[Cite as State v. Kaufmann, 2022-Ohio-3487.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

- vs -

DAVID M. KAUFMANN,

Defendant-Appellant.

CASE NO. 2022-A-0011

Criminal Appeal from the

Court of Common Pleas

Trial Court No. 2020 CR 00358

O P I N I O N

Decided: September 30, 2022

Judgment: Affirmed

Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant 

Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Joseph R. Klammer, The Klammer Law Office, LTD., The Historic Mentor Center Street 

School, 7482 Center Street, Unit 6, Mentor, OH 44060 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, David M. Kaufmann, appeals from the judgment of the Ashtabula 

County Court of Common Pleas, convicting him, after entering pleas of guilty, on two 

counts of felony-four gross sexual imposition. At issue is whether appellant’s trial counsel 

was ineffective and whether the trial court erred in sentencing him to maximum, 

consecutive terms of imprisonment. We affirm. 

{¶2} Appellant was indicted on three counts of gross sexual imposition, felonies 

of the fourth degree, in violation of R.C. 2907.05(A)(1) and R.C. 2907.05(C)(1); he was 

also indicted on one count of gross sexual imposition, a misdemeanor of the third degree, 
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in violation of R.C. 2907.06(A)(4) and R.C. 2907.06(C). He pleaded not guilty to the 

charges. He later withdrew his plea of not guilty and entered into a plea of guilty to two 

counts of felony-four gross sexual imposition. At the plea hearing, the prosecutor advised 

the court that the following occurred:

{¶3} “Your Honor, there were two different victims and two different dates. The 

first, Your Honor, he had gotten into the shower with the victim who was then 16, and they 

were showering together; both were nude. During this time, he would get an erection and 

at times cuddle with her in the shower.

{¶4} “The other girl, who was 13 at the time, indicated she was having difficulty 

shaving other pubic hair. [Sic.] He proceeded to again get into the shower naked with 

her, assist her in shaving her, and they would wash with a washcloth her private areas.”

{¶5} Upon receiving the state’s factual basis, the trial court asked appellant if he 

agreed with the state’s recitation. Appellant’s counsel responded with the following:

{¶6} “Judge, as you heard the conversation between me and [the prosecutor] 

earlier, there’s already been admissions, and an agreement by everybody who would be 

involved in this case, that that behavior did happen. We were discussing whether or not -

- he showered with the girls and he did shave them. That’s what happened.”

{¶7} The trial court then asked defense counsel whether appellant admitted the 

conduct, to which counsel stated “[H]e does.” Appellant interjected, stating: “And I - -

from day one, I admitted that there was a responsibility to take care of, yes. But - -.” 

Defense counsel cut appellant off, stating: “That’s enough.” 

{¶8} The trial court ultimately sentenced appellant to an 18-month term of 

imprisonment for each count, to be served consecutively to one another. Appellant now 

appeals.
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{¶9} His first assignment of error provides:

{¶10} “Appellant was denied effective assistance of counsel at his plea agreement 

and sentencing hearing.”

{¶11} Appellant contends his trial counsel was ineffective for admitting conduct 

that was beyond that for which he was charged. Specifically, appellant asserts counsel, 

at the plea hearing, represented to the court that he shaved and entered the shower with

the juvenile victims. Appellant appears to argue there was only an allegation that he 

assisted in shaving one of the victims. As such, he claims, counsel misrepresented 

material facts to the trial court which led him to entering the plea based upon unsupported 

facts and influenced the trial judge to maximum, consecutive terms of imprisonment on 

each count. We do not agree.

{¶12} “In order to prevail on an ineffective assistance of counsel claim, an 

appellant must demonstrate that trial counsel’s performance fell ‘below an objective 

standard of reasonable representation and, in addition, prejudice arises from counsel’s 

performance.’” State v. Andrus, 11th Dist. Ashtabula No. 2019-A-0082, 2020-Ohio-6810,

¶60, citing State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus 

(adopting the test set forth in Strickland v. Washington, 466 U.S. 668 (1984)). “In order to 

show prejudice, the appellant must demonstrate a reasonable probability that, but for 

counsel’s error, the result of the proceeding would have been different.” Andrus,

supra, citing Bradley, supra, at paragraph three of the syllabus. In the context of a guilty 

plea conviction, this means that appellant would not have pleaded guilty but for counsel’s 

ineffective assistance. State v. Madeline, 11th Dist. Trumbull No. 2000-T-0156, 2002 WL

445036, *3 (Mar 22, 2002). “If a claim can be disposed of by showing a lack of sufficient 

prejudice, there is no need to consider the first prong, i.e., whether trial counsel’s 
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performance was deficient.” Andrus, supra, citing Bradley, supra, at 143, citing Strickland,

supra, at 695-696.

{¶13} Moreover, “[t]he mere fact that, if not for the alleged ineffective assistance 

of counsel, the defendant would not have entered a guilty plea not sufficient to establish 

the requisite connection between the guilty plea and the ineffective assistance. * * * 

Rather, ineffective assistance of trial counsel is found to have affected the validity of a

guilty plea when it precluded a defendant from entering his plea knowingly and 

voluntarily.” (Emphasis removed.) Madeline, supra, citing State v. Sopjack, 11th Dist.

Geauga No. 93-G-1826, 1995 WL 869968, *4, citing State v. Haynes, 11th Dist. Trumbull

No. 93-T-4911, 1995 WL 237075, at 4-5. This court has explained that “by entering a plea 

of guilty, appellant waived the right to contest the effectiveness of his representation prior 

to the entry of the guilty plea if it did not cause less than a knowing and voluntary plea.”

Haynes, supra, at *1; see also Madeline, supra. “As a general proposition, the Supreme 

Court of Ohio has stated that a guilty plea ‘represents a break in the chain of events which 

has preceded it in the criminal process.’” Haynes, supra, quoting State v. Spates, 64 Ohio

St.3d 269, 272 (1992).

{¶14} We recognize that defense counsel’s representations to the court do not 

match the specifics of the prosecutor’s factual allegations. Defense counsel represented 

appellant committed the same acts against each victim. The prosecutor’s recitation 

provided that, if the matter went to trial, the state would prove appellant, in an aroused 

condition, showered and cuddled with one victim; alternatively, the state alleged appellant 

showered, shaved, and washed the private area of the second victim. Appellant did not 

dispute the state’s allegations at either the plea hearing or at sentencing. Appellant does 

not argue defense counsel’s alleged misstatements prevented him from entering a
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knowing, intelligent, and voluntary plea of guilty. In this respect, appellant has waived his 

ineffectiveness claim as it relates to the guilty plea.

{¶15} Even assuming appellant’s argument was not waived, however, the record 

demonstrates appellant entered a valid plea. A plea of guilty is a complete admission of 

guilt to the allegations in the indictment. Crim.R. 11(B)(1). By implication, a valid guilty 

plea represents a complete admission to the state’s rendition of the facts upon which the 

charges are based and which it represents it would prove had the matter proceeded to 

trial. Appellant does not dispute the state’s factual allegations. And, during the plea 

hearing, the trial court requested appellant to read portions of his plea agreement 

regarding his waiver of rights and his admission to the offenses at issue. The trial court 

confirmed appellant understood the rights he was waiving and that he understood and 

had no questions about the effect of the plea; namely, that he admitted to committing the 

offenses at issue.

{¶16} We perceive no basis to conclude appellant’s plea was not knowingly, 

intelligently, and voluntarily entered. In this respect, counsel was not ineffective during 

the plea process.

{¶17} Next, we fail to see how counsel’s alleged misrepresentations at the plea 

hearing regarding the underlying criminal conduct had any impact upon the trial court’s 

ultimate sentence. Even assuming trial counsel’s representations might be inaccurate 

and, therefore, his performance in this narrow regard arguably fell below an objective 

standard of reasonableness, appellant cannot establish prejudice. 

{¶18} At sentencing, defense counsel noted appellant had no criminal record. He 

argued that appellant might need some mental health assistance but asserted he did not 

think imprisonment was either necessary or required to protect the public. Counsel 
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therefore requested community control sanctions. In allocution, appellant apologized for 

his actions, but did not contest his guilt. And the state, after assessing the facts before 

the court, highlighted appellant’s role as a parental figure and the exploitation of that role. 

The prosecutor also noted appellant appeared to be “candy-coating” his actions as “bad 

judgment” rather than criminally sexual conduct with minors. The prosecutor also 

emphasized that appellant’s representations that alcohol and/or drugs had no role in the 

incidents made appellant’s conduct potentially more problematic. The prosecutor pointed 

out that the lack of alcohol and/or drugs indicates appellant did not suffer from impaired 

judgment; and, as a result, his actions may simply reflect “who he is, to some extent.” 

{¶19} The prosecutor also read one of the victim’s impact statements into the 

record. The victim detailed significant mental stress, trust issues with men, suicidal 

thoughts, and poor hygiene (due to her memories of appellant’s actions). The victim also 

emphasized that appellant’s conduct caused her younger sister great suffering as well; 

the victim ultimately requested the maximum term of imprisonment. In light of the 

foregoing, the trial court stated:

{¶20} “This Defendant, according to the Presentence Report, does not have a 

criminal history. However, looking at the seriousness factors, there was, apparently, 

permanent injury to both victims, so the Court will find that the more serious factors 

override the less serious factors. And with the Ohio Constitution of Marcy’s law, the 

victims have requested the maximum prison sentence, and the Court finds that a term of 

maximum prison sentence is in order.”

{¶21} The foregoing demonstrates the trial court listened to the parties and the 

victim’s statement at the hearing. There is no suggestion the trial court relied upon 

defense counsel’s previous statements regarding appellant’s conduct that were allegedly 
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inaccurate. Appellant has therefore failed to show a reasonable probability that, but for 

counsel’s purported error(s), his sentence would be different.

{¶22} Appellant’s first assignment of error lacks merit.

{¶23} Appellant’s second assignment of error provides:

{¶24} “The imposition of maximum and consecutive sentences is contrary to law.”

{¶25} Appellant initially argues that defense counsel’s misstatements at the plea 

hearing caused the trial court to improperly inflate his sentence. As discussed under his 

first assignment of error, however, the record does not support this assertion. This 

argument therefore lacks merit. 

{¶26} Next, appellant claims the trial court erred in sentencing him to the 

maximum sentence on the two counts of gross sexual imposition to which he pleaded 

guilty.1 Again, this argument is without merit.

{¶27} “The court hearing an appeal [of a felony sentence] shall review the record, 

including the findings underlying the sentence or modification given by the sentencing 

court.” R.C. 2953.08(G)(2). “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 * * * if it clearly and 

convincingly finds * * * (a) [t]hat the record does not support the sentencing court’s 

1. Appellant points out that a defendant is subject to the sentencing scheme in effect at the time of his or 

her offense. See, e.g., State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, ¶121-122. The indictment 

charged the offenses within the time frame of May 23, 2015 – May 23, 2017 and September 7, 2015 –

September 6, 2018. R.C. 2953.08(G)(2), the statute governing appellate review of consecutive 

sentences as well as R.C. 2929.24(C)(4), the statute governing the imposition of consecutive sentences 

have not substantively changed since 2015. Appellant, however, cites former R.C. 2929.14(C) for the 

proposition that, in order to impose maximum sentences, a trial judge was required to make certain 

factual findings. That provision of R.C. 2929.14(C), however, was found unconstitutional and 

excised from the Revised Code by the Supreme Court of Ohio in State v. Foster, 109 Ohio St.3d 

1, 2006-Ohio-856, paragraph one of the syllabus. Hence, that aspect of the former statute was 

no longer effective at the time of appellant’s commission of the offenses. 
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findings under division * * * (C)(4) of section 2929.14, or * * * (b) [t]hat the sentence is 

otherwise contrary to law.” R.C. 2953.08(G)(2).

{¶28} The Ohio Supreme Court has clarified the application of R.C.

2953.08(G)(2) in relation to R.C. 2929.11 and R.C. 2929.12 and held that it does not allow 

an appellate court to vacate a sentence based on “lack of support in the record for a trial 

court’s findings” or to “independently weigh the evidence in the record and substitute its 

judgment for that of the trial court.” State v. Jones , 163 Ohio St.3d 242, 2020-Ohio-6729,

¶29, 42. In effect, R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate court 

to modify or vacate a sentence based on its view that the sentence is not supported by 

the record under R.C. 2929.11 or R.C. 2929.12.” Jones, supra, at ¶39. 

{¶29} “Although a court imposing a felony sentence must consider the purposes 

of felony sentencing under R.C. 2929.11 and the sentencing factors under R.C. 2929.12,

‘neither R.C. 2929.11 nor 2929.12 requires [the] court to make any specific factual 

findings on the record.’” State v. Bryant, 2022-Ohio-1878, at ¶20, quoting Jones, supra,

at ¶20. The trial court expressly stated it considered the R.C. 2929.12 factors. Further, 

the record demonstrates the trial court ordered and reviewed the presentence 

investigation report and heard arguments in mitigation. There is consequently nothing to 

suggest the trial court failed to consider the R.C. 2929.12 factors. Appellant’s argument 

lacks merit. 

{¶30} Finally, appellant claims the trial court erred in ordering him to serve 

consecutive sentences. He argues the trial court correctly pointed out at the sentencing 

hearing that he had no criminal history. The trial court erred, however, in concluding, in 

its judgment entry on sentence, that appellant’s history of criminal conduct demonstrates 

that consecutive sentences are necessary to protect the public from future crime. He 
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additionally challenges the trial court’s finding that at least two of the multiple offenses 

were committed as part of one or more courses of conduct. He maintains the facts fail to 

support he engaged in a “course of conduct” in committing the two offenses. 

{¶31} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses 

may be ordered to be served consecutively if the court finds it 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 factors in R.C.

2929.14(C)(4)(a)-(c) are present. Those factors include the following:

{¶32} “(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.

{¶33} “(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.

{¶34} “(c) The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime by the 

offender.” R.C. 2929.14.

{¶35} “[T]o 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 
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incorporate its findings into its sentencing entry * * *.” State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, ¶37.

{¶36} With the foregoing standards in mind, appellant is correct that the trial court 

erred in concluding appellant’s criminal history justifies consecutive sentences. Appellant 

had no criminal history. This does not imply the trial court erred in imposing consecutive 

sentences. The record supports the trial court’s remaining findings, not the least of which 

its determination that the offenses were part of a course of conduct.

{¶37} Ohio’s sentencing statutes do not appear to define the phrase “course of 

conduct. ” The Second Appellate District has confronted this issue and noted:

{¶38} The term “course of conduct” is not defined in R.C. 2929.14, but other 

sources provide some guidance. The supreme court has held that, for purposes of a death 

specification in a case involving multiple murders, a course of conduct may be established 

by factual links, including time, location, weapon, cause of death, or similar 

motivation. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, ¶144. Ohio Jury 

Instructions has included this definition in at least one of its instructions. See 2 Ohio Jury 

Instructions 513.49(E)(6). Similarly, “some connection, common scheme, or some pattern 

or psychological thread that ties” offenses together can establish a single course of 

conduct. State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, syllabus. See also State

v. Summers, 2d Dist. Darke No. 2013 CA 16, 2014-Ohio-2441, ¶14.

{¶39} We conclude the Second District’s explanation of the phrase “course of

conduct” is persuasive.

{¶40} Here, according to the factual recitation at the plea hearing, appellant, while 

nude, showered with and, while aroused, “cuddled” one victim while in the shower. He 

also showered with the second victim, shaved her pubic region, and washed her private 
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area. The incidents are factually linked in that both victims were minor girls with whom 

appellant showered. Appellant’s motive for each criminal act could be reasonably 

construed as a prurient interest in touching minor females while in a state of disrobe in a 

shower. There are common connections, patterns, and a similar psychological thread 

with each incident. We therefore conclude the trial court did not err in concluding 

appellant’s actions represented a course of conduct and the harm was so great or unusual 

as to justify consecutive sentences.

{¶41} Appellant’s second assignment of error lacks merit.

{¶42} For the reasons discussed in this opinion, the judgment of the Ashtabula 

County Court of Common Pleas is affirmed.

MARY JANE TRAPP, J.,

JOHN J. EKLUND, J.,

concur.