IN THE SUPREME COURT OF OHIO

STATE OF OHIO, Case Number 2010-0095

Appellee, . On Appeal from the RichlandCounty Court of Appeals,

V. Fitth Appellate District

TONY SHAW, SR., Courl oPAppealsCase No. 2009-CA-0052

Appellant.

STATE OF 01110'SiUlEMORANDUM IN OPPOSITTON TO

APPELLANT' S 1V1OTTON FOR DELAYED APPEAL

JAMES J. MAYER, J2.PROSEC.UTING ATTORNEYRICHLAND COUNTY, 01110

BY: Kirsten L. Pseholka-Gartner (Rog, No. 0077792) (COUNSEL OF RECORD)Assistant Prosecuting Attoi-neyRichland County, Ohio

38 South Parl< Street

Mansfield, Ohio 44902(419) 774-5676

(419) 774-5589-Fax

COUNSEL FOR APPELLEE, STATE OF OHIO

Tony Shaw, Sr.InrnateNo. A541-386Richland Correctional InstitutionP.O. Box 8107Mansfield, Ohio 44901

APPELLANT, PRO SE

MEMORANDUM IN OPPOSITION TO DELAYED APPEAL

A. The Appellant has not established good cause for his nntiinely filing.

The State of Ohio urges this C:ourt to deny the Appellant's motion for delayed

appeal. The Appellant is attempting to appeal the Fifth District Court of Appeals'

October 12, 2009 opinion affii-iriing the sentence imposed by the trial court. The forly-

five (lay window for timely perfecting a direct appeal in this Coui-t expired on November

26, 2009. Thus, the Appellant's Jamiary 19, 2010 filing is nearly two montlls late.

The only reason that the Appellant gives for his t'aihire to file a timely appeal is

that liis physical/mental condition impairs his ability to prepare and his own appeal

documents. However, the sole claim that he proposes to raise in this proceeding is exactly

the same claim that his previously appointed appellate attorney presented in his direct

appeal. He does not nced any specialized legal training to simply copy that same

argument. As this Court held in State v. Reddick, "[1]aclc of imagination and ignorance of

the law... do not automatically establish good cause for failure to seek timely relief."

(1995), 72 Ohio St.3d 88, 647 N.E.2d 784.

B. 'fhe Appellant's case is not a case of public or great general interest and doesnot involve a snbstantial constitutional question.

Even if this Court allows the Appellanl to proceed with his delayed appeal, his case

presents absolutely no unique facts, iulings, or issues. Nor does it raise any substantial

constitutional questions worthy oPreview by this Court. 'I'he facts of this case are simple

and direct, and the sentencing argiunent raised by the Appellant has already been

addressed by this Court in State v. Foster (2006), 109 Ohio St.3d 1, 845 N.R.2d 470, and

its progeny.

The Appellant pled guilty to and was sentenced for one count of felonious assault.

The cliai-ge arose from an incident on September 10, 2007 involving a man named Mike

Todd, who was a neighbor of the Appellant. On that date, the Appellant placed a loaded

.38 caliber revolver in the waislliand of his pants, and wetit to Mr. Todd's apartment to

return a can opener that Mr. "I'odd had loaned to the Appellant's gii-lfi-iend.

The Appellant was upset that Mr. Todd had loaned the can opener to his

git-lfiiend, and a confrontation ensued between the two men. During the fight, the gan fell

out of the Appellant's pants and onto the lloor. The Appellant retrieved the gun and

stiuck Mr. Todd on the side of the head. As lle did so, the grm wenl oFf. When police

responded to the scene, Mr. Todd reportod that lie harl ringing in his ears, but otherwise

had no visiblc injuries. A bullet hole was located in the door of a nearby aparttnent.

When police attempted to nlake contact with the Appellant, he refirsed to answer

the door for t.wenty minutes. Whcn he ultimately opened the door, he denied any

involvement in the incident and gave consent to search his apartmcnt. The police found a

loaded.38 calibet- revolver with oue spent shell casitig and a box containing marijaana

hidden inside the air conditioning unit in the Appellant's apartment. In speaking with the

Appellant, the police noted that ho appeared to be intoxicated. After he was talceu into

custody, the Appellant consented to a gunshot residue test on his hands and made

achnissions to the shooting.

Following the Appellant's an-est, he waived his right to a preliminary hearing in

the Matisfield Municipal Court. After his case was bound over, the Appellant filed a

motion for a bond reduction, and was releaseci from jail on electronically monitored pre-

trial supervision. As a condition of his bond reduction, lie was ordered to reside at the

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Community Alternative Center, which is a jail alternative program where residcnts are

fi-ee to leave dLiring the day but must report back at night.

During this time, the Appe]lant also chose to forego the grand jury process and

began plea negoliations with the prosecution. Ultimately, he agreed to plead to a Bill of

Infoi-mation on one count of felonious assault with a deadly weapon, hi exchange for his

plea to the Bill of lnformation, the Slate did not charge the Appellant witli a fireann

spccilication.

On November 6, 2007, the Appellant appeared befot-e Judge Jaines DeWeese and

plcd guilty to the count ol' Pelonious assault charged in the Bill of 1nCormation. Follo g

his plea, the trial court ordered the Adult Parole Authority to preparc a pre-sentonce

investigation on the Appellant. While the pre-sentence investigation was being prepared,

the Appellant was cotitinued on clectronically monitored pre-trial supervision.

While the Appellanl was on pre-trial supervision, lie was fotmd in possession of

alcohol, and his blood alcohol level was found to be .10 at an office visit. The Appellant

was arrested and was held until December 10, 2007 at 7:00p.m., Three houi:s after he was

released, he again tested positive for alcohol and was taken back into custody pending

scntencing.

The Appellant was brought back before the trial court for sentencing on

December 21, 2007. At his sentencing hearing, the trial court reviewed his pre-trial

supet-vision report, as well as the pre-sentence investigation. Based upon the Appellant's

prior criminal record and the facts of this case, the trial eourt sentenced the Appellant to

five years in prison.

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Thereafter, the Appellant filed a direct appeal of his sentence in the Fifth District

Coru-t of Appeals, argi,aing that the five year sentence imposed by the trial court was

disproportionate with sentences imposed by the same court in similar cases. His court-

appointod appellate counsel attempted to supplement the record with sentencing entries

and an "Action Activity Report" detailing sentences imposed by Judge DeWeese in other

felonious assault cases; howevet-, the Fifth District denied that request. The Couil did

grant the Appellatit's request to supplement the presentence iiivestigat.ion report into the

recorcl for consideration on appeal. After reading the briefs of both parties and hearing

oral arguments, the Fifth District affirmed the Appellant's sentence, holding that the trial

cot-t properly exercised its sentencing discretion and the sentence imposed was wilhin

the felony sentencing guidelines.

C. The claim which the Appellant seeks to raise is entirely without merit.

If allowed to proceed witli a delayed appeal, the Appellant wishes to raise one

proposition of law, that ihe trial court abused its discretion when it failed to sentence him

in a manner consistent with scntences previously i-endered for the same conduct.

However, the State contends that the trial court properly exercised its discretion in

sentencing the Appcllant to a five year sentence based upon his conduct while on pre-trial

supei-vision, his history of aleohol abuse, and his prior eriminal record.

In State v. Foster, the this Court held that "[t]rial courts have full discretion to

impose a prison sentence within the statutory range and are no longer rcquirecl to niake

findings or give their reasons for imposing, maxinium, consecutive, or more than the

minitnum sentence." (2006), 109 Ohio St.3d l, 845 N.E.2d 470 at paragraph seven of the

syllabus. Tnstead, the trial court is vested with discretion to impose a prison terni within

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the statutory range. State v. Mathis (2006), 109 Ohio St.3d 54, 61, 846 N.E.2d 1. In

exercising its discretion, the trial court must "cai-efully consider the statutes that apply to

eveiy felony casc [ineluding] R.C. 2929.11, which speciiies the purposes of sentencing,

and R.C. 2929.12, which provides guidance in considering factors relating to the

seriousness of the offense and recidivism of the offender [and] statutes that are specific to

the case itself." Td. at 62.

Tn the hoster opinion, this Court stated conclusively that R.C. 2929.11 and

2929.12 are a general judieial guide. 109 Ohio St.3d at 12. The Court noted that the

statutory provisions of R.C. 2929.11 and 2929.12 are a non-exclusive list for the trial

court to consider when considering how best to protect the public from future crime by

the offender and others and to punish the defendant. Tcj. at 13. However, the Court stated

that "[i]t is important to rioto that there is no mandate for judicial fact linding in the

general guidance statutes. "I'he court is merely to `consider' the statutory factors." Td.

Trom the langrage of the Foster opinion, it is clear that the trial court must still

consider the purposes and p-inciplcs of felony sentencing set forth in R.C. 2929.11, as

wcll as the seriousness and reeidivism factors contained in R.C. 2929.12. However, the

court is not obligated to do so by stating its reasons for imposing the given sentence on

the record. The Foster dccisiou grants lhe trial court with fiill discretion to impose any

sentence authorized within the statutory range for that offense.

The record in this case reflects that the trial court carefully considered the pre-

sentence investigation report as well as the seriousness atid recidivism factors before

sentencing the Appellant. At the outset, the State would note that the facts related in the

Appellant's brief grossly diminislr the nature of the Appellant's conduct in tenns of the

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offense itselP, and the Appellant's behavior while on pre-trial supervision. A faii- reading

of the transcript of the Appellant's seitencing i-eveals ample seriousness and recidivism

factors which the eourt relied on in imposing the five year sentence.

At the start of the Appellant's sentencing hearing, the trial court commented upon

the Appeilant's poor performance while on pre-trial supervisioti, stating:

"Tvfr. Kitzler, for Mr. Shaw I have a report of pretrial supervision which is veryunfavorable. lt says they found him in possession of alcohol, and he tested

positive for aieohol later that sa ne day. He blew a.10, which would be over the

legal limit for driving, while in the office.

He was arrested. He was released on December 10"' at about seven p.m.He tested positive by ten p.m. the same niglit anci has been arrested again.And I have a risk assessment instrument which shows him to be a highrisk person."

(T. 2).

This is far more than a mei-e rnistake. Rather, it points to the Appellant's repeated failure

to control his alcohol addiction and to comply with the requirements of pre-trial

supervision. The trial court indicated that while the Appellant was on electronic

monitoring he used alcohol over and over again, and "defied orn- rules." (T. 9).

Throughout the sentencing hearing, the Appellant also repeatedly attempted to

minimize his own conduct both in tenns of the instance offense, and his past criminal

history. When the trial court inquired as to whether the Appellant had ever assaulted

anyone in the past, the Appellant first denied that lie had. (T. 6). When the trial court

inquired a second time, the Appellant stated, "[n]o. Well, I've gotten into Ctghts before,

but it was a nnitual fight. It wasn't where I just came up and beat somebody or hit

somebody with some(hing, never." (T. 6). However, the Appellant's record incficated

otherwise. The trial court cited an incident in Lansing, Michigan where the Appellant

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engaged in an argnment with a Victoria Sue Brooke and threw a brick at her face, striking

her in the mouth and causing injury which required treatment at a hospital. (T. 6). At that

point, the Appellant again attempted to miaimize his conduct, stating tbat the victim in

that case thi-ew the brick at him tirst and he just thrcw it back at her. lie also stated that

slie only had about two or three stitches in her mouth. (T. 6-7).

When the trial court noted that the Appellant was also charged with domestic

violence assault in Richland County, the Appellznit minimized his culpability in that

incident. He stated "[b]ut me and my wife was in an argument. And the police took that

over because she went down and told thein - they was going to arrest both of us iC she

wouldn't have went dowti and signed the papers on me, they was going to arrest both of

us. So she went aliead and signed the papers, so somebody had to be there with our lcids.

(T. 7).

Finally, the Appellant minimized the nature oC his conduct in terms of the

felonious assault for which lie was being sentenced. The trial corn-t stated "Mr. Shaw,

wlien you went to Mr. Todd's apartnlent to return the can opener, why did you stick the

gun in your waistband?" The Appellant replied, "[h]e was kind of aggressive too." (T.

7). When the trial court asked why he didn't let someone else take the can opener back to

the victim, the Appellant did not answer the qucstion. Instead, he made the excuse that

the fight ensued after the victim ['ollowcd him down tlie hallway as he was walking away.

(T. 7-8). Flowever, the trial court noted, "[u]sually we don't go to our neighbors with a

gun in our waistband. Tt looks like you wei-e looking for trouble." (T. 8).

While the Appellant charactcrized the incident as a sttuggle over a gun in whicli

no one was lmrt and after which he sur-rendered to law enforcement witliout resistance,

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the facts related by the trial court tell a different story. The court recited the following

facts ofthe felonious assault:

"VJhat they tell me is that on September IO"' you went to Mike Todd'sapartment about loaning a ean opener to your girlfiiend. Thcn you guysget into a shouting rnatch, or whatevei- it was, the gun falls out, you pick

up the gun and hit hiin in the head, and at the same time you hit hinl in thehead the gun goes off. Thankfully for both him and you, you didn't cnd up

hitting him with a bullet, because that could have becn a serious thingcharging you with mui-der or some sort of manslaughter cliarge, so you ai-e

forh.mate f or that.

He tells me, at least in his victiin impact statement, that for about a monthhe liad a hearing loss in that one ear. Tt's lucky it wasn't anything worsettian that.

You then retreated to your apartment. The police came to your apartment.They knocked on your door for about twenty minutes befoi-e you finallyopened up. They are shouting police, open up. They go in there and theyfind the .38 revolver hidden in your air conditioner. They also find fourpackets of'rriarijuana."

('1'. 8-9).

The court noted, "there are a numbcr of aspects about this that gives me the impression

that you went there with a criminal intent, and that you knew what you were doing was

criminal, the way you did things ancl so forth afterwards." ("1'. 9).

In addition to the facts of the olfonsc for wliich lie was being sentenced, the trial

court indicated that it was "troubled" by the Appellant's prior criminal record. (T. 9). The

court noted that the Appellaart had an aggravated assault convietion in Michigan for the

incident involving the brick. (T. 9). Ile also had convictions for drug abuse, operating a

motor vehicle under° the influence, iiitoxieation, and reckless opcration. (T. 9). Finally,

the trial court noted the Appellant's ari-est for the previously mentioned don2estie

violence incident, which was ultimately dismissed. (T. 9). While the trial court mentioned

that the majority of the Appellant's convictions were alcohol related, there were several

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incidences ot' violent, assaultive type behavior in the Appellant's past. Additionally, the

trial court mentioned the seriousness of the Appellant's conduct in this case, stating that

"[t]alcing a gun to a fight is just really daugerous business." (T. 9).

In reviewing the Appellant's past criminal history, his pre-ti-ial supervision report,

and the facts of the instant offense, lhe trial court stated that the Appellant had shown that

he was "not prepared at this time to exercise enough self-government to stay out of

troublc on the street." (T. 9-10). The court noted that given the Appellant's history of

alcohol abuse, scrious assaultive history, and use of a gtni "it would be ii-responsible of

me to put you on the strect." (T. 10).

The trial court considered the Appellant's past behavior and the facts of this case

when it weighed the seriousness and recidivisin factors under R.C. 2929.12. In terms of'

the recidivism factors, the court found that the Appellant had a. prior histoi-y of criminal

convictions, including assaultive-type criines; failed to respond favorably to sanetions in

the past; and had used the same bad judgment in this case. (T. 10). In terms oi' the

seriousness factors, the trial court found that the Appellant caused physical injury in this

case. The coui-t noted that "although it may not be in the nah.ire of pernianent injury, it is

serious enough to be hit in the head with a gun and thei you have a gun shot off right

next to your car." (T. 10). "I'he trial cotirt further found that the offense was more serious

because "apparently there is something about [the Appellant's] relationship with the

victim that provoked or facilitated the offense. (T. 10). Finally, the court found that the

Appellant scored in the very high risk category in both the SAQ and generalized rislc

assessment instrument. (T. 10).

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As a result of the factot-s cited above, the trial court properly exercised its post-

I?oster sentettcing disct-etion to impose a five year pi-ison sentence on the Appellant. This

sentence is well within the two to eight year range authorized for second degree felonies

in R.C. 2929.14(A)(2).

While the Appellant contends that the five year sentence is dispropoi-tionate to

sentences imposed by the same judge in other felonious assault cases, the State would

note that there is nothing in the recoi-d of this case to support that argutrient. The Fifth

District refused to supplemcnt the proffered sentencing entries from other felonious

assault cases into the record. This is because the facts in every case are different, and

evei-y defendant has a different background which the court must talce into account when

weighing the seriousness and recidivism factors. lt is not accru-ate to simply eonsider the

sentencos themselves without looking at the factors underlying the trial court's decision.

The Court may otily rely on the record in this case to determine flie appropriateness of the

Appellant's sentcnce. That record clearly demonstrates that the five year sentence

imposedby the Appellant was just, and was within the fclony sentencing guidolines.

CONCLUSION

For the foregoing reasons, the State of Ohio respoctfidly requests that the Court

deny lhe Appellant's motion for delayed appeal.

Regpectfully Sul}jnitted,

_4^n (fKirsten L. Pschollca-GartnerSupt-eme Court No. 0077792Assistant Prosecuting AttorneyRicliland County, Ohio38 South Park StreetMansficld, Ohio 44902

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(419) 774-5676

Counsel for Plaintiff-Appellce, State of Ohio

CFRTIFICATF. OF SERVICE

T hereby certify that a trne copy of the foregoing was sent to Tony Shaw, Sr.,Imnate No. A541-386, Richland CoiTectional Institution, P.O. Box 8107, Mansfield,Ohio 44901by regulai- U.S. Mail, this day o f Janii>;ry, 2010.

I

^stcn L. Pscholka-Gartner (# 0077792)

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