[Cite as State v. Shaffer, 2026-Ohio-2042.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY
STATE OF OHIO, CASE NOS. 2025-T-0059 CITY OF WARREN, 2025-T-0060
Plaintiff-Appellee, Criminal Appeals from the - vs - Warren Municipal Court
DAVID A. SHAFFER, JR., Trial Court Nos. 2023 CRB 000300 Defendant-Appellant. 2023 CRB 000231
OPINION AND JUDGMENT ENTRY
Decided: June 1, 2026 Judgment: Affirmed
Enzo Cantalamessa, Warren City Law Director, 141 South Street, S.E., Warren, OH 44481 (For Plaintiff-Appellee).
Eric J. Cherry, N.P. Weiss Law, 4070 Mayfield Road, South Euclid, OH 44121 (For Defendant-Appellant).
SCOTT LYNCH, J.
{¶1} Defendant-appellant, David A. Shaffer, Jr., appeals the trial court’s finding
that he violated probation and imposition of suspended sentences for Violating a
Temporary Protection Order and Aggravated Menacing. For the following reasons, we
affirm the probation violation and imposition of sentence.
{¶2} On February 6, 2023, in Case No. 2023 CRB 000231, a complaint was filed
against Shaffer in the Warren Municipal Court, charging him with Aggravated Menacing,
a misdemeanor of the first degree. On February 17, 2023, in Case No. 2023 CRB 000300, Shaffer was charged with Violating a Temporary Protection Order, a
misdemeanor of the first degree. The court issued entries on March 21, 2023, finding
Shaffer guilty of both charges. In separate entries, for each of the two charges, the court
ordered Shaffer to serve a 180-day jail sentence with 154 days suspended and three
years of probation.
{¶3} A notice of probation violation was filed in both cases in July 2025, stating
that new charges had been filed against Shaffer. It also alleged that he failed to comply
with court-ordered treatment: “Probationer was ordered to continue with linkage as a
condition of probation in 23 CRB 300. Update received from Meridian on 12/18/23 shows
probationer was discharged from treatment due to lack of contact.” The court issued
judgment entries on July 22, 2025, determining there was probable cause and reset the
violation hearing, noting that “counsel reports the intent to get counseling record[s]
showing compliance with the probation condition.” On July 29, it again reset the matters
pursuant to defense counsel’s request, noting that “he is attempting to receive
documentation from Meridian for treatment received by the defendant.”
{¶4} The court held the probation violation hearing on August 5, 2025. Defense
counsel indicated that he “provided all of [the counseling/treatment] records to the Court
at this point” and he received some records, those from the Linkages program/Meridian,
“yesterday late in the afternoon.” The court inquired whether counsel had the opportunity
to review them and he indicated, “I preliminarily reviewed them.” Counsel summarized:
“It appears that there was a six-month period of time within which he was engaged with
them. They left and moved a facility, but there was still notification that there was . . . at
least some ongoing outpatient treatment. . . . [T]hat’s all they have. But there [were]
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Case Nos. 2025-T-0059, 2025-T-0060 pretty significant records of his involvement with them over I believe a six-month period
of time.” The court indicated that the “[u]pdate . . . received from Meridian on 12/18/23
shows probationer was discharged from treatment due to lack of contact.” Counsel
responded: “there was also a notification that Meridian actually disengaged themselves
due to something that was not the fault of Mr. Shaffer. . . . [T]here was probably a
miscommunication or overlap in reengagement services after that six-month period of
time. Because I did see a note in there from Meridian that they were not . . . going to be
. . . able to treat him . . . after a certain date because they were leaving the facility.” He
indicated: “I don’t know . . . and I don’t have (sic) - - been able to review the records that
specifically in detail to determine exactly what that is or follow up with any questions at
Meridian. But I do know that there was some overlap there.”
{¶5} The court indicated: “The information I have is that treatment was
discontinued and that he was discharged from treatment due to a lack of his contact with
them” in December 2023, about six months after engagement. Further, “[h]e never
reengaged any other facility, which is what my impression was why the matter was
continued, to try to determine if there was anywhere else that was providing him services
consistent with what is required as his condition of probation.”
{¶6} Counsel responded:
I think under the circumstances - - Your Honor, if I may offer a solution? So now that Mr. Shaffer has been sitting in jail for the last couple of weeks - - not only is he clean and sober at this point, but there at least seems to be ample at least documentation before the Court that shows at least an initial six-month period of time where there was some treatment, there was some compliance. And while that’s neither here nor there in terms of a violation perspective, it does show good-faith effort of him at that time continuing with treatment. Now, while that treatment has now ended, under these circumstances, I believe that with reengagement in those services now . .
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Case Nos. 2025-T-0059, 2025-T-0060 that the Court I believe would be satisfied with his . . . continuation of that order and remaining clean and sober and continuing with that treatment at this point. So I guess what I’m saying, Judge, as a sanction for the possibility of a violation for probation, that the time that he’s served now I think should probably be sufficient. If he can reengage with those services and remain drug and alcohol free, I think the Court would be very pleased with that.
The court then inquired whether he would stipulate to the probation violation, which
counsel indicated he would. The court found “[t]he obligation is on [Shaffer]. . . . [T]he
information I have is that you stopped this treatment – this treatment was stopped
because of noncompliance by you. That is something that’s incumbent upon you as an
adult.” Shaffer indicated that he “didn’t know when [he] was supposed to stop” and that
“when I went to court and the judge disposed of it, I thought that was the end of it.”
{¶7} The court found that Shaffer had already been given the opportunity to have
an alternative to incarceration and could take advantage of services available while in jail.
It imposed the remainder of the sentences, 140 days in 2023 CRB 000231, and 154 days
in 2023 CRB 000300, to be served consecutively, for a total jail term of 294 days.
{¶8} Shaffer timely appeals and raises the following assignments of error:
{¶9} “[1.] The trial court denied appellant the effective assistance of counsel.
{¶10} “[2.] The trial court abused its discretion by sentencing appellant to
consecutive sentences.”
Ineffective Assistance of Counsel for Failure to Thoroughly Review Records
{¶11} In his first assignment of error, Shaffer argues that his counsel “was clearly
unprepared to effectively represent Appellant’s progress in treatment.” He contends that
pertinent records “were received by counsel just before” the hearing and the trial court’s
failure to recess the case until counsel was prepared to present arguments “rendered
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Case Nos. 2025-T-0059, 2025-T-0060 Appellant’s counsel ineffective for the violation hearing.”
{¶12} To demonstrate ineffective assistance of counsel, a defendant must prove
“(1) that counsel’s performance fell below an objective standard of reasonableness, and
(2) that counsel’s deficient performance prejudiced the defendant resulting in an
unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio
St.3d 378, 388-389 (2000), citing Strickland v. Washington, 466 U.S. 668, 687-688
(1984). “To show that a defendant has been prejudiced by counsel’s deficient
performance, the defendant must prove that there exists a reasonable probability that,
were it not for counsel’s errors, the result of the trial would have been different.” State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus. “There is a strong
presumption that the attorney’s performance was reasonable.” (Citation omitted.) State
v. Hupp, 2023-Ohio-2447, ¶ 11 (11th Dist.).
{¶13} Shaffer contends that counsel was unprepared to fully represent him
because he had just received records the day before the violation hearing. It appears,
however, that counsel was able to review issues relating to compliance with treatment
and adequately advance arguments relating to the records. Counsel received multiple
continuances of the hearing to obtain records relating to Shaffer’s treatment/counseling
and obtained records from multiple sources on this issue. While one set of records was
not received until the day before the hearing, counsel indicated he was able to review
them. While he may have been able to review the records in greater detail if he had a
longer period of time, the argument presented at the hearing as well as the court’s
comments on the records demonstrated that the court was made aware of the significant
points relating to Shaffer’s compliance, or lack of compliance, with completing the
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Case Nos. 2025-T-0059, 2025-T-0060 required treatment. It does not appear that a review of any records provided would take
an extensive amount of time since counsel was primarily looking only to demonstrate
whether or not Shaffer had continued on with treatment or was no longer engaged with
services. While discussing the records, counsel did not indicate to the court that
additional time to review them was necessary. The trial court’s comments tended to
support its belief that counsel represented Shaffer diligently and adequately, as it stated
it “appreciate[d] [counsel’s] arguments and all the work that he has done on your behalf”
and counsel “provided [the court] with a wealth of information.” It reiterated that counsel
was “very thorough in all the information that he has provided on paper, as well as the
argument that he’s made every single time that we’ve been here.”
{¶14} Shaffer argues that the trial court’s failure to recess the court to allow
additional review contributed to counsel’s ineffectiveness. Again, although they were not
made part of the record on appeal, it appears from a review of the transcript that the trial
court had access to the records. The court showed familiarity with the circumstances
based on the records and was able to speak to the facts of what occurred. It does not
appear that granting a third continuance would have impacted the facts presented to the
court or of which it was aware. Further, when the court questioned Shaffer’s failure to
reengage with services after counsel suggested Merdian was the initial cause of
disengagement, rather than asking for additional time to prove Shaffer was not at fault,
counsel suggested a “solution” of allowing him to reengage and be given a sentence of
the time served pending the violation hearing.
{¶15} Shaffer cites State v. Irwin, 2009-Ohio-5271 (7th Dist.), wherein the
appellate court found defense counsel to be ineffective due to various “missteps” at trial,
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Case Nos. 2025-T-0059, 2025-T-0060 including inappropriate comments, losing his way during questioning, failure to ensure a
witness appeared, and being unprepared. Id. at ¶ 218-225. Similar circumstances
demonstrating ineffectiveness are not present here. There is nothing in the record to
indicate that counsel made various missteps or mistakes. As noted above, he appeared
to act in a diligent manner.
{¶16} Even presuming that counsel performed below an objective standard of
reasonableness, we do not find prejudice. As noted above, the trial court was fully aware
that there may have been an issue with Meridian services becoming unavailable due to
moving facilities. The trial court recognized counsel’s argument that Shaffer went for
treatment and “the services stopped” but concluded “the obligation is on you” and that
Shaffer needed to be responsible for himself. He observed that records showed Shaffer
was noncompliant and, although on probation for an extended period of time, “almost the
entire time [he] wasn’t complying with the terms and conditions.” Even if there was some
issue with one of the providers moving facilities, the court was concerned with Shaffer’s
failure to comply for most of the time and to be proactive in complying with the terms of
probation. Further, as noted above, there is no argument presented that demonstrates
anything else existed in the records that could have supported Shaffer’s argument had
additional time been taken for review. Counsel ultimately stipulated to the probation
violation, which admitted that there were valid grounds for the violation.
{¶17} The first assignment of error is without merit.
Consecutive Sentences for Probation Violations
{¶18} In his second assignment of error, Shaffer argues that he should not have
received consecutive sentences. He also contends that while the trial court has discretion
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Case Nos. 2025-T-0059, 2025-T-0060 in sentencing him, “the result herein is harsh.”
{¶19} “Misdemeanor sentencing lies within the discretion of the trial court and will
not be disturbed absent an abuse of discretion.” State v. Hogya, 2023-Ohio-342, ¶ 14
(11th Dist.).
{¶20} Generally, “[a] jail term or sentence of imprisonment for a misdemeanor
shall be served consecutively to any other prison term, jail term, or sentence of
imprisonment when the trial court specifies that it is to be served consecutively . . . except
that the aggregate term to be served shall not exceed eighteen months.” R.C.
2929.41(B)(1). “The trial court is not required to make consecutive sentence findings
under R.C. 2929.14(C)(4) prior to ordering consecutive sentences for jail terms imposed
for misdemeanor offenses” and “need only ‘specify’ that the jail terms being imposed were
to be served consecutively.” (Citation omitted.) State v. Fromknecht, 2023-Ohio-4604, ¶
7 (11th Dist.).
{¶21} Initially, Shaffer’s brief states: “The undersigned is unable to find any
authority on the issue of whether a Court may issue consecutive sentences for convictions
that were not previously sentenced consecutively.” We find that there is authority on this
issue from this court and others that would support reversal.
{¶22} In Wacker, 2019-Ohio-3997 (11th Dist.), Wacker was given a suspended
sentence and placed on community control for each of two separate misdemeanors.
Subsequently, after a violation of community control, the court held a joint hearing on
motions to revoke in both cases and imposed the suspended sentences to be served
consecutively. Id. at ¶ 2-4. Wacker argued that the trial court “erred in ordering him to
serve the jail terms from his original conviction consecutively after revoking community
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Case Nos. 2025-T-0059, 2025-T-0060 control,” and it lacked authority to do so since they were not originally imposed
consecutively. Id. at ¶ 6.
{¶23} This court found the argument to have merit, citing State v. Fankle, 2015-
Ohio-1581 (2d Dist.). Fankle held that the trial court’s order to run suspended sentences
consecutively impermissibly modified its prior entry of definite sentences and there was
a lack of authority allowing it to do so. Id. at ¶ 8. Finding Fankle analogous, this court
held that, when community control was revoked and consecutive suspended sentences
were imposed, the trial court “impermissibly transcended the definite term of confinement
it had previously ordered.” Wacker at ¶ 12. This court found that the original sentencing
entries did not indicate that the sentences were consecutive and, given the lack of a
transcript of the original sentencing hearing, “we have no way of knowing whether
appellant was placed on notice of the possibility of consecutive sentencing during those
proceedings.” As such, the court erred in ordering appellant to serve consecutive
sentences and this court reversed his sentence. Id. at ¶ 28.
{¶24} The circumstances in the present matter mirror those in Wacker. The trial
court imposed suspended sentences and community control in 2023 for Violating a
Temporary Protection Order and Aggravated Menacing. There is nothing in those
judgment entries or otherwise in the record to demonstrate that the sentences were
originally ordered to be served consecutively. When community control was violated, the
court held a joint hearing, imposed the suspended sentences, and ordered them to be
served consecutively. According to Wacker and Fankle, it was not permitted to do so.
{¶25} However, neither Wacker nor Fankle considered the following statutory
provision enacted in 2010: “The court retains jurisdiction over every offender sentenced
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Case Nos. 2025-T-0059, 2025-T-0060 to jail to modify the jail sentence imposed at any time, but the court shall not reduce any
mandatory jail term.” R.C. 2929.24(B)(1). Pursuant to this provision, a trial court that
orders suspended concurrent jail sentences to be served consecutively following
probation violations does not impermissibly transcend the term of confinement previously
ordered. Rather, such modification is permissible in light of the court’s retained
jurisdiction.
{¶26} It is not necessary to decide the novel issue of whether Shaffer’s sentence
must be reversed under Wacker and Fankle or whether it is authorized under R.C.
2929.24(B)(1) in order to affirm the sentence. “[I]n reviewing the judgment of a lower
court, a court of appeals need only pass upon errors assigned and briefed; errors not
specifically raised may be disregarded.” Toledo’s Great Eastern Shoppers City, Inc. v.
Abde’s Black Angus Steak House No. III, Inc., 24 Ohio St.3d 198, 202 (1986). In the
present case, the issue was neither assigned nor briefed (despite the parties being given
the opportunity to file supplemental briefing on the issue). Accordingly, we find no abuse
of discretion in the imposition of consecutive sentences.
{¶27} Shaffer argues generally that the imposition of consecutive sentences
constitutes an abuse of discretion by issuing an arbitrary judgment of incarceration
without a full examination of his mental health status.
{¶28} We disagree. The fact of Shaffer’s mental health issues was a prominent
consideration throughout the course of these proceedings. Nothing about his mental
status renders the sentence imposed an abuse of discretion.
{¶29} The second assignment of error is without merit.
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Case Nos. 2025-T-0059, 2025-T-0060 {¶30} For the foregoing reasons, the probation violations against Shaffer and
imposition of sentence by the Warren Municipal Court are affirmed. Costs to be taxed
against the appellant.
MATT LYNCH, P.J., concurs,
EUGENE A. LUCCI, J., concurs with a Concurring Opinion.
________________________________________________________
{¶31} I concur fully in the majority’s opinion and judgment. I write separately to
underscore two points that bear on the disposition of future cases in this district.
{¶32} First, State v. Wacker, 2019-Ohio-3997 (11th Dist.), remains binding
precedent in this district. The majority correctly identifies Wacker and State v. Fankle,
2015-Ohio-1581 (2d Dist.), as the authorities that would govern the consecutive-sentence
question presented here, and it declines to disturb either. A trial court in this district that
imposes concurrent suspended sentences at original sentencing without specifying the
possibility of consecutive service upon revocation should understand that Wacker
continues to control that circumstance unless and until this court resolves otherwise.
{¶33} Second, the majority correctly identifies R.C. 2929.24(B)(1) as a statutory
provision that neither Wacker nor Fankle considered, and it correctly declines to resolve
whether that provision supersedes the Wacker/Fankle rule because the issue was neither
assigned as error nor briefed by the parties. That question—whether the General
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Case Nos. 2025-T-0059, 2025-T-0060 Assembly’s grant of continuing jurisdiction “to modify the jail sentence imposed at any
time” encompasses restructuring originally concurrent suspended sentences as
consecutive upon revocation of community control—is a genuine question of first
impression in Ohio. It has not been decided by this court, by the Ohio Supreme Court, or,
to my knowledge, by any Ohio appellate court. When it is squarely raised and fully briefed,
it will require careful analysis, including consideration of R.C. 2929.24(B)(1)’s relationship
to the consecutive-sentence specification requirement of R.C. 2929.41(B)(1) and the Ohio
Supreme Court’s recognition in Olmsted Twp. v. Ritchie, 2023-Ohio-2516, ¶ 11, that R.C.
2929.24(B)(1) constitutes a substantive exception to the general rule against modification
of a final criminal sentence.
{¶34} Until that question is resolved, Wacker governs. Litigants and trial courts
should treat it accordingly.
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Case Nos. 2025-T-0059, 2025-T-0060 JUDGMENT ENTRY
For the reasons stated in the Opinion of this court, the assignments of error are
without merit. The order of this court is that the judgment of the Warren Municipal Court
is affirmed.
Costs to be taxed against the appellant.
JUDGE SCOTT LYNCH
PRESIDING JUDGE MATT LYNCH, concurs
JUDGE EUGENE A. LUCCI, concurs with a Concurring Opinion
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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Case Nos. 2025-T-0059, 2025-T-0060