State v. HowdyshellState v. Howdyshell
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 19, 2009
APPEARANCES:
For Plaintiff-Appellee
D. MICHAEL HADDOX
Prosecuting Attorney
27 North Fifth Street
Zanesville, Ohio 43701
For Defendant-Appellant
DAVID A. SAMS
P.O. Box 40
West Jefferson, Ohio 43612
Edwards, J.
{¶1} Defendant-appellant, Michael Howdyshell, appeals his conviction and sentence from the Muskingum County Court of Common Pleas on one count of gross sexual imposition. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 3, 2008, the Muskingum County Grand Jury indicted appellant on three counts of rape (of a child less than 13 years of age) in violation of
{¶3} Thereafter, on June 24, 2008, appellant entered a plea of guilty to the charge of gross sexual imposition. Pursuant to an Entry filed on July 31, 2008, the trial court granted the Prosecuting Attorney leave to enter a Nolle Prosequi as to the remaining counts. On the same day, the Prosecuting Attorney filed a Nolle Prosequi as to such counts.
{¶4} As memorialized in an Entry filed on July 31, 2008, appellant was sentenced to five years in prison.
{¶5} Appellant now raises the following assignments of error on appeal:
{¶6} “I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS AS HIS PLEA WAS UNKNOWING, UNINTELLIGENT AND INVOLUNTARY.
{¶7} “II. THE DEFENDANT-APPELLANT’S CONVICTION IS VOID DUE TO A DEFECTIVE INDICTMENT.
I
{¶9} Appellant, in his first assignment of error, argues that the trial court violated his constitutional right to due process because the trial court failed to advise appellant of his right to a unanimous jury. Appellant contends, therefore, that his plea was not knowingly, intelligently and voluntarily made.
{¶10} In State v. Williams, Muskingum App. No. No. CT2008-0001. 2008-Ohio-3903, the appellant argued in his sole assignment of error that his guilty plea was not voluntary, knowing, or intelligent because the trial court failed to inform him of his constitutional right to a unanimous jury verdict. In overruling the appellant’s assignment, this Court held in relevant part, as follows: “In State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, the Ohio Supreme Court reviewed a defendant‘s claim the trial court did not adequately inform him of his rights. Ketterer cited State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464, wherein paragraph one of the syllabus, the court held there was no requirement for a trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial. The Ketterer court explained the trial court was not required to specifically advise the defendant on the need for jury unanimity, Ketterer, supra at paragraph 68., citing State v. Bays (1999), 87 Ohio St.3d 15, 716 N.E.2d 1126, which in turn cited United States v. Martin (C.A.6 1983), 704 F.2d 267. In Bays, the Supreme Court held ‘a defendant need not have a complete or technical understanding of the jury trial right in order to knowingly and intelligently waive it,’ Ketterer, paragraph 68.
{¶12} We find, based on the foregoing, that the trial court was not required to advise appellant of his right to a unanimous verdict.
{¶13} Appellant’s first assignment of error is, therefore, overruled.
II
{¶14} Appellant, in his second assignment of error, argues that his conviction for gross sexual imposition in violation of
{¶15} As is stated above, appellant was convicted of gross sexual imposition in violation of
{¶17} As an initial matter, we note that there is a conflict between districts over whether or not gross sexual imposition in violation of
{¶18} In Colon I, the Ohio Supreme Court held that when an indictment fails to charge a mens rea element of a crime, the error is structural and the defendant’s failure to raise such defect in the trial court did not waive appellate review of the error.
{¶19} As this Court noted in State v. Vance, Ashland App. No. 2007-COA-035, 2008-Ohio-4763, the Supreme Court reconsidered State v. Colon (“Colon I”) in State v. Colon (“Colon II”), 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169. In Colon II, the Court held, in relevant part, as follows :
{¶21} “As we stated in Colon I, the defect in the defendant‘s indictment was not the only error that had occurred: the defective indictment resulted in several other violations of the defendant‘s rights. 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶ 29. In Colon I, we concluded that there was no evidence to show that the defendant had notice that recklessness was an element of the crime of robbery, nor was there evidence that the state argued that the defendant‘s conduct was reckless. Id. at ¶ 30, 885 N.E.2d 917. Further, the trial court did not include recklessness as an element of the crime when it instructed the jury. Id. at ¶ 31, 885 N.E.2d 917. In closing argument, the prosecuting attorney treated robbery as a strict-liability offense. Id”. Colon II at ¶ 6. See also, Vance, supra at ¶ 51-53.
{¶22} In the case sub judice, the trial court accepted appellant‘s guilty plea to gross sexual imposition. There was no jury impaneled and therefore, no argument was made as to the requisite mental state. Nor was a jury improperly instructed. Appellant
{¶23} Accordingly, this is not a case where the omission in the complaint permeated the trial from beginning to end and put into question the reliability of the trial court in serving its function as a vehicle for determination of guilt or innocence. Ellis, supra at paragraph 27. Therefore, this Court may analyze the error in this case pursuant to the Crim.R. 52(B) plain-error analysis, see Johnson, supra at paragraph 43.
{¶24} Crim.R. 52(B) provides that, “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus. In order to find plain error under Crim. R. 52(B), it must be determined, but for the error, the outcome of the trial clearly would have been otherwise. Id. at paragraph two of the syllabus. Even if the defendant satisfies this burden, an appellate court has discretion to disregard the error and should correct it only to “‘prevent a manifest miscarriage of justice.’” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240,
{¶25} Under the circumstances of the case sub judice, there is nothing in the record to show that the appellant was prejudiced. Appellant received what he had agreed upon in exchange for his plea of guilty. As negotiated by the parties, appellee dismissed the rape counts and stood silent as to sentencing. We find any error in the indictment was harmless beyond a reasonable doubt. See Johnson, supra. See also, State v. Palacios, Franklin App. No. 08AP-669, 2009-Ohio-1187, citing Johnson, supra.
{¶26} Appellant‘s second assignment of error is, therefore, overruled.
III
{¶27} Appellant, in his third assignment of error, argues that his sentence is contrary to law because the trial court, in imposing the maximum and in excess of the minimum sentence, did not make the findings required by
{¶28} Recently in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 as it relates to the remaining sentencing statutes and appellate review of felony sentencing.
{¶29} In Kalish, the Court discussed the affect of the Foster decision on felony sentencing. The Court stated that, in Foster, the Ohio Supreme Court severed the judicial fact-finding portions of
{¶30} The Supreme Court held, in Kalish, that the trial court‘s sentencing decision was not contrary to law. “The trial court expressly stated that it considered the purposes and principles of
{¶31} Thus, contrary to appellant’s argument, the trial court, in sentencing, is not required to make findings for imposing the maximum and/or more than the minimum sentence. The trial court is, however, required to consider the factors listed in
{¶33} Accordingly, the judgment of the Muskingum County Court of Common Pleas is affirmed.
By: Edwards, J.
Hoffman, P.J. and
Wise, J. concur
JUDGES
JAE/d0805
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Muskingum County Court of Common Pleas is affirmed. Costs assessed to appellant.
JUDGES