STATE OF OHIO v. MARK FRY
No. 109593
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 19, 2021
2021-Ohio-2838
JOURNAL ENTRY AND OPINION; JUDGMENT: VACATED AND REMANDED; Criminаl Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-17-618983-A
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Katherine Mullin and Jennifer A. Driscoll, Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant.
{1} Defendant-appellant Mark Fry (“Fry“) appeals his sentence, alleging it departs from and exceeds the mandatory statutory sentencing range. For the reasons that follow, we vacate the judgment of the trial court and remand the case.
I. PROCEDURAL AND FACTUAL BACKGROUND
{2} On July 1, 2017, Fry lured a seven-year-old girl into a car, drove her to a remote area, and threatened to kill her if she did not follow his commands. Fry then violently assaulted her, requiring the victim to undergo surgery. On July 14, 2017, a Cuyahoga County Grand Jury indicted Fry on the following six counts: Count 1, rape of a person less than thirteen years of age; Count 2, kidnapping with a sexual motivation specification; Count 3, felonious assault with a sexual motivation specification; Count 4, kidnapping with a sexual motivation specification; Count 5, grand theft; and Count 6, рossession of criminal tools.
{3} On October 24, 2017, pursuant to an agreed plea, Fry pled guilty to Count 1, rape of a person less than thirteen years of age; Count 3, felonious assault with a sexual motivation specification; Count 4, kidnapping with a sexual motivation specification; and an amended Count 5, attempted grand theft. Counts 2 and 6 were nolled. On November 20, 2017, Fry was sentenced to a total of 35 years: 30 years on Count 1, rape of a person less than thirteen years of age; five years on Count 2, kidnapping with a sexual motivation, to run concurrently; six months on Count 5, attempted grand theft, to run concurrently; and five years on Count 4, kidnapping with a sexual motivation specification, which was to run consecutively.
{5} On December 26, 2017, Fry appealed his sentence as set forth in the November 20, 2017 judgment entry in Case No. 106648. He alleged the trial court erred in its sentence on Count 1, rape of a person less than thirteen years of age, and the sentence was contrary to law. On June 28, 2018, the state filed its brief with a motion to dismiss, alleging that because the trial court did not actually dispose of Count 3, the appeal should be dismissed for lack of a final judgment. This court agreed and granted that motion to dismiss on July 10, 2018, stating:
The trial court imposed a sentence on Counts 1, 2, 4 and 5. Appellant pled guilty to Counts 1, 3, 4, and 5. The trial court at the sentencing hearing and in the sentencing entry imposed a sentence on Counts 1, 2, 4 and 5. The trial court incorrectly sentenced appellant on Count 2, which was nolled, and failed to sentence the appellant on Count 3. When the trial court fails to impose a sentence on each count of a conviction, the order is merely interlocutory and, therefore, the court has no power to hear an appeal from such an order. State v. Waters, 8th Dist. No. 85691, 2005-Ohio-5137, ¶ 16; State v. Hall, 10th Dist. Franklin No. 16AP-408, 2017-Ohio-813, ¶ 9. Appeal is dismissed.
State v. Fry, 8th Dist. Cuyahoga No. 106648 (July 10, 2018).
{6} On January 24, 2020, pursuant to this court‘s remand and a joint stipulation by the parties, the trial court, with Fry present via video conferencing, held a hearing and then issued a corresponding nunc pro tunc judgment entry,
II. LAW AND ANALYSIS
{7} Fry‘s sole assignment of error asserts the trial court‘s sentence on Count 1, rape of a person less than thirteen years of age, is contrary to law pursuant tо
{8} The standard of review of felony sentencing is governed by
A sentence is not clearly and convincingly contrary to law “where the trial court considers the purposes and principles of sentencing under
R.C. 2929.11 as well as the seriousness and recidivism factors listed inR.C. 2929.12 , proрerly applies post-release control, and sentences a defendant within the permissible statutory range.”
State v. Thompson, 8th Dist. Cuyahoga No. 105785, 2018-Ohio-1393, ¶ 7, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10. Fry alleges that his sentence on Count 1, rape of a person less than thirteen years of age, is outside the permissible statutory range.
did engage in sexual conduct, to wit: digital penetration, with Jane Doe 1, DOB 9/19/09 who was not the spouse of the offender, and Jane Doe 1, DOB 9/19/09 whose age at the time of the said sexual conduсt was less than thirteen years of age, to wit: Jane Doe 1, DOB 9/19/09, whether or not the offender knew the age of Jane Doe 1, DOB 9/19/09.
{10} The indictment on Count 1, rape of a person less than thirteen years of age, mirrors the statutory language. It does not contain any specifications that the victim was under the age of 10 or that she was compelled to submit by force or threat of force; however, it does include her date of birth, which establishes that she was seven years of age, clearly under the age of 10 at the time of the offеnse. Based on this guilty plea, the trial court sentenced Fry to 30 years to life on Count 1, stating at the sentencing hearing that the mandatory minimum on Count 1 was 25 years to life, and then adding five additional years given the severity of the offense.
{11} Pursuant to
[I]f the court does not impose a sentence of life without parole [under
R.C. 2907.02(B) ], the court shall impose upon the person an indefinite prison term consisting of one of the following:(a) Except as otherwise required in division (B)(1)(b) or (c) of this section, a minimum term of ten years and a maximum term of life imprisonment.
(b) If the victim was less than ten years оf age, a minimum term of fifteen years and a maximum of life imprisonment.
(c) If the offender purposely compels the victim to submit by force or threat of force, or if the offender previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the Revised Code or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of that section, or if the offender during or immediately after the commission of the offense caused serious physical harm to thе victim, a minimum term of twenty-five years and a maximum of life imprisonment.
Under this statutory framework, the default mandatory sentence is ten years to life pursuant to
{12} In Bowers, the defendant was convicted of raping a person under the age of 13 pursuant to
{13} In Bowers, the Ohio Supreme Court affirmed the First District‘s judgment that “a sentence of 25 years to life under
{14} The Ohio Supreme Court rejected both of these arguments, explaining that the state‘s arguments incorrectly relied on the notion that this statute involves the type of judicial factfinding permitted under Apprendi and Alleyne. In Apprendi, the Court held that the Sixth Amendment of the United States Constitution required that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum,” except for the fact of a prior conviction, “must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at ¶ 13, citing Apprendi at 490. In Alleyne, the Court held this principle applied to facts increasing the mandatory minimum sentence. Id. at ¶ 13, citing Alleyne at 108.
{15} The Ohio Supreme Court found that because the imposition of a sentence of 25 years to life, based solely on a finding of force by the trial court, whether by judicial factfinding or evidence in the record, would raise the mandatory minimum sentence from 15 to 25 years, the finding must be made by a jury, otherwise it violates the Sixth Amendment. Id. at ¶ 21. The court held that the factors in
{16} In State v. Morris, the Fifth District applied Bowers to a defendant who pled guilty to three rape charges in violation of
{17} On appeal, the Fifth District in Morris examined Bowers and
{18} In Mejia, the Sixth District also dealt with a defendant who pled guilty to rape of a person less than thirteen years of age in violation of
{19} Similar to Fry, Mejia waived his right to a jury trial and pled guilty to just one count of rape of a person less than thirteen years of age in exchange for the remaining counts to be nolled. Id. at ¶ 3. At the sentencing hearing, the trial court reiterated that Count 1, rape of a person less than thirteen years of age, required a 25-yeаr mandatory minimum sentence, which the court imposed. Id. at ¶ 6. On appeal, Mejia argued the 25-years to life sentence was contrary to law. The Sixth District found itself presented with the following question:
[M]ay a defendant who pleads guilty to rape under
R.C. 2907.02(A)(1)(b) and (B) be sentenced to 25 years to life underR.C. 2971.03(B)(1)(c) when the indictment fails to include a specification that force was used in the commission of the rape, the record is silent as to the issue of force, and the trial court does not make a determination that force was used in the commission of the rape at the time of accepting the plea or sentencing the defendant?
Id. at ¶ 29. The state argued that even though the transcript did not mention that force was used, the use of force could be inferred since the case involved the rape of a child. Id. at ¶ 23. The Sixth District was not persuaded by this argument. Id.
{21} In State v. Johnson, the Eighth District‘s most recent decision concerning this sentencing statute, the defendant, like Fry, was convicted of rape of a person under 13 years old pursuant to
{22} Upon review, this court found: “[b]ecause the jury did not find any of these elements, Johnson could not be sentenced to 25 years to life pursuant to
{23} In the instant case, the facts are unique and distinguishable from Bowers, Mejia, Morris, and this court‘s precedent in Johnson. Both Bowers and Johnson involved jury verdicts where the rape convictions did not contain any force specifications. The distinction between a jury trial, where the jury is the factfinder to establish thе use of force, and instant case where a defendant pleads guilty is significant, placing greater emphasis on the language in the indictment a defendant pleads guilty to. In Morris, we have a guilty plea; however, the indictment Morris pled guilty to contained a force specification in each rape count he pled guilty to, unlike here. Morris, 5th Dist. Delaware No. 19 CAA 12 0069, 2020-Ohio-5361. In Morris, the court also made specific findings that force was used for each rape offense he pled guilty to and the parties had jointly stipulated to an agreed sentence. In Mejia, there also was a guilty plea to count 1 of the indictment for rape of a person less than thirteen years of age, and like Fry‘s indictment, the rape count did not contain a force specification. Mejia was also charged with a second count of rape, which did contain a force specification, but that charge was dismissed. Because the
{24} Fry argues generally his sentence is contrary to law and that the trial court was only authorized to sentence Fry to 15 years to life pursuant to
{25} The state also argues that because Fry pled guilty on Count 3, felonious assault with a sexual motivation specification, this is sufficient to establish the factors required by
* * *
{26} Pursuant to United States Supreme Court precedent in Blakely, when there is no jury trial because a defendant waived that right, the only way to establish facts that increase the penalty for a crime without violating the Sixth Amendment are when the defendant admits to them. State v. Brito, 8th Dist. Cuyahoga No. 88223, 2007-Ohio-1311, ¶ 6 (“* * * any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt or admitted by the defendant“), citing Blakely v. Washington, 542 U.S. 296, 298, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). A guilty plea is a complete admission of the facts set forth in the indictment, including all specifications contained therein. State v. Sims, 2019-Ohio-4975, 149 N.E.3d 1143, ¶ 18 (8th Dist.), citing State v. Colon, 2017-Ohio-8478, 99 N.E.3d 1197 (8th Dist.); State v. Diamond, 8th Dist. Cuyahoga No. 84898, 2005-Ohio-3413, ¶ 27.
{27} Based on the indictment in this case, Fry pled guilty to Count 1, admitting to the facts that he:
On or about July 1, 2017 did engage in sexual conduct, to wit: digital penetration, with Jane Dоe 1, DOB 9/19/09 who was not the spouse of the offender, and Jane Doe 1, DOB 9/19/09 whose age at the time of the said sexual conduct was less than thirteen years of age, to wit: Jane Doe 1, DOB 9/19/09, whether or not the offender knew the age of Jane Doe 1, DOB 9/19/09.
These facts admitted by Fry establish that he engaged in sexual conduct against a person under the age of thirteen in violation of
{28} For a trial court to be required to sentence Fry pursuant to
{29} Had Fry pled guilty to charges that did not contain facts to establish any of the prerequisite factors listed in
{31} Upon review of the supplemental briefing, it is the opinion of this court that the Ohio Supreme Court was clear in Bowers when it stated that: “[w]hen a trial court does not sentence a defendant convicted under
{32} Therefore, we find that while the trial court was correct that the statute required it to sentence Fry to a mandatory minimum of 25 years for Count 1,
{33} Therefore, we sustain Fry‘s sole assignment of error. The judgment is vacated, and the case is remanded back to the trial court for the limited purpose of resentencing Fry in accordance with
It is ordered that appellant recover from appellee 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 plеas court 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.
MARY EILEEN KILBANE, JUDGE
LISA B. FORBES, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE ATTACHED OPINION
SEAN C. GALLAGHER, P.J., CONCURRING:
{34} I concur with the majority opinion, but respectfully disagree with any reliance on State v. Bowers, 163 Ohio St.3d 28, 2020-Ohio-5167, 167 N.E.3d 9947, as controlling authority. In relating the “relevant background,” the Ohio Supreme Court noted that “[w]hen a trial court does not sentence a defendant convicted under
{35} That notation was not part of, nor integral to, the holding of the case:
We agree with Bowers that a sentence of 25 years to life under
R.C. 2971.03(B)(1)(c) was not an option in the absence of a finding that the victim was compelled to submit by force or that one of the other factors under that provision was present. Furthermore, under the plain text ofR.C. 2971.03(B)(1) and Alleyne [v. United States, 570 U.S. 99, 133 S.Ct. 2151 186 L.Ed.2d, 314], the imposition of a sentence of 25 years to life based on such a finding by the trial court raises the mandatory minimum sentence to 25 years and, therefore, the finding must be made by the jury.
Id. at ¶ 17. Because the holding of Bowers does not include any conclusion as to the scope of the permissible sentences under
{36} Further, Bowers provides that the sentences delineated under
{37} On this point, I agree that the statute does not authorize the impоsition of a 30-year minimum term but instead requires the trial court to impose a minimum term of 25 years with any release determinations to occur as statutorily required after that time. For this reason, I concur with the majority‘s conclusion.