[Cite as State v. Shepherd, 2010-Ohio-482.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HARDIN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 6-09-14 

 v. 

TERRY DALE SHEPHERD, 

 O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hardin County Common Pleas Court 

Trial Court No. 20082218-CRI 

Judgment Affirmed 

Date of Decision: February 16, 2010 

 

APPEARANCES: 

Scott B. Johnson for Appellant 

Maria Santo for Appellee 
Case No. 6-09-14 

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ROGERS, J. 

{¶1} Defendant-Appellant, Terry Dale Shepherd, appeals the judgment of 

the Court of Common Pleas of Hardin County resentencing him to two life 

sentences without the possibility of parole, to be served consecutively to each 

other and consecutively to the remainder of a prison term imposed in Hancock 

County and a life sentence imposed in Wyandot County. On appeal, Shepherd 

argues that the trial court erred in imposing a harsher sentence upon his 

resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, in 

violation of North Carolina v. Pearce (1969), 395 U.S. 711, by ordering his life 

sentence in Wyandot County to be served consecutively to the life sentences 

imposed in this case; that the State breached its plea agreement; and, that the trial 

court erred in denying his motion for a new attorney at resentencing. Based on the 

following, we affirm the judgment of the trial court. 

{¶2} In November 2008, in Hardin County case number CRI 20082218, 

the Hardin County Grand Jury indicted Shepherd on two counts of aggravated 

murder in violation of R.C. 2903.01(D), an unclassified felony. The indictment 

arose from Shepherd’s brutal murders of Debra England and Judy Kearley, where 

he burned their bodies in an abandoned farm house after kidnapping and killing 
Case No. 6-09-14 

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them. At the time of the murders, Shepherd was on parole1

 from a twelve to fiftyyear prison term imposed from a 1986 conviction in Hancock County on one 

count of theft, two counts of aggravated robbery, and one count of rape. 

Subsequently, Shepherd entered a not guilty plea to both counts in the indictment. 

{¶3} On December 12, 2008, Shepherd withdrew his not guilty pleas and 

entered a guilty plea to both counts in the indictment, and the trial court sentenced 

him to consecutive life prison terms, to be served consecutively to the remainder 

of his prison term in Hancock County. The trial court filed its judgment entry of 

sentencing on December 15, 2008. Subsequently, Shepherd appealed the trial 

court’s sentence. 

{¶4} Furthermore, on December 11, 2008, in Wyandot County case 

number 08-CR-0065, Shepherd entered a guilty plea to one count of aggravated 

murder in violation of R.C. 2903.01(B), an unclassified felony, for the slaying of 

Claradel Keller. Subsequently, in February 2009, the Wyandot County court 

sentenced Shepherd to a life prison term, to be served consecutively to the life 

sentences imposed in Hardin County. 

{¶5} In July 2009, in State v. Shepherd, 3d Dist. No. 6-08-16, 2009-Ohio3315, this Court remanded for resentencing in Hardin County case number CRI 

 

1

 We note that, even though the concept of parole was replaced by postrelease control in 1996, at the time 

of Shepherd’s conviction and sentence in Hancock County, parole was still utilized. See State v. Martello, 

97 Ohio St.3d 398, 2002-Ohio-6661, ¶¶10-11. 
Case No. 6-09-14 

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20082218, finding that the trial court erred in sentencing Shepherd pursuant to 

R.C. 2929.14(E), where that section was rendered unconstitutional in Foster, 109 

Ohio St.3d 1. 

{¶6} In July 2009, the trial court held a resentencing hearing, at which 

Shepherd requested new trial counsel. The following colloquy then took place 

between Shepherd, his trial counsel, and the trial court: 

Trial Counsel: Mr. Shepherd has advised me today that he no 

longer wishes me as his court-appointed lawyer. * * * The 

reason for that, as expressed to me, is that he no longer values or 

trusts my opinion or advice on matters that are pending before 

this Court * * *. He believes that our relationship is strained to 

the point that he can no longer confide in me. 

Trial Court: Mr. Shepherd? 

* * * 

Shepherd: Just basically what he just said. I’ve been going 

through my papers and stuff, the documents concerning my 

case, and I’ve seen stuff like in my discovery that I don’t have 

that he signed for and I never had. 

* * * 

Trial Court: We’re here for a very limited purpose today, Mr. 

Shepherd, and that’s to sentence. 

* * * 

Shepherd: Right. 

Trial Court: So do you have some new evidence that’s going to 

be brought before the Court that you believe is going to change 

the sentence of the Court? 
Case No. 6-09-14 

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Shepherd: I don’t understand. I don’t. I don’t want this man 

representing me legally, sign any papers, or speaking to 

anybody. I don’t understand what you’re talking about. 

* * * 

Trial Court: Mr. Shepherd, you and I both understand each 

other, and the fact is - 

Shepherd: No we don’t. 

Trial Court: Yeah, the fact is that you know a lot more than 

you’re ever going to admit to, and you understand what’s going 

on, and the Court understands what’s going on. 

Shepherd: What I am saying is this, okay, as far as what’s going 

on now, it’s their saying something about some technical reason 

why I was brought back into court. Some technical reason or 

something like that. 

Trial Court: And I’m going to address that. 

Shepherd: But what I’m saying is this, being at the court, there 

was also a mistake made and it’s opened back up for my, for me 

also. I would like - 

Trial Court: No, only as to sentencing Mr. Shepherd, you’re not 

- 

Shepherd: Right. I understand. 

Trial Court: listening to me. It has nothing to do with your 

convictions. Your plea of guilty. 

Shepherd: But if I want to reconsider my plea because - 

Trial Court: No, no. That’s not possible. Not in this court, not 

today, not with anybody representing you. That is not an option 

Mr. Shepherd. 
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Shepherd: * * * I do not want this man on record representing 

me in this trial, in this case. 

Trial Court: Okay. 

Shepherd: in any aspect. 

* * * 

Trial Court: An indigent defendant has a right to competent 

counsel, not a right to counsel of his own choosing. * * * There 

is no constitutional right to a meaningful attorney-client 

relationship. * * * Rather, an indigent defendant is entitled to 

the appointment of substitute counsel only upon a showing of 

good cause, such as conflict of interest, a complete breakdown in 

communication, or an irreconcilable conflict which leads to an 

apparently unjust result; therein being the crux of the whole 

thing. To discharge a court-appointed attorney, the defendant 

must demonstrate to the Court justifiable cause for both the 

discharge of the appointed counsel and the request for 

appointment of a new counsel. The existence of hostility, 

intention, or personal differences which do not rise to the level of 

interfering with the preparation of a defense, and we’re way past 

that, are not sufficient to justify discharging a court-appointed 

counsel. The Court is, in fact, denying your motion to discharge 

Mr. Grzybowski. He is going to continue to be there and 

represent you as best he can, considering the limited purpose 

that we’re here today. 

(Resentencing Hearing tr., pp. 2-7). Subsequently, the trial court resentenced 

Shepherd to consecutive life prison terms, to be served consecutively to the 

remainder of his sentenced imposed in Hancock County, and the life sentence 

imposed in Wyandot County. 
Case No. 6-09-14 

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{¶7} It is from this sentence that Shepherd appeals, presenting the 

following assignments of error for our review. 

Assignment of Error No. I 

THE TRIAL COURT ERRED BY SENTENCING THE 

DEFENDANT TO MAXIMUM, CONSECUTIVE SENTENCES 

EACH CONSECUTIVE TO A LIFE SENTENCE IMPOSED IN 

A THIRD CASE FROM ANOTHER COUNTY AND 

IMPOSING AN ADDITIONAL 26 YEARS FOR A PAROLE 

VIOLATION. 

Assignment of Error No. II 

THE TRIAL COURT’S RESENTENCING OF THE 

DEFENDANT UPON REMAND PURSUANT TO FOSTER

CONFLICTED WITH THE PRINCIPLES OF NORTH 

CAROLINA V. PEARCE IN THAT THE DEFENDANT 

RECEIVED A HARSHER SENTENCE. 

Assignment of Error No. III 

THE PROSECUTOR BREACHED THE NEGOTIATED PLEA 

AGREEMENT BY MAKING A RECOMMENDATION 

CONTRARY TO THE ORIGINAL PLEA AGREEMENT AND 

BY NOT FOLLOWING THROUGH WITH OTHER 

PROMISES MADE IN ORDER TO SECURE A PLEA 

AGREEMENT. 

Assignment of Error No. IV 

THE TRIAL COURT ERRED IN DENYING THE 

DEFENDANT A NEW ATTORNEY AT THE 

RESENTENCING HEARING IN VIOLATION OF HIS RIGHT 

SUFFICIENT TO [SIC] COUNSEL. 
Case No. 6-09-14 

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{¶8} Due to the nature of Shepherd’s argument and the fact that he 

addressed his first two assignments of error with only one argument, we elect to 

address his first and second assignments of error together. 

Assignments of Error Nos. I and II 

{¶9} In his first assignment of error, Shepherd argues that the trial court 

erred in sentencing him to maximum, consecutive life sentences, imposed 

consecutively to his life sentence in Wyandot County and consecutively to the 

remainder of his sentence in Hancock County. In his second assignment of error, 

Shepherd argues that the trial court erred in imposing a harsher sentence upon his 

Foster resentencing in violation of Pearce, 395 U.S. 711. Specifically, Shepherd 

contends in these two assignments of error that, because his conviction in 

Wyandot County was known at the time of his initial sentencing, and because the 

trial court did not impose his sentence consecutively to his Wyandot County 

sentence at the original sentencing, the trial court imposed a harsher sentence upon 

resentencing by ordering his consecutive life sentences to be served consecutively 

to his Wyandot County life sentence and failed to make the required findings for 

imposing the harsher sentence, thus requiring his sentence to be vacated and this 

matter remanded for resentencing. We disagree. 
Case No. 6-09-14 

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

court’s sentencing decision. 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. 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). 

{¶11} Pursuant to the United States Supreme Court’s decision in Pearce, 

395 U.S. 711, a trial court violates the Due Process Clause of the Fourteenth 

Amendment to the United States Constitution when it imposes a harsher sentence 

based upon vindictiveness when resentencing a defendant. See, also, Alabama v. 

Smith, (1989) 490 U.S. 794 (finding that, however, no presumption of 

vindictiveness arises when a sentence imposed after trial is greater than that 

previously imposed after a guilty plea); State v. Troglin, 3d Dist. No. 14-06-57, 

2007-Ohio-4368, ¶19. There is a presumption of vindictiveness when the same 

 

2

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

Ohio-4912, established 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 our decision in this 

case would be identical under the Kalish plurality’s two-part test. 
Case No. 6-09-14 

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judge imposes a harsher sentence following a successful appeal. Id. at ¶19, citing 

Pearce, 395 U.S. at 724. An enhanced sentence upon remand is not per se 

prohibited, Wasman v. U.S. (1984), 468 U.S. 559, 568, but “the reasons for the 

harsher sentence must appear on the record and must be ‘based upon objective 

information concerning identifiable conduct on the part of the defendant occurring 

after the time of the original sentencing proceeding.”’ State v. Wagner, 3d Dist. 

No. 14-06-30, 2006-Ohio-6855, ¶8, quoting Pearce, 395 U.S. at 726. 

{¶12} However, this Court has previously found that the traditional review 

of vindictiveness for harsher sentences imposed upon resentencing is not 

specifically applicable to a resentencing pursuant to Foster, where the original 

sentence has not been found to be in error, but to be void. See Wagner, 2006-

Ohio-6855, at ¶10. In Wagner, we stated that: 

[W]e are reluctant to endorse the imposition of additional 

required findings upon the trial courts of the district in resentencings under Foster-particularly where it is either apparent 

or can be readily presumed that the original sentence was the 

result of constraint imposed by a sentencing factor which the 

Supreme Court of Ohio subsequently determined to be void; or 

where the trial court appears to have re-evaluated the record or 

considered additional factors at the re-sentencing. 

Id at ¶11. Furthermore, any presumption of vindictiveness is rebutted when the 

trial court imposes a harsher sentence upon the consideration of a defendant’s 

conviction received between the time of the original sentencing and the 

resentencing, even where the trial court was aware of the charges at the time of the 
Case No. 6-09-14 

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original sentencing, but a final conviction and sentence had yet to be entered. 

Wasman, 468 U.S. at 569-570. 

{¶13} In the case at bar, Shepherd entered a guilty plea to one count of 

aggravated murder in Wyandot County on December 11, 2008. He was 

subsequently sentenced in Hardin County on December 12, 2008, with the 

judgment entry of sentencing being filed on December 15, 2008. However, 

Shepherd was not sentenced in Wyandot County until February 2009, after his 

original sentence was imposed in Hardin County, but prior to his resentencing. 

Accordingly, although his entry of a guilty plea may have been filed in December 

2008, just prior to his original sentencing in Hardin County, there was no final 

conviction until sentencing was imposed, State v. Baker, 119 Ohio St.3d 197, 

2008-Ohio-3330, ¶18 (“a judgment of conviction is a final appealable order under 

R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding 

of the court upon which the conviction is based; (2) the sentence; (3) the signature 

of the judge; and (4) entry on the journal by the clerk of court”) (emphasis added), 

meaning that there was no final conviction in Wyandot County at the time of his 

original sentencing in Hardin County. Accordingly, because a traditional review 

for vindictiveness is not applicable under a Foster resentencing, and because the 

trial court’s imposition of a harsher sentence was based upon a conviction received 

between the time of the original sentence and the resentencing, thereby rebutting 
Case No. 6-09-14 

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any presumption of vindictiveness, we find there to be no error in ordering 

Shepherd’s life sentences to be served consecutively to his conviction in Wyandot 

County. The trial court resentenced Shepherd anew, and it was simply his 

misfortune that an additional conviction was present on the record to which the 

trial court could order its sentence consecutive. Furthermore, because Wyandot 

County imposed its life sentence consecutively to the life sentence imposed in this 

case, any potential error in this case would not be prejudicial. 

{¶14} Accordingly, we overrule Shepherd’s first and second assignments 

of error. 

Assignment of Error No. III 

{¶15} In his third assignment of error, Shepherd argues that the State 

breached the plea agreement. Specifically, he contends that the State failed to 

pursue charges against his wife, Brandy Shepherd, in regards to her involvement 

in the murders, and that it argued at resentencing that his life sentences be served 

consecutively to his Wyandot County sentence, both in violation of the plea 

agreement. 

{¶16} Initially, we note that Shepherd raised this same issue in his first 

appeal that the State breached the plea agreement by failing to pursue charges 

against Brandy. Consequently, because Shepherd has already raised the issue and 

we have already decided there was no breach of the plea agreement, this argument 
Case No. 6-09-14 

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is barred by res judicata. State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, 

syllabus (finding that “[u]nder the doctrine of res judicata, a final judgment of 

conviction bars a convicted defendant who was represented by counsel from 

raising and litigating in any proceeding, except an appeal from that judgment, any 

defense or any claimed lack of due process that was raised or could have been 

raised by the defendant at the trial, which resulted in that judgment of conviction, 

or on an appeal from that judgment.”) See, generally, State v. Driskill, 3d Dist. 

Nos. 10-08-10, 10-08-11, 2009-Ohio-2100, ¶23. 

{¶17} A plea agreement is a contract between the prosecution and the 

defendant and is governed by principles of contract law. State v. Smith, 3d Dist. 

No. 11-09-02, 2009-Ohio-3154, ¶7, citing State v. Milligan, 3d Dist. No. 16-08-04, 

2008-Ohio-4509, ¶16. When reviewing questions involving contract 

interpretation, appellate courts use a de novo standard of review, Graham v. 

Drydock Coal Co., 76 Ohio St.3d 311, 313, 1996-Ohio-393, and any ambiguous 

terms in the plea agreement are construed against the State. Smith, 2009-Ohio3154, at ¶9, citing State v. Blaine, 4th Dist. No. 03CA9, 2004-Ohio-1241, ¶12; 

United States v. Harvey (C.A.4, 1986), 791 F.2d 294, 300. Moreover, when a 

guilty plea “rests in any significant degree on a promise or agreement of the 

prosecutor, so that it can be said to be part of the inducement or consideration, 

such promise must be fulfilled.” Santobello v. New York (1971), 404 U.S. 257, 
Case No. 6-09-14 

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262. Accordingly, where the State fails to abide by the terms of a plea agreement, 

the defendant may be entitled to withdraw his guilty plea or to the specific 

performance of the agreement. State v. Crump, 3d Dist. No. 8-04-24, 2005-Ohio4451, ¶10. 

{¶18} Here, the plea agreement between the State and Shepherd provided 

that the State would not seek the death penalty, but that it would seek the 

imposition of life sentences for both counts, to be served consecutively. No 

agreement was made as to whether the State would seek to have the sentences in 

this case imposed consecutively to a sentence in Wyandot County. Moreover, at 

the time of the original sentencing, a sentence had yet to even be imposed in 

Wyandot County. Therefore, because there was no agreement on the matter, the 

State was free at resentencing to request that Shepherd’s life sentences be served 

consecutively to his sentence in Wyandot County. 

{¶19} Accordingly, we overrule Shepherd’s third assignment of error. 

Assignment of Error No. IV 

{¶20} In his fourth assignment of error, Shepherd argues that the trial court 

erred in denying his motion for a new attorney at resentencing. Specifically, 

Shepherd asserts that the trial court failed to conduct a reasonable inquiry into his 

claim of dissatisfaction with his trial counsel. We disagree. 
Case No. 6-09-14 

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{¶21} The substitution of counsel is within the discretion of the trial court, 

and will not be overturned by the appellate court absent an abuse of that 

discretion. State v. Kirk, 3d Dist. No. 14-06-28, 2007-Ohio-1228, ¶56, citing 

Wheat v. U.S. (1988), 486 U.S. 153. An abuse of discretion connotes more than an 

error of law or judgment and implies that the trial court acted unreasonably, 

arbitrarily, or unconscionably. State v. Nagle (2000), 11th Dist. No. 99-L-089, 

2000 WL 777835, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 

When applying an abuse of discretion standard, a reviewing court may not simply 

substitute its judgment for that of the trial court. Id. 

{¶22} ‘“[W]hile the right to select and be represented by one’s preferred 

attorney is comprehended by the Sixth Amendment, the essential aim of the 

Amendment is to guarantee an effective advocate * * * rather than to ensure that a 

defendant will inexorably be represented by the lawyer whom he prefers.”’ State 

v. Jones, 91 Ohio St.3d 335, 342, 2001-Ohio-57, quoting Wheat, 486 U.S. at 159. 

Accordingly, while a defendant has a Sixth Amendment right to competent 

counsel, he has no right to counsel of his own choosing. Kirk, 2007-Ohio-1228, at 

¶57, citing Thurston v. Maxwell (1965), 3 Ohio St.2d 92, 93. Furthermore, a 

defendant’s right to competent trial counsel does not also include the right to a 

“meaningful relationship” with his attorney. State v. Blankenship (1995), 102 

Ohio App.3d 534, 558, quoting Morris v. Slappy (1983), 461 U.S. 1, 13. 
Case No. 6-09-14 

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{¶23} An indigent defendant is entitled to the discharge of his attorney 

only upon a showing of good cause, ‘“such as a conflict of interest, a complete 

break-down in the attorney-client relationship or an irreconcilable conflict which 

leads to an apparently unjust result.”’ State v. McDowell, 3d Dist. No. 2-07-26, 

2008-Ohio-1339, ¶10, quoting Blankenship, 102 Ohio App.3d at 558. See, also, 

State v. White, 3d Dist. No. 9-98-52, 1999-Ohio-847. Additionally, a trial court is 

under a duty to inquire into any claims of dissatisfaction with appointed counsel 

made by a defendant. State v. Johnson, 179 Ohio App.3d 151, 2008-Ohio-5769, 

¶48, citing State v. Deal, (1969), 17 Ohio St.2d 17, syllabus. This “inquiry may be 

brief and minimal but it must be made.” State v. King (1995), 104 Ohio App.3d 

434, 437, citing State v. Prater (1990), 71 Ohio App.3d 78; Deal, 17 Ohio St.3d 

17. 

{¶24} In the case sub judice, Shepherd’s trial counsel informed the trial 

court during the resentencing hearing that Shepherd no longer wished to retain him 

as counsel. The trial court inquired of Shepherd as to his reason for wanting new 

counsel, to which he replied that he failed to receive discovery documents from 

counsel. Additionally, it appears from the record that Shepherd misunderstood the 

reason for the proceedings, as he expressed a desire to withdraw his plea, and the 

trial court promptly informed him that the proceedings were only for the very 

limited scope of resentencing. Following the trial court’s multiple explanations to 
Case No. 6-09-14 

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Shepherd that the purpose of the hearing was for resentencing only, the trial court 

then discussed the applicable law for appointing substitute counsel and then 

denied the motion. 

{¶25} Upon review of the record, we find that the trial court conducted a 

sufficient inquiry into the reasons for Shepherd’s dissatisfaction with his trial 

counsel. Although the trial court merely let him explain the reasons for his desire 

to obtain substitute counsel, the trial court’s duty of inquiry is not expansive, and 

we find that Shepherd’s explanation provided the trial court with sufficient 

information to properly rule on the motion. 

{¶26} Moreover, we also find that the trial court did not abuse its discretion 

in denying the motion. Shepherd’s reason for wanting to discharge his trial 

counsel, because he allegedly failed to provide him certain discovery materials, is 

not sufficient to create ‘“a complete break-down in the attorney-client relationship 

or an irreconcilable conflict.’” McDowell, 2008-Ohio-1339, at ¶10, quoting 

Blankenship, 102 Ohio App.3d at 558. Furthermore, Shepherd’s entry of a guilty 

plea, instead of going to trial, lessens the significance of an alleged failure of trial 

counsel to provide him specific discovery materials, and Shepherd presented no 

evidence that could have led to a conclusion that his trial counsel would not have 

been an effective advocate at the resentencing hearing. Instead, the complaint 

made by Shepherd pertained more to the level of trust he had in his attorney, 
Case No. 6-09-14 

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thereby relating to his desire for a “meaningful relationship” with his attorney, a 

right not guaranteed by the Sixth Amendment. Blankenship, supra. 

{¶27} Accordingly, we overrule Shepherd’s fourth assignment of error. 

{¶28} Having found no error prejudicial to the appellant herein, in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

PRESTON, J., concurs. 

/jlr 

WILLAMOWSKI, P.J. Concurring Separately. 

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

emphasize that the appropriate standard of review was applied. In his first and 

second assignments of error, Shepherd alleges that the trial court abused its 

discretion in imposing a harsher sentence upon remand by ordering it to be served 

consecutive to a sentence in another court. Shepherd’s appeal of his felony 

sentence was not pursuant to R.C. 2929.12, which, in my opinion would require an 

abuse of discretion standard. Thus, the standard used to review this case, as set 

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