State v. Gibbs, 11th Dist. Ashtabula No. 2022-A-
0042, 2022-Ohio-4792, ¶ 66. This court must determine not whether reasons were given
to support the findings but whether there is “some evidentiary support in the record for
the consecutive-sentence findings that the trial court made” and that the “evidentiary
basis * * * be adequate to fully support the trial court’s consecutive-sentence findings.”
Gwynne at ¶ 28-29. A review of the record demonstrates there is an adequate evidentiary
basis to support the trial court’s findings.
{¶29} At the sentencing hearing, the trial court made findings that the sentences
were not disproportionate to Tillis’ conduct and that such sentences were necessary to
protect the public, also specifically finding that his criminal history necessitated the
sentence to protect the public. The crime in the present matter arose from possession of
a loaded semi-automatic handgun which was impermissible due to a prior felony
conviction. While in possession of the firearm, Tillis was also in possession of in excess
of five grams of cocaine. The prosecutor advised the court at the plea hearing, when
asked about Tillis’ record: “the Defendant has a prior felony Possession of Drugs;
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Domestic Violence, M-1. Looks like a Receiving Stolen Property, F-4; Possession of
Drugs, F-5.” It was discussed at the plea hearing that Tillis also had a pending
Aggravated Murder case in Trumbull County and, at the sentencing hearing, it was
indicated: “The Court saw fit to hold off on imposing that sentence because the Defendant
had an indictment for Murder pending. He has since pled. I spoke to Attorney Becker
today, Attorney Becker advised 25 to 30-and-a-half on the Murder.” The multiple felony
charges support a finding that Tillis’ history of criminal conduct demonstrates consecutive
sentences are necessary to protect the public from future crime.
{¶30} Tillis contends that it was not clear from the prosecutor’s recitation of his
prior offenses whether he had two separate prior drug offenses. The prosecutor read out
several offenses and there is no reason to believe they were not separate convictions.
While Tillis questions the prosecutor’s “source of information” for these charges, we find
nothing demonstrating the prosecutor’s lack of knowledge of or investigation into Tillis’
prior record. It is evident he had a prior felony offense which allowed for the charge of
Having Weapons While Under Disability and it is unquestioned and conceded by Tillis
that he was charged with Murder and ultimately convicted of Involuntary Manslaughter in
the case proceeding at the same time as the present matter.
{¶31} Tillis argues that the charge to which he pled in Case No. 2021 CR 026 was
Involuntary Manslaughter but counsel discussed it as Murder during the sentencing
hearing in the present matter. The parties did discuss the Murder charge at the plea
hearing and referenced at the sentencing hearing that Tillis entered a plea in the Murder
case, leading to a sentence of 25-years to life, without specifying the charge to which he
pled. It is noteworthy that these matters were held before the same court and judge, who
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presumably was aware of the charge to which the plea was entered. Nonetheless, even
if it were unclear, the sentencing court is permitted to consider charges against a
defendant in ordering consecutive sentences even if a defendant is not ultimately
convicted of such charges. State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-
3243, ¶ 140 (“R.C. 2929.14(C)(4)(c) does not limit the trial court’s review to an offender’s
history of criminal convictions”); State v. Esmail, 7th Dist. Columbiana No. 13 CO 35,
2014-Ohio-2297, ¶ 11 (“a sentencing judge can take into account facts relating to other
charges, even charges that have been dismissed or which resulted in an acquittal”). The
court was permitted to consider that he had been charged with Murder and the 25-year
sentence further indicates the seriousness of the matter, although the facts relating to
that case are not in the record here.
{¶32} Tillis also argues that the court made the finding that he was “on some type
of community control” in error, as there is nothing in the record to support this finding. We
agree that the record does not demonstrate whether Tillis was on community control when
the offenses were committed. At the plea hearing, the court asked if Tillis was presently
on community control, to which he responded in the negative. Nothing else appearing in
the record addresses this issue.
{¶33} Presuming that this finding was made in error, it does not warrant reversal.
The court made the required findings in R.C. 2929.14(C)(4) relating to the necessity of
protecting the public/to punish the offender, that the sentence was not disproportionate
to the seriousness of the conduct and to the danger posed, and was required to make
only one of the findings in R.C. 2929.14(C)(4)(a)-(c). See State v. Wauer, 11th Dist.
Trumbull No. 2016-T-0043, 2017-Ohio-1337, ¶ 27 (“the plain language of the statute
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requires that only one of these three elements need be found, which is evident from the
statute’s use of the word ‘any’”). The court also made a valid finding, both at the
sentencing hearing and in the sentencing entry, that Tillis’ history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from future
crime pursuant to (C)(4)(c). This court has held that, where findings are made on multiple
grounds under (C)(4)(a) through (c), if a finding on one ground is “erroneous, any such
error was harmless since the trial court also made a finding [on another ground] that is
supported by the record.” Russell at ¶ 15; State v. Michalewicz, 8th Dist. Cuyahoga No.
102605, 2015-Ohio-5142, ¶ 17 (“the inclusion of an erroneous finding is not reason to
reverse an order of consecutive sentences when the court otherwise makes appropriate
findings that are sufficient to sustain the order”).
{¶34} We finally observe that to the extent Tillis takes issue with the lack of a
presentence investigation report, he waived it in the written plea agreement and it is not
required where community control is not ordered. There were discussions at the plea
hearing about whether a PSI would need to be conducted to keep Tillis in Trumbull County
to prepare for his Murder trial. Defense counsel inquired whether the PSI would be
completed but this inquiry was in relation to its necessity in order to keep him in Trumbull
County. The trial court indicated it was not necessary. We do not find that the failure to
complete a PSI was an error. See State v. Park, 2d Dist. Champaign No. 2021-CA-41,
2022-Ohio-1524, ¶ 18 (a PSI is not required where community control is not ordered or
where it is waived by the defendant and prosecutor).
{¶35} The second assignment of error is without merit.
{¶36} In his third assignment of error, Tillis argues that his plea, convictions, and
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sentence should be set aside due to the cumulative effect of errors committed by the trial
court.
{¶37} Under the doctrine of cumulative error, “a conviction will be reversed when
the cumulative effect of errors in a trial deprives a defendant of a fair trial, even though
each of the numerous errors does not individually constitute cause for reversal.” State v.
Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 257. “[M]ultiple errors
that are separately harmless may, when considered together, violate a person’s right to
a fair trial in the appropriate situation.” State v. Goff, 82 Ohio St.3d 123, 140, 694 N.E.2d
916 (1998).
{¶38} We do not find in the present matter that there were multiple errors that
resulted in an outcome different than would have otherwise occurred. Tillis was not
denied the right to fair proceedings.
{¶39} The third assignment of error is without merit.
{¶40} For the foregoing reasons, Tillis’ convictions and sentence for Having
Weapons While Under Disability and Possession of Cocaine in the Trumbull County Court
of Common Pleas are affirmed. Costs to be taxed against appellant.
JOHN J. EKLUND, P.J.,
EUGENE A. LUCCI, J.,
concur.
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