State v. Fisher

2016 Ohio 601

• Court: Ohio Court of Appeals
• Decided: February 19, 2016
• Docket: 2015-CA-36
• Status: Published

Opinion

[Cite as State v. Fisher, 2016-Ohio-601.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2015-CA-36 : v. : Trial Court Case No. 14-CR-470 : ANDRE FISHER : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 19th day of February, 2016.

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

KIRSTEN KNIGHT, Atty. Reg. No. 0080433, Post Office Box 137, Germantown, Ohio 45327 Attorney for Defendant-Appellant

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HALL, J.

{¶ 1} Andre Fisher appeals from his conviction and sentence to three years in

prison for fleeing police in his vehicle, a violation of R.C. 2921.331(B) and a third-degree -2-

felony if the operation of the vehicle caused a substantial risk of serious physical harm to

persons or property, R.C. 2921.331(C)(5)(a)(ii). Fisher’s counsel has filed a brief under

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

the appeal is frivolous and requesting permission to withdraw. By order filed on October

7, 2015, we informed Fisher that the Anders brief had been filed and advised him of his

right to file his own brief and the time limit for doing so. Fisher has not filed anything, and

the time for filing has expired.

The course of proceedings

{¶ 2} Fisher was indicted on July 21, 2014, on the above-stated charge, and a jury

trial was conducted on March 3, 2015. City of Springfield police officer Joseph Robinson

testified that on June 4, 2014, he was on routine patrol when he saw Fisher, whom he

knew, get into a 2002 Saturn SUV. Robinson ran Fisher’s name and learned that there

was an outstanding warrant for him. Robinson knew Fisher was under a driver’s

suspension, and he observed Fisher commit a traffic violation. So at 7:40 p.m., Robinson

pulled Fisher over.

{¶ 3} As Robinson walked up to the vehicle, he recognized Fisher as the driver.

He knew Fisher from previous law enforcement and personal dealings. They both played

darts, and they had run into each other at various clubs and tournaments over the past

three years. Robinson called Fisher by name and told him that he was under arrest. Fisher

replied, “Cool Joey. Hey, let me go ahead and pull the vehicle over.” But he didn’t pull

over. Instead, Fisher sped away, and a lengthy chase ensued that “presented a danger

to the citizens.”

{¶ 4} Officer Robinson described in detail the route that the chase took through -3-

Springfield, using a series of aerial maps (State’s Exhibits 1 to 13), which, though not

physically admitted as exhibits, were shown to the jury on a television screen. Robinson

followed Fisher with his lights and siren on through numerous residential and commercial

areas at speeds between 40 and 60 miles per hour—well over the posted limits. Fisher

ran stop signs and red lights, weaved his way through traffic at intersections, and almost

struck a police cruiser. He also cut through occupied parking lots.

{¶ 5} Springfield police officer Keith McConnell (22 years of police experience) also

testified. He said that he and his partner were heading toward the location that Officer

Robinson had stopped Fisher when an SUV came around a corner and almost hit them

head-on. McConnell joined the chase, and his description of it is consistent with

Robinson’s description. McConnell did not know who was driving the SUV.

{¶ 6} Springfield police officer Cody Anderson (9 years with the police department)

was involved in the chase too. He testified that during the chase he was preparing to

deploy stop sticks at the intersection of Burnett Road and Sheridan when he saw the

vehicle approaching him head-on. He pulled over, and the SUV passed him. Officer

Anderson saw the driver, whom he identified as Fisher. Anderson also saw a female

passenger and a dog in the back seat.

{¶ 7} Eventually, Fisher passed Sergeant Doug Pergram, who has been with the

Springfield police department for 19 years and has been a sergeant since 2001. Pergram

called off the chase. He testified that he called it off because Fisher’s driving was erratic

and the police knew who he was and had a description of the vehicle and the license

plate. Pergram also saw a pizza driver in a parking lot almost get hit. Pergram said that

he saw a passenger and a pit bull in the back seat of the vehicle, but he could not identify -4-

the driver.

{¶ 8} There were no other witnesses. The jury returned a guilty verdict and found

that Fisher’s conduct created a substantial risk of serious physical harm to persons or

property.

{¶ 9} At the sentencing hearing on March 12, 2015, the state requested the

maximum sentence, pointing out that Fisher had previously been convicted for failure to

comply for which he was sentenced to two years in prison. The court noted that Fisher

had also served two prison terms for domestic violence. The court said that it had

considered the sentencing factors in R.C. 2921.331(C)(5)(b), the purposes and principles

of sentencing, and the general statutory sentencing factors. The court then imposed the

maximum of 3 years in prison and imposed a mandatory lifetime driver’s license

suspension because of Fisher’s prior conviction for the same offense. Fisher was notified

of the possibility of three years of post-release control.

{¶ 10} Fisher appealed.

Potential assignments of error

{¶ 11} Although appellate counsel found no merit to the appeal, she identifies three

potential assignments of error for us to consider. The first potential error concerns

whether the finding of guilt is supported by sufficient evidence and whether the verdict is

contrary to the manifest weight of the evidence. “A sufficiency of the evidence argument

disputes whether the State has presented adequate evidence on each element of the

offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State

v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). -5-

{¶ 12} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” Id. at ¶ 12. See Eastley v. Volkman, 132 Ohio St.3d

328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (saying that “ ‘manifest weight of the

evidence’ refers to a greater amount of credible evidence and relates to persuasion”).

When evaluating whether a conviction is against the manifest weight of the evidence, the

appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, and determine whether, in resolving conflicts in

the evidence, the trier of fact “ ‘clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.’ ” Thompkins at

387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 13} Here we agree with counsel that an assignment of error regarding

sufficiency or manifest weight of the evidence would be frivolous. Two police officers

identified Fisher as the driver of the vehicle. Officer Robinson, who knew Fisher, saw him

get into the vehicle. After stopping Fisher, Robinson was within a few feet when he

addressed Fisher by name and Fisher responded using the officer’s nickname. There is

no evidence contradicting the two identifications of Fisher as the driver. Moreover, the

evidence about the lengthy chase, the running of stop signs and traffic lights, and the

weaving through traffic that nearly caused collisions is abundantly sufficient to

demonstrate a risk of serious harm to the point that any argument to the contrary is

frivolous. Likewise, having reviewed all the testimony, we conclude that the weight of the

uncontradicted evidence so clearly establishes the elements of the offense that no -6-

reasonable argument can be made that the verdict is against the manifest weight. The

first potential assignment of error lacks arguable merit.

{¶ 14} The second potential assignment of error suggests that Fisher was

prejudiced by ineffective assistance of trial counsel. In this regard appellate counsel says

that in opening statements trial counsel indicated that he anticipated being able to show

that Fisher had an alibi, that at the time of the offense he was at his mother’s house in

Columbus, Ohio. But all counsel said in his opening statement is that at the time of the

offense Fisher was with his mother and the mother of his child in Columbus. Counsel

stopped short of saying that either would actually testify. After the State rested, out of the

hearing of the jury, Fisher’s counsel said, “I’ll let the court know my two witnesses I

ascertained were from Columbus are not here. We anticipated that the defendant’s sister

was getting them here today, but they are not here so I don’t have any witnesses to put

on.” (Trial Tr. 125). There was no request for a continuance or further explanation. During

closing, Fisher’s counsel commented, “Andre’s mom wasn’t able to be here.” (Id. at 132)

The record contains no other information about why Fisher’s mother and sister were not

at the trial.

{¶ 15} Assistance of counsel is not ineffective unless and until it is proven that

counsel’s performance fell below an objective standard of reasonable representation and

that counsel’s performance prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, there is simply nothing in the record

to support a non-frivolous argument concerning ineffective assistance of counsel.

Whether the witnesses appeared, why they did not appear, or what their testimony would

have been is unknown. We agree with appellate counsel that an assignment of error -7-

based on ineffective assistance lacks arguable merit and is frivolous.

{¶ 16} The final potential assignment of error suggested by counsel is a challenge

to the maximum sentence of three years that was imposed. “[A] trial court has full

discretion to impose any sentence within the authorized statutory range, and the court is

not required to make any findings or give its reasons for imposing maximum or more than

minimum sentences.” (Citation omitted.) State v. King, 2013–Ohio–2021, 992 N.E.2d 491,

¶ 45 (2d Dist.). Moreover, a maximum sentence is not contrary to law when it is within the

statutory range and the trial court has considered the statutory principles and purposes

of sentencing as well as the statutory seriousness and recidivism factors. State v. Walker,

2d Dist. Montgomery No. 25741, 2014-Ohio-1287, ¶ 17-19; State v. Hayes, 2d Dist. Clark

No. 2014-CA-27, 2014-Ohio-5362, ¶ 15. Applying these standards, we see no non-

frivolous argument that can be made to challenge Fisher’s maximum sentence of three

years. He had previously been sentenced to prison several times, one of which was for

the very same offense for which he was convicted in this case, and the court considered

the applicable statutory provisions. This potential assignment of error has no arguable

merit.

Anders Review

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

review of the record. We have thoroughly reviewed the docket, the various filings, the

written transcript of the jury trial, and the sentencing disposition. We have found no non-

frivolous issues for review. Accordingly, the judgment of the Clark County Common Pleas

Court is affirmed.

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FAIN, J., and FROELICH, J., concur.

Copies mailed to: Ryan A. Saunders Kirsten Knight Andre Fisher Hon. Douglas M. Rastatter