State v. Kipker

[Cite as State v. Kipker, 2023-Ohio-679.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-22-19
v.
TERRANCE M. KIPKER, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-22-20
v.
TERRANCE M. KIPKER, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-22-21
v.
TERRANCE M. KIPKER, OPINION
DEFENDANT-APPELLANT.
Case Nos. 8-22-19, 8-22-20 and 8-22-21
Appeals from Logan County Common Pleas Court
Trial Court Nos. CR21 06 0167, CR22 03 0075 and CR22 02 0055
Appeal Dismissed in 8-22-19 and
Judgments Affirmed in 8-22-20 and 8-22-21
Date of Decision: March 6, 2023
APPEARANCES:
William T. Cramer for Appellant
Sarah J. Warren for Appellee
ZIMMERMAN, J.
{¶1} Defendant-appellant, Terrance M. Kipker (“Kipker”), appeals the
judgment entries of sentencing of the Logan County Court of Common Pleas. For
the reasons set forth below, we dismiss in part and affirm in part.
{¶2} On July 13, 2021, in case number CR21 06 0167 (hereinafter “2021
case”), Kipker was indicted by the Logan County Grand Jury on aggravated
trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(1)(c), a third-degree
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Case Nos. 8-22-19, 8-22-20 and 8-22-21
felony, together with a specification for forfeiture of money in a drug case under
R.C. 2941.1417(A).1 On July 19, 2021, Kipker entered a not-guilty plea.
{¶3} Then, Kipker was indicted on February 8, 2022, in case number CR22
02 0055, on four criminal charges including Counts One and Three for felonious
assault in violation of R.C. 2903.11(A)(1), (D)(1)(a), both second-degree felonies
and Counts Two and Four for domestic violence in violation of R.C. 2919.25(A),
(D)(3), both fourth-degree felonies.2 On February 1, 2022, Kipker tendered not-
guilty pleas to all counts in the indictment.
{¶4} Then, on March 8, 2022, Kipker was indicted by the Logan County
Grand Jury, in case number CR22 03 0075, for one count of permitting drug abuse
in violation of R.C. 2925.13(B), (C)(3)(a), a fifth-degree felony.3 On March 11,
2022, Kipker entered a plea of not guilty to the indictment.
{¶5} On March 29, 2022, pursuant to a negotiated-plea agreement, Kipker
entered guilty pleas to the indictments in case numbers CR21 06 0167 and CR22 03
0075. Further, the State dismissed Counts One, Two, and Three, in case number
CR22 02 0055, and Kipker agreed to plead guilty to Count Four (i.e., domestic
violence) as indicted. Per the plea agreement, the State agreed to stand silent at
1
The offense was alleged to have occurred on or about June 15, 2021.
2
Count One was alleged to have occurred on or about August 1, 2020; Count Two on or about October 1,
2020 through October 31, 2020; and Counts Three and Four on or about January 11, 2022.
3
The offense was alleged to have occurred on or about June 14, 2021.
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sentencing. The trial court accepted Kipker’s guilty pleas and continued his case
for sentencing.
{¶6} On May 2, 2022, the trial court proceeded to sentencing on all three
cases. The trial court sentenced Kipker to a 30-month prison term in case number
CR21 06 0167. Next, the trial court sentenced Kipker, in case number CR22 02
0055, to a 12-month prison term to be served consecutively to the sentence imposed
in case number CR21 06 0167. Then, the trial court sentenced Kipker to a six-month
prison term, in case number CR22 03 0075, to be served consecutively to the prison
terms imposed in case numbers CR21 06 0167 and CR22 02 0055, for a total
aggregate prison term (in all cases) of 48 months.
{¶7} Kipker filed timely notices of appeal in his 2021 and 2022 cases, which
we have consolidated. Kipker raises one assignment of error for our review.
Appeal 8-22-19
{¶8} However, before we address the merits of Kipker’s appeals, we note
that Kipker (in his brief) does not present any arguments challenging the sentence
imposed in his 2021 case. Rather, his assignment of error only challenges the
consecutive sentences imposed in his 2022 cases, which were run consecutively to
his 2021 case. Since there are no issues raised or error assigned below in appellate
case number 8-22-19, that appeal is dismissed. See State v. Taylor, 3d Dist. Seneca
Nos. 13-19-21 and 13-19-22, 2019-Ohio-4719, ¶ 8. Therefore, we will only
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consider Kipker’s assignment of error as it pertains to his cases in appellate case
numbers 8-22-20 and 8-22-21.
Appeals 8-22-20 and 8-22-21
Assignment of Error
By clear and convincing evidence, the record does not support the
trial court’s consecutive sentence findings under R.C.
2929.14(C)(4).
{¶9} In his assignment of error, Kipker argues that the trial court erred by
imposing consecutive sentences. In particular, Kipker argues that the trial court’s
determination in his 2022 cases is not supported by the record.
Standard of Review
{¶10} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court's findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
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Analysis
{¶11} Because Kipker committed multiple felony offenses, the presumption
is that his prison terms must be served concurrently and not consecutively. See State
v. Gwynne, ___ Ohio St.3d ___, 2022-Ohio-4607, ¶ 10, citing R.C. 2929.41(A).
R.C. 2929.41(A) provides in its pertinent part, “[e]xcept as provided in * * *
division (C) of section 2929.14, * * * a prison term, jail term, or sentence of
imprisonment shall be served concurrently with any other prison term, jail term, or
sentence of imprisonment imposed by a court of this state, another state, or the
United States.” R.C. 2929.41(A). See also Gwynne at ¶ 10, citing State v. Polus,
145 Ohio St.3d 266, 2016-Ohio-655, ¶ 10 (“[t]he first sentence of R.C. 2929.41(A)
enacts the general rule requiring concurrent sentencing with only clearly delineated
exceptions”); and State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, ¶ 21
(“[t]he general principle set forth in the Revised Code is that concurrent sentences
are the default and consecutive sentences are the exception”). R.C. 2929.14(C)
states in its pertinent part that:
(4) * * * 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
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Case Nos. 8-22-19, 8-22-20 and 8-22-21
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 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.
See also Gwynne at ¶ 10, citing R.C. 2929.14(C)(4).
{¶12} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-
24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id. Further, the trial
court must state the required findings at the sentencing hearing prior to imposing
consecutive sentences and incorporate those findings into its sentencing entry. State
v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. However, a trial court “has no
obligation to state reasons to support its findings.” Bonnell at ¶ 37.
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{¶13} Here, at Kipker’s sentencing hearing, the trial court found that
“consecutive sentences are necessary to protect the public from future crime and to
punish [Kipker]”. (May 2, 2022 Tr. at 16). Further, the trial court found that
“consecutive sentences are not disproportionate to the seriousness of [Kipker’s]
conduct and to the danger that [he] poses to the public.” (Id.).
{¶14} Regarding the factors under R.C. 2929.14(C)(4)(a)-(c), the trial court
found that “[Kipker] was awaiting trial in Case Number CR21-06-0167 at the time
he committed the offenses of CR22-03-0075 and CR22-02-0055”; that “at least two
of the multiple offenses were committed as a single course of conduct and the harm
caused by the multiple offenses was so great that no single prison term for any of
the offenses committed adequately reflects the seriousness of [Kipker’s] conduct”;
and that “[Kipker’s] history of criminal conduct demonstrates consecutive sentences
are necessary to protect the public from future crime by [Kipker]”. (May 2, 2022
Tr. at 16-17). See R.C. 2929.14(C)(4)(a)-(c). Importantly, the trial court
memorialized these findings in its sentencing entry by reciting the language of R.C.
2929.14(C)(4)(a)-(c). (See Case No. CR22 03 0075, Doc. No. 30). (See also Case
No. CR22 02 0055, Doc. No. 38).
{¶15} Based upon our review of the record, we conclude that the trial court
made the statutorily required findings before imposing consecutive sentences at
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Case Nos. 8-22-19, 8-22-20 and 8-22-21
Kipker’s sentencing hearing and incorporated those findings into its sentencing
entry.
{¶16} Nevertheless, even though Kipker frames his argument as a
consecutive-sentence challenge, he is truly attacking the trial court’s consideration
of the principles and purposes of felony sentencing under R.C. 2929.11 and R.C.
2929.12. Specifically, he argues the trial court should have addressed his substance-
abuse-addiction issues, which he stated, “would be more useful to [Kipker] than a
lengthy prison term”. However, in Gwynne, the Supreme Court of Ohio “clarified
that R.C. 2929.11 and R.C. 2929.12 do not apply to consecutive-sentencing review.”
State v. Cochran, 3d Dist. Marion No. 9-21-19, 2022-Ohio-885, ¶ 17, citing State v.
Hiles, 3d Dist. Union No. 14-20-21, 2021-Ohio-1622, ¶ 18, citing State v. Gwynne,
158 Ohio St.3d 279, 2019-Ohio-4761, ¶ 17. Consequently, we will not review
Kipker’s consecutive sentences for compliance with R.C. 2929.11 and R.C.
2929.12. Id.{¶17} Because Kipker has not presented any other argument challenging his
consecutive sentences, we conclude that his consecutive sentences are not clearly
and convincingly unsupported by the record or otherwise contrary to law. Id.{¶18} Accordingly, Kipker’s sole assignment of error is overruled.
{¶19} For the reasons stated above, we dismiss appellant’s appeal related to
appellate case number 8-22-19, and having found no error prejudicial to the
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appellant herein in the particulars assigned and argued in appellate case numbers 8-
22-20 and 8-22-21, affirm the judgments of the trial court in appellate case numbers
8-22-20 and 8-22-21.
Appeal Dismissed in 8-22-19;
Judgments Affirmed in 8-22-20 and 8-22-21
MILLER, P.J. and WILLAMOWSKI, J., concur.
/jlr
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