State v. Shepard

[Cite as State v. Shepard, 2019-Ohio-3995.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2019-A-0024
- vs - :

DARRELL A. SHEPARD, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2018 CR
00429.

Judgment: Affirmed.

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Thomas Rein, 820 West Superior Avenue, Suite 800, Cleveland, OH 44113 (For
Defendant-Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Darrell A. Shepard (“Mr. Shepard”), appeals the judgment of the

Ashtabula County Court of Common Pleas sentencing him to a total prison term of 12

years following his guilty plea to involuntary manslaughter with a firearm specification,

having a weapon while under disability, injuring persons or property while hunting, and

failure to report knowledge of a death.
 {¶2} Mr. Shepard argues (1) he did not enter his guilty plea knowingly,

intelligently, or voluntarily because the trial court failed to properly inform him of the

maximum penalties pursuant to Crim.R. 11(C)(2)(a), and (2) the record clearly and

convincingly failed to support the trial court’s imposition of more than a minimum

sentence.

{¶3} We find (1) the trial court accurately informed Mr. Shepard of the maximum

penalty for each charge to which he was pleading guilty and the maximum total prison

sentence of 14 years, making his guilty plea knowing, intelligent, and voluntary under

Crim.R. 11(C)(2)(a), and (2) Mr. Shepard has not established that the record clearly and

convincingly fails to support the trial court’s imposition of a 12-year prison sentence.

{¶4} Thus, we affirm the judgment of the Ashtabula County Court of Common

Pleas.

Substantive and Procedural History

{¶5} On November 27, 2017, Randy Gozzard (“Mr. Gozzard”) was part of a four-

person hunting party on the first day of hunting season in Monroe Township, Ohio, when

he was shot and killed. A subsequent investigation revealed that Mr. Shepard had been

unlawfully hunting in the area of the shooting and had fired shots in the vicinity of Mr.

Gozzard. There was an active warrant for Mr. Shepard’s arrest on the day of the shooting

due to his failure to appear for a pending criminal court hearing.

{¶6} A few weeks later, the Ashtabula County Sheriff’s Department converged

on Mr. Shepard, who was hiding at a residence in Pierpont Township. He was arrested,

and several firearms were seized from the residence. Mr. Shepard was not permitted to

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be in possession of any firearms both on the dates of the shooting and his arrest as a

result of a previous conviction.

{¶7} According to the state, after his arrest, Mr. Shepard admitted he was hunting

on the day of the shooting in the same area where Mr. Gozzard had been killed. He

further admitted he discovered Mr. Gozzard’s body after firing shots from a shotgun he

possessed at the time and failed to report the shooting death to authorities.

{¶8} Mr. Shepard identified the shotgun he used while hunting as being one of

the firearms seized during his arrest. According to the state, the Bureau of Criminal

Investigation analyzed the shotgun and determined it was operable and matched the 12-

gauge shell that the Ohio Department of Natural Resources (“ODNR”) had found at the

scene of the shooting.

{¶9} The Ashtabula County Grand Jury indicted Mr. Shepard on the following

charges: involuntary manslaughter in violation of R.C. 2903.01(A), a felony of the first

degree, along with forfeiture and firearm specifications (Count 1); having weapons while

under disability in violation of R.C. 2923.13(A)(1), a felony of the third degree (Count 2);

having weapons while under disability in violation of R.C. 2923.13(A)(3), a felony of the

third degree (Count 3); involuntary manslaughter in violation of R.C. 2903.01(B), a felony

of the third degree, with a firearm specification (Count 4); involuntary manslaughter in

violation of R.C. 2903.01(B), a felony of the third degree, with forfeiture and firearm

specifications (Count 5); prohibition against injuring persons or property while hunting in

violation of R.C. 1533.171(A) and R.C. 1533.99(C), a misdemeanor of the first degree

(Count 6); hunting without permission in violation of R.C. 1533.17(A) and R.C.

1533.99(A), a misdemeanor of the third degree (Count 7); and failure to report knowledge

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of a death in violation of R.C. 2921.22(C) and (J), a misdemeanor of the fourth degree

(Count 8).

{¶10} Mr. Shepard initially pleaded not guilty to the charges. He subsequently

withdrew his former plea of not guilty and entered into a written plea of guilty to involuntary

manslaughter with a three-year firearm specification (Count 1), having a weapon while

under disability (Count 2), injuring persons or property while hunting (Count 6), and failure

to report knowledge of a death (Count 8). The state agreed to dismiss Counts 3, 4, 5,

and 7.

{¶11} The plea agreement indicated there was a three-year mandatory sentence

for the firearm specification in Count 1 to be served consecutive and prior to any other

sentence in the case. The parties agreed to request a presentence investigation and

argue Mr. Shepard’s sentence to the trial court. The plea agreement also indicated the

maximum prison term was 14 years and the maximum fine was $31,250.

The Plea Hearing

{¶12} The trial court held a plea hearing where it engaged in a lengthy colloquy

with Mr. Shepard regarding the proposed written plea of guilty and his various rights.

Most relevant to this appeal, the trial court advised Mr. Shepard of the potential penalties

associated with each charge to which he was pleading guilty, including the ranges of

potential incarceration, the maximum fines, and whether those penalties were mandatory.

{¶13} Specifically, the trial court informed Mr. Shepard that Count 1, involuntary

manslaughter, was a felony of the first degree that carried a non-mandatory term of

incarceration of at least three years but not more than 11 years, or any number of years

between three and 11, and a non-mandatory fine of up to but not more than $20,000; the

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firearm specification associated with Count 1 carried a mandatory three-year prison

sentence which must be served consecutive and prior to any prison sentence in the case;

Count 2, having a weapon while under disability, was a felony of the third degree that

carried a non-mandatory term of incarceration of at least nine months but not more than

36 months, or increments of months between nine and 36, such as 12 months, 18 months,

24 months, or 30 months, and a non-mandatory fine of up to but not more than $10,000;

Count 6, injuring persons or property while hunting, was a misdemeanor of the first degree

that carried a non-mandatory term of incarceration of up to but not more than 180 days

and a non-mandatory fine of up to but not more than $1,000; and Count 8, failure to report

knowledge of a death, was a misdemeanor of the fourth degree which could carry a term

of incarceration of up to but not more than 30 days and a fine of up to but not more than

$250.

{¶14} The trial court also explained the concept of concurrent and consecutive

felony sentences and provided an example. It reiterated that it was required to impose a

three-year term of incarceration for the firearm specification to be served prior and

consecutive to any prison sentence. The trial court informed Mr. Shepard that if the

sentences were imposed consecutively, the maximum prison term would be 14 years and

the maximum fine would be $31,250. Mr. Shepard indicated he understood all of this

information.

{¶15} The trial court ultimately accepted Mr. Shepard’s plea of guilty, found him

guilty, ordered a presentence investigation report, and set the matter for sentencing. Both

parties filed a sentencing memorandum.

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 The Sentencing Hearing

{¶16} At the sentencing hearing, the trial court noted the parties’ agreement that

having a weapon while under disability (Count 2) would merge with involuntary

manslaughter (Count 1) and that the state would elect to proceed on Count 1.

{¶17} Mr. Shepard’s trial counsel spoke on his behalf and asked the trial court to

impose the minimum prison sentence of three years for involuntary manslaughter, along

with the mandatory three-year prison term for the firearm specification, for a total prison

term of six years.

{¶18} According to trial counsel, the woods where the shooting occurred were

located near the house where Mr. Shepard grew up. Mr. Shepard spent much time in the

woods as a child to escape abuse and find peace.

{¶19} Trial counsel stated that Mr. Shepard was hunting on the day of the shooting

to provide food for his elderly and disabled mother and father. He had missed his court

hearing because of drug and alcohol use. His plan was to hunt and chop wood for them

and turn himself in. Mr. Shepard shot at a deer but ended up shooting and killing Mr.

Gozzard.

{¶20} Mr. Shepard’s counsel argued (1) the shooting was a tragic hunting accident

for which Mr. Shepard was extremely and genuinely remorseful; (2) but for the fact that

Mr. Shepard was not supposed to have a firearm that day, it would have been a

misdemeanor offense; (3) Mr. Shepard was well-loved, and several letters of support

were submitted on his behalf; (4) Mr. Shepard’s conduct qualified as a less serious

offense and it was unlikely that he would commit future crimes; (5) based on an analysis

of 27 sentences in Ashtabula County following convictions where the victim died, six

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defendants were given probation, and a 12-year prison sentence was imposed in only

one case; and (6) Mr. Gozzard’s consumption of alcohol prior to hunting and the style of

hunting in which he was engaged at the time of the shooting, i.e., a deer drive in thick

woods with which he was unfamiliar, were contributing factors in his death.

{¶21} Mr. Shepard addressed the trial court and indicated he wanted to apologize

to the family and that it was not something he ever meant to do.

{¶22} The state requested a total prison term of at least 12 years. The state

disputed the defense’s assertion that Mr. Gozzard contributed to his own death, noting

that he had permission to hunt on the land and was dressed in a bright orange vest. Mr.

Gozzard had drunk a beer, but his blood alcohol level was .04.

{¶23} The state also argued that a seriousness factor was present because Mr.

Gozzard died.

{¶24} Although the state recognized that Mr. Shepard had successfully completed

community control in the past, the state contended Mr. Shepard had not learned his

lesson based on the number of misdemeanor offenses and felony convictions.

{¶25} The state also noted that Mr. Shepard’s previous conviction for having a

weapon under disability was for a different weapon than in the underlying case. Mr.

Shepard was not supposed to possess weapons at all, and on the day of the shooting he

was supposed to have been in jail for failure to appear rather than hunting.

{¶26} The state also argued that given Mr. Shepard’s prior offenses, the manner

in which the offense occurred, and the likelihood that Mr. Shepard would continue to

commit crimes, more serious factors outweighed any mitigating factors; the other cases

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that the defense cited were not similar situations; and Mr. Shepard showed no remorse

because he did not report Mr. Gozzard’s death.

{¶27} Mr. Gozzard’s surviving spouse, Judee Gozzard, addressed the trial court

regarding her husband and the impact of his death on his friends and family.

{¶28} The court indicated that it had listened to both sides and reviewed the letters

of support provided on behalf of both sides.

{¶29} With respect to the presentence investigation report, the trial court noted

that while there was no known juvenile record, Mr. Shepard’s adult record began in 2002

with multiple misdemeanors, including disorderly conduct, domestic violence, two more

disorderly conduct convictions, and a violation of a protection order, for which Mr.

Shepard successfully completed probation.

{¶30} In 2015, Mr. Shepard was indicted for the felonies of aggravated possession

of methamphetamine and possession of criminal tools. He failed to appear for a pretrial

hearing, and a warrant was issued for his arrest. He had also failed to appear for

sentencing in Conneaut Municipal Court after being convicted of improper handling of

firearms in a motor vehicle. In 2018, he was convicted of an additional felony for having

weapons while under disability.

{¶31} The trial court indicated it had considered the purposes and principles of the

sentencing statutes and the recidivism and seriousness factors and made the following

findings: (1) Mr. Shepard had no known juvenile record; (2) he had a history of criminal

convictions at the adult level of both misdemeanors and felonies; (3) he had not been

law-abiding for several years; (4) the offense occurred while Mr. Shepard was on bond

awaiting trial in another case, for which he failed to appear and for which a warrant had

8
been issued for his arrest; (5) he did not respond favorably to sanctions previously

imposed of community control and fines because he continued to commit crime, although

Mr. Shepard successfully completed community control in 2006 and 2009; (6) he showed

remorse by stating he was sorry for committing the offense and apologizing to the victims;

(7) he had a drug abuse issue and began using methamphetamine daily about two years

ago; (8) he had an active warrant for his arrest for the improper handling of a firearm in a

motor vehicle; (9) the conviction for involuntary manslaughter carried a presumption for

prison; (10) the offense resulted in the death of the victim, who was much loved by his

family; (11) Mr. Shepard had a shotgun when he was a fugitive from justice; (12) he

committed the offense when he should not have carried or used a firearm at all; and (13)

he failed to report the shooting or assist the victim and chose to leave the area.

{¶32} The trial court found that community control would demean the seriousness

of the conduct in the case and its impact upon the victim and would not adequately protect

the public and that a sentence of imprisonment was commensurate with the seriousness

of Mr. Shepard’s conduct and did not place an unnecessary burden on the state.

{¶33} The trial court sentenced Mr. Shepard to a total term of incarceration of 12

years, consisting of: (1) nine years on Count 1, (2) three years on the firearm specification

in Count 1, which was required to be served prior and consecutive to the sentence

imposed on Count 1 (3) 180 days on Count 6, to be served concurrent to the sentence

imposed on Count 1, and (4) 30 days on Count 8, to be served concurrent to the

sentences imposed on Counts 1 and 6.

{¶34} The trial court subsequently issued a judgment entry memorializing the

sentence.

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 {¶35} Mr. Shepard now appeals, raising the following two assignments of error:

{¶36} “[1.] Appellant did not enter his guilty plea knowingly, intelligently, or

voluntarily because the trial court failed to properly inform him of the maximum penalties

as required by Crim.R. 11(C)(2)(a).

{¶37} “[2.] The record clearly and convincingly fails to support the imposition of

more than a minimum sentence upon Appellant.”

Guilty Plea

{¶38} In his first assignment of error, Mr. Shepard argues he did not enter his

guilty plea knowingly, intelligently, or voluntarily because the trial court failed to properly

inform him of the maximum penalties as required by Crim.R. 11(C)(2)(a). Specifically,

Mr. Shepard asserts that the trial court incorrectly informed him that the maximum total

prison term of all the charges to which he was pleading guilty was 14 years instead of 17

years.

Standard of Review

{¶39} This court reviews de novo whether the trial court accepted a plea in

compliance with Crim.R. 11. (Citations omitted.) State v. Dundics, 11th Dist. Trumbull

No. 2015-T-0047, 2016-Ohio-1368, ¶10.

Crim.R. 11(C)(2)(a)

{¶40} A criminal defendant’s choice to enter a guilty plea is a serious decision.

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶25. Due process requires that a

defendant's plea be made knowingly, intelligently, and voluntarily; otherwise, the

defendant’s plea is invalid. Id.

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 {¶41} Under Crim.R. 11(C)(2), the trial court may not accept a plea of guilty or no

contest in felony cases without addressing the defendant personally and (a) determining

that the defendant is making the plea voluntarily, with understanding of the nature of the

charges and of the maximum penalty involved, and, if applicable, that the defendant is

not eligible for probation or for the imposition of community control sanctions at the

sentencing hearing, (b) informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court, upon

acceptance of the plea, may proceed with judgment and sentence, and (c) informing the

defendant and determining that the defendant understands that by the plea the defendant

is waiving the rights to a jury trial, to confront witnesses against him or her, to have

compulsory process for obtaining witnesses in the defendant’s favor, and to require the

state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself. Crim.R. 11(C)(2)(a)

through (c); Clark at ¶27.

{¶42} When the trial court fails to explain the constitutional rights set forth in

Crim.R. 11(C)(2)(c), it is presumed the plea was entered involuntarily and unknowingly

and therefore invalid. (Citations omitted.) Clark at ¶31. However, if the trial court

imperfectly explained nonconstitutional matters such as the maximum possible penalty,

a substantial-compliance rule applies. (Citation omitted.) Id. “Under this standard, a

slight deviation from the text of the rule is permissible; so long as the totality of the

circumstances indicates that ‘the defendant subjectively understands the implications of

his plea and the rights he is waiving,’ the plea may be upheld.” Id., quoting State v. Nero,

56 Ohio St.3d 106, 108 (1990).

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 {¶43} When the trial court does not substantially comply with Crim.R. 11 in regard

to a nonconstitutional right, reviewing courts must determine whether the trial court

partially complied or failed to comply with the rule. If the trial court partially complied, the

plea may be vacated only if the defendant demonstrates a prejudicial effect. Id. at ¶32.

“The test for prejudice is ‘whether the plea would have otherwise been made.’” Id.,

quoting Nero at 108.

Compliance

{¶44} The Supreme Court of Ohio has held that Crim.R. 11(C)(2)(a) requires the

trial court to explain the maximum sentence for each charge to which a defendant is

pleading. See State v. Johnson, 40 Ohio St.3d 130, 133 (1988). The trial court is not

required to inform the defendant of the maximum total of the sentences or that the

sentences could be imposed consecutively. See id.; State v. Thomas, 197 Ohio App.3d

176, 2011-Ohio-6073, ¶45 (8th Dist.).1

{¶45} At Mr. Shepard’s plea hearing, the trial court properly explained the

maximum sentence for each charge: involuntary manslaughter (Count 1), a felony of the

first degree, carried a maximum prison term of 11 years; the firearm specification

associated with Count 1 carried a mandatory three-year prison sentence; having a

weapon while under disability (Count 2), a felony of the third degree, carried a maximum

prison sentence of 36 months; injuring persons or property while hunting (Count 6), a

misdemeanor of the first degree, carried a maximum jail term of 180 days; and failure to

1. The Supreme Court of Ohio recently noted that its decision in Johnson was based on the court’s
interpretation of Crim.R. 11(C)(2)(a), “which has been amended since Johnson so that a single plea can
now apply to multiple charges, see 83 Ohio St.3d xciii, cix (effective July 1, 1998).” See State v. Bishop,
156 Ohio St.3d 156, 2018-Ohio-5132, ¶15. However, in Bishop, the court did not expressly overrule its
holding in Johnson.

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report knowledge of a death (Count 8), a misdemeanor of the fourth degree, carried a

maximum jail term of 30 days.

{¶46} If a trial court chooses to offer an expanded explanation of the law in a

Crim.R. 11 plea colloquy, the information conveyed must be accurate. Clark at ¶39; see

State v. Mitchell, 11th Dist. Trumbull No. 2004-T-0139, 2006-Ohio-618, ¶15, citing State

v. Engle, 74 Ohio St.3d 525, 528 (1996) (“When a defendant is induced to enter a guilty

plea by erroneous representations as to the applicable law, the plea has not been entered

knowingly and intelligently”).

{¶47} In this case, the trial court went beyond its legal obligations by, among other

things, discussing consecutive sentences and calculating the maximum total prison term.

The trial court’s calculation of 14 years as the maximum total prison term was factually

accurate.

{¶48} As indicated, Mr. Shepard’s written plea of guilty involved two felonies and

two misdemeanors. A jail term for a misdemeanor is generally served concurrently to a

prison term for a felony. See R.C. 2929.41(A); State v. Polus, 145 Ohio St.3d 266, 2016-

Ohio-655, ¶10. Therefore, the trial court properly excluded the maximum jail terms for

the two misdemeanors in calculating the maximum total prison term.

{¶49} In addition, the parties subsequently agreed that having a weapon while

under disability (Count 2) would merge with involuntary manslaughter (Count 1) for the

purposes of sentencing. Thus, at sentencing, Mr. Shepard faced a maximum total prison

term of 14 years.

{¶50} We have previously held that a trial court is only required to engage in the

merger analysis at sentencing, not prior to the finding of guilt. State v. May, 11th Dist.

13
Lake No. 2010-L-131, 2011-Ohio-5233, ¶77; State v. Shannon, 11th Dist. Trumbull No.

2017-T-0012, 2017-Ohio-9344, ¶28.

{¶51} Involuntary manslaughter and having a weapon while under disability do not

appear to constitute allied offenses of similar import subject to merger since they involve

separate conduct. See, e.g., State v. Allen, Ninth Dist. Summit No. 27494, 2017-Ohio-

2831, ¶35 (“The fact that Allen had the gun at all while under disability was sufficient

conduct to support that offense. His later failure to secure the gun and to allow his son

access to it amounted to separate conduct”). However, the parties expressly agreed to

merge those offenses, so the issue is not before us.

{¶52} Further, it is not error for the trial court to consider merger at the plea

hearing, where, as here, the information was correct. See Shannon at ¶38 (Wright, J.,

concurring in judgment only), citing State v. Oliver, 6th Dist. Sandusky No. S-10-040,

2011-Ohio-5305, ¶12 (“[T]he trial court misinformed Shannon he was facing a maximum

aggregate prison term of 12 years, when, due to merger, Shannon faced 8 years. When

a trial court addresses an issue at a plea, not required under the rule, the plea is invalid

when the addressed information is incorrect and prejudicial”). Accordingly, the trial court

did not misinform Mr. Shepard in its calculation of the maximum total prison term.

{¶53} The cases Mr. Shepard cites are all distinguishable because they involve

the trial court either entirely failing to inform the defendant about maximum penalties or

providing factually incorrect information. See State v. Gibson, 34 Ohio App.3d 146, 147

(8th Dist.1986) (the trial court did not inform the defendant of the applicable maximum

penalties); State v. Telliard, 8th Dist. Cuyahoga No. 50417, 1986 WL 5289, *2 (May 8,

1986) (the trial court did not inform the defendant about the possible maximum sentence

14
of 15 years); State v. Robinson, 8th Dist. Cuyahoga No. 85149, 2005-Ohio-2834, ¶45-46

(the trial court did not inform the defendant about the mandatory prison term of 20 years);

State v. Ashley, 9th Dist. Medina No. C.A. 2126-M, 1993 WL 89744, *2 (Mar. 31, 1993)

(the trial court incorrectly informed the defendant that the maximum possible sentence

was 18 months of incarceration); State v. Caplinger, 105 Ohio App.3d 567, 571 (4th

Dist.1995) (the trial court informed the defendant that the maximum sentence was five

years instead of 10); State v. Calvillo, 76 Ohio App.3d 714, 720 (8th Dist.1991) (the trial

court understated the maximum penalty by 10 years on one charge and overstated the

maximum penalty by 3 ½ years on another); State v. Corbin, 141 Ohio App.3d 381, 387

(8th Dist.2001) (the trial court did not correctly state the degree of the felony or its

maximum penalty).

Prejudice

{¶54} Even if we were to consider the court’s colloquy to be only in partial

compliance with Crim.R. 11(C)(2)(a), Mr. Shepard has not demonstrated that he suffered

prejudice, i.e., that he would not have made the plea otherwise. Mr. Shepard makes no

such assertion, and the record contains no evidence indicating that Mr. Shepard would

have chosen to go to trial if he had been told the maximum total prison term was 17

instead of 14 years. See Dundics at ¶21; May at ¶79; Shannon at ¶28.

{¶55} The cases Mr. Shepard cites demonstrate that he was not prejudiced. For

example, in Ashley, the trial court incorrectly informed the defendant that the maximum

possible sentence was 18 months of incarceration, with the possibility of 6 months or one

year, but ultimately sentenced him to two to five years. Id. at *1-2. Here, Mr. Shepard

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was told the maximum total prison term was 14 years and he was ultimately sentenced

to less.

{¶56} In Caplinger, the trial court informed the defendant that the maximum

penalty was only half of what it really was (five years in prison versus 10 years), which

the Fourth District determined could have inadvertently induced him to enter a guilty plea.

Id. at 573.

{¶57} Similarly, in Calvillo, the trial court informed the defendant the maximum

penalty for felonious assault was a prison term of 25 years when it was actually 15 years,

and the maximum prison term for carrying a weapon while under disability was 18 months

when it was actually five years. Id. at 720. The Eight District determined that even though

the defendant ended up with a sentence less harsh than what he thought he would

receive, it was conceivable that he may not have entered a plea if he believed the

sentence to be less harsh. Id. at 720-21. Rather, he may have been willing to opt for trial

and risk that period of incarceration. Id. at 721, fn. 5.

{¶58} Here, the difference between 14 and 17 years is not analogous to the

situations presented in Caplinger and Calvillo.

{¶59} In Corbin, the defendant believed his agreed sentence upon entering his

guilty plea was only half the potential penalty rather than the maximum. Id. at 387. Here,

the parties did not agree to a sentence recommendation, and Mr. Shepard ultimately

received less than the maximum prison term.

{¶60} Finally, we note that the plea agreement negotiated by the state and Mr.

Shepard’s counsel specifically stated that the maximum prison term was 14 years.

Further, Mr. Shepard has challenged the validity of his plea for the first time on appeal

16
without any request before the trial court to withdraw his plea. See State v. Campbell,

11th Dist. Lake No. 2018-L-115, 2019-Ohio-1846, ¶18. He had every opportunity to

request that the trial court allow him to withdraw his plea and explain the nature of any

prejudice. See id.

{¶61} We conclude that the trial court complied with Crim.R. 11(C)(2)(a) and that

Mr. Shepard entered a knowing, intelligent, and voluntary plea of guilty.

{¶62} Mr. Shepard’s first assignment of error is without merit.

Sentence

{¶63} In his second assignment of error, Mr. Shepard argues the record clearly

and convincingly fails to support the imposition of more than a minimum sentence.

Standard of Review

{¶64} The standard of review for felony sentences is governed by R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶16. That

provision states:

{¶65} “The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

{¶66} “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 of 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:

17
 {¶67} “(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;

{¶68} “(b) That the sentence is otherwise contrary to law.”

{¶69} Mr. Shepard does not argue that his sentence is contrary to law but rather

that the record does not support his sentence. “[A]n appellate court may vacate or modify

any sentence that is not clearly and convincingly contrary to law [i.e., it is within the

permissible statutory range and the trial court considered R.C. 2929.11 and 2929.11] only

if the appellate court finds by clear and convincing evidence that the record does not

support the sentence.” Marcum at ¶23.

Supported by the Record

{¶70} R.C. 2929.12 sets forth the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. See R.C. 2929.12(A).

The statute provides a non-exhaustive list of factors a trial court must consider when

determining the seriousness of the offense and the likelihood that the offender will commit

future offenses. See R.C. 2929.12(B) through (E).

{¶71} Mr. Shepard first argues that while he has a criminal record, it is “minimal”

compared to “many other defendants in the Ohio criminal justice system.”

{¶72} R.C. 2929.12(D)(2) requires the trial court to consider whether “the offender

has a history of criminal convictions” as one factor in determining whether an offender is

likely to commit a future crime. There is no requirement that the trial court consider the

offender’s criminal record in comparison to other defendants throughout the state.

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 {¶73} Further, Mr. Shepard understates his criminal record. The trial court noted

that while Mr. Shepard had no known juvenile record, he began committing crimes as an

adult, beginning with misdemeanors such as disorderly conduct, domestic violence, and

violation of a protection order, and progressing to felonies such as aggravated possession

of methamphetamine, possession of criminal tools, and improper handling of a firearm.

On the day of the shooting, Mr. Shepard had two warrants for his arrest for missing

hearings in two separate criminal cases.

{¶74} Mr. Shepard next argues that the record shows the trial court gave little or

no meaningful consideration to the factors set forth in R.C. 2929.12.

{¶75} R.C. 2929.11 and R.C. 2929.12 apply as a general guide for every

sentencing. State v. Lloyd, 11th Dist. Lake No. 2006-L-185, 2007-Ohio-3013, ¶ 44, citing

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶36. These two sections do not

mandate judicial fact-finding; rather, a court is merely required to “consider” the purposes

of sentencing in R.C. 2929.11 and the statutory guidelines and factors set forth in R.C.

2929.12. Id., citing Foster at ¶36-42. The trial court satisfies its obligation to consider the

seriousness and recidivism factors by stating that it considered them. (Citations omitted.)

State v. Brown, 11th Dist. Lake No. 2014-L-075, 2015-Ohio-2897, ¶34.

{¶76} The trial court stated at the sentencing hearing and in its sentencing entry

that it considered the purposes and principles of the sentencing statutes and the

recidivism and seriousness factors. Although not legally required to do so, the trial court

made numerous R.C. 2929.12 findings on the record, including the following: (1) Mr.

Shepard had no known juvenile record (R.C. 2929.12(E)(1)); (2) he had a history of

criminal convictions at the adult level of both misdemeanors and felonies (R.C.

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2929.12(D)(2)); (3) he had not been law-abiding for several years (R.C. 2929.12(E)(3));

(4) the offense occurred while Mr. Shepard was on bond awaiting trial in another case,

for which he failed to appear and for which a warrant had been issued for his arrest (R.C.

2929.12(D)(1)); (5) he did not respond favorably to previously imposed sanctions of

community control (R.C. 2929.12(D)(3)); (6) he showed remorse (R.C. 2929.12(E)(5); and

(7) the offense resulted in the death of the victim (R.C. 2929.12(B)(2)).

{¶77} Mr. Shepard cites the Eighth District’s decision in State v. Jones, 8th Dist.

Cuyahoga Nos. 103290 & 103302, 2016-Ohio-5923, in support of his argument that the

trial court did not consider R.C. 2929.12 factors. However, unlike here, the trial court in

Jones did not make any specific findings under R.C. 2929.12. Id. at ¶105. Further, the

Jones decision was subsequently vacated and superseded on reconsideration, see State

v. Jones, 8th Dist. Cuyahoga Nos. 103290 & 103302, 2016-Ohio-7702, and vacated on

reconsideration en banc, see State v. Jones, 8th Dist. Cuyahoga Nos. 103290 & 103302,

2018-Ohio-498.

{¶78} Mr. Shepard further argues that the trial court did not give any legal basis

or explanation for not imposing a minimum sentence and did not set forth the proper

reasons for why a minimum sentence would be inappropriate.

{¶79} For a felony of the first degree, it is presumed that a prison term is necessary

in order to comply with the purposes and principles of sentencing under R.C. 2929.11.

R.C. 2929.13(D)(1). A court may impose a community control sanction if it finds such

sanction would adequately punish the offender and protect the public from future crime

and would not demean the seriousness of the offense. R.C. 2929.13(D)(2)(a) and (b);

Lloyd at ¶48, citing Foster at ¶43. R.C. 2929.13(D)(2) requires findings of fact only when

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the trial court overcomes the presumption of imprisonment, i.e., only for downward

departures in sentencing. Lloyd at ¶48 citing State v. Mathis, 109 Ohio St.3d 54, 2006-

Ohio-855, ¶27.

{¶80} Further, the record demonstrates that the trial court provided reasons for

not imposing a minimum sentence. At the sentencing hearing, the trial court stated

community control would demean the seriousness of the conduct in the case and its

impact upon the victim and would not adequately protect the public. It specifically noted

that Mr. Shepard did not respond favorably to previous community control sanctions given

that he continued to commit crime.

{¶81} Mr. Shepard next argues that a review of the factors in R.C. 2929.12 clearly

and convincingly fails to support the sentence because the “imposition of a maximum

penalty is unwarranted.”

{¶82} The record shows the trial court recognized factors that weighed in Mr.

Shepard’s favor, such as his lack of a juvenile record, his remorse, and his previous

successful completion of community control. The trial court also recognized factors that

weighed against Mr. Shepard, including the fact that the victim died, Mr. Shepard’s

criminal history, and the fact that Mr. Shepard committed the offense while he was legally

prohibited from possessing a firearm and after he had missed two court hearings in other

criminal cases.

{¶83} The trial court is not required to give any particular weight or emphasis to a

given set of circumstances when considering the statutory factors. State v. DelManzo,

11th Dist. Lake No. 2007-L-218, 2008-Ohio-5856, ¶23. Further, it is the burden of the

defendant to show a sentencing court did not balance the R.C. 2929.12 factors, or that

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the sentence imposed is “strikingly inconsistent” with the statutory factors as they apply

to his case. State v. Crandall, 11th Dist. Ashtabula No. 2016-A-0030, 2016-Ohio-7920,

¶37, quoting State v. Rutherford, 2d Dist. Champaign No. 08CA11, 2009-Ohio-2071, ¶34.

Mr. Shepard has not attempted to meet this burden. And contrary to Mr. Shepard’s

assertion, his sentence of 12 years was not the maximum penalty available.

{¶84} Finally, Mr. Shepard argues the trial court did not use “the minimum

sanctions” that it determined accomplished the overriding purposes of felony sentencing

“without imposing an unnecessary burden on state or local government resources” under

R.C. 2929.11.

{¶85} At the sentencing hearing, the trial court stated that “a prison sentence does

not place an unnecessary burden on the State.” This language mirrors that contained in

R.C. 2929.11(A) and is sufficient to comply with the requirement to consider the R.C.

2929.11 factors. (Citation omitted.) State v. Stephens, 11th Dist. Portage No. 2018-P-

0090, 2019-Ohio-3150, ¶18.

{¶86} Mr. Shepard has failed to show that the trial court's findings are clearly and

convincingly not supported by the record.

{¶87} Mr. Shepard’s second assignment of error is without merit.

{¶88} Based on the foregoing, the judgment of the Ashtabula County Court of

Common Pleas is affirmed.

THOMAS R. WRIGHT, P.J.,

MATT LYNCH, J.,

concur.

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