[Cite as State v. Shreves,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 2-16-11

v.

MICHAEL SEAN SHREVES, OPINION

DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court Trial Court No. 2015-CR-137

Judgment Affirmed

Date of Decision: November 21, 2016

APPEARANCES:

Rob C. Wiesenmayer for Appellant

Edwin A. Pierce for Appellee Case No. 2-16-11

SHAW, P.J.

{¶1} Defendant-appellant, Michael Shreves (“Shreves”), brings this appeal

from the June 27, 2016, judgment of the Auglaize County Common Pleas Court

sentencing Shreves to an aggregate prison term of 78 months after Shreves pled

guilty to Unlawful Sexual Conduct with a Minor in violation of R.C. 2907.04(A), a

felony of the third degree, and Attempted Unlawful Sexual Conduct with a Minor

in violation of R.C. 2923.02(A) and R.C. 2907.04(A), a felony of the fourth degree.

Relevant Facts and Procedural History

{¶2} On November 17, 2015, Shreves was indicted for one count of Rape in

violation of R.C. 2907.02(A)(2), a felony of the first degree, one count of Attempted

Rape in violation of R.C. 2923.02(A) and R.C. 2907.02(A)(2), a felony of the

second degree, one count of Unlawful Sexual Conduct with a Minor in violation of

R.C. 2907.04(A), a felony of the third degree, and one count of Attempted Unlawful

Sexual Conduct with a Minor in violation of R.C. 2923.02(A) and R.C. 2907.04(A),

a felony of the fourth degree.

{¶3} Shreves pled not guilty to the charges. In addition, Shreves filed written

pleas of not guilty by reason of insanity and he requested a mental examination to

determine his competency to stand trial and to determine his mental condition at the

time of the commission of the alleged offenses.

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{¶4} On January 22, 2016, and March 4, 2016, the trial court held a hearing

to determine Shreves’s competency to stand trial. Following a review of the

competency evaluation the court had received, which was included in the record,

the trial court deemed Shreves competent to stand trial.1 An entry reflecting the trial

court’s determination was filed March 4, 2015.

{¶5} Subsequently, Shreves entered into a written negotiated guilty plea

wherein he agreed to withdraw his not guilty and not guilty by reason of insanity

pleas and plead guilty to one count of Unlawful Sexual Conduct with a Minor in

violation of R.C. 2907.04(A), a felony of the third degree, and one count of

Attempted Unlawful Sexual Conduct with a Minor in violation of R.C. 2923.02(A)

and R.C. 2907.04(A), a felony of the fourth degree. Shreves also specifically agreed

that the offenses would not merge, stating that they were committed with a separate

animus. (Doc. No. 65). In exchange for Shreves’s guilty pleas, the State agreed to

dismiss the Rape and Attempted Rape charges against him.

{¶6} On April 19, 2016, the trial court held a change-of-plea hearing

wherein, per the written plea agreement, Shreves withdrew his pleas of not guilty

and not guilty by reason of insanity and pled guilty to the charges of Unlawful

Sexual Conduct with a Minor and Attempted Unlawful Sexual Conduct with a

1 The report itself stated that to a reasonable degree of psychological certainty Shreves was competent to stand trial.

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Minor. The court conducted a very thorough Crim.R. 11 colloquy with Shreves and

determined that he was knowingly, intelligently, and voluntarily entering his pleas.2

{¶7} The court also had the State recite a factual basis for the crimes. The

State indicated that on July 31, 2015, the 14-year-old victim was staying at a

residence where Shreves was present. The victim’s friend, R.H., was Shreves’s

girlfriend at that time. After the victim’s friend went to bed, Shreves digitally

penetrated the victim’s vagina with his finger, “then attempted to penetrate her

vagina with his penis, but was unable to do so.” (Apr. 19, 2016, Tr. at 24). A rape

kit was later conducted wherein Shreves’s DNA was located on a swab of the

victim’s “clitoral hood.” (April 19, 2016, Tr. at 24). Shreves was just shy of 30

years old at the time, elevating the Unlawful Sexual Conduct with a Minor from a

fourth degree felony to a third degree felony due to an age gap equal to, or in excess

of, 10 years between Shreves and the 14-year-old victim.

{¶8} The court ultimately accepted Shreves’s guilty pleas to the two charges

and found him guilty, ordering a pre-sentence investigation and a victim impact

statement to be prepared.

2 The trial court was especially thorough in its Crim.R. 11 colloquy with Shreves at the change-of-plea hearing because a prior pretrial hearing had been held wherein Shreves initially indicated he wanted to plead guilty, but then he changed his mind, stating that he was actually innocent. The matter was set for trial, but at a subsequent hearing Shreves elected to change his plea, stating that his earlier wavering was a result of advice he was receiving from other inmates to get a new attorney.

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{¶9} On June 24, 2016, Shreves’s sentencing hearing was held. At

sentencing the State requested maximum sentences on both counts to be run

consecutively, while Shreves’s attorney requested leniency, asking that Shreves be

placed on community control. Shreves’s attorney noted Shreves’s cognitive

difficulties and his general remorse for his crimes. Shreves echoed those sentiments

himself.

{¶10} The court then proceeded to sentence Shreves, ordering Shreves to

serve 60 months in prison on the Unlawful Sexual Conduct with a Minor charge and

18 months in prison on the Attempted Unlawful Sexual Conduct with a Minor

charge. Those sentences were ordered to be served consecutively to each other, for

an aggregate prison term of 78 months.

{¶11} A judgment entry memorializing Shreves’s sentence was filed June

27, 2016. It is from this judgment that Shreves appeals, asserting the following

assignment of error for our review.

ASSIGNMENT OF ERROR THE TRIAL COURT’S SENTENCE OF THE DEFENDANT- APPELLANT TO CONSECUTIVE MAXIMUM SENTNECES OF (60) MONTHS FOR UNLAWFUL SEXUAL CONDUCT WITH A MINOR AND EIGHTEEN (18) MONTHS FOR ATTEMPTED UNLAWFUL SEXUAL CONDUCT WITH A MINOR FOR A TOTAL SENTENCE OF SEVENTY-EIGHT (78) MONTHS WAS CONTRARY TO LAW AND FURTHER CONSTITUTED AN ABUSE OF DISCRETION IN FAILING TO PROPERLY CONSIDER AND APPLY THE FELONY SENTENCING GUIDELINES IN OHIO REVISED CODE, SECTION 2929.11 AND 2929.12.

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{¶12} In Shreves’s assignment of error, he argues that the trial court erred in

sentencing Shreves to maximum consecutive prison terms.3 Specifically, he

contends that the trial court did not properly weigh and balance the sentencing

factors in R.C. 2929.11 and 2929.12.

{¶13} “ ‘A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record or otherwise contrary to law.’ ” State v. Maggette, 3d

Dist. Seneca No. 13-16-06,

, quoting State v. Barrera, 3d Dist.

Putnam No. 12–12–01, 2012–Ohio–3196, ¶ 20.

{¶14} “ ‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give

its reasons for imposing maximum or more than minimum sentences.’ ”

State v. Castle, 2d Dist. Clark No. 2016–CA–16, 2016–Ohio–4974, ¶ 26 quoting,

State v. King, Clark Nos. 2012–CA–25, 2012–CA–26, 2013–Ohio–2021, ¶ 45.

However, in exercising its discretion, a trial court must consider the statutory

policies that apply to every felony offense, including those set out in R.C. 2929.11

3 In his brief, Shreves relies heavily on State v. Kalish,

,

, to support his view of the standard of review this Court should apply on appeal. However, after Kalish was released, the legislature altered R.C. 2953.08(G)(2) to specifically indicate that on appeal a defendant had to show by clear and convincing evidence that his sentence was not supported by the record. Based on the statutory change, the Supreme Court of Ohio has stated that the Kalish standard is no longer applicable in reviewing sentences, and we strongly encourage attorneys to stop citing it for its now-invalid standard of review. See State v. Marcum,

,

.

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and R.C. 2929.12. Castle at ¶ 26, citing State v. Leopard, 2d Dist. Clark No. 2010–

CA–87, 2011–Ohio–3864, ¶ 11.

{¶15} R.C. 2929.11(A) requires trial courts to be guided by the overriding

principles of felony sentencing. Those purposes are “to protect the public from

future crime by the offender and others and to punish the offender using the

minimum sanctions that the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources.” The court

must “consider the need for incapacitating the offender, deterring the offender and

others from future crime, rehabilitating the offender, and making restitution to the

victim of the offense, the public, or both.”

Revised Code 2929.11(B) further

provides that “[a] sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing * * *, commensurate with

and not demeaning to the seriousness of the offender's conduct and its impact upon

the victim, and consistent with sentences imposed for similar crimes committed by

similar offenders.”

{¶16} Meanwhile, R.C. 2929.12(B) sets forth nine factors that indicate an

offender’s conduct is more serious than conduct normally constituting the offense.

Those factors include, inter alia, the physical and mental injury suffered by the

victim being exacerbated because of the victim’s age, whether the victim suffered

serious physical or psychological harm, and whether the offender’s relationship to

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the victim facilitated the offense. See also State v. Dayton, 3d Dist. Union No. 14-

16-05,

, ¶ 17.

{¶17} In this case, when the trial court proceeded to sentence Shreves, it

stated that in fashioning its sentence it had considered the “purposes and principles

of felony sentencing under Section 2929.11” and the “criteria set forth in Chapter

2929 of the Revised Code” such as the “recidivism and seriousness factors[.]”4

(June 24, 2016, Tr. at 13). The trial court also stated that it considered “the

information provided to the Court by the parties and the Presentence

Investigation[.]” (Id.)

{¶18} In addition, the trial court made the following findings.

[T]his really was the worst form of these particular offenses * * * and CONSECUTIVE [sic] service is necessary to protect the public from future crime and to punish the offender and * * * consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and the danger the offender poses to the public[.] [The court] * * * also finds that his history, the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

(Id. at 13-14).

{¶19} On appeal, Shreves argues that the trial court should have provided

more specific reasoning as to factors that it considered in sentencing him related to

R.C. 2929.11 and R.C. 2929.12. However, as we have emphasized in prior

4 The trial court’s judgment entry also states that it explicitly considered R.C. 2929.11 and R.C. 2929.12.

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opinions, where “the trial court explicitly stated that it had considered the [requisite

statutory] factors * * * it was not required to elaborate upon them so long as the

record indicates that the trial court considered them and the sentences were within

the appropriate statutory range.” (Emphasis sic) State v. Dayton, 3d Dist. Union

No. 14-16-05,

, ¶ 21, citing State v. Castle, 2d Dist. Clark No.

2016–CA–16, 2016–Ohio–4974, ¶ 30.

{¶20} Here, the trial court did explicitly state that it had considered the

requisite statutes both on the record and in its sentencing entry. The sentences for

both crimes were also within the statutory range. Thus we need not even proceed

further.

{¶21} Nevertheless, the trial court’s sentence was supported by the record

and Shreves is unable to demonstrate that it was clearly and convincingly contrary

to law. The presentence investigation indicated that Shreves had a criminal history

that included a prior Aggravated Robbery, which he served time in prison for, and

an Assault on a Corrections Officer. The presentence investigation further indicated

that on the night of the incident the victim, who was only 14, stated she specifically

told Shreves “no” but that she could not push him off of her because she was on her

stomach.

{¶22} Given the trial court’s clear statement of its consideration of the

requisite statutory factors, the facts narrated, and Shreves’s unequivocal admission

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at the change-of-plea hearing, we cannot find that the trial court erred in sentencing

Shreves.5 Therefore Shreves’s argument is not well-taken, and his sole assignment

of error is overruled.6

{¶23} For the foregoing reasons, Shreves’s assignment of error is overruled

and the judgment of the Auglaize County Common Pleas Court is affirmed.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

5 This is particularly true given that Shreves agreed that his crimes were not subject to merger and that he readily admitted to his crimes, which could potentially have constituted the much more serious crimes he was charged with that were ultimately dismissed. 6 Although not specifically challenged by Shreves on appeal in his brief, the trial court did clearly make the necessary findings for consecutive sentences pursuant to R.C. 2929.14(C)(4) both at the sentencing hearing and in its final judgment entry on the matter. Thus even if Shreves did challenge this issue, any such argument would not be well-taken, and any related assignment would be overruled.

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