STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, - VS - KEVIN ROLLAND, DEFENDANT-APPELLANT.
CASE NO. 12 MA 68
SEVENTH DISTRICT
June 25, 2013
[Cite as State v. Rolland, 2013-Ohio-2950.]
Hon. Mary DeGenaro, Hon. Gene Donofrio, Hon. Joseph J. Vukovich
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains, Prosecuting Attorney; Attorney Ralph M. Rivera, Assistant Prosecuting Attorney, 21 W. Boardman St., 6th Floor, Youngstown, OH 44503
For Defendant-Appellant: Attorney Timothy Cunning, 940 Windham Court, Suite 4, Boardman, OH 44512
{1} Defendant-Appellant, Kevin Rolland, appeals the March 16, 2012, judgment of the Mahoning County Court of Common Pleas sentencing him on one count of aggravated vehicular homicide. On appeal, Rolland first contends that
{2} Upon review, Rolland‘s arguments are meritless. While Rolland did not challenge the constitutionality of
Facts and Procedural History
{3} On May 11, 2011, Rolland was involved in a fatal automobile accident. On June 16, 2011, Rolland was indicted by the Mahoning County Grand Jury on one count of aggravated vehicular homicide in violation of
Effect of Guilty Plea on Constitutional Challenge
{5} Because Roland‘s arguments relative to his first and second of four assignments of error are somewhat interrelated, we will address them together for clarity of analysis. Roland asserts:
{6} ”
{7} ”
{8} As a preliminary matter, the State argues that because trial counsel did not raise either issue in the trial court, Rolland has waived both of these errors on appeal for different reasons. With respect to Rolland‘s constitutional challenge, “the failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state‘s orderly procedure, and therefore need not be heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986) at syllabus. However, the waiver doctrine discussed in Awan is discretionary; a “court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it.” In re M.D., 38 Ohio St.3d 149, 151, 527 N.E.2d 286 (1988); State v. Adams, 7th Dist. No. 12 MA 26, 2013-Ohio-1433, ¶16.
{9} Further, in State v. Wilson, 58 Ohio St.2d 52, 55, 388 N.E.2d 745 (1979), the Ohio Supreme Court held that “those constitutional violations which go to the ability of the state to prosecute, regardless of factual guilt, may be raised on appeal from a guilty plea.” The Court quoted the United States Supreme Court holding from Menna v. New York,
“Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty. Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974). 2 * * * ” [Menna], 423 U.S. 61, 62, 96 S.Ct. 241, 242, 46 L.Ed.2d 195. * * *
Thus, the United States Supreme Court distinguished constitutional violations which go to factual guilt from constitutional violations which pertain to the validity of the statute relied upon by the state to convict the defendant. Therefore, those constitutional violations which go to the ability of the state to prosecute, regardless of factual guilt, may be raised on appeal from a guilty plea.
Wilson, *54-55
{10} Pursuant to Menna and Wilson, a constitutional challenge to
{11} As to Rolland‘s second assignment of error, challenging the applicability of
Constitutionality of Juvenile Offenses as Enhancements
{12} Turning to the merits of his first assignment of error, Rolland argues that
{13}
(A) If a person is alleged to have committed an offense and if the person previously has been adjudicated a delinquent child or juvenile traffic offender for a violation of a law or ordinance, except as provided in division (B) of this section, the adjudication as a delinquent child or as a juvenile traffic offender is a conviction for a violation of the law or ordinance for purposes of determining the offense with which the person should be charged and, if the person is convicted of or pleads guilty to an offense, the sentence to be imposed upon the person relative to the conviction or guilty plea.
{14} The Eighth Amendment to the Constitution of the United States provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Ohio Supreme Court has stated that cases in which cruel and unusual punishments have been found are limited to those involving sanctions which under the circumstances would be considered shocking to any reasonable person, and furthermore that the penalty must be so greatly disproportionate to the offense as to shock the sense of justice of the community. State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, citing State v. Weitbrecht, 86 Ohio St.3d 368, 371, 1999-Ohio-113, 715 N.E.2d 167, quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203
{15} Roper, Graham and Miller are inapplicable. These cases apply only to juvenile offenders, and prohibit the imposition of a death sentence or life without the possibility of parole for homicide or nonhomicide offenses, when committed by a juvenile. Here, Rolland was not a juvenile at the time he committed the instant aggravated vehicular homicide offense. A prior juvenile adjudication for aggravated vehicular homicide—which resulted in the death of two victims—was a statutorily mandated enhancement of the penalty imposed for Rolland‘s second aggravated vehicular homicide offense. Nothing in Roper, Graham and Miller suggests an extension of their holdings to adult offenders, especially where neither a death sentence, nor life without the possibility of parole, has been imposed.
{16} Nor is Rolland‘s sentence otherwise contrary to the prohibition against cruel and unusual punishment by the manner in which
Allocution
{17} In his third assignment of error, Rolland asserts:
{18} “Appellant‘s due process rights were violated because the trial court failed to comply with the standard set forth in
{19}
(A) The court shall hold a sentencing hearing before imposing a sentence under this chapter upon an offender who was convicted of or pleaded guilty to a felony and before resentencing an offender who was convicted of or pleaded guilty to a felony and whose case was remanded pursuant to section
2953.07 or2953.08 of the Revised Code. At the hearing, the offender, the prosecuting attorney, the victim or the victim‘s representative in accordance with section2930.14 of the Revised Code, and, with the approval of the court, any other person may present information relevant to the imposition of sentence in the case. The court shall inform the offender of the verdict of the jury or finding of the court and ask the offender whether the offender has anything to say as to why sentence should not be imposed upon the offender
{20} Pursuant to
{21} Rolland argues that the trial court failed to specifically ask him whether he had anything to say as to why the sentence should not be imposed. The State counters that Rolland was afforded his full right to allocution. The record supports the State‘s position.
{22} At the March 16, 2012, hearing Rolland was represented by counsel who
Mandatory Prison Sentence – Post-Release Control
{23} In his fourth and final assignment of error, Rolland asserts:
{24} “Appellant‘s due process rights were violated because the trial court failed to comply with the standard set forth in
{25} Rolland argues the trial court violated his due process rights by failing to: 1) notify him that the prison term was mandatory; 2) include in the sentencing entry that the sentence was mandatory; and 3) notify him that he would be subject to post-release control pursuant to
(B)(2) if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
(a) Impose a stated prison term and, if the court imposes a mandatory prison term, notify the offender that the prison term is a mandatory prison term;
(b) In addition to any other information, include in the sentencing entry the
name and section reference to the offense or offenses, the sentence or sentences imposed and whether the sentence or sentences contain mandatory prison terms * * *
(c) Notify the offender that the offender will be supervised under section
2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the first degree or second degree * * *
{26} The record demonstrates the trial court informed Rolland at the sentencing hearing that the prison term was mandatory. ‘[W]hatever sentence I impose, Mr. Rolland is not eligible, was not eligible, would not be eligible, for probation or community control or judicial release, and that on this day he would be going to prison and it would be strictly a question of what term would be imposed.” The trial court continued “we‘re looking at the sentence that can be imposed here and the mandatory nature of the sentence * * * ” Further, counsel for Rolland specifically acknowledged “But he is facing mandatory jail time. So my client is facing mandatory jail time.” Although trial counsel mischaracterized it as jail rather than prison time, the mandatory nature of Rolland‘s incarceration was clear. Moreover, trial counsel also acknowledged that Rolland was ineligible for judicial release; that the stated term of incarceration would be served by Rolland in its entirety.
{27} However, a review of the Judgment Entry does support Rolland‘s contention that the trial court did not include the word ‘mandatory’ with the stated prison term. In State v. Jones, 9th Dist. No. 10CA0022, 2011-Ohio-1450, the defendant argued that since his sentencing entry did not include the word “mandatory” in conjunction with the prison term, his sentence was void. Id. at ¶10. The Ninth District held that Jones‘s conviction carried a mandatory prison term and the sentences were within the statutory ranges provided by
{28} Lastly, Rolland was notified at the sentencing hearing and in the March 16,
{29} In conclusion, Rolland‘s arguments are meritless. While Rolland did not challenge the constitutionality of
Donofrio, J., concurs.
Vukovich, J., concurs.
APPROVED:
JUDGE MARY DeGENARO