State v. DayState v. Day
APPEARANCES:
Timothy Young, State Public Defender, and Claire R. Cahoon, Assistant State Public Defender, Columbus, Ohio, for appellant.
Aaron E. Haslam, Adams County Prosecutor, West Union, Ohio, for appellee.
Kline, P.J.:
{¶1} Jonathon Day (hereinafter “Day“) appeals the judgment of the Adams County Court of Common Pleas. The trial court found Day guilty of Aggravated Assault in violation of
I.
{¶2} On September 28, 2007, an Adams County Grand Jury indicted Day for Felonious Assault in violation of
{¶3} Day authorized his public defender to enter into plea negotiations on the two separate charges. At a February 6, 2008 change of plea hearing, the trial court judge informed Day of his rights and the potential penalties Day faced for pleading guilty. In relevant part, the trial court judge wrongly said that a violation of
{¶4} At a March 24, 2008 change of plea hearing, the trial court judge again informed Day that а violation of
{¶5} At an April 11, 2008 hearing, the trial court sentenced Dаy to eighteen months in prison on the Aggravated Assault charge and five years in prison on the Gross Sexual Imposition charge, to be served consecutively for a total prison term of six-and-a-half years. Day‘s public defender did not object to the five-year prison sentence for violation of
{¶6} Day appeals the trial court‘s judgments, asserting the following four assignments of error: I. “The trial court committed plain error by convicting and sentencing Mr. Day to a five-year prison sentence, when his conviction under
II.
{¶7} In his first assignment of error, Day contends that the trial court committed plain error by sentencing him to five years in prison for violating
{¶8} Day did not object to the five-year prison sentence at the trial court level. Thus, he has forfeited all but plain error. See State v. Johnson, Washington App. No. 03CA11, 2004-Ohio-2236, at ¶8 (using a plain error analysis to determine whether a sentence was contrary to law); but, cf., State v. Boice, Washington App. No. 08CA24, 2009-Ohio-1755, at ¶4 (stating that
{¶9} Pursuant to
{¶10} “Appellate courts “apply a two-step approach [to review a sentence]. First, [we] must examine the sentencing court‘s compliance with all applicable rulеs and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision shall be reviewed under an abuse-of-discretion standard.“” State v. Smith, Pickaway App. No. 08CA6, 2009-Ohio-716, at ¶8, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶4 (alterations in original).
{¶11} Here, we find that Day‘s five-year prison sentence is clearly and convincingly contrary to law. See
{¶12} Further, we choose to correct the aforementioned plain error for the following reasons. First, “An action of a trial court that exceeds its authority qualifies as an instance of plain error in that it affects [Day‘s] substantial right * * * to have judicial proceedings conducted according to law.” Barnett, 131 Ohio App.3d at 142, citing State v. Richter (1993), 92 Ohio App.3d 395, 399. And second, it would be a manifest miscarriagе of justice for Day to serve five years in prison when the Ohio General Assembly determined that eighteen months is the maximum penalty for violating
{¶13} Other Ohio courts have noticed plain error in situations similar to the present case. See City of Cleveland v. Weems, Cuyahoga App. No. 82752, 2004-Ohio-476, at ¶34 (“We note as plаin error that the appellant was sentenced to the maximum sentence for a misdemeanor of the first degree, but was convicted of * * * a misdemeanor of the second degree. A sentence that exceeds the proscribed statutory maximum is void ab initio; therefore, we vacate the imposed sentence and remand this case for resentencing.“); Barnett, 131 Ohio App.3d at 142 (finding plain error when “the trial court lacked the discretion to impose probation on a matter that the General Assembly has clearly declared to be a nonprobationable offense“); State v. Burgermeister (Oct. 25, 1990), Cuyahoga App. No. 57649, unreported (finding plain error when the “sentence imposed by the trial court [was] wrong as a matter of law“).
{¶14} Accordingly, we sustain Day‘s first assignment of errоr, vacate Day‘s sentence for violation of
III.
{¶15} In his second assignment of error, Day contends that he received ineffective assistance of counsel. Specifically, Day argues that his attorney
{¶16} “‘In Ohio, a properly licensed attorney is presumed competent and the appellant bears the burden tо establish counsel‘s ineffectiveness.‘” State v. Countryman, Washington App. No. 08CA12, 2008-Ohio-6700, at ¶20, quoting State v. Wright, Washington App. No. 00CA39, 2001-Ohio-2473, unreported; State v. Hamblin (1988), 37 Ohio St.3d 153, 155-56, cert. den. Hamblin v. Ohio (1988) 488 U.S. 975. To secure reversal for the ineffective assistance of counsel, one must show two things: (1) “that counsel‘s performance was deficient* * * ” which “requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment[;]” and (2) “that the deficient performance prejudiced the defense* * *[,]” which “requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington (1984), 466 U.S. 668, 687. See, also, Countryman at ¶20.
{¶17} However, courts have modified the Strickland test for cases in which the defendant does not actually go to trial. “In the context of a guilty plea, the defendant must demonstrate that there is a reasonable probability that, but for his counsel‘s error, he would not have pleaded guilty and would have insisted on going to trial.” State v. Barnett, Portage App. No. 2006-P-0117, 2007-Ohio-4954, at ¶51, citing Hill v. Lockhart (1985), 474 U.S. 52, 58-59. This holding is equally
{¶18} Here, we cannot find ineffective assistance of counsel. Indeed, Day‘s attorney erred by not objecting to the statutorily improper five-year prison sentence. However, Day cannot demonstrate that he would have insisted on going to trial but for his attorney‘s error. Day pled no contest to Gross Sexual Imposition under the belief that he could face up to five years in prison. Therefore, it would be illogical to conclude that Day would have gone to trial had he known the actual maximum sentence was just eighteen months. Moreover, we have already vacated Day‘s five-yеar prison sentence in our resolution of his first assignment of error.
{¶19} Accordingly, we overrule Day‘s second assignment of error.
IV.
{¶20} In his third assignment of error, Day contends that the trial court erred by subjecting Day to the community notification requirements of
{¶21} To resolve this issue, we must interpret
{¶22} Initially, we note that “[t]he notification and registration duties imposed on sexual offenders are remedial and civil in nature and are not a part of the sentence.” State v. Blanchard, Cuyahoga App. No. 90935, 2009-Ohio-1357, at ¶7, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, at ¶32. Thus, even though we have vacated Day‘s sentence for violating
{¶23} Here, the trial court found Day guilty of Gross Sexual Imposition undеr
{¶24} Accordingly, we sustain Day‘s third assignment of error and direct the trial court to vacate the community notification requirement from Day‘s classification as a Sex Offender.
V.
{¶25} In his fourth assignment of error, Day contends that S.B. 10 violates various constitutional provisions. See, generally, Pletcher at ¶6-8 (discussing the changes to
{¶26} Day‘s arguments involve the interpretation оf various constitutional provisions as they relate to S.B. 10. Hence, Day‘s arguments are all legal questions that we review de novo. See State v. Downing, Franklin App. No. 08AP-48, 2008-Ohio-4463, at ¶6, citing Stuller v. Price, Franklin App. No. 03AP-30, 2003-Ohio-6826, at ¶14; State v. Green, Lawrence App. No. 07CA33, 2008-Ohio-2284, at ¶7.
{¶27} Statutes enacted in Ohio are “presumed to be constitutional.” State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, at ¶12, citing State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas (1967), 9 Ohio St.2d 159, 161. This presumption remains until one challenging a statute‘s constitutionality shows, “beyond reasonable doubt, that the statute is unconstitutional.” Ferguson at ¶12, citing Roosevelt Properties Co. v. Kinney (1984), 12 Ohio St.3d 7, 13.
{¶28} This court has already ruled against many of Day‘s constitutional challenges in numerous cases. We have found that S.B. 10 does not violate (1) the United States Constitution‘s prohibition on ex post facto laws or the Ohio Constitution‘s prohibition on retroactive laws; see State v. Coburn, Ross. App. No. 08CA3062, 2009-Ohio-632, at ¶8-13; State v. Randlett, Ross App. No. 08CA3046, 2009-Ohio-112, at ¶8-15; State v. Linville, Ross App. No. 08CA3051, 2009-Ohio-313, at ¶7-12; State v. Messer, Ross App. No. 08CA3050, 2009-Ohio-312, at ¶7-13; (2) the separation of powers doctrine inherent in Ohio‘s Constitution; see Coburn at ¶14-20; Randlett at ¶16-23; Linville at ¶19-27; Messer at ¶20-28;; and (3) the prohibition against double jeopardy. See Pletcher at ¶14-16; Messer at ¶29-31; Randlett at ¶24-27. We find no reason to reassess our determinations at this time.
{¶29} Further, Day argues that the residency restrictions set forth in S.B. 10 violate his right to due process. However, Day has failed to show that he has standing to assert this argument or that this argument is ripe for review.
{¶30} Here, the only information from the record regarding Day‘s current residence is that hе is incarcerated by the state of Ohio. “Ohio courts hold that, where the offender does not presently claim to reside “within 1,000 feet of a school, or that he was forced to move from an area because of his proximity to a school[,]” the offender “lacks standing to challenge the constitutionality” of the residency restrictions.” Messer at ¶36, quoting State v. Peak, Cuyahoga App. No. 90255, 2008-Ohio-3448, at ¶8-9. See, also, Linville at ¶35; State v. Pierce, Cuyahoga App. No. 88470, 2007-Ohio-3665, at ¶33; State v. Amos, Cuyahoga App. No. 89855, 2008-Ohio-1834, at ¶43; Coston v. Petro (S.D.Ohio 2005), 398 F.Supp.2d 878, 882-883.
{¶31} Moreоver, because Day is currently in prison, he is not presently subject to the residency restrictions. Therefore, the residency restrictions have
{¶32} Thus, Day has failed to show that he has standing to assert this argument or that this аrgument is ripe for review.
{¶33} Day also argues that S.B. 10 violates the United States Constitution‘s prohibition against excessive and cruel and unusual punishments. This court has not yet addressed these specific challenges to S.B. 10, but other Ohio courts have found that S.B. 10 does not constitute either (1) excessive punishment; see Holcomb v. State, Logan App. Nos. 8-08-23, 8-08-24, 8-08-25, 8-08-26, 2009-Ohio-782, at ¶11; State v. Williams, Warren App. No. CA2008-02-029, 2008-Ohio-6195, аt ¶103-105; State v. Byers, Columbiana App. No. 07 CO 39, 2008-Ohio-5051, at ¶75-77; or (2) cruel and unusual punishment. See Gildersleeve at ¶41-43; In re M.E., Stark App. No. 2008CA00161, 2009-Ohio-1762, at ¶24; Montgomery v. Leffler, Huron App. No. H-08-011, 2008-Ohio-6397, at ¶24; In re Smith, Allen App. No. 1-07-58, 2008-Ohio-3234, at ¶37-38. “As long as
{¶34} Accordingly, for the foregoing reasons, we overrule Day‘s fourth assignment of error.
VI.
{¶35} In conclusion, we find that Day‘s five-year prison sentence for violating
{¶36} Additionally, we find that the trial court exceedеd its authority by subjecting Day to the community notification requirements of
{¶37} Accordingly, we affirm, in part, and reverse, in part, and remand this matter to the trial court for further proceedings consistent with this opinion.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED, in part, and REVERSED, in part, and this CAUSE BE REMANDED to the trial court for further proceedings consistent with this opinion. Appellant and Appellee shall split the costs equally.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out оf this Court directing the Adams County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY: Roger L. Kline, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.