State v. Sullens

[Cite as State v. Sullens, 2022-Ohio-2305.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2021-0068
SHAWN SULLENS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2021-0346
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 30, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH TODD W. BARSTOW
Prosecuting Attorney 261 West Johnstown Road – Suite #204
Muskingum County, Ohio Columbus, Ohio 43230
TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
P.O. Box 189
Zanesville, Ohio 43701
Muskingum County, Case No. CT2021-0068 2
Hoffman, J.
{¶1} Defendant-appellant Shawn Sullens appeals his 9-year sentence imposed
by the Muskingum County Court of Common Pleas, after he entered guilty pleas to one
count of negligent assault, in violation of R.C. 2903.14(A); one count of tampering with
evidence, in violation of R.C. 2921.12(A)(1); two counts of possession of drugs (cocaine),
in violation of R.C. 2925.11(A); one count of possession of drugs (methamphetamine), in
violation 2925.11(A); and one count of having weapons while under disability, in violation
of R.C. 2923.13(A)(3). Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On June 24, 2021, the Muskingum County Grand Jury indicted Appellant
on one count of negligent assault, in violation of R.C. 2903.14(A), a misdemeanor of the
first degree (Count 11); one count of tampering with evidence, in violation of R.C.
2921.12(A)(1), a felony of the third degree (Count 12); two counts of trafficking in drugs
(cocaine), in violation of R.C. 2925.03(A)(2), felonies of the fifth degree, with attendant
firearm specifications (Counts 13 and 22); two counts of possession of drugs (cocaine),
in violation of R.C. 2925.11(A), felonies of the fifth degree (Counts 15 and 23); one count
of trafficking in drugs (methamphetamine), in violation of R.C. 2925.03(A)(2), a felony of
the fourth degree with an attendant firearm specification (Count 16); one count of
possession of drugs (methamphetamine), in violation 2925.11(A), a felony of the fifth
degree (Count 17); one count of trafficking in drugs (heroin), in violation of R.C.
2925.03(A)(2), a felony of the fifth degree with an attendant firearm specification (Count
18); one count of possession of drugs (heroin), in violation 2925.11(A), a felony of the fifth
degree (Count 19); one count of trafficking in drugs (fentanyl related compound), in
violation of R.C. 2925.03(A)(2), a felony of the fifth degree with an attendant firearm
Muskingum County, Case No. CT2021-0068 3
specification (Count 20); one count of possession of drugs (fentanyl related compound),
in violation 2925.11(A), a felony of the fifth degree (Count 21);, a felony of the third degree
(Count 24); and one count of assault, in violation of R.C. 2903.13(B), a misdemeanor of
the first degree (Count 25). Appellant appeared before the trial court for arraignment on
June 30, 2021, and entered a plea of not guilty to the Indictment.
{¶3} The trial court scheduled the matter for jury trial on September 9, 2021. On
the morning of trial, the prosecutor advised the trial court Appellant wished to withdraw
his general plea of not guilty and enter pleas of guilty to Count 11 (negligent assault),
Count 12 (tampering with evidence), Count 15 (possession of drugs – cocaine), Count 17
(possession of drugs – methamphetamine), Count 23 (possession of drugs – cocaine),
and Count 24 (having weapons while under disability). The prosecutor further advised
the trial court the parties agreed to a joint sentencing recommendation of six years
imprisonment and stipulated to the judicial findings necessary for the imposition of
consecutive sentences. In exchange for Appellant’s guilty pleas, the state agreed to nolle
the remaining counts of the Indictment. After conducting a Crim. R. 11 colloquy with
Appellant, the trial court accepted his pleas and found him guilty of the aforementioned
counts.
{¶4} Thereafter, the state provided the trial court with a recitation of the facts
which led to the charges against Appellant.
{¶5} On June 8, 2021, officers were dispatched to Genesis Hospital in reference
to a female who had been shot. The female was identified as Shelbie Mourer. Mourer
told the officers she was at 1628-A Owens Street in Zanesville, when the shooting
occurred, and had been shot in the foot. Officers executed a search warrant at the 1628-
Muskingum County, Case No. CT2021-0068 4
A Owens Street residence. When officers entered the residence, they found several
people, one being Appellant, and illicit drugs in different rooms throughout the home,
including Appellant’s bedroom. The drugs associated with Appellant were tested and
determined to be cocaine and methamphetamine.
{¶6} Officers observed blood, which appeared someone had tried to clean, on
the floor of the bedroom where Mourer had told police she had been when she was shot.
Appellant explained he was holding the gun and “messing with it” when he fired it from
the living room through the closed bedroom door, striking Mourer.
{¶7} Appellant admitted he had trafficked drugs out of the home and the drugs
found in the front bedroom belonged to him. Appellant indicated the gun he was holding
when he shot Mourer was a High Point .9 millimeter, which he took to a house on Dryden
after the shooting. Officers ultimately found that gun in a closet at the 1628-A Owens
Street home.
{¶8} Appellant had three prior convictions for possession of drugs, fifth degree
felonies, out of Franklin County.
{¶9} The trial court deferred sentencing upon completion of a presentence
investigation. The trial court memorialized Appellant’s convictions via Entry filed
September 14, 2021. Appellant appeared before the trial court for sentencing on October
27, 2021. The trial court spoke to Appellant regarding his extensive criminal history,
noting the number of times Appellant had been in possession of a weapon, knowing he
was prohibited from doing so. The trial court proceeded to sentence Appellant to an
aggregate term of imprisonment of 9 years. The trial court memorialized Appellant’s
Muskingum County, Case No. CT2021-0068 5
sentence via Entry filed October 27, 2021. The state entered a Nolle Prosequi on the
remaining counts on October 29, 2021.
{¶10} It is from this sentence Appellant appeals, raising as his sole assignment of
error:
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
BY SENTENCING HIM IN CONTRAVENTION OF OHIO’S SENTENCING
STATUTES. (R. ENTRY, 10/27/21; T. SENTENCING HEARING).
{¶11} In his sole assignment of error, Appellant contends the trial court erred by
imposing a sentence which was in contravention of Ohio’s sentencing statutes.
Specifically, Appellant asserts the trial court failed to properly consider the sentencing
factors set forth in R.C. 2929.11 and R.C. 2929.12.
{¶12} Pursuant to R.C. 2953.08(G)(2)(a), we may modify or vacate a defendant's
sentence only if we clearly and convincingly find “[t]hat the record does not support the
trial court's findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
Code) . . . [or] . . . “[t]hat the sentence is otherwise contrary to law.” State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-23.
{¶13} Recently, in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169
N.E.3d 649, the Ohio Supreme Court held R.C. 2953.08(G)(2)(a) “clearly does not
provide a basis for an appellate court to modify or vacate a sentence if it concludes that
the record does not support the sentence under R.C. 2929.11 and 2929.12.” Id. at ¶ 31.
Muskingum County, Case No. CT2021-0068 6
The Jones Court explained R.C. 2929.11 and 2929.12 are not among the statutory
provisions listed in R.C. 2953.08(G)(2)(a). Id. at ¶ 28. Thus, this Court will not engage
in an analysis regarding whether the record supports the trial court's findings under R.C.
2929.11 and R.C. 2929.12.
{¶14} In Jones, the Supreme Court also confirmed R.C. 2953.08(G)(2)(b) does
not provide a mechanism for an appellate court to modify or vacate a felony sentence
based upon a finding that the sentence is “contrary to law” because it clearly and
convincingly is not supported by the record under R.C. 2929.11 and R.C. 2929.12. Id. at
¶ 32-39. “As a result of the Supreme Court's holding in Jones, when reviewing felony
sentences that are imposed solely after considering the factors in R.C. 2929.11 and R.C.
2929.12, we shall no longer analyze whether those sentences are unsupported by the
record. We simply must determine whether those sentences are contrary to law.” State v.
Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A sentence is contrary to
law when it does not fall within the statutory range for the offense or if the trial court fails
to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and
the sentencing factors set forth in R.C. 2929.12.” Id., citing State v. Brown, 2nd Dist. Clark
App. No. 2016–CA–53, 2017-Ohio-8416, 99 N.E.3d 1135.
{¶15} Under established law, a “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. King, 2nd Dist. Clark App. Nos. 2012–CA–25, 2012–CA–26, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45.
Muskingum County, Case No. CT2021-0068 7
{¶16} The record demonstrates the trial court imposed prison terms in this case
which were within the statutory range and the trial court specifically considered the
requisite statutory factors in R.C. 2929.11 and R.C. 2929.12 when it fashioned
Appellant's aggregate sentence. The trial court reviewed the presentence investigation
report. The trial court addressed Appellant and determined Appellant was in possession
of a weapon, knew he was prohibited from possessing a weapon, and acknowledged
while in possession of the weapon, he shot Mourer. The trial court also noted Appellant’s
extensive criminal history, which included a number of convictions involving firearms after
he was under a weapons disability.
{¶17} Based upon the foregoing, we find Appellant’s sentence was not contrary
to law.
{¶18} Appellant’s sole assignment of error is overruled.
{¶19} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, John, J. concur