STATE OF OHIO, PLAINTIFF-APPELLANT/ CROSS-APPELLEE, v. MARCEL D. SHAZIER, DEFENDANT-APPELLEE/ CROSS-APPELLANT.
CASE NO. 8-19-12
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
October 28, 2019
2019-Ohio-4409
Appeal from Logan County Common Pleas Court, Trial Court No. CR 18 09 0283. Judgment Affirmed in Part, Reversed in Part and Cause Remanded.
APPEARANCES:
Alice Robinson-Bond for Appellant/Cross-Appellee
Stephen P. Hardwick
PRESTON, J.
{¶1} Plaintiff-appellant/cross-appellee, the State of Ohio, appeals the March 4, 2019 judgment of the Logan County Court of Common Pleas sentencing defendant-appellee/cross-appellant, Marcel D. Shazier (Shazier), to five years of community control for attempted failure to provide notice of change of address. Shazier appeals the March 4, 2019 judgment of the Logan County Court of Common Pleas on the basis that his due process rights were violated when the trial court accepted his guilty plea. For the reasons that follow, we affirm Shazier‘s conviction but reverse Shazier‘s sentence and remand for resentencing.
{¶2} This case arises from Shazier‘s repeated failure to comply with his sex-offender notification requirements. On August 24, 2011, Shazier was adjudicated delinquent by reason of rape in violation of
{¶3} On October 9, 2018, the Logan County Grand Jury indicted Shazier on one count of failure to provide notice of change of address in violation of
{¶4} A change-of-plea hearing was held on February 5, 2019. (Doc. Nos. 27, 29); (Feb. 5, 2019 Tr. at 1, 5). At the change-of-plea hearing, the indictment was amended to charge Shazier with one count of attempted failure to provide notice of change of address in violation of
{¶5} On March 4, 2019, the trial court sentenced Shazier to five years of community control as well as six months in the Logan County Jail. (Doc. No. 30).
{¶6} On March 11, 2019, the State filed a notice of appeal. (Doc. No. 34). On June 6, 2019, Shazier filed a motion for leave to file a delayed notice of cross-appeal, along with a notice of cross-appeal. On June 27, 2019, this court granted Shazier leave to file his delayed notice of cross-appeal. The State raises one assignment of error for our review. Shazier raises two assignments of error for our review. For ease of discussion, we will first address Shazier‘s first assignment of error. Then, we will consider the State‘s assignment of error and Shazier‘s second assignment of error together.
Shazier‘s Assignment of Error No. I
The trial court erred by accepting a guilty plea from someone who could not have committed the charged offense. Entry (Mar. 4, 2019); Article I, Section 16 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution.
{¶7} In his first assignment of error, Shazier argues that the trial court erred by accepting his guilty plea to the offense of attempted failure to provide notice of change of address. Shazier claims that the trial court erred by accepting his guilty plea because no reasonable jury could find [him] guilty of failing to notify because his juvenile adjudication cannot be used as a predicate to increase his criminal responsibility from none to the punishment for a
{¶8} At the outset, we must consider whether Shazier‘s guilty plea precludes our consideration of the merits of his first assignment of error. Generally, a defendant who enters a guilty plea waives the right to appeal all nonjurisdictional errors arising at prior stages of the proceedings unless those errors prevented the defendant from knowingly, intelligently, and voluntarily entering his guilty plea. State v. Kuhner, 154 Ohio App.3d 457, 2003-Ohio-4631, ¶ 4 (3d Dist.), citing Ross v. Common Pleas Court of Auglaize Cty., 30 Ohio St. 2d 323 (1972); State v. Howard, 4th Dist. Scioto No. 16CA3762, 2017-Ohio-9392, ¶ 69 ([A] voluntary, knowing, and intelligent guilty plea waives any alleged constitutional violations unrelated to the entry of the guilty plea and nonjurisdictional defects in the proceedings.), citing State v. Ketterer, 111 Ohio St. 3d 70, 2006-Ohio-5283, ¶ 105 and State v. Storms, 4th Dist. Athens No. 05CA30, 2006-Ohio-3547, ¶ 9. However, [a] guilty plea does not * * * waive a claim that judged on its face the charge is one which the State may not constitutionally prosecute, and this is precisely the claim Shazier raises in this case. State v. Legg, 4th Dist. Pickaway No. 14CA23, 2016-Ohio-801, ¶ 12, quoting Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241 (1975), fn. 2. Accord State v. Rolland, 7th Dist. Mahoning No. 12MA68, 2013-Ohio-2950, ¶ 9, citing State v. Wilson, 58 Ohio St. 2d 52, 54-55 (1979). Furthermore, [e]ven where waiver is clear, [we] reserve[] the right to consider constitutional challenges to the application of statutes * * * where the rights and interests involved may warrant it. In re M.D., 38 Ohio St. 3d 149 (1988), paragraph one of the syllabus. Therefore, despite the fact that Shazier did not raise his constitutional challenge at the trial court level, in the interests of justice, and considering the aforementioned authority, we will examine his constitutional argument. Rolland at ¶ 10.
{¶ 9} Shazier argues that his attempted-failure-to-provide-notice-of-change-of-address conviction should be vacated because his juvenile sex-offense adjudication cannot serve as the predicate for the offense. He insists that this result is required by the Supreme Court of Ohio‘s decision in State v. Hand. In Hand, the defendant pleaded no contest to three first-degree felony counts and two second-degree felony counts, as well as five three-year firearm specifications. 149 Ohio St. 3d 94, 2016-Ohio-5504, ¶ 2. The parties agreed to an aggregate six-year prison sentence with the understanding that three years of the sentence would be mandatory due to the firearm specifications. Id. at ¶ 3. However, the parties disputed whether the remaining three years of the aggregate six-year sentence would also be a mandatory term. Id. In particular, the question was whether [the defendant‘s] prior juvenile adjudication for aggravated robbery * * * should operate as a first-degree-felony conviction to enhance his sentence under
If a person is alleged to have committed an offense and if the person previously has been adjudicated a delinquent child * * * for a violation of a law * * *, the
adjudication as a delinquent child * * * is a conviction for a violation of the law * * * for purposes of determining * * *, 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.
Id. at ¶ 4. See
{¶10} Before the Supreme Court of Ohio, the defendant argued that his right to due process was violated when his past juvenile adjudication was used to make his prison term mandatory, specifically because his juvenile adjudication was not obtained using procedures that provided for the right to a jury trial. Id. at ¶ 11, 20. The court agreed. It noted that Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt and that facts increasing a mandatory minimum sentence must also be submitted to a jury and found beyond a reasonable doubt. Id. at ¶ 21-22, quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348 (2000) and citing Alleyne v. United States, 570 U.S. 99, 114-117, 133 S.Ct. 2151 (2013). The court explained that prior convictions are treated differently only because unlike virtually any other consideration used to enlarge the possible penalty for an offense, * * * a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees. Id. at ¶ 31, quoting Jones v. United States, 526 U.S. 227, 249, 119 S.Ct. 1215 (1999). The court held that [b]ecause a juvenile adjudication is not established through a procedure that provides the right to a jury trial, it cannot be used to increase a sentence beyond a statutory maximum or mandatory minimum. Id. at ¶ 34. According to the court, it is fundamentally unfair to treat a juvenile adjudication as a previous conviction that enhances either the degree of or the sentence for a subsequent offense committed as an adult. Id. at ¶ 37.
{¶11} Taken alone, Hand would appear to lend support to Shazier‘s position. However, as Shazier acknowledges, the Supreme Court of Ohio subsequently declined to extend the holding of Hand. See State v. Carnes, 154 Ohio St. 3d 527, 2018-Ohio-3256, ¶ 19. In Carnes, the defendant was convicted of one count of having weapons while under disability in violation of
{¶12} First, the court noted that unlike
{¶13} Although Shazier recognizes that Carnes limits the holding in Hand, he reasons that Carnes does not control the outcome in this case because in Carnes, the Ohio Supreme Court relied on the unique nature of the weapons-under-disability statute. (Appellee/Cross-Appellant‘s Brief at 15). He argues that Hand is the controlling case because the logic of Hand applies even more strongly to a case in which a prior adjudication is a statutory element of an offense than it does to a case in which the adjudication turns a non-mandatory sentence into a mandatory one. (Id. at 19).
{¶14} Shazier‘s argument is without merit. Two of our sister appellate districts have previously considered whether Hand precludes the use of a juvenile sex-offense adjudication as the predicate offense for a failure-to-register or a failure-to-notify offense committed as an adult. State v. Young, 4th Dist. Lawrence No. 17CA11, 2018-Ohio-4990, appeal allowed, 155 Ohio St. 3d 1405, 2019-Ohio-944; State v. Buttery, 1st Dist. Hamilton No. C-160609, 2017-Ohio-9113, appeal allowed, 152 Ohio St. 3d 1462, 2018-Ohio-1795.1 Both of these courts have concluded that it does not.
{¶15} In Buttery, which was decided before the Supreme Court of Ohio issued its decision in Carnes, the First District explained the differences between
R.C. 2950.04 distinguishes between an adult offender convicted of a sexually-oriented offense and a juvenile adjudicated delinquent and classified for having committed a sexually-oriented offense. While both are required to register under the statute, the registration requirements are based on either an adult conviction or a juvenile adjudication. The statute does not treat a juvenile adjudication as a conviction; the juvenile is required to register based upon the juvenile adjudication and classification. The registration requirement does not depend on anadult conviction. Like the juvenile adjudication constituting the disability element in the weapons-under-disability cases, the juvenile adjudication for a sexually-oriented offense requires registration in its own right. The juvenile adjudication is not a penalty-enhancing element; it is an element of the crime of failing to register.
Buttery at ¶ 20. Given these differences between
{¶16} Likewise, in Young, the Fourth District reached a similar conclusion with respect to
{¶17} We agree with the First and Fourth Districts’ analyses.
{¶18} In sum, we conclude that Hand does not bar the use of a prior juvenile sex-offense adjudication as an element of a failure-to-provide-notice-of-change-of-address offense or, in this case, an attempted-failure-to-provide-notice-of-change-of-address offense. Therefore, we conclude that Shazier‘s constitutional rights to due process were not violated when the trial court accepted his guilty plea.
{¶19} Shazier‘s first assignment of error is overruled.
The State‘s Assignment of Error
Whether the trial court abused its discretion in sentencing the Appellant [sic] to community control where the statute requires a mandatory prison sentence?
Shazier‘s Assignment of Error No. II
If this Court orders the trial court to impose a prison term pursuant to the State‘s assignment of error, this Court should also vacate the decision to impose court costs and court-appointed-counsel fees. Judgment Entry/Sentencing (Mar. 4, 2019) R.C. 2941.51(D).
{¶20} In its assignment of error, the State argues that Shazier‘s sentence is contrary to law. Specifically, the State argues that because Shazier had previously pleaded guilty to a first- or second-degree felony, the trial court did not have the ability to sentence Shazier to community control for the instant offense of second-degree felony attempted failure to provide notice of change of address. (Appellant/Cross-Appellee‘s Brief at 2-3). In his second assignment of error, Shazier argues that if the State‘s assignment of error is sustained, we should also vacate the portion of the trial court‘s March 4, 2019 judgment ordering him to pay court costs and attorney‘s fees because the trial court must consider whether a prison term will impact his ability to pay such costs. (Appellee/Cross-Appellant‘s Brief at 21).
{¶21} Under
{¶22} After reviewing the record, we conclude that Shazier‘s sentence is clearly and convincingly contrary to law. Generally, trial courts have broad discretion to fashion appropriate sentences for felony offenders. See
{¶23} However, as indicated in the preceding paragraph,
(F) Notwithstanding [
R.C. 2929.13(A) to(E) ], the court shall impose a prison term * * * under * * * [R.C. 2929.14 ] * * * for any of the following offenses:* * *
(6) Any offense that is a * * * second degree felony and that is not set forth in [
R.C. 2929.13(F)(1) ,(2) ,(3) , or(4) ], if the offender
previously was convicted of or pleaded guilty to * * * any * * * second degree felony * * *[.]
{¶24} Applying the foregoing to the facts of this case, we conclude that under
{¶25} Shazier concedes that
{¶26} Shazier‘s arguments are unpersuasive. First, we believe that Shazier misunderstands the meaning of the word overriding as it is used in
(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote
the effective rehabilitation of the offender using the
minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. * * *
(B) A sentence imposed for a felony shall be reasonably calculated to achieve the three overriding purposes of felony sentencing * * *.
{¶27} Moreover, other felony-sentencing statutes foreclose Shazier‘s interpretation of
{¶28} In sum, we conclude that because Shazier pleaded guilty to the instant offense, a second-degree felony, after having previously pleaded guilty to a different second-degree felony, the trial court was not authorized to sentence Shazier to a community-control sanction, but was instead required to sentence him to a prison term under
{¶30} Having found no error prejudicial to the appellee/cross-appellant herein in the particulars assigned and argued with respect to his first assignment of error, we affirm the judgment of the trial court as to that matter. However, having found error prejudicial to the appellant/cross-appellee herein in the particulars assigned and argued and to the appellee/cross-appellant with respect to his second assignment of error, we reverse the judgment of the trial court as to those matters and remand to the trial court for further proceedings consistent with this opinion.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
SHAW and WILLAMOWSKI, J.J., concur.
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