[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, O P I N I O N 

 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 

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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 
Case No. 16-13-06 

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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. 
Case No. 16-13-06 

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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.” 
Case No. 16-13-06 

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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-Ohio1181. 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 
Case No. 16-13-06 

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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. 
Case No. 16-13-06 

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{¶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 
Case No. 16-13-06 

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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. 
Case No. 16-13-06 

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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. 
Case No. 16-13-06 

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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