State v. Tate

[Cite as State v. Tate, 2015-Ohio-5170.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
:
Plaintiff- Appellee : C.A. CASE NO. 2014-CA-126
:
v. : T.C. NO. 14CR540
:
JAMES TATE, III : (Criminal appeal from
: Common Pleas Court)
Defendant - Appellant :
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OPINION
Rendered on the ___11th___ day of _ _December_____, 2015.
.............
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for the Plaintiff-Appellee
P.J. CONBOY II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio
45424
Attorney for the Defendant-Appellant
JAMES M. TATE, III, Inmate # 709794, London Correctional Institute, P.O. Box 69,
London, Ohio, 43140
Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} James M. Tate, III was originally charged by indictment with one count of
felonious assault on a peace officer with a firearm specification, a felony of the first
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degree, in violation of R.C. § 2903.11(A)(2), one count of discharge of a firearm on or
near prohibited premises, a felony of the third degree, in violation of R.C. §
2923.162(A)(3), and one count of having weapons under disability, a felony of the third
degree, in violation of R.C. § 2923.13(A)(3).
{¶ 2} On September 15, 2015, Tate entered a guilty plea pursuant to North
Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to one count of
felonious assault on a peace officer, a felony of the first degree, in violation of R.C. §
2903.11(A)(2). In exchange for the guilty plea, the State agreed to dismiss the firearm
specification of count one and counts two and three of the indictment. Prior to accepting
Tate’s plea of guilty pursuant to Alford, the trial court engaged Tate in a thorough dialogue
regarding the significance of an Alford plea and a thorough Crim. R. 11 colloquy, and
the trial court found Tate’s pleas were entered in a knowing and voluntary fashion. The
plea transcript reflects the prosecutor’s recitation of the facts supporting the indictment
and the trial court’s finding of guilty. The trial court ordered a pre-sentence investigation
and scheduled the sentencing disposition for October 2, 2014.
{¶ 3} On October 2, 2014, Tate appeared for sentencing. The trial court
sentenced Tate to a term of seven years imprisonment to be served consecutive to a term
of four years mandatory imprisonment for one count of possession of cocaine, Clark Cty.
C.P. Case No. 14-CR-04081. In determining the sentence to be imposed, the trial court
considered the pre-sentence investigation report and statements by counsel and
Appellant. The trial court set out the seriousness and recidivism factors under R.C. §
Tate has not filed a direct appeal of this case.
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2929.12 that applied to the case, and further found consecutive sentences were
appropriate under R.C. § 2929.14(C)(4). Specifically, the trial court found the factors in
both R.C. § 2929.14(C)(4)(b) and R.C. § 2929.14(C)(4)(c) supported consecutive
sentences. The Court’s findings are reflected in Tate’s Judgment entry of conviction.
See State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659. Finally, the
trial court sentenced Tate to a period of five years of post release control after completion
of the sentence of the trial court as required under R.C. § 2929.14(D)(1).
{¶ 4} Tate filed a pro se notice of appeal on October 31, 2014. Additionally,
counsel was appointed to prosecute the appeal. On May 11, 2015, appointed counsel
filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18
L. Ed. 2d 493 (1967), in which he represented to us that after review of the record he could
find no arguably meritorious issues to present on appeal. By magistrate’s order on July
22, 2015, we informed Tate that his counsel had filed an Anders brief and the significance
of an Anders brief. We invited Tate to file a pro se brief assigning any error for our review
within sixty days of July 22, 2015. Tate has not filed anything with this Court.
{¶ 5} Pursuant to our responsibilities under Anders, we have conducted an
independent review of the entire record, and having done so, we agree with the
assessment of appointed counsel that there are no arguably meritorious issues to present
on appeal.
{¶ 6} Accordingly, the judgment appealed from is affirmed.
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FAIN, J. and HALL, J., concur.
Copies mailed to:
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Ryan A Saunders
P.J. Conboy II
James M. Tate, III
Hon. Richard J. O’Neill