State v. Dewitt
2012 Ohio 5162
Ohio Ct. App.2012Background
- Appellant Ryan Dewitt pled no contest to one count of gross sexual imposition (felony 3rd degree) on March 13, 2012 in Licking County.
- State moved to amend the bill of particulars to reflect a 60-month maximum rather than 36 months; amendment granted.
- Trial court found Dewitt guilty after plea and sentenced him to 36 months in prison, classifying him as a Tier II sexual offender.
- Appellant appeals, asserting (1) due process was violated by the amendment increasing the maximum sentence, (2) the judgment is not supported by the evidence and is against the weight of the evidence, and (3) the sentence contravenes Ohio law, including HB 86 considerations.
- Appellant did not object to the amendment at the time, and the sentence did not exceed the originally stated maximum; the appeal challenges the hearing and sentencing within the statutory range.
- Court-affirms the judgment of the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did amending the bill of particulars prejudice due process by exposing a greater maximum sentence? | Dewitt argues amendment increased potential punishment. | State maintained amendment was permissible and non-prejudicial. | First assignment overruled. |
| Is the conviction/sentence supported by sufficient evidence or against the weight of the evidence given a no-contest plea? | Dewitt asserts lack of evidence of mens rea motive. | Plea of no contest admits the indictment’s facts; weight/sufficiency review limited. | Second assignment overruled. |
| Is the sentence contrary to law given HB 86 and Kalish framework? | Sentence allegedly misapplied retroactivity and maximum terms. | Sentence within statutory range; no abuse of discretion under Kalish; HB 86 not retroactive for this offense. | Third assignment overruled. |
Key Cases Cited
- State v. Barnes, 94 Ohio St.3d 21 (2002) (plain-error review; no contest plea limits weight of evidence challenge)
- State v. Dereese, 2009-Ohio-6725 (2009) (plea of no contest admits indictment facts; sufficiency/weight not reviewable on appeal)
- State v. Hall, 2009-Ohio-6390 (2009) (no contest plea controls sufficiency/weight review)
- Kalish, 120 Ohio St.3d 23 (2008) (two-step review: compliance with law; then abuse-of-discretion)
- State v. Foster, 109 Ohio St.3d 1 (2006) (trial courts have discretion within statutory range; no findings for max/consecutive terms required)
- State v. Little, 2012-Ohio-2895 (2012) (HB 86 not retroactively applicable to this offense; Kalish framework applied)
- State v. Jackson, 2009-Ohio-4336 (2009) (plea of no contest admits facts; challenges to weight/sufficiency waived)