STATE OF OHIO v. ISSAC K. YOUNKER
C.A. CASE NO. 26414
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
May 29, 2015
[Cite as State v. Younker, 2015-Ohio-2066.]
T.C. NO. 2014-CR-2249/2 (Criminal appeal from Common Pleas Court)
Rendered on the 29th day of May, 2015.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 West Second Street, Suite 400, Dayton, Ohio 45402 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Issac Younker, filed October 8, 2014. Younker appeals from his September 18, 2014 Judgment Entry of Conviction, entered following his September 2, 2014 pleas of guilty, on a bill of
{¶ 2} We initially note that the following exchange occurred at Younker‘s September 2, 2014 plea hearing:
THE COURT: * * * Would the attorneys indicate for the record any plea bargain or plea agreement in this case?
MS. MADZEY: Your Honor, in exchange for the Defendant‘s plea of guilty as charged in the bill of information, the State would not seek additional charges from the Grand Jury. We would agree that he is subject to a mandatory prison sentence of no less than one year up to the maximum consecutive sentence of 15 years on all three counts. And there would be no agreement as to what sentence the Court will find in that range.
THE COURT: Mr. Certo, do you agree with the terms of the plea agreement as indicated by the Assistant Prosecuting Attorney?
MR. CERTO: That is a correct statement of the agreement, Your Honor.
THE COURT: * * * Mr. Younker have you heard what the lawyers said[?]
THE DEFENDANT: Yes sir.
THE COURT: Is that your agreement?
THE DEFENDANT: Yes sir.
{¶ 3} In the course of the plea colloquy, the court inquired of Younker as follows:
“* * * Do you understand that it‘s [a] mandatory sentence, you‘re not going to be considered for community control sanctions there will be a prison sentence?” Younker responded, “Yes sir.”
{¶ 4} At sentencing on September 16, 2014, the court indicated in part as follows:
Based on the presentence investigation report including also the victim impact statement in that report also including the sentencing memorandums by the Assistant Prosecuting attorney and by Defense Counsel (sic). In considering the letter, considering the statements today, also considering the purposes and principles of sentencing as set forth in
R.C. 2929.11 and considering the seriousness and recidivism factors set forth inR.C. 2929.12 including but not limited to in this case there are on the seriousness factors there are more serious factors and less serious factors. Here some more serious factors do apply and that is that the victim of the offense was a minor and also a family member. That makes the offenses here more serious.On the recidivism factors, there are recidivism less likely factors and recidivism more likely factors. Here the recidivism less likely factors do apply. Mr. Younker is 22 and has no prior felony convictions as an adult. He has no prior misdemeanor offenses as an adult and according to the report no juvenile offenses.
Now these three counts are felonies of the third degree but because they are sex offenses, the felony 3 or greater sex offense is mandatory. Generally, a felony 3 would have no presumption, it would not have a
presumption in favor of prison or a presumption in favor of a community based sanction. But these being felony 3 level sex offenses, there is a mandatory prison sentence. So the court - - and the court is also aware of case law and has considered it about generally a first time to prison than the minimum sentence or lower. (Sic). The end sentence is appropriate but in this case the court has considered that (sic). I also looked at the case law on when there could be some deviation from a minimum. I think the fact that this is a sex offense or sex offenses, the young age of the victim and the fact that you have a family relationship, would in this case make it appropriate not to impose the minimum sentence.
The Judgment Entry of Conviction reflects that Younker received a mandatory sentence of three years on each count, to be served concurrently, “for a TOTAL SENTENCE OF 3 MANDATORY YEARS.”
{¶ 5} Younker asserts four assignments of error herein. We will consider his first two assignments of error together. They are as follows:
THE TRIAL COURT ERRED IN SENTENCING MR. YOUNKER TO A MANDATORY TERM OF PRISON WITHOUT A FINDING THAT EITHER
R.C. 2907.05(C)(2)(a) or (b) WAS PRESENT.And,
A FINDING OF CORROBORATIVE EVIDENCE UNDER
R.C. 2907.05(C)(2)(a) VIOLATES MR. YOUNKER‘S CONSTITUTIONAL RIGHTS.
(A) No person shall have sexual contact with another, not the spouse of the offender * * * when any of the following applies:
* * *
(4) The other person * * * is less than thirteen years of age, whether or not the offender knows the age of that person.
* * *
(C) Whoever violates this section is guilty of gross sexual imposition.
* * *
(2) Gross sexual imposition committed in violation of division (A)(4) * * * of this section is a felony of the third degree. Except as otherwise provided in this division, for gross sexual imposition committed in violation of division (A)(4) * * * of this section there is a presumption that a prison term shall be imposed for the offense. The court shall impose on an offender convicted of gross sexual imposition in violation of division (A)(4) * * * of this section a mandatory prison term equal to one of the prison terms prescribed in section 2929.14 of the Revised Code for a felony of the third degree if either of the following applies:
(a) Evidence other than the testimony of the victim was admitted in the case corroborating the violation;
(b) The offender was previously convicted of or pleaded guilty to a violation of this section, rape, the former offense of felonious sexual
penetration, or sexual battery, and the victim of the previous offense was less than thirteen years of age.
{¶ 7} Younker initially asserts as follows under his first assigned error:
Mr. Younker has no prior criminal history. Thus, at issue is whether evidence was offered that corroborates his gross sexual imposition violation. [
R.C.] §2907.05(C)(2)(a) is to be construed strictly against the State, and liberally in favor of the accused, as required byR.C. 2901.04(A) . Here, there was no such evidence offered on the record, and there was no finding such evidence was present, so the trial court erred in issuing a mandatory prison sentence.The sentence should be vacated and remanded to the trial court.
{¶ 8} Younker further asserts as follows under his second assigned error:
The Sixth Amendment right to trial “by an impartial jury,” in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. U.S. v. Gaudin, [515 U.S. 506 at 510.] Defining facts that increase a mandatory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the face of the indictment and preserves the jury‘s historic role as an intermediary between the State and criminal defendants. Gaudin, at 510-511. Mandatory minimum sentences increase the penalty for a crime and therefore any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Alleyne v. United States, [133 S.Ct. 2151(2013)] (finding a fact that
increases a mandatory minimum sentence must be submitted to the jury because “the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime.”). A jury is required to determine the existence of corroborating evidence under
R.C. 2907.05(C)(2)(a) . There is simply no rational basis for theR.C. 2907.05(C)(2)(a) statutory classification requiring corroborating evidence to enhance the minimum sentence. This argument has been dismissed by the Tenth Ohio Appellate District (State v. North, [10th Dist. Franklin No. 13AP-110, 2013-Ohio-4607, ¶ 5] and State v. Bevly, [10th Dist. Franklin No. 12AP-471, 2013-Ohio-1352]). However, counsel is unaware that this court has tackled this issue. Further, it is argued the aforementioned Tenth District decisions are in conflict with Alleyne.Mr. Younker asks this court to opine that
R.C. 2907.05(C)(2)(a) is unconstitutional under Alleyne and vacate his plea and his sentence.
{¶ 9} The State responds that, “[b]ecause Younker admitted sexually abusing his sister, evidence other than the testimony of the victim existed to corroborate Younker‘s commission of gross sexual imposition.” The State further asserts that, “[b]ased upon the Ohio Supreme Court‘s decision in State v. Bevly [142 Ohio St.3d 41, 2015-Ohio-475, 27 N.E.3d 516]1 [“Bevly”], Younker‘s sentence is unconstitutional. This matter should be remanded for re-sentencing.”
{¶ 10} The State asserts that “despite not raising a constitutional challenge to the
{¶ 11} The Supreme Court of Ohio‘s decision in Bevly involved a challenge to the constitutionality of
{¶ 12} The trial court “could find no rational basis for the distinction between gross-sexual-imposition cases in which there is corroborating evidence and those cases in which there is none.” Id., ¶ 4. The trial court further “concluded that a jury was required to make a finding regarding corroboration because introduction of this evidence
{¶ 13} The State appealed, asserting that the trial court erred in failing to impose mandatory prison sentences after the State presented corroborating evidence pursuant to
{¶ 14} After initially declining jurisdiction, the Ohio Supreme Court on reconsideration accepted Bevly‘s propositions of law. Id., ¶ 6. Citing State v. Thompkins, 75 Ohio St.3d 558, 560, 664 N.E.2d 926 (1996), the Bevly Court noted “that the rational-basis test provides that ‘laws passed by virtue of the police power will be upheld if they bear a real and substantial relation to the object sought to be obtained, namely, the health, safety, morals or general welfare of the public, and are not arbitrary, discriminatory, capricious or unreasonable.‘” Bevly, ¶ 15. While the State asserted that “
{¶ 15} The Court further determined that even if the Court “were to hold that
The Supreme Court of the United States recently provided guidance on this issue in Alleyne v. United States, _____ U.S. _____, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Alleyne overruled the court‘s previous decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). In both cases, the question was whether facts increasing the mandatory minimum sentence were elements of the crime that must be
In Alleyne, the Supreme Court revisited the same statute and issue presented in Harris and changed its position. This time it concluded, “Because the finding of brandishing increased the penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt.” (Emphasis added.) Alleyne at 2163. Because the judge, rather than the jury, made the brandishing finding, the court held that Alleyne‘s Sixth Amendment rights were violated. Id. at 2163-2164. * * *
{¶ 16} The Bevly Court noted that Alleyne overruled Harris. Id., ¶ 24. Finally, the Court in Bevly determined as follows:
Application of the principles set forth in Alleyne illustrates the issue
whether R.C. 2907.05(C)(2)(a) violates Bevly‘s right to a jury trial. Without the existence of corroborating evidence, a conviction for third-degree gross sexual imposition underR.C. 2907.05(A)(4) subjects the offender to a maximum term of up to 60 months in prison.R.C. 2929.14(A)(3) . That is not a mandatory term, although there is a presumption that prison time will be served.R.C. 2907.05(C)(2) . And if the presumption is overcome, the court may impose a community-control sanction.R.C. 2929.15 . But with the finding that corroborating evidence has been admitted, pursuant toR.C. 2907.05(C)(2)(a) , the offender is subject to a maximum mandatory prison term of 60 months. The corroborating evidence aggravates the prescribed punishment. Applying Alleyne to this case, we conclude that the corroboration requirement inR.C. 2907.05(C)(2)(a) is an element that would have been required to be found by a jury and that application of the statute in Bevly‘s case violated the Sixth Amendment right to a jury trial.
{¶ 17} We initially note that
{¶ 18}
{¶ 19} We initially find that Younker‘s reliance upon Bevly and Alleyne as a basis to vacate his sentence, as well as the State‘s concession that, “on the authority of Bevly, the trial court‘s imposition of a mandatory prison sentence in this case was unconstitutional,” are misplaced on this record. We conclude from the record before us that the trial court sentenced Younker to a mandatory term, not pursuant to
{¶ 20} To the extent that Younker argues that the court erred in imposing a mandatory sentence, Younker‘s first assignment of error is sustained. Younker‘s second assignment of error is overruled, since Alleyne and Bevly do not apply herein. Based upon our determination that the trial court erred in imposing a mandatory term of imprisonment, the matter is remanded for resentencing consistent with our opinion regarding the mandatory nature of Younker‘s sentence.
{¶ 21} We will next consider Younker‘s fourth assignment of error. It is as follows:
MR. YOUNKER‘S PLEA WAS NOT INTELLIGENTLY, VOLUNTARILY OR KNOWINGLY MADE AND SHOULD BE VACATED.
{¶ 22} Younker asserts that, “because [his] sentence should not have been mandatory but Mr. Younker was told it would be, his plea was not voluntarily, intelligently or knowingly made. His plea should be vacated.”
{¶ 23} The State asserts as follows regarding the nature of Younker‘s plea:
When a trial court, during a plea colloquy, overstates the sentence that a defendant faces, the overstatement does not render the defendant‘s plea involuntary. Because the trial court erred here in overstating the sentence Younker faced by informing him that his prison sentence was mandatory, rather than discretionary, Younker was not prejudiced by the overstatement. His guilty plea, therefore, need not be vacated.
{¶ 24} As this Court has previously noted:
* * *
Crim.R. 11(C) sets forth the requisite notice to be given to a defendant at a plea hearing on a felony. To be fully informed of the effect of the plea, the court must determine that the defendant‘s plea was made with an “understanding of the nature of the charges and the maximum penalty involved.”Crim.R. 11(C)(2)(a) .In order for a plea to be given knowingly and voluntarily, the trial court must follow the mandates of
Crim.R. 11(C) . If a defendant‘s guilty plea is not voluntary and knowing, it has been obtained in violation of due process and is void. Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274.A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O.3d 52, 364 N.E.2d 1163;
Crim.R. 52(A) . The test is whether the plea would have been otherwise made. Id. at 108, 5 O.O.3d 52, 364 N.E.2d 1163.A trial court must strictly comply with
CrimR. 11 as it pertains to the waiver of federal constitutional rights. These include the right to trial by jury, the right to confrontation, and the privilege against self-incrimination. However, substantial compliance withCrimR. 11(C) is sufficient when waiving nonconstitutional rights. State v. Nero (1990), 56 Ohio St.3d 106,
{¶ 25} In State v. Frye, 2012-Ohio-5101, the defendant therein asserted that his guilty plea to escape was not rendered knowingly and voluntarily, since “the trial court stated during the plea colloquy and at the sentencing hearing that it was required to order Frye‘s sentence for escape to be served consecutively to any other sentence he was ordered to serve,” but that, pursuant to
{¶ 26} This Court rejected Frye‘s assertion regarding the trial court‘s error, finding that at “worst, the trial court inadvertently misled Frye into believing that he faced a longer possible prison sentence than was available.” Id., ¶ 11. This Court failed “to see how a defendant is prejudiced by such a misapprehension on his part. He cannot earnestly argue that he pled guilty based on a mistaken belief that he faced an unduly long or
{¶ 27} As in Frye, we conclude that Younker has not demonstrated prejudice such that his pleas are void based upon the trial court‘s determination that he was subject to a mandatory sentence, when in fact he was not. Younker‘s fourth assigned error is overruled.
{¶ 28} Younker‘s third assigned error is as follows:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN SENTENCING MR. YOUNKER TO MORE THAN THE MINIMUM PRISON SENTENCE.
{¶ 29} Younker asserts that, in imposing more than a minimum sentence, the trial court failed to properly consider
{¶ 30} Younker directs our attention in part to
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 and to punish the offender using the minimum sanctions that the
{¶ 31} Younker asserts as follows: “The factors indicate Mr. Younker‘s conduct was less serious and not likely to recur. Therefore, the minimum sentence would not have demeaned the seriousness of the offense. Lastly, this offense involved his sister in the confines of their home. The public, in general, was not at risk by his conduct.”
{¶ 32} Finally, Younker asserts that the trial court “used the victim‘s age as a reason to impose a harsher sentence. * * * The victim‘s age was, however, an essential element of the crime and should not have been considered as a ‘more serious’ factor to support a higher sentence. Further, the victim‘s age – alone – is not listed as a ‘more serious’ factor under
{¶ 33} The State responds as follows:
Younker was convicted of three third-degree felonies for which the allowable sentencing range was one to five years in prison on each count.
R.C. 2929.14(A)(3)(a) . In deciding to sentence Younker to concurrent terms of three years in prison on each count – which is two years more than the minimum allowable prison sentence and twelve years less than the maximum (i.e., five years consecutive on each count) – the trial court expressly stated that it had considered both the purposes and principles of sentencing set out inR.C. 2929.11 , as well as the seriousness and recidivism factors set out inR.C. 2929.12 . * * * And even though it was not required to, the court nevertheless gave a full explanation of its reason for
{¶ 34} As this Court recently noted:
In State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.), we held that we would no longer use an abuse-of-discretion standard in reviewing a felony sentence, but would apply the standard of review set forth in
R.C. 2953.08(G)(2) . Under this statute, an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it “clearly and convincingly” finds either (1) that the record does not support certain specified findings or (2) that the sentence imposed is contrary to law. Rodeffer stated that “[a]lthough [State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124] no longer provides the framework for reviewing felony sentences, it does provide * * * adequate guidance for determining whether a sentence is clearly and convincingly contrary to law. * * * According to Kalish, a sentence is not contrary to law when the trial court imposes a sentence within the statutory range, after expressly stating that it had considered the purposes and principles of sentencing set forth inR.C. 2929.11 , as well as the factors inR.C. 2929.12 .” (Citations omitted). Rodeffer at ¶ 32. “The
R.C. 2929.11 requires trial courts to be guided by the overriding principles of felony sentencing. Those purposes are “to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.”R.C. 2929.11(A) . The court must “consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.”Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing * * *, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.”
R.C. 2929.12(B) sets forth nine factors indicating an offender‘s conduct is more serious than conduct normally constituting the offense;R.C. 2929.12(C) sets forth four factors indicating that an offender‘s conduct is less serious.R.C. 2929.12(D) and (E) each list five factors that trial court are to consider regarding the offender‘s likelihood of committing future
{¶ 35} It is clear from the transcript of the sentencing hearing that the trial court considered the purposes and principles of sentencing as well as the factors set forth in
{¶ 36} Having determined above that the trial court‘s imposition of a mandatory sentence is not authorized by law, the mandatory provision of Younker‘s sentence is reversed and vacated, and the matter is remanded for resentencing consistent with this opinion. The judgment of the trial court is affirmed in all other respects.
HALL, J. and WELBAUM, J., concur.
Mathias H. Heck, Jr.
Andrew T. French
Lucas W. Wilder
Hon. Timothy N. O‘Connell