STATE OF OHIO v. LINDELL W. BRUNNING, JR.
No. 95376
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 21, 2011
[Cite as State v. Brunning, 2011-Ohio-1936.]
BEFORE: S. Gallagher, J., Kilbane, A.J., and E. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-532770 and CR-532822. RELEASED AND JOURNALIZED: April 21, 2011
JUDGMENT: AFFIRMED IN PART; REVERSED AND VACATED IN PART
Richard A. Neff
614 W. Superior Avenue
Suite 1310
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{1} Appellant Lindell Brunning (“Brunning“) appeals his conviction and sentence, after pleading guilty, in Cuyahoga County Common Pleas Court Case Nos. CR-532770 and CR-532822. For the following reasons, we reverse Brunning‘s conviction and vacate his sentence in CR-532770, and affirm the trial court‘s judgment in CR-532822.
{3} In CR-532822, the state advanced 18 separate felony counts. Brunning pleaded guilty to Counts 4, 12, and 18 of the indictment. The state dismissed all other counts. Count 4 was an unlawful sexual conduct with a minor charge with the offender being ten years or older than the victim. Counts 12 and 18 were two sexual battery charges. All three counts were based on three separate incidents against the same victim, occurring sometime between June and September 2009. As part of the plea deal, the state amended the three counts by removing the sexually violent predator specifications.
{5} Brunning raises three assignments of error relating to both cases. The first two assignments of error deal with CR-532770 and will be addressed in reverse order.
{6} The second assignment of error is as follows: “Appellant‘s conviction in case 10-CR-532770 must be vacated because the law on which it is based, Ohio‘s Adam Walsh Act, is unconstitutional as applied to appellant.” We find that Brunning‘s second assignment of error has merit.
{7} The crux of the charges against Brunning in CR-532770 was that he failed to verify and notify the sheriff of a change in his primary address. As part of those charges, the state claimed Brunning falsified documents by providing the sheriff with a wrong address.
{8} The Supreme Court held that the reclassification under the AWA was unconstitutional if offenders had a duty to report from a prior court order under Megan‘s Law. State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 22. Further, any reporting violation based on an AWA registration requirement that is inapplicable to the defendant is unlawful. State v. Gingell, Slip Opinion No. 2011-Ohio-1481 (reversing defendant‘s conviction for failing to verify residency under the heightened AWA standards based on Bodyke).
{9} Likewise, in State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83, this court presciently held that the reclassification cannot serve as the basis for reporting violations if an offender had a duty to register under Megan‘s Law from a prior order of a court. Id. at ¶ 11. The majority noted that Bodyke does not create “a fictitious distinction between an unlawful reclassification ‘that imposes a more onerous verification requirement’ and a reclassification that does not impose heightened verification requirements. Bodyke deemed reclassifications under the AWA unlawful, the only condition being that the offender has ‘already been classified by court order under former law.‘” Id. at ¶ 10, fn. 1.
{11} In the instant case, we first note that neither the trial court nor Brunning had the benefit of the Bodyke decision during the pendency of the trial court‘s proceedings. Brunning‘s reclassification under the AWA is contrary to the law. Brunning‘s conviction arising from reporting violations under the AWA is therefore also contrary to law. Gingell, 2011-Ohio-1481; see, also, State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880, ¶ 29; State v. Patterson, Cuyahoga App. No. 93096, 2010-Ohio-3715; State v. Jones, Cuyahoga App. No. 93822, 2010-Ohio-5004.
{12} The state argues that Brunning pleaded guilty and thereby waived any right to challenge his conviction based on the unconstitutionality of the law upon which it was based. The state cites to State v. Hayden, Cuyahoga App. No. 90474, 2008-Ohio-6279, at ¶ 6, for the proposition that a defendant cannot claim the indictment is insufficient after pleading guilty. While this is a correct statement of law, Brunning is not arguing that the indictment is
{13} Because of the foregoing analysis, we reverse Brunning‘s conviction in CR-532770. Brunning‘s conviction was predicated upon the reporting requirements held to be unconstitutional as applied to him. We vacate his sentence, and note that Brunning is subject to the reporting requirements established under Megan‘s Law.
{14} Brunning‘s first assignment of error is as follows: “(a) The defendant-appellant‘s guilty plea was not knowingly and voluntarily entered into since it was conditioned on false promises made by the State and the trial court. (b) The trial court erred when it failed to merge the offenses in case 10-CR-532770 for sentencing.” Because of our resolution of Brunning‘s second assignment of error, the first assignment of error is moot and we need not address the issues raised. See
{15} Brunning‘s third assignment of error is as follows: “The sentence imposed by the court is inconsistent with the principles and purpose of sentencing under the Ohio Revised Code and therefore is contrary to law.” Having vacated Brunning‘s conviction under
{16} This court has already recognized that we review felony sentences using the Kalish framework.2 State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In Kalish, the Ohio Supreme Court applied a two-prong approach to appellate review of felony sentences. We must ensure that the sentencing courts complied with all applicable rules and statutes in imposing a sentence to determine whether the sentence is clearly and convincingly contrary to law. Id. at 25. If the first prong is satisfied, we then review the trial court‘s decision under an abuse-of-discretion standard. Id.
{18} In the current case, we do not find Brunning‘s sentence contrary to law. The trial court sentenced him to the maximum consecutive sentences possible within the statutory range for his convictions. Brunning pleaded guilty to three third-degree felony counts, all of which are punishable by prison for a term between one to five years. Moreover, the trial court acknowledged in the sentencing entry that it considered all factors of law and found that the prison term was consistent with the purposes of
{19} We next must consider whether the trial court abused its discretion. The term “abuse of discretion” means “an unreasonable, arbitrary, or unconscionable action.” State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 47, 2009-Ohio-4149, 914 N.E.2d 159. It is “a discretion exercised to an end or purpose not justified by, and clearly against reason and
{20} Under current Ohio law, a trial court “now has the discretion and inherent authority to determine whether a prison sentence within the statutory range shall run consecutively or concurrently.” State v. Elmore, 122 Ohio St.3d 472, 480, 2009-Ohio-3478, 912 N.E.2d 582; State v. Bates, 118 Ohio St.3d 174, 178, 2008-Ohio-1983, 887 N.E.2d 328. Although trial courts have this discretion, the trial court must still consider the purposes of the felony sentencing statutes set forth in
{21} Brunning argues the trial court abused its discretion by imposing the maximum sentences to be served consecutively when offenders in similar situations received lesser prison terms. See State v. Omiecinski, Cuyahoga App. No. 90510, 2009-Ohio-1066 (sentencing defendant to an aggregate sentence of four years on three counts of sexual battery without describing the facts underlying the charges or whether the defendant was a repeat offender); State v. Felton, Cuyahoga App. No. 92295, 2010-Ohio-4105 (sentencing the defendant with a community control sanction for one count of sexual battery based on a single
{22} The trial court considered all the factors required under Ohio law and discussed the seriousness of the offense. The court was particularly troubled with the fact that Brunning‘s 25-year sentence for raping a child under the age of 13 did not deter him from recommitting a similar offense against another minor. The trial court further reviewed the presentence investigation report; heard arguments from counsel, including a review of mitigating factors; heard from Judith Huggins, who spoke on Brunning‘s behalf; and considered Brunning‘s remorse. In reviewing the record, we find that the trial court considered the statutory factors and did not abuse its discretion in imposing the maximum sentences to be served consecutively for an aggregate sentence of 15 years. We therefore overrule Brunning‘s third assignment of error.
{23} We vacate Brunning‘s sentence and reverse his conviction in CR-532770 and affirm the trial court‘s judgment in CR-532822.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and EILEEN A. GALLAGHER, J., CONCUR