Billiter v. O'FarrellBilliter v. O'Farrell
For Petitioner: Fred Billiter, Pro Se, #383-177, Noble Correctional Institution, 15708 McConnelsville Rd., Caldwell, OH 43724
For Respondent: Robert R. Stephenson II (0034616), Assistant Prosecuting Attorney, 125 E. High Avenue, New Philadelphia, OH 44663
Delaney, P.J.
{¶2} Before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears that reasonable minds can come to only one conclusion of the evidence, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the summary judgment motion is made.
{¶3} Petitioner was indicted on multiple counts of rape of a child under the age of thirteen, gross sexual imposition, and pandering obscenity involving a minor. A plea agreement was reached. To prevent the victim from having to testify, the State agreed to amend the indictment. All but two counts of rape were dismissed. The counts that remained did not contain a force specification of a child under thirteen. For this reason, the potential penalty dramatically dropped from life in prison without parole to a potential penalty of three to ten years in prison on each count. The amended indictment also contained one count of gross sexual imposition and one count of pandering obscenity involving a minor.
{¶4} The trial court agreed to accept the amendments to the indictment and impose a total sentence of 31 years in prison on the condition that Petitioner agreed to waive any appeal as it related to consecutive sentences and agreed to be declared a sexual predator. Petitioner pled guilty to the charges as amended and received the
{¶5} The basis of the instant petition is that Petitioner argues the trial court lacked jurisdiction to impose the sexual predator classification without conducting a hearing pursuant to
{¶6} “But where a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition and mandamus will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions.” State ex rel. Dannaher v. Crawford, (1997) 78 Ohio St.3d 391, 393, 678 N.E.2d 549.
{¶7} Courts have addressed the argument raised by Petitioner.
{¶8} The argument has been held it to be without merit.
{¶9} The Ninth District Court of Appeals held, “[W]e are not persuaded that
{¶10} “Nor are we convinced that the trial court must engage in a colloquy with a defendant who stipulates to a sexual predator classification and make a finding that the stipulation was made knowingly, voluntarily, and intelligently, as would be the case for a criminal guilty plea. A sexual predator classification hearing is civil in nature, not
{¶11} Likewise, the Seventh District Court of Appeals has held, “[A] trial court does not need to hold a sexual predator hearing and make the findings required by statute when a defendant stipulates that he is a sexual predator. State v. McCarthy, 7th Dist. No. 01 BA 33, 2002-Ohio-5185, ¶ 22. This is because a stipulation is a “voluntary agreement between opposing parties concerning some relevant point.” Black‘s Law Dictionary (7th Ed.1999), 1427. “[P]arties are bound as to all matters of fact and law concerned in their stipulations.” State v. Folk (1991), 74 Ohio App.3d 468, 471, 599 N.E.2d 334.” State v. Gilliam 7th Dist. No. 02CA 783, 2004-Ohio-3195, ¶ 28.
{¶12} In this case, the record reflects Petitioner agreed to the sexual predator classification. We also find the trial court did not patently and unambiguously lack jurisdiction to declare Petitioner a sexual predator. Further, Petitioner could have appealed the designation providing an adequate remedy at law which precludes the issuance of a writ of prohibition. State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252, ¶ 15.
{¶13} Petitioner argues he did not have an adequate remedy at law because he was not permitted to appeal his sentence; however, his agreement to forego an appeal as part of the plea was strictly limited to not appealing the consecutive sentences.
{¶15} Petitioner was not precluded from appealing the sexual predator classification. As the cases above note, the Supreme Court has found the sexual offender classification is civil action which is separate from the criminal sentence. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202.
{¶16} Even assuming arguendo Petitioner was prevented from appealing his sentence, the sexual predator classification was not part of the sentence. It is a separate civil proceeding.
{¶17} Because the trial court did not patently and unambiguously lack jurisdiction to impose the sexual predator classification and because Petitioner has or had an adequate remedy at law by way of appeal, the writ of prohibition cannot issue. We find Respondent is entitled to judgment as a matter of law and therefore grant summary judgment in favor of Respondent.
{¶18} PETITION FOR WRIT DENIED.
{¶19} SUMMARY JUDGMENT GRANTED IN FAVOR OF RESPONDENT
{¶20} COSTS TO PETITIONER.
Farmer, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
PAD:kgb
JUDGMENT ENTRY
For the reasons stated in the Memorandum-Opinion on file, Petitioner‘s Writ of Prohibition is hereby DENIED. Respondent‘s Motion for Summary Judgment is GRANTED. Costs taxed to Petitioner.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE