Court of Appeals of Ohio, Fourth District, Gallia
Stephen A. Moyer and Gregory A. Wetzel, Moyer Law Offices
LPA, Columbus, Ohio, for appellant.
R. Salisbury, Gallipolis City Solicitor, Gallipolis, Ohio,
DECISION AND JUDGMENT ENTRY
William H. Harsha, Judge.
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.
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.
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
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.
In exchange for the dismissal of the charge of unlawful
sexual conduct with a minor, Staggs pleaded guilty to the
charge of assault.
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
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.
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
ASSIGNMENTS OF ERROR
Staggs assigns the following errors for our review:
TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT FOR
A SIMPLE ASSAULT.
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.
STANDARD OF REVIEW
" '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.