State v. Kaufmann

[Cite as State v. Kaufmann, 2022-Ohio-3487.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2022-A-0011
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
DAVID M. KAUFMANN,
Trial Court No. 2020 CR 00358
Defendant-Appellant.
OPINION
Decided: September 30, 2022
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Joseph R. Klammer, The Klammer Law Office, LTD., The Historic Mentor Center Street
School, 7482 Center Street, Unit 6, Mentor, OH 44060 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, David M. Kaufmann, appeals from the judgment of the Ashtabula
County Court of Common Pleas, convicting him, after entering pleas of guilty, on two
counts of felony-four gross sexual imposition. At issue is whether appellant’s trial counsel
was ineffective and whether the trial court erred in sentencing him to maximum,
consecutive terms of imprisonment. We affirm.
{¶2} Appellant was indicted on three counts of gross sexual imposition, felonies
of the fourth degree, in violation of R.C. 2907.05(A)(1) and R.C. 2907.05(C)(1); he was
also indicted on one count of gross sexual imposition, a misdemeanor of the third degree,
in violation of R.C. 2907.06(A)(4) and R.C. 2907.06(C). He pleaded not guilty to the
charges. He later withdrew his plea of not guilty and entered into a plea of guilty to two
counts of felony-four gross sexual imposition. At the plea hearing, the prosecutor advised
the court that the following occurred:
{¶3} “Your Honor, there were two different victims and two different dates. The
first, Your Honor, he had gotten into the shower with the victim who was then 16, and they
were showering together; both were nude. During this time, he would get an erection and
at times cuddle with her in the shower.
{¶4} “The other girl, who was 13 at the time, indicated she was having difficulty
shaving other pubic hair. [Sic.] He proceeded to again get into the shower naked with
her, assist her in shaving her, and they would wash with a washcloth her private areas.”
{¶5} Upon receiving the state’s factual basis, the trial court asked appellant if he
agreed with the state’s recitation. Appellant’s counsel responded with the following:
{¶6} “Judge, as you heard the conversation between me and [the prosecutor]
earlier, there’s already been admissions, and an agreement by everybody who would be
involved in this case, that that behavior did happen. We were discussing whether or not -
- he showered with the girls and he did shave them. That’s what happened.”
{¶7} The trial court then asked defense counsel whether appellant admitted the
conduct, to which counsel stated “[H]e does.” Appellant interjected, stating: “And I - -
from day one, I admitted that there was a responsibility to take care of, yes. But - -.”
Defense counsel cut appellant off, stating: “That’s enough.”
{¶8} The trial court ultimately sentenced appellant to an 18-month term of
imprisonment for each count, to be served consecutively to one another. Appellant now
appeals.
2
Case No. 2022-A-0011
{¶9} His first assignment of error provides:
{¶10} “Appellant was denied effective assistance of counsel at his plea agreement
and sentencing hearing.”
{¶11} Appellant contends his trial counsel was ineffective for admitting conduct
that was beyond that for which he was charged. Specifically, appellant asserts counsel,
at the plea hearing, represented to the court that he shaved and entered the shower with
the juvenile victims. Appellant appears to argue there was only an allegation that he
assisted in shaving one of the victims. As such, he claims, counsel misrepresented
material facts to the trial court which led him to entering the plea based upon unsupported
facts and influenced the trial judge to maximum, consecutive terms of imprisonment on
each count. We do not agree.
{¶12} “In order to prevail on an ineffective assistance of counsel claim, an
appellant must demonstrate that trial counsel’s performance fell ‘below an objective
standard of reasonable representation and, in addition, prejudice arises from counsel’s
performance.’” State v. Andrus, 11th Dist. Ashtabula No. 2019-A-0082, 2020-Ohio-6810,
¶60, citing State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus
(adopting the test set forth in Strickland v. Washington, 466 U.S. 668 (1984)). “In order to
show prejudice, the appellant must demonstrate a reasonable probability that, but for
counsel’s error, the result of the proceeding would have been different.” Andrus,
supra, citing Bradley, supra, at paragraph three of the syllabus. In the context of a guilty
plea conviction, this means that appellant would not have pleaded guilty but for counsel’s
ineffective assistance. State v. Madeline, 11th Dist. Trumbull No. 2000-T-0156, 2002 WL
445036, *3 (Mar 22, 2002). “If a claim can be disposed of by showing a lack of sufficient
prejudice, there is no need to consider the first prong, i.e., whether trial counsel’s
3
Case No. 2022-A-0011
performance was deficient.” Andrus, supra, citing Bradley, supra, at 143, citing Strickland,
supra, at 695-696.
{¶13} Moreover, “[t]he mere fact that, if not for the alleged ineffective assistance
of counsel, the defendant would not have entered a guilty plea not sufficient to establish
the requisite connection between the guilty plea and the ineffective assistance. * * *
Rather, ineffective assistance of trial counsel is found to have affected the validity of a
guilty plea when it precluded a defendant from entering his plea knowingly and
voluntarily.” (Emphasis removed.) Madeline, supra, citing State v. Sopjack, 11th Dist.
Geauga No. 93-G-1826, 1995 WL 869968, *4, citing State v. Haynes, 11th Dist. Trumbull
No. 93-T-4911, 1995 WL 237075, at 4-5. This court has explained that “by entering a plea
of guilty, appellant waived the right to contest the effectiveness of his representation prior
to the entry of the guilty plea if it did not cause less than a knowing and voluntary plea.”
Haynes, supra, at *1; see also Madeline, supra. “As a general proposition, the Supreme
Court of Ohio has stated that a guilty plea ‘represents a break in the chain of events which
has preceded it in the criminal process.’” Haynes, supra, quoting State v. Spates, 64 Ohio
St.3d 269, 272 (1992).
{¶14} We recognize that defense counsel’s representations to the court do not
match the specifics of the prosecutor’s factual allegations. Defense counsel represented
appellant committed the same acts against each victim. The prosecutor’s recitation
provided that, if the matter went to trial, the state would prove appellant, in an aroused
condition, showered and cuddled with one victim; alternatively, the state alleged appellant
showered, shaved, and washed the private area of the second victim. Appellant did not
dispute the state’s allegations at either the plea hearing or at sentencing. Appellant does
not argue defense counsel’s alleged misstatements prevented him from entering a
4
Case No. 2022-A-0011
knowing, intelligent, and voluntary plea of guilty. In this respect, appellant has waived his
ineffectiveness claim as it relates to the guilty plea.
{¶15} Even assuming appellant’s argument was not waived, however, the record
demonstrates appellant entered a valid plea. A plea of guilty is a complete admission of
guilt to the allegations in the indictment. Crim.R. 11(B)(1). By implication, a valid guilty
plea represents a complete admission to the state’s rendition of the facts upon which the
charges are based and which it represents it would prove had the matter proceeded to
trial. Appellant does not dispute the state’s factual allegations. And, during the plea
hearing, the trial court requested appellant to read portions of his plea agreement
regarding his waiver of rights and his admission to the offenses at issue. The trial court
confirmed appellant understood the rights he was waiving and that he understood and
had no questions about the effect of the plea; namely, that he admitted to committing the
offenses at issue.
{¶16} We perceive no basis to conclude appellant’s plea was not knowingly,
intelligently, and voluntarily entered. In this respect, counsel was not ineffective during
the plea process.
{¶17} Next, we fail to see how counsel’s alleged misrepresentations at the plea
hearing regarding the underlying criminal conduct had any impact upon the trial court’s
ultimate sentence. Even assuming trial counsel’s representations might be inaccurate
and, therefore, his performance in this narrow regard arguably fell below an objective
standard of reasonableness, appellant cannot establish prejudice.
{¶18} At sentencing, defense counsel noted appellant had no criminal record. He
argued that appellant might need some mental health assistance but asserted he did not
think imprisonment was either necessary or required to protect the public. Counsel
5
Case No. 2022-A-0011
therefore requested community control sanctions. In allocution, appellant apologized for
his actions, but did not contest his guilt. And the state, after assessing the facts before
the court, highlighted appellant’s role as a parental figure and the exploitation of that role.
The prosecutor also noted appellant appeared to be “candy-coating” his actions as “bad
judgment” rather than criminally sexual conduct with minors. The prosecutor also
emphasized that appellant’s representations that alcohol and/or drugs had no role in the
incidents made appellant’s conduct potentially more problematic. The prosecutor pointed
out that the lack of alcohol and/or drugs indicates appellant did not suffer from impaired
judgment; and, as a result, his actions may simply reflect “who he is, to some extent.”
{¶19} The prosecutor also read one of the victim’s impact statements into the
record. The victim detailed significant mental stress, trust issues with men, suicidal
thoughts, and poor hygiene (due to her memories of appellant’s actions). The victim also
emphasized that appellant’s conduct caused her younger sister great suffering as well;
the victim ultimately requested the maximum term of imprisonment. In light of the
foregoing, the trial court stated:
{¶20} “This Defendant, according to the Presentence Report, does not have a
criminal history. However, looking at the seriousness factors, there was, apparently,
permanent injury to both victims, so the Court will find that the more serious factors
override the less serious factors. And with the Ohio Constitution of Marcy’s law, the
victims have requested the maximum prison sentence, and the Court finds that a term of
maximum prison sentence is in order.”
{¶21} The foregoing demonstrates the trial court listened to the parties and the
victim’s statement at the hearing. There is no suggestion the trial court relied upon
defense counsel’s previous statements regarding appellant’s conduct that were allegedly
6
Case No. 2022-A-0011
inaccurate. Appellant has therefore failed to show a reasonable probability that, but for
counsel’s purported error(s), his sentence would be different.
{¶22} Appellant’s first assignment of error lacks merit.
{¶23} Appellant’s second assignment of error provides:
{¶24} “The imposition of maximum and consecutive sentences is contrary to law.”
{¶25} Appellant initially argues that defense counsel’s misstatements at the plea
hearing caused the trial court to improperly inflate his sentence. As discussed under his
first assignment of error, however, the record does not support this assertion. This
argument therefore lacks merit.
{¶26} Next, appellant claims the trial court erred in sentencing him to the
maximum sentence on the two counts of gross sexual imposition to which he pleaded
guilty.1 Again, this argument is without merit.
{¶27} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” R.C. 2953.08(G)(2). “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 * * * if it clearly and
convincingly finds * * * (a) [t]hat the record does not support the sentencing court’s
1. Appellant points out that a defendant is subject to the sentencing scheme in effect at the time of his or
her offense. See, e.g., State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, ¶121-122. The indictment
charged the offenses within the time frame of May 23, 2015 – May 23, 2017 and September 7, 2015 –
September 6, 2018. R.C. 2953.08(G)(2), the statute governing appellate review of consecutive
sentences as well as R.C. 2929.24(C)(4), the statute governing the imposition of consecutive sentences
have not substantively changed since 2015. Appellant, however, cites former R.C. 2929.14(C) for the
proposition that, in order to impose maximum sentences, a trial judge was required to make certain
factual findings. That provision of R.C. 2929.14(C), however, was found unconstitutional and
excised from the Revised Code by the Supreme Court of Ohio in State v. Foster, 109 Ohio St.3d
1, 2006-Ohio-856, paragraph one of the syllabus. Hence, that aspect of the former statute was
no longer effective at the time of appellant’s commission of the offenses.
7
Case No. 2022-A-0011
findings under division * * * (C)(4) of section 2929.14, or * * * (b) [t]hat the sentence is
otherwise contrary to law.” R.C. 2953.08(G)(2).
{¶28} The Ohio Supreme Court has clarified the application of R.C.
2953.08(G)(2) in relation to R.C. 2929.11 and R.C. 2929.12 and held that it does not allow
an appellate court to vacate a sentence based on “lack of support in the record for a trial
court’s findings” or to “independently weigh the evidence in the record and substitute its
judgment for that of the trial court.” State v. Jones , 163 Ohio St.3d 242, 2020-Ohio-6729,
¶29, 42. In effect, R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate court
to modify or vacate a sentence based on its view that the sentence is not supported by
the record under R.C. 2929.11 or R.C. 2929.12.” Jones, supra, at ¶39.
{¶29} “Although a court imposing a felony sentence must consider the purposes
of felony sentencing under R.C. 2929.11 and the sentencing factors under R.C. 2929.12,
‘neither R.C. 2929.11 nor 2929.12 requires [the] court to make any specific factual
findings on the record.’” State v. Bryant, 2022-Ohio-1878, at ¶20, quoting Jones, supra,
at ¶20. The trial court expressly stated it considered the R.C. 2929.12 factors. Further,
the record demonstrates the trial court ordered and reviewed the presentence
investigation report and heard arguments in mitigation. There is consequently nothing to
suggest the trial court failed to consider the R.C. 2929.12 factors. Appellant’s argument
lacks merit.
{¶30} Finally, appellant claims the trial court erred in ordering him to serve
consecutive sentences. He argues the trial court correctly pointed out at the sentencing
hearing that he had no criminal history. The trial court erred, however, in concluding, in
its judgment entry on sentence, that appellant’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from future crime. He
8
Case No. 2022-A-0011
additionally challenges the trial court’s finding that at least two of the multiple offenses
were committed as part of one or more courses of conduct. He maintains the facts fail to
support he engaged in a “course of conduct” in committing the two offenses.
{¶31} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses
may be ordered to be served consecutively if the court finds it 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 factors in R.C.
2929.14(C)(4)(a)-(c) are present. Those factors include the following:
{¶32} “(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.
{¶33} “(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.
{¶34} “(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.
{¶35} “[T]o impose consecutive terms of imprisonment, a trial court is required to
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
9
Case No. 2022-A-0011
incorporate its findings into its sentencing entry * * *.” State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, ¶37.
{¶36} With the foregoing standards in mind, appellant is correct that the trial court
erred in concluding appellant’s criminal history justifies consecutive sentences. Appellant
had no criminal history. This does not imply the trial court erred in imposing consecutive
sentences. The record supports the trial court’s remaining findings, not the least of which
its determination that the offenses were part of a course of conduct.
{¶37} Ohio’s sentencing statutes do not appear to define the phrase “course of
conduct. ” The Second Appellate District has confronted this issue and noted:
{¶38} The term “course of conduct” is not defined in R.C. 2929.14, but other
sources provide some guidance. The supreme court has held that, for purposes of a death
specification in a case involving multiple murders, a course of conduct may be established
by factual links, including time, location, weapon, cause of death, or similar
motivation. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, ¶144. Ohio Jury
Instructions has included this definition in at least one of its instructions. See 2 Ohio Jury
Instructions 513.49(E)(6). Similarly, “some connection, common scheme, or some pattern
or psychological thread that ties” offenses together can establish a single course of
conduct. State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, syllabus. See also State
v. Summers, 2d Dist. Darke No. 2013 CA 16, 2014-Ohio-2441, ¶14.
{¶39} We conclude the Second District’s explanation of the phrase “course of
conduct” is persuasive.
{¶40} Here, according to the factual recitation at the plea hearing, appellant, while
nude, showered with and, while aroused, “cuddled” one victim while in the shower. He
also showered with the second victim, shaved her pubic region, and washed her private
10
Case No. 2022-A-0011
area. The incidents are factually linked in that both victims were minor girls with whom
appellant showered. Appellant’s motive for each criminal act could be reasonably
construed as a prurient interest in touching minor females while in a state of disrobe in a
shower. There are common connections, patterns, and a similar psychological thread
with each incident. We therefore conclude the trial court did not err in concluding
appellant’s actions represented a course of conduct and the harm was so great or unusual
as to justify consecutive sentences.
{¶41} Appellant’s second assignment of error lacks merit.
{¶42} For the reasons discussed in this opinion, the judgment of the Ashtabula
County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
JOHN J. EKLUND, J.,
concur.
11
Case No. 2022-A-0011