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State v. Shivers

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 11, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MITCHELL SHIVERS DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-602796-A

          ATTORNEY FOR APPELLANT Myriam A. Miranda

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Melissa Riley Assistant Prosecuting Attorney

          BEFORE: S. Gallagher, J., E.A. Gallagher, A.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, JUDGE.

         {¶1} Appellant Mitchell Shivers appeals the sentence imposed upon his conviction for sexual battery and challenges the trial court's failure to rule upon his motion to dismiss for preindictment delay. Upon review, we affirm the judgment of the trial court.

         {¶2} In Cuyahoga C.P. No. CR-16-602796-A, appellant was charged with two counts of rape, each with a sexually violent predator specification, and one count of kidnapping with a sexual motivation specification and a sexually violent predator specification. Appellant filed a motion to dismiss for preindictment delay. Thereafter, he entered a plea of guilty to Count 1 as amended to sexual battery in violation of R.C. 2907.03(A)(1), a felony of the third degree, which was punishable by a prison term of one to five years. Further, as part of the plea, appellant agreed to be found a sexually oriented offender. The remaining counts were nolled.

         {¶3} The trial court sentenced appellant to a prison term of 42 months and classified appellant as a sexually oriented offender. The trial court ordered the sentence to run concurrent to a one-year prison sentence imposed on the same date in another case, Cuyahoga C.P. No. CR-15-601210-A, to which appellant had pled guilty for an offense of domestic violence in violation of R.C. 2919.25(A), with a furthermore clause alleging a prior conviction, a felony of the fourth degree.

         {¶4} On appeal, appellant raises two assignments of error for our review. Appellant's first assignment of error claims:

The sentence imposed was not supported by the record and is contrary to law as it violates the ex post facto clauses of the Ohio and U.S. Constitutions.

         {¶5} Appellant challenges the trial court's consideration of the purposes and principles of felony sentencing under R.C. 2929.11 and the factors of sentencing under R.C. 2929.12. Appellant argues that the trial court should have taken into consideration certain factors relating to his criminal history for which he had never served a prison term, his lack of education beyond the fifth grade, and his entry of guilty pleas. However, all of these factors were in the record for the court's consideration. Although a trial court is required to consider the principles and purposes of sentencing and the various factors under R.C. 2929.11 and 2929.12, it need not make specific findings. State v. Osborn, 8th Dist. Cuyahoga No. 105196, 2017-Ohio-8228, ¶ 28.

         {¶6} Appellant claims that the 42-month concurrent sentence the trial court imposed was not supported by the record, and that the trial court should have considered and imposed a minimum concurrent term of incarceration of one year. The record reflects that before imposing sentence, the trial court heard from the assistant county prosecutor, defense counsel, appellant, and appellant's brother. Defense counsel requested the court to impose community control sanctions. Before imposing sentence, the trial court stated on the record that it had considered the record, the oral statements made to the court, the presentence investigation report, the purposes and principles of sentencing under R.C. 2929.11, and the seriousness and recidivism factors relevant to the offense under 2929.12.

         {¶7} The presentence investigation report contained details of the sexual assault that occurred on or about June 5, 2004. The victim reported that she had met with appellant, whom she only knew by the name of "Black, " two weeks prior to that day. She went out with appellant that night, and he had her drive him to a reported address at around 1:45 a.m. She reported that they started watching a movie and within minutes appellant climbed on top of her and began removing her clothing. She told appellant to "stop, you don't have any condoms or anything and I am not going to do anything with you." She reported that appellant then digitally penetrated her and asked "do you have anything?" He then continued to vaginally rape her over her protests, and he also attempted to penetrate her from behind. After the appellant received a phone call, the victim was able to leave. She went to a hospital where a rape kit was performed and the police were notified. The victim signed a no prosecution form because she was afraid. Although the victim had been drinking alcohol the night of the incident, she stated she was not drunk and was not ever in a situation where she did not know what was going on around her. In December 2015, a DNA match was obtained and investigators discovered appellant's name. They showed the victim a photograph of appellant, who the victim stated "looked like the person" who had sexually assaulted her.

         {¶8} The trial court determined that a 42-month sentence was appropriate and commented that although the incident occurred long ago, the victim "is living with this every day" and appellant needed ...


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