State v. StansberryState v. Stansberry
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee
{¶1} Defendant-appellant, Shawn Allen Stansberry (“Stansberry“), appeals the September 27, 2022 judgment of sentence of the Union County Court of Common Pleas. Stansberry argues that his convictions are void because his right to a speedy trial under
I. FACTS AND PROCEDURAL HISTORY
{¶2} On or about January 8, 2020, eight people at seven different residences on State Route 31 discovered that their vehicles had been unlawfully entered into and had items removed. As a result of these incidents, on May 14, 2020, the Union County Grand Jury indicted Stansberry on seventeen counts: seven counts of breaking and entering, pursuant to
{¶3} On August 31, 2020, Stansberry signed two documents pertaining to his right to a speedy trial: a Notice of Place of Imprisonment and Request for Disposition of Indictments, Information or Complaints, as well as a Notice of Untried Indictments, Information or Complaint and Rights to Request Disposition. These documents indicated that Stansberry was currently imprisoned and was making a request, pursuant to
{¶4} The two notices and letter to the prosecutor were received by the clerk of courts and filed stamped on September 4, 2020. Thereafter, Stansberry was arraigned and the matter was scheduled for a pretrial conference. At the December 9, 2020 pretrial hearing, the court set February 22, 2021 as the trial date. However, on February 17, 2021, at a pretrial hearing without Stansberry present, Stansberry‘s
[Stansberry‘s counsel] informed the Court that the matter is not resolved and he is working with the bailiff to coordinate a Zoom meeting with the defendant at the institution [at which Stansberry was incarcerated]. [Stansberry‘s counsel] requested that the Jury Trial scheduled on February 22 & 23, 2021 be continued and a further Pretrial hearing be scheduled on March 17, 2021 at 11:45 A.M. The State did not oppose. [Counsel for the State] informed the Court that the defendant‘s release date is March 20, 2021. The Court Granted said oral request.
(Feb. 17, 2021 Journal Entry). As referenced in the briefing and during oral argument, the COVID pandemic during this time was causing scheduling challenges for both prison and court administration. (See, e.g., Appellee‘s Brief at 5).
{¶5} It is unclear from the record whether the March 17, 2021 pretrial hearing actually took place. On March 29, 2021, by hearing notice, the court scheduled another pretrial hearing for April 13, 2021. However, Stansberry, who had been released from prison, failed to appear at this pretrial hearing. Between April of 2021 and March of 2022, two arrest warrants had to be issued to compel Stansberry‘s attendance at court proceedings.
{¶6} On March 16, 2022, after being arrested on the bench warrant, Stansberry changed his plea to guilty on 16 of the counts against him, with the State dismissing the count for theft of drugs. Stansberry was placed into an intervention
{¶7} On September 27, 2022, the trial court held a sentencing hearing. The judge sentenced Stansberry to 12 months in prison for each count of breaking-and-entering, theft, and receiving stolen property, as well as 180 days in jail for the count of petty theft. The judge ordered the 12-month sentences for one count of theft and for each of the seven breaking-and-entering counts run consecutively, one after another, for an aggregate prison term of 96 months. The court then ordered the sentences for all other counts run concurrently to this prison term. That same day, the trial court filed its journal entry of sentence. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶8} Stansberry filed his notice of appeal with the trial court on November 29, 2022. He raises two assignments of error for our review:
First Assignment of Error
Appellant‘s convictions are void because the State did not bring him to trial or otherwise resolve the case within 180 days pursuant to
The trial court erred when it sentenced Appellant to maximum sentences on the fourth and fifth degree felonies and further erred when it ran the three sentences consecutive.1
III. DISCUSSION
A. First Assignment of Error
{¶9} In his first assignment of error, Stansberry asserts that his convictions are void because his right to a speedy trial pursuant to
i. Standard of Review
{¶10} “[S]peedy trial issues present mixed questions of law and fact.” State v. Marr, 2018-Ohio-5061, 126 N.E.3d 333, ¶ 15 (3d Dist.). “[W]e apply a de novo standard of review to the legal issues but give deference to any factual findings made by the trial court.” Id.
{¶11} “In Ohio, the right to a speedy trial is implemented by statutes that impose a duty on the state to bring the defendant to trial within a specified time.” State v. Irish, 2019-Ohio-2765, 140 N.E.3d 209, ¶ 11 (3d Dist.), quoting State v. Melampy, 12th Dist. Brown No. CA2007-04-008, 2008-Ohio-5838, ¶ 9. “Ohio‘s ‘general’ speedy-trial statutes are contained in
{¶12} This Court has held that, “when a person who is imprisoned in an Ohio correctional institution is charged with a crime separate from the crime for which they are imprisoned,
When a person has entered upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, except that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time served and remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner.
* * *
If the action is not brought to trial within the time provided, subject to continuance allowed pursuant to this section, no court any longer has jurisdiction thereof, the indictment, information, or complaint is void, and the court shall enter an order dismissing the action with prejudice.
{¶13} Therefore, the running of the speedy-trial clock may be temporarily stopped, i.e., tolled, if the court grants a continuance in accordance with the statute. Id.; State v. Shepherd, 11th Dist. Ashtabula No. 2003-A-0031, 2004-Ohio-5306, ¶ 16-17, fn. 3 (defendant‘s counsel‘s request for a continuance, which the trial court granted, tolled the speedy trial time under
{¶14} Importantly, the statute only applies in a specific situation. ”
iii. Analysis
{¶15} The parties agree that the 180-day speedy trial clock under
{¶16} First, at the pretrial hearing on February 17, 2021, Stansberry‘s counsel explained that he was trying to coordinate a meeting with his client, who at that time was incarcerated in a state prison during the COVID-19 pandemic. He requested the court continue the trial and schedule a further pretrial hearing to take place on March 17, 2021. (Feb. 17, 2021 Journal Entry). The trial court granted the request. (Id.). Therefore, the time to bring the case to trial under
{¶17} The record is completely devoid of any indication whether the March 17, 2021 pretrial hearing actually took place or what happened on that date. Regardless of whether there was a pretrial hearing, we find Stansberry‘s speedy trial right was not violated. The period of time between February 17, 2021 and (at least) March 17, 2021 is not counted against the State for purposes of the 180-day speedy-trial timeframe.
{¶18} Second, Stansberry was released from prison on March 20, 2021. Stansberry asserts that “[t]here is no evidence in the record indicating when Mr. Stansberry was actually released from prison, although the State commented that it believed he was to be released on March 20, 2021 during the pre-trial conducted on February 17, 2021 and noted in the court‘s journal entry, although this was just a comment from the prosecutor, not backed up by any documentation in support of that date.” (Appellant‘s Brief at 6-7). However, Stansberry is mistaken. There is evidence in the record that indicates when he was released from prison. The Presentence Investigation Report, which was prepared in 2022, confirms the prosecutor‘s statement that Stansberry was released on March 20, 2021.
{¶20} Thus, Stansberry‘s speedy-trial right under
9/4/2020 until 2/17/2021 (continuance granted) – 166 days.
2/17/2021 until 3/17/2021 – 28 days tolled.
3/17/2021 until 3/20/2021 (release from imprisonment) – 3 days.
166 days + 3 days = 169 total elapsed days.3
{¶21} Stansberry‘s first assignment of error is overruled.
B. Second Assignment of Error
{¶22} In his second assignment of error, Stansberry contends the trial court made errors in sentencing. He argues that “the record does not ‘clearly and convincingly’ support the court‘s findings [pursuant to
{¶23} An appellate court deciding an appeal based on felony sentencing “shall review the record, including the findings underlying the sentence or modification given by the sentencing court.”
{¶24} Thus, an appellate court may reverse a sentence “only if it determines by clear and convincing evidence that the record does not support the trial court‘s findings under relevant statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Clear and convincing evidence is the measure or degree of proof that “‘will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.‘” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. It requires more than a preponderance
ii. Applicable Law Regarding Maximum Sentencing
{¶25} “Trial courts have full discretion to impose any sentence within the statutory range.” State v. Johnson, 2021-Ohio-1768, 173 N.E.3d 94, ¶ 9 (3d Dist.), quoting State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 9. “A sentence imposed within the statutory range is not contrary to law as long as the trial court considered the purposes and principles of felony sentencing contained in
{¶26}
{¶27} “In accordance with these principles, the trial court must consider the factors set forth in
{¶28}
iii. Analysis for the Maximum Sentences Imposed
{¶29} We have reviewed the record, including the findings underlying the sentence given by the sentencing court.
{¶30} The trial court‘s sentences for the individual counts were each within the statutory range.
iv. Applicable Law Regarding Consecutive Sentences for Felonies
{¶31} When a person is sentenced to imprisonment for having committed multiple offenses, the presumption is that those sentences will be imposed concurrently, not consecutively.
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(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 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.
{¶32} Thus,
{¶33} Additionally, in order to impose consecutive terms of imprisonment, “a trial court must state the required findings [from
v. Analysis for the Consecutive Sentences Imposed
{¶34} Again, the trial court ran the 12-month sentences for one count of theft and for each of the seven breaking-and-entering counts consecutively, one after another, and it ran the remaining sentences concurrently to that prison term. This resulted in an aggregate imprisonment term of 96 months.
{¶35} Stansberry argues that “the record does not ‘clearly and convincingly’ support the court‘s findings [at sentencing pursuant to
{¶36} At the sentencing hearing, the trial court stated:
The Court finds that the PSI writer found that the defendant had an ORAS score of 35. And that‘s - that the PSI writer further found that the defendant was out on bail before trial or sentencing and under a felony court sanction or under post release control or parole and [sic] the offenses were committed. That he has a prior adjudication of delinquency or history of criminal convictions. That he has failed to
respond favorably in the past to sanctions imposed for criminal convictions. That he‘s demonstrated a pattern of drug abuse or alcohol abuse related to the offense and refuses to acknowledge the pattern and refuses treatment and shows no remorse for the offenses.
The Court finds that the shortest prison term would demean the seriousness of the offense and would not protect the public and that consecutive sentences are necessary to protect the public from future crime and to punish the defendant and are not disproportionate to the seriousness of the defendant‘s conduct and to the danger that the defendant poses to the public. The Court further finds that the offender committed one or more of the multiple offenses while he was awaiting trial or sentencing. Was under a sanction imposed pursuant to Revised Code Section 2929.16, 17, or 18 of the Revised Code or was under post release control for a prior offense. The Court further finds that at least two of the multiple offenses were committed as part of one or more courses of conduct. And that the harm caused by two or more of the multiple offenses so committed were so great or usual [sic] 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. The Court further finds that the defendant‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant.
(Sept. 27, 2022 Tr. at 11-12). The trial court also noted that Stansberry had numerous prior felony convictions as an adult. (Id. at 9). A review of the detailed information contained in the PSI, including the factual basis of the instant case, demonstrates Stansberry‘s extensive criminal history and Ohio Risk Assessment Score of “35. Risk Level Very High.” That criminal history includes prior convictions for theft—one of the crimes in this case. Stansberry even told the judge at his sentencing hearing: “I know every time you see me, to respect honesty,
{¶37} Additionally, the PSI indicates that the crimes in this case all occurred on or around January 8, 2020. Stansberry had been placed on two years of community control on June 6, 2018 and on two years of probation on January 14, 2019. The crimes in this case involved eight victims at seven different residences on the same road. (See also Sept. 27, 2022 Tr. at 6, 12 (trial court noting that there were eight separate victims)).
{¶38} Ultimately, the record reflects that the trial court made the appropriate
{¶39} Stansberry‘s second assignment of error is overruled.
{¶40} For the foregoing reasons, Stansberry‘s assignments of error are overruled. Having found no error prejudicial to the appellant in the particulars assigned and argued, we affirm the judgment of the Union County Court of Common Pleas.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr