State v. Shifflet

• Decision Date: 28 September 2015
• Docket Number: No. 13CA23.,13CA23.
• Citation: 44 N.E.3d 966
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Thomas E. SHIFFLET, Defendant–Appellant.
• Court: Ohio Court of Appeals

44 N.E.3d 966

STATE of Ohio, Plaintiff–Appellee

v.Thomas E. SHIFFLET, Defendant–Appellant.

No. 13CA23.

Court of Appeals of Ohio, Fourth District, Athens County.

Sept. 28, 2015.

Timothy P. Young, Ohio State Public Defender, and Peter Galyardt, Assistant State Public Defender, Columbus, OH, for Appellant.

Keller J. Blackburn, Athens County Prosecutor, and Merry M. Saunders, Assistant Prosecuting Attorney, Athens, OH, for Appellee.

Elizabeth A. Well, The Justice League of Ohio, Powell, OH, for Amicus Curiae.

Opinion

McFARLAND

, A.J.

{¶ 1} Thomas Shifflet filed a notice of appeal from the judgment entry of conviction entered on April 22, 2013 and from the amended judgment entry entered on April 23, 2013. Appellant raises six assignments of error, contending the trial court erred by: (1) accepting his Alford plea which was not knowing, voluntary, and intelligent; (2) depriving him of his constitutional right to effective assistance of counsel; (3) depriving him of his constitutional right to trial by jury by finding corroboration under R.C. 2907.05(C)(2)(a)

; (4) imposing restitution for unqualified economic losses; (5) permitting a designated support person pursuant to R.C. 2945.481 to testify as a witness in his trial; and (6) convicting him of gross sexual imposition, R.C. 2907.05(A)(4), when the verdict was against the manifest weight of the evidence. For the reasons which follow, we affirm the judgment of the trial court as to all assignments of error except for assignment of error number three, which has merit. As such, we remand this matter for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} On July 25, 2011, Appellant was indicted by the Athens County Grand Jury on one count of rape, R.C. 2907.02(A)(2)

, a felony of the first degree. He was arraigned on July 28, 2011, a bond was set and he was released on his own recognizance. A jury trial was initially scheduled for October 2011. The parties engaged in pretrial discovery.

{¶ 3} On May 3, 2012, the Athens County Prosecutor filed a superseding indictment, listing the original rape charge and including three additional counts of gross sexual imposition, R.C. 2907.05(A)(4)

, all felonies of the third degree. The final count was sexual imposition, R.C. 2907.06(A)(1), a misdemeanor of the third degree. Appellant, a long-time resident of Athens County and an army veteran, was age 76 by the time the matters came on for trial. Appellant had two adult daughters, Jody Dearth and Tammy Gura, who operated daycare centers in Athens County. All alleged victims were minor children who either came in contact with Appellant at the daycare centers where he frequently visited, or knew him through family members.

{¶ 4} On May 30, 2012, Appellant was arraigned on the new charges and again released on his own recognizance. Appellant's counsel filed a motion to dismiss the newly filed counts on speedy trial grounds. The trial court subsequently denied Appellant's motion to dismiss. The matters were again set for trial on November 26, 2012. After two in camera hearings, on October 29, 2012 the court filed a journal entry finding the child victims to be competent witnesses.

{¶ 5} Appellant filed a motion for relief from prejudicial joinder. The State of Ohio filed a motion that the child witnesses be allowed to testify via closed circuit television. The State also filed a motion to allow additional witnesses, other than victims of the indicted crimes, to testify to prior acts in proof of motive. The State also filed a motion for a determination of the admissibility of previously recorded interviews of the child victims. Both parties filed motions regarding expert witnesses. The trial court denied the motion for joinder and the motion to allow testimony regarding prior occurrences. The trial court granted the motion regarding the admissibility of the recorded interviews and the motion to allow the victims to testify via closed circuit television.

{¶ 6} A fifteen-day jury trial took place beginning on February 27, 2013. Jury selection took three days and testimony took nine days. Count 1, rape, allegedly occurring on or about June 27, 2011, involved a four-year-old female, M.V. M.V. attended Jody's daycare center in Athens County until June 27, 2011. Appellant often visited the daycare center and some of the children called him “Papaw Shifflet.” When M.V.'s mother picked her up on June 27, 2011, M.V. told her the vaginal area hurt. M.V. was examined at numerous health care facilities and child abuse was suspected. M.V. testified Appellant sat down in a chair at the daycare center and motioned for her to sit on his lap. When she did, Appellant put his hands down her pants and put his finger and a piece of plastic in her vagina.

{¶ 7} Count 2, gross sexual imposition, allegedly occurring on or about June 27, 2011, involved a three-year-old female, A.P. A.P. testified Appellant frequently brought suckers for the children to the daycare center. She testified on June 27, 2011, Appellant called A.P. over and placed her in his lap. As she sat in his lap, Appellant tickled her and touched the skin on her vagina. Additional facts regarding this count will be set forth in Part VI below.

{¶ 8} Count 3, gross sexual imposition, allegedly occurring between February 1, 2011 and June 30, 2011, involved a seven-year-old female, L.C. L.C. attended another daycare center operated by Appellant's other daughter, Tammy Gura. L.C. testified that Appellant brought suckers to the daycare center and was left alone with the children at times. Appellant called the children over. He motioned for L.C. to sit in his lap and when she did, he touched her “private spot.” She testified most days Appellant was at the daycare center, he touched her. She also testified the little girls at the daycare talked about how to protect themselves from Appellant, by sitting down, crossing their legs, and putting their hands in their laps.

{¶ 9} Count 4, gross sexual imposition, allegedly occurring between March 1, 2010 and March 31, 2010, involved eleven-year-old female, J.H.¹ J.S. testified her grandmother, Janet Lonas, was friends with Appellant and his wife Beverly. On a trip home from Circleville, Ohio, while Janet Lonas and Beverly Shifflet were sitting in the front of Lonas's vehicle, J.S. was riding in the back with Appellant. Appellant began tickling her belly, however, he kept putting his hand further down her waistline until he had his hand down her pants and on her vagina. The incident lasted 2–3 minutes.

{¶ 10} Count 5, sexual imposition, allegedly occurred on or about November 27, 2010 to a twelve-year-old female, M.H. M.H. is related to J.S. and knew Appellant and his family through Janet Lonas. M.H. testified she was with her grandmother and J.S. at a holiday open house next to Jody's daycare center when Appellant grabbed her breast, vaginal area, and buttocks while she hugged him good-bye.

M.H. testified when that happened, she asked J.S. if she saw what happened. In doing so, J.S. reported that something worse had happened to her previously. Ultimately, however, Appellant was found not guilty on Count 5.

{¶ 11} At the conclusion of trial on March 19, 2013, Appellant was found guilty of Count 2, not guilty of Count 5, and the jury did not reach any verdict as to Counts 1, 3, and 4.² On April 4, 2013, the trial court filed a journal entry declaring a mistrial on Counts 1, 3, and 4 and a judgment of acquittal on Count 5. Apparently the State of Ohio and Appellant engaged in negotiations with regard to sentencing. On April 3 and 5, 2013, Appellant appeared in court and entered an Alford /no contest plea to Count 1, which was amended from rape to gross sexual imposition. Appellant also entered Alford /no contest pleas to Counts 3 and 4.

{¶ 12} By judgment entry filed April 22, 2013, Appellant was sentenced to a five-year mandatory prison term on each count, to be served concurrently. Appellant was ordered to pay restitution to the victims J.S., A.P., L.C., M.V., and their families for a total restitution amount of $5,610.90. Appellant was ordered to have no contact with the victims and their families. He was declared a Tier II Sexual Offender and apprised of registration and reporting requirements. On April 23, 2013, the trial court filed an amendment to the previous judgment entry correcting the amount of restitution ordered to $5,340.90 instead of the amount previously journalized. This timely appeal followed.

ASSIGNMENTS OF ERROR

“I. THOMAS SHIFFLET WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS WHEN THE TRIAL COURT ACCEPTED AN UNKNOWING, UNINTELLIGENT, AND INVOLUNTARY GUILTY PLEA.

II. THOMAS SHIFFLET WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

III. THE TRIAL COURT ERRED AND VIOLATED THOMAS SHIFFLET'S CONSTITUTIONAL RIGHT TO TRIAL BY JURY WHEN IT FOUND CORROBORATION UNDER R.C. 2907.05(C)(2)(a)

.

IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED RESTITUTION FOR UNQUALIFIED ECONOMIC LOSSES.

V. THE TRIAL COURT ERRED AND VIOLATED THOMAS SHIFFLET'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT PERMITTED THE DESIGNATED SUPPORT PERSON FOR THE CHILD'S CLOSED–CIRCUIT–TELEVISION TESTIMONY TO ALSO TESTIFY AS A WITNESS.

VI. THE TRIAL COURT ERRED AND VIOLATED THOMAS SHIFFLET'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IT CONVICTED HIM OF GROSS SEXUAL IMPOSITION.”

Assignment of Error I

“I. THOMAS SHIFFLET WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS WHEN THE TRIAL COURT ACCEPTED AN UNKNOWING, UNINTELLIGENT, AND INVOLUNTARY GUILTY PLEA.”

Standard of Review

{¶ 13} “ ‘When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.’ ” State v. Davis, 4th Dist. Scioto Nos. 13CA3589, 13CA3593, 2014-Ohio-5371, 2014 WL 6876680, ¶ 31

, quoting State v. Veney, 120 Ohio St.3d...