STATE OF OHIO v. CLIFFORD D. KOCH
No. 16-CA-16
Court of Appeals, Knox County, Ohio, Fifth Appellate District
November 17, 2016
2016-Ohio-7926
Hon. Sheila G. Farmer, P.J.; Hon. W. Scott Gwin, J.; Hon. Patricia A. Delaney, J.
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
CLIFFORD D. KOCH
Defendant-Appellant
JUDGES:
Hon. Sheila G. Farmer, P.J.
Hon. W. Scott Gwin, J.
Hon. Patricia A. Delaney, J.
Case No. 16-CA-16
O P I N I O N
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 15CR11-0197
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 17, 2016
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CHARLES T. MCCONVILLE
KNOX. CO. PROSECUTOR
117 E. High St., Suite 234
Mount Vernon, OH 43050
JOHN A. DANKOVICH
KNOX. CO. PUBLIC DEFENDER
11 East High St.
Mount Vernon, OH 43050
{¶1} Appellant Clifford D. Koch appeals from the April 26, 2016 Journal Entry and June 8, 2016 Sentencing Entry of the Knox County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The facts underlying appellant’s criminal convictions are not in the record before us.1
{¶3} On December 8, 2015, appellant was charged by indictment with one count of failure to provide change of address, a felony of the third degree pursuant to
{¶4} Appellant last registered with the Knox County Sheriff on January 20, 2015, as a sexually-oriented offender.
{¶5} Appellant has two prior convictions in the Knox County Court of Common Pleas for failure to provide notice of change of address pursuant to
{¶7} Appellant now appeals from the June 8, 2016 Sentencing Entry of the Knox County Court of Common Pleas.
{¶8} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶9} “I. THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE.”
{¶10} “II. R.C. 2950.05(F)(1) IS UNCONSTITUTIONAL AS APPLIED.”
ANALYSIS
I.
{¶11} In his first assignment of error, appellant argues he should not have received the maximum sentence because the trial court did not state reasons in support of its findings. We disagree.
{¶12} The trial court sentenced appellant to a prison term of three years, the minimum statutorily-mandated penalty for the offense in light of appellant’s prior convictions. The instant offense is a felony of the third degree pursuant to
{¶13} Appellant has two prior convictions for failure to provide notice of change of address, rendering him subject to
In addition to any penalty or sanction imposed under division (A)(1)(b)(i), (ii), or (iii) of this section or any other provision of law for a violation of a prohibition in section 2950.04, 2950.041, 2950.05, or 2950.06 of the Revised Code, if the offender previously has been convicted of or pleaded guilty to, or previously has been adjudicated a delinquent child for committing, a violation of a prohibition in section 2950.04, 2950.041, 2950.05, or 2950.06 of the Revised Code when the most serious sexually oriented offense or child-victim oriented offense that was the basis of the requirement that was violated under the prohibition is a felony if committed by an adult or a comparable category of offense committed in another jurisdiction, the court imposing a sentence upon the offender shall impose a definite prison term of no less than three years. The definite prison term imposed under this section, subject to divisions (C) to (I) of section 2967.19 of the Revised Code, shall not be reduced to less than three years pursuant to any provision of Chapter 2967. or any other provision of the Revised Code. (Emphasis added.)
{¶14} As appellee points out,
{¶16} Appellant’s first assignment of error is overruled.
II.
{¶17} In his second assignment of error, appellant argues
{¶18} We first disagree with appellant’s underlying premise that his conviction does not merit a prison term of three years. On the basis of the limited record before us, appellant has two prior convictions for this offense and thus is a recidivist.
{¶19} Appellant argues, though, that a prison term of three years is cruel and unusual punishment for “miscommunication” about the location of a registered sex offender. As appellee points out, the Ohio Supreme Court has held that the state’s system of sex offender registration and address verification has been held not to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution or Article I, Section 9 of the Ohio Constitution. See, State v. Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516.
{¶20}
{¶21} Appellant argues, essentially, that his 3-year sentence is disproportionate to his crime.2 “‘The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are “grossly disproportionate” to the crime.’” State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d 167 (1999), quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), (Kennedy, J., concurring in part and in judgment). Appellant’s sentence is not grossly disproportionate.
{¶22} Our proportionality analysis under the Eighth Amendment 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.” State v. Morin, 5th Dist. Fairfield No. 2008-CA-10, 2008-Ohio-6707, ¶ 70, citing Solem v. Helm, 463 U.S. 277, 290-292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). “It is well established that sentences do not violate these constitutional provisions against cruel and unusual
{¶23} “As a general rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual punishment.” McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964). “[P]unishments which are prohibited by the Eighth Amendment are limited to torture or other barbarous punishments, degrading punishments unknown at common law, and punishments which are so disproportionate to the offense as to shock the moral sense of the community.” Id.
{¶24} Having determined supra that the trial court properly applied the statutory sentencing enhancement provision, a determination that appellant‘s sentence amounts to cruel and unusual punishment would amount to holding the provision unconstitutional. See, State v. Anderson, 146 Ohio App.3d 427, 2001-Ohio-4297, 766 N.E.2d 1005, ¶ 74 (8th Dist.) Cruel and unusual punishments are “rare” and are limited to sanctions that under the circumstances would be shocking to any reasonable person. State v. Blankenship, 145 Ohio St.3d 221, 2015–Ohio–4624, 48 N.E.3d 526, ¶ 32. It is not shocking to the conscience that an offender who repeatedly violates the address-notification requirement is subject to a minimum three-year prison term.
{¶25} The prison sentence imposed is not grossly disproportionate to the offense and does not constitute cruel and unusual punishment.
CONCLUSION
{¶27} Appellant’s two assignments of error are overruled and the judgment of the Knox County Court of Common Pleas is affirmed.
By: Delaney, J. and
Farmer, P.J.
Gwin, J., concur.