State v. JohnsonState v. Johnson
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-515301
RELEASED: May 20, 2010
JOURNALIZED:
Michael H. Murphy
20325 Center Ridge Road
Suite 512
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Michael P. Graham
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ALSO LISTED:
Larry Johnson
Inmate No. 562-538
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044
N.B. This entry is an announcement of the court‘s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief per App.R. 26(A), or a motion for consideration en banc with supporting brief per Loc.App.R. 25.1(B)(2), is filed within ten days of the announcement of the court‘s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court‘s announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. 2.2(A)(1).
{¶ 1} Defendant-appellant, Larry Johnson (“appellant“), appeals the sentence imposed by the trial court. After reviewing appellant‘s arguments, the facts, and the relevant case law, we affirm.
{¶ 2} On August 23, 2008, appellant entered the home of another individual and was discovered digitally penetrating an 11-year old girl with cerebral palsy. He was arrested and indicted in a five-count indictment on one count of aggravated burglary in violation of
{¶ 3} As a result of a plea deal, appellant pled guilty to aggravated burglary and rape in violation of
{¶ 4} Appellant was sentenced to ten years in prison for aggravated robbery and life imprisonment with thе possibility of parole after ten years
{¶ 5} Appellant presents three assignments of error for our review.2 He argues that the trial court erred in imposing consecutive sentences and that the sentence imposed constitutes cruel and unusual punishment. He also argues that the trial court misapplied the elements of the Adam Walsh Act in violation of his constitutional rights.
Law and Analysis
{¶ 6} Appellant first argues that the trial court improperly sentenced him to consecutive, rather than concurrent sentences. He relies on the fact that he had no prior sex offenses on his record and the degreе of the crime to argue that the sentence imposed was unreasonable. He specifically argues that “[w]hile the crime [he] pled to is reprehensible to the public and reasonable minds, the fact that [he] was given a consecutive sentence to another crime with a ‘life tail’ is arbitrary in nature, and contrary to the principles of fair play and substantial justice.”
{¶ 9} Although the arguments presented by appellant are not compelling, we find the application of Ohio‘s sentencing statutes to a conviction of rape under
{¶ 10} Upon first glance,
{¶ 11} The statute‘s terms, however, are less clear.
{¶ 12} The statute relating to indictments and sexually violent predator specifications provides some guidance on this issue.
{¶ 13} Noticeably,
{¶ 14} While no cases directly address the issue at hand, State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, thoroughly analyzes
{¶ 15} Although the holding in Smith would lead one to believe that the sentence in this case was contrary to law, Smith was decided in 2004 — well before
{¶ 16} Appellant pled guilty to aggravated burglary and rape in violation of the child rape provision. Aggravated burglary is a first degree felony punishable by three to ten years in prison.
{¶ 17} Having found that appellant‘s conviction is not contrary to law, we must now determine whether the trial court abused its discretion in imposing
{¶ 18} When imposing consecutive sentences, the trial court discussed the facts of appellant‘s case. For example, the victim was an 11-year-old girl who suffered from cerebral palsy and was wheelchair bound. The court also considered appellant‘s extensive criminal background, despite the fact that this was his first conviction for a sex offense. After reviewing the transcript in its entirety and considering the reprehensibility of appellant‘s conduct, we cannot find that the trial judge abused her discretion in sentencing appellant to consecutive sentences. Appellant‘s first assignment of error is overruled.
{¶ 19} Appellant next argues that the sentence imposed by the trial court constitutes cruel and unusual punishment in violation of the Ohio and United States Constitutions. “‘[A] sentence does not violate the constitutional prohibition against cruel and unusual punishment if it is not sо greatly disproportionate to the offense as to “shock the sense of justice of the community.“‘” State v. Barnes (2000), 136 Ohio App.3d 430, 434, 736 N.E.2d 958, quoting State v. Chaffin (1972), 30 Ohio St.2d 13, 17, 282 N.E.2d 46; State v. O‘Shannon (1988), 44 Ohio App.3d 197, 542 N.E.2d 693. As an appellate court, we must give deference to the General Assembly because they have broad authority in determining the punishments for crimes. Solem v. Helm (1983), 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637. We must also give deference to the trial court‘s discretion in sentencing convicted defendants. Id. We must ultimately determine whether the punishment violates the Ohio or United States Constitutions. Barnes at 434.
{¶ 20} In conducting the proportionality calculus discussed in Solem, courts “should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem at 292. Although each of these factors should be considered, no one factor is dispositive. Id. at 290.
{¶ 21} In Harmelin v. Michigan (1991), 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836, the United States Supreme Court held that this proportionality
{¶ 22} Appellant argues that his sentence for his rape conviction could not pass the Solem test. He specifically argues that his sentence carries a “life tail” and is not “very far off” from a sentence that would be imposed in a murder сase. We find this argument unpersuasive. Appellant pled guilty to rape in violation of the child rape provision, which prohibits an accused from engaging in sexual activity with an individual under the age of 13. The General Assembly set forth various factors to be considered when sentencing an individual pursuant to this statute. See, e.g.,
{¶ 23} Appellant pled guilty after being accused of entering the home of the victim, T.R., an 11-year-old girl suffering from cerebral palsy, and digitally penetrating her while she was sleeping on the couch. Appellant claimed that he
{¶ 24} Appellant was sentenced to ten years to life in prison for violating the child rape provision. We cannot find, pursuant to the Solem analysis and the decision in Warren, that this constitutes cruel and unusual punishment. Appellant‘s second assignment of error is overruled.
Adam Walsh Act
{¶ 25} In his third and final assignment of error, appellant argues thаt the trial court violated his due process and equal protection rights when labeling him a Tier III sex offender pursuant to the AWA. Relying on the dissenting opinion in
{¶ 26} Sears involved a constitutional challenge to the retroactive application of the AWA. Id. at ¶7. It is true, however, that the dissent in Sears includes the following statement: “The offender who commits a sex offense is first found to be either a ‘sex offender’ or a ‘child-victim offender.’ Then, depending solely upon the sex offense committed, the offender is classified as Tier I, Tier II, or Tier III without any additional assessment of risk.” Id. at ¶29. Since this statement was mere dicta in a dissenting opinion in a non-controlling district, we do not find it dispositive in this case.
{¶ 27} Appellant also relies on
{¶ 29} Appellant also challenges the constitutionality of the AWA claiming it violates the Due Process and Equal Protection Clauses of the Ohio and United States Constitutions. “Our inquiry begins with a fundamental understanding: a statute enacted in Ohio is presumed to be constitutional. That presumption applies to amended
{¶ 30} Appellant argues that the AWA infringes upon his fundamental liberty interest in living wherever he pleases. We note from the outset that appellant lacks standing to make this argument because he remains incarcerated and has never been ousted from his place of residence due to the AWA‘s residency restrictions. See State v. Peak, Cuyahoga App. No. 90255, 2008-Ohio-3448
{¶ 31} Appellant makes a general argument that the AWA violates his fundamental rights. He points to only one specific fundamental right, thе right to live where one chooses, to assert that the AWA is unconstitutional. Appellant fails to allege, much less establish, that the AWA has actually infringed upon any of his fundamental rights or that he has suffered any actual injury as a result. As
{¶ 32} Even if appellant had alleged an actual injury resulting from the AWA‘s residency restrictions, Ohio courts have held that this restriction is сonstitutional. For example, the court in Dobson said that “even if Dobson had standing, we have previously rejected his assertion that the residency restrictions impose an unconstitutional restraint and infringe on that fundamental right.” Id. at ¶15, citing State v. King, Miami App. No. 08-CA-02, 2008-Ohio-2594, ¶16. Appellant‘s third assignment of error is overruled.
Conclusion
{¶ 33} The trial judge acted within her sound discretion in imposing consecutive sentences, and appellant‘s sentence does not constitute cruel and unusual punishment. Since appellant has failed to establish any aсtual injury as a result of the AWA‘s residency restrictions, he lacks standing to challenge such restrictions pursuant to the Due Process and Equal Protection Clauses of the Ohio and United States Constitutions. Regardless, such residency restrictions survive constitutional muster. All of appellant‘s assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The Court finds there were reasоnable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Apрellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
CHRISTINE T. McMONAGLE, J., CONCURS;
SEAN C. GALLAGHER, A.J., CONCURS IN JUDGMENT ONLY
Appendix A
Appellant‘s assignments of error:
I. The trial court erred in sentencing the appellant to consecutive terms of incarceration, rather than to concurrent terms of incarceration.
II. The sentence handed down from the trial court violates the “cruel and unusual punishment” provision of the Eighth Amendment to the United States Constitution.
III. The trial court erred in applying the elements of “The Adam Walsh Act” in classifying the appellant as а Tier III sexual offender, violating his rights of due process and equal protection under the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the State of Ohio Constitution.