[Cite as State v. Kitts, 2018-Ohio-366.]

COURT OF APPEALS 

KNOX COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsSHANNON M. KITTS 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. John W. Wise, J. 

Hon. Craig R. Baldwin, J. 

Case No. 17 CA 09 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 17 CR 01 0014 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: January 29, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CHARLES T. MCCONVILLE JOHN A. DANKOVICH 

PROSECUTING ATTORNEY ASSISTANT PUBLIC DEFENDER 

117 East High Street, Suite 234 110 East High Street 

Mount Vernon, Ohio 43050 Mount Vernon, Ohio 43050 
Knox County, Case No. 17 CA 09 2

Wise, J. 

{¶1} Defendant-Appellant Shannon M. Kitts appeals her felony convictions, in 

the Court of Common Pleas, Knox County, for drug trafficking and permitting drug abuse. 

Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows. 

{¶2} On October 11, October 13, November 15, and November 16, 2017, officers 

from the Knox County Sheriff’s office and the Mount Vernon Police Department conducted 

controlled heroin purchases from appellant at a house on East Sugar Street in which she 

was living as a “squatter.” The officers also became aware of persons overdosing in the 

house, which was located within one-thousand feet of a school. 

{¶3} As a result of these investigations, appellant was indicted by the Knox 

County Grand Jury on January 23, 2017 on four counts of trafficking in heroin (originally 

charged under R.C. 2925.03(A)(1), amended at sentencing to R.C. 2925.03(A)(2), 

felonies of the fourth degree), and one count of permitting drug abuse (R.C. 2925.13(B), 

a felony of the fifth degree). 

{¶4} On March 23, 2017, appellant appeared before the trial court with counsel 

and pled guilty to all of the above offenses. The court thereupon ordered a presentence 

investigation (“PSI”). 

{¶5} Following a hearing, the trial court sentenced appellant on April 28, 2017 

inter alia as follows: Fifteen months in prison on Count 1, fifteen months on Count 2, 

fifteen months on Count 3, fifteen months on Count 4, and eleven months on Count 5, all 

subject to jail-time credit. All sentences were ordered to run consecutively. 

{¶6} On May 11, 2017, appellant filed a notice of appeal. She herein raises the 

following three Assignments of Error: 
Knox County, Case No. 17 CA 09 3

{¶7} “I. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE 

SENTENCES CONTRARY TO LAW. 

{¶8} “II. THE TRIAL COURT ERRED IN JUDICIAL FACT-FINDING. 

{¶9} “III. THE TRIAL COURT'S SENTENCE WAS NOT PROPORTIONAL.” 

I. 

{¶10} In her First Assignment of Error, appellant contends the trial court erred in 

ordering her to serve consecutive prison sentences. We disagree. 

{¶11} 2011 Am.Sub.H.B. No. 86 revived the language provided in former R.C. 

2929.14(E) and moved it to R.C. 2929.14(C)(4). The General Assembly has thus 

expressed its intent to revive the statutory fact-finding provisions pertaining to the 

imposition of consecutive sentences that were effective in the pre-Foster era. See State 

v. Wells, 8th Dist. Cuyahoga No. 98428, 2013–Ohio–1179, ¶ 11. The Ohio Supreme Court 

has clearly held: “In order to impose consecutive terms of imprisonment, a trial court is 

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing 

and incorporate its findings into its sentencing entry, but it has no obligation to state 

reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659, 

2014-Ohio-3177, syllabus. 

{¶12} Furthermore, we no longer review sentences pursuant to the standard set 

forth in State v. Kalish, 120 Ohio St. 3d 23, 2008–Ohio–4912, 896 N.E.2d 124. See State 

v. Cox, 5th Dist. Licking No. 16-CA-80, 2017-Ohio-5550, ¶ 9. We now review felony 

sentences using the standard of review set forth in R.C. 2953.08. See State v. Marcum, 

146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22. 
Knox County, Case No. 17 CA 09 4

{¶13} Under R.C. 2953.08(G)(2)(a), we are mandated in this instance to consider 

on appeal whether there is clear and convincing evidence that the record in the case sub 

judice does not support the sentencing court's findings under R.C. 2929.14(C)(4) to 

impose consecutive sentences. See State v. Deeb, 6th Dist. Erie No. E-14-117, 2015-

Ohio-2442, ¶ 27. 

{¶14} We thus direct our attention to R.C. 2929.14(C)(4), which provides as 

follows: 

{¶15} 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. 
Knox County, Case No. 17 CA 09 5

(c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime 

by the offender. 

{¶16} Thus, in a nutshell, “R.C. 2929.14(C)(4) provides that a trial court may 

require the offender to serve multiple 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 one of three facts specified in subdivisions (a), (b), and (c).” State v. Leet,

2nd Dist. Montgomery No. 25966, 2015–Ohio–1668, ¶ 15 (internal quotations and 

brackets omitted). 

{¶17} The trial court’s written entry in the case sub judice includes the following: 

The Court finds, pursuant to Ohio Revised Code Section 

2929.14(C)(4), that the consecutive sentences are necessary to protect the 

public from future crime, or to punish the Defendant, and that consecutive 

sentences are not disproportionate to the seriousness of the Defendant's 

conduct and to the danger the Defendant poses to the public. The Court 

further finds 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 Defendants (sic) conduct, 

and the Defendant's history of criminal conduct demonstrates that 
Knox County, Case No. 17 CA 09 6

consecutive sentences are necessary to protect the public from future crime 

by the offender. 

{¶18} Sentencing Entry, April 30, 2017, at 2. 

{¶19} The trial court also noted it had reviewed the results of the previouslyordered presentence investigation. Id. at 1. 

{¶20} Appellant herein committed several trafficking felonies within one-thousand 

feet of a school, and permitted drug abuse in a house in which she resided without 

permission. The PSI reflected that appellant has had nine prior felony convictions, four of 

which involved drug trafficking. It also indicated appellant has a history of misdemeanor 

offenses, including falsification and theft. In addition to heroin, appellant has admitted to 

using marijuana, unspecified narcotics, Xanax, cocaine, inhalants and stimulants. The 

PSI included information that she had not been compliant with outpatient drug and alcohol 

treatment, and all three of her children were in children services custody. She has been 

unemployed since 2014 and has no other sources of income. 

{¶21} A presumption of regularity attaches to all trial court proceedings. See, e.g., 

Black v. Chiropractic Assocs. of Zanesville, L.L.C., 5th Dist. Muskingum No. CT2013–

0012, 2014–Ohio–192, ¶ 20, citing Chari v. Vore (2001), 91 Ohio St.3d 323, 325, 744 

N.E.2d 763. Upon review, we hold the trial court adequately reviewed the matter of 

consecutive sentences, and we find no clear and convincing evidence that the record 

does not support the trial court's findings under R.C. 2929.14(C)(4) for purposes of 

imposing consecutive sentences. Deeb, supra. 

{¶22} Appellant's First Assignment of Error is therefore overruled. 

 
Knox County, Case No. 17 CA 09 7

II. 

{¶23} In her Second Assignment of Error, appellant contends the trial court erred 

and violated her Sixth Amendment rights in engaging in judicial “fact-finding.” We 

disagree.1 

{¶24} The United States Supreme Court, in Apprendi v. New Jersey, (2000), 530 

U.S. 466, 490, held that “[o]ther than the fact of a prior conviction, any fact that increases 

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a 

jury, and proved beyond a reasonable doubt.” See State v. Brewer, 5th Dist. Ashland No. 

05 COA 021, 2006-Ohio-3124, ¶ 7. However, subsequently, in Oregon v. Ice, 555 U.S. 

160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), the United States Supreme Court held that 

it was constitutionally permissible to require judicial fact-finding before imposing 

consecutive sentences. As noted above, H.B. 86, enacted in 2011, revived judicial factfinding for consecutive sentences and revived the R.C. 2953.08(G) standard of review. 

The General Assembly indicated that the amended language in the consecutive sentence 

statutory divisions was subject to reenactment under Oregon v. Ice and the Supreme 

Court's decision in State v. Hodge (2010), 128 Ohio St.3d 1, 2010 Ohio 6320, 941 N.E.2d 

768. See State v. Long, 11th Dist. Lake No. 2013-L-102, 2014-Ohio-4416, 19 N.E.3d 981, 

¶75 - ¶77. 

 

1 Although the present appeal is exclusively based on sentencing issues, the briefs 

herein provide little discussion on the question of appellate jurisdiction to hear all aspects 

of this matter, absent leave of court, under R.C. 2953.08. Nonetheless, we find the 

present Apprendi-based constitutional argument is not constrained by R.C. 2953.08, and 

we will proceed accordingly. See State v. Torres, 8th Dist. Cuyahoga No. 104905, 2017-

Ohio-938, ¶ 8. 
Knox County, Case No. 17 CA 09 8

{¶25} In State v. Jirousek, 11th Dist. Geauga No. 2013-G-3128, 2013-Ohio-5267, 

2 N.E.3d 981, the Eleventh District Court of Appeals considered a similar claim. The Court 

first noted that at sentencing, a trial court is required to consider “ ‘the record, and 

information presented at the hearing, any presentence investigation report, and any victim 

impact statement.’ ” Id. at ¶ 49, quoting State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio855, 846 N.E.2d 1, ¶ 37 (emphasis added). See, also, R.C. 2919.19(B)(1). The Court 

then stated that considering and relying upon such information would not run afoul of 

Apprendi “because Ohio law does not mandate the court to make findings based upon 

such information to increase an otherwise maximum-authorized penalty.” Id. 

{¶26} In this instance, in addition to appellant’s criminal history, the trial court 

relied upon information in the PSI that included supplemental narrative pages from Mount 

Vernon Police Detective J.T. DeChant recounting the drug activity at 204 East Sugar 

Street between August 26, 2016 and January 9, 2017. Det. DeChant's summary also 

recounted drug overdoses that occurred at the residence while appellant was present, as 

well as law enforcement and EMS calls to the residence during that time period. A 

description of drug paraphernalia seized on January 9, 2017 was also provided. 

{¶27} Upon review, we find the trial court properly relied upon the PSI and the 

information therein, and thus find no merit in appellant’s claim that her Sixth Amendment 

rights were violated under Apprendi during sentencing. 

{¶28} Appellant's Second Assignment of Error is overruled. 

III. 

{¶29} In her Third Assignment of Error, appellant raises a disproportionality 

challenge to her sentences. 
Knox County, Case No. 17 CA 09 9

{¶30} While a disproportionality consideration is set forth in R.C. 2929.14(C)(4), 

supra, the issue has also been analyzed in relation to the “consistency” factor of R.C. 

2929.11(B). See, e.g., State v. Hughes, 5th Dist. No. 15CA0008, 2016-Ohio-880, 60 

N.E.3d 765, ¶ 34. Ohio courts have recognized that consistency in sentencing pursuant 

to R.C. 2929.11(B) “does not necessarily mean uniformity.” See State v. Ryan, 1st Dist. 

Hamilton No. C–020283, 2003–Ohio–1188, ¶ 10. As an appellate court, we may decline 

to compare a particular defendant's sentences with similar crimes in this or other 

jurisdictions unless there is an inference of gross disproportionality. State v. King, 5th 

Dist. Muskingum No. CT06–0020, 2006-Ohio-6566, ¶ 26, citing State v. Vlahopoulos, 8th 

Dist. Cuyahoga No. 80427, 2002–Ohio–3244. 

{¶31} In support, in lieu of any comparative sentences regarding other defendants 

in Ohio, appellant argues that her “punishment for living in a heroin house while she was 

a heroin addict, was not only culpability for the crimes of others that went on there, but 

the imputation of the evil associated with the idea of the house, which pushes past the 

limits of proportionality for similarly situated heroin addicts who aren't forced to reside in 

a drug house, and therefore do not have to bear responsibility for that house.” Appellant’s 

Brief at 7. 

{¶32} Upon review, we find appellant's arguments as to disproportionality for 

purposes of R.C. 2929.11(B) and 2929.14(C)(4) are unpersuasive under the facts and 

circumstances of this matter. 

 
Knox County, Case No. 17 CA 09 10

{¶33} Appellant's Third Assignment of Error is overruled. 

{¶34} For the reasons stated in the foregoing opinion, the judgment of the Court 

of Common Pleas, Knox County, Ohio, is hereby affirmed. 

By: Wise, J. 

Gwin, P. J., and 

Baldwin, J., concur. 

JWW/d 1228