[Cite as State v. Stapleton, 2017-Ohio-1309.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                      CHAMPAIGN COUNTY

 STATE OF OHIO                                        :
                                                      :
          Plaintiff-Appellee                          :   C.A. CASE NO. 2016-CA-9
                                                      :
 v.                                                   :   T.C. NO. 15-CR-277
                                                      :
 MICHAEL C.R. STAPLETON                               :   (Criminal Appeal from
                                                      :    Common Pleas Court)
          Defendant-Appellant                         :
                                                      :

                                                 ...........

                                                OPINION

                   Rendered on the ___7th __ day of _____April_____, 2017.

                                                 ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main
Street, Urbana, Ohio 43078
       Attorney for Plaintiff-Appellee

JENNIFER D. BRUMBY, Atty. Reg. No. 0076440, 4244 Indian Ripple Rd., Suite 150,
Dayton, Ohio 45440
      Attorney for Defendant-Appellant

                                                .............

FROELICH, J.

        {¶ 1} Michael Stapleton pled guilty in the Champaign County Court of Common

Pleas to murder, an unclassified felony, and burglary, a felony of the third degree. The

trial court sentenced him to consecutive sentences totaling 18 years to life in prison and

ordered him to pay restitution, court-appointed counsel fees, and court costs.
                                                                                       -2-


      {¶ 2} Stapleton appeals from his conviction, claiming that the trial court failed to

comply with Crim.R. 11 at his plea hearing and erred in imposing maximum consecutive

sentences. For the following reasons, the trial court’s judgment will be affirmed.

                        I. Background and Procedural History

      {¶ 3} In November 2015, Stapleton resided with his wife, his mother-in-law, and

his mother-in-law’s husband. Six children also resided in the household; Stapleton’s in-

laws had a combined three children from prior relationships, Stapleton had two children

with his wife, and his wife had an additional child from another relationship. One child

was a teenager; the others were seven years old or younger.

      {¶ 4} During the morning and afternoon hours of November 29, 2015, Stapleton

was the primary caregiver for the six children while the other adults were at work. During

that time, Stapleton physically abused B.J., the four-year-old son of his mother-in-law’s

husband. B.J. suffered severe blunt force trauma to his head and abdomen. When B.J.

did not awaken from a nap that afternoon, Stapleton called family members and 911.

B.J. was transported to the hospital. He died from the abuse.

      {¶ 5} On December 10, 2015, Stapleton was indicted on three counts of murder,

one count of felonious assault, three counts of endangering children, one count of

involuntary manslaughter, and one count of possession of criminal tools.        All of the

charges stemmed from the events of November 29. Stapleton initially pled not guilty to

the charges. He remained in jail while the charges were pending.

      {¶ 6} While monitoring Stapleton’s telephone conversations at the jail, the

Champaign County Sheriff’s Office became aware that Stapleton was concerned that law

enforcement would learn about an unrelated offense. Through additional investigation,
                                                                                            -3-


the sheriff’s office learned that, sometime between November 1 and 4, 2015, Stapleton

had broken into a family member’s residence in Champaign County and had stolen

money, a Hi-Point handgun, and ammunition. Stapleton had filed off the serial number

on the gun and attempted to sell it. While in jail, Stapleton wrote to his father, asking for

help in retrieving and disposing of the weapon.

       {¶ 7} On March 25, 2016, Stapleton entered into a plea agreement with the State,

pursuant to which he pled guilty to one count of murder (Count Four: proximate result of

endangering children) and to burglary (Count Ten), which was added at the plea hearing

by a bill of information.   In exchange for the plea, the State agreed to dismiss the

remaining eight charges and to recommend a presentence investigation. A presentence

investigation was conducted, and the parties filed detailed sentencing memoranda. On

April 20, 2016, the trial court sentenced Stapleton to consecutive sentences of 15 years

to life for the murder and 36 months for the burglary. He was also ordered to pay $350

in restitution to the victims of the burglary, court-appointed counsel fees, and court costs.

       {¶ 8} Stapleton appeals from his conviction, raising two assignments of error.

                             II. Compliance with Crim.R. 11

       {¶ 9} In his first assignment of error, Stapleton asserts that the trial court failed to

comply with Crim.R. 11 in accepting his guilty pleas. Specifically, he argues that “he was

not properly advised that if he went to trial, he would be entitled to a presumption of

innocence” and “would not have to prove or disprove any facts in the case, or call any

witnesses.”    Stapleton asserts that, had he been advised of the presumption of

innocence, he would not have entered his guilty pleas.

       {¶ 10} Crim.R. 11(C)(2) requires the court to address the defendant personally and
                                                                                            -4-


(a) determine that the defendant is making the plea voluntarily, with an understanding of

the nature of the charges and the maximum penalty, and, if applicable, that the defendant

is not eligible for probation or for the imposition of community control sanctions; (b) inform

the defendant of and determine that the defendant understands the effect of the plea of

guilty and that the court, upon acceptance of the plea, may proceed with judgment and

sentencing; and (c) inform the defendant and determine that he or she understands that,

by entering the plea, the defendant is waiving the rights to a jury trial, to confront

witnesses against him or her, to have compulsory process for obtaining witnesses, and

to require the State to prove guilt beyond a reasonable doubt at a trial at which he or she

cannot be compelled to testify against himself or herself.         State v. Brown, 2d Dist.

Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.

       {¶ 11} The Supreme Court of Ohio has urged trial courts to literally comply with

Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.

However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial

court need only substantially comply with those requirements. E.g., State v. Nero, 56

Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial compliance means that under

the totality of the circumstances the defendant subjectively understands the implications

of his plea and the rights he is waiving.” Id. In contrast, the trial court must strictly

comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights.

Clark at ¶ 31.

       {¶ 12} Crim.R.11(C)(2)(c) does not require the trial court to inform a defendant that

he or she enjoys a presumption of innocence. State v. McDonald, 8th Dist. Cuyahoga

No. 95651, 2011-Ohio-1964, ¶ 7; State v. Kordelewski, 2d Dist. Montgomery No. 15425,
                                                                                          -5-


1996 WL 98945 (Mar. 8, 1996). Nor does that Rule require the trial court to inform the

defendant that, at trial, he would have no obligation to call any witnesses or to

prove/disprove any facts. Rather, Crim.R. 11(C)(2)(c) requires, in relevant part, that the

trial court inform the defendant that, by entering a plea, the defendant is waiving the right

“to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at

which the defendant cannot be compelled to testify against himself or herself.”

       {¶ 13} As part of the court’s colloquy during the plea hearing, the trial court asked

Stapleton if he understood that, if the court accepted his guilty pleas, he would be giving

up certain constitutional rights. The following exchange occurred:

       THE COURT: Do you understand that if the Court accepts your plea of

       guilty, you give up certain Constitutional rights, and those include, and this

       is now on both charges, the right to a jury trial?

       [STAPLETON]: Yes, sir.

       THE COURT: Do you understand that you give up the right to confront

       witnesses against you, which is also known as the right to face those who

       accuse you and cross-examine them?

       [STAPLETON]: Yes, sir.

       THE COURT: Do you understand that you give up the right to have

       compulsory process for obtaining witnesses in your favor, which is also

       known as the right to make witnesses attend and testify in your favor

       pursuant to subpoena?

       [STAPLETON]: Yes, sir.

       THE COURT: Do you understand that you give up the right to make the
                                                                                          -6-


       State prove your guilt beyond a reasonable doubt before you are found

       guilty?

       [STAPLETON]: Yes, sir.

       THE COURT: Do you understand that you give up the right that if you went

       to trial, you cannot be compelled to testify against yourself, which is also

       known as the right to remain silent?

       [STAPLETON]: Yes, sir.

       {¶ 14} The trial court’s colloquy reflects that the trial court strictly complied with

Crim.R. 11(C)(2)(c) by informing Stapleton of the listed constitutional rights and

determining that Stapleton understood that, by his plea, he was waiving those rights.

Stapleton’s first assignment of error is overruled.

                                 III. Maximum Sentence

       {¶ 15} In his second assignment of error, Stapleton asserts that the trial court erred

in imposing maximum consecutive sentences. He asserts that the trial court did not

consider the sentencing factors indicating that his conduct was less serious or the

circumstances surrounding his conduct. He states: “Mr. Stapleton shows great remorse

for his actions, has accepted responsibility for his conduct, has an extremely insignificant

adult criminal recorded [sic] limited to misdemeanor offenses, etc. Accordingly, these

less serious factors should have been weighed when determining whether to impose a

concurrent or consecutive sentences for the charges of burglary and murder.” Stapleton

contends that the record does not support consecutive sentences.

       {¶ 16} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
                                                                                          -7-

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under

R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it

may vacate the sentence and remand for resentencing, only if it “clearly and convincingly”

finds either (1) that the record does not support certain specified findings or (2) that the

sentence imposed is contrary to law.

       {¶ 17} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial

court must consider the statutory criteria that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d

500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

       {¶ 18} R.C. 2929.11 requires trial courts to be guided by the overriding purposes

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). The court must “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. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony

shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the
                                                                                        -8-


offender’s conduct and its impact upon the victim, and consistent with sentences imposed

for similar crimes committed by similar offenders.”

       {¶ 19} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct

is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth

four factors indicating that an offender’s conduct is less serious than conduct normally

constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts

are to consider regarding the offender’s likelihood of committing future crimes. Finally,

R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service

record.

       {¶ 20} After determining the sentence for a particular crime, a sentencing judge

has discretion to order an offender to serve individual counts of a sentence consecutively

to each other or to sentences imposed by other courts. Pursuant to R.C. 2929.14(C)(4),

a trial court may impose consecutive sentences if it determines that: (1) consecutive

service is necessary to protect the public from future crime or to punish the offender; (2)

consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public; and (3) one or more of the

following three findings are satisfied:

       (a) The offender committed one or more of the multiple offenses while the

       offender was awaiting trial or sentencing, was under a sanction imposed

       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

       was under post-release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or

       more courses of conduct, and the harm caused by two or more of the
                                                                                            -9-


       multiple offenses so committed was so great or unusual that no single

       prison term for any of the offenses committed as part of any of the courses

       of conduct adequately reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that consecutive

       sentences are necessary to protect the public from future crime by the

       offender.

       {¶ 21} In imposing consecutive sentences, the trial court must make the statutory

findings and incorporate them into its sentencing entry, but the trial court is not required

to state reasons to support its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177, 16 N.E.3d 659, ¶ 37.

       {¶ 22} At the sentencing hearing, the trial court heard from the prosecutor,

Stapleton’s counsel, B.J.’s parents, and Stapleton. The court discussed with Stapleton

the offenses and Stapleton’s drug use. Before imposing its sentence, the court stated

that it did not believe Stapleton’s description of how the injuries to B.J. occurred; the court

stated that Stapleton’s explanation “is not consistent with the severity of the injuries that

were inflicted upon the child” and that, in pronouncing sentence, it would take into account

its belief that Stapleton was not credible regarding the source and causation of B.J.’s

injuries.

       {¶ 23} The trial court indicated at the sentencing hearing that it had reviewed the

presentence investigation report, the parties’ sentencing memoranda, the oral statements

of counsel, Stapleton, and the victim representatives (B.J.’s parents), and the letters sent

to the court on behalf of the victim (Exhibits 1 through 22). The court told the parties that

it had considered the purposes and principles of sentencing as set forth in R.C. 2929.11,
                                                                                          -10-


as well as the factors set forth in R.C. 2929.12. For each offense, the trial court detailed

the factors that made the offense more serious and less serious, and it set forth facts

relating to the likelihood of recidivism.

       {¶ 24} After considering “all sentencing factors,” the court imposed an indefinite

sentence of 15 years to life for murder, as required by R.C. 2929.02(B)(1), and a

maximum term of 36 months in prison for burglary. The trial court’s individual sentences

were not contrary to law, and in determining the individual sentences for the two offenses,

the court complied with its obligation to consider the statutory criteria that apply to every

felony offense.

       {¶ 25} In imposing consecutive sentences, the trial court made the required

statutory findings, using the language of R.C. 2929.14(C)(4).         The court found that

“consecutive sentencing is necessary to protect the public from crime or to punish the

Defendant. And consecutive sentences are not disproportionate to the seriousness of

the Defendant’s conduct and the danger that the Defendant poses to the public.” The

court further found that “at least two of the multiple offenses were committed as part of

one or more courses of conduct. And the harm caused by two or more of the multiple

offenses so committed was so great or unusual that no single prison term for any of the

offenses committed as part of any of the courses of conduct adequately reflects the

seriousness of the Defendant’s conduct.”

       {¶ 26} Although not required, the trial court provided “some additional rationale”

regarding its imposition of consecutive sentences. The court stated:

       The Court finds that regarding Count Ten, that the type of property stolen,

       that is a firearm, the dangerousness of the property stolen, the filing of the
                                                                                        -11-


      serial numbers, which was designed to evade detection as a stolen weapon,

      and the Defendant’s solicitation of an otherwise innocent third party to

      retrieve and dispose of the property, coupled with the occurrence of less

      than one month later of the Defendant’s explosion in Count Four of anger

      and deadly violence toward a 4-year-old child for whom he was charged

      with caring, protecting, and supporting, supports a finding that the harm

      caused by the Defendant’s commission of the offenses so committed was

      so great or unusual that no single prison term adequately reflects the

      seriousness of the Defendant’s conduct.

      {¶ 27} Upon review of the record, in imposing consecutive sentences, the trial

court made the requisite findings under R.C. 2929.14(C)(4), both at the sentencing

hearing and in its judgment entry. And considering the facts underlying both offenses,

we cannot find that the trial court’s findings are clearly and convincingly unsupported by

the record. Contrary to Stapleton’s assertion, the trial court was not required to consider

the factors set forth in R.C. 2929.12 in determining whether Stapleton’s sentences should

run concurrently or consecutively.

      {¶ 28} Stapleton’s second assignment of error is overruled.

                                     IV. Conclusion

      {¶ 29} The trial court’s judgment will be affirmed.

                                        .............

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Jane A. Napier
Jennifer D. Brumby
                         -12-


Hon. Nick A. Selvaggio
