State v. Shriver ( 2019 )

[Cite as State v. Shriver, 2019-Ohio-840.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-L-085
- vs - :
MARKUS A. SHRIVER, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 2018 CR 000300.
Judgment: Modified and affirmed as modified.
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Melissa Ann Blake, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Markus A. Shriver, appeals from the May 25, 2018 judgment
entry of the Lake County Court of Common Pleas, finding appellant to be a Tier II Sex
Offender and sentencing him to 10 years in prison. At issue on appeal is whether the
findings made by the trial court in support of the sentence are supported by the record.
The judgment is modified and affirmed as modified.
{¶2} Appellant was charged with having unlawful sexual contact with two female
minors under the age of 13. The victims are members of appellant’s extended family. On
April 10, 2018, he pled guilty by way of information to two counts of Gross Sexual
Imposition, third-degree felonies, in violation of R.C. 2907.05(A)(4). The matter was
referred to the adult probation department for a presentence investigation and report, drug
and alcohol evaluation, psychiatric evaluation, sexual offender report, and victim impact
statements.
{¶3} A sentencing hearing was held May 23, 2018. Appellant was classified a
Tier II Sex Offender Registrant and sentenced to the maximum possible prison sentence:
60 months on each count, to be served consecutively, for a total of 120 months, or 10
years. The trial court also ordered appellant to have no contact with the victims.
{¶4} Appellant appeals his sentence and raises one assignment of error:
{¶5} “The trial court erred by sentencing the defendant-appellant to a maximum
and consecutive ten-year prison term.”
{¶6} An appellate court generally reviews felony sentences under the standard
of review set forth in R.C. 2953.08(G)(2):
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.
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:
(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
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(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.
Appellate courts “‘may vacate or modify any sentence that is not clearly and convincingly
contrary to law’” only when the appellate court clearly and convincingly finds that the
record does not support the sentence. State v. Wilson, 11th Dist. Lake No. 2017-L-028,
2017-Ohio-7127, ¶18, quoting State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002,
¶23 (citation omitted).
{¶7} A court imposing a felony sentence is required to consider the seriousness
and recidivism factors found in R.C. 2929.12 to ensure the sentence complies with the
overriding principles of felony sentencing provided in R.C. 2929.11. The Ohio Supreme
Court has held that R.C. 2929.11 and R.C. 2929.12 do not require judicial fact-finding.
State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, ¶42; State v. Macko, 11th Dist. Lake
No. 2016-L-022, 2017-Ohio-253, ¶75. Further, “[a] trial court is not required to give any
particular weight or emphasis to a given set of circumstances”; a court is merely required
to “consider” the statutory factors. State v. Delmanzo, 11th Dist. Lake No. 2007-L-218,
2008-Ohio-5856, ¶23; Foster, supra, at ¶42.
{¶8} “The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). “To achieve those purposes, the
sentencing court shall consider the need for incapacitating the offender, deterring the
offender and others from future crime, rehabilitating the offender, and making restitution
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to the victim of the offense, the public, or both.” Id. For a violation of R.C. 2907.05(A)(4),
of which appellant was convicted, “it is presumed that a prison term is necessary in order
to comply with the purposes and principles of sentencing under section 2929.11 of the
Revised Code.” R.C. 2929.13(D)(1).
{¶9} Under his sole assignment of error, appellant asserts the trial court erred in
sentencing him to a 10-year prison term because its R.C. 2929.12 findings are not
supported by the record. He contends the trial court ignored or discounted his
psychological disorders, which were being treated through counseling, as a mitigating
factor that made his behavior less serious. He further maintains the trial court failed to
give adequate weight to his amenability to rehabilitation and factors indicating a lower risk
of recidivism.
{¶10} At sentencing, the trial court considered statements made by defense
counsel, the prosecution, and family of the victims, as well as letters written in support of
appellant and the court-ordered reports and evaluations. The trial court then made the
following determinations:
Now I’ve considered the seriousness and recidivism factors in
2929.12(B) through (E), obviously this, the injuries, physical and
mental caused to [the victims] exacerbated by their age and the
[bare] minimum 9 to 11 and 7 to 9 and I find that they both suffered
psychological harm in their victim impact statements and the
statements that their parents indicates them [sic]. You used your
position as their older cousin, older cousin [sic] to facilitate this
offense. So those are all seriousness factors that I find make this
conduct more serious.
I don’t find any that make it less serious.
The recidivism factors, you don’t have a record, other than what you
told me about this petty theft in Columbus you don’t have any record.
So there is nothing indicating recidivism is more likely. I should [sic]
I take that back, I mean I guess a relevant factor is you don’t know
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why you did, you tell me you don’t know why you did this and you’ve
got all these indicators that seem to tell me that you can’t stop doing
it, okay. So I don’t know how to, I don’t know how to put somebody
in a position of rehabilitation that doesn’t know what the problem is.
There is a lot of alarming factors that come out in [Dr.] Rindsberg’s
report and quite frankly as I view things I don’t know how, I don’t
know how you properly rehabilitate sex offenders * * *. I don’t have
the slightest idea what works in situations like this and so as [the
prosecutor] stated there is a presumption that prison is the
appropriate sentence. That presumption has not been overcome so
I’m going to find you’re not amenable to community control and I’m
going to impose what I believe is the appropriate sentence in this
case that punishes you and deters others from such activity utilizing
all those factors that are set forth in the Revised Code.
{¶11} As is evident, the trial court considered the statutory factors and made
findings in support of appellant’s 10-year sentence. The trial court gave great weight to
the age of the victims and the psychological harm they suffered; appellant’s position of
trust as an older family member, which facilitated the offenses; and the findings in the
psychologist’s evaluation and sex offender report, including the conclusion that his risk of
recidivism is moderate. The trial court did not mention appellant’s diagnosis of adjustment
disorder with mixed anxiety and depressed mood or the clinical impressions of pedophilic
disorder and sexual masochism. It is apparent, however, that the trial court did not believe
appellant’s mental health issues were so significant that they mitigated the need to punish
him and deter others from similar behavior by imposing the maximum sentence.
{¶12} In its judgment entry of sentence, the trial court stated it had “considered
the record, oral statements, any victim impact statement, pre-sentence report and/or drug
and alcohol evaluation submitted by the Lake County Adult Probation Department of the
Court of Common Pleas, as well as the principles and purposes of sentencing under R.C.
2929.11, and has balanced the seriousness and recidivism factors under 2929.12.”
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Specifically, the court stated it “considered the factors under Revised Code Section
2929.[12](B) and finds that the victims’ injuries were exacerbated by the victims’ age; the
victims’ suffered psychological harm; the Defendant held a position of trust in the family;
the Defendant’s relationship with the victims facilitated the offenses; the Defendant has
no history of adult convictions; and the Defendant was not forthcoming with the Adult
Probation Department.”
{¶13} The presentence report indicates appellant’s sexual contact with the two
minor victims has been ongoing for many years, although he was only charged for the
contact that occurred since he turned 18 years old; the victims have suffered
psychological harm; and appellant is concerned with his ability to control his sexual
behavior. We conclude appellant’s prison sentence is not contrary to law, and the record
supports the trial court’s findings in support of its imposition of a 10-year prison sentence
for the crimes to which appellant pled.
{¶14} Appellant’s sole assignment of error lacks merit.
{¶15} Although not raised by appellant, the state of Ohio requests that this Court
modify the entry of sentence by vacating the no-contact order. The Ohio Supreme Court
has determined a no-contact order is a community control sanction, and the felony
sentencing statutes require that the trial court impose either a prison term or community
control sanctions for each felony offense, but not both. State v. Anderson 143 Ohio St. 3d
173, 2015-Ohio-2089, ¶17 & ¶31; State v. Gray, 11th Dist. Lake No. 2017-L-152, 2018-
Ohio-3326, ¶21-22. Accordingly, the trial court’s order that appellant have no contact with
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the victims is not authorized by law. We therefore modify appellant’s sentence by
vacating the no-contact order.1
{¶16} The judgment of the Lake County Court of Common Pleas is hereby
modified and affirmed as modified.
MATT LYNCH, J.,
MARY JANE TRAPP, J.,
concur.
1. Upon appellant’s release from prison, as a special condition of sex offender supervision, the Adult Parole
Authority will enforce that appellant is to have no contact with the victims. See R.C. 2967.28; Ohio
Adm.Code 5120:1-1-41; and State of Ohio Dept. of Rehabilitation & Corr. Policy No. 100-APA-09, eff. Sept.
18, 2017.
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