State v. D.M.J. , 2014 Ohio 1377 ( 2014 )

[Cite as State v. D.M.J., 2014-Ohio-1377.]
IN THE COURT OF APPEALS OF Ohio
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-57
v. : (C.P.C. No. 12CR-03-1451)
[D.M.J.], : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 31, 2014
Ron O'Brien, Prosecuting Attorney, and Barbara A.
Farnbacher, for appellee.
Blaise Baker, for appellant.
APPEAL from the Franklin County Court of Common Pleas
T. BRYANT, J.
{¶1} Defendant-appellant, D.M.J., appeals from a judgment from the Franklin
County Court of Common Pleas finding him guilty of five counts of gross sexual
imposition, violations of R.C. 2907.05, and sentencing him to five years as to each
count, four to run consecutively and two to be served concurrently, for a total of 20
years of incarceration. For the following reasons, we reverse the judgment of the trial
court and remand for resentencing.
I. BACKGROUND
{¶2} Appellant was indicted on 12 counts; two of those counts were rape, in
violation of R.C. 2907.02, and ten of those counts were gross sexual imposition, in
violation of R.C. 2907.05. The allegations involved appellant's three sisters, all under
the age of 13. The trial court held a plea hearing where appellant entered a guilty plea,
No. 13AP-57 2
pursuant to N. Carolina v. Alford, 400 U.S. 25 (1970), to the stipulated lesser included
offense of Count 1, gross sexual imposition, in violation of R.C. 2907.05, and Counts 2,
4, 5, 6, and 7, gross sexual imposition, violations of R.C. 2907.05, all felonies of the third
degree.1 The trial court found appellant guilty, ordered a presentence investigation, and
set the matter for a sentencing hearing.
{¶3} At the sentencing hearing, appellant's counsel argued that the sentence the
trial court would impose did not require mandatory imprisonment time because the
mandatory sentencing provision violates the United States Supreme Court's holdings in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S.
296 (2004). Counsel argued that the corroborating evidence must be adduced at trial,
not through a change of plea hearing, and the existence of corroborating evidence is a
question of fact that must be proven beyond a reasonable doubt before a mandatory
sentence can be imposed.
{¶4} The trial court sentenced appellant to a mandatory sentence of five years
of incarceration as to Counts 1, 2, 4, and 5 to be served consecutively and five years of
incarceration on Counts 6 and 7 to be served concurrently with each other and the other
counts, for a total of 20 years of incarceration. The trial court entered a nolle prosequi
for Counts 3, 8, 9, 10, 11, and 12 of the indictment.
{¶5} Pursuant to the guidelines set forth in Anders v. California, 386 U.S. 738(1967), appellant's counsel filed an appellate brief and motion to withdraw as counsel.
Counsel certified that he had mailed a copy of the brief and motion to appellant with
instructions that he may file his own brief. Appellant did not do so.
II. ASSIGNMENT OF ERROR
{¶6} Appellant's counsel states that he thoroughly reviewed the original court
file, as well as the transcript of proceedings, and concluded that the trial court did not
commit any error prejudicial to appellant. However, in compliance with the
requirements of Anders, appellant's counsel submitted a brief setting forth the following
possible assignment of error:
1In Alford, the United States Supreme Court held that, under certain circumstances, a defendant may
plead guilty to an offense and continue to deny his guilt to avoid the consequences of a criminal trial.
State v. Cooper, 10th Dist. No. 06AP-150, 2008-Ohio-6119, ¶ 9.
No. 13AP-57 3
Whether the sentence imposed by the Court is mandatory
under O.R.C. 2907.05.
III. DISCUSSION
A. Counsel's Possible Assignment of Error
{¶7} Appellant entered an Alford plea. There is no significant difference
between an Alford plea and a guilty plea, other than the defendant continues to claim
innocence in the Alford plea. Id. at 37-38. Therefore, an Alford plea is procedurally the
same as a guilty plea because it limits the ability of a defendant to appeal from his
sentence. State v. Maples, 6th Dist. No. L-93-009 (Mar. 11, 1994). When a defendant
enters a guilty plea as part of a plea bargain, he "waives all appealable errors '* * * unless
such errors are shown to have precluded the defendant from voluntarily entering into
his or her plea pursuant to the dictates of Crim.R. 11(C).' " State v. Witcher, 6th Dist.
No. L-92-354 (Dec. 30, 1993), quoting State v. Kelley, 57 Ohio St.3d 127 (1991),
paragraph two of the syllabus.
{¶8} "When appointed appellate counsel files a motion to withdraw, this court
must ensure that counsel has: (1) conducted a thorough review of the record on appeal
before deciding that the appeal is frivolous; (2) filed a motion to withdraw explaining
counsel's belief that the appeal is frivolous; (3) filed a brief raising any possible
assignments of error; (4) provided a copy of the brief to appellant; and (5) provided
appellant with adequate opportunity to inform this court of any additional potential
assignments of error which appellant believes should be addressed on appeal." State v.
Love, 6th Dist. No. L-96-156 (Mar. 21, 1997), citing Anders at 744.
{¶9} By his possible assignment of error, appellant's counsel raises the issue
that the trial court erred by imposing a mandatory sentence. R.C. 2907.05(C)(2)(a)
provides that a trial court shall impose a mandatory prison term on an offender
convicted of gross sexual imposition against a victim less than 13 years old when
"[e]vidence other than the testimony of the victim was admitted in the case
corroborating the violation." This court recently addressed mandatory sentences in
both State v. North, 10th Dist. No. 13AP-110, 2013-Ohio-4607, and State v. F.R., 10th
Dist. No. 13AP-525, 2014-Ohio-799. In North, the defendant entered an Alford plea to
two counts of gross sexual imposition against a victim less than 13 years old.
No. 13AP-57 4
{¶10} In North, the state argued that, pursuant to R.C. 2907.05(C)(2)(a), there
was corroborating evidence of the violation other than the victim's testimony and that
the defendant was subject to a mandatory prison sentence. This court concluded that
the determination called for under R.C. 2907.05(C)(2)(a) does not involve the same type
of fact that must be determined by the jury in Apprendi and Alleyne v. United States, __
U.S. __, 133 S.Ct. 2151 (2013). A jury must determine the type of fact that increases a
mandatory sentence. The fact regarding whether corroborating evidence was
introduced is not such a fact. Thus, the provision does not require a jury determination
and is not unconstitutional.
{¶11} Further, this court determined in North, that, in enacting R.C.
2907.05(C)(2)(a), the General Assembly intended to require trial courts to impose a
mandatory prison sentence where a conviction for gross sexual imposition against a
victim less than 13 years old was based on more than a single piece of evidence or more
than the victim's testimony. In North, there was corroborating evidence in a stipulation
regarding the police detective's testimony, who, if called to testify, would testify that the
defendant had acknowledged touching and fondling the victim when she was ten years
old and would have testified to the authenticity of an audio recording of defendant's
statement to the police. Thus, this court reversed the trial court's judgment and
remanded the cause for resentencing.
{¶12} In F.R., this court held that State v. Bevly, 10th Dist. No. 12AP-471, 2013-
Ohio-1352, and North previously determined that R.C. 2907.05(C)(2)(a) was not
unconstitutional and did not require the victim's testimony in order to trigger the
mandatory sentencing provision.
{¶13} In this case, corroborating evidence also exists. The prosecuting attorney
provided a summary of the facts including that two of the sisters had been interviewed
and disclosed that their brother had assaulted them. When the police detective
interviewed appellant, he initially denied the allegations, but then admitted the
allegations and reported that he had committed other similar incidents with his third
sister. The police detective testified that the girls reported sexual assaults that took
place over a long period of time by appellant. A recording of appellant's interview was
also admitted into evidence.
No. 13AP-57 5
{¶14} Given that there was corroborating evidence, other than the victim's
testimony, including appellant's admission, the police detective testimony, and the
recording, pursuant to R.C. 2907.05(C)(2)(a), the trial court was required to impose a
mandatory prison sentence. Thus, appellant's counsel's possible assignment of error
has no merit and is overruled.
B. Court's Review of Record
{¶15} Pursuant to Anders, this court is required to review the proceedings to
determine if the appeal is frivolous as appellant's counsel claims. We have reviewed the
entire trial court's proceedings and have determined that there is no merit to the error
alleged by appellant's counsel. However, our review of the record reveals that the trial
court erred in imposing consecutive sentences without making the statutory findings
required by R.C. 2929.14(C)(4).
{¶16} We note that appellant failed to object to the imposition of consecutive
sentences at the sentencing hearing and has forfeited all but plain error. State v.
Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 8. Under Crim.R. 52(B), "[p]lain
errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court." For an error to constitute "plain error" under
Crim.R. 52(B), it must be an "obvious" defect in the trial proceedings. State v. Barnes,
94 Ohio St.3d 21, 27 (2002). An appellate court notices plain error " 'with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.' " Id., quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the
syllabus. Plain error is not present unless, but for the error complained of, the outcome
would have been different. Id. at paragraph two of the syllabus; State v. Gardner, 118
Ohio St.3d 420, 2008-Ohio-2787, ¶ 78.
{¶17} Generally, we review felony sentences to determine " 'whether clear and
convincing evidence establishes that a felony sentence is contrary to law.' " State v.
Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 8, quoting State v. Allen, 10th Dist.
No. 10AP-487, 2011-Ohio-1757, ¶ 19. " 'A sentence is contrary to law when the trial
court failed to apply the appropriate statutory guidelines.' " Id., quoting Allen at ¶ 19,
citing State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 19.
{¶18} R.C. 2929.14(C)(4) provides:
No. 13AP-57 6
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:
(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.
(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.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶19} Thus, "R.C. 2929.14(C)(4) now requires the trial court to make three
findings before imposing consecutive sentences: (1) that consecutive sentences are
necessary to protect the public from the future crime or to punish the offender; (2) 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 (3) that one of the
subsections (a), (b), or (c) apply." State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-
3162, ¶ 76. "The trial court is not required to give reasons explaining these findings, nor
is the court required to recite any 'magic' or 'talismanic' words when imposing
consecutive sentences." Id. "Nevertheless, the record must reflect that the court made
the findings required by the statute." Id.{¶20} In this case, the trial court did not specify the necessary findings. This
court has previously found that, when the record demonstrates that the trial court failed
to make the findings required by R.C. 2929.14(C) before imposing consecutive sentences
No. 13AP-57 7
on multiple offenses, "appellant's sentence is contrary to law and constitutes plain
error." Wilson at ¶ 18. See also F.R. at ¶ 25-26; State v. Bailey, 10th Dist. No. 12AP-
699, 2013-Ohio-3596, ¶ 46; State v. Hunter, 10th Dist. No. 13AP-196, 2013-Ohio-4013,
¶ 9; State v. Bender, 10th Dist. No. 12AP-934, 2013-Ohio-2777, ¶ 7; State v. Castlin,
10th Dist. No. 13AP-331, 2013-Ohio-4889, ¶ 9; State v. Phipps, 10th Dist. No. 13AP-351,
2013-Ohio-5546, ¶ 15.
{¶21} Since the trial court imposed consecutive sentences without specifying the
necessary findings, "appellant's sentence is contrary to law and constitutes plain error."
Wilson at ¶ 18. As such, we must vacate appellant's sentence and remand this cause for
resentencing.
IV. CONCLUSION
{¶22} Although we overruled appellant's possible assignment of error, finding it
has no merit, we do not find the appeal to be frivolous. Having found that the trial court
did commit error which is prejudicial to appellant, the judgment of the Franklin County
Court of Common Pleas is reversed, and this matter is remanded for resentencing.
Appellant's counsel's request to withdraw as appellate counsel is granted.
{¶23} On remand, the trial court must appoint new counsel for appellant and
determine whether consecutive sentences are appropriate under R.C. 2929.14(C) and
enter the required findings on the record.
Motion to withdraw granted;
judgment reversed and cause remanded
for appointment of counsel and resentencing.
TYACK and KLATT, JJ., concur.
T. BRYANT, J., retired, formerly of the Third Appellate
District, assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
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