State v. Tabor

[Cite as State v. Tabor, 2020-Ohio-2855.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28298
:
v. : Trial Court Case No. 2018-CR-4549
:
ANTHONY W. TABOR : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 8th day of May, 2020.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, 301 West Third Street, 5th
Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
Attorney for Defendant-Appellant
.............
HALL, J.
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{¶ 1} Defendant, Anthony W. Tabor, appeals from his conviction on a charge of
importuning. Tabor’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738,
87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel asserts that he “is unable to identify any
non-frivolous issues” for appeal. This Court advised Tabor that counsel had filed
an Anders brief and invited him to file a pro se brief within 60 days, assigning any errors
for review by this Court. Tabor did not file a brief. After reviewing the record, we conclude
that there are no arguably meritorious issues for Tabor’s appeal.
{¶ 2} Tabor was indicted on two counts of importuning, the first under R.C.
2907.07(A) and the second under R.C. 2907.07(C)(1), both third-degree felonies. Tabor
pleaded guilty to the second count and the first count was dismissed. According to the
state’s sentencing memorandum, Tabor, 38 years old, sent Instagram messages to a 12-
year-old female friend of his daughter expressing his desire to engage in sexual activity
with her. Tabor arranged to meet the minor victim at her house for that purpose, where
he was arrested before any sexual contact occurred. Tabor did not dispute these facts in
his sentencing memorandum.
{¶ 3} The presentence investigation report (PSI) describes how Tabor very
deliberately targeted the victim. After the first series of messages from Tabor, the victim
sent him a message asking if he knew how old she was. He responded that “he had been
with young girls before and that the youngest he had been with was a 12 year old.”
According to the report, Tabor also sent the victim messages from a second Instagram
account. Using that account, Tabor pretended to be a female who had had sex with him,
and he sent the victim messages saying that Tabor “was a good guy,” that he “would buy
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her things and take her out to eat and that it was worth the chance.” The PSI stated that
the victim told her mother about the Instagram messages and that her mother contacted
the police. When Tabor sent the victim a message about coming over, her mother called
the police, and an officer came to their home. The officer watched as the victim and Tabor
exchanged messages. Eventually, the victim told Tabor to come over and that the front
door would be unlocked. The officer directed the victim and her mother to stay in a back
bedroom, while he stood out of view of the front door. Tabor arrived and knocked on the
door, and the victim yelled for him to come in. Apparently, not hearing her, he turned to
leave. Another officer approached and stopped Tabor, who was then arrested.
{¶ 4} At the sentencing hearing, two victim-impact statements were presented.
First, the victim’s mother told the court about the profound negative effect that Tabor’s
crime had had on her daughter. A victim advocate also read a statement from the victim
herself, which talked about her depression and fear. The trial court designated Tabor a
Tier I sex offender and imposed the maximum penalty of 36 months in prison.
{¶ 5} Tabor appeals.
{¶ 6} Tabor’s appellate counsel asserts a potential assignment of error challenging
the trial court’s imposition of the maximum penalty. The state filed a notice that it would
not file a response.
{¶ 7} The trial court explained its sentencing decision this way:
* * * I do have to weight some of the factors. One being that you knew
the victim and the family, right. And what’s even more concerning [is] the
fact that you were present, I believe, at the victim’s home and then at that
point in time we have to wonder where does it go next.
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But then I look back because we don’t have to know here it potentially
could go next because you wrote and you text and you said you—where
you wanted it to go next.
***
The messaging through the Instagram stated where you wanted this
to go, so we don’t even have to picture where it could have gone. You were
there. So this was one step short of a more significant sexually oriented
offense.
So that being stated, considering the purposes and principles of
sentencing, the seriousness and recidivism factors of the Ohio Revised
Code, including using the minimum sanctions to accomplish those purposes
without unnecessarily burdening governmental resources, the Court does
sentence Mr. Tabor * * * to 36 months at the Department of Rehabilitations
or Corrections, the maximum sentence that can be imposed.
(Sentencing Tr. 8-9).
{¶ 8} The Ohio Supreme Court has held that “ ‘[t]rial courts have full discretion to
impose a prison sentence within the statutory range and are no longer required to make
findings or give their reasons for imposing maximum, consecutive, or more than the
minimum sentence.’ ” State v. Sergent, 148 Ohio St. 3d 94, 2016-Ohio-2696, 69 N.E.3d
627, ¶ 34, quoting State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470,
paragraph seven of the syllabus. “A trial court’s imposition of a maximum prison term for
a felony conviction is not contrary to law as long as the sentence is within the statutory
range for the offense, and the court considers both the purposes and principles of felony
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sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth
R.C. 2929.12.” State v. Seith, 8th Dist. Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12. “[A]
trial court ‘fulfills its duty under the statutes by indicating that it has considered the relevant
sentencing factors.’ ” State v. Clinton, 153 Ohio St. 3d 422, 2017-Ohio-9423, 108 N.E.3d
1, ¶ 243, quoting State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 14.
{¶ 9} Based on the record in this case, we agree with appellate counsel that the
potential assignment of error challenging the trial court’s imposition of the maximum
prison term lacks arguable merit. The three-year term was within the statutory range for
a third-degree felony, and the trial court plainly considered the relevant statutory
sentencing factors. An argument that the sentence is contrary to law is frivolous.
{¶ 10} In addition, pursuant to our duty under Anders, we have conducted our
thorough and independent review of the record, and we agree with appellate counsel that
there are no non-frivolous issues for review.
{¶ 11} Having found no arguable merit in Tabor’s Anders appeal, the judgment of
the trial court is affirmed.
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DONOVAN, J. and FROELICH, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Lucas W. Wilder
Anthony W. Tabor
Hon. E. Gerald Parker, Jr.