[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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Case No. 16-13-06
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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Case No. 16-13-06
{¶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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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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