State v. Jirousek ( 2013 )

[Cite as State v. Jirousek, 2013-Ohio-5267.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2013-G-3128
- vs - : and 2013-G-3130
MICHAEL D. JIROUSEK, :
Defendant-Appellant. :
Criminal Appeals from the Geauga County Court of Common Pleas, Case Nos. 11 C
000164 and 12 C 000061.
Judgment: Affirmed in part; reversed in part and remanded.
James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).
Paul A. Mancino, Jr., Mancino, Mancino & Mancino, 75 Public Square, #1016,
Cleveland, OH 44113-2098 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} This appeal follows two separate judgments of conviction based on
appellant Michael Jirousek’s guilty pleas. In the first case, appellant pleaded guilty to
various felony-sexually oriented offenses (“Case No. 11C000164”) and, in the second,
he pleaded guilty to a misdemeanor assault (“Case No. 12C000061”). The cases were
consolidated by this court for purposes of appeal and appellant now challenges various
aspects of the judgments of conviction entered by the Geauga County Court of
Common Pleas. For the reasons that follow, we affirm in part, reverse in part, and
remand the matter for further proceedings.
{¶2} CASE NO. 11C000164
{¶3} On November 21, 2011, appellant was indicted on one count of
importuning, in violation of R.C. 2907.07(D)(1), a felony of the fifth degree; one count of
unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A), a felony of the
fourth degree; and one count of endangering children, a violation of R.C. 2919.22(B)(5),
a felony of the second degree.
{¶4} Appellant ultimately entered pleas of guilty to one count of felony-five
importuning; one count of felony-four unlawful sexual conduct with a minor, and one
count of felony-four pandering obscenity involving a minor, a stipulated, lesser-included
offense of endangering children. The court set the matter for sentencing and ordered a
presentence investigation report (“PSI”).
{¶5} After a hearing, appellant was sentenced to 17 months imprisonment for
unlawful sexual conduct with a minor; 11 months imprisonment for importuning, to run
concurrently with the 17-month sentence; and 12 months for pandering obscenity
involving a minor, to run consecutively to the 17-month aggregate sentence for the first
two counts. Appellant was notified that, by pleading to the importuning charge, he
would be classified a Tier I sex offender and obligated to register for a period of 15
years, which would have to be updated annually. The court additionally advised
appellant that, by pleading to the charges of unlawful sexual conduct with a minor and
pandering, he would be classified as a Tier II sex offender and be required to register
and reregister every six months for a period of 25 years.
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{¶6} CASE NO 12C000061
{¶7} On June 20, 2012, appellant was indicted on one count of assault, in
violation of R.C. 2903.123(A)(C)(2)(b), a felony of the fifth degree. On July 10, 2012,
appellant was arraigned and pleaded not guilty before Judge Forrest W. Burt. After the
proceedings were adjourned, the court reconvened because appellant, as he left the
courtroom, cast a vulgar epithet at the prosecutor. The court found appellant in
contempt of court and ordered appellant to serve a total sentence of 20 days in jail; the
sentence was suspended and the case was ultimately assigned to Judge David L.
Fuhry for all remaining proceedings.
{¶8} Appellant entered a plea of guilty to assault, in violation of R.C.
2903.13(A), a misdemeanor of the first degree. The court set the matter for sentencing
and indicated its intention to consider the PSI from Case No. 11C000164.
{¶9} The case came on for sentencing and the court imposed a 180-day jail
term for the misdemeanor assault count; the court further imposed the suspended 20-
day sentence for appellant’s contempt at the arraignment. Each term was ordered to be
served concurrently with the prison terms imposed in Case No. 11C000164.
{¶10} Appellant assigns 15 errors for this court’s review. For ease of discussion,
we shall consolidate our analysis of appellant’s first, second, and third assignments of
error. They provide, respectively:
{¶11} “[1.] Defendant was denied due process of law when the court sentenced
defendant immediately for a comment which was arguably protected by the First
Amendment and judicial privilege.”
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{¶12} “[2.] Defendant was denied due process of law when he was summarily
found in contempt of court and immediately sentenced.”
{¶13} “[3.] Defendant was denied due process of law when the court failed to
grant defendant allocution before imposing a sentence for contempt.”
{¶14} During a July 10, 2012 status hearing, the trial court convened for
appellant to stipulate to his competency to stand trial and to accept appellant’s then-
entered plea of not guilty to the charge of felony-five assault in Case No. 12C000061.
After the proceedings adjourned, the court reconvened due to an exchange between
appellant and the prosecutor in which the former referred to the latter as a “pussy.”
Appellant apologized on record. The trial court, however, did not accept the apology
and rebuked appellant, stating: “This gentleman is doing his job. He’s an assistant
prosecutor. He’s an officer of the court. He’s an officer of the state. What makes you
possibly think that it’s acceptable to call him that under the circumstances?”
{¶15} The court subsequently held appellant in contempt, sentenced him to 10
days in jail, and suspended the sentence. In response to the court’s action, appellant
offered to “drop and give [the court] five hundred instead[.]” The court reiterated its
contempt finding and increased the appellant’s sentence to 20 days in jail. The court
again suspended the sentence. The court, via a different judge, later imposed the 20
days in a January 10, 2013 judgment entry, and ordered the sentence to run
consecutive with the 180-day sentence for the first-degree misdemeanor assault to
which he pleaded guilty; and each sentence was ordered to run concurrently with
appellant’s felony sentences entered in Case. No. 11C000164.
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{¶16} Preliminarily, the state asserts that the contempt order was a valid and
final order when the court entered the order. As a result, it argues, appellant’s
arguments relating to that order are untimely.
{¶17} The state is correct that a judgment of contempt becomes final and
appealable when there is a finding of contempt and the imposition of a penalty.
O’Grady v. O’Grady, 11th Dist. Trumbull No. 2012-T-0004, 2012-Ohio-4208, ¶34.
Furthermore, courts have held that an order finding a party in contempt that imposes a
suspended jail sentence meets these criteria. See Abernathy v. Abernathy, 8th Dist.
Cuyahoga No. 92708, 2010-Ohio-435, ¶37; The Estate of Renee Harrold v. Collier, 9th
Dist. Wayne Nos. 07CA0074 and 08CA0024, 2009-Ohio-2782, ¶14; Peterson v.
Peterson, 5th Dist. Muskingum No. CT2003-0049, 2004-Ohio-4714, ¶8. And, in this
case, appellant did not file his first notice of appeal, however, until January 10, 2013,
some six months after the order was issued from the bench. To the extent the order
was final and appealable on July 10, 2012, i.e., the date of its issuance, appellant has
failed to invoke this court’s jurisdiction to consider the order. In this respect, appellant’s
first, second, and third assignments of error are not properly before this court.
{¶18} Notwithstanding this conclusion, it is well-settled that a court speaks only
through its journal entries. See e.g. State v. King, 11th Dist. Portage No. 2008-P-0040,
2010-Ohio-3254, ¶55. Following this axiom, the order became final and appealable
upon its ultimate journalization; to wit: January 10, 2013. Appellant filed his notice of
appeal of the entry on February 4, 2013, well within the 30-day window for invoking this
court’s jurisdiction. Assuming appellant timely filed his appeal of the contempt order,
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however, the record indicates that appeal has been rendered moot by the expiration of
the sentence.
{¶19} Sentencing occurred on December 14, 2012. Appellant was given 158
days credit and, as a result, his sentence for the assault conviction expired on January
5, 2013, 22 days after the court’s imposition of punishment. Furthermore, appellant’s
contempt convictions would have expired January 25, 2013, 20 days after the expiration
of the assault sentence.
{¶20} The Supreme Court of Ohio has observed that, “[t]he completion of a
sentence is not voluntary and will not make an appeal moot if the circumstances
surrounding it demonstrate that the appellant neither acquiesced in the judgment nor
abandoned the right to appellate review, that the appellant has a substantial stake in the
judgment of conviction, and that there is subject matter for the appellate court to
decide.” Cleveland Heights v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, paragraph
one of the syllabus. In the case of a misdemeanor conviction,
{¶21} a misdemeanant who contests charges at trial and, after being
convicted, seeks a stay of execution of sentence from the trial
court for the purpose of preventing an intended appeal from being
declared moot and thereafter appeals the conviction objectively
demonstrates that the sentence is not being served voluntarily,
because no intent is shown to acquiesce in the judgment or to
intentionally abandon the right of appeal. Id. at ¶ 23.
{¶22} Conversely, when an appellant completes a misdemeanor sentence
without requesting a stay pending appeal and does not offer evidence from which an
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appellate court could infer that the appellant would suffer collateral disability or loss of
civil rights stemming from the misdemeanor conviction, the appeal is moot. State v.
Jones, 9th Dist. Wayne No. 12CA0024, 2012-Ohio-6150, ¶ 52.
{¶23} “A direct contempt is one committed in the presence of or so near the
court as to obstruct the due and orderly administration of justice.” See e.g. In re Lands,
146 Ohio St. 589, 595 (1946). In this case, appellant made the contemptible remarks
both near the court and before the judge. The contemptible conduct, therefore, was a
form of direct contempt. “A direct contempt conviction is a petty or minor offense, and
only a misdemeanor, when its punishment is imprisonment not in the penitentiary and
not for more than a year.” In re Stukey, 2d Dist. Montgomery No. 15604, 1996 Ohio
App. LEXIS 4583, *2 (Oct. 11, 1996), citing In re Neff, 20 Ohio App.2d 213 (5th
Dist.1969).
{¶24} Because appellant’s sentence has expired, he did not move for a stay of
execution of that sentence, and has offered no evidence that he will suffer a collateral
disability or a loss of civil rights from the misdemeanor conviction, his satisfied judgment
is rendered moot as a matter of law.
{¶25} Given the foregoing analysis, appellant’s first three assigned errors lack
merit.
{¶26} Appellant’s fourth assignment of error provides:
{¶27} “Defendant was denied due process of law when the court imposed a
consecutive sentence without appropriate findings.”
{¶28} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Ohio Supreme
Court set forth a two-step process for reviewing felony sentences. The first step is to
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“examine the sentencing court’s compliance with all applicable rules and statutes in
imposing the sentence to determine whether the sentence is clearly and convincingly
contrary to law.” Id. at ¶4. If the first prong is satisfied, the second prong requires the
trial court’s judgment to be reviewed under the abuse-of-discretion standard.
{¶29} H.B. 86, which became effective on September 30, 2011, revived the
language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The
revisions to the felony sentencing scheme under H.B. 86 now require a trial court to
make specific findings when imposing consecutive sentences. Appellant was sentenced
on December 27, 2012 and therefore the new provisions apply.
{¶30} R.C. 2929.14(C)(4) provides:
{¶31} 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:
{¶32} (a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
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{¶33} (b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual
that no single prison term for any of the offenses committed as part
of any of the courses of conduct adequately reflects the
seriousness of the offender’s conduct.
{¶34} (c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶35} The legislature, in amending former R.C. 2929.14(E)(4), intended:
{¶36} “to simultaneously repeal and revive the amended language in
those divisions that was invalidated and severed by the Ohio
Supreme Court’s decision in State v. Foster, 109 Ohio St.3d 1,
2006 Ohio 856, 845 N.E.2d 470.” The General Assembly further
explained that the amended language in those divisions “is subject
to reenactment under the United States Supreme Court’s decision
in Oregon v. Ice, (2009) 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed.
2d 517, and the Ohio Supreme Court’s decision in State v. Hodge,
(2010) [128] Ohio St.3d [1], slip opinion no. 2010-Ohio-6320, 941
N.E.2d 768, * * *.” State v. Beckworth, 11th Dist. Ashtabula No.
2012-A-0051, 2013-Ohio-1739, ¶14, quoting Section 11, H.B. 86.
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{¶37} Accordingly, the legislature intended courts to interpret the language in
current R.C. 2929.14(C)(4) in the same manner as the courts did prior to Foster.
Beckworth, supra.
{¶38} Appellant, however, did not object to the imposition of consecutive
sentences at the sentencing hearing and has consequently forfeited all but plain error.
See Crim.R. 52(B); State v. Wilson, 10th Dist. Franklin No.12AP-551, 2013-Ohio-1520,
¶8. Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting rights may be noticed
although they were not brought to the attention of the court.” An error is “plain” when it
is an obvious defect in the trial proceedings.
{¶39} In this case, the trial court sentenced appellant to 12 months for felony-
four pandering obscenity and ran that sentence consecutively to a 17-month prison term
(11 months for felony-five importuning and 17 months for felony-four unlawful conduct
with a minor, to be served concurrently). The trial court, however, did not set forth any
findings to support the imposition of consecutive sentencing as required by R.C.
2929.14(C)(4). The trial court is required to make the appropriate statutory findings
prior to imposing consecutive sentence. We therefore hold the trial court committed
plain error as a matter of law when it imposed consecutive sentences in this case.
{¶40} Appellant’s fourth assignment of error has merit.
{¶41} For his fifth assignment of error, appellant contends:
{¶42} “Defendant was denied his Sixth Amendment right when the court
sentenced defendant based on facts not admitted at the time of the plea.”
{¶43} Although the disposition of appellant’s fourth assignment of error requires
the court to resentence appellant, we shall address appellant’s sentencing argument as
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any arguable error is capable of repetition at a future hearing. That said, appellant
contends that his Sixth Amendment right to trial by jury was violated when the trial court,
at sentencing in Case No. 11C000164, relied upon facts to which he never admitted.
Appellant relies upon the Sixth Amendment jurisprudence announced in Apprendi v.
New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004).
Appellant misconstrues the import of these cases.
{¶44} In general, Apprendi and Blakely stand for the proposition that a jury must
determine any fact, other than a prior conviction, that increases the maximum
authorized penalty for a crime. See State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-
3478, ¶5. In Foster, supra, the Supreme Court of Ohio held that former R.C.
2929.14(B), 2929.14(C), 2929.14(E)(4), and R.C. 2929.19(B)(2) violate a defendant’s
Sixth Amendment right to a jury trial by requiring a court to make particular findings
before imposing more-than-the-minimum, the maximum, or consecutive sentences.1
The Court consequently excised all unconstitutional aspects of Ohio’s sentencing
scheme pursuant to Apprendi and Blakely.
{¶45} After Foster, Ohio’s felony sentencing scheme no longer violated the Sixth
Amendment because a trial court was no longer obligated to make findings before
imposing a felony sentence; rather, a court could, in its discretion, impose any sentence
(or sentences) so long as it is within the available punitive ranges set forth under R.C.
2929.14(A), and doing so does not amount to an abuse of discretion. Moreover, post-
Foster, the court, within its discretion, may choose to support its sentence by setting
forth its reasons for selecting the sentence imposed. If it elected to do so, this exercise
1. As discussed above, the Ohio legislature, pursuant to Ice, supra, and Hodge, supra, revived the
requirements of former R.C. 2929.14(E)(4), which mandated certain factual findings before a court
imposes consecutive sentences. Those requirements were re-codified under R.C. 2929.14(C)(4).
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did not violate the Sixth Amendment because the court’s findings or justifications are not
a statutory condition precedent to imposing the selected sentence, but merely a function
of the court’s discretion.
{¶46} In this case, prior to imposing sentence, the court made certain
observations on record, all of which were gleaned either from the sentencing hearing or
the PSI. In particular, the court advised appellant that the statute prohibiting unlawful
sexual conduct with a minor requires an offender to either know the age of the victim or
act recklessly in that regard. The court noted that in appellant’s version of events, he
believed that one of the victims, a 13-year-old girl, was 19 years old. The court stated
that, even assuming appellant possessed this belief, his behavior was reckless and he
“chose to fool [him]self.” The court continued:
{¶47} Having said that, when you are out trolling on the internet and then
in terms of luring that person to the vehicle and then saying you
can’t get out until we have sex, that certainly qualifies as being
reckless, especially when you found this person on the internet.
{¶48} I do find that in fact the victim of counts one and two was 13. The
victim of count three the age was at least or at most 17, or could
have been as young as 15, depending on those activities.
{¶49} We emphasize that this information came directly from information
submitted to the court at the sentencing hearing as well as the PSI, which included the
official police version of events as well as appellant’s version of the offenses. At
sentencing, a trial court is required to consider “the record, and information presented at
the hearing, any presentence investigation report, and any victim impact statement.”
12
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶37. Considering and relying upon
this information does not run afoul of Foster, Apprendi, or Blakely because Ohio law
does not mandate the court to make findings based upon such information to increase
an otherwise maximum-authorized penalty. Rather, the information merely exists to
provide the court assistance in fashioning a sentence consistent with the purposes and
principles of felony sentencing. We therefore hold the trial court did not err in relying
upon information that appellant did not specifically admit at his plea hearing.
{¶50} Appellant’s fifth assignment of error lacks merit.
{¶51} Appellant’s sixth assignment of error provides:
{¶52} “Defendant was denied due process of law when he was sentenced for
fourth and fifth degree felonies to prison rather than a community control sanction.”
{¶53} Appellant contends the trial court erred by sentencing him to prison terms
for the fourth- and fifth-degree felonies to which he was sentenced because he was
entitled to community control sanctions. We do not agree.
{¶54} R.C. 2929.13(B)(1)(a) provides, in relevant part:
{¶55} Except as provided in division (B)(1)(b) of this section, if an
offender is convicted of or pleads guilty to a felony of the fourth or
fifth degree that is not an offense of violence or that is a qualifying
assault offense, the court shall sentence the offender to a
community control sanction of at least one year’s duration if all of
the following apply:
{¶56} * * *
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{¶57} (iv) The offender previously has not been convicted of or pleaded
guilty to a misdemeanor offense of violence that the offender
committed within two years prior to the offense for which sentence
is being imposed. (Emphasis added.)
{¶58} In October 2012, appellant had entered a plea of guilty to misdemeanor
assault. Consequently, at the time of sentencing, December 2012, appellant had
pleaded guilty to a misdemeanor offense of violence within two years of the court’s
sentence. Because appellant failed to meet one of the four statutory criteria of R.C.
2929.13(B)(1)(a), he was not entitled to community control.
{¶59} Furthermore, R.C. 2929.13(B)(1)(b) specifically provides, in relevant part:
{¶60} The court has discretion to impose a prison term upon an offender
who is convicted of or pleads guilty to a felony of the fourth or fifth
degree that is not an offense of violence or that is a qualifying
assault offense if any of the following apply:
{¶61} * * *
{¶62} (v) The offense is a sex offense that is a fourth or fifth degree felony
violation of any provision of Chapter 2907. of the Revised Code.
{¶63} Appellant pleaded guilty to felony-four unlawful sexual conduct with a
minor, in violation of R.C. 2907.04(A) and felony-four pandering obscenity involving a
minor, in violation of R.C. 2907.321(A)(5). Appellant also pleaded guilty to felony-five
importuning, in violation of R.C. 2907.07(D)(1). Each of these crimes is a sex offense of
the fourth or fifth degree in violation of R.C. Chapter 2907. Thus, even assuming
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appellant had not pleaded guilty to misdemeanor assault, the court still possessed the
discretion to sentence him to prison.
{¶64} Appellant’s sixth assignment of error lacks merit.
{¶65} Appellant’s seventh assignment of error provides:
{¶66} “Defendant was denied due process of law when the court did not fully
explain the penalties for entering pleas of guilty to sexually oriented offenses.”
{¶67} When determining whether the trial court has met its obligations under
Crim.R. 11 in accepting a plea, appellate courts have distinguished between
constitutional and non-constitutional rights. With respect to the constitutional rights, a
trial court must advise a defendant that, by pleading guilty, he or she is waiving: “(1) the
right to a jury trial, (2) the right to confront one’s accusers, (3) the right to compulsory
process to obtain witnesses, (4) the right to require the state to prove guilt beyond a
reasonable doubt, and (5) the privilege against compulsory self-incrimination.” State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, at syllabus. A trial court must strictly
comply with those provisions of Crim.R. 11(C) that relate to the waiver of constitutional
rights and the failure to do so invalidates the plea. Veney, supra; see also State v.
Lavender, 11th Dist. Lake No. 2000-L-049, 2001 Ohio App. LEXIS 5858, *11 (Dec. 21,
2001).
{¶68} Alternatively, the remaining non-constitutional rights set forth under
Crim.R. 11 require the court to: (1) determine the defendant understands the nature of
the charge(s) and possesses an understanding of the legal and practical effect(s) of the
plea; (2) determine the defendant understands the maximum penalty that could be
imposed; and (3) determine that the defendant is aware that, after entering a guilty plea
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or a no contest plea, the court may proceed to judgment and sentence. See Crim.R.
11(C)(2)(a) and (b); see also State v. Nero, 56 Ohio St.3d 106, 108 (1990). Although
literal compliance with Crim.R. 11 as it pertains to the non-constitutional rights is
preferred, an advisement substantially complying with the letter of the rule is legally
sufficient. Nero, supra. A court substantially complies where the record demonstrates
the defendant, under the totality of the circumstances, subjectively understood the
implications of the plea and the rights waived. Id.
{¶69} Furthermore, even when a trial court fails to substantially comply with the
non-constitutional requirements of Crim.R. 11(C), such an error is reversible if a
defendant demonstrates he or she was prejudiced by the lack of compliance. State v.
Johnson, 40 Ohio St.3d 130, 134 (1988); see also Crim.R. 52(A); Crim.R. 33. The test
for prejudice is “whether the plea would have otherwise been made.” Nero, supra.
{¶70} Appellant argues the trial court provided an incomplete statement of the
penalties to which he would be subject as a consequence of his plea to sexually
oriented offenses in Case No. 11C000164. In particular, appellant argues his plea was
not entered with a full understanding of the nature of the charge because the trial court
did not inform him of the residency restrictions that attach to the crimes to which he
pleaded. We do not agree.
{¶71} At the plea hearing, the trial court informed appellant of the maximum
terms of imprisonment and fines to which he would be subject by pleading to the
sexually oriented offenses. The court further stated that, by pleading to the importuning
charge, appellant would be classified a Tier I sex offender and obligated to register for a
period of 15 years, which would have to be updated annually. The court additionally
16
advised appellant that, by pleading to the charges of unlawful sexual conduct with a
minor and pandering, he would be classified as a Tier II sex offender and be required to
register and reregister every six months for a period of 25 years. The court did not, until
sentencing, advise appellant that he would be precluded from residing within 1,000 feet
of a school, daycare, or child care facility.
{¶72} Appellant was notified he would be subject to various notification and
reporting requirements as a Tier I and II sex offender for the terms specified in the
statute. And the totality of the circumstances demonstrate that, by pleading to the sex
offenses at issue, appellant understood he would be subjected to various limitations and
restrictions as a result of his classifications. Hence, even though the court did not
inform appellant of the residency restriction, we conclude the court substantially
complied with Crim.R. 11(C)(a) and (b). See State v. Creed, 8th Dist. Cuyahoga No.
97317, 2012-Ohio-2627, ¶17 (holding where record demonstrated court advised
defendant of his obligations to register and notify for life as a Tier III sex offender, the
failure to specifically inform him of residency restrictions did not invalidate the plea.)
{¶73} Further, even if we determined the court’s omission did not substantially
comply with Crim.R. 11, appellant has failed to argue he suffered prejudice. And the
record supports the lack of notice of the residency restriction was harmless. To wit,
upon learning, at sentencing, he would be subject to the residency restriction, no
objection was entered. This suggests appellant did not find the restriction substantively
problematic or prejudicial. Without some demonstration of prejudice, we decline to find
appellant’s plea invalid.
{¶74} Appellant’s seventh assignment of error lacks merit.
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{¶75} Appellant’s eighth assignment of error asserts:
{¶76} “Defendant was denied due process of law when the court did not
determine that the defendant understood the nature of the offenses to which he was
entering pleas of guilty.”
{¶77} Appellant contends his plea was not knowingly and voluntarily entered
because the trial court failed to ensure he understood the nature of the offenses to
which he was pleading. We do not agree.
{¶78} At the plea hearing, the trial court asked appellant if he understood that his
plea would act as an admission of guilt to the crimes of importuning, a felony of the fifth
degree; unlawful sexual conduct with a minor, a felony of the fourth degree; and
pandering obscenity involving a minor, a felony of the fourth degree. Appellant stated
he understood this. The court continued:
{¶79} [L]et’s talk about the third count, there’s some aspects about that.
That was referred to by the prosecutor as a stipulated lesser
included offense. Now, the significance of that, among your rights
you could insist that a grand jury indict you on that because it’s a
different charge than you were originally indicted for.
{¶80} By stipulating that it’s a lesser included offense, you are telling me
that you are willing to proceed with that offense in your plea today
on that charge and not - - or you’re giving up your right to have a
grand jury consider whether you should be indicted for that offense.
Do you understand that?
{¶81} Appellant responded in the affirmative.
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{¶82} The court later advised appellant the maximum terms of imprisonment of
the charges as well as the maximum fines appellant was facing. And, as discussed
above, the court also explained appellant would be classified as both a Tier I and Tier II
sex offender as a result of his pleas and advised appellant of the notification and
registration requirements that attach to his classifications. Appellant stated on record
that he had no questions regarding the court’s explanations.
{¶83} With the foregoing in mind, we conclude the court advised appellant and
satisfactorily determined he understood the legal and practical effects of entering his
pleas. The record therefore demonstrates the appellant had a sufficient understanding
of the nature of the offenses to which he was pleading guilty.
{¶84} Appellant’s eighth assignment of error lacks merit.
{¶85} For his ninth assigned error, appellant contends:
{¶86} “Defendant was denied due process of law when the court did not
completely inform defendant about court costs but imposed full court costs in his
judgment entry of sentencing.”
{¶87} Under this assignment of error, appellant asserts the trial court failed to
comply with the requirements of R.C 2947.23(A)(1)(a) when it imposed costs in Case
No. 11C000164. R.C. 2947.23 has been amended since appellant’s sentencing, but at
the time of sentencing, it provided, in relevant part:
{¶88} In all criminal cases, including violations of ordinances, the judge or
magistrate shall include in the sentence the costs of prosecution,
including any costs under section 2947.231 of the Revised Code,
and render a judgment against the defendant for such costs. At the
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time the judge or magistrate imposes sentence, the judge or
magistrate shall notify the defendant of both of the following:
{¶89} (a) If the defendant fails to pay that judgment or fails to timely
make payments towards that judgment under a payment schedule
approved by the court, the court may order the defendant to
perform community service in an amount of not more than forty
hours per month until the judgment is paid or until the court is
satisfied that the defendant is in full compliance with the approved
payment schedule.
{¶90} In relevant part, the 2012 amendment, effective March 22, 2013,
substituted, in the second sentence of the language of section (A)(1)(a), “If” for “At the
time,” and substituted “a community control sanction or other nonresidential sanction”
for “sentence,” and also inserted the phrase “when imposing the sanction” to that
sentence.
{¶91} Given our disposition of appellant’s fourth assignment of error, this matter
must be remanded for resentencing on appellant’s felonies. On remand, the trial court
must proceed in light of the amended version of R.C. 2947.23. Any arguable error in
the court’s imposition of costs in the original judgment is therefore rendered moot.
{¶92} Appellant’s ninth assignment of error is without merit.
{¶93} Appellant’s tenth, eleventh, twelfth, and thirteenth of assignments of error
are related and shall be addressed together. They state, respectively:
{¶94} “[10.] Defendant was denied due process of law when he was sentenced
twice for contempt before two different judges.”
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{¶95} “[11.] Defendant has been denied due process of law when the court
imposed a jail sentence for contempt after that sentence had been suspended by
another judge.”
{¶96} “[12.] Defendant was denied due process of law when he was sentenced
for contempt which had occurred before a different judge.”
{¶97} “[13.] Defendant was denied due process of law when he was sentenced
for contempt without any evidence.”
{¶98} Pursuant to our disposition of appellant’s first, second, and third assigned
errors, assignments of error 10 through 13 are moot. That is, because appellant’s
sentence on the misdemeanor, direct contempt order has expired, he did not move for a
stay of execution of that sentence, and has offered no evidence that he will suffer a
collateral disability or a loss of civil rights from the misdemeanor conviction, these
challenges to his satisfied judgment are moot as a matter of law. See Lewis, supra.{¶99} Appellant’s tenth, eleventh, twelfth, and thirteenth assignments of error
lack merit.
{¶100} Appellant’s fourteenth and fifteenth assignments of error provide:
{¶101} “[14.] Defendant was denied due process of law when he was sentenced
to a maximum misdemeanor sentence of 180 days based on judicial factfinding.”
{¶102} “[15.] Defendant was denied due process of law when the court did not
completely inform defendant about court costs but imposed full court costs in his
judgment entry of sentence.”
{¶103} Similar to the assignments of error challenging appellant’s direct contempt
order, appellant’s arguments relating to his sentence on the misdemeanor assault
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charge are moot. Appellant’s sentence for the assault plea expired on January 5, 2013.
Appellant, however, did not move for a stay of execution of that sentence, nor has he
offered any evidence that he will suffer a collateral disability or a loss of civil rights from
the misdemeanor conviction. Thus, these challenges to his satisfied judgment are moot
as a matter of law.
{¶104} Appellant’s fourteenth and fifteenth assignments of error are without merit.
{¶105} For the reasons discussed in this opinion, appellant’s fourth assignment of
error is sustained. All remaining assigned errors are without merit. The matter is
therefore reversed and remanded to the trial court for resentencing in Case No.
11C000164 due to the trial court’s failure set forth proper findings to support the
imposition of consecutive sentencing as required by R.C. 2929.14(C)(4). The judgment
of the trial court is accordingly affirmed in part, reversed in part, and remanded.
TIMOTHY P. CANNON, P.J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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