2004 Ohio 3640 | Ohio Ct. App. | 2004
{¶ 3} On November 2, 1998, the grand jury indicted Appellant on eight counts of pandering sexually oriented matter involving a minor, five counts of pandering obscenity involving a minor, one count of possession of criminal tools, and two counts of disseminating matter harmful to juveniles. This was designated as Case. No. 3944. Bond was set at $50,000. Appellant posted the required 10% cash portion of the bond and was released. Appellant subsequently fled the jurisdiction and a warrant for his arrest was issued on January 25, 1999. Appellant was arrested again on May 11, 1999, and bond was set at $5 million.
{¶ 4} On May 24, 1999, Appellant signed two Crim.R. 11 plea agreements in the two cases pending before the Carroll County Court of Common Pleas. In Case No. 3922, Appellant agreed to plead guilty to three counts of sexual battery, a violation of R.C. §
{¶ 5} On May 24, 1999, the trial court held a change of plea and sentencing hearing. The court accepted Appellant's guilty pleas in the two cases, and sentenced Appellant to the maximum prison term for each count. On May 24, 1999, the court filed separate judgment entries in each of the two cases. The court imposed three consecutive five-year prison terms in Case No. 3922. The court imposed two 18-month and one 12-month consecutive prison terms in Case No. 3944, and ordered that the sentences in Case No. 3944 be served consecutive to the sentences in Case. No. 3922. The court also held a sexual predator determination hearing and accepted Appellant's stipulation that he was a sexual predator.
{¶ 6} On April 1, 2003, Appellant filed a pro se motion for leave to appeal both judgment entries pursuant to App.R. 5. The motion for delayed appeal was granted on December 10, 2003.
{¶ 8} "The trial court erred when it sentenced the appellant to a term of incarceration greater than the minimum term without making the required findings on the record, that the minimum term would demean the seriousness of the offense or not adequately protect the public.
{¶ 9} "The trial court committed plain error when entering erroneous information of repeat offender status."
{¶ 10} Appellant contends that a court may not sentence a defendant to more than the minimum allowable term of imprisonment without making the findings required by R.C. §
{¶ 11} "(B) Except as provided in division (C), (D)(2), (D)(3), or (G) of this section, in section
{¶ 12} The statute that Appellant relies upon states that it does not apply if the offender has previously served a prison term. The record of the sentencing hearing contains the following dialogue:
{¶ 13} "THE COURT: And you have, as I recall, a prior felony conviction, do you not?
{¶ 14} "MR. YEAGER: Yes your Honor.
{¶ 15} "THE COURT: Actually two, one in December of '73, case No. 2289 and again in May of '89, case No. 3171. So you are a repeat offender. Is that correct?
{¶ 16} "MR. YEAGER: Yes sir." (Tr., p. 7.)
{¶ 17} The two judgment entries on appeal in this case also specifically note that Appellant has served a previous prison term.
{¶ 18} Appellant contends that the trial judge did not actually ask him if he had served a prison term, but only asked if he had been previously convicted. Appellant maintains that he never served a prison term as part of any of his former convictions.
{¶ 19} In rebuttal, Appellee argues that Appellant agreed to the sentence imposed by the trial court and that the sentence is not an appealable issue. Appellee cites R.C. §
{¶ 20} "(D) A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge."
{¶ 21} It is well-established that a sentence that is agreed upon as part of a negotiated plea, and that does not exceed the statutory maximum sentence applicable to the crime, is not subject to appellate review pursuant to R.C. §
{¶ 22} The sentencing hearing transcript reflects that the prosecutor recommended maximum consecutive prison terms on the six counts that were part of the plea agreement, and agreed that the remaining 94 counts would be dismissed. (Tr., pp. 10-11.) Immediately after the prosecutor made this recommendation, Appellant's attorney stated:
{¶ 23} "MR. GATTRELL: Yes your Honor. The plea itself discussed in detail between myself and the Prosecutor, the sentence, based upon the likely sentence, that was discussed with Mr. Yeager on two occasions. His plea is based upon it. So we understand what the sentence is going to be * * *." (Tr., p. 11.)
{¶ 24} It appears from the record that the sentence was agreed upon by both Appellant and the prosecutor. Appellant does not allege any errors concerning the process of entering into the plea agreement or that the plea was made involuntarily. Therefore, Appellee is correct that under the facts of this case the sentencing issue raised in this assignment of error is not an appealable issue under R.C. §
{¶ 25} Even if our review of Appellant's prison sentence was not barred from review under R.C. §
{¶ 26} For the aforementioned reasons, Appellant's first and third assignments of error are overruled.
{¶ 28} "There was no clear and convincing evidence that the sentence should run consecutively."
{¶ 29} Appellant argues that the trial court was required to make certain findings and give specific reasons for imposing consecutive sentences. Appellant cites R.C. §
{¶ 30} "(2) The court shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances:
{¶ 31} "* * *
{¶ 32} "(c) If it imposes consecutive sentences under section
{¶ 33} A further requirement for imposing consecutive sentences, according to Appellant, is found in R.C. §
{¶ 34} "(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
{¶ 35} "(a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
{¶ 36} "(b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct.
{¶ 37} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 38} The Ohio Supreme Court recently held that, "[p]ursuant to R.C.
{¶ 39} "First, the court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. Id. Second, the court must find that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. Id. Third, the court must find the existence of one of the enumerated circumstances in R.C.
{¶ 40} Appellant alleges that the trial court did not make any of the findings that are associated with the imposition of consecutive sentences.
{¶ 41} Appellee, in response, argues once again that Appellant has waived this issue on appeal because he agreed to the sentence that the trial court imposed. For the reasons set forth in the analysis of assignments of error one and three, Appellee is correct and the sentencing issue raised in this assignment of error is not an appealable issue under R.C. §
{¶ 43} "The trial court erred as a matter of law by designating the appellant a `sexual predator' pursuant to O.R.C. §
{¶ 44} Appellant argues that the trial court was required to hold a separate hearing to determine whether or not he was a sexual predator as defined by R.C. Chapter 2950. The version of R.C. §
{¶ 45} "(B)(1) Regardless of when the sexually oriented offense was committed, if a person is to be sentenced on or after January 1, 1997, for a sexually oriented offense that is not a sexually violent offense, or if a person is to be sentenced on or after January 1, 1997, for a sexually oriented offense that is a sexually violent offense and a sexually violent predator specification was not included in the indictment, count in the indictment, or information charging the sexually violent offense, the judge who is to impose sentence upon the offender shall conduct a hearing to determine whether the offender is a sexual predator. The judge shall conduct the hearing prior tosentencing and, if the sexually oriented offense is a felony, mayconduct it as part of the sentencing hearing required by section
{¶ 46} Appellant's sexual crimes were all felonies, and therefore, the trial court did not need to schedule a separate hearing to determine whether Appellant was a sexual predator. Furthermore, the record is very clear that Appellant waived his right to challenge the court's decision to designate him as a sexual predator. The sentencing hearing transcript states:
{¶ 47} "MR. BURNS: * * * The State also would move the court at this time to find that the defendant is a sexual predator pursuant to Revised Code
{¶ 48} "* * *
{¶ 49} "MR. GARTRELL: * * * but one thing I would like the court to keep in mind, even on the waiver of presentation of evidence on sexual predator, that Mr. Yeager bases his decision to enter a plea on numerous things, certainly the merits of the case and that would be the primary reason, but he is also very concerned about even at this late date, not causing any additional problem to his daughter, * * *." (Tr., pp. 10-11.)
{¶ 50} It is generally accepted that an offender may waive his right to the sexual predator hearing described in R.C. §
{¶ 51} It appears that the trial court was permitted to hold the sexual predator hearing as part of the sentencing hearing in this case, and the Appellant waived his right to any further hearing by stipulating to his designation as a sexual predator. For these reasons, we find that Appellant's fourth assignment of error is without merit.
{¶ 53} "The appellant was denied effective assistance of counsel guaranteed by the
{¶ 54} Appellant asserts that his counsel made a number of errors in this case that were so serious as to deprive him of his
{¶ 55} Appellant argues that his counsel should have objected to the maximum sentences and to the imposition of consecutive sentences. Because Appellant agreed to receive maximum consecutive sentences on six counts as part of his plea bargain and in exchange, 94 charges were dropped, it would have been highly irrational for Appellant's counsel to object to the sentences. Appellant also contends that his counsel should have objected when the court proceeded with the sexual predatory evaluation at sentencing. As explained above, the trial court has the right to hold the hearing during sentencing pursuant to R.C. §
{¶ 57} "The trial court committed plain error when it failed to find that the offenses were allied in violation of the
{¶ 58} Appellant argues that the crime of pandering obscenity to a juvenile, R.C. §
{¶ 59} R.C. §
{¶ 60} We must first note that Appellant could have raised the issue of possible allied offenses of similar import at a time when the trial court was in a position to correct the alleged problem. "Where a defendant pleads to multiple offenses of similar import, and the trial court accepts the plea, the court must conduct a hearing and make a determination, before entering judgment, as to whether the offenses were of similar or dissimilar import and whether or not there was a separate animus with regard to each crime committed." State v. Gregory (1993),
{¶ 61} Secondly, the two offenses that Appellant believes are allied offenses of similar import are, in fact, not allied offenses. R.C. §
{¶ 62} "(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
{¶ 63} "* * *
{¶ 64} "(5) Buy, procure, possess, or control any obscene material, that has a minor as one of its participants;"
{¶ 65} R.C. §
{¶ 66} "(A) No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally."
{¶ 67} In comparing possession of criminal tools with pandering obscenity, it can be seen that criminal tools may include a number of things, and this charge is not limited to obscene materials. One can also possess obscene materials involving children without having any criminal purpose in possessing them. In pandering obscenity involving a minor, the crime is the possession itself, whereas in the crime of possession of criminal tools, the possession must be linked with a criminal purpose in order to sustain a conviction. The two crimes do not correspond so closely that one crime necessarily results in the commission of the other crime, and for this reason we find that Appellant's argument is without merit.
{¶ 68} In conclusion, we find that Appellant's sentence was the result of a plea bargain and is not appealable pursuant to R.C. §
Donofrio, J., concurs.
Vukovich, J., concurs.
