[Cite as State v. McCallister, 2019-Ohio-744.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-18-29
v.
EARNEST J. MCCALLISTER, OPINION
DEFENDANT-APPELLANT.
PLAINTIFF-APPELLEE, CASE NO. 13-18-30
Appeals from Seneca County Common Pleas Court Trial Court Nos. 17 CR 0183 and 18 CR 0017
Judgment Affirmed in Part, Reversed in Part and Cause Remanded In Appellate Case No. 13-18-29 and Judgment Affirmed In Appellate Case No. 13-18-30
Date of Decision: March 4, 2019
APPEARANCES:
Dorothy L. Williams for Appellant
Rebeka Beresh for Appellee Case No. 13-18-29 and 13-18-30
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Earnest J. McCallister (“McCallister”), appeals
the August 17, 2018 judgment entries of sentence of the Seneca County Court of
Common Pleas. For the reasons that follow, we affirm in part and reverse in part.
{¶2} On October 10, 2017, the Seneca County Grand Jury indicted
McCallister three counts in case number 17CR0183: Count One of theft in violation
of R.C. 2913.02(A)(1), (B)(2), a fifth-degree felony; Count Two of receiving stolen
property in violation of R.C. 2913.51(A), (C), a fifth-degree felony; and Count
Three of misuse of credit cards in violation of R.C. 2913.21(B)(2), (D)(3), a first-
degree misdemeanor. (Case No. 17CR0183, Doc. No. 1). On December 7, 2017,
McCallister appeared for arraignment and entered pleas of not guilty. (Case No.
17CR0183, Doc. No. 9).
{¶3} On December 18, 2017, McCallister withdrew his pleas of not guilty
and entered guilty pleas, under a negotiated plea agreement, to Counts One and
Three. (Case No. 17CR0183, Doc. Nos. 12, 13). In exchange for his change of
pleas, the State agreed to dismiss Count Two. (Id.).1 That same day, McCallister
was released on his own recognizance and ordered to appear for sentencing on
February 2, 2018. (Case No. 17CR0183, Doc. No. 14). McCallister did not appear
on February 2, 2018. (See Case No. 17CR0183, Doc. Nos. 16, 17).
1 The State moved to dismiss Count Two in case number 17CR0183 at the time of sentencing, and it was dismissed. (Case No. 17CR0183, Doc. Nos. 29, 30).
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{¶4} Because McCallister did not appear on February 2, 2018, the Seneca
County Grand Jury indicted him in case number 18CR0017 on one count of failure
to appear in violation of R.C. 2937.29 and 2937.99(A), (B), a fourth-degree felony.
(Case No. 18CR0017, Doc. No. 1). McCallister appeared for arraignment on April
6, 2018 and entered a plea of not guilty. (Case No. 18CR0017, Doc. No. 9).
{¶5} Case number 18CR0017 proceeded to a jury trial on July 27, 2018.
(Case No. 18CR0017, July 27, 2018 Tr. at 1). That same day, the jury found him
guilty of failing to appear. (Case No. 18CR0017, Doc. Nos. 27, 28).
{¶6} On July 26, 2018, McCallister filed a motion to withdraw his guilty
pleas in case number 17CR0183. (Case No. 17CR0183, Doc. No. 25). On August
16, 2018, the State filed its memorandum in opposition to McCallister’s motion to
withdraw his guilty pleas. (Case No. 17CR0183, Doc. No. 27). On August 17,
2018, McCallister withdrew his motion to withdraw his guilty pleas and elected to
proceed to sentencing. (Case No. 17CR0183, Doc. No. 28).
{¶7} That same day, the trial court sentenced McCallister to 12 months in
prison on Count One and 180 days in jail on Count Three in case number 17CR0183.
(Id.). In case number 18CR0017, the trial court sentenced McCallister to 18 months
in prison. (Case No. 18CR0017, Doc. No. 30). The trial court ordered that
McCallister serve the terms in case number 17CR0183 concurrently, and further
ordered that he serve the concurrent terms in case number 17CR0183 concurrent to
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the term imposed in case number 18CR0017, for an aggregate sentence of 18
months in prison. (Case No. 17CR0183, Doc. No. 28); (Case No. 18CR0017, Doc.
No. 30). For purposes of sentencing, however, the trial court merged Counts One
and Three in case number 17CR0183. (Case No. 17CR0183, Doc. No. 28).
{¶8} McCallister filed his notice of appeal in both cases on September 6,
2018, which were consolidated for purposes of appeal. (Case No. 17CR0183, Doc.
No. 34); (Case No. 18CR0017, Doc. No. 38). He raises three assignments of error
for our review.
Assignment of Error No. I
Insufficient Evidence was Presented by the State to Sustain a Conviction for Failure to Appear.
{¶9} In his first assignment of error, McCallister argues that his failure-to-
appear conviction is based on insufficient evidence. In particular, he contends that
the State presented insufficient evidence that he was the person who failed to appear
on February 2, 2018.
Standard of Review
{¶10} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
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amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing Thompkins at 386.
Analysis
{¶11} R.C. 2937.99(A) provides, “No person shall fail to appear as required,
after having been released pursuant to section 2937.29 of the Revised Code.
Whoever violates this section is guilty of failure to appear * * *.” R.C. 2937.29
provides:
When from all the circumstances the court is of the opinion that the accused will appear as required, either before or after conviction, the accused may be released on his own recognizance. A failure to appear as required by such recognizance shall constitute an offense subject to the penalty provided in section 2937.99 of the Revised Code.
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{¶12} McCallister does not dispute the evidence concerning the underlying
elements of the failure-to-appear offense of which he was convicted; rather, he
disputes the issue of identity as to the conviction. See State v. Missler, 3d Dist.
Hardin No. 6-14-06, 2015-Ohio-1076, ¶ 13. Accordingly, we will address only the
identity element of the offense. Id. at ¶ 13, citing State v. Carter, 2d Dist.
Montgomery No. 25447, 2013-Ohio-3754, ¶ 9-12. “‘It is well settled that in order
to support a conviction, the evidence must establish beyond a reasonable doubt the
identity of the defendant as the person who actually committed the crime at issue.’”
Id., quoting State v. Johnson, 7th Dist. Jefferson No. 13 JE 5, 2014-Ohio-1226, ¶
27, citing State v. Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, ¶ 19, and
State v. Lawwill, 12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 11.
{¶13} “There is no requirement that a witness must make an in-court
identification of a defendant in criminal cases; direct or circumstantial evidence is
sufficient to establish the identity of the accused as the person who committed the
crime.” State v. Bailey, 2d Dist. Montgomery No. 27177, 2017-Ohio-2679, ¶ 18,
citing Cleveland v. Williams, 8th Dist. Cuyahoga No. 101588, 2015-Ohio-1739, ¶
25 and State v. Eckard, 3d Dist. Marion No. 9-15-45, 2016-Ohio-5174, ¶ 30.
“[H]owever, ‘merely establishing that the defendant’s name is the same as that of
the alleged offender is insufficient to prove identity.’” State v. Sandercock, 11th
Dist. Ashtabula No. 2017-A-0061, 2018-Ohio-2448, ¶ 13, quoting Bailey at ¶ 18,
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citing State v. Gray, 7th Dist. Mahoning No. 09 MA 33, 2010-Ohio-2530, ¶ 7, citing
State v. Marcum, 7th Dist. Columbiana No. 03 CO 36, 2004-Ohio-3036, ¶ 23, and
citing State v. Hatfield, 10th Dist. Franklin No. 04AP-402, 2004-Ohio-6450, ¶ 16
and State v. O’Neil, 107 Ohio App.3d 557, 561 (6th Dist.1995). Ohio courts of
appeal have concluded that a combination of identifiers is sufficient to establish
identity. See State v. Greer, 9th Dist. Summit No. 26470, 2013-Ohio-4267, ¶ 22
(collecting cases concluding that a combination of identifiers is sufficient to
establish identity); State v. Rogers, 7th Dist. Jefferson No. 14 JE 26, 2015-Ohio-
2093, ¶ 38 (“Consequently, if there is more than one identifier then it is sufficient
to prove identity.”), citing State v. Greene, 6th Dist. Sandusky No. S-01-015, 2001
WL 1606831, *1 (Dec. 14, 2001) and State v. Lewis, 4th Dist. Ross No. 99CA2523,
2000 WL 33226193, *4 (Dec. 15, 2000). See also Bailey at ¶ 18 (“There must be a
‘significant correspondence of identifying characteristics’ between the defendant
and the person with the same name who is implicated in an offense.”), quoting State
v. Wilson, 2d Dist. Champaign No. 96 CA 22, 1997 WL 666159, *4 (Oct. 24, 1997),
and citing R.C. 2945.75 (B)(1).
{¶14} In this case, the State presented sufficient circumstantial evidence that
the person who failed to appear on February 2, 2018 was the same person on trial
for failing to appear on February 2, 2018. That is, the State presented evidence of a
combination of identifiers between McCallister and the person with the name of
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Earnest J. McCallister who was implicated in the failure-to-appear offense. At trial,
Captain Daniel Dell (“Dell”) of the Fostoria Police Department identified
McCallister in court as Earnest McCallister with a date of birth of June 3, 1985.
(July 27, 2018 Tr. at 124-125). Likewise, Amy Allen, a bailiff with the Seneca
County Court of Common Pleas, testified that she was working on February 2, 2018
and that Earnest McCallister failed to appear to court that day. (Id. at 130-131).
Specifically, Allen identified State’s Exhibits 1-3 as a copy of a recognizance bond,
a February 2, 2018 judgment entry, and a February 2, 2018 bench warrant all
reflecting the name of the person who failed to appear that day as Earnest J.
McCallister, respectively. (Id. at 132-135); (State’s Exs. 1-3). Further, Allen
indicated that the February 2, 2018 bench warrant identifies the person who failed
to appear on February 2, 2018 as Earnest J. McAllister with a date of birth of June
3, 1985. (July 27, 2018 Tr. at 135); (State’s Ex. 3). Therefore, because the State
presented evidence beyond establishing that McCallister’s name is the same name
as the alleged offender, we conclude that the State presented sufficient evidence of
McCallister’s identity under the facts presented in this case. See Greer at ¶ 29, 39.
{¶15} Thus, based on the evidence presented at trial, we conclude that a
rational trier of fact could have concluded that the Earnest J. McCallister who was
present in the courtroom was the Earnest J. McCallister who failed to appear to court
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on February 2, 2018. Accordingly, McCallister’s failure-to-appear conviction is
based on sufficient evidence and his first assignment of error is overruled.
Assignment of Error No. II
Appellant was Denied Effective Assistance of Counsel.
{¶16} In his second assignment of error, McCallister argues that his trial
counsel was ineffective for advising him to withdraw his pre-sentence motion to
withdraw his guilty pleas.
{¶17} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or
unreasonable, the defendant must overcome the presumption that counsel provided
competent representation and must show that counsel’s actions were not trial
strategies prompted by reasonable professional judgment. Strickland at 687.
Counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675
(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995).
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Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-42
(1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on
other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).
{¶18} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting
Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142
and citing Strickland at 694.
{¶19} McCallister’s trial counsel was not ineffective for advising him to
withdraw his pre-sentence motion to withdraw his guilty pleas. That is, McCallister
did not prove that his trial counsel was deficient for advising him to withdraw his
pre-trial motion to withdraw his guilty pleas or that the motion had a reasonable
probability of success. See State v. Costell, 3d Dist. Union No. 14-15-11, 2016-
Ohio-3386, ¶ 161, citing State v. Schlosser, 3d Dist. Union No. 14-10-30, 2011-
Ohio-4183, ¶ 34, citing In re Smith, 3d Dist. Hancock No. 5-01-34, 2002 WL
255126, *6 (Feb. 22, 2002). Specifically, McCallister makes no argument on appeal
relative to whether his pre-sentence motion to withdraw his guilty pleas would have
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had a reasonable possibility of success. See, e.g., State v. Xie, 62 Ohio St.3d 521,
526 (1992) (noting that defendants do not have an absolute right to withdraw his or
her pleas prior to sentencing); State v. Lane, 3d Dist. Allen No. 1-10-10, 2010-Ohio-
4819, ¶ 21 (addressing the factors applied to determine whether there is a reasonable
and legitimate basis to permit a defendant to withdraw his plea prior to sentencing).
Because McCallister made no argument relative to the reasonable probability of
success of his motion, we decline to root out any possible argument for him. Costell
at ¶ 161, citing State v. Raber, 189 Ohio App.3d 396, 2010-Ohio-4066, ¶ 30 (“[I]f
an argument exists that can support [an] assignment of error, it is not this [c]ourt’s
duty to root it out.”), App.R. 12(A)(2), and App.R. 16(A)(7). Therefore,
McCallister’s second assignment of error is overruled.
Assignment of Error No. III
The Court Abused its Discretion in Sentencing the Defendant to the Maximum Period of Incarceration Allowable by Statute.
{¶20} In his third assignment of error, McCallister argues that the trial court
erred by imposing the maximum terms of imprisonment as to each of his
convictions.2
2 McCallister contends that the trial court erred by imposing maximum terms of imprisonment as to each of his three convictions based on R.C. 2929.11(A). (Appellant’s Brief at 6). However, R.C. 2929.11 applies to felony sentencing. In Count Three in case number 17CR00183, McCallister was convicted and sentenced on a first-degree-misdemeanor offense. “Misdemeanor sentencing is governed by R.C. 2929.22 * * *.” State v. Mitchell, 2d Dist. Montgomery No. 17816, 2001 WL 726783, *1 (June 29, 2001). Because McCallister did not make any argument as to how the trial court abused its discretion by imposing its sentence for a misdemeanor violation, we decline to make one for him. See, e.g., State v. Nolan, 3d Dist. Marion No. 9-15- 48, 2016-Ohio-2985, ¶ 12 (stating that “[w]e review a trial court’s sentence on a misdemeanor violation under
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{¶21} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶22} In this case, the relevant inquiry is whether the trial court’s imposition
of maximum sentences as to McCallister’s theft and failure-to-appear offenses are
contrary to law. State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554,
¶ 30, citing State v. Barrera, 3d Dist. Putnam No. 12-12-01, 2012-Ohio-3196, ¶ 20
(“A trial court’s sentence will not be disturbed on appeal absent a defendant’s
showing by clear and convincing evidence that the sentence is unsupported by the
record or otherwise contrary to law.”). “A sentence is contrary to law if (1) the
sentence falls outside the statutory range for the particular degree of offense, or (2)
an abuse of discretion standard”), citing R.C. 2929.22 and State v. Frazier, 158 Ohio App.3d 407, 2004- Ohio-4506, ¶ 15 (1st Dist.). See State v. Senz, 9th Dist. No. 17CA0001-M, 2018-Ohio-628, ¶ 38 (declining to develop an argument on behalf of Senz after he “failed to develop any argument explaining how the trial court’s actions violated the misdemeanor sentencing scheme”); App.R. 12(A)(2); App.R. 16(A)(7).
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the trial court failed to consider the purposes and principles of felony sentencing set
forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.” Id.,
citing State v. Caraballo, 8th Dist. Cuyahoga No. 100354, 2014-Ohio-2641, ¶ 6-7.
{¶23} “Trial courts have full discretion to impose any sentence within the
statutory range.” State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶
9. As a fifth-degree felony, theft carries a possible sentence of 6- to 12-months
imprisonment and, as a fourth-degree felony, failing-to-appear carries a possible
sentence of 6- to 18-months imprisonment. R.C. 2913.02(A)(1), (B)(2); 2937.29;
2937.99(A), (B); 2929.13(B)(2); 2929.14(A)(4), (5). Because the trial court
sentenced McCallister to 12 months in prison on the theft offense and 18 months in
prison on the failure-to-appear offense, the trial court’s sentences fall within the
statutory ranges. Accordingly, McCallister’s sentences are “presumptively valid”
if the trial court considered the applicable felony-sentencing statutes. See Maggette
at ¶ 31; State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 10; R.C.
2929.11; R.C. 2929.12. At McCallister’s sentencing hearing and in its sentencing
entries, the trial court considered the Revised Code’s principles and purposes of
sentencing. (Aug. 17, 2018 Tr. at 14); (Case No. 17CR0183, Doc. No. 28); (Case
No. 18CR0017, Doc. No. 30).
{¶24} However, McCallister’s sentence in case number 17CR0183 is
contrary to law for a different reason. Despite concluding that McCallister’s theft
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and misuse-of-credit-cards offenses are allied offenses of similar import and subject
to merger, the trial court imposed a term of incarceration as to each offense, to be
served concurrently. (See Aug. 17, 2018 Tr. at 16); (Case No. 17CR0183, Doc. No.
28). Compare State v. Parsons, 3d Dist. Henry No. 7-16-08, 2017-Ohio-1315, ¶ 88.
“The imposition of concurrent sentences is not the equivalent of merging allied
offenses.” State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, ¶ 17.
Accordingly, we vacate the sentence in case number 17CR0183 and remand for
proper sentencing. Id. at ¶ 18.
{¶25} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued in assignments of error one, two and three, in part,
we affirm the judgment of the trial court. Having found error prejudicial to the
appellant herein in the particulars assigned and argued in assignment of error three,
in part, we reverse the judgment of the trial court and remand for further proceedings
consistent with this opinion.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded in Appellate Case No. 13-18-29, and Judgment Affirmed in Appellate Case No. 13-18-30
SHAW and WILLAMOWSKI, J.J., concur.
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