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State v. Shawhan

Court of Appeals of Ohio, Second District, Montgomery

June 22, 2018

STATE OF OHIO Plaintiff-Appellee
v.
PATRICK J. SHAWHAN Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2015-CR-3816

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

          JOHNNA M. SHIA, Atty. Reg. No. 0067685, Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant, Patrick Shawhan, following plea negotiations, pleaded guilty to three counts of rape, one count of tampering with evidence, and one count of pandering obscenity involving a minor. The plea agreement provided that the remaining indictment counts would be dismissed, that Shawhan would withdraw his pending suppression motion, that the rape counts would not merge, and that Shawhan would be sentenced to a prison term of 20-25 years. The trial court imposed a 20-year prison term. The prison term included a consecutive sentence which was imposed without the trial court making the R.C. 2929.14(C)(4) consecutive sentence findings. Shawhan appeals, asserting that the trial court erred by not merging the rape counts and that his trial counsel provided ineffective assistance by agreeing that the rape counts would not merge and by agreeing with the trial court's assertion that the R.C. 2929.14(C)(4) consecutive sentence findings were not necessary. Shawhan, from this, suggests that his guilty plea was not knowing. We determine that the trial court did not err by failing to merge the rape counts, that Shawhan's trial counsel did not provide ineffective assistance regarding the merger issue, and that an appeal of his consecutive sentence is not authorized under R.C. 2953.08(D)(1). As a result, the trial court's judgment will be affirmed.

         Facts

         {¶ 2} Shawhan was indicted on five counts of rape (substantially impaired) in violation of R.C. 2907.02(A), one count of pandering obscenity involving a minor (create, reproduce, publish) in violation of R.C. 2907.03, five counts of sexual battery (parent) in violation of R.C. 2907.05, one count of gross sexual imposition (substantially impaired) in violation of R.C. 2907.11, and four counts of tampering with evidence (alter/destroy) in violation of R.C. 2923.13. The indictment arose from an incident involving Shawhan's minor daughter with the incident being video recorded by Shawhan.

         {¶ 3} Shawhan filed a motion to suppress and an amended motion to suppress. However, before the suppression hearing was completed, the parties entered into a negotiated plea agreement. The agreement provided that Shawhan would plead guilty to three rape counts (counts 1, 5, and 7), one count of tampering with evidence (count 9), and the one count of pandering obscenity involving a minor (count 16), with the remaining counts being dismissed. The parties further agreed that the rape counts would not merge as allied offenses of similar import, that Shawhan would withdraw the suppression motion and the amended suppression motion, that Shawhan's prison term would be between 20-25 years, and that the prison term could be composed of all mandatory prison time or a combination of mandatory and non-mandatory prison time. The parties, though this is not part of the plea agreement, did acknowledge during the Crim.R. 11 plea hearing that the trial court, based upon the negotiated plea, was not required to make the R.C. 2929.14(C)(4) consecutive sentence findings.

         {¶ 4} The State, during the plea hearing, articulated the facts supporting each count to which Shawhan was entering a guilty plea. The State, pertinent to this appeal, stated that the sexual conduct connected to count 1 was cunnilingus, that the sexual conduct connected to count 5 was penile vaginal penetration, and that the sexual conduct connected to count 7 was digital vaginal penetration.

         {¶ 5} The trial court sentenced Shawhan to a 20-year prison term. The sentence was reached by sentencing Shawhan to a 10-year prison term on each rape count, to a 36-month prison term on the tampering with evidence count, and to an 8-year prison term on the pandering obscenity involving a minor count. With one exception, the trial court ordered that the sentences be served concurrently. The exception, with this being necessary to arrive at a prison term within the agreed range, is that the trial court ordered the count 7 rape sentence be served consecutively to the remaining concurrent sentence. The trial court, in doing so, did not make the R.C. 2929.14(C)(4) consecutive sentence findings. Shawhan, thereafter, filed a delayed appeal which we allowed.

         Analysis

         {¶ 6} Shawhan's first assignment of error is as follows:

         SHAWHAN'S GUILTY PLEAS WERE NOT KNOWING DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL AND FAILURE OF THE TRIAL COURT TO ABIDE BY THE MANDATES OF CRIM.R. 11.

         {¶ 7} Shawhan, in this assignment of error, does not articulate how trial counsel was ineffective or how trial counsel's ineffectiveness made Shawhan's guilty plea less than knowing. Further, the discussion does not explain how the trial court failed to comply with Crim.R. 11. Given this, further ...


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