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State v. Staggs

Court of Appeals of Ohio, Fourth District, Gallia

August 21, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
CHEYENNE R. STAGGS, Defendant-Appellant.

          Stephen A. Moyer and Gregory A. Wetzel, Moyer Law Offices LPA, Columbus, Ohio, for appellant.

          Adam R. Salisbury, Gallipolis City Solicitor, Gallipolis, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          William H. Harsha, Judge.

         {¶1} The Gallipolis Municipal Court convicted Cheyenne Staggs of assault for transmitting the herpes virus to a minor with whom she had consensual sex. The trial court accepted her guilty plea to the offense and sentenced her to jail, house arrest, and community control.

         {¶2} Initially Staggs claims that the trial court abused its discretion in sentencing her because: (1) the trial court considered a charge dismissed under the plea agreement; and (2) the trial court only considered one of the required statutory factors at sentencing. We reject Staggs's claim because dismissed charges may be considered in sentencing, her sentence was within the statutory range for the assault offense, and she makes no affirmative showing to rebut the presumption that the trial court correctly considered the appropriate sentencing criteria. We overrule Staggs's first assignment of error.

         {¶3} Next Staggs claims that the trial court erred by failing to advise her of the possible consequences for violating the terms and conditions of community control when it imposed community control as part of her sentence. Because the parties agree and we find that the trial court violated R.C. 2929.25(A)(3) by failing to notify Staggs of the possible sanctions for violating community control at her sentencing hearing, we sustain Staggs's second assignment of error, reverse the community control sanction of the trial court, and remand the cause for proper imposition of the community control sanction.

         I. FACTS

         {¶4} In December 2016, the Gallipolis City Solicitor filed complaints in the municipal court charging Cheyenne Staggs with unlawful sexual conduct with a minor in violation of R.C. 2907.04(A) and assault in violation of R.C. 2903.13, both misdemeanors of the first degree. The complaint charging Staggs with assault alleged that in December 2015, when she was 18 years old, she "did engage in sexual conduct with D.K. who was, at that time, aged 15 years and unable to give consent. Before engaging in unprotected sexual conduct with the said minor child, Cheyenne R. Staggs did know that she was infected with the Herpes virus. D.K. tested positive for Herpes on 2/16/16." Staggs entered pleas of not guilty to the charges.

         {¶5} In exchange for the dismissal of the charge of unlawful sexual conduct with a minor, Staggs pleaded guilty to the charge of assault.

         {¶6} At the sentencing hearing the city solicitor read a statement of the victim in which he stated that "[a]fter me finding out that she gave me herpes my life has changed and I'm branded for life" and that Staggs should receive a sentence that was "[t]he max of everything on every charge because eventually she will get away from sentencing while I'm still maintaining my health for the rest of my life." Staggs noted that she had moved three hours away from the victim so she was not going to be around him anymore. Her counsel represented that Staggs had "learned a valuable lesson from this and it will never happen again" and that she was "almost a straight A student * * * so she is taking steps to make sure that she * * * is going to contribute to society the best way possible."

         {¶7} The trial court observed that it was a "very emotional case" in which he understood why the victim and his parents "want to throw * * * her in jail and throw away the key, " but it determined that the maximum six-month jail term was not appropriate. The trial court additionally noted Staggs's lack of remorse for her assault and admonished her for having sex with a minor:

And * * * all I can say Ms. Staggs is I, you know, I see no remorse about this whatsoever. I understand you might have been under the influence, I don't know * * *, but you have the responsibility when you turn 18 to make sure that your behavior * * * complies with the law and * * * I understand Mr. Salisbury's reasons for dismissing that case * * *, but you still are held to a certain standard once you turn 18. Now even if you're in school, you still obviously can be in trouble for the decisions that you make. Now I'm glad you're a great student and that's good and I expect you to go ahead and graduate from high school * * *, but you need to know that decisions you make have repercussions and having sex with a 15 year old when you are 18 is not acceptable, at all. The law does not allow you to do that. And so you need to understand that you cannot * * *, you have to make better decisions.

         {¶8} The trial court sentenced Staggs to 30 days in jail, to be served intermittently during school breaks and summer break, 90 days of electronically monitored house arrest, and community control.

         II. ASSIGNMENTS OF ERROR

         {¶9} Staggs assigns the following errors for our review:

         1. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT FOR A SIMPLE ASSAULT.

         2. THE TRIAL COURT FAILED TO ADVISE APPELLANT OF THE POSSIBLE CONSEQUENCES FOR VIOLATING THE TERMS AND CONDITIONS OF HER COMMUNITY CONTROL WHEN IT SENTENCED HER, REQUIRING THE COURT TO REMAND THE CASE FOR RESENTENCING.

         III. STANDARD OF REVIEW

         {¶10} " 'We review a misdemeanor sentence for an abuse of discretion.' " State v. Williams, 4th Dist. Jackson No 15CA3, 2016-Ohio-733, ¶ 17, quoting State v. Marcum, 2013-Ohio-2447, 994 N.E.2d 1, ¶ 22 (4th Dist.); see also State v. Berecz, 4th Dist. Washington No. 16CA15, 2017-Ohio-266, ¶ 12. " 'A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.' " State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. "An abuse of discretion includes a situation in which a trial court did not engage in a 'sound reasoning process'; this review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court." State v. Felts, 2016-Ohio-2755, 52 N.E.3d 1223, ¶ 29 (4th Dist.), quoting Darmond at ¶ 34.

         IV. LAW AND ANALYSIS

         A. R.C. ...


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