[Cite as State v. Heffelfinger, 2013-Ohio-5667.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               WYANDOT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 16-13-06

        v.

GERALD W. HEFFELFINGER,                                 OPINION

        DEFENDANT-APPELLANT.




                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 12-CR-0078

                    Judgment Affirmed in Part and Vacated in Part

                           Date of Decision: December 23, 2013




APPEARANCES:

        Emily P. Beckley for Appellant

        Jonathan K. Miller for Appellee
Case No. 16-13-06



SHAW, J.

       {¶1} Defendant-appellant Gerald W. Heffelfinger (“Heffelfinger”) appeals

the March 22, 2013, judgment of the Wyandot County Common Pleas Court

sentencing Heffelfinger to 11 months in prison following Heffelfinger’s guilty

plea to Breaking and Entering in violation of R.C. 2911.13(B), a felony of the fifth

degree.

       {¶2} The facts relevant to this appeal are as follows. On November 14,

2012, Heffelfinger was indicted in a three count indictment for Theft from an

Elderly Person, in violation of R.C. 2913.02(A)(1) and (B)(3), a felony of the fifth

degree (Count 1), Breaking and Entering in violation of R.C. 2911.13(B), a felony

of the fifth degree (Count 2), and Possessing Criminal Tools in violation of R.C.

2923.24, a felony of the fifth degree. (Doc. 1).

       {¶3} On November 20, 2012, Heffelfinger was arraigned and pled not

guilty to the charges (Doc. 7).

       {¶4} On February 6, 2013, a change-of-plea hearing was held. Pursuant to

a written negotiated plea agreement, Heffelfinger agreed to plead guilty to

Breaking and Entering in violation of R.C. 2911.13(B), a felony of the fifth

degree, in exchange for the State agreeing to dismiss Counts 1 and 3 of the




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Indictment.1 In addition, the State agreed to stand silent regarding a sentencing

recommendation. (Doc. 14).

           {¶5} At the hearing, the court engaged in a Crim.R. 11 colloquy with

Heffelfinger, informing him of the rights he was waiving by agreeing to plead

guilty.       Ultimately the court accepted Heffelfinger’s plea, finding that it was

knowingly, voluntarily, and intelligently given. (Doc. 16). The court then ordered

a pre-sentence investigation and set the matter for sentencing. (Id.) An entry

reflecting this was filed February 27, 2013. (Id.)

           {¶6} On March 21, 2013, the court held a sentencing hearing. At the

sentencing hearing, Heffelfinger and his counsel each made brief statements.

(Mar. 21, 2013, Tr. at 2-6). After hearing their statements, the court recited

Heffelfinger’s criminal history and the fact that the victim was an elderly person

and subsequently sentenced Heffelfinger to serve 11 months in prison. (Mar. 21,

2013, Tr. at 8-9). In addition, the court ordered Heffelfinger to have no contact

with the victim. (Id. at 10).

           {¶7} A judgment entry reflecting this sentence was filed March 22, 2013.

(Doc. 22).

           {¶8} It is from this judgment that Heffelfinger appeals, asserting the

following assignments of error for our review.

1
    Heffelfinger also agreed to pay restitution to Ronald D. Hunter in the amount of $280.00.

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Case No. 16-13-06




                     ASSIGNMENT OF ERROR 1
         THE TRIAL COURT ERRED, THROUGH ABUSE OF
         DISCRETION, BY IMPOSING A SENTENCE GREATER
         THAN THE MINIMUM SENTENCE FOR A FELONY OF
         THE FIFTH DEGREE.

                    ASSIGNMENT OF ERROR 2
         THE TRIAL COURT ERRED IN IMPOSING A PRISON
         SENTENCE, AS WELL A COMMUNITY CONTROL
         SANCTION.

                                      First Assignment of Error

         {¶9} In Heffelfinger’s first assignment of error, he argues that the trial court

erred by imposing a sentence greater than the minimum sentence for a felony of

the fifth degree.            Specifically, Heffelfinger contends that the trial court

unreasonably or arbitrarily weighed the factors in R.C. 2929.11 and R.C. 2929.12.2

         {¶10} A trial court's sentence will not be disturbed on appeal absent a

defendant's showing by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes' procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. E.g. State v. Woten, 3d. Dist. Allen No. 1-12-40,


2
  Notably, Heffelfinger admits that his sentence was “within the statutory range” and thus “was not contrary
to the sentencing law[.]” (Appt.’s Br. at 5). He focuses his argument, rather, on the trial court’s application
of the sentencing factors. We would note, however, even though Heffelfinger concedes the point, the trial
court sentenced Heffelfinger to 11 months in prison, and that term falls firmly within the permissible range
of prison sentences for fifth degree felonies. Revised Code 2929.14(A)(5) provides that if a court elects to
send an offender to prison for a felony of the fifth degree, the prison term shall be “six, seven, eight, nine,
ten, eleven, or twelve months.”


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2013-Ohio-1394, ¶ 19; State v. Ramos, 3d Dist. Defiance No. 4–06–24, 2007–

Ohio–767, ¶ 23 (the clear and convincing evidence standard of review set forth

under R.C. 2953.08(G)(2) remains viable with respect to those cases appealed

under the applicable provisions of R .C. 2953.08(A), (B), and (C) * * *). Clear

and convincing evidence is that “which will produce in the mind of the trier of

facts a firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford, 161 Ohio St. 469, (1954), paragraph three of the syllabus.

        {¶11} A reviewing court must conduct a meaningful review of the trial

court's imposed sentence. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-

Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No.2003–P–0007, 2004-Ohio-

1181.    In particular, R.C. 2953.08(G)(2) provides the following regarding an

appellate court's review of a sentence on appeal.

        (2) The court hearing an appeal * * * shall review the record,
        including the findings underlying the sentence or modification
        given by the sentencing court.

        The appellate court may increase, reduce, or otherwise modify a
        sentence that is appealed under this section or may vacate the
        sentence and remand the matter to the sentencing court for
        resentencing. The appellate court's standard for review is not
        whether the sentencing court abused its discretion. The appellate
        court may take any action authorized by this division if it clearly
        and convincingly finds either of the following:

        (a) That the record does not support the sentencing court's
        findings under division (B) or (D) or (C)(4) of section 2929.14, or


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Case No. 16-13-06



       division (I) of section 2929.20 of the Revised Code, whichever, if
       any, is relevant;

       (b) That the sentence is otherwise contrary to law.

       {¶12} Revised Code Chapter 2929 governs sentencing.            R.C. 2929.11

provides, in pertinent part, that the “overriding purposes of felony sentencing are

to protect the public from future crime and to punish the offender.” R.C.

2929.11(A). In advancing these purposes, sentencing courts are instructed to

“consider the need for incapacitating the offender, deterring the offender and

others from future crime, rehabilitating the offender, and making restitution to the

victim of the offense, the public, or both.” Id. Meanwhile, R.C. 2929.11(B) states

that felony sentences must be both “commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact upon the victim” and

consistent with sentences imposed in similar cases.

       {¶13} In accordance with these principles, the trial court must consider the

factors set forth under R.C. 2929.12(B), (C), (D), and (E) relating to the

seriousness of the offender's conduct and the likelihood of the offender's

recidivism. R.C. 2929.12(A). However, the trial court is not required to make

specific findings of its consideration of the factors. State v. Kincade, 3d Dist. No.

16–09–20, 2010-Ohio-1497, ¶ 8.




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       {¶14} In this case, at the sentencing hearing, Heffelfinger and his counsel

made statements in mitigation of Heffelfinger’s sentence. Per the written plea

agreement, the State stood silent as far as a recommended sentence. The court

then stated the following.

       The Court having considered the information presented at this
       hearing, and the record, and now being fully informed of the
       circumstances surrounding the charge, and finding no cause
       which would [at] present include [sic] pronouncement of
       sentence, finds after considering the factors pertaining to the
       seriousness of the offense and whether the defendant is likely to
       recidivate, that the offender is not amenable to community
       control and prison is consistent with the purposes and principals
       [sic] of felony sentencing.

       Defendant has prior felonies on his record, one in Ohio and one
       in Michigan, served a prior prison term for receiving stolen
       property. Defendant has a long history of criminal convictions
       including assaults, domestic violence, thefts, another receiving
       stolen property and some drug related offenses.

       Defendant has no income and yet he is able to maintain a
       residence for himself which makes the Court wonder how he was
       able to do so.

       In this instance, his victim was an elderly person as that term is
       defined by law. Defendant would rather prey upon others than
       alter his lifestyle.

(Mar. 21, 2013, Tr. at 8-9).

       {¶15} The trial court’s judgment entry of sentence reflects the court’s

analysis at the sentencing hearing and further specifies parts of the record the court

had considered such as the victim’s impact statement and the pre-sentence

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Case No. 16-13-06



investigation. (Doc. 22). In addition, the judgment entry of sentence mentions

that the trial court specifically considered R.C. 2929.11. (Id.)

       {¶16} Heffelfinger argues on appeal that the trial court abused its discretion

in its consideration and application of the factors from R.C. 2929.11 and R.C.

2929.12. Essentially, Heffelfinger contends that as the trial court did not mention

the factors in R.C. 2929.12(B) or the recidivism factors in R.C. 2929.12(D) the

trial court did not appropriately weigh those statutory factors. However, the trial

court was not required to state its reasons on the record supporting its sentence.

State v. Kincade, 3d Dist. No. 16–09–20, 2010-Ohio-1497, ¶ 8.

       {¶17} Nevertheless, in the court’s findings, the court mentioned that it had

considered the principles and purposes of felony sentencing and gave reasons for

imposing a prison term greater than the minimum sentence. Heffelfinger does

have prior felony convictions, the victim was elderly, Heffelfinger was responsible

for taking approximately 4000 pounds of metal from the victim that was scrapped,

Heffelfinger had no income (yet somehow supported himself), and had a history of

drug problems. These reasons cited at the sentencing hearing and in the trial

court’s entry are supported by the record from the sentencing hearing, the plea

hearing, and in the PSI. Under these circumstances, we cannot find that the trial

court erred in imposing its sentence. Accordingly, Heffelfinger’s first assignment

of error is overruled.

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                           Second Assignment of Error

       {¶18} In Heffelfinger’s second assignment of error, he argues that the trial

court erred by imposing a prison sentence as well as a community control

sanction.   Specifically, Heffelfinger contends that the trial court’s order that

Heffelfinger have no contact with the victim was unenforceable and invalid

pursuant to our prior case law.

       {¶19} At the sentencing hearing and in the judgment entry of sentence, the

trial court ordered Heffelfinger “to have no contact with Ronald Hunter, nor to be

on his property.” (Mar. 21, 2013, Tr. at 10); (Doc. 22). Heffelfinger contends that

this order is improper under this Court’s holdings in State v. Snyder, 3d Dist.

Seneca No. 13-12-28, 2013-Ohio-2046, and State v. Walton, 3d Dist. Wyandot

Nos. 16-12-13, 16-12-14, 2013-Ohio-2147.

       {¶20} In its brief to this court, the State does not contest Heffelfinger’s

second assignment of error; however, the State maintains that only the limited

portion of Heffelfinger’s sentence regarding the no contact order was

unenforceable and only that portion should be vacated, leaving the remaining

sentence valid.

       {¶21} In light of the State’s concession and our prior holdings on the matter

finding the no contact order unenforceable, we sustain Heffelfinger’s second

assignment of error and vacate that limited portion of Heffelfinger’s sentence.

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       {¶22} For the foregoing reasons, Heffelfinger’s first assignment of error is

overruled, his second assignment of error is sustained and the limited portion of

his sentence that is unenforceable is vacated.

                                                  Judgment Affirmed in Part and
                                                                Vacated in Part
WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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