State v. Shaffer

2022 Ohio 2006

Opinion

[Cite as State v. Shaffer, 2022-Ohio-2006.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. CT2021-0023 CHARLES R. SHAFFER, II. : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2021-0074

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 13, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD WELCH JAMES S. SWEENEY Prosecuting Attorney 285 South Liberty Street BY: TAYLOR P. BENNINGTON Powell, OH 43065 Assistant Prosecutor 27 North Fifth Street Box 189 Zanesville, OH 43701 [Cite as State v. Shaffer, 2022-Ohio-2006.]

Gwin, P.J.

{¶1} Defendant-appellant Charles Shaffer II appeals his sentence from the

Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

Facts & Procedural History

{¶2} On February 4, 2021, the Muskingum County Grand Jury indicted appellant

on the following offenses: three counts of kidnapping, felonies of the first degree, in

violation of R.C. 2905.01(A)(2) and R.C. 2905.01(B)(1); aggravated robbery, a felony of

the first degree, in violation of R.C. 2911.01(A)(1); having a weapon while under disability,

a felony of the third degree, in violation of R.C. 2923.14; and misdemeanor assault, in

violation of R.C. 2903.13(A). The kidnapping counts and the aggravated robbery count

were each accompanied by a repeat violent offender specification and a firearm

specification. At the time of the commission of these offenses, appellant was on post-

release control out of Franklin County for a second-degree felony (robbery) that occurred

in June of 2017.

{¶3} The trial court held a change of plea hearing on March 19, 2021. Counsel

for appellee presented the facts of the case at the plea hearing. Appellant stipulated to

the facts for the purposes of the plea, and reserved the right to argue or supplement the

facts for sentencing.

{¶4} On January 26, 2020, the victim flagged down officers on the street. She

reported appellant had taken her cell phone, hit her in the face, and pointed a gun at her

and her children (ages 4 and 8). The children were in the backseat of her vehicle when

the incident occurred. The victim reported appellant called and asked her to pick him up

after an altercation. The victim picked appellant up and took him to Genesis Hospital. Muskingum County, Case No. CT2021-0023 3

Appellant refused to exit the vehicle at the hospital, and demanded the victim drive away

from the hospital while he held a black and silver firearm.

{¶5} The victim complied with appellant’s demands because she feared for her

and her children’s lives. The victim started to drive towards the police department; when

appellant realized where she was going, he pointed the firearm at the children and told

her not to go near the police department. The victim then drove to a gas station and

parked the vehicle. Appellant grabbed the victim’s phone and smashed the center radio

console so she could not use her Bluetooth to call police. Appellant struck the victim in

the face with a closed fist, and then fled on foot.

{¶6} Appellant admitted that he prevented the victim from exiting the vehicle,

took her cell phone, smashed the center console, and told her he had a gun. However,

during the interview with police, appellant claimed he did not actually have a gun. The

older child stated appellant pointed a gun at him and said he was going to hurt them.

{¶7} Appellant pled guilty to one count of kidnapping, in violation of R.C.

2905.01(A)(2), with a repeat violent offender specification, two counts of kidnapping, in

violation of R.C. 2905.01(B)(1), each with a repeat violent offender specification, and one

count of assault, a first-degree misdemeanor. Appellee agreed to dismiss the aggravated

robbery charge, the weapons under disability charge, and the firearm specifications. Both

appellant and appellee reserved the right to argue for the sentence they felt was

appropriate at the time of sentencing.

{¶8} At the plea hearing, the trial court advised appellant that each of the repeat

violent offender specifications, “carries a possible penalty of an additional one to ten years

of imprisonment if the Court imposes the maximum on them. And then if it is imposed, Muskingum County, Case No. CT2021-0023 4

then that sentence is also mandatory, and it’s mandatory to be served consecutively to

whatever you receive on the kidnapping charge.”

{¶9} Counsel for appellee filed a detailed sentencing memorandum on April 2,

2021. Appellee argued for a sentence of twenty-five years pursuant to the sentencing

factors contained in R.C. 2929.11. Appellee listed the seriousness factors contained in

R.C. 2929.12(B), the mitigating factors in R.C. 2929.12(C), the recidivism factors in R.C.

2929.12(D), and the requirements necessary for consecutive sentences. Appellee

detailed the seriousness factors applicable in this case, including the young ages of two

of the victims, the fact that appellant used his relationship with the victim to lure her into

picking him up while he was high on methamphetamine, the fact that the assault was

committed in the presence of the children, and the length of time during which this took

place. Appellee argued there were no mitigating factors present in this case. Appellee

also argued there are several factors indicating appellant has a higher likelihood that he

will continue to commit crime: appellant has a prior felony conviction of robbery with a

firearm, and appellant was on post-release control when these offenses were committed.

{¶10} The trial court held a sentencing hearing on April 7, 2021.

{¶11} Appellee began by referencing its sentencing memorandum and the

sentencing factors, and argued the factors justify a twenty-five-year prison sentence.

Counsel for appellee highlighted several items he felt the trial court should take into

consideration for sentencing: the ages of the victims (children 4 and 8 years old); the

state of the victims upon arrival (the children were distraught and the 8 year old told

officers appellant pointed a gun at them and said he was going to hurt them); appellant’s Muskingum County, Case No. CT2021-0023 5

prior felony (robbery); and the fact that appellant was on post-release control when these

offenses occurred.

{¶12} Counsel for appellant made several arguments as to why the total prison

sentence should be less than eleven years, with no sentence on the repeat violent

offender specifications. Counsel highlighted the following facts: the victim and appellant

were lifelong friends; appellant was distressed as soon as he got in the victim’s car

because he had taken methamphetamines; appellant did not want to go to the hospital,

but the victim drove him there and felt he should go in because he was in distress; they

sat in the hospital parking lot for awhile; the victim then started to drive around town,

eventually driving to the police station; the kidnapping lasted only five minutes; no one

was harmed; no gun was recovered; appellant is now clean; and his criminal record is not

extensive.

{¶13} Appellant apologized to the victims and admitted he was wrong, but stated

he should not get “a whole bunch of time” because he “didn’t hurt nobody” and he was

not a violent person.

{¶14} The trial court stated it reviewed appellee’s sentencing memorandum and a

letter from one of the victims. The trial court noted appellant’s prior felony involved a

firearm, and that he was on post-release control at the time of these offenses. The court

stated there is nothing in what appellant said to justify scaring two children. The trial court

explained it was imposing consecutive sentences for a variety of reasons, including:

appellant was on post-release control at the time these offenses were committed; the

victims’ ages; there were multiple victims; while the time period the kidnapping lasted is

in debate, it was more than a few minutes; and his prior offense involved a firearm. The Muskingum County, Case No. CT2021-0023 6

trial court, “finds that this sentence is necessary to protect the public. It’s based upon the

seriousness of the conduct involved and the danger you pose to the public.” Further,

“these offenses were committed as part of one or more courses of conduct and caused

harm to two or more individuals that was so great or unusual that no single prison term

for any of the offenses committed as part of that course of conduct adequately reflects

the seriousness of the offender’s conduct.”

{¶15} At the hearing, the trial court sentenced appellant to a mandatory prison

term of eleven years on each of the first-degree felony kidnapping charges, and two years

in prison on each of the three repeat violent offender specifications, with the second and

third kidnapping counts to be run consecutively with each other, but concurrent to the first

count, for an aggregate mandatory minimum prison sentence of twenty-six years and an

indefinite prison sentence of thirty-one and a half years.

{¶16} This sentenced was memorialized in an entry dated April 9, 2021. In the

judgment entry, the trial court stated it, “considered the record, all statements, any victim

impact statement, the plea recommendation in this matter, as well as the principles and

purposes of sentencing under Ohio Revised Code 2929.11 and its balance of seriousness

and recidivism factors under Ohio Revised Code 2929.12.” Additionally, the trial court

stated it “made judicial findings that the Defendant has a prior felony conviction involving

a firearm, there were multiple victims, two victims were minors, and that the Defendant

committed the offenses herein while on post release control.”

{¶17} Appellant appeals the judgment entry of the Muskingum County Court of

Common Pleas and assigns the following as error: Muskingum County, Case No. CT2021-0023 7

{¶18} “I. THE TRIAL COURT’S SENTENCE ON THE REPEAT VIOLENT

OFFENDER SPECIFICATIONS WAS CONTRARY TO LAW.

{¶19} II. THE TRIAL COURT’S TOTAL SENTENCE WAS NOT SUPPORTED BY

THE RECORD AND WAS CONTRARY TO LAW.”

I.

{¶20} In his first assignment of error, appellant argues the trial court’s sentence

on the repeat violent offender (“RVO”) specifications was contrary to law. Appellant

contends the trial court failed to make the required findings, failed to give the reasons for

these findings that are required to impose a sentence on an RVO, and failed to consider

the recidivism factors contained in R.C. 2929.12.

{¶21} The trial court imposed the RVO specifications in this case pursuant to R.C.

2929.14(B)(2)(a). This section states as follows:

If division (B)(2)(b) does of this section does not apply, the court may

impose on an offender, in addition to the longest prison term authorized or

required for the offense or, for offenses for which division (A)(1)(a) or (2)(a)

of this section applies, in addition to the longest minimum prison term

authorized or required for the offense, an additional definite prison term of

one, two, three, four, five, six, seven, eight, nine, or ten years if all of the

following criteria are met:

(i) The offender is convicted of or pleads guilty to a specification of the type

described in section 2941.149 of the Revised Code that the offender is a

repeat violent offender. Muskingum County, Case No. CT2021-0023 8

(ii) The offense of which the offender currently is convicted or to which the

offender currently pleads guilty is * * * any felony of the first degree that is

an offense of violence and the court does not impose a sentence of life

imprisonment without parole * * *.

(iii) The court imposes the longest prison term for the offense or the longest

minimum prison term for the offense, whichever is applicable, that is not life

prisonment without parole.

(iv) The court finds that the prison terms imposed pursuant to division

(B)(2)(a)(iii) of this section, and if applicable, division (B)(1) or (3) of this

section as inadequate to punish the offender and protect the public from

future crime, because the applicable factors under section 2929.12 of the

Revised Code indicating a greater likelihood of recidivism outweigh the

applicable factors under that section indicating a lesser likelihood of

recidivism.

(v) The court finds that the prison terms imposed pursuant to division

(B)(2)(a)(iii) of this section and, if applicable, division (B)(1) or (3) of this

section are demeaning to the seriousness of the offense, because one or

more of the factors under section 2929.12 of the Revised Code indicating

that the offender’s conduct is more serious than conduct normally

constituting the offense are present, and they outweigh the applicable

factors under that section indicating that the offender’s conduct is less

serious than conduct normally constituting the offense. Muskingum County, Case No. CT2021-0023 9

{¶22} Appellant pled guilty to the RVO specifications. The offenses to which

appellant pled guilty are first-degree felonies and are offenses of violence, as defined in

R.C. 2901.01(A)(9). Appellant received the maximum sentence that was not life without

parole. Accordingly, R.C. 2929.14(B)(2)(a)(i), (ii), and (iii) are met.

{¶23} R.C. 2929.14(B)(2)(e) requires that a trial court state the findings justifying

the sentence imposed on a person pursuant to an RVO specification under R.C.

2929.14(B)(2)(a).

{¶24} In cases determining whether a trial court has complied with R.C.

2929.14(B)(2)(e), this Court has cited the following quote from the Eighth District Court of

Appeals:

Similar to the conclusion that “talismanic” words are not required when

imposing consecutive sentences under 2929.14(C)(4), there are no magic

words that must be recited by the trial court when making the RVO findings

under 2929.14(B)(2)(a). As long as the reviewing court can discern from

the record that the trial court engaged in the correct analysis and can

determine that the record contains evidence to support the findings, the

sentence on the RVO specification should be upheld.

State v. Watts, 8th Dist. Cuyahoga No. 104269, 2017-Ohio-532; State v. Hullinger, 5th

Dist. Muskingum No. CT2018-0056, 2019-Ohio-3484; State v. Conley, 5th Dist. Stark No.

2012CA00150, 2013-Ohio-4137; State v. Crookshanks, 5th Dist. Muskingum No.

CT2018-0056, 2019-Ohio-3484.

{¶25} The trial court considered the recidivism and seriousness factors pursuant

to R.C. 2929.14(B)(2)(a)(iv) and (v). First, the trial court initially stated that appellant’s Muskingum County, Case No. CT2021-0023 10

prior felony involved a firearm, that appellant was on post-release control at the time of

these offenses, and that there is nothing in what appellant said to justify scaring two child

victims. Next, when considering the imposition of consecutive sentences and taking into

consideration the factors contained in R.C. 2929.12, the trial court pointed out the

following: appellant was on post-release control at the time these offenses were

committed; the victims’ ages were 4 and 8 years old; there were multiple victims; the

kidnapping lasted more than a few minutes; and appellant’s prior offense involved a

firearm. The court additionally stated the sentence was necessary to protect the public,

and is based on the seriousness of the conduct involved and the danger appellant poses

to the public. Finally, the trial court specifically stated it reviewed appellee’s sentencing

memorandum. In the memorandum, appellee completed a detailed review of the factors

in R.C. 2929.11 and R.C. 2929.12.

{¶26} The trial court, in its judgment entry, stated it considered “the record, all

statements, the victim impact statement, the plea recommendation in this matter, as well

as the principles and purposes of sentencing under Ohio Revised Code 2929.11 and its

balance of seriousness and recidivism factors under Ohio Revised Code 2929.12.” Also

in its judgment entry, the trial court specifically noted it made the finding that appellant

has a prior conviction involving a firearm, there were multiple victims, two victims were

minors, and appellant committed the offenses while on post-release control.

{¶27} Upon our review of the record, we find the trial court considered the

appropriate recidivism and seriousness factors, made the required findings, gave the

reasons for its findings, and properly applied the statutory guidelines before sentencing

appellant on the RVO specifications. Muskingum County, Case No. CT2021-0023 11

{¶28} Appellant’s first assignment of error is overruled.

II.

{¶29} In his second assignment of error, appellant argues the trial court erred in

imposing an aggregate mandatory minimum prison sentence of twenty-six years and an

{¶30} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231; State

v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049. R.C. 2953.08(G)(2)

provides we may either increase, reduce, modify, or vacate a sentence and remand for

resentencing where we clearly and convincingly find that either the record does not

support the sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or

(C)(4), or 2929.20(l), or the sentence is otherwise contrary to law.

{¶31} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954).

{¶32} Appellant argues his sentence is contrary to law because the trial court

failed to impose the sentence in accordance with sentencing statutes, specifically R.C.

2929.12, because the trial court: did not consider that the victim had no marks or physical

injuries as a result of the incident; and failed to consider that appellant was under serious

duress at the time of the incident.

{¶33} In State v. Roberts, we explained nothing in R.C. 2953.08(G)(2) permits this

Court to independently weigh the evidence in the record and substitute its own judgment

for that of the trial court to determine a sentence that best reflects compliance with R.C. Muskingum County, Case No. CT2021-0023 12

2929.11 and R.C. 2929.12. 5th Dist. Richland No. 2020 CA 0035, 2021-Ohio-90.

Appellant was found guilty of three counts of kidnapping, each felonies of the first degree.

The trial court sentenced appellant within the applicable sentencing range, and he does

not argue otherwise.

{¶34} This Court is therefore without authority to disturb appellant’s sentence

absent a finding by clear and convincing evidence that the record does not support the

trial court’s findings under R.C. 2929.11 and R.C. 2929.12.

{¶35} A sentence is not clearly and convincingly contrary to law where the trial

court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post-release control, and sentences the defendant

within the permissible statutory range.” State v. Morris, 5th Dist. Ashland No. 20-COA-

015, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-03-026,

2019-Ohio-4209.

{¶36} In its judgment entry, the trial court noted it considered the record, all

statements, and the factors set forth in R.C. 2929.11 and R.C. 2929.12. During the

sentencing hearing, the trial court specifically stated it reviewed appellee’s sentencing

memorandum, which listed and analyzed the factors in R.C. 2929.11 and R.C. 2929.12

as they apply to this case. The trial court noted appellant’s prior felony involved a firearm,

and that appellant was on post-release control at the time of this offense. The trial court

also noted there were multiple victims in this case, and that two of these victims were

young children.

{¶37} The trial court sentenced appellant within the applicable sentencing range.

The sentencing judgment entry indicates the trial court’s consideration of R.C. 2929.11 Muskingum County, Case No. CT2021-0023 13

and R.C. 2929.12, and post-release control was properly imposed. We therefore do not

find appellant’s sentence to be clearly and convincingly contrary to law nor is his sentence

unsupported by the record.

{¶38} Appellant’s second assignment of error is overruled.

{¶39} Based on the foregoing, appellant’s assignments are overruled.

{¶40} The judgment entry of the Muskingum County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, John, J., concur