State v. May
2012 Ohio 2766
Ohio Ct. App.2012Background
- Defendant Dennis May pleaded guilty to five amended counts of third-degree sexual battery involving a child under 13; the state charged 34 offenses including rape and kidnapping with sexual motivation, all other counts nolled.
- The trial court conducted a sentencing hearing on August 31, 2011, with defense and state presenting arguments on factors under R.C. 2929.11 and 2929.12.
- The court imposed consecutive prison terms totaling six years for counts 13–15, plus a five-year community-control sanction for counts 16–17 to commence after release from prison.
- Defendant began offending when the victim was five years old and continued until age under 13; he refused to participate in the Wood County community-based correctional facility eligibility interview.
- After sentencing, the court advised that upon release from prison, defendant would be evaluated for community-based correctional program eligibility and, if not eligible, would receive sex-offender treatment, polygraph examinations, and supervision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consecutive sentences required judicial findings under 2929.14(C)(4). | State argued HB86 amended 2929.14(C)(4) requiring findings. | May contends findings were not made. | Assignment of Error I overruled; amendments not retroactive to pre-Sept. 30, 2011 sentences. |
| Whether five-year community-control sanctions must commence immediately. | State supports consecutive commencement as permitted. | May argues sanctions should start with sentencing. | Assignment of Error II overruled; sanctions may commence after prison term. |
| Whether polygraph examinations as a condition of community control were improper. | Polygraph monitoring reasonably related to treatment and supervision. | Considers polygraph as an overbroad condition. | Assignment of Error III overruled; polygraph condition reasonable for adult sex offender. |
Key Cases Cited
- State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (excised judicial-fact-finding requirement; later amendments address consecutive sentences)
- State v. Hodge, 128 Ohio St.3d 1 (2010-Ohio-6320) (no pre-existing judicial findings required unless GA enacts new law)
- State v. Connor, 2004-Ohio-6752 (5th Dist. 2004) (court may impose mixed sanctions (prison and community control) consecutively)
- State v. Calliens, 2012-Ohio-703 (8th Dist. 2012) (HB 86 amendments not retroactive to pre Sept. 30, 2011 sentences)