State v. Schaper

[Cite as State v. Schaper, 2019-Ohio-749.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-02-035
: OPINION
- vs - 3/4/2019
:
CATHERINE MARIE SCHAPER, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2015-03-0495
Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for appellant
S. POWELL, J.
{¶ 1} Appellant, Catherine Marie Schaper, appeals from the decision of the Butler
County Court of Common Pleas sentencing her to serve two concurrent six-year prison
terms after she pled guilty to the sale of an unregistered security and fraudulent acts or
practices in the sale of securities. For the reasons outlined below, we affirm the trial court's
sentencing decision.
Butler CA2018-02-035
Facts and Procedural History
{¶ 2} On May 7, 2015, Schaper and two of her codefendants, William Troy West
and North Shore Energy, LLC, pled guilty to a bill of information charging each with one
count of the sale of an unregistered security and one count of fraudulent acts or practices
in the sale of securities, both second-degree felonies. The charges stemmed from Schaper
and West's involvement in the fraudulent sale of promissory notes issued by North Shore
Energy to at least 18 investors who resided in Ohio, Indiana, and Kentucky. The promissory
notes sold by Schaper and West were for the purpose of investing in oil and gas drilling
operations in Texas. A third codefendant, Robert McManus, also pled guilty to his
involvement in this fraudulent scheme to selling securities without a license and the sale of
an unregistered security. The record indicates this fraudulent scheme netted Schaper,
West, McManus, and North Shore Energy more than two million dollars.
Codefendants' Sentencing Hearing
{¶ 3} On June 5, 2017, West, McManus, and North Shore Energy appeared before
the trial court for purposes of sentencing.1 After considering the information presented at
the sentencing hearing, as well as the presentence-investigative reports, letters submitted
to the trial court, and victim-impact statements, the trial court imposed a $30,000 fine on
North Shore Energy. The trial court then sentenced McManus to two concurrent five-year
prison terms. The trial court reached this decision after finding McManus had failed to
exercise due diligence and used his relationship with the 18 victims to facilitate his crimes.
{¶ 4} Next, as it relates to West, the trial court sentenced West to two concurrent
six-year prison terms. The trial court's sentencing decision was based upon its finding West
1. Schaper did not appear for sentencing with her three codefendants because she was receiving specialized
cancer treatment in Texas.
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had a "slightly increased level of culpability" as a result of his fraudulent conduct in failing
to disclose certain information to the victims regarding North Shore Energy's ongoing
litigation in Texas.2
Schaper's Sentencing Hearing
{¶ 5} On February 13, 2018, Schaper appeared before the trial court for purposes
of sentencing. During this hearing, Schaper's brother, sister-in-law, and friend addressed
the trial court noting Schaper's purported upstanding character and her resolve throughout
the pendency of the case. One of the victims then addressed the trial court. In no uncertain
terms, this victim noted her disdain for Schaper and for what Schaper had done to her
financially. This victim also specifically rebuffed Schaper's claim that she was just an
innocent bystander that was caught up in a "perfect storm."
{¶ 6} A second victim then addressed the trial court. This victim stated the
following:
Okay. My name is [G.G.] and I got involved in this through Bob
McManus, a Mason brother of mine. All that being said is that
as far as I'm concerned in this flim-flam deal, I feel like [Schaper]
is the Ma Barker of the whole deal. She's the head of the snake.
If the other two people wouldn't have been in trouble at all if she
hadn't initiated this whole deal.
During this time, I lost a quarter million dollars, which was my
life's savings. At no time was I ever offered any restitution, not
even an Arby's coupon. This money was going to be for my
kids' college. They've worked two and three jobs a piece putting
themselves through college. It's had a hardship on the problem.
I've gotten divorced on it.
At no time have I ever gotten any sympathy or anything. It's like,
you know, it's just too bad. From what she was to the
community down there, she helped destroy this community.
And I ask since they signed a thing that they tried to work this
magic, they signed that they were guilty, and I ask that she gets
2. This court affirmed West's conviction and sentence in State v. West, 12th Dist. Butler No. CA2017-07-091,
2018-Ohio-640. A more detailed recitation of the facts leading to the charges at issue, as well as the trial
court's sentencing decision as it relates to West, McManus, and North Shore Energy can be found in that
opinion.
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the maximum penalty. That's what I ask.
{¶ 7} Several other victims also addressed the trial court detailing their own
financial devastation as a result of the fraud perpetrated by Schaper, West, McManus, and
North Shore Energy.
{¶ 8} Schaper then addressed the trial court in allocution. During allocution,
Schaper claimed it was never her intent to harm any of the 18 victims, thereby indicating
some remorse for her actions. Schaper nevertheless maintained her innocence by claiming
the 18 victims' losses were not a result of any wrongdoing on her part. Schaper instead
blamed the whole ordeal on the oil wells turning up dry.
{¶ 9} Schaper also noted her own financial ruin, her serious medical condition, and
her father's failing health. Schaper further noted that she was then studying to receive a
license to sell life insurance so that she could get back on her feet and engage in a
profession that would allow her to make enough money to pay restitution to the victims.
Money, according to Schaper, that simply "can't be made from prison sir. I can't do it from
there."
{¶ 10} Turning then to its sentencing decision, the trial court referred to its notes
regarding the sentences it had imposed for West, McManus, and North Shore Energy. The
trial court then noted it had "sentenced West to six years, and McManus to five years. I
don't see Schaper's role much different from West's. * * * I believe that Ms. Schaper's role
is very similar to the role of Mr. West."
{¶ 11} Expanding on this finding, the trial court stated:
In the sense of having multiple defendants, viewing them in their
situations, viewing them together, viewing what roles they
played in whatever the endeavor was, viewing their
backgrounds, their criminal backgrounds, or lack of
backgrounds, and all of that sort of thing. And when I look at
Ms. Schaper and I compare her to Mr. West, I see very, very,
very similar roles that were played, very similar backgrounds,
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Butler CA2018-02-035
very little reason to give a sentence different from what I gave
to Mr. West. That I think has to be the prevailing driving force
in me in coming up with the appropriate sentence.
{¶ 12} Continuing, after specifically stating that it had considered the record, the
overall felony sentencing structure as set forth by R.C. 2929.11 and 2929.12, the
presentence-investigative report, as well as "any and every victim impact statement," and
the statements made at the sentencing hearing, the trial court issued its sentencing decision
and sentenced Schaper to two concurrent six-year prison terms. The trial court based its
decision, at least in part, on its prior sentencing decisions regarding West and McManus.
Specifically, as the trial court stated:
In light of these considerations, and especially in light of that
duty that I have to be proportional in my sentencing in thinking
about Mr. West especially, and Mr. McManus especially, with
the need to do that, the sentence is six years in prison.
Appeal
{¶ 13} Schaper now appeals from the trial court's decision sentencing her to serve
two concurrent six-year prison terms. After a thorough review of the record, we affirm the
trial court's sentencing decision.
Standard of Review
{¶ 14} As with all felony sentences, we review the trial court's sentencing decision
under the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, this court may modify or vacate
a sentence only if, by clear and convincing evidence, "the record does not support the trial
court's findings under relevant statutes or that the sentence is otherwise contrary to law."
State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. A sentence
is not clearly and convincingly contrary to law where the trial court "considers the principles
and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly
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imposes postrelease control, and sentences the defendant within the permissible statutory
range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8. This
court may therefore "increase, reduce, or otherwise modify a sentence only when it clearly
and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the
record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at
¶ 7.
Analysis
{¶ 15} Schaper initially argues the trial court's decision sentencing her to serve two
concurrent six-year prison terms was improper because the sentence goes against the
purposes and principles of felony sentencing as set forth by R.C. 2929.11 and 2929.12.
Schaper also argues the trial court's sentencing decision goes beyond the overriding
purpose of sentencing by exceeding the minimum sanctions needed to effectuate a proper
punishment. In support, Schaper notes her age, her lack of any "similar fraudulent or
criminal offenses," and her recent cancer diagnosis. Therefore, according to Schaper,
when taking these factors into consideration, the trial court should have instead sentenced
her to community control so that she could continue receiving the specialized treatment for
her cancer and "to repay the investors." We find no merit to Schaper's claim.
{¶ 16} As noted above, after considering the record, the overall felony sentencing
structure as set forth by R.C. 2929.11 and 2929.12, the presentence-investigative report,
as well as "any and every victim impact statement," and the statements made at the
sentencing hearing, the trial court found that sentencing Schaper to community control was
not appropriate. This is because, as the trial court stated, Schaper and West had "very,
very, very similar roles that were played, very similar backgrounds," thereby providing "very
little reason to give [Schaper] a sentence different from what I gave to Mr. West."
{¶ 17} When considering R.C. 2929.11(B) requires the trial court to sentence a
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felony offender "consistent with sentences imposed for similar crimes committed by similar
offenders," such as Schaper and West here, we find no error in the trial court's decision to
sentence Schaper with the exact same sentence it had previously imposed on West. This
is true despite the fact that "each defendant is different and nothing prohibits a trial court
from imposing two different sentences upon individuals convicted of similar crimes." State
v. Tewolde, 10th Dist. Franklin No. 06AP-764, 2007-Ohio-2218, ¶ 13; State v. Andrews, 8th
Dist. Cuyahoga No. 84137, 2005-Ohio-1161 (trial court is not required to impose the same
sentence on codefendants for the same offenses).
{¶ 18} Schaper next argues the trial court's decision sentencing her to serve two
concurrent six-year prison terms was improper because the sentence was not
commensurate to the seriousness of her conduct. However, although the record indicates
Schaper took responsibility for her actions by pleading guilty to the bill of information and
appeared somewhat remorseful for her conduct, that does not negate the fact that she was
an integral part in the fraudulent scheme that ultimately resulted in her and her three
codefendants netting more than two million dollars .
{¶ 19} The statements elicited at the sentencing hearing indicate the fraudulent
scheme she, West, McManus, and North Shore Energy orchestrated caused significant,
devastating, and long-lasting financial and emotional hardship to the 18 victims. This
includes, as G.G. stated, depletion of his children's college funds and his divorce. The trial
court's sentencing decision is therefore certainly commensurate, if not somewhat lenient,
given the seriousness of her conduct in creating financial and emotional ruin to the victims'
lives.
Conclusion
{¶ 20} After a full and thorough review of the record, we find no error in the trial
court's decision sentencing Schaper to serve two concurrent six-year prison terms. In so
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holding, we note that due to Schaper's guilty plea to two second-degree felonies, the trial
court had the option of sentencing Schaper to a total maximum term of 16 years in prison.
See R.C. 2929.14(A)(2) ("[f]or a felony of the second degree, the prison term shall be two,
three, four, five, six, seven, or eight years"). The trial court instead exercised its discretion
and chose to sentence Schaper to just six years in prison on each count running concurrent
to one another. The trial court did not err in reaching this decision. Therefore, finding no
merit to any of the arguments raised herein, Schaper's single assignment of error is
overruled.
{¶ 21} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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