[Cite as State v. Turner, 2025-Ohio-386.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240250 TRIAL NO. B-2203684B Plaintiff-Appellee, :
vs. : OPINION FRANK TURNER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 7, 2025
Connie M. Pillich, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Frank Turner appeals his convictions, following a
jury trial, for murder and having a weapon while under disability. In four assignments
of error, he argues that his convictions were not supported by sufficient evidence and
were against the manifest weight of the evidence, that he received ineffective
assistance from his trial counsel, and that the record does not support the imposition
of consecutive sentences.
{¶2} For the reasons set forth in this opinion, we find Turner’s arguments to
be without merit and affirm the judgment of the trial court.
I. Factual and Procedural History
{¶3} On August 10, 2022, Turner was charged in a six-count indictment with
two counts of murder in violation of R.C. 2903.02(A) and (B), two counts of felonious
assault in violation of R.C. 2903.11(A)(1) and (A)(2), and two counts of having a
weapon while under disability in violation of R.C. 2923.13(A)(2) and (A)(3). The
charges for murder and felonious assault carried accompanying weapon
specifications.
{¶4} The charges in this case concerned Turner’s role in the death of A.Z. On
July 31, 2022, A.Z., who was on foot, was pursued by a vehicle driven by Ronnicea
McCary. McCary had two passengers in her vehicle. The front-seat passenger was
Cordall Thompson, and the State alleged that Turner was the second passenger.
Thompson ultimately exited McCary’s vehicle, pursued A.Z. on foot, and shot and
killed him. Turner was charged under a theory of complicity.
{¶5} Turner was tried before a jury on all counts in the indictment except for
the weapon-under-disability charge in Count 6. The evidence presented at trial
established that after A.Z. was pursued and shot by the persons in McCary’s vehicle,
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he collapsed in front of a home on Lockhurst Lane. Paramedics were called to the home
and A.Z. was transported to the hospital, where he died. His official cause of death was
exsanguination caused by multiple gunshot wounds to his extremities.
{¶6} Trial testimony from Cincinnati Police Detectives Carl Beebe and
Aubrey Pitts, both of whom investigated A.Z.’s death, established that during the
investigation, the police accessed footage from Cincinnati’s Real Time Crime Center
cameras and from surveillance cameras operated by the Sands Senior Apartments.
These cameras captured the pursuit of A.Z. by a white Lincoln Navigator and then by
one of the passengers from that vehicle who chased A.Z. on foot. The Navigator had
two distinguishing characteristics: a fuel door that was a different color than the rest
of the vehicle and a missing hub cap on the left rear wheel. This video footage from the
surveillance cameras, along with an officer’s body-worn-camera footage, was compiled
into an exhibit for trial chronicling the pursuit.
{¶7} Detective Pitts testified in detail about the events depicted in the video
exhibit while the video was simultaneously played for the jury. He explained that the
first scene of the video depicted A.Z. parking his car on a downtown street at
approximately 2:35 a.m. on July 31, 2022, exiting from the vehicle, and walking away.1
At approximately 2:46 a.m., the cameras captured A.Z. as he walked down a nearby
alley, across a street, and into the parking lot of the Sands Senior Apartments. Several
seconds later, the white Lincoln Navigator, driven by McCary, drove the wrong way
down the one-way street that A.Z. had crossed. The vehicle slowed down, and several
bursts of gunfire were expelled from it.
1 Trial testimony from Detective Beebe and Jennifer Strack, the property manager for Sands Senior
Apartments, established that the time stamp on the video footage obtained from the cameras operated by Sands Senior Apartments was seven minutes fast. Any time referenced in this opinion accounts for this difference and is in real time.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} Detective Pitts’s narration of the video exhibit established that
Thompson exited from the front passenger seat of the vehicle and fired at A.Z. as he
chased him through the parking lot of the Sands Senior Apartments. Shots were also
fired at A.Z. by both McCary, who was driving, and the second passenger, who was
seated in the back of the vehicle. The muzzle flashes from the shots were captured by
the surveillance cameras and depicted on the video. After Thompson exited the car,
the second passenger moved from the back of the vehicle to the front passenger seat.
Detective Pitts explained that Thompson continued to chase and shoot at A.Z. while
A.Z. ran towards the front of the Sands Senior Apartments, down a set of stairs, and
across a street.
{¶9} McCary’s vehicle followed the path of the foot chase along downtown
streets, until it eventually stopped on Poplar Street and pulled to the side of the road.
The second passenger, who was wearing black shorts and a white shirt, exited the
vehicle with a rifle and walked in the same direction that Thompson had chased A.Z.
Both the second passenger and Thompson returned to the vehicle less than a minute
later. Detective Pitts testified that the video depicted the second passenger putting the
rifle back in the car. He further explained that after both passengers returned to the
vehicle, it would not start, prompting Thompson and the second passenger to open the
hood.
{¶10} Detective Pitts testified that the video depicted flashing lights from
approaching police vehicles as the two men worked on the car. Thompson eventually
got into the front seat of the vehicle and McCary drove away. The second passenger
walked down the street towards the approaching police lights at 2:48 a.m. Detective
Pitts explained that the next portion of the video depicted footage obtained from the
body-worn camera of Cincinnati Police Officer Thomas Sanders. The body-worn-
4 OHIO FIRST DISTRICT COURT OF APPEALS
camera footage showed Officer Sanders stop the second passenger at 2:49 a.m. as he
walked down the street.
{¶11} Testimony from Officer Sanders corroborated Detective Pitts’s
explanation of the video evidence. Officer Sanders testified that he was dispatched for
a report of shots fired on July 31, 2022. According to Officer Sanders, he saw an
individual walking towards him as he drove down Poplar Street. He stopped and asked
this individual if he had heard any shots. Officer Sanders did not obtain any personal
or identifying information from this individual, but the person was later identified by
Cincinnati Police Officer Andy Sullivan as Turner.
{¶12} Officer Sullivan testified that he has patrolled the West End area where
A.Z. was pursued and shot since 2017 and is familiar with the area and the people in
the community. He explained that because of that familiarity, he was asked for help
identifying an individual that was captured on Officer Sanders’s body-worn-camera
footage. Officer Sullivan identified Turner as the individual that Officer Sanders had
stopped. He testified that he was familiar with Turner and had seen him at least a
dozen times prior.
{¶13} Detective Beebe testified in detail about the investigation into A.Z.’s
death, and explained how McCary was linked to the vehicle that pursued A.Z. He stated
that after reviewing the video footage and querying records from the Ohio Bureau of
Motor Vehicles, he was able to determine a license plate for the Lincoln Navigator
captured by the surveillance cameras. The vehicle was registered to McCary. Detective
Beebe tracked the vehicle to an area in the West End near the scene of the homicide
and recovered it just before 2:00 p.m. on the day of the shooting. McCary was standing
outside the vehicle when the police arrived to seize it. According to Detective Beebe,
all four car doors were open and it appeared that McCary was cleaning the vehicle.
5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} Detective Beebe testified that the vehicle was towed to a processing
garage and examined. Three weapons were recovered during the search of the vehicle:
a rifle was found in a black bag on a back seat, a Smith and Wesson M&P 9 mm Shield
pistol was found in a bag on the front passenger seat, and a Smith and Wesson M&P
.40-caliber pistol was found in the glovebox.
{¶15} Criminalist Gianna Favro testified that she processed several crime
scenes in this case, including the location where A.Z. collapsed and several areas near
the Sands Senior Apartments. Collectively, she recovered 12 .40-caliber casings, eight
9 mm casings, one .380 casing, one .45 casing, and several pieces of jacketing and lead
core. She also recovered a .45-caliber Hi-Point firearm near the area where A.Z.’s body
was discovered. Favro stated that she assisted in the processing of the Lincoln
Navigator, and she offered testimony that largely echoed that offered by Detective
Beebe concerning the weapons that were recovered from the vehicle. She further
testified that the exterior of the Navigator had several bullet holes. Favro additionally
stated that she swabbed multiple items in the vehicle for DNA testing, including the
recovered firearms.
{¶16} The swabs taken by Favro were processed by a forensic scientist in the
serology department of the Hamilton County Coroner’s Office. Testimony presented
at trial established that both McCary’s and Thompson’s DNA was found on several
items recovered from the vehicle, but no recovered DNA was linked to Turner. The
DNA found on all the weapons recovered from the Navigator was insufficient to run a
comparison or pull out a major profile.
{¶17} McCary’s driver’s license, as well as probation paperwork addressed to
Thompson, were found in the vehicle. Thompson’s fingerprints were found on the
probation paperwork.
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{¶18} Bridget Chambers, a forensic scientist in the firearms-identification
section of the Hamilton County Coroner’s Office, testified that she examined the
firearms, bullets, and casings that were recovered in this case. Chambers testified that
the .40-caliber Smith and Wesson M&P was determined to be operable and to have
fired the recovered .40-caliber casings. The Smith and Wesson M&P 9 mm Shield
pistol was also determined to be operable, and five of the recovered 9 mm casings were
determined to have been fired from that weapon. The .45-caliber Hi-Point firearm was
test fired and found to be operable and to have fired the recovered .45-caliber casing.
Chambers further testified that the rifle was not examined because none of the
recovered evidence could have been fired from that weapon.
{¶19} In addition to testifying about the video exhibit, Detective Pitts testified
that during his investigation he listened to telephone calls that Turner placed while
incarcerated. He referenced a particular call in which Turner admitted that he “gave
the girl a jump.” This call was played for the jury, and Detective Pitts identified Turner
as the voice on the call. Turner can be heard on the call discussing the evidence against
him and stating that he was caught on video “giving a girl a jump” and “that’s it bruh,
me giving her a jump.”
{¶20} Detective Pitts’s testimony did not link Turner to a particular firearm
that was recovered from McCary’s vehicle. While Detective Pitts testified that he
believed Thompson operated the .40-caliber gun, he could not state which weapon
Turner had used while firing at A.Z. from the backseat of the vehicle. Detective Pitts’s
testimony also addressed Turner’s attire when these events unfolded. He stated that
Turner had been wearing black shorts and a tight white t-shirt.
{¶21} The jury found Turner guilty of all offenses. The trial court imposed a
sentence of 15 years’ to life imprisonment for the offense of murder in Count 1, along
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with a consecutive three years of imprisonment for the accompanying weapon
specification. The remaining count of murder and both counts of felonious assault
were merged with Count 1 at sentencing. A sentence of 36 months of imprisonment
was imposed for the offense of having a weapon while under disability in Count 5. That
sentence was ordered to be served consecutively to the sentence imposed for Count 1,
resulting in an aggregate sentence of 21 years’ to life imprisonment. A corresponding
entry reflecting this sentence was issued on February 20, 2024.
{¶22} Turner appealed the trial court’s judgment, but this court dismissed the
appeal for lack of a final order because Count 6 of the indictment, which charged
Turner with a second count of having a weapon while under disability, had not been
resolved. The trial court subsequently issued an entry dismissing Count 6. The trial
court also issued a nunc pro tunc sentencing entry on April 11, 2024. This entry set
forth the same sentences that had been imposed at the sentencing hearing and that
were in the original sentencing entry, and it reflected the dismissal of Count 6.
However, it incorrectly stated that the aggregate sentence imposed was “twenty-one
(21) year to life, six (6) years in the Department of Corrections.” Turner has appealed
from this nunc pro tunc sentencing entry.
{¶23} Before turning to the merits of Turner’s appeal, we must address a
problem with the trial court’s nunc pro tunc entry. The purpose of a nunc pro tunc
entry is to reflect “what a court ‘actually decided, not what the court might or should
have decided or what the court intended to decide.’” State v. Ware, 2014-Ohio-5201,
¶ 16, quoting State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 164 (1995). In other
words, the use of a nunc pro tunc entry is “limited to the subsequent recording of a
judicial action previously and actually taken.” (Cleaned up.) Miller v. Watkins, 2004-
Ohio-3132, ¶ 6 (1st Dist.).
8 OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} Here, the trial court improperly used the nunc pro tunc entry to reflect
the dismissal of Count 6, which was a substantive change in the judgment and not a
mere reflection of what actually occurred. See id. at ¶ 8. As such, the nunc pro tunc
entry was invalid. Id. at ¶ 8-9. Because the nunc pro tunc entry was invalid, the trial
court’s original sentencing entry remains in effect. State v. Rowland, 2002 Ohio App.
LEXIS 1463, *5 (3d Dist. Mar. 29, 2002) (disregarding an invalid nunc pro tunc entry
and holding that the entry originally issued therefore remained in effect); accord
Pollock v. Hall, 2017-Ohio-1218, ¶ 10-11 (6th Dist.). And as the trial court has since
issued an entry reflecting the dismissal of Count 6, no charges remain unresolved, and
the original sentencing entry is a final and appealable order.
II. Sufficiency and Weight of the Evidence
{¶25} In his first and second assignments of error, Turner challenges the
sufficiency and the weight of the evidence supporting his convictions. We address
these assignments together.
{¶26} Turner challenges the evidence supporting all five offenses for which the
jury returned guilty verdicts. But no sentences were imposed for the offenses of
murder in Count 2 or felonious assault in Counts 3 and 4 because those offenses were
merged at sentencing with the offense of murder in Count 1. In the absence of the
imposition of a sentence, Turner was not convicted of these offenses. See State v.
Cooper, 2019-Ohio-2813, ¶ 15 (1st Dist.). And in the absence of a judgment of
conviction, “we do not consider a challenge to the sufficiency or the weight of the
evidence” with respect to the merged offenses. Id.
{¶27} In reviewing a challenge to the sufficiency of the evidence, we must
determine 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
9 OHIO FIRST DISTRICT COURT OF APPEALS
crime proven beyond a reasonable doubt.” (Cleaned up.) State v. Walker, 2016-Ohio-
8295, ¶ 12.
{¶28} In contrast, when reviewing a challenge to the manifest weight of the
evidence, this court must “review the entire record, weigh the evidence, consider the
credibility of the witnesses, and determine whether the trier of fact clearly lost its way
and created a manifest miscarriage of justice.” State v. Powell, 2020-Ohio-4283, ¶ 16
(1st Dist.), citing State v. Thompkins, 1997-Ohio-52, ¶ 25.
{¶29} Turner was convicted of murder in violation of R.C. 2903.02(A), which
provides that “[n]o person shall purposely cause the death of another.” He was charged
under a theory of complicity pursuant to R.C. 2923.03. This statute states that
No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of
section 2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the
offense.
R.C. 2923.03(A)(1)-(4).
{¶30} Turner was additionally convicted of having a weapon while under
disability in violation of R.C. 2923.13(A)(2), which provides in relevant part that
“[u]nless relieved from disability under operation of law or legal process, no person
shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if . . .
[t]he person is under indictment for or has been convicted of any felony offense of
violence.” Turner stipulated that he was previously convicted of an offense that
10 OHIO FIRST DISTRICT COURT OF APPEALS
prohibited him from acquiring, having, carrying, or using a firearm, and that he had
not been relieved from that disability.
{¶31} In his challenges to the sufficiency and weight of the evidence, Turner
argues that the evidence failed to identify him as the perpetrator of the offenses. He
concedes that, other than the identity of the second passenger who was an accomplice
to McCary and Thompson, the facts are not in dispute, and he does not challenge any
other elements of the offenses. We accordingly must determine whether the evidence
established that Turner was the second passenger in McCary’s vehicle.
{¶32} The video exhibit and Detective Pitts’s accompanying narration
established that the second passenger fired shots at A.Z. while seated in the back seat
of the vehicle. That passenger, who wore a white shirt and dark shorts, subsequently
moved to the front passenger seat before exiting from the vehicle with a rifle and
walking in the same direction that Thompson had chased A.Z.
{¶33} That passenger and Thompson returned to the vehicle, where they both
lifted the hood and examined underneath. The problem with the vehicle was seemingly
fixed, as it drove away shortly thereafter with Thompson inside. The second passenger
walked down Poplar Street at 2:48 a.m. and was illuminated by spotlights from
approaching police vehicles as he walked.
{¶34} The next section of the video exhibit depicted Officer Sanders stop a
person waking down Poplar Street at 2:49 a.m. and ask him if he had heard any shots
fired. The person stopped by Officer Sanders was wearing the same-colored clothing
as the second passenger, and the timing of the video established that Officer Sanders
pulled to the curb near this person at the same time the second passenger was walking
down the street.
{¶35} We hold that this evidence was sufficient to establish that the second
11 OHIO FIRST DISTRICT COURT OF APPEALS
passenger was the same person stopped by Officer Sanders. And that person was
identified by Officer Sullivan as Turner. Further establishing Turner’s identity as the
second passenger was his jail telephone call, during which he discussed the evidence
against him and stated that he was caught on video “giving a girl a jump.”
{¶36} Turner further argues that there was no evidence that he was complicit
in the commission of these offenses. The record, however, belies this assertion. Where
an offender is charged with complicity, the evidence must establish more than the
offender’s “mere association with the principal offender.” (Cleaned up.) State v.
Lawson, 2024-Ohio-2466, ¶ 17 (1st Dist.). Rather, the evidence must show that the
offender “actively participate[d] in the offense” by assisting or encouraging the
principal offender. Id. Here, as summarized in the preceding paragraphs, the evidence
established that Turner fired at A.Z. from the backseat of McCary’s vehicle and then,
while carrying a rifle, followed on foot the path that Thompson had chased A.Z. These
actions constitute more than “mere association” and demonstrate “active[]
participat[ion] in the offense.” Id.
{¶37} We accordingly hold that Turner’s convictions for murder and having a
weapon while under disability were supported by sufficient evidence.
{¶38} In support of his contention that his convictions were against the
manifest weight of the evidence, Turner relies on State v. Short, 2024-Ohio-92 (10th
Dist.), a recent case out of the Tenth District. In Short, the defendant was found guilty
of multiple offenses including, as relevant to this appeal, several counts of aggravated
murder. Id. at ¶ 5. The Tenth District reversed one of Short’s aggravated-murder
convictions after determining that it was against the manifest weight of the evidence.
Id. at ¶ 90.
{¶39} In reversing, the court explained that there were no eyewitnesses to this
12 OHIO FIRST DISTRICT COURT OF APPEALS
offense and no physical evidence tying Short to the scene. Id. at ¶ 38-39, 63. The court
acknowledged that “home surveillance footage in the neighborhood captured a person
walk up to the U-Haul, pull out a handgun, shoot through the U-Haul’s passenger
window multiple times, and run away,” and that a lay witness identified Short as the
shooter in the video. Id. at ¶ 38 and 40. But it found that the surveillance video did
“not show the shooter’s face with any clarity” and was of “poor quality.” (Cleaned up.)
Id. at ¶ 46. The court accordingly determined that the video did not depict the
identifying characteristics that the lay witness attributed to Short when identifying
him in the video, including his gait and his clothing, and that the video “lacked
discernible detail” to support a “credible identification.” Id. at ¶ 54, 55, and 67.
{¶40} We find Short to be distinguishable. First, the quality of the video in the
case at bar is not nearly as poor as that described in Short. While the video is in night
vision and portions of the video depict the captured scene from a distance, the clothing
of the second passenger is readily identifiable. Further, notably absent in Short is any
statement from the defendant placing himself at the scene of the crime. Here, the
record contains Turner’s statement that he was caught on video “giving a girl a jump.”
Turner’s own statement corroborated the video evidence, which showed the second
passenger working underneath the hood of McCary’s vehicle.
{¶41} Turner further contends that there was no physical evidence linking him
to McCary’s vehicle or to any of the recovered weapons. But such evidence is not
necessary to sustain a conviction. State v Carter, 2023-Ohio-18, ¶ 17 (1st Dist.),
quoting State v. Peeples, 2014-Ohio-4064, ¶ 21 (10th Dist.) (“‘a lack of physical
evidence, standing alone, does not render appellant’s conviction against the manifest
weight of the evidence’”). The jury was entitled to rely on the video evidence and
Turner’s own statement acknowledging that he had given a jump to McCary’s vehicle.
13 OHIO FIRST DISTRICT COURT OF APPEALS
This was not the rare case in which the jury lost its way and committed a manifest
miscarriage of justice in convicting Turner. See Powell, 2020-Ohio-4283, at ¶ 16 (1st
Dist.). We accordingly hold that Turner’s convictions were not against the manifest
weight of the evidence.
{¶42} The first and second assignments of error are overruled.
III. Ineffective Assistance
{¶43} In his third assignment of error, Turner argues that he received
ineffective assistance from his trial counsel because counsel failed to engage an expert
to conduct an independent examination of the firearms and to enhance the video of
the incident.
{¶44} Counsel will not be considered ineffective unless her or his performance
was deficient and caused actual prejudice to the defendant. Strickland v. Washington,
466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).
Counsel’s performance will only be deemed deficient if it fell below an objective
standard of reasonableness. Strickland at 687-688; Bradley at 142. A defendant is
only prejudiced by counsel’s performance if there is a reasonable probability that the
outcome of the proceedings would have been different but for the deficient
performance. Strickland at 694; Bradley at 142. A reviewing court must indulge a
presumption that counsel’s behavior fell within the acceptable range of reasonable
professional assistance. Strickland at 689; Bradley at 142.
{¶45} We first address Turner’s contention that trial counsel was ineffective
for failing to engage an expert to conduct an independent examination of the recovered
firearms. Turner acknowledges that the State’s forensic scientist testified as to the lack
of DNA or fingerprints from Turner on any of the processed items, but he argues that
it would have given tremendous credibility to his case if his counsel had presented
14 OHIO FIRST DISTRICT COURT OF APPEALS
independent testing to the jury highlighting the lack of physical evidence and
impressing upon the jury that he did not fire a weapon.
{¶46} We find Turner’s argument to be wholly without merit. First, contrary
to Turner’s assertion, the lack of physical evidence linking him to a firearm does not
equate to a determination, or require the jury to conclude, that he never fired a
weapon. Second, not only did the State present testimony on this exact topic, but the
State’s expert plainly testified that Turner was not a major contributor to the DNA
recovered on any of the items submitted for testing, including the firearms. We fail to
see how a second expert testifying to this same information would have assisted
Turner’s defense, and we hold that Turner has not established that there is a
reasonable probability that the outcome of the proceedings would have been different
but for counsel’s failure to retain an independent expert to examine the firearms. See
Strickland at 694; Bradley at 142.
{¶47} Turner next argues that trial counsel was ineffective for failing to engage
an expert to enhance the quality of the surveillance video and to examine the time
stamps on the video. He contends that the enhanced video would have established that
he was wearing different clothing than the second passenger, and that his stature and
height differed from that of the second passenger. But Turner’s assertion as to what
such an expert would have testified to is pure speculation. See State v. Arnold, 2020-
Ohio-2706, ¶ 85 (1st Dist.). As we have explained, “On direct appeal, it is often
impossible for us to review such claims [of ineffective assistance] without any proffer
or other evidence in the record about how a hypothetical expert might have testified.”
State v. Solorio, 2022-Ohio-3749, ¶ 34 (1st Dist.). Given the absence of any proffer in
the record as to what such an expert would have testified to, we hold that Turner has
not demonstrated that there was a reasonable probability that the outcome of the
15 OHIO FIRST DISTRICT COURT OF APPEALS
proceedings would have been different but for counsel’s failure to hire an expert. See
Arnold at ¶ 85.
{¶48} As we recently noted in State v. Collins, 2024-Ohio-5112, ¶ 73 (1st Dist.),
claims of ineffective assistance that are dependent upon evidence outside of the trial
record are better suited for petitions for postconviction relief pursuant to R.C. 2953.21,
or similar proceedings where evidence outside the trial record can be introduced.
{¶49} We accordingly overrule Turner’s third assignment of error.
IV. Consecutive Sentences
{¶50} In his fourth assignment of error, Turner argues that the trial court
erred in the imposition of consecutive sentences.
{¶51} Pursuant to R.C. 2953.08(G)(2), we may only modify or vacate a felony
sentence if we clearly and convincingly find that the record does not support the trial
court’s sentencing findings under certain specified divisions, including R.C.
2929.14(C)(4), or that the sentence is otherwise contrary to law. See State v. Truesdell,
2024-Ohio-5376, ¶ 72 (1st Dist.). Turner contends that the sentences imposed for the
offenses of murder and having a weapon while under disability should have been run
concurrently because the facts in the record did not support the imposition of
consecutive sentences.
{¶52} Before imposing consecutive sentences, a trial court must make certain
findings set forth in R.C. 2929.14(C)(4). It must find that consecutive sentences are
“necessary to protect the public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public.” R.C. 2929.14(C)(4). The
court must also find any of the following:
(a) The offender committed one or more of the multiple offenses
16 OHIO FIRST DISTRICT COURT OF APPEALS
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of
the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4)(a)-(c). While a trial court must make the findings set forth in R.C.
2929.14(C)(4), it is not required to provide reasons in support thereof. State v. Gill,
2024-Ohio-2792, ¶ 45 (1st Dist.).
{¶53} In support of the imposition of consecutive sentences, the trial court
stated,
I do specifically find that it is necessary to protect the public
and/or punish the offender and not disproportionate to the seriousness
of the offender’s conduct and the danger the offender poses to the
public.
I also find that the harm caused by two or more of the offenses
was so great or unusual no single prison term for any offense committed
as part of one or more courses of conduct would adequately reflect the
seriousness of the offender’s conduct. And the offender’s criminal
17 OHIO FIRST DISTRICT COURT OF APPEALS
history shows a need to protect the public.
Mr. Turner does have an extensive criminal record. There’s
violence in that record. And obviously murder is about as violent as you
can get.
{¶54} The trial court made the findings required by R.C. 2929.14(C)(4) before
imposing consecutive sentences. Turner, however, contends that the trial court’s
proportionality finding was not supported by the record because, even if this court
determines that he was the second passenger in the vehicle, there is no evidence in the
record that he had or used a firearm. We disagree. As set forth in our analysis of
Turner’s first and second assignments of error, the sufficiency and the weight of the
evidence established that Turner was the second passenger in McCary’s vehicle, that
Turner fired at A.Z. from the vehicle, and that Turner pursued A.Z. on foot while
carrying a rifle. Turner was not merely present for these offenses, but actively
participated in the hunt for and attack on A.Z.
{¶55} We cannot clearly and convincingly find that the record does not
support the trial court’s findings in support of the imposition of consecutive sentences.
Turner’s fourth assignment of error is overruled.
{¶56} The judgment of the trial court is accordingly affirmed.
Judgment affirmed.
KINSLEY, P.J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.