State v. Kipker

2023 Ohio 679

• Court: Ohio Court of Appeals
• Decided: March 6, 2023
• Docket: 8-22-19, 8-22-20, 8-22-21
• Status: Published

Opinion

[Cite as State v. Kipker, 2023-Ohio-679.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-22-19

v.

TERRANCE M. KIPKER, OPINION

DEFENDANT-APPELLANT.

PLAINTIFF-APPELLEE, CASE NO. 8-22-20

PLAINTIFF-APPELLEE, CASE NO. 8-22-21

DEFENDANT-APPELLANT. Case Nos. 8-22-19, 8-22-20 and 8-22-21

Appeals from Logan County Common Pleas Court Trial Court Nos. CR21 06 0167, CR22 03 0075 and CR22 02 0055

Appeal Dismissed in 8-22-19 and Judgments Affirmed in 8-22-20 and 8-22-21

Date of Decision: March 6, 2023

APPEARANCES:

William T. Cramer for Appellant

Sarah J. Warren for Appellee

ZIMMERMAN, J.

{¶1} Defendant-appellant, Terrance M. Kipker (“Kipker”), appeals the

judgment entries of sentencing of the Logan County Court of Common Pleas. For

the reasons set forth below, we dismiss in part and affirm in part.

{¶2} On July 13, 2021, in case number CR21 06 0167 (hereinafter “2021

case”), Kipker was indicted by the Logan County Grand Jury on aggravated

trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(1)(c), a third-degree

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felony, together with a specification for forfeiture of money in a drug case under

R.C. 2941.1417(A).1 On July 19, 2021, Kipker entered a not-guilty plea.

{¶3} Then, Kipker was indicted on February 8, 2022, in case number CR22

02 0055, on four criminal charges including Counts One and Three for felonious

assault in violation of R.C. 2903.11(A)(1), (D)(1)(a), both second-degree felonies

and Counts Two and Four for domestic violence in violation of R.C. 2919.25(A),

(D)(3), both fourth-degree felonies.2 On February 1, 2022, Kipker tendered not-

guilty pleas to all counts in the indictment.

{¶4} Then, on March 8, 2022, Kipker was indicted by the Logan County

Grand Jury, in case number CR22 03 0075, for one count of permitting drug abuse

in violation of R.C. 2925.13(B), (C)(3)(a), a fifth-degree felony.3 On March 11,

2022, Kipker entered a plea of not guilty to the indictment.

{¶5} On March 29, 2022, pursuant to a negotiated-plea agreement, Kipker

entered guilty pleas to the indictments in case numbers CR21 06 0167 and CR22 03

0075. Further, the State dismissed Counts One, Two, and Three, in case number

CR22 02 0055, and Kipker agreed to plead guilty to Count Four (i.e., domestic

violence) as indicted. Per the plea agreement, the State agreed to stand silent at

1 The offense was alleged to have occurred on or about June 15, 2021. 2 Count One was alleged to have occurred on or about August 1, 2020; Count Two on or about October 1, 2020 through October 31, 2020; and Counts Three and Four on or about January 11, 2022. 3 The offense was alleged to have occurred on or about June 14, 2021.

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sentencing. The trial court accepted Kipker’s guilty pleas and continued his case

for sentencing.

{¶6} On May 2, 2022, the trial court proceeded to sentencing on all three

cases. The trial court sentenced Kipker to a 30-month prison term in case number

CR21 06 0167. Next, the trial court sentenced Kipker, in case number CR22 02

0055, to a 12-month prison term to be served consecutively to the sentence imposed

in case number CR21 06 0167. Then, the trial court sentenced Kipker to a six-month

prison term, in case number CR22 03 0075, to be served consecutively to the prison

terms imposed in case numbers CR21 06 0167 and CR22 02 0055, for a total

aggregate prison term (in all cases) of 48 months.

{¶7} Kipker filed timely notices of appeal in his 2021 and 2022 cases, which

we have consolidated. Kipker raises one assignment of error for our review.

Appeal 8-22-19

{¶8} However, before we address the merits of Kipker’s appeals, we note

that Kipker (in his brief) does not present any arguments challenging the sentence

imposed in his 2021 case. Rather, his assignment of error only challenges the

consecutive sentences imposed in his 2022 cases, which were run consecutively to

his 2021 case. Since there are no issues raised or error assigned below in appellate

case number 8-22-19, that appeal is dismissed. See State v. Taylor, 3d Dist. Seneca

Nos. 13-19-21 and 13-19-22, 2019-Ohio-4719, ¶ 8. Therefore, we will only

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consider Kipker’s assignment of error as it pertains to his cases in appellate case

numbers 8-22-20 and 8-22-21.

Appeals 8-22-20 and 8-22-21

Assignment of Error

By clear and convincing evidence, the record does not support the trial court’s consecutive sentence findings under R.C. 2929.14(C)(4).

{¶9} In his assignment of error, Kipker argues that the trial court erred by

imposing consecutive sentences. In particular, Kipker argues that the trial court’s

determination in his 2022 cases is not supported by the record.

Standard of Review

{¶10} 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.

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Analysis

{¶11} Because Kipker committed multiple felony offenses, the presumption

is that his prison terms must be served concurrently and not consecutively. See State

v. Gwynne, ___ Ohio St.3d ___, 2022-Ohio-4607, ¶ 10, citing R.C. 2929.41(A).

R.C. 2929.41(A) provides in its pertinent part, “[e]xcept as provided in * * *

division (C) of section 2929.14, * * * a prison term, jail term, or sentence of

imprisonment shall be served concurrently with any other prison term, jail term, or

sentence of imprisonment imposed by a court of this state, another state, or the

United States.” R.C. 2929.41(A). See also Gwynne at ¶ 10, citing State v. Polus,

145 Ohio St.3d 266, 2016-Ohio-655, ¶ 10 (“[t]he first sentence of R.C. 2929.41(A)

enacts the general rule requiring concurrent sentencing with only clearly delineated

exceptions”); and State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, ¶ 21

(“[t]he general principle set forth in the Revised Code is that concurrent sentences

are the default and consecutive sentences are the exception”). R.C. 2929.14(C)

states in its pertinent part that:

(4) * * * the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is 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, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of

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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.

See also Gwynne at ¶ 10, citing R.C. 2929.14(C)(4).

{¶12} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-

24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive

sentences are necessary to either protect the public or punish the offender; (2) the

sentences would not be disproportionate to the offense committed; and (3) one of

the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id. Further, the trial

court must state the required findings at the sentencing hearing prior to imposing

consecutive sentences and incorporate those findings into its sentencing entry. State

v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. However, a trial court “has no

obligation to state reasons to support its findings.” Bonnell at ¶ 37.

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{¶13} Here, at Kipker’s sentencing hearing, the trial court found that

“consecutive sentences are necessary to protect the public from future crime and to

punish [Kipker]”. (May 2, 2022 Tr. at 16). Further, the trial court found that

“consecutive sentences are not disproportionate to the seriousness of [Kipker’s]

conduct and to the danger that [he] poses to the public.” (Id.).

{¶14} Regarding the factors under R.C. 2929.14(C)(4)(a)-(c), the trial court

found that “[Kipker] was awaiting trial in Case Number CR21-06-0167 at the time

he committed the offenses of CR22-03-0075 and CR22-02-0055”; that “at least two

of the multiple offenses were committed as a single course of conduct and the harm

caused by the multiple offenses was so great that no single prison term for any of

the offenses committed adequately reflects the seriousness of [Kipker’s] conduct”;

and that “[Kipker’s] history of criminal conduct demonstrates consecutive sentences

are necessary to protect the public from future crime by [Kipker]”. (May 2, 2022

Tr. at 16-17). See R.C. 2929.14(C)(4)(a)-(c). Importantly, the trial court

memorialized these findings in its sentencing entry by reciting the language of R.C.

2929.14(C)(4)(a)-(c). (See Case No. CR22 03 0075, Doc. No. 30). (See also Case

No. CR22 02 0055, Doc. No. 38).

{¶15} Based upon our review of the record, we conclude that the trial court

made the statutorily required findings before imposing consecutive sentences at

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Kipker’s sentencing hearing and incorporated those findings into its sentencing

entry.

{¶16} Nevertheless, even though Kipker frames his argument as a

consecutive-sentence challenge, he is truly attacking the trial court’s consideration

of the principles and purposes of felony sentencing under R.C. 2929.11 and R.C.

2929.12. Specifically, he argues the trial court should have addressed his substance-

abuse-addiction issues, which he stated, “would be more useful to [Kipker] than a

lengthy prison term”. However, in Gwynne, the Supreme Court of Ohio “clarified

that R.C. 2929.11 and R.C. 2929.12 do not apply to consecutive-sentencing review.”

State v. Cochran, 3d Dist. Marion No. 9-21-19, 2022-Ohio-885, ¶ 17, citing State v.

Hiles, 3d Dist. Union No. 14-20-21, 2021-Ohio-1622, ¶ 18, citing State v. Gwynne,

158 Ohio St.3d 279, 2019-Ohio-4761, ¶ 17. Consequently, we will not review

Kipker’s consecutive sentences for compliance with R.C. 2929.11 and R.C.

2929.12. Id.

{¶17} Because Kipker has not presented any other argument challenging his

consecutive sentences, we conclude that his consecutive sentences are not clearly

and convincingly unsupported by the record or otherwise contrary to law. Id.

{¶18} Accordingly, Kipker’s sole assignment of error is overruled.

{¶19} For the reasons stated above, we dismiss appellant’s appeal related to

appellate case number 8-22-19, and having found no error prejudicial to the

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appellant herein in the particulars assigned and argued in appellate case numbers 8-

22-20 and 8-22-21, affirm the judgments of the trial court in appellate case numbers

8-22-20 and 8-22-21.

Appeal Dismissed in 8-22-19; Judgments Affirmed in 8-22-20 and 8-22-21

MILLER, P.J. and WILLAMOWSKI, J., concur.

/jlr

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