State v. McKnight

[Cite as State v. McKnight, 2018-Ohio-1916.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 17AP-778
(C.P.C. No. 17CR-4131)
v. : No. 17AP-780
(C.P.C. No. 17CR-1565)
Shaunell D. McKnight, :
(REGULAR CALDENDAR)
Defendant-Appellant. :

D E C I S I O N

Rendered on May 15, 2018

On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.

On brief: Mindy K. Yocum, for appellant.

APPEALS from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Shaunell D. McKnight, appeals from two judgment
entries of the Franklin County Court of Common Pleas finding appellant guilty of
possession of heroin and aggravated possession of drugs in case No. 17CR-4131 and finding
appellant guilty of trafficking in heroin, trafficking in cocaine, and illegal conveyance of
drugs into a detention facility in case No. 17CR-1565. For the following reasons, we affirm
the decision of the trial court in case No. 17CR-4131 and dismiss the appeal in case No.
17CR-1565.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On March 17, 2017, a Franklin County Grand Jury indicted appellant in case
No. 17CR-1565 on five separate counts related to appellant's alleged possession and
trafficking of various drugs on July 12, 2016. The counts included: trafficking in heroin, in
Nos. 17AP-778 and 17AP-780 2

violation of R.C. 2925.03; possession of heroin, in violation of R.C. 2925.11; trafficking in
cocaine, in violation of R.C. 2925.03; possession of cocaine, in violation of R.C. 2925.11;
and illegal conveyance of drugs of abuse onto grounds of a specific government facility, in
violation of R.C. 2921.36.
{¶ 3} On July 28, 2017, a Franklin County Grand Jury indicted appellant in case
No. 17CR-4131 on four separate counts under R.C. 2925.11 related to appellant's alleged
possession of various drugs on March 16, 2017. The counts included: possession of heroin
with an accompanying firearm specification; aggravated possession of drugs, to wit:
oxycodone, with an accompanying firearm specification; possession of cocaine with an
accompanying firearm specification; and aggravated possession of drugs, to wit:
methamphetamine, with an accompanying firearm specification.
{¶ 4} At a September 19, 2017 plea hearing for both cases, plaintiff-appellee, State
of Ohio, set forth the facts underlying the indictment in case No. 17CR-1565 as follows:
That case occurred July 12th, 2016. The Franklin County
Sheriff's Office had executed a narcotic search warrant at the
residence that [appellant] and Brandon Shipley were selling
heroin out of. When they executed that search warrant,
[appellant] was present. She indicated that she was not a
heroin addict, did not use drugs, but in her possession was
greater than 5 grams but less than 10 grams of heroin that was
being sold out of the house; hence, the trafficking, as well as
greater than 10 grams but less than 20 grams of cocaine.

[Appellant] was taken to the Franklin County jail over the
arrest for this search warrant. She was asked if she had any
contraband on her person. She indicated in the negative. And
cocaine, as well as I think another type of drug, was found in
her possession at the jail.

(Plea Hearing Tr. at 5.)
{¶ 5} Regarding case No. 17CR-4131, appellee set forth the facts underlying the
indictment as follows:
Very similar to the first one, Your Honor. This one happened
March 16th, 2017. Again, the sheriff's office, the same unit,
executed a narcotics search warrant at the residence that
[appellant] and Mr. Shipley were selling heroin out of. In this
case, she, again, had in her possession greater than 5 grams but
less than 10 grams of heroin -- it was a joint possession with
Nos. 17AP-778 and 17AP-780 3

Brandon Shipley -- as well as greater than the bulk amount of
oxycodone, a Schedule II drug. There were text messages on
her cell phone directing people to the house for her to sell drugs
to, the house on Little Avenue in Franklin County. That was
the location of the search warrant.

(Plea Hearing Tr. at 6-7.)
{¶ 6} At the September 19, 2017 plea hearing, appellant pleaded guilty to five third-
degree felonies between the two cases: aggravated possession of drugs and a stipulated
lesser-included offense of possession of heroin in case No. 17CR-4131; trafficking in heroin,
trafficking in cocaine, and illegal conveyance of drugs into a detention facility in case No.
17CR-1565. The parties did not jointly recommend a sentence but did jointly recommend
a pre-sentence investigation ("PSI"), which the trial court ordered. Appellant additionally
submitted a sentencing memorandum on October 17, 2017 asking the court to impose a
term of intensive community control with substance abuse treatment considering her
personal background and the overriding purposes of sentencing.
{¶ 7} A sentencing hearing was held on October 19, 2017. The trial court judge
indicated he reviewed the PSI and appellant's sentencing memorandum. Defense counsel
argued the convictions at hand are appellant's only felony convictions, and she only has two
other misdemeanor convictions, all of which are a direct result of her drug addiction.
Defense counsel noted appellant's childhood, which included assault and being in and out
of foster care, and took issue with conflicting conclusions in the PSI regarding whether
appellant showed remorse and took responsibility for her actions. Rather, defense counsel
contended appellant admitted to authorities she was trafficking drugs for the Shipley
brothers, and she never intended for the individual in the first case to overdose and almost
die. Defense counsel did not dispute appellant tested positive for drugs while out on bond
but contended she had been clean since June, had attended ten or more "NA classes," and
had reported another female in her cell for having pills. (Sentencing Hearing Tr. at 4.)
Appellant made a personal statement to the court apologizing and emphasizing her sobriety
and desire to change.
{¶ 8} Appellee deferred to the court in the matter of sentencing. The trial court
then imposed, in case No. 17CR-1565, a 12-month term on each of the 3 counts (trafficking
in heroin, trafficking in cocaine, illegal conveyance of drugs) to run concurrently to each
Nos. 17AP-778 and 17AP-780 4

other, a $10,000 fine, and 3 years optional post-release control. In case No. 17CR-4131, the
trial court imposed a 36-month term on each of the 2 counts (possession of heroin and
aggravated possession of drugs) to run consecutively to each other, fine and costs waived,
and 3 years optional post-release control. The trial court ran the sentences in case Nos.
17CR-4131 and 17CR-1565 concurrently to each other for a total sentence of 72 months.
Regarding imposing consecutive sentences, the trial court stated:
Because I'm imposing consecutive sentences, I would state for
the record the following. The high F3 level of these crimes and
the presumption for prison that attaches to some or all of them
is an important factor but not dispositive.

The repetitive nature of the crimes is, to me, very difficult to
reconcile with the thought of community control. After her first
arrest in [17CR-1565], she went back with her boyfriend,
Brandon Shipley, to the same business. There was a SWAT raid
in July of 2016 that triggered the first case. SWAT had to go
out and raid them again in March of 2017. That was an
opportunity, if there was any serious understanding of how
serious this was, to get away from it that wasn't taken.

The seriousness and the misconduct, even though they are only
felony 3 crimes, is substantial. We've got guns, drugs, and
substantial cash found on both dates at the location, according
to pages 6 and 7 of the PSI.

There's a questionable amount of remorse shown. The PSI says
several times, I believe, that she just puts herself in the wrong
place at the wrong time. I don't think that's a meaningful
explanation for two different locations months apart when
there were intervening SWAT raids.

Finally, the drug abuse while on bond in March 30th, 2017;
May 17th, 2017; June 21st, 2017, all with cocaine, several with
methamphetamines, before bond was revoked June 21st.
These, under 2929.14(C)(4), cause me to conclude that
consecutive sentences are necessary to protect the public from
future crime and to fairly punish the offender. That it's not
disproportionate to the seriousness of all her misconduct to
send her to prison with consecutive sentences. And that she
does pose a danger to the public until she gets this part of her
life well behind her.
Nos. 17AP-778 and 17AP-780 5

I also conclude the harm was so great that no single prison term
would adequately reflect the seriousness of her misconduct.

(Sentencing Hearing Tr. at 6-8.)
{¶ 9} The judgment entry filed in case No. 17CR-4131 reads:
The Court has considered the purposes and principles of
sentencing set forth in R.C. 2929.11 and the factors set forth in
R.C. 2929.12. In addition, the Court has weighed the factors as
set forth in the applicable provisions of R.C. 2929.13 and R.C.
2929.14. The Court further finds that a prison term is not
mandatory pursuant to R.C. 2929.13(F). The Court finds that
there is a presumption in favor of a prison term as to Counts
One and Two, pursuant to R.C. 2929.13(D).

***

THE COURT FINDS CONSECUTIVE SENTENCES ARE
APPROPRIATE CONSIDERING THE PURPOSES OF
FELONY SENTENCING IN R.C. 2929.11 AND THE
SERIOUSNESS AND RECIDIVISM FACTORS IN R.C.
2929.12. THE COURT MADE THE NECESSARY FINDINGS
UNDER R.C. 2929.14(C) BASED UPON THE INCIDENTS IN
HER TWO CASES HAVING OCCURRED IN THE SAME WAY,
BUT MONTHS APART; SERIOUSNESS OF THE
COMBINATION OF GUNS, DRUGS AND CASH;
DEFENDANT'S APPARENT LACK OF REMORSE;
DEFENDANT'S DRUG ABUSE CONTINUING WHILE SHE
WAS ON BOND, AND OTHER MATTERS DISCUSSED ON
THE RECORD WHICH ARE INCORPORATED FROM THE
SENTENCING HEARING BY REFERENCE. THESE SHOW
THAT CONSECUTIVE SENTENCES ARE NECESSARY TO
PROTECT THE PUBLIC FROM FUTURE CRIME AND
FAIRLY PUNISH DEFENDANT; ARE NOT
DISPROPROTIONATE TO HER MISCONDUCT AND THE
DANGER SHE POSES TO THE PUBLIC; AND THAT THE
HARM WAS SO GREAT OR UNUSUAL THAT NO SINGLE
PRISON TERM WILL ADEQUATELY REFLECT THE
CONSEQUENCES OF HER CONDUCT.

(Emphasis omitted.) (Oct. 20, 2017 Judgment Entry at 1-2.)
{¶ 10} Appellant filed timely notices of appeal to this court in both cases. On
November 7, 2017, the court sua sponte consolidated the cases for appellate review.
Nos. 17AP-778 and 17AP-780 6

II. ASSIGNMENT OF ERROR
{¶ 11} Appellant presents one assignment of error:
The Trial Court erred in imposing consecutive terms of
imprisonment and, as such, the consecutive sentence is a plain
error and contrary to law.

III. DISCUSSION
{¶ 12} Under her only assignment of error, appellant challenges the trial court's
imposition of consecutive sentences for her convictions of possession of heroin and
aggravated possession of drugs.1 For the following reasons, we disagree with appellant.
{¶ 13} "Under Ohio law, absent an order requiring sentences to be served
consecutively, terms of incarceration are to be served concurrently." State v. Sergent, 148
Ohio St.3d 94, 2016-Ohio-2696, ¶ 16, citing R.C. 2929.41(A). If consecutive sentences are
not mandatory, "trial judges have discretion to order * * * multiple sentences to be served
consecutively pursuant to R.C. 2929.14(C)(4)."2 Id.; State v. Alexander, 10th Dist. No.
16AP-761, 2017-Ohio-4196, ¶ 9. R.C. 2929.14(C)(4) states:
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 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
1 Appellant has assigned error as to the trial court's imposition of consecutive sentences, which were only
imposed on convictions in case No. 17CR-4131; appellant has not assigned an error specific to case No. 17CR-
1565. As such, the appeal of case No. 17CR-1565 (17AP-780) is dismissed, and we proceed to determine
appellant's appeal of the consecutive sentences imposed in case No. 17CR-4131 (17AP-778). App.R. 16(A);
App.R. 12.
2 R.C. 2929.14(C)(4) is former R.C. 2929.14(E)(4).
Nos. 17AP-778 and 17AP-780 7

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.

{¶ 14} "[I]f the trial judge exercises his or her discretion to impose consecutive
sentences, he or she must make the consecutive-sentence findings set out in R.C.
2929.14(C)(4), and those findings must be made at the sentencing hearing." Sergent at
¶ 17, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 23. The trial court is
"required to make the findings at the defendant's sentencing hearing and incorporate its
findings in the sentencing entry, but [is] not required to state its reasons for imposing
consecutive sentences." Sergent at ¶ 41, citing Bonnell at ¶ 37.
{¶ 15} Once the trial court makes the factual findings required by R.C.
2929.14(C)(4), an appellate court may overturn the imposition of consecutive sentences
only if it finds, clearly and convincingly, the record does not support the sentencing court's
findings or the sentence is otherwise contrary to law. R.C. 2953.08(G)(2); State v.
Higginbotham, 10th Dist. No. 17AP-147, 2017-Ohio-7618, ¶ 11; State v. Hargrove, 10th
Dist. No. 15AP-102, 2015-Ohio-3125, ¶ 22. The "clearly and convincingly" standard under
R.C. 2953.08(G)(2) is "written in the negative which means that it is an extremely
deferential standard of review." (Internal quotations omitted.) Higginbotham at ¶ 11.
{¶ 16} In this case, appellant argues, although the trial court technically complied
with the sentencing requirements in the statutes, the "sentence was not 'clearly and
convincingly' supported by the record." (Appellant's Brief at 9.) Appellant contends the
trial court's "determination to order the maximum time of 36 months for two of the felony
convictions, to be served consecutively, is not based on sufficient evidence to warrant the
court's findings and is not based on the statutory factors [in R.C. 2929.12]," and the trial
court judge's analysis under R.C. 2929.14(C)(4) was "inadequate and unsubstantiated" by
the record. (Appellant's Brief at 16, 18.) Specifically, appellant contends the punishment
of consecutive sentences was disproportionate to the seriousness of appellant's conduct and
was unnecessary considering the danger posed to the public. Appellant argues the trial
Nos. 17AP-778 and 17AP-780 8

court's assessment of seriousness and recidivism factors in R.C. 2929.12 is erroneous and
its brief statement on the matter "cannot rise to the levels of statutory findings require[d]
by R[.]C[.] 2929.12" and "fails to provide any insight into the Judge's rationale."
(Appellant's Brief at 15.) Furthermore, in appellant's view, "it is not clear how the court
determined that these crimes were repetitive in nature" since the crimes at issue were
appellant's first felonies and her previous convictions for falsification and possession of
drugs were both first-degree misdemeanors, and the convictions in this case appeared to
be a direct result of mental health impairments and drug addiction. (Appellant's Brief at
15.)
{¶ 17} As a preliminary issue, several of appellant's arguments, including appellant's
challenge to the trial court's imposition of the maximum 36-month sentence on each of the
two convictions in case No. 17CR-4131 and challenge to the trial court's analysis of the
seriousness and recidivism factors in R.C. 2929.12, fall outside of the assignment of error
as stated. "This court rules on assignments of error, not mere arguments." Huntington
Natl. Bank v. Burda, 10th Dist. No. 08AP-658, 2009-Ohio-1752, ¶ 21, citing App.R.
12(A)(1)(b) (stating that "a court of appeals shall * * * [d]etermine the appeal on its merits
on the assignments of error set forth in the briefs"). Because appellant has not assigned the
trial court's imposition of the maximum sentence on the convictions at issue or the analysis
of R.C. 2929.12 as errors but, rather, has identified only the validity of the trial court's
imposition of consecutive sentences in her assignment of error, we will consider that
question alone.
{¶ 18} Addressing the error assigned, we conclude the trial court did not err in
imposing consecutive sentences. First, as noted above, appellant concedes the trial court
complied with making the statutory findings required by R.C. 2929.14(C)(4) but seems to
take issue with the trial court's brevity in explaining its findings. A trial court need not state
the reasons underlying its findings under R.C. 2929.14(C)(4). Higginbotham at ¶ 22-24,
citing State v. Adams, 10th Dist. No. 12AP-783, 2014-Ohio-1809, ¶ 15. Therefore, to the
extent appellant challenges the trial court's brevity in explaining the reasoning behind its
findings, her contention lacks merit.
{¶ 19} Second, the merits of appellant's argument regarding the record not
supporting the imposition of consecutive sentences fails, particularly when considering our
Nos. 17AP-778 and 17AP-780 9

standard of review. Here, the trial court stated that it considered the PSI and appellant's
sentencing memorandum, that it considered the purposes and principles of sentencing set
forth in R.C. 2929.11 and the factors set forth in R.C. 2929.12, and that it weighed the factors
as set forth in the applicable provisions of R.C. 2929.13 and 2929.14. Moreover, it is
undisputed that after the July 2016 police raid on appellant's boyfriend's home, which
served as the basis of case No. 17CR-1565 and appellant's guilty pleas to trafficking in heroin
and cocaine and illegal conveyance of drugs into a detention facility, appellant essentially
returned to the same conduct and was, merely months later, caught in another police raid
on her boyfriend's home. In that March 16, 2017 raid, police found several types of drugs,
guns, and substantial cash in the home, and appellant had texts on her phone assisting in
drug sales. While on bond, appellant tested positive for drugs (cocaine alone or with
methamphetamine) three times. Considering all the above and in light of our deferential
standard of review under R.C. 2953.08(G)(2), we do not find, clearly and convincingly, that
the record in this case does not support the trial court's findings to impose consecutive
sentences or that the sentence is otherwise contrary to law.
{¶ 20} Accordingly, appellant's sole assignment of error is overruled.
IV. CONCLUSION
{¶ 21} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas in case No. 17CR-4131 and
dismiss the appeal in case No. 17CR-1565.
Judgment affirmed in case No. 17CR-4131;
appeal dismissed in case No. 17CR-1565.

BROWN, P.J., and LUPER SCHUSTER, J., concur.
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