State v. Young

[Cite as State v. Young, 2018-Ohio-4920.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-18-11
v.
SHANDRA N. YOUNG, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR17-07-0218
Judgment Affirmed
Date of Decision: December 10, 2018
APPEARANCES:
Eric J. Allen for Appellant
Sarah J. Warren for Appellee
Case No. 8-18-11
SHAW, J.
{¶1} Defendant-Appellant, Shandra N. Young, appeals the March 7, 2018
judgment entry journalizing her conviction after pleading guilty to one count of
reckless homicide and one count of aggravated possession of drugs, and sentencing
her to an aggregate prison term of forty-eight months. On appeal Young claims that
she was denied due process when the trial court accepted her guilty plea without an
adequate factual basis presented by the prosecution in the record, and that the trial
court erred in ordering her to serve consecutive prison terms for the convictions.
Procedural History
{¶2} On July 11, 2017, the Logan County Grand Jury returned a four count
indictment alleging Young committed the following offenses: Count One, Reckless
Homicide, in violation R.C. 2903.041(A), a felony of the third degree; Count Two,
Abuse of a Corpse, in violation of R.C. 2927.01(A), (C), a misdemeanor of the
second degree; Count Three, Aggravated Possession of Drugs, in violation of R.C.
2925.11(A), (C)(1)(a), a felony of the fifth degree; and Count Four, Possession of
Heroin, in violation of R.C. 2925.11(A), (C)(6)(a), a felony of the fifth degree.
{¶3} According to the Bill of Particulars, Counts One and Two, as charged
in the indictment, stemmed from allegations that on February 16, 2017, Young and
her husband, Jeffrey, were present when their friend, Thomas Cotterman, overdosed
and died. Specifically, Young’s husband arranged to meet his drug dealer in Dayton
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to purchase drugs. Cotterman permitted Young and her husband to use his vehicle
and traveled with them. On the return trip to Logan County, the trio broke up the
drugs and each consumed at least one line in the vehicle. Upon returning to the
Indian Lake area, Young noticed that Cotterman, who was seated in the backseat,
was having respiratory issues and problems breathing. When Cotterman started to
gasp and appeared to stop breathing, Young attempted to perform CPR on
Cotterman. Young claimed she repeatedly asked her husband to take Cotterman to
the hospital, but he refused, stating that Cotterman would eventually come out of
the overdose. Young splashed some water on Cotterman and he appeared to be
breathing better. Cotterman was then left in the vehicle overnight.
{¶4} The next morning at 6:00 a.m., Young drove her husband to work in the
vehicle and heard Cotterman make gurgling sounds as he attempted to breathe.
Young’s husband still refused to take Cotterman to the hospital. Young went home,
showered, and checked on Cotterman in the vehicle. He was barely breathing. At
approximately 8:30-9:00 a.m., Young picked up her husband from work to take
Cotterman to the hospital. However, Young’s husband decided to drive Cotterman
to Lima, because he thought the hospital there was better than the local one. Young
and her husband then stopped to pick up Jeffery’s grandmother, who lived in the
area, because she had a valid driver’s license. They then drove Cotterman to Lima.
Young was dropped off at a fast food restaurant across the street from the hospital
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in Lima. Young’s husband and his grandmother then took Cotterman to the
Emergency Room, where Cotterman was determined to be flatlining and had a
temperature of 77.9 degrees upon arrival. Cotterman died shortly thereafter of what
was later determined to be carfentanil toxicity.
{¶5} Count Three, as charged in the indictment, pertained to allegations that
on March 4, 2017, Young was found in possession of fentanyl when law
enforcement conducted a traffic stop of Young’s husband who was driving under
suspension. Young later confessed to law enforcement that she and her husband
purchased a half gram of drugs for $30.00. The substance found on Young was
determined to be fentanyl.
{¶6} Count Four listed in the indictment contained allegations that on May
3, 2017, while Young was incarcerated at the local jail, another person conveyed
heroin on her person into the jail and Young consumed the heroin.
{¶7} Young was subsequently arraigned and entered a plea of not guilty and
was given a personal recognizance bond.
{¶8} On August 14, 2017, the trial court revoked Young’s bond and issued a
capias warrant after granting the prosecution’s motion to revoke Young’s bond
because she was found to be in possession of PCP and cocaine, which was a
violation of the conditions of her bond. The trial court permitted a surety bond to
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be issued for Young’s release premised upon her compliance with certain
conditions.
{¶9} On October 4, 2017, the trial court again revoked Young’s bond and
issued a capias warrant after granting the prosecution’s motion to revoke Young’s
bond because she failed to report to the Adult Parole Authority office for a daily
drug screen, which was a condition of her bond. Young also failed to appear for a
final pre-trial hearing, causing the date for a jury trial to be continued.
{¶10} On January 22, 2018, Young appeared in court for a change of plea
hearing, where pursuant to a negotiated plea agreement Young withdrew her
previously tendered not guilty pleas and entered pleas of guilty to Count One,
Reckless Homicide, and Count Three, Aggravated Possession of Drugs, as charged
in the indictment. In exchange for her entering her guilty pleas, the prosecution
agreed to dismiss Count Two, Abuse of a Corpse, and Count Four, Possession of
Heroin. The trial court accepted Young’s guilty pleas and ordered a pre-sentence
investigation report to be completed.
{¶11} On March 7, 2018, the trial court sentenced Young to thirty-six months
in prison for her third degree felony Reckless Homicide conviction, and twelve
months in prison for her fifth degree felony Aggravated Possession of Drugs
conviction. The trial court found the relevant factors in R.C. 2929.14(C)(4) to be
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applicable and ordered the prison terms to run consecutive for a total of forty-eight
months.
{¶12} Young now appeals from the trial court’s judgment entry of conviction
and sentence, asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR NO. 1
A FELONY CRIMINAL CONVICTION, WHETHER FROM
PLEA OR TRIAL, WHOLLY DEVOID OF ANY FACTUAL
SUPPORT IN THE RECORD IS A DENIAL OF DUE PROCESS
UNDER THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND/OR ARTICLE I,
SECTION 10 OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR NO. 2
THE RECORD IN THIS MATTER DOES NOT SUPPORT THE
IMPOSITION OF CONSECUTIVE SENTENCES PURSUANT
TO STATE LAW R.C. 2929.14.
First Assignment of Error
{¶13} In her first assignment of error, Young argues that the trial court erred
when it accepted her guilty plea and found her guilty, absent an explanation of the
circumstances constituting the reckless homicide offense. Young claims that
without an explanation of circumstances the court lacked a factual record sufficient
to support the trial court’s finding of guilty. In her brief, Young relies on cases
construing R.C. 2937.07, which provides that “[i]f the offense is a misdemeanor
and accused pleads guilty to the offense, the court or magistrate shall receive and
enter the plea unless the court or magistrate believes that it was made through fraud,
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collusion, or mistake.” (Emphasis added). That section creates a mechanism to
avoid such defects by providing that “[u]pon receiving a plea of guilty, the court or
magistrate shall call for an explanation of the circumstances of the offense from the
affiant or complainant or the affiant or complainant’s representatives,” and that
“[a]fter hearing the explanation of circumstances, together with any statement of the
accused,” the court or magistrate shall impose a sentence or continue the case for
that purpose. R.C. 2937.07
{¶14} By its terms, R.C. 2937.07 has no application to the two felony
offenses to which Young entered guilty pleas. See State v. Guy, 2d Dist.
Montgomery No. 22444, 2008-Ohio-3483, ¶ 9. Therefore, R.C. 2937.07 confers no
substantive right that would prevent the trial court from finding Young guilty absent
an explanation of the circumstances constituting her felony offenses. Rather, pleas
of guilty or no contest to charges alleging felony offenses are instead governed by
Crim.R. 11(C).
{¶15} Although, Young does not assign error to the trial court’s handling of
her guilty pleas pursuant to Crim.R. 11(C), we nevertheless note that the transcript
of the proceedings demonstrates that the trial court complied with every requirement
dictated by Crim.R. 11 in its plea colloquy with Young. Specifically, Young
acknowledged her understanding of the nature of the charges listed in the indictment
and that by pleading guilty she was making a complete admission of guilt to the
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allegations contained in the indictment. Accordingly, we find that Young’s
arguments regarding the inadequacy of the factual basis in the record to be without
merit and overrule the first assignment of error.
Second Assignment of Error
{¶16} In her second assignment of error, Young claims the trial court’s
imposition of consecutive sentences pursuant to R.C. 2929.14(C)(4) was not
supported by the record and contends that her sentence is contrary to law.
{¶17} An appellate court generally reviews felony sentences under the
standard of review set forth in R.C. 2953.08(G)(2), which states:
The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying
the sentence or modification given by the sentencing court.
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. The appellate court’s standard for review is not
whether the sentencing court abused its discretion. ‘The appellate
court may take any action authorized by this division 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 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.
{¶18} Appellate courts “may vacate or modify any sentence that is not
clearly and convincingly contrary to law” only when the appellate court clearly and
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convincingly finds that the record does not support the sentence. State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 23.
{¶19} “In order to impose consecutive sentences, a trial court is required
under R.C. 2929.14(C)(4) to make certain findings for the record and to incorporate
these findings into the judgment entry.” State v. Taflinger, 3d Dist. Logan No. 8-17-
20, 2018-Ohio-456, ¶ 10. Specifically, R.C. 2929.14(C)(4) states:
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 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.
R.C. 2929.14(C)(4).
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{¶20} Here, the record reflects that the trial court specifically found that:
[c]onsecutive sentences are necessary to protect the public from
future crime and/or 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. 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.
(Doc. No. 55 at 2).
{¶21} Appellant does not claim the trial court failed to make the proper
findings under R.C. 2929.14(C)(4); rather, she maintains the findings were not
supported by the record. Specifically, Young claims the trial court did not give due
consideration to certain mitigating factors such as the fact that she is a victim of
domestic violence and that “she has long suffered various forms of abuse from her
controlling husband;” that she has a “long-standing drug addiction;” and that she
“has developmental and cognitive delays that allow her to be easily influenced,
especially after becoming intoxicated with illicit substances.” (Appt. Br. at 5).
Young also points to her expression of remorse at the sentencing hearing and her
family support to help her get sober and to divorce her husband.
{¶22} Contrary to Young’s contentions on appeal, the record reflects that the
trial court did consider these mitigating factors, but found that they did not outweigh
certain aggravating factors revealed in Young’s pre-sentencing investigation report.
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In particular, the trial court noted that Young had a history of substance abuse and
drug-related offenses, and had been given community control sanctions
“repeatedly” and that “clear * * * attempts to intervene [with her substance abuse]
have not worked” for her. (Doc. No. 78 at 14). The trial court further noted in its
dialogue with Young at sentencing that her criminal conduct had become more
serious over time, “now, ultimately leading to the death of another. You have to be
held accountable for this offense.” (Id.)
{¶23} The trial court also observed that Young was on probation for a prior
offense when the underlying offenses occurred. The trial court stated to Young,
“[y]ou have a significant history of criminal convictions. You have not responded
well to * * * probation. [The] victim in this case suffered, obviously, serious
physical harm, that being death. He was a friend of yours. You literally watched a
friend die.” (Id). The trial court further found the record demonstrated that Young
was not amenable to community control.
{¶24} Based on the record before us, Young failed to clearly and
convincingly demonstrate that the trial court erred by ordering her to serve the
prison sentences consecutively. The trial court made the appropriate R.C.
2929.14(C)(4) findings before imposing consecutive sentences and incorporated
those findings in its sentencing entry. Moreover, as demonstrated above, the trial
court’s findings with regard to imposing consecutive sentences were supported by
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the record. Therefore, the trial court did not err in ordering consecutive sentences
and we overrule the second assignment of error.
{¶25} For all these reasons, the assignments of error are overruled and the
judgment of the trial court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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