Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Myriam A. Miranda
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Melissa Riley Assistant Prosecuting
BEFORE: S. Gallagher, J., E.A. Gallagher, A.J., and Laster
JOURNAL ENTRY AND OPINION
C. GALLAGHER, JUDGE.
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.
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.
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
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.
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,
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.
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.
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 ...