State v. Starcher

2023 Ohio 4854

• Court: Ohio Court of Appeals
• Decided: December 29, 2023
• Docket: L-23-1063
• Status: Published

Opinion

[Cite as State v. Starcher, 2023-Ohio-4854.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-23-1063 L-23-1066 Appellee L-23-1067

Trial Court No. CR0202202210 CR0202202141 v. CR0202202683

Christopher Starcher DECISION AND JUDGMENT

Appellant Decided: December 29, 2023

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Seth A. Stanley, Assistant Prosecuting Attorney, for appellee.

Laurel A. Kendall, for appellant.

ZMUDA, J.

I. Introduction

{¶ 1} This consolidated matter is on appeal from the judgment of the Lucas

County Court of Common Pleas, which, after accepting pleas of no contest in three

separate cases, sentenced appellant, Christopher Starcher, to an aggregate sentence of 66

months in prison. For the reasons that follow, we affirm. II. Background

{¶ 2} A Lucas County grand jury indicted Starcher in three separate cases in 2022.

On July 12, 2022, in case No. CR 202202141, Starcher was charged with four counts of

receiving stolen property in violation of R.C. 2913.51(A) and (C) and R.C. 2913.71(A),

felonies of the fifth degree, and two counts of identity fraud in violation of R.C.

2913.49(B)(2) and (I)(2), felonies of the fifth degree.

{¶ 3} On July 21, 2022, in case No. CR 202202210, Starcher was charged with

one count of receiving stolen property in violation of R.C. 2913.51(A) and (C) and R.C.

2913.71(A), a felony of the fifth degree, two counts of forgery in violation of R.C.

2913.31(A)(3) and (C)(1)(a) and (b), felonies of the fifth degree, and two counts of

identity fraud in violation of R.C. 2913.49(B)(2) and (I)(2), felonies of the fifth degree.

{¶ 4} On October 4, 2022, in case No. CR 202202683, Starcher was charged with

one count of receiving stolen property in violation of R.C. 2913.51(A) and (C) and R.C.

2913.71(A), a felony of the fifth degree.

{¶ 5} All three cases arose from conduct occurring in February and March, 2022.

The cases were assigned among two judges. Starcher entered pleas of no contest in each

case. Although case Nos. CR 202202141 and CR 202202683 were before the same

judge, Starcher entered pleas separately, with an intervening plea entered in case No. CR

202202210, before a second judge.

{¶ 6} On February 13, 2023, in case No. CR 202202683, Starcher entered a plea of

no contest and was found guilty by the trial court on the sole count of receiving stolen

2. property. The state recited the facts that it would have proven at trial, that Starcher and a

co-defendant broke into a vehicle and stole a wallet, credit cards, and iPhone, and the

credit card was used to purchase items for a loss to the victim of $580.

{¶ 7} On February 21, 2023, in case No. CR 202202210, Starcher entered a plea of

no contest and was found guilty by the trial court on one count of receiving stolen

property, one count of forgery, and one count of identity fraud. The state recited the facts

that it would have proven at trial, that Starcher was found using a credit card without

authorization to purchase items at two different stores, presenting himself as the victim to

police, with a loss to the victim of $741.65 and $596.55.

{¶ 8} On February 22, 2023, in case No. CR 202202141, Starcher entered a plea of

no contest and was found guilty by the trial court on two counts of receiving stolen

property and one count of identity fraud. The state recited facts that it would have proven

at trial, that Starcher stole a purse from a vehicle by breaking a window, and used a credit

card from the purse to make about $500 in purchases, with the loss to the victim of $230.

{¶ 9} On February 22, 2023, the judge presiding in case Nos. CR 202202141 and

CR 202202683 held a sentencing hearing. After addressing the statutory factors, the trial

court determined Starcher was not amenable to community control and imposed an 11-

month prison term for each count. The trial court referenced Starcher’s “very lengthy

record” and the repetitive nature of his receiving stolen property offenses since 2011,

noting Starcher’s criminal history and the “nature and volume of the harm caused,” and

that the offenses were committed as part of a course of conduct. The trial court find

3. consecutive sentences were necessary to protect the public from future crime, to punish

Starcher, and were not disproportionate to the seriousness of Starcher’s conduct or the

danger he posed. The trial court included these findings in the judgment entry, ordering

the following:

{¶ 10} (In case No. CR 202202141)

Defendant ordered to serve 11 months as to Count 3 [receiving

stolen property in violation of R.C. 2913.51(A), (C), and 2913.71(A), a

felony of the fifth degree)] 11 months as to Count 4 [receiving stolen

property in violation of R.C. 2913.41(A), (C), and 2913.71(A), a felony of

the fifth degree], and 11 months as to Count 6 [identity fraud in violation of

R.C. 2913.49(B)(2) and (I)(2), a felony of the fifth degree] in Ohio

Department of Rehabilitation and Corrections. Being necessary to fulfill

the purposes of R.C. 2929.11 and 2929.14(C)(4), consecutive sentence are

necessary to protect the public from future crime or to punish the offender

and are not disproportionate to the seriousness of the offender’s conduct

and to the danger the offender poses to the public. The court further finds

the harm caused was great or unusual such that no single prison term is

adequate, and the defendant’s criminal history demonstrates that

consecutive sentences are necessary to protect the public, therefore the

sentences as to each of the three counts are ordered to be served

4. consecutively. The sentences are ordered to be served concurrently to the

sentence in CR 202202683.

(In case No. CR 202202683)

It is ordered that defendant serve a term of 11 months in prison. * *

* The sentences are to be served concurrently with case number

CR202202141.

{¶ 11} On March 9, 2023, the judge presiding over case No. CR 202202210 held a

sentencing hearing. In imposing sentence, the trial court noted Starcher’s continued

denial of culpability despite video evidence of him using the victim’s credit cards, as well

as his “extensive criminal history with 23 felonies and 30 misdemeanors” including prior

theft offenses that demonstrated Starcher posed “a significant property threat to this

community.” The trial court mistakenly stated that the offenses in his case were

committed while out on bond in case No. CR 202202141 and, while out on bond in the

present case, Starcher committed new offenses in case No. CR 202202683.

{¶ 12} The trial court noted that Starcher is “a multi-state offender with

convictions in Michigan and California” and that Starcher was currently on probation on

felony cases in Michigan, with a misdemeanor case pending in Ohio. The trial court

further found that consecutive sentences were “necessary to protect the public from future

crime or punish the defendant and not disproportionate to the seriousness of the

defendant’s conduct or the danger the defendant poses.” Finally, the trial court found

“the harm caused was so great or unusual that no single prison term for any of the

5. offenses committed as part of any of the courses of conduct adequately reflects the

seriousness of the offender’s conduct and the defendant’s criminal history requires

consecutive sentences.”

{¶ 13} The trial court included the findings in the judgment entry, as follows:

(In case No. CR 202202210)

It is ordered that defendant serve a term of 11 months in prison as to

Count 1 [receiving stolen property in violation of R.C. 2913.51(A),(C), and

2913.71(A), a felony of the fifth degree]; 11 months in prison as to Count 3

[forgery in violation of R.C. 2913.31(A)(3) and (C)(1)(a) and (b), a felony

of the fifth degree] and 11 months in prison as to Count 5 [identity fraud in

violation of R.C. 2913.49(B)(2) and (I)(2), a felony of the fifth degree]. * *

* Being necessary to fulfill the purposes of R.C. 2929.11 and

2929.14(C)(4), consecutive sentence are necessary to protect the public

from future crime or to punish the offender and are not disproportionate to

the seriousness of the offender’s conduct and to the danger the offender

poses to the public. The court further finds the defendant was awaiting trial

or sentencing, the harm caused was great or unusual such that no single

prison term is adequate, and the defendant’s criminal history demonstrates

that consecutive sentences are necessary to protect the public, therefore the

sentences are ordered to be served consecutively to each other and

consecutively to the sentences in CR22-2141 & CR22-2683.

6. {¶ 14} Based on the sentences imposed in each case, the trial court ordered

Starcher to serve a total sentence of 66 months, after applying the consecutive terms.

{¶ 15} This appeal followed.

III. Assignment of Error

{¶ 16} On appeal, Starcher asserts a single assignment of error:

The record on appeal does not support the trial court’s imposition of

consecutive sentences by clear and convincing evidence.

IV. Analysis

{¶ 17} We review felony sentencing under R.C. 2953.08(G)(2), which provides:

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and

remand the matter to the sentencing court for resentencing. The appellate

court's standard for review is not whether the sentencing court abused its

discretion. The appellate court may take any action authorized by this

division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

The challenge, in this case, concerns sentencing findings under R.C. 2929.14(C)(4).

7. {¶ 18} In his sole assignment of error, Starcher argues the record does not support

the trial court’s imposition of consecutive sentences by clear and convincing evidence. In

support, the only deficiency argued in the trial court’s findings is that the trial court

incorrectly determined he committed the offenses in CR 202202210 while out on bond in

case No. CR 202202141. Starcher does not otherwise dispute any of the other findings of

the trial court in determining the need for consecutive sentences, but instead, seeks de

novo review of the consecutive sentence findings pursuant to State v. Gwynne, Slip

Opinion 2022-Ohio-4607 (Gwynne IV).

{¶ 19} On October 25, after briefing was completed in Starcher’s case, the Ohio

Supreme Court vacated Gwynne IV on reconsideration. See State v. Gwynne, Slip

Opinion 2023-Ohio-3851 (Gwynne V). In vacating the prior decision, upon which

Starcher relies, the Supreme Court held:

R.C. 2953.08(G)(2)(a) is plain and unambiguous and permits an

appellate court to modify or vacate consecutive sentences if it clearly and

convincingly finds that the record does not support the trial court's

consecutive-sentence findings. Our analysis simply applies this standard

created by the statute and concludes that the court of appeals could not

clearly and convincingly find that the record does not support the trial

court's findings. This does not mean that we would impose the same

sentence if we sat in the trial court's place. But contrary to the assertion in

the first dissent, we may not rely on our own findings of fact (or

8. speculation)—such as a finding that criminal activity tends to reduce with

age, that Gwynne's offenses were crimes of opportunity, or that mental-

health issues are likely involved—to second-guess the trial court's factual

findings in support of consecutive sentences. Even the first dissent

recognizes that “ ‘the appellate court is constrained to considering only the

findings in R.C. 2929.14(C)(4) that the trial court has actually made,’ ” first

dissenting opinion at ¶ 71, quoting Gwynne IV, ––– Ohio St.3d ––––, 2022-

Ohio-4607, ––– N.E.3d ––––, at ¶ 21. Appellate review turns on whether

the trial court's findings are clearly and convincingly not supported by the

record, and if the evidence supports the trial court's consecutive-sentence

findings, the analysis ends there.

Gwynne at ¶ 24 (Gwynne V).

{¶ 20} Based on reliance on authority that is no longer good law, Starcher’s

challenge to consecutive sentences does not identify any failure of the trial court to

consider the statutory factors under R.C. 2929.14(C)(4), and make the required findings

as follows:

If multiple prison terms are imposed on an offender for convictions

of multiple offenses, 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

9. 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 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).

{¶ 21} Here, the trial court made the requisite findings at each sentencing hearing,

with no claim by Starcher that the trial court failed to make a necessary finding.

Furthermore, even if the trial court mistakenly referred to offenses in case No. CR

202202210 while out on bond in case No. CR 202202141, this consideration was

relevant to the factors under R.C. 2929.14(C)(4)(a) to (c), and the trial court made

additional findings regarding Starcher’s “history of criminal conduct,” relative to R.C.

10. 2929.14(C)(4)(c). Starcher does not dispute this finding, and the record provides ample

support.

{¶ 22} “A sentencing court must make its findings under R.C. 2929.14(C)(4) at

the sentencing hearing and incorporate them into the sentencing entry.” State v. Moore,

6th Dist. Erie No. E-22-051, 2023-Ohio-3834, ¶ 19, citing State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. In this case, the trial court made

findings addressing R.C. 2929.14(C)(4), and incorporated those findings in the

sentencing entries. Any mistake regarding offenses committed while out on bond,

moreover, does not negate the other findings in support of consecutive sentences. See,

e.g., Moore at ¶ 22-23 (while trial court mistakenly considered having weapons while

under disability an offense of violence, the record otherwise supported the trial court’s

necessity findings).

{¶ 23} Upon review of the record, we find the trial court made the necessary

findings for consecutive sentences in each case, and the record does not clearly and

convincingly demonstrate the trial court erred in its determinations regarding the

necessary findings. Accordingly, we find Starcher’s sole assignment of error not well-

taken.

11. V. Conclusion

{¶ 24} Based on the foregoing, we affirm the judgment of the Lucas County Court

of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to

App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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