[Cite as State v. Shepard, 2011-Ohio-6344.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

UNION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 14-11-07 

 v. 

JACK W. SHEPARD, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Union County Common Pleas Court 

Trial Court No. 10-CR-0013 

Judgment Affirmed 

Date of Decision: December 12, 2011 

 

APPEARANCES: 

Jeffrey D. Slyman for Appellant 

Terry L. Hord for Appellee 
Case No. 14-11-07 

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SHAW, J.

{¶1} Defendant-appellant, Jack W. Shepard (“Shepard”), appeals the March 

28, 2011 judgment of the Common Pleas Court of Union County, Ohio, 

sentencing him to ten years of imprisonment for rape, a felony of the first degree, 

in violation of R.C. 2907.02(A)(2). 

{¶2} The facts relevant to this appeal are as follows. On February 3, 2010, 

Shepard was indicted on two counts of rape of a person less than ten years of age 

in violation of R.C. 2907.02(A)(1)(b), both felonies of the first degree. Both 

counts also included specifications that Shepard was a sexually violent predator. 

The victim of these alleged offenses was Shepard’s younger sibling, who was 

between the ages of eight and ten at the time of the offenses. Shepard pled not 

guilty to both counts and their specifications. 

{¶3} Subsequently, Shepard entered pleas of not guilty by reason of 

insanity, and the trial court ordered Shepard to undergo a mental health evaluation 

for both his competency to stand trial and to determine whether he was legally 

insane at the time the offenses were committed. Shepard was examined by two 

different mental health professionals, Dr. James Reardon and Dr. Daniel Hrinko. 

A hearing was held on these matters on June 28, 2010. Both doctors submitted 

reports to the trial court, which were admitted into evidence without objections 
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from either the State or Shepard, and the trial court found that Shepard was 

competent to stand trial. 

{¶4} On January 7, 2011, Shepard and the State reached a plea agreement. 

According to the terms of this agreement, the State amended Count One of the 

indictment to rape, a felony of the first degree in violation of R.C. 2907.02(A)(2), 

and dismissed Count Two of the indictment and both specifications in exchange 

for Shepard entering a plea of guilty to the sole amended count. After conducting 

a plea colloquy with Shepard, the trial court accepted his guilty plea, found him 

guilty, and ordered a pre-sentence investigation. 

{¶5} Shepard’s sentencing hearing occurred on March 28, 2011. At this 

hearing, Shepard submitted the report of psychologist, Dr. Michael Firmin, who 

conducted a psychological evaluation of Shepard at his counsel’s request, 

including an opinion as to Shepard’s potential for future sexual misconduct. In 

addition, he submitted a letter from his mother, who is also the mother of the 

victim. The State did not object to either of these being admitted into evidence for 

the court’s consideration. 

{¶6} Prior to the sentencing hearing, counsel for the victim informed the 

trial court, the State, and counsel for Shepard that the victim wanted to be present 

and make a statement to the court. However, she did not want Shepard to be 

present. The trial court addressed this matter on the record, and Shepard waived 
Case No. 14-11-07 

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his right to be present. He was then taken to a different room and permitted to 

watch this portion of the hearing on a television monitor. Once Shepard was 

removed from the courtroom, the victim gave her statement to the court. After she 

completed her statement and left the courtroom, Shepard returned and the hearing 

continued. After the State and counsel for Shepard presented their respective 

positions, Shepard provided his own statement to the court. Shepard was 

sentenced to a mandatory term of ten years in prison and classified as a Tier III sex 

offender. This appeal followed, and Shepard now asserts three assignments of 

error. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN IMPOSING A MAXIMUM 

SENTENCE ON APPELLANT CONTRARY TO LAW, 

SPECIFICALLY R.C. § 2929.14(C), WHEN HE IS A FIRST 

TIME OFFENDER AND THE RECORD DOES NOT 

SUPPORT SUCH AN IMPOSITION. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY IMPOSING A MAXIMUM 

SENTENCE THAT IS CONTRARY TO LAW BECAUSE 

SUCH AN ORDER IS NEITHER CONSISTENT NOR 

PROPORTIONATE TO OTHER SIMILAR OFFENSES 

COMMITTED BY A FIRST TIME OFFENDER AS 

REQUIRED BY LAW. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT’S MAXIMUM SENTENCE OF 

INCARCERATION WAS AN ABUSE OF DISCRETION 
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BECAUSE IT WAS ERROR TO CONSIDER FACTS 

OUTSIDE THE RECORD IN SENTENCING APPELLANT. 

{¶7} As these assignments of error are interrelated, we elect to address 

them together.1

{¶8} An appellate court must conduct a meaningful review of the trial 

court’s sentencing decision. State v. Daughenbaugh, 3rd Dist. No. 16–07–07, 

2007-Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P0007, 2004-

Ohio-1181. A meaningful review means “that an appellate court hearing an 

appeal of a felony sentence may modify or vacate the sentence and remand the 

matter to the trial court for re-sentencing if the court clearly and convincingly 

finds that the record does not support the sentence or that the sentence is otherwise 

contrary to law.”2

 Daughenbaugh, 2007-Ohio-5774, at ¶ 8, citing Carter, 2004-

Ohio-1181, at ¶ 44; R.C. 2953.08(G). Clear and convincing evidence is “[t]he 

measure or degree of proof that will produce in the mind of the trier of fact a firm 

belief or conviction as to the allegations sought to be established. It is 

intermediate, being more than a mere preponderance, but not to the extent of such 

 

1

 We note that each of these assignments of error involves sentencing issues for an offense committed 

between January 1, 2005 and January 2, 2007. Effective September 30, 2011, the General Assembly has 

enacted a new sentencing framework with numerous changes to the framework that was in effect at the 

time Shepard committed this offense and when he was sentenced. However, our review of these issues is 

limited to the previous statutory sentencing scheme and case law interpreting the previous framework. 

2

 We note that the Supreme Court of Ohio’s plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124, establishes a two-part test utilizing an abuse of discretion standard for 

appellate review of felony sentencing decisions under R .C. 2953.08(G). While we cite to this Court’s 

precedential clear and convincing review standard adopted by three dissenting Justices in Kalish, we note 

that the outcome of our decision in this case would be identical under the Kalish plurality’s two-part test. 
Case No. 14-11-07 

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certainty as required beyond a reasonable doubt as in criminal cases. It does not 

mean clear and unequivocal.” In re Estate of Haynes (1986), 25 Ohio St.3d 101, 

103-104, 495 N.E.2d 23. 

{¶9} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, 

¶ 97, the Supreme Court of Ohio stated that “[t]rial courts [now] have full 

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

required to make findings or give their reasons for imposing maximum, 

consecutive, or more than the minimum sentences.” Id. at paragraph seven of the 

syllabus. In fact, the Court in Foster, specifically found that 

[t]he following sections, because they either create presumptive 

minimum or concurrent terms or require judicial fact-finding to 

overcome the presumption, have no meaning now that judicial 

findings are unconstitutional: R.C. 2929.14(B), 2929.19(B)(2), 

and 2929.41. These sections are severed and excised in their 

entirety, as is R.C. 2929.14(C), which requires judicial factfinding for maximum prison terms[.] 

Id. at ¶ 97. 

{¶10} Although the trial court is given full discretion in sentencing 

pursuant to Foster, the trial court must still consider the overriding purposes of 

felony sentencing, which are to protect the public from future crimes by the 

offender and to punish the offender. R.C. 2929.11(A); State v. Scott, 3rd Dist. No. 

6-07-17, 2008-Ohio-86, ¶ 49, citing State v. Foust, 3rd Dist. No. 3-07-11, 2007-

Ohio-5767, ¶ 27. Additionally, “[a] sentence imposed for a felony shall be 
Case No. 14-11-07 

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reasonably calculated to achieve the two overriding purposes of felony sentencing 

* * * commensurate with and not demeaning to the seriousness of the offender’s 

conduct and its impact upon the victim, and consistent with sentences imposed for 

similar crimes committed by similar offenders.” R.C. 2929.11(B). 

{¶11} Here, Shepard’s sentence of ten years for his first degree felony 

offense of rape was within the statutorily permissible range of three to ten years. 

See R.C. 2907.02(A)(2); R.C. 2929.14(A)(1). Thus, the imposition of this amount 

of time was not contrary to law. 

{¶12} Further, after taking a recess to review Dr. Firmin’s report, the trial 

court stated on the record that it had reviewed the exhibits submitted by Shepard 

and considered them along with the statements made in open court. The trial court 

also noted that it had considered the record, oral statements, the pre-sentence 

investigation, the principles and purposes of sentencing (R.C. 2929.11), the 

seriousness and recidivism factors (R.C. 2929.12), and the need for deterrence, 

incapacitation, rehabilitation, and restitution (R.C. 2929.11). In addition, the trial 

court found that the shortest prison term would demean the seriousness of 

Shepard’s offense and would not protect the public. These considerations were 

also noted in the court’s judgment entry of sentence. 

{¶13} Nevertheless, Shepard maintains that the trial court did not make the 

necessary findings contained in R.C. 2929.14(C) in order to impose the maximum 
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sentence of ten years. As previously noted, pursuant to Foster, the trial court was 

not required to make any findings under R.C. 2929.14(C) before imposing a 

maximum sentence of ten years. Thus, the trial court did not err in this regard. 

Moreover, from the language contained in the judgment entries of sentencing, the 

trial court complied with the statutory sentencing requirements. 

{¶14} Shepard additionally asserts that the trial court erred in considering 

matters outside the record, i.e. evidence of other sexual acts he committed against 

the victim to which he did not plead guilty, and by sentencing him to ten years 

because this sentence was neither consistent nor proportionate to other similar 

offenses committed by similar offenders. We disagree. 

{¶15} At the sentencing hearing, counsel for Shepard specifically stated 

that he reviewed the PSI and had no factual disputes with the PSI. The State also 

had no objection. However, the trial court informed the parties that it had found 

one error in the PSI, which was located on the last page under the portion 

providing the victim’s personal information. This portion inaccurately listed the 

victim’s age at the time of the offense as her current age rather than between the 

ages of eight and ten. No other factual inaccuracies with the PSI were reported, 

and it was made part of the record. 

{¶16} According to the portion of the PSI describing the details of the 

offense, from late 2005 until early 2007, Shepard had his younger sibling, who 
Case No. 14-11-07 

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was between the ages of eight and ten at the time, perform fellatio on him a 

number of times. During some of these acts, he would also ejaculate in her mouth. 

On other occasions during this same time frame, he would have her use her hand 

to masturbate him and/or have her watch him masturbate. Further, on at least one 

occasion, Shepard broadcast over the internet the victim performing fellatio on 

him. Although he did not use physical force on the victim, he told her that if she 

told anyone what they were doing, that they would not go to heaven and that their 

parents would not love them any longer. 

{¶17} Although Shepard pled guilty to only one offense of rape in 

accordance with the plea agreement, the Revised Code permits a trial court to 

consider any factors that are relevant to achieve the purposes and principles of 

sentencing and any relevant factors to determine the seriousness of the offender’s 

conduct and whether the offender is likely to commit future crimes. See R.C. 

2929.12. Undoubtedly, Shepard’s extensive and repeated conduct with the victim 

over a significant period of time, her age, his age, and his relationship with her 

were all relevant factors in sentencing regardless of whether they were actual 

elements of the one offense to which he pled. Thus, the PSI provided relevant 

information, which was not disputed by Shepard, to the trial court. Furthermore, 

not only were these matters contained in the PSI, the psychological report 

prepared by Dr. Firmin and admitted into evidence at Shepard’s request reveals 
Case No. 14-11-07 

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that Shepard admitted that he committed multiple acts against the victim. 

Therefore, the trial court did not err in considering this information when 

determining how to achieve the purposes and principles of sentencing in this 

instance. 

{¶18} As for Shepard’s assertion that his sentence was neither consistent 

nor proportionate to other similar offenses committed by similar offenders, we 

note that he failed to provide the trial court with any examples of sentences 

imposed for similar offenses upon similar offenders or to even raise this issue with 

the trial court. Having failed to do so, Shepard has waived all but plain error on 

this matter. See State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826, 844 

N.E.2d 372, ¶ 53. Plain error does not exist unless it can be said that but for the 

error, the outcome would clearly have been different. State v. Long (1978), 53 

Ohio St.2d 91, 372 N.E.2d 804. 

{¶19} In support of his position that his sentence was disproportionate, 

Shepard has cited one case to this Court, wherein the appellant in that case 

provided a number of citations to the Sixth District Court of Appeals to 

demonstrate that his sentence was disproportional. See State v. Walter, 6th Dist. 

No. L-03-1144, 2004-Ohio-1971. Notably, the Sixth District found that all but 

one of the cases cited by the appellant was from a trial court and provided no 

factual histories with which to compare the appellant’s case. Id. at ¶ 15. 
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Likewise, this Court does not have those factual histories, and Walter involved a 

defendant convicted of attempted rape and sentenced to six years. Accordingly, 

Shepard has failed to demonstrate how his sentence was disproportionate to other 

similar offenders for similar offenses. 

{¶20} Moreover, as previously discussed, Shepard engaged in a repeated 

and long-term pattern of sexual offenses against his much younger sibling. 

Clearly, he used his familial relationship with her to further his own sexual 

desires. This included exploiting his abuse of her on the internet on at least one 

occasion and having her watch him engage in self-gratification. While the victim 

stated that she continued to do well in school and that she loved her brother and 

wanted him to have a normal life, the negative impact her brother’s behavior had 

on her was substantial as evidenced by her need to have him removed from the 

courtroom before she was even able to address the court. Further evidence of the 

harm done to the victim was contained in the letter written by the mother of both 

Shepard and his victim, wherein she discussed how the victim had participated in 

therapy for what her brother had done to her and had to resume therapy once he 

was indicted and the local newspaper reported that his victim was a younger 

family member, potentially exposing her identity to those who knew the family. 

The mother expressed that the victim did not want to discuss her abuse again and 

that she needed therapy again in part because she thought she would have to talk 
Case No. 14-11-07 

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further about the abuse. The particular nature of this offense, and in most 

instances of rape, is very fact-specific and is difficult to assess comparatively to 

other cases. Thus, on the state of the record before us, we cannot conclude that the 

trial court imposed a disproportionate sentence. 

{¶21} Given all of the information before the trial court, we do not find that 

the trial court erred in sentencing Shepard to ten years in prison. Accordingly, the 

three assignments of error are overruled, and the judgment of the Common Pleas 

Court of Union County, Ohio, is affirmed. 

Judgment Affirmed

PRESTON, J., concurs. 

/jlr 

WILLAMOWSKI, J., Concurring Separately. 

{¶22} I concur fully with the majority opinion, however write separately to 

emphasize that the appropriate standard of review was applied. The standard of 

review for sentences was set forth in the plurality opinion of Kalish, supra. In 

Kalish, four panel members noted that R.C. 2953.08(G) requires that appellants 

must meet a clearly and convincingly contrary to law standard of review when 
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reviewing a sentence.3

 For example, if the sentencing court failed to consider a 

required code section such as R.C. 2929.12, the standard of review would be 

whether appellant has shown that the sentence was clearly and convincingly 

contrary to law. However, if the appeal is based upon alleged improper 

application of the factors in R.C. 2929.12, four panel members in Kalish would 

require review using an abuse of discretion standard as specifically set forth in R.C 

2929.12.4

{¶23} In his assignments of error, Shepard alleges that the trial court erred 

by failing to make the findings required by R.C 2929.14(C). Shepard’s appeal of 

his felony sentence did not raise issue with the application of the factors set forth 

in R.C. 2929.12, which would require a review using an abuse of discretion 

standard. Thus, the clearly and convincingly standard used to review this case, as 

set forth in R.C. 2953.08(G)(2) is the proper standard of review herein. 

 

3

 Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all 

reached this conclusion. 

4

 Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this 

position, although the first three would use both standards of review in all cases.