State v. Nofsinger , 2017 Ohio 4029 ( 2017 )

[Cite as State v. Nofsinger, 2017-Ohio-4029.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 16AP0005
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOSHUA M. NOFSINGER COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2015 CRC-I 000177
DECISION AND JOURNAL ENTRY
Dated: May 30, 2017
TEODOSIO, Judge.
{¶1} Appellant, Joshua M. Nofsinger, appeals from his convictions and classification
as a Tier III sex offender in the Wayne County Court of Common Pleas. We affirm.
I.
{¶2} Mr. Nofsinger pled guilty to two counts of sexual battery, felonies of the third
degree, for engaging in sexual conduct with a sixteen-year-old student while he was an assistant
track coach in the Dalton School District. He was sentenced to two years in prison and was
classified as a Tier III sex offender.
{¶3} Mr. Nofsinger now appeals from his convictions and classification as a Tier III
sex offender and raises one assignment of error for this Court’s review.
II.
ASSIGNMENT OF ERROR ONE
THE OFFENSE-BASED SEX OFFENDER CLASSIFICATIONS UNDER
SENATE BILL 10 CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT
2
UNDER EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE I, SECTION 9 OF THE OHIO
CONSTITUTION, WHERE THE CLASSIFICATION IS GROSSLY
DISPROPORTIONATE TO THE NATURE OF THE OFFENSE AND
CHARACTER OF THE OFFENDER.
{¶4} In his sole assignment of error, Mr. Nofsinger argues that his classification as a
Tier III sex offender is cruel and unusual punishment under the United States Constitution and
the Ohio Constitution.
{¶5} A review of the record reveals that Mr. Nofsinger did not raise the issue of
constitutionality or object in any way to his classification as a Tier III sex offender in the trial
court. “This Court has held that, if a defendant fails to raise a constitutional argument at the trial
level, he forfeits the right to argue it to this Court.” State v. Grad, 9th Dist. Medina No.
15CA0014-M, 2016-Ohio-8388, ¶ 18; see also State v. Quarterman, 140 Ohio St.3d 464, 2014-
Ohio-4034, ¶ 2. Although Mr. Nofsinger could have still made a plain error argument on appeal,
he has failed to do so. See Grad at ¶ 18; see also Quarterman at ¶ 2. This Court will not create a
plain error argument on his behalf. Grad at ¶ 18. Since there is no evidence that Mr.
Nofsinger’s argument was ever before the trial court for determination, this Court declines to
consider it for what the record indicates would be the first time on appeal. State v. Schultz, 9th
Dist. Summit No. 26875, 2014-Ohio-1037, ¶ 2.
{¶6} Mr. Nofsinger’s first assignment of error is overruled.
III.
{¶7} Mr. Nofsinger’s sole assignment of error is overruled. The judgment of the
Wayne County Court of Common Pleas is affirmed.
Judgment affirmed.
3
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
DAVID C. KNOWLTON, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.