State v. MalloryState v. Mallory
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: October 13, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-652296-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Anna Faraglia, Assistant Prosecuting Attorney, for appellee.
Buckeye Law Office and P. Andrew Baker,
EILEEN T. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Devon L. Mallory (“Mallory“), appeals from his convictions and sentence following a bifurcated trial. He raises the following assignments of error for review:
- The trial court erred when it convicted defendant-appellant for felony domestic violence when the conviction was not supported by sufficient evidence and must be modified to a misdemeanor domestic violence conviction.
- The trial court erred when it convicted defendant-appellant of child endangering under
R.C. 2929.22(A) as the conviction was not supported by sufficient evidence. - The trial court erred when it improperly convicted defendant-appellant of involuntary manslaughter when a conviction was not supported by sufficient evidence.
- The trial court erred when it convicted defendant-appellant under
R.C. 2929.22(A) , domestic violence as a felony, and involuntary manslaughter, when the facts were against the manifest weight of the evidence. - The trial court erred when it improperly convicted defendant-appellant on Counts 5, 6, and 7 as he did not receive effective assistance of counsel.
-
The trial court erred when it improperly imposed postrelease control and this term must be modified. - The trial court erred when it imposed a sentence pursuant to the Reagan Tokes Law.
{¶ 2} After careful review of the record and relevant case law, we affirm in part, reverse in part, and remand for further proceedings before the trial court.
I. Procedural and Factual History
{¶ 3} In September 2020, Mallory was named in a seven-count indictment, charging him with aggravated murder in violation of
{¶ 4} Mallory pleaded not guilty to the indictment, and the matter proceeded to a jury trial on Counts 1-6. Mallory voluntarily waived his right to a jury trial on Count 7 and elected to have the domestic violence charge tried before the bench. As pertinent to this appeal, the following facts were adduced at trial.
{¶ 5} On July 19, 2020, Christina Rosa (“Mother“) moved into the home оf her then boyfriend, Mallory, with her two minor daughters, S.E. and Su.E. Mother and her daughters lived in the home with Mallory, Mallory‘s three-year old son, J.M., and Mallory‘s teenaged brother, T.W. Mother testified that S.E. slept on a toddler bed that was located in the master bedroom where Mother and Mallory also slept. Su.E. slept in a nearby bedroom that also served as the children‘s toy room.
{¶ 6} On the morning of July 25, 2020, Mother woke up early to get ready for work. As part of her morning routine, Mother changed S.E.‘s diaper, gave her a kiss, and tucked her back into bed. Mother then left for work at approximately 7:00 a.m. Throughout that day, Mother called Mallory on several occasions to see how Mallory and the children were doing. Mother testified that she last called Mallory at approximately 4:50 p.m. Mother summarized this conversation with Mallory as follows:
I asked him like, hey, how‘s the kids, do you or the kids need anything before I clock out of work? He told me, no, we don‘t need nothing, and the conversation kept going on until like me having to clock out. It lasted more than just a couple of minutes.
He did tell me like, hey, I have a question for you. The odd question was does [S.E.] hum in her sleep, and I told him what do you mean by humming in her sleep? That doesn‘t make sense to me. He said, well, she took a nap, she has been taking a nap for a while. And I‘m like is she looking red in her face, and I‘m like normally because she does cover her face. You should take [the blanket]
off. She will be — like the redness will come down. He told me he did take it off, but she wasn‘t responding. * * *
After a couple of times of me telling him to grab her, because you grabbing a child will wake her up or just call her name. She wasn‘t responding. I told him call 911, just hang up on me, and I ran out of work and was on my way.
(Tr. 411-412.)
{¶ 7} Mallory called 911 at approximately 5:23 p.m. The eight-minute 911 call was played for the jury in its entirety. (Tr. 370.) During the 911 call, Mallory informed the 911 operator that he learned from his son that S.E. fell on a toy while she was playing with the other children. (Tr. 372-373.)
{¶ 8} Emergency medical services arrived at the home at approximately 5:31 p.m. and discovered S.E. unresponsive in an upstairs bedroom. Matthew Kalas (“Kalas“), a firefighter and paramedic employed by the city of Euclid, testified that S.E. had a “golf ball size hematoma to the left side of her forehead and a smaller hematoma to the right side as well.” (Tr. 242.) According to Kalas, the adult male present at the scene expressed that S.E. was “playing and tripped on a toy and hit her forehead on the floor.” (Tr. 242.) Kalas further testified that another “EMS member on the scene was told by an additional child that [S.E.] fell off the bed and hit her head.” (Tr. 242.)
{¶ 9} Patrolman Samuel J. Thirion (“Officer Thirion“) of the city of Euclid Police Department testified that he responded to Mallory‘s home after receiving a dispatch for “an 18-month-old female who was breathing and unresponsive.” (Tr. 266.) Officer Thirion testified that when he arrived at the scene, S.E. was quickly removed from the home by the EMS first responders for further emergency care. Officer Thirion stated that he remained at the scene and separately spoke with Mallory, J.M., and Su.E. According to Officer Thirion, Mallory reported that S.E. had tripped over a Nerf gun and hit her head on the floor. Officer Thirion testified that Mallory was “just very flat, not very emotional.” (Tr. 273.) In turn, J.M. and Su.E. stated that S.E. “fell off the bed.” (Tr. 274.)
{¶ 10} S.E. was transported to University Hospitals Rainbow Babies and Children‘s Hospital at approximately 5:50 p.m. Once at the hospital, doctors determined that S.E. sustained a significant brain bleed, leading to a subdural hematoma causing a midline shift of the brain. Due to her extensive injuries, Dr. Krystal Tomei (“Dr. Tomei“) attempted a hemicraniectomy to relieve pressure on S.E.‘s brain. The procedure required surgeons to remove a portion of S.E.‘s skull to allow the brain room to swell and to evacuate the blood clot. Dr. Tomei confirmed that time was of the essence because “as time goes by, the situation becomes worse and worse unless you can hope to relieve the pressure.” (Tr. 619.) Despite the emergency efforts of the surgeons, however, S.E. succumbed to her injuries and died on July 31, 2020.
{¶ 11} Mother testified that while S.E. was being treated in the hospital, she contacted Mallory in an effort to determine the cause of S.E.‘s injuries. According to Mother, Mallory stated
that [S.E.] fell off the bed jumping — when [Su.E.] and [J.M.] were playing on the bed, [S.E.] jumped off the bed and hit her head on the Nerf gun.
(Tr. 415.) Subsequently, howеver, Mother began to press Mallory for the truth because “it wasn‘t making sense * * * especially when the doctors tell you whatever the reason that was given at the beginning, that cannot cause her injuries, so I‘m confused.”
{¶ 12} Mallory‘s younger brother, T.W. testified on behalf of the state. He testified that he was in the home with Mallory and the young children until he left to play basketball at approximately 4:00 p.m. T.W. stated that at the time he went upstairs to tell Mallory that he was leaving, S.E. was with Mallory and was “just playing on the bed laughing.” (Tr. 346.) When T.W. came home at approximately 5:30 p.m., he learned that S.E. had been injured. T.W. testified that he asked Mallory what had happened and Mallory responded “that [S.E.] — they was all upstairs playing on the bed and she hit her head on top of a Nerf gun.” (Tr. 349.)
{¶ 13} Detective Jennifer Kroczak (“Det. Kroczak“) of the city of Euclid Police Department, testified that she was assigned to investigate the circumstances of S.E.‘s injuries. In the course of her investigation, Det. Kroczak reviewed Mallory‘s 911 call, took photographs of the pertinent rooms inside Mallory‘s home, collected the toy that was alleged to have caused S.E.‘s injuries, obtained written statements from the firefighters and paramedics who provided emergency care inside Mallory‘s home, spoke with various members of the medical staff at University Hospitals, and conducted multiple interviews with Mallory and Mother.
{¶ 14} Det. Kroczak testified that her initial conversations with Mother and Mallory occurred while S.E. was receiving medical care. During these conversations, Mother expressed that she was at her place of employment at the time S.E. was injured but had communicated with Mallory on several occasions throughout the day. In turn, Mallory confirmed that he was in the home at the time S.E. was injured. Det. Kroczak testified, however, that Mallory provided inconsistent statements concerning the cause of S.E.‘s injuries. She explained as follows:
There were versions provided that the child slipped and fell on the toy or that she fell off the bed and hit the toy. The differences were not major, but I was not getting the same consistent version repeatedly.
(Tr. 633.)
{¶ 15} On July 27, 2020, Mallory was voluntarily transported to the police station to make a written statement. In the statement, Mallory indicated that he heard a boom at approximately 4:30 or 4:45 p.m. and then discovered S.E. on the floor. Once the statement was completed, Mallory was free to leave the station.
{¶ 16} On July 28, 2020, Det. Kroczak spoke with S.E.‘s treating physician, Dr. Lolita McDavid, who opined that the magnitude of S.E.‘s brain injuries were “not consistent with the explanation provided for injury.” (Tr. 644.) In light of this information, Det. Kroczak accompanied Jessica Lecastre (“Lecastre“), a special investigator employed by the Cuyahoga County Division of Children and Family Services, to Mallory‘s home for additional questioning on July 29, 2020. Lecastre testified that the purpose of the home visit was to follow up on a referral made to the agency concerning a near fatality of a child.
{¶ 17} According to Lecastre, Mallory reported that he allowed S.E. to play with older children in their playroom at approximately 4:45 p.m. Mallory later heard a “bump in the room.” When he went into the playroom to check on the children, he picked S.E. up and noticed that she had a mark on her head. Mallory then took S.E.
{¶ 18} Det. Kroczak testified that while she was in Mallory‘s home on July 29, 2020, she was permitted to take additional photographs of the children‘s bedrooms. In pertinent part, Det. Kroczak provided context for the photographs she took of the bed located inside the children‘s playroom “where the fall was alleged to have occurred from one of [Mallory]‘s versions of the story.” (Tr. 650.) Det. Kroczak testified that the distance between the top of the mattress and the ground was no higher than her knee.
{¶ 19} Det. Kroczak testified that the demeanor of her investigation shifted once she was notified of S.E.‘s death on July 30, 2020. Det. Kroczak testified that once the manner and cause of death was confirmed following S.E.‘s autopsy, Mallory was brought into the police department for additional questioning on August 5, 2020. Pertinent portions of the recorded interviews were played for the jury. During the interview, Mallory discussed the events leading to S.E.‘s injuries, including his own interactions with the child. At the conclusion of the interview, Mallory was notified that he was being booked in county jail.
{¶ 20} On August 7, 2020, Mallory contacted Det. Kroczak and expressed that he wished to discuss the circumstances of S.E.‘s injuries further. On this occasion, Mallory continuously expressed that he loved S.E. like she was his own and that he did not do anything to hurt her. He denied all insinuations that he was unable to control S.E. or otherwise hurt her because she was being inconsolable.
Mallory reiterated that he heard S.E. fall while playing with the other children and that she had a knot on her head. However, he further suggested that S.E. may have subsequently hit her head on a side table while they were playing peekaboo on his bed. Finally, when asked why he did not immediately contact 911 once he realized S.E. was unresponsive, Mallory stated that he was concerned that he could not answer questions posed by the 911 operator, such as S.E.‘s “last name and stuff like that.” State‘s exhibit No. 148.
{¶ 21} Dr. Joseph Felo (“Dr. Felo“) of the Cuyahoga County Medical Exаminer‘s Office testified that he performed S.E.‘s autopsy and generated a report that summarized his findings and conclusions. Dr. Felo testified that S.E. had a number of observable, external injuries, including a large bruise on the right side of her scalp, as well as scattered bruising on her face, torso, left arm, right hip, knees, and back. Dr. Felo stated that the medical examiners also observed a number of internal injuries, including “overwhelming damage to the brain.” (Tr. 705.) Specifically, the autopsy revealed bleeding on the surface of the brain, dead brain tissue, brain tissue in the spinal cord, blood in the cervical nerve roots, bilateral retinal hemorrhages, secondary hemorrhages in the spinal cord, and infections in the lungs. When presented with images of S.E.‘s spinal cord, Dr. Felo explained that her spinal cord was red “because there is blood that has extended from around the right side of her brain and just gone down the spinal cord[.]” (Tr. 603.) Dr. Felo opined that the injuries sustained to the spinal cord area “indicate that there was some sort of a whiplash or a forward and backwards rotation of the head on the spine tearing the brain — tearing the tissues off the spinal cord.” (Tr. 704.)
Anoxic encephalopathy means the brain is starved of oxygen, and the brain is starved of oxygen because of swelling in the brain, and that is what cerebral edema is, swelling in the brain, and a combination of those two results in tissue death of the brain, and that is cerebral necrosis. All of that happened because she had bleeding on the surface of the brain, and that is what the subdural hematoma is. That‘s bleeding on the surface of the brain. What caused that bleeding on the brain is blunt trauma to her head.
* * *
Blunt trauma is anything that the head came in contact with which was a solid instrument or object with enough force to leave a mark, and in her case it was a bruise, bruises on her face, but most importantly the bruise on the side of her right scalp and that bruising with enough force cause the internal bleeding on the surface of [her] brain.
(Tr. 710-711.) Given the nature and extent of her injuries, Dr. Felo classified S.E.‘s manner of death as a homicide.
{¶ 23} Dr. Joshua Friedman (“Dr. Friedman“) testified that he is a board-certified pediatrician and is currently employed by MetroHealth Medical Center as a child advocacy provider. Based on his experience and expertise in the field of pediatric medicine, Dr. Friedman was asked by the Cuyahoga County Division of Child and Family Services to render a conclusion as to the nature and extent of S.E.‘s injuries. Based on his review of S.E.‘s medical records, Dr. Friedman rendered the ultimate conclusion that S.E. “passed away from injuries she sustained during abusive head trauma.” (Tr. 521.) Dr. Friedman explained that the phrase “abusive head trauma” represents “injuries inside a child‘s head that have been caused by trauma that cannot be explained by any other mechanism than someone harming the child.” (Tr. 521.) In support of his opinion that S.E.‘s injuries were sustained as a result of abuse and not an accident, Dr. Friedman noted, among other impressions, that the extent of the tears in S.E.‘s brain would have required “significant forces” and could not be caused by “common forces,” such as “things that children get from their play or routine accidents of short distance falls.” (Tr. 539.) Rather, such tears “occur in things like motor vehicle accidents, significant multistory falls, and other very forceful situations.” (Tr. 539-540.) Similarly, Dr. Friedman testified that the nature of damage caused to S.E.‘s retinal membranes are typically “described in serious crush injuries, they‘re described in motor vehicle accidents, and they‘re described in abusive head trauma. When children are handled with such significant forces, it was caused by someone who meant to harm them.” (Tr. 543.) Accordingly, Dr. Friedman opined to a reasonable degree of medical certainty “that the injury [S.E.] suffered was a non-accidental trauma.” (Tr. 548.)
{¶ 24} At the conclusion of the jury trial, Mallory was found guilty of involuntary manslaughter and endangering children as charged in Counts 5 and 6 of the indictment. However, Mallory was found not guilty of аggravated murder and felonious assault as charged in Counts 1 and 3 of the indictment. In addition, the jury was unable to reach a decision of guilt or no guilt as to the murder and endangering children
The court finds beyond a reasonable doubt that Mr. Mallory is guilty of domestic violence in Count 7 as charged, that he did knowingly cause physical harm to [S.E.], a family or household member, and, furthermore, that he previously pled guilty on or about February 7, 2020, in the Court of Common Pleas of Cuyahoga County case number 19-644206 to felonious assault and domestic violence.
(Emphasis added.) (Tr. 870.)
{¶ 25} Prior to sentencing, Mallory agreed to enter into a negotiated plea agreement with the state in an effort to resolve Counts 2 and 4 of the indictment. Under the terms of the plea agreement, Mallory agreed to plead guilty to endangering children as charged in Count 4 of the indictment. Mallory further agreed to a sentence of four years on Count 4, to run consecutive to an agreed-upon sentence of 11 years on Count 5, involuntary manslaughter. (Tr. 872-873.) In exchange for his plea, the state agreed to dismiss Count 2 of the indictment. Following a
{¶ 26} At sentencing, the trial court imposed the agreed-upon four-year prison term on the endangering children offense charged in Count 4 of the indictment, an 11 to 16.5-year prison term on the involuntary manslaughter offense charged in Count 5 of the indictment, a three-year prison term on the endangering children offense charged in Count 6 of the indictment, and an 18-month prison term on the domestic violence offense charged in Count 7 of the indictment. The sentences imposed in Counts 4 and 5 were ordered to run consecutively to each other. The remaining prison terms were ordered to run concurrently.
{¶ 27} Mallory now appeals from his convictions and sentence.
II. Law and Analysis
A. Sufficiency of the Evidence
{¶ 28} In his first, second, and third assignments of error, Mallory argues the evidence was insufficient to support his convictions for domestic violence, endangering children, and involuntary manslaughter.
{¶ 29} A sufficiency challenge requires a court to determine whether the state has met its burden of production at trial and to consider not the credibility of the evidence but whether, if credible, the evidence presented would sustain a conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶ 30} “Proof of guilt may be made by circumstantial evidence, real evidence, and direct evidence, or any combination of the three, and all three have equal probative value.” State v. Rodano, 2017-Ohio-1034, 86 N.E.3d 1032, ¶ 35 (8th Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698, 2011-Ohio-1060, ¶ 18. Although circumstantial evidence and direct evidence have obvious differences, those differences are irrelevant to the probative value of the evidence,
{¶ 31} With this standard in mind, we separately address Mallory‘s convictions for domestic violence, endangering children, and involuntary manslaughter.
1. Domestic Violence
{¶ 32} In this case, Mallory was convicted of domestic violence in violation of
{¶ 33} Generally, a violation of
if the offender previously has pleaded guilty to or been convicted of domestic violence, a violation of an existing or former ordinance or law of this or any other state or the United States that is substantially similar to domestic violence, a violation of section
2903.14 [negligent assault],2909.06 [criminal damaging],2909.07 [criminal mischief],2911.12 [burglary],2911.211 [aggravated trespass], or2919.22 [endangering children] of the Revised Code if the victim of the violation was a family or household member at the time of the violation, a violation of an existing or former municipal ordinance or law of this or any other state оr the United States that is substantially similar to any of those sections if the victim of the violation was a family or household member at the time of the commission of the violation, or any offense of violence if the victim of the offense was a family or household member at the time of the commission of the offense[.]
(Emphasis added.)
{¶ 34} On appeal, Mallory does not dispute that the state presented sufficient evidence to support his conviction under
{¶ 35} In contrast, the state maintains that the enhancement of the conviction was warranted because the offense of assault is “substantially similar” to the offense of domestic violence. Thus, the state contends
{¶ 36} Our duty when construing a statute is to determine and give effect to the intent of the General Assembly as expressed in the language it enacted. Griffith v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18; Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20. “When the statutory language is plain and unambiguous, and conveys a clear and definite meaning, we must rely on what the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000).
{¶ 37} “Where a statute defines terms used therein, such definition controls in the application of the statute * * *.” Good Samaritan Hosp. of Dayton v. Porterfield, 29 Ohio St.2d 25, 30, 278 N.E.2d 26 (1972), citing Terteling Bros., Inc. v. Glander, 151 Ohio St. 236, 85 N.E.2d 379 (1949), and Woman‘s Internatl. Bowling Congress, Inc. v. Porterfield, 25 Ohio St.2d 271, 267 N.E.2d 781 (1971). Terms that are undefined in a statute are accorded their common, everyday meaning. See
{¶ 38} With respect to the state‘s position on appeal, the term “substantially similar” is not defined by the Ohio Revised Code. In an effort to assess the ordinary meaning of the term “substantially similar” as applied in
{¶ 39} After careful consideration, we find no merit to the state‘s contention that the offense of assault, as defined by
{¶ 40} Our conclusion is further supported by language of
{¶ 41} Based on the foregoing, we agree with Mallory that in order to elevate his domestic violence conviction to a felony of the fourth degree pursuant to
On a former day of court the defendant plead[ed] guilty to assault
2903.13(A) M1 as amended in Count(s) 1 of the indictment.Count(s) 2 was/were nolled.1
{¶ 42} At the time the journal entry was admitted, there was no stipulation on the record as to who the victim was in Case No. CR-19-644206-A. This court has previously held that if, for instance, a defendant had previously been convicted of domestic violence then their stipulation to being the defendant in a previous case is sufficient evidence to enhance an offense under this statute. State v. Williams, 8th Dist. Cuyahoga No. 84040, 2004-Ohio-6418. “That logic does not extend to the present situаtion. The identity of the defendant was not the only fact at issue; the relationship to the victim was an essential element that must be proved.” State v. Sanders, 8th Dist. Cuyahoga No. 107253, 2019-Ohio-1524.
{¶ 43} Under these circumstances, we find this case to be analogous to those presented in State v. Crenshaw, 8th Dist. Cuyahoga No. 108830, 2020-Ohio-4922. In Crenshaw, the defendant was convicted of endangering children in violation of
FURTHERMORE, the offender previously had pleaded guilty to or been convicted of Aggravated Assault on or
about December 19, 2017, in the Court of Common Pleas, Cuyahoga County, Ohio, Case No. CR17-620327.
{¶ 44} On appeal, the defendant argued that the trial court erred in elevating her domestic violence conviction to a felony of the fourth degree because the state failed to establish that her prior aggravated assault conviction was an enhancing offense. Specifically, the defendant maintained that the state did not submit any evidence to establish that her aggravated assault conviction victimized a family or household member. This court found merit to the defendant‘s argument, noting that although the defendant stipulated that she was the defendant in the aggravated assault case, there was nothing in the record to support the state‘s assertion that it was understood that her prior conviction was committed against her husband. Id. at 75-81. In finding the state failed to provide sufficient evidence to prove that the defendant‘s conviction should be enhanced pursuant to
Here, we cannot simply take the state‘s word in an appellate brief that Crenshaw perpetrated her aggravated assault against her family member. It may have been the intention of Crenshaw and her attorney to stipulate to that fact but we cannot rely on conjecture when it comes to proving an essential element of the crime.
There is nothing in this record that indicates that the victim of the aggravated assault was a family member. Crenshaw did not stipulate to that fact. As a result, we cannot find that the enhancing offense was proven.
{¶ 45} As in Crenshaw, there is nothing before this court to conclude that Mallory‘s prior assault conviction was committed against a family or household member. The journal entry submitted in support of the furthermore clause attached to Count 7 is silent on this matter and we may not presume the identity of the victim in the absence of credible evidence or a stipulation by the parties. Thus, although Mallory concedes that there was sufficient evidence supporting his domestic violence conviction, we find there was insufficient evidence to warrant the enhancement of the offense to a felony of the fourth degree pursuant to
{¶ 46} Mallory‘s first assignment of error is sustained.
2. Endangering Children
{¶ 47} In this case, Mallory was convicted of endangering children in violation of
(A) No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age * * *, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. * * *
(B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age:
(1) Abuse the child[.]
{¶ 48} To support a conviction for child endangering under
{¶ 49} In distinguishing the negleсt form of child endangering set forth in
{¶ 50} Because he accepted guilt by entering a guilty plea, Mallory cannot challenge the evidence supporting his conviction pursuant to
{¶ 51} In contrast, the state argues there was sufficient evidence introduced at trial for a reasonable juror to conclude that Mallory created a substantial risk to the health and safety of the victim by engaging in neglectful behavior on the day of this incident. The state contends that even if Mallory‘s version of the events were to be believed, his statements demonstrated that he breached his duty of care, protection, and support by (1) failing to supervise S.E. at the time she was playing in a separate room, (2) leaving S.E. alone after she sustained her injuries, and (3) speaking with Mother rather than calling for emergency assistance.
{¶ 52} After careful review of the record, we agree with Mallory‘s assertion that the state presented no evidence to suggest that, if S.E.‘s injuries were the result of an accident, Mallory breached his duty of care to S.E. by failing to adequately supervise the children under his care. Throughout the pendency of trial, the state rejected any suggestion that S.E. was injured as a result of an accident by presenting ample evidence that her injuries required significant forces that could only be caused by someone who intended to cause serious physical harm. With that said, however, evidence tending to show that Mallory physically abused the minor victim does not preclude a finding that Mallory also committed acts of omission thereafter.
{¶ 53} In this case, S.E. sustained a number of readily apparent injuries to her head and body, including a “golf ball size hematoma to the left side of her forehead
{¶ 54} Under the foregoing circumstances, we find a reasonable juror could conclude that Mallory, who was acting in loco parentis of the 18-month-old child, recklessly created a substantial risk to the health or safety of the child when he failed to timely seek medical attention for the victim child. See State v. Boyd, 8th Dist. Cuyahoga No. 108552, 2020-Ohio-3450, ¶ 27. Accordingly, we find sufficient evidence supported Mallory‘s endangering children conviction pursuant to
{¶ 55} Mallory‘s second assignment of error is overruled.
3. Involuntary Manslaughter
{¶ 56} Mallory was convicted of involuntary manslaughter in violation of
{¶ 57} In this case, Count 5 of the indictment alleged that S.E.‘s death was the proximate result of Mallory committing or attempting to commit the felony offense of endangering children in violation of
{¶ 58} Consistent with his previous arguments, Mallory contends that because the predicate-felony convictions of endangering children (Count 6) and domestic violence (Count 7) are not supported by sufficient evidence, this court is required to find insufficient evidence supporting his involuntary manslaughter conviction. Alternatively, Mallory contends that “even if one of the two predicates in this case is determined by this court to serve as sufficient evidence to support the manslaughter charge, if the other is not the conviction must be vacated.” Mallory states that where, as here, alternative-predicate offenses underlie the offense of involuntary manslaughter, the state is required to prove each alternative means beyond a reasonable doubt. In support of his position, Mallory relies on the Ohio Supreme Court‘s decisions in State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, and State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127.
{¶ 59} In Gardner, the plurality opinion of the Ohio Supreme Court stated, “[a]lthough Crim.R. 31(A)2 requires juror unanimity on each element of the crime, jurors need not agree to a single way by which an element is satisfied.” Id. at ¶ 38, citing Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). Regarding the alternative predicate offenses alleged to have supported
Mallory‘s involuntary manslaughter conviction in this case, Gardner clarified its holding as follows:
In determining whether the state has impermissibly interfered with a defendant‘s Crim.R. 31(A) right to juror unanimity and the due process right to require that the state prove each element of the offense beyond a reasonable doubt, the critical inquiry is whether the case involves “alternative means” or “multiple acts.”
““In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.“”
(Emphasis added.) Id. at ¶ 48-49, quoting State v. Jones, 96 Hawai‘i 161, 170, 29 P.3d 351 (2001), quoting State v. Timley, 255 Kan. 286, 289-290, 875 P.2d 242 (1994), quoting State v. Kitchen, 110 Wash.2d 403, 410, 756 P.2d 105 (1988).
{¶ 60} Although Gardner was a plurality opinion, the Ohio Supreme Court‘s subsequent decision in Adams makes it clear that the court still adheres to the juror unanimity rule stated in Gardner. See State v. McKinney, 8th Dist. Cuyahoga No. 106377, 2019-Ohio-1118, ¶ 31. In Adams, the court was asked to address whether there was sufficient evidence supporting the defendant‘s capital specification pursuant to
To find that the
R.C. 2929.04(A)(7) specification has been proved when more than one predicate offense is alleged, the jury must unanimously find beyond a reasonable doubt that the defendant committed aggravated murder during the course of one or more of the alleged predicate offenses, but the jury need not unanimously agree on which predicate offense was committed.In a case such as this one, jury unanimity is not required as to the means underlying the capital specification so long as substantial evidence supports each alternative means.
Id. at ¶ 273-274, citing Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, at ¶ 49. Although Adams involved the review of the evidence supporting a capital
The state assumed the burden of producing sufficient evidence as to each of the alternative means of the
R.C. 2929.04(A)(7) specification here, given the way the omnibus capital specification was presented to the jury. Accordingly, the principles we apply can be stated as follows: In an appeal of a death sentence based on anR.C. 2929.04(A)(7) specification when more than one predicate offense is alleged but the jury has not made a finding as to which predicate offense was committed, a reviewing court must determine underR.C. 2929.05(A) whether there is sufficient evidence to support each of the alternative predicate-offense theories. The appellate court must determine whether a rational trier of fact could have found each means of committing thе crime of aggravated murder in the course of the allegedR.C. 2929.04(A)(7) predicate offenses proved beyond a reasonable doubt. When an appellate court reviews the sufficiency of the evidence pursuant toR.C. 2929.05(A) as to theR.C. 2929.04(A)(7) aggravating circumstance in an aggravated-murder case in which more than one predicate offense is alleged but the jury has not made a finding as to which predicate offense was committed, and the appellate court determines that the state proved some but not all of the alleged predicate offenses that could establish the aggravating circumstance, the evidence is, as a matter of law, insufficient to support a death sentence and the death sentence must be vacated.
{¶ 61} Applying its standard to the facts before it, the Adams Court determined that although the state presented sufficient evidence to establish the predicate offenses of rape, kidnapping, and aggravated robbery, there was insufficient evidence supporting the predicate offense of aggravated burglary. Thus, the court concluded that it was
compelled to hold that the state‘s success in proving some of the alternative means cannot make up for its failure to prove all the suggested means by which Adams may have committed the aggravating circumstance. Gardner, 118 Ohio St. 3d 420, 2008-Ohio-2787, 889 N.E.2d 995, at ¶ 49. Because the state failed to produce sufficient evidence to prove all elements of aggravatеd burglary, we find insufficient evidence to support the finding on the
R.C. 2929.04(A)(7) capital specification.
Id. at ¶ 288. Accordingly, the Adams Court vacated the defendant‘s sentence of death and remanded the case to the trial court for a new sentencing hearing.
{¶ 62} In reaffirming the principle that “each possibility in an alternative-means case must be supported by sufficient evidence,” Adams declined to abandon the holding of Gardner in favor of the rule adopted by the United States Supreme Court in Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). In explaining its position, the lead opinion stated, in relevant part:
Griffin held that in federal prosecutions, a general verdict based on alternative means will be sustained if the evidence warrants a guilty verdict on one theory of guilt, even if there is insufficient evidence of guilt as to an alternative theory. Id. at 56-57. Griffin was premised on a dubious assumption of juror infallibility: the jury will always disregard an unproven theory and convict only on the proven theory.
The Griffin assumption defies experience and common sense. As the Supreme Judicial Court of Massachusetts
explained, “[i]f the premise of the Supreme Court‘s position were correct, a jury would never return a guilty verdict when the evidence was insufficient to warrant that verdict, and we know that is not so.” Commonwealth v. Plunkett, 422 Mass. 634, 640, 664 N.E.2d 833 (1996). When the Supreme Court of California adopted Griffin with modifications, one justice who did not accept the court‘s reasoning thoroughly dissected Griffin: First, the premise of jury “infallibility” is unsupported. Jurors may be “well equipped” to determine pure questions of fact. But their expertise does not extend to mixed questions of law and fact—which include the sufficiency оf the evidence. Second, the premise of jury “infallibility” is subversive. If it obtained, we would be compelled to dismiss at the very threshold each and every insufficient-evidence claim raised against any verdict of guilt. For we would then be required to conclude that if the evidence had indeed been lacking, the jury would necessarily have discerned the deficiency and could not possibly have rendered a guilty verdict. Thus, the bare fact of the verdict would establish the sufficiency of the evidence as a matter of law.
People v. Guiton, 4 Cal.4th 1116, 1132-1133, 17 Cal.Rptr.2d 365, 847 P.2d 45 (1993) (Mosk, J., concurring in judgment only). This illogical result is precisely what the separate opinion of Justice O‘Donnell urges this court to adopt.
{¶ 63} In accordance with the directives of Gardner and Adams, the first question we must answer is whether sufficient evidence supported each of the two alternative means submitted to the jury in relation to the offense of involuntary manslaughter. Here, the jury was instructed to convict Mallory of involuntary manslaughter in violation of
{¶ 64} Based on the foregoing, we find the state failed to produce sufficient evidence to prove the alternative means offense of felony domestic violence. With that said, however, we find no merit to Mallory‘s contention that his involuntary manslaughter conviction must be vacated on sufficiency grounds — thereby warranting the attachment of double jeopardy. To the contrary, we find the evidence, when viewed in a light most favorable to the state, would permit a reasonable trier of fact to conclude that Mallory caused the death of S.E. as a proximate result of his commission of the felony offense of endangering children. Accordingly, the evidence,
{¶ 65} In declining to overturn the involuntary manslaughter conviction on sufficiency grounds, we note that Mallory has provided no case law to suggest that Gardner and Adams mandate the conclusion that where the state fails to prove each of the alternative means supporting a base offense beyond a reasonable doubt, a reviewing court is bound to find the base offense is not supported by sufficient evidence. The analysis set forth in Gardner was limited to an assessment of “whether jurors must agree unanimously as to which criminal offense a defendant intended to commit during a burglary.” Gardner, 118 Ohio St. 3d 420, 2008-Ohio-2787 at ¶ 37, 889 N.E.2d 995. In fact, Ohio courts have expressly recognized that “[t]he Supreme Court‘s ruling in Gardner is based on Crim.R. 31(A), rather than constitutional due process considerations.” Rawson, 10th Dist. Franklin No. 14AP-1023, 2016-Ohio-1403, ¶ 21, citing Gardner at ¶ 35 (“[T]his opinion will proceed on the understanding that unanimity in a juror verdict in state courts is not protected by the federal Constitution.“). In turn, Adams concerned the sufficiency of the evidence supporting the defendant‘s capital specification. Although the court declined to consider the sufficiency of the defendant‘s underlying aggravated-murder conviction because the defendant did not raise the issue within his appeal, we will not presume the court would have vacated the defendant‘s conviction on sufficiency grounds had the issue been before the court.
{¶ 66} Accordingly, although Mallory labels this assignment of error as a challenge to the sufficiency of the evidence, we find Mallory‘s citations to Gardner and Adams, as well as the argumеnts presented herein, are more akin to a Crim.R. 31(A) challenge. See Orr v. Hayes, 7th Dist. Mahoning No. 02 CA 27, 2002-Ohio-7441, ¶ 7 (courts look at the content of the document to determine its nature; not titles or labels). The distinction between an argument relating to the presentation of legally insufficient evidence and one pertaining to a violation of Crim.R. 31 is significant in this case, because Mallory did not object to the unanimity of his verdict or the contents of the court‘s jury instructions on the alternative means offenses. In the absence of a timely objection, our review is limited to plain error.
{¶ 67} To constitute plain error, there must be (1) an error, i.e., a deviation from a legal rule; (2) that is plain or obvious; and (3) that affected substantial rights, i.e., affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. “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. Mallory, 8th Dist. Cuyahoga No. 106052, 2018-Ohio-1846, ¶ 17, quoting State v. Long, 53 Ohio St.2d 91, 93, 372 N.E.2d 804 (1978), paragraph two of the syllabus. The “extremely high burden” of demonstrating plain error is on the defendant. State v. Chapman, 8th Dist. Cuyahoga No. 107375, 2019-Ohio-1452, ¶ 20.
{¶
{¶ 69} Nevertheless, viewing the record in its entirety, we find no plain error. As previously stated, the jury in this case found Mallory not guilty of aggravated murder and felonious assault as charged in Counts 1 and 3 of the indictment. The jury was also unable to reach a decision of guilt or no guilt as to the murder and endangering children (abuse) offenses charged in Counts 2 and 4 of the indictment. Similar to the alternative means offense of domestic violence, the foregoing offenses each related to allegations that Mallory committed affirmative acts of abuse against the victim that resulted in physical harm or death. Given the implications of the jury‘s assessment of Counts 1-4 of the indictment, it logically follows that the jury found Mallory guilty of involuntary manslaughter based on the predicate offense of endangering children, which required a finding of neglect rather than a finding of abuse. Given the overwhelming evidence supporting the predicate offense of involuntary manslaughter, we are unable to conclude that this is the exceptional case where notice of plain error is necessary to avoid a manifest miscarriage of justice.
{¶ 70} Based on the foregoing, we find sufficient evidence supports Mallory‘s involuntary manslaughter conviction. We further conclude thаt, despite the violation of Crim.R. 31, Mallory has failed to demonstrate plain error.
{¶ 71} Mallory‘s third assignment of error is overruled.
B. Manifest Weight of the Evidence
{¶ 72} In his fourth assignment of error, Mallory argues his domestic violence, endangering children, and involuntary manslaughter convictions are against the manifest weight of the evidence.
{¶ 73} In reviewing a challenge to the manifest weight of the evidence supporting a conviction, a reviewing court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “When considering [a defendant‘s] claim that a conviction is against the manifest weight of the evidence, the court of appeals sits as a ‘thirteenth juror’ and may disagree with the factfinder‘s resolution of conflicting testimony.” Thompkins, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). A conviction should be reversed as against the manifest weight of the evidence only in the most “exceptional case in which the evidence weighs heavily against the conviction.” Id.
With respect to child endangering, there was no proof that [Mallory] committed any specific act of omission necessary to show a failure to care for S.E. and no separate physical harm to uрgrade that act to a felony if there had been an omission. With respect to domestic violence, there was no evidence that the prior assault predicate involved a family or household member. With respect to involuntary manslaughter, since neither predicate was sustained by proof, the conviction was against the manifest weight of the evidence.
{¶ 75} In the absence of a specific challenge to the credibility of the witnesses or the weight to be afforded to their testimony, we are unable to conclude that Mallory‘s convictions are against the manifest weight of the evidence. In this case, the circumstances surrounding S.E.‘s death were exhaustively addressed at trial and the state presented ample evidence concerning Mallory‘s actions on the day of the incident, his role in S.E.‘s injuries, the severity of S.E.‘s internal and external injuries, and medical implications associated with the delay in S.E.‘s emergency treatment. Defense counsel thoroughly cross-examined the state‘s witnesses concerning their opinions relating to the manner and cause of death, and the trier of fact was provided with all pertinent information concerning Mallory‘s contention that S.E. died as a result of a tragic accident. Viewing the record in its entirety, we find no basis to conclude that the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the convictions must bе reversed and a new trial ordered.
{¶ 76} Mallory‘s fourth assignment of error is overruled.
C. Ineffective Assistance of Counsel
{¶ 77} In his fifth assignment of error, Mallory argues defense counsel rendered ineffective assistance of counsel by failing to set forth specific arguments during his Crim.R. 29 motion for acquittal “as to child endangering (that the omission element necessary for conviction was not met), felony domestic violence (no proof of the predicate), and involuntary manslaughter (no proof of both predicates).” Reframed, Mallory contends that had defense counsel articulated the arguments posed in his first, second, and third assignments of error, he would not have been convicted of endangering children, felony domestic violence, or involuntary manslaughter.
{¶ 78} Our review of counsel‘s performance is highly deferential. State v. Korecky, 8th Dist. Cuyahoga No. 108328, 2020-Ohio-797, ¶ 20, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because we presume licensed attorneys are competent, the party claiming ineffective assistance of counsel bears the burden of proving that counsel was ineffective. Id., citing State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985).
{¶ 79} “To gain reversal on a claim of ineffective assistance of counsel, a defendant must show that (1) his ‘counsel‘s performance was deficient,’ and (2) ‘the deficient performance prejudiced the defense.‘” State v. Fisher, 8th Dist. Cuyahoga No. 108494, 2020-Ohio-670, ¶ 18, quoting Strickland at 687. “The first prong of Strickland‘s test requires the defendant to show ‘that counsel‘s representation fell below an objective standard of reasonableness.‘” Id., quoting Strickland at 688. ”Strickland‘s second prong requires
{¶ 80} “While ‘[t]he right to counsel is the right to the effective assistance of counsel,’ ‘trial strategy or tactical decisions cannot form the basis for a claim of ineffective counsel.‘” Fisher at ¶ 19, quoting Strickland at 686, citing McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
{¶ 81} In this case, defense counsel moved the court to dismiss all charges against Mallory at the conclusion of the state‘s case pursuant to Crim.R. 29. Counsel argued, in pertinent part:
We would ask the court to grant that Rule 29 motion as to all the counts, and I will start out with the State obviously has not, despite calling numerous witnesses, some of them experts, been able to tell the fact-finders in this case exactly what caused the injury to [S.E.] that eventually led to her death.
Clearly there is a lack of evidence of any sort showing exactly what happened. As a result, Your Honor, there is no way the jury can find beyond a reasonable doubt that any of the diverse theories that the state has set forth in its six-count indictment is provable beyond a reasonable doubt, and we would argue at this point even viewing in the light most favorable to the state of Ohio there is insufficient evidence.
(Tr. 774.) Counsel then set forth detailed arguments concerning the inadequacy of the evidence supporting the aggravated murder charge. Counsel asserted that S.E.‘s death was the result of a tragic accident and that there was “no direct or circumstantial evidence that Mr. Mallory had any specific intent to cause the death of [S.E.].” (Tr. 775.) Defense counsel subsequently renewed his request for an acquittal after the defense rested. (Tr. 778.)
{¶ 82} After careful consideration, we are unable to conclude that counsel was deficient for broadly attacking the state‘s theory concerning Mallory‘s role in the events leading to S.E.‘s death. In this case, the predominant issue before the jury was whether S.E.‘s injuries were sustained during an accidental fall or whether they were directly caused by Mallory. In this regard, defense counsel made the strategic decision to reiterate Mallory‘s position that S.E. died as a result of an unforeseen accident. Counsel further made the tactical decision to focus his specific arguments on the aggravated murder charge, which counsel maintained would prejudicially invoke the juror‘s sympathy if it were permitted to go before the jury. We decline to second-guess counsel‘s strategic decisions, which ultimately proved successful on a number of serious charges set forth in the indictment.
{¶ 83} Moreover, we find Mallory has failed to establish the requisite level of prejudice to support a finding of ineffective assistance of counsel. At the time the Crim.R. 29 motion was posed in this case, the domestic violence offense had yet to be presented to the bench. Thus, it would have been premature to raise issues concerning thе alleged deficiencies in the journal entry introduced in an effort to satisfy
{¶ 84} Mallory‘s fifth assignment of error is overruled.
D. Postrelease Control
{¶ 85} In his sixth assignment of error, Mallory argues the trial court erred when it improperly imposed a mandatory five-year period of postrelease control on his involuntary manslaughter conviction. Mallory contends that “[u]nder
{¶ 86} Because a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing, any sentence imposed without proper notice of postrelease control is contrary to law. State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 8, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23 (both overruled on other grounds by State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248).
{¶ 87} A statutorily compliant imposition of postrelease control requires that the trial court advise the defendant of three things at the sentencing hearing and in the sentencing entry: “(1) whether postrelease control is discretionary or mandatory, (2) the duration of the postrelease control period, and (3) a statement to the effect that the Adult Parole Authority will administer the postrelease control pursuant to
{¶ 88} Relevant to this appeal, sections
{¶ 89} In this case, Mallory argues that the trial court erred by failing to afford him “the benefit of the reduced postrelease control sentence” on his first-degree felony conviction for involuntary manslaughter. In contrast, the state contends that Mallory “is subject to the original version of the statute” because “there is no provision in
{¶ 90} Whether the trial court erred in failing to apply the amended version of
{¶ 91} It is well settled in Ohio that “when the General Assembly reenacts, amends, or repeals a criminal statute, the substantive provisions of the former law apply to all pending prosecutions, but the defendants receive the benefit of a reduced
(A) The reenactment, amendment, or repeal of a statute does not, except as provided in division (B) of this section:
(1) Affect the prior operation of the statute or any action taken thereunder;
(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, or incurred thereunder;
(3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal;
(4) Affect any investigation, proceeding, or remedy in respect of any such privilege, obligation, liability, penalty, forfeiture, or punishment, and the investigation, proceeding, or remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the statute had not been repealed or amended.
(B) If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or
punishment, if not already imposed, shall be imрosed according to the statute as amended.
{¶ 92} Thus, “if a statute is amended and becomes effective while the defendant‘s case is pending in the trial court, then its applicability to the defendant‘s case is guided by
{¶ 93} In accordance with the foregoing, the applicable inquiry in this case is whether the amendment reflected in
{¶ 94} As previously discussed, when interpreting a statute, we give plain and ordinary meaning to all the words and phrases in the statute and give effect to all parts of the statutory scheme. See State v. Singer, 50 Ohio St.2d 103, 108, 362 N.E.2d 1216 (1977); United Tel. Co. of Ohio v. Limbach, 71 Ohio St.3d 369, 372, 643 N.E.2d 1129 (1994). Generally, the term “penalty” means “the punishment inflicted by a law for its violation. The term is most applied to a pecuniary punishment.” In re Lange‘s Estate, 164 Ohio St. 500, 505, 132 N.E.2d 96 (1956). Black‘s Law Dictionary indicates that the word, “penalty,” is “[a]n elastic term with many different shades of meaning,” but it typically “involves the idea of punishment, corporeal or pecuniary, or civil or criminal, although its meaning is generally confined to pecuniary punishment.” Black‘s Law Dictionary 1133 (6th Ed. 1990); State v. Solomon, 2012-Ohio-5755, 983 N.E.2d 872, ¶ 38 (1st Dist.). “Forfeiture” is “[a] comprehensive term which means a divestiture of specific property without compensation,” and it includes the “[l]oss of some right or property as a penalty for some illegal act.” Black‘s at 650; Solomon at ¶ 39; State v. Whitaker, 111 Ohio App.3d 608, 615, 676 N.E.2d 1189 (6th Dist.1996), quoting Webster‘s Third New International Dictiоnary (1986) 891, (defining “[f]orfeiture” * * * as “the loss of property or money on account of one‘s breach of [a] * * * legal obligation“). Finally,
{¶ 95} After careful review of pertinent case law, we find the imposition of postrelease control constitutes a penalty, forfeiture, or punishment as contemplated under
At its core, postrelease control is a sanction; it is an additional term of supervision after an offender‘s release from prison that imposes certain restrictions on the offender and, if violated, it allows the APA to impose conditions and consequences, including prison time, upon the offender. See
R.C. 2967.01(N) . Postrelease control is “aimed at behavior modification in the attempt to reintegrate the offender safely into the community.” Woods v. Telb, 89 Ohio St.3d 504, 512, 733 N.E.2d 1103 (2000); see also State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 16. In essence, postrelease control is a continued restraint on an offender‘s liberty after he or she serves the initial prison sentence. See Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 52; see also Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 31, superseded by statute as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.
Id. at ¶ 21; see also State v. Martello, 97 Ohio St.3d 398, 402 (“post-release control is part of the original judicially imposed sentence.“). Consequently, we believe that
{¶ 96} Based on the foregoing, we reverse the trial court‘s application of
{¶ 97} Mallory‘s sixth assignment of error is sustained.
D. Reagan Tokes Law
{¶ 98} In his seventh assignment of error, Mallory argues the trial court erred in sentencing him under the Reagan Tokes Law, which became effective March 22, 2019. He contends the Reagan Tokes Law is unconstitutional “insofar as it violates the separation of powers clause by delegating sentencing to the executive branch of government and insofar as it violates the liberty interest of a defendant by failing to provide for meaningful protections against the violation of that interest.”
{¶ 99} As acknowledged by Mallory on appeal, the question of whether the Reagan Tokes Law is constitutional was decided in this court‘s en banc opinion in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). There, this court found “that
{¶ 100} Mallory‘s seventh assignment of error is overruled.
III. Conclusion
{¶ 101} Based on the foregoing, we affirm Mallory‘s convictions for endangering children (Counts 4 and 6), involuntary manslaughter (Count 5), and domestic violence (Count 7). However, because the furthermore specification attached to the domestic violence offense was not supported by sufficient evidence,
the domestic violence conviction must be modified to a misdemeanor of the first degree. On remand, the trial court shall resentence Mallory on the domestic violence offense to conform to the sentencing statutes governing misdemeanor offenses. In addition, we vacate the specified term of postrelease control imposed as part of Mallory‘s sentence and remand for a resentencing hearing limited to the proper imposition of postrelease control under
{¶ 102} Judgment affirmed in part, reversed in part, and remanded to the trial court for further proceedings.
It is ordered that appellant and appellee share the 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 pleas 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.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EMANUELLA D. GROVES, J., CONCURS
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that
Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes (dissenting) and Judge Anita Laster Mays (concurring in part and dissenting in part) in Delvallie and would have found the Reagan Tokes Law unconstitutional.