[Cite as State v. Shriver, 2019-Ohio-840.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                             LAKE COUNTY, OHIO


 STATE OF OHIO,                                       :      OPINION

                   Plaintiff-Appellee,                :
                                                             CASE NO. 2018-L-085
          - vs -                                      :

 MARKUS A. SHRIVER,                                   :

                   Defendant-Appellant.               :


 Criminal Appeal from the Lake County Court of Common Pleas.
 Case No. 2018 CR 000300.

 Judgment: Modified and affirmed as modified.


 Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
 Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
 Painesville, OH 44077 (For Plaintiff-Appellee).

 Vanessa R. Clapp, Lake County Public Defender, and Melissa Ann Blake, Assistant
 Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}       Appellant, Markus A. Shriver, appeals from the May 25, 2018 judgment

entry of the Lake County Court of Common Pleas, finding appellant to be a Tier II Sex

Offender and sentencing him to 10 years in prison. At issue on appeal is whether the

findings made by the trial court in support of the sentence are supported by the record.

The judgment is modified and affirmed as modified.
      {¶2}    Appellant was charged with having unlawful sexual contact with two female

minors under the age of 13. The victims are members of appellant’s extended family. On

April 10, 2018, he pled guilty by way of information to two counts of Gross Sexual

Imposition, third-degree felonies, in violation of R.C. 2907.05(A)(4). The matter was

referred to the adult probation department for a presentence investigation and report, drug

and alcohol evaluation, psychiatric evaluation, sexual offender report, and victim impact

statements.

      {¶3}    A sentencing hearing was held May 23, 2018. Appellant was classified a

Tier II Sex Offender Registrant and sentenced to the maximum possible prison sentence:

60 months on each count, to be served consecutively, for a total of 120 months, or 10

years. The trial court also ordered appellant to have no contact with the victims.

      {¶4}    Appellant appeals his sentence and raises one assignment of error:

      {¶5}    “The trial court erred by sentencing the defendant-appellant to a maximum

and consecutive ten-year prison term.”

      {¶6}    An appellate court generally reviews felony sentences under the standard

of review set forth in R.C. 2953.08(G)(2):

              The court hearing an appeal under division (A), (B), or (C) of this
              section 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 of 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) of section 2929.13, division (B)(2)(e) or



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              (C)(4) of section 2929.14, or division (I) of section 2929.20 of the
              Revised Code, whichever, if any, is relevant;

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

Appellate courts “‘may vacate or modify any sentence that is not clearly and convincingly

contrary to law’” only when the appellate court clearly and convincingly finds that the

record does not support the sentence. State v. Wilson, 11th Dist. Lake No. 2017-L-028,

2017-Ohio-7127, ¶18, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶23 (citation omitted).

       {¶7}   A court imposing a felony sentence is required to consider the seriousness

and recidivism factors found in R.C. 2929.12 to ensure the sentence complies with the

overriding principles of felony sentencing provided in R.C. 2929.11. The Ohio Supreme

Court has held that R.C. 2929.11 and R.C. 2929.12 do not require judicial fact-finding.

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶42; State v. Macko, 11th Dist. Lake

No. 2016-L-022, 2017-Ohio-253, ¶75. Further, “[a] trial court is not required to give any

particular weight or emphasis to a given set of circumstances”; a court is merely required

to “consider” the statutory factors. State v. Delmanzo, 11th Dist. Lake No. 2007-L-218,

2008-Ohio-5856, ¶23; Foster, supra, at ¶42.

       {¶8}   “The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others, to punish the offender, and to promote the

effective rehabilitation of 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). “To achieve those purposes, the

sentencing court shall consider the need for incapacitating the offender, deterring the

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



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to the victim of the offense, the public, or both.” Id. For a violation of R.C. 2907.05(A)(4),

of which appellant was convicted, “it is presumed that a prison term is necessary in order

to comply with the purposes and principles of sentencing under section 2929.11 of the

Revised Code.” R.C. 2929.13(D)(1).

       {¶9}      Under his sole assignment of error, appellant asserts the trial court erred in

sentencing him to a 10-year prison term because its R.C. 2929.12 findings are not

supported by the record.          He contends the trial court ignored or discounted his

psychological disorders, which were being treated through counseling, as a mitigating

factor that made his behavior less serious. He further maintains the trial court failed to

give adequate weight to his amenability to rehabilitation and factors indicating a lower risk

of recidivism.

       {¶10} At sentencing, the trial court considered statements made by defense

counsel, the prosecution, and family of the victims, as well as letters written in support of

appellant and the court-ordered reports and evaluations. The trial court then made the

following determinations:

                 Now I’ve considered the seriousness and recidivism factors in
                 2929.12(B) through (E), obviously this, the injuries, physical and
                 mental caused to [the victims] exacerbated by their age and the
                 [bare] minimum 9 to 11 and 7 to 9 and I find that they both suffered
                 psychological harm in their victim impact statements and the
                 statements that their parents indicates them [sic]. You used your
                 position as their older cousin, older cousin [sic] to facilitate this
                 offense. So those are all seriousness factors that I find make this
                 conduct more serious.

                 I don’t find any that make it less serious.

                 The recidivism factors, you don’t have a record, other than what you
                 told me about this petty theft in Columbus you don’t have any record.
                 So there is nothing indicating recidivism is more likely. I should [sic]
                 I take that back, I mean I guess a relevant factor is you don’t know



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              why you did, you tell me you don’t know why you did this and you’ve
              got all these indicators that seem to tell me that you can’t stop doing
              it, okay. So I don’t know how to, I don’t know how to put somebody
              in a position of rehabilitation that doesn’t know what the problem is.

              There is a lot of alarming factors that come out in [Dr.] Rindsberg’s
              report and quite frankly as I view things I don’t know how, I don’t
              know how you properly rehabilitate sex offenders * * *. I don’t have
              the slightest idea what works in situations like this and so as [the
              prosecutor] stated there is a presumption that prison is the
              appropriate sentence. That presumption has not been overcome so
              I’m going to find you’re not amenable to community control and I’m
              going to impose what I believe is the appropriate sentence in this
              case that punishes you and deters others from such activity utilizing
              all those factors that are set forth in the Revised Code.

       {¶11} As is evident, the trial court considered the statutory factors and made

findings in support of appellant’s 10-year sentence. The trial court gave great weight to

the age of the victims and the psychological harm they suffered; appellant’s position of

trust as an older family member, which facilitated the offenses; and the findings in the

psychologist’s evaluation and sex offender report, including the conclusion that his risk of

recidivism is moderate. The trial court did not mention appellant’s diagnosis of adjustment

disorder with mixed anxiety and depressed mood or the clinical impressions of pedophilic

disorder and sexual masochism. It is apparent, however, that the trial court did not believe

appellant’s mental health issues were so significant that they mitigated the need to punish

him and deter others from similar behavior by imposing the maximum sentence.

       {¶12} In its judgment entry of sentence, the trial court stated it had “considered

the record, oral statements, any victim impact statement, pre-sentence report and/or drug

and alcohol evaluation submitted by the Lake County Adult Probation Department of the

Court of Common Pleas, as well as the principles and purposes of sentencing under R.C.

2929.11, and has balanced the seriousness and recidivism factors under 2929.12.”




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Specifically, the court stated it “considered the factors under Revised Code Section

2929.[12](B) and finds that the victims’ injuries were exacerbated by the victims’ age; the

victims’ suffered psychological harm; the Defendant held a position of trust in the family;

the Defendant’s relationship with the victims facilitated the offenses; the Defendant has

no history of adult convictions; and the Defendant was not forthcoming with the Adult

Probation Department.”

       {¶13} The presentence report indicates appellant’s sexual contact with the two

minor victims has been ongoing for many years, although he was only charged for the

contact that occurred since he turned 18 years old; the victims have suffered

psychological harm; and appellant is concerned with his ability to control his sexual

behavior. We conclude appellant’s prison sentence is not contrary to law, and the record

supports the trial court’s findings in support of its imposition of a 10-year prison sentence

for the crimes to which appellant pled.

       {¶14} Appellant’s sole assignment of error lacks merit.

       {¶15} Although not raised by appellant, the state of Ohio requests that this Court

modify the entry of sentence by vacating the no-contact order. The Ohio Supreme Court

has determined a no-contact order is a community control sanction, and the felony

sentencing statutes require that the trial court impose either a prison term or community

control sanctions for each felony offense, but not both. State v. Anderson 143 Ohio St.3d

173, 2015-Ohio-2089, ¶17 & ¶31; State v. Gray, 11th Dist. Lake No. 2017-L-152, 2018-

Ohio-3326, ¶21-22. Accordingly, the trial court’s order that appellant have no contact with




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the victims is not authorized by law.             We therefore modify appellant’s sentence by

vacating the no-contact order.1

        {¶16} The judgment of the Lake County Court of Common Pleas is hereby

modified and affirmed as modified.



MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.




1. Upon appellant’s release from prison, as a special condition of sex offender supervision, the Adult Parole
Authority will enforce that appellant is to have no contact with the victims. See R.C. 2967.28; Ohio
Adm.Code 5120:1-1-41; and State of Ohio Dept. of Rehabilitation & Corr. Policy No. 100-APA-09, eff. Sept.
18, 2017.


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