State v. Tabor

2020 Ohio 2855

• Court: Ohio Court of Appeals
• Decided: May 8, 2020
• Docket: 28298
• Status: Published

Opinion

[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

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HALL, J. -2-

{¶ 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 -3-

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. -4-

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 -5-

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.

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.