State v. BeaversState v. Beavers
Rendered on August 14, 2012
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Bleile, Witte & Lape, and Stephenie N. Lape, for appellant.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Defendant-appellant, Kevin J. Beavers (“appellant“), appeals from a decision of the Franklin County Court of Common Pleas denying his post-sentence motion to withdraw guilty plea. For the reasons that follow, we affirm that judgment.
{¶ 2} On April 12, 2010, appellant was indicted on four counts of importuning and one count of disseminating matter harmful to juveniles. All five charges are felonies of the fifth degree. On November 16, 2010, appellant entered a plea of guilty to one count of importuning and one count of disseminating matter harmful to juveniles. A pre-sentence investigation report was ordered and sentencing was scheduled for January 5, 2011. At the sentencing hearing, appellant was placed on community control (sex offender caseload) for a period of two years. Appellant was also determined to be a Tier I
{¶ 3} On September 13, 2011, appellant filed a motion to withdraw guilty plea, alleging the criminal statute for disseminating matter harmful to juveniles,
THE TRIAL COURT ERRED IN OVERRULING DEFENDANT‘S MOTION TO WITHDRAW PLEA.
{¶ 4} In his sole assignment of error, appellant argues the trial court erred in denying his motion to withdraw guilty plea because the statute on disseminating matter harmful to juveniles is unconstitutionally vague, which in turn renders the statute void and his conviction a manifest injustice. Appellant further argues the presence of manifest injustice negates any timeliness requirement for the filing of his motion to withdraw.
{¶ 5} Appellant‘s void-for-vagueness argument focuses specifically on the affirmative defense provision found in
{¶ 6} Appellant argues the term “other proper purpose” as used in this provision is not defined, nor is “a bona fide medical, scientific, educational, governmental, [or] judicial [purpose].” Appellant contends this failure forces persons engaging in the activities described in
{¶ 7} A post-sentence motion to withdraw guilty plea may be made only to correct a manifest injustice.
{¶ 8} “A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice.” State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. A motion pursuant to
{¶ 9} ” ‘An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.’ ” State ex rel. O‘Brien v. Heimlich, 10th Dist. No. 08AP-521, 2009-Ohio-1550, ¶ 24, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus. ” ‘A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality.’ ” State ex rel. O‘Brien at ¶ 24, quoting State ex rel. Dickman at 147. The party alleging a statute is unconstitutional must prove that assertion beyond a reasonable doubt in order to prevail. State v. Anderson, 57 Ohio St.3d 168, 171 (1991).
{¶ 10} ” ‘Under the vagueness doctrine, statutes which do not fairly inform a person of what is prohibited will be found unconstitutional as violative of due process.’ ”
{¶ 11} The provision at issue which appellant asserts is void for vagueness does not address the criminal offense itself, which is defined in
(A) No person, with knowledge of its character or content, shall recklessly do any of the following:
(1) Directly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles any material or performance that is obscene or harmful to juveniles;
* * *
(C)(1) It is an affirmative defense to a charge under this section, involving material or a performance that is obscene or harmful to juveniles, that the material or performance was furnished or presented for a bona fide medical, scientific, educational, governmental, judicial, or other proper purpose, by a physician, psychologist, sociologist, scientist, teacher, librarian, clergyman, prosecutor, judge, or other proper person.
(Emphasis added.)
{¶ 12} In reading
{¶ 13} The record indicates that appellant disseminated harmful material to a police officer posing as a 15-year-old boy, thereby demonstrating that appellant committed conduct which is clearly statutorily prohibited conduct under
{¶ 14} Furthermore, appellant is without standing to challenge the statute except as it is being applied to him. Gandee v. Glaser, 785 F.Supp. 684, 694 (S.D.Ohio 1992). See also State of Ohio/City of Hamilton v. Hendrix, 144 Ohio App.3d 328 (12th Dist.2001) (in void for vagueness challenges based on alleged due process violations, a challenger typically has standing to challenge the statute only as to its application to his conduct; a challenger must show the alleged vagueness of the statute actually deprived him of due process of law, in light of his conduct).
{¶ 15} Appellant has never made the argument that his actions constitute (or could constitute) an “other proper purpose” or that he is (or could be) an “other proper person” who would be justified in disseminating the harmful material. He has not argued that he believed his conduct was justified, only to be informed otherwise, as he has not attempted to apply the affirmative defense to his circumstances, nor has he claimed that the affirmative defense applied to him. Under the law, he may only challenge the statute as it
{¶ 16} The underlying principle of the void-for-vagueness doctrine is that no person “shall be held criminally responsible for conduct which he could not reasonable understand to be proscribed.” Columbus v. Rogers, 41 Ohio St.2d 161, 164 (1975), quoting United States v. Harriss, 347 U.S. 612, 617 (1954). Here, appellant cannot argue that he could not reasonably understand that his conduct was proscribed. The statute clearly provides a person of ordinary intelligence with fair notice that his contemplated conduct is prohibited under the statute.
{¶ 17} Moreover, claiming that an affirmative defense which he has not attempted to assert is void for vagueness is far different from claiming that the provision of the statute setting forth the elements of the crime is so vague that he could not know that his conduct was forbidden. Any purported vagueness in the language of the affirmative defense does not deprive this challenger of due process in light of his particular conduct, and it is unnecessary for the court to determine whether the affirmative defense provision is in fact void for vagueness.
{¶ 18} Appellant further argues that similar language in
{¶ 19} Finally, appellant challenges the determination that his motion to withdraw guilty plea should be denied because it was untimely, arguing timeliness is not required. While conceding timeliness is a requirement in a post-conviction relief petition, appellant
{¶ 20} The timeliness of appellant‘s post-sentence motion to withdraw guilty plea is certainly one of the factors to be considered. “An undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under
{¶ 21} Here, appellant filed his motion to withdraw guilty plea nearly ten months after he entered his guilty plea and over eight months after he was sentenced. Appellant provided no explanation as to the reason for the delay in filing his motion. It was not an abuse of discretion for the trial court to consider this factor in deciding to deny appellant‘s motion to withdraw guilty plea.
{¶ 22} Based upon the foregoing analysis, appellant has not demonstrated that the statute, as applied to him, is unconstitutional or that the trial court erred in considering the timeliness of the filing of the motion as a factor in its decision, and he has failed to demonstrate a manifest injustice. Accordingly, we find the trial court did not abuse its discretion in denying appellant‘s motion to withdraw guilty plea. Therefore, we overrule appellant‘s single assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRYANT and KLATT, JJ., concur.
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