State v. Sipperley

[Cite as State v. Sipperley, 2020-Ohio-4609.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-19-053
Appellee Trial Court No. 19 CR 628
v.
Rory D. Sipperley DECISION AND JUDGMENT
Appellant Decided: September 25, 2020
*****
Beth A. Tischler, Sandusky County Prosecuting Attorney, and
Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.
Brett A. Klimkowsky, for appellant.
*****
MAYLE, J.
{¶ 1} Defendant-appellant, Rory D. Sipperley, appeals the November 18, 2019
judgment of the Sandusky County Court of Common Pleas, convicting him of trafficking
in heroin and having weapons while under disability, and sentencing him to 96-month
and 36-month prison terms, respectively. For the following reasons, we reverse, in part,
and affirm, in part, the trial court judgment.
I. Background
{¶ 2} On July 12, 2019, Sipperley was indicted for trafficking in a fentanyl-related
compound, a violation of R.C. 2925.03(A)(2)(C)(9)(e), with two accompanying
specifications (Count 1); possession of a fentanyl-related compound, a violation of R.C.
2925.11(A)(C)(11)(d) (Count 2); trafficking in heroin, a violation of R.C.
2925.03(A)(2)(C)(6)(d), with two accompanying specifications (Count 3); possession of
heroin, a violation of R.C. 2925.11(A)(C)(6)(c) (Count 4); two counts of possession of
drugs, violations of R.C. 2925.11(A)(C)(2)(a) (Counts 5 and 6); aggravated possession of
drugs, a violation of R.C. 2925.11(A)(C)(1)(a) (Count 7); and two counts of having
weapons under disability, violations of R.C. 2923.13(A)(3) (Counts 8 and 9).
{¶ 3} On November 13, 2019, Sipperley entered a plea of guilty to Counts 3 and 9,
in exchange for dismissal of the remaining counts and specifications of the indictment.
Sipperley agreed to withdraw a pending motion to suppress. The trial court accepted
Sipperley’s plea, made a finding of guilty, and continued the matter for sentencing on
November 15, 2019.
{¶ 4} At the sentencing hearing, the trial court imposed a 96-month prison term on
Count 3 and a 36-month prison term on Count 9, to be served concurrently to one another
but consecutively to a prison term that Sipperley was serving on another conviction. It
also imposed a three-year period of post-release control, a total fine of $12,500, and the
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costs of prosecution. Cash of $1,293, firearms, computers, an Apple iPhone, and a DVR
system were ordered forfeited to the Sandusky County Drug Task Force.
{¶ 5} Sipperley appealed and assigns the following errors for our review:
1. The Trial Court’s sentence of Rory D. Sipperley (“Appellant”)
violates R.C. 2929.14(C)(4)—and is thus contrary to law—insofar as the
Trial Court did not make appropriate findings of fact for Appellant to be
sentenced in a consecutive manner.
2. The Trial Court’s sentence of Appellant is excessive and contrary
to Ohio law.
II. Law and Analysis
{¶ 6} In his first assignment of error, Sipperley argues that his sentence is contrary
to law because the trial court ordered his prison sentences to run concurrently with one
another, but consecutively to a term of prison that he was already serving, without first
making the findings required under R.C. 2929.14(C)(4). In his second assignment of
error, he argues that his sentence is excessive and contrary to law.
{¶ 7} We review a challenge to a felony sentence under R.C. 2953.08(G)(2). R.C.
2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise modify
a sentence or may vacate the sentence and remand the matter to the sentencing court for
resentencing 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 (C)(4) of
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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.
A. Consecutive Sentences
{¶ 8} With respect to R.C. 2953.08(G)(2)(a), Sipperley challenges only the
findings required for imposing consecutive sentences under R.C. 2929.14(C)(4). R.C.
2929.14(C)(4) provides, in pertinent part, as follows:
If multiple prison terms are imposed on an offender for convictions
of multiple offenses, 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 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
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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.
{¶ 9} In other words, to impose consecutive sentences, the court must find “(1)
that consecutive sentences are necessary to protect the public from future crime or to
punish the offender, (2) that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger posed to the public, and (3) one
of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c).” State v. Brown, 7th Dist.
Jefferson No. 15 JE 0014, 2016-Ohio-5701, ¶ 14. See also State v. Beasley, 153 Ohio
St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028. The trial court is not required to recite the
words of the statute verbatim, and it “need not give its reasons for making those
findings.” Brown at ¶ 14. See also State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, syllabus. But it must specify which R.C. 2929.14(C)(4) factor
forms the basis for its decision to impose consecutive sentences, and it must make the
required findings at the sentencing hearing and incorporate them into the sentencing
judgment entry. Bonnell at syllabus, ¶ 26; Brown at ¶ 15, 19. See also State v.
Kammeyer, 3d Dist. Seneca No. 13-19-48, 2020-Ohio-3842, ¶ 68 (“[T]he trial court must
make all of the required findings both at the sentencing hearing and in its judgment entry
of sentence.”). If “the reviewing court can discern that the trial court engaged in the
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correct analysis and can determine that the record contains evidence to support the
findings, consecutive sentences should be upheld.” Bonnell at ¶ 28-29.
{¶ 10} The trial court made the following findings in its judgment entry,
demonstrating that it was imposing consecutive sentences under R.C. 2929.14(C)(4)(b):
The court hereby finds that consecutive sentences in this matter is
[sic] required pursuant to R.C. 2929.14(C)(4), the court finds that
consecutive sentences are 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 offenders [sic] conduct and to the
danger the offender poses to the public and at least two of the multiple
offenses were committed as part one [sic] or more courses of conduct, and
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 courses of conduct adequately reflects the
seriousness of the offender’s conduct. (Emphasis added.)
{¶ 11} But at the sentencing hearing, pertinent to the findings necessary to impose
consecutive sentences, the trial court stated only as follows:
The court: You know, this is one of the more egregious drug cases
that I’ve had; I mean, your exposure here was, like, 39 years. * * * Large
volumes, the weapons; I mean, it clearly looked like an enterprise for profit.
Why with – with five children, why would you take that risk?
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***
The court: * * * I – you understand my job?
The defendant: Yeah.
The court: Attempt to protect the public from future crime and
impose an appropriate, fair punishment.
***
[The state]: Ah, just – just to be sure, is the Court making the
findings for consecutive prison terms under 2929.14(C)(4)?
The court: Yes. It’s separate offenses, the seriousness of the
offenses as defined in that section, 29 –
[The state]: 2929.14 –
The court: -- 2929.14(C), yeah.
{¶ 12} We can discern from the trial court’s statements that it found that
“consecutive service is necessary to protect the public from future crime.” In addition,
the trial court’s desire to impose a “fair punishment” while taking into account the
egregiousness and “seriousness” of the “separate offenses” can be viewed as a finding
that “consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public.” But we are unable to fashion
an interpretation of the court’s words that would fairly constitute a finding under R.C.
2929.14(C)(4)(b) that “[a]t 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
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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.” See Bonnell at ¶ 33 (reviewing the trial court’s
imprecise language and discerning that some—but not all—of the necessary findings had
been made). There is also no language from which we may conclude that it made a
finding under R.C. 2929.14(C)(4)(a) or (c).
{¶ 13} The state argues that “Appellant had a lengthy criminal history, had
multiple cases pending at the time of his arraignment, and was already serving a sentence
on a different case at the time of his sentencing,” therefore, we should find that
“Appellant’s criminal history supports the trial court’s conclusion that consecutive
sentences are necessary to protect the public from future crime and were not
disproportionate to the danger that Appellant poses to the public.” First, there is no
information in the record from which we may conclude that Sipperley has a lengthy
criminal history—the court did not say this and it did not order a presentence
investigation report. Second, the state appears to conflate the findings the trial court was
required to make under R.C. 2929.14(C)(4). The court was required to find that
“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 either
R.C. 2929.14(C)(4)(a), (b), or (c).
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{¶ 14} Accordingly, because the trial court failed to make a finding at the
sentencing hearing that R.C. 2929.14(C)(4)(a), (b), or (c) applies, the imposition of
consecutive sentences here was contrary to law. State v. Gwynne, 158 Ohio St.3d 279,
2019-Ohio-4761, 141 N.E.3d 169 (“[F]ailure to make the findings required by R.C.
2929.14(C)(4) and incorporate them into a defendant’s sentencing entry renders the
sentence contrary to law.”). We reverse and remand the matter to the trial court for
resentencing. See Bonnell at ¶ 37.
{¶ 15} We find Sipperley’s first assignment of error well-taken.
B. Excessive and Otherwise Contrary to Law
{¶ 16} Sipperley also argues that his sentence is excessive and otherwise contrary
to law. He argues that the trial court “did not impose the minimum sentence which
would effectively rehabilitate [him],” and, therefore, was not guided by the overriding
purposes of felony sentencing “as codified by R.C. § 2929.11(A).” He urges that he has
taken action to overcome his drug addiction, has availed himself of employability classes,
is on a waiting list for vocational classes, and pays child support from his $25 monthly
salary.
{¶ 17} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio- 425, ¶
15, we recognized that State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, provides guidance in determining whether a sentence is clearly and convincingly
contrary to law for purposes of R.C. 2953.08(G)(2)(b). In Kalish, the Ohio Supreme
Court held that where the trial court considers the purposes and principles of sentencing
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in R.C. 2929.11 and the seriousness and recidivism factors listed in R.C. 2929.12,
properly applies post-release control, and sentences the defendant within the statutorily-
permissible range, the sentence is not clearly and convincingly contrary to law. Kalish at
¶ 18.
{¶ 18} Sipperley entered guilty pleas and was convicted of trafficking in heroin, a
violation of R.C. 2925.03(A)(2)(C)(6)(d), a second-degree felony, and having weapons
while under disability, a violation of R.C. 2923.13(A)(3), a third-degree felony. Under
R.C. 2929.14(A)(2), for a felony of the second degree, “the prison term shall be two,
three, four, five, six, seven, or eight years.” Under R.C. 2929.14(A)(3)(b), for a felony of
the third degree, “the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or
thirty-six months.”
{¶ 19} Here, the trial court imposed a prison term of 96 months on the trafficking
conviction—i.e., eight years. The trial court was required to impose a sentence stated in
terms of years—not months—so this sentence must be corrected on remand; the sentence
is otherwise within the statutorily-permissible range. Its sentence of 36 months on the
weapons charge is also within the statutorily-permissible range.
{¶ 20} While the trial court did not specifically state that it considered the
purposes and principles of sentencing set forth in R.C. 2929.11 and the seriousness and
recidivism factors listed in R.C. 2929.12, it is well-recognized that where the record is
silent, there is a presumption that the trial court gave proper consideration to R.C.
2929.11 and 2929.12. State v. Adams, 37 Ohio St.3d 295, 297, 525 N.E.2d 136110.
(1988); State v. Rutherford, 2d Dist. Champaign No. 08CA11, 2009-Ohio-2071, ¶ 34-
35. See also State v. Seele, 6th Dist. Sandusky No. S-13-025, 2014-Ohio-1455, ¶ 19
(“While it is true that the trial court did not expressly state in either its judgment entry or
during the sentencing hearing that it had balanced the principles and purposes of
sentencing against the seriousness of the offense and the likelihood of recidivism under
R.C. 2929.11 and 2929.12, we must presume that the trial court gave those statutes
proper consideration.”). It is up to the defendant to rebut this presumption. Rutherford at
¶ 34-35.
{¶ 21} R.C. 2929.11 explains that “[t]he overriding purposes of felony sentencing
are to protect the public from future crime by the offender and others and to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources.” It instructs that “[t]o 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 to the victim of the
offense, the public, or both.”
{¶ 22} R.C. 2929.12 provides discretion to the trial court “to determine the most
effective way to comply with the purposes and principles of sentencing * * *.” It
requires that “[i]n exercising that discretion, the court shall consider the factors set forth
in divisions (B) and (C) * * * relating to the seriousness of the conduct, the factors
provided in divisions (D) and (E) * * * relating to the likelihood of the offender’s
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recidivism, and the factors set forth in division (F) * * * pertaining to the offender’s
service in the armed forces of the United States,” in addition to any other factors relevant
to achieving the purposes and principles of sentencing. R.C. 2929.12(A).
{¶ 23} Here, the trial court emphasized that it considered Sipperley’s offenses to
be egregious, and it noted that there were weapons and large volumes of drugs found. It
informed Sipperley that it had a duty to protect the public from his potential future
criminal behavior. While Sipperley indicates that he has taken steps to better himself—
which he also explained to the trial court at sentencing—he has not demonstrated that the
court did not weigh the required factors in fashioning his sentence.
{¶ 24} Accordingly, we find Sipperley’s second assignment of error not well-
taken.
III. Conclusion
{¶ 25} The trial court failed at the sentencing hearing to make the findings
required to impose consecutive sentences under R.C. 2929.14(C)(4). We reverse the trial
court judgment and remand for resentencing. Sipperley’s first assignment of error is
well-taken.
{¶ 26} Sipperley has failed to demonstrate that his sentences were excessive or
otherwise contrary to law. His sentences were within the statutorily-permissible range
and Sipperley has failed to rebut the presumption that the court considered R.C. 2929.11
and 2929.12. But because the trial court imposed a prison term with respect to the
trafficking conviction that was stated in terms of 96 months instead of stated as eight
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years—contrary to R.C. 2929.14(A)(2)—we order the trial court to correct this error on
remand.
{¶ 27} We reverse, in part, and affirm, in part, the November 18, 2019 judgment
of the Sandusky County Court of Common Pleas. We remand this matter for
resentencing. The state is ordered to pay the costs of this appeal under App.R. 24.
Judgment reversed, in part,
and affirmed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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