State v. Hutchins , 2021 Ohio 4524 ( 2021 )

[Cite as State v. Hutchins, 2021-Ohio-4524.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 109686, 109687, and 109688
v. :
MICHAEL HUTCHINS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 23, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-639867-A, CR-639868-A, and CR-19-639870-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Anthony T. Miranda, Assistant Prosecuting
Attorney, for appellee.
Timothy Young, Ohio Public Defender, Abigail
Christopher and Timothy B. Hackett, Assistant State
Public Defenders, for appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant Michael Hutchins (“Hutchins”) appeals his
sentence and subsequent registration as a violent offender, pursuant to R.C.
2903.41, also known as Sierah’s Law, as unconstitutional. For the reasons that
follow, we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
This appeal concerns the trial court’s sentence pursuant to a package
plea deal between Hutchins and the state that resolved Hutchins’s three separate
indictments in the Cuyahoga County Court of Common Pleas, General Division. All
three indictments were filed on May 10, 2019, and their case numbers were: CR-19-
639867-A, CR-19-639868-A, and CR-19-639870-A. These cases were transferred
from the Cuyahoga County Juvenile Court. In the first case, CR-19-639867-A,
Hutchins was charged with one count of escape in violation of R.C. 2921.34(A)(3), a
third-degree felony, for an incident that occurred on or about October 9, 2018. In
the second case, CR-19-639868-A, Hutchins was charged with one count of
burglary, in violation of R.C. 2911.12(A)(1), a second-degree felony for an incident
that occurred on or about November 4, 2018.
Last, in CR-19-639870-A, Hutchins was charged for a series of violent
assaults that occurred on February 14, 2019. On that day, Hutchins followed the
victim who was leaving work and heading toward her vehicle in a parking garage.
Hutchins followed the victim into the parking garage elevator, and as she exited the
elevator at her floor, Hutchins attacked her from behind and then raped her on the
parking garage floor where she had fallen. He then dragged her to her vehicle,
demanded her keys, and attempted to get into her vehicle. The victim tried to run
away but Hutchins chased and caught her and dragged her back to the vehicle.
While attempting to pull the vehicle out of the parking spot, he crashed and then
fled the scene.
These acts resulted in a 15-count indictment: Counts 1, 2, and 3
charged raped in violation of R.C. 2907.02(A)(2), first-degree felonies; Counts 2 and
3 carried sexually violent predator specifications. Count 4 charged kidnapping in
violation of R.C. 2905.01(A)(4), a first-degree felony, with both a sexual motivation
specification and a sexually violent predator specification; Count 5 charged
kidnapping in violation of R.C. 2905.01(A)(2), a first-degree felony; Count 6 charged
robbery, in violation of R.C. 2911.02(A)(2), a second-degree felony; Counts 7 and 8
charged gross sexual imposition in violation of R.C. 2907.05(A)(1), a fourth-degree
felony; Count 9 charged grand theft, in violation of R.C. 2913.02(A)(1), a fourth-
degree felony; Counts 10 and 11 charged theft, in violation of R.C. 2913.02(A)(1), a
fifth-degree felony; Count 12 charged robbery, in violation of R.C. 2911.02(A)(3), a
second-degree felony; Count 13 charged theft in violation of R.C. 2913.02(A)(1), a
fifth-degree felony; Count 14 charged burglary, in violation of R.C. 2911.12(A)(3), a
second-degree felony; and Count 15 charged theft, in violation of R.C. 2913.02(A)(1),
a fifth-degree felony.
The three cases were consolidated and after protracted pretrial
negotiations, the cases were resolved with a single, “package deal” plea agreement
that the court accepted at the plea hearing on March 6, 2020. The plea agreement
consisted of an agreed sentencing range of 28-36 years in prison in exchange for
which Hutchins agreed to plead guilty to the following charges: in CR-19-639867-A,
Hutchins pled guilty to an amended count of escape from R.C. 2921.34(A)(1), a
third-degree felony, to R.C. 2921.34(A)(3), a fifth-degree felony. In CR-19-639868-
A, he pled guilty to an amended count of burglary, from R.C. 2911.12(A)(1), a second-
degree felony to R.C. 2911.12(A)(3), a third-degree felony. In CR-19-639870-A,
Hutchins pled guilty to: Counts 2, 3, and 4, which were amended to delete the
specifications as well as Counts 6, 9, and 12, as charged in the indictment; an
amended Count 14; and to Count 15, as charged. Counts 1, 5, 7, 8, 10, 11, and 13 were
nolled. Before accepting the guilty pleas, the trial court explained to Hutchins that
his pleas were subject to postrelease control and that he would have to register as
both a violent offender and as a sex offender.
The sentencing hearing was held on March 16, 2020. The hearing
started with the court reiterating to Hutchins that as a result of his plea agreement,
he would be required to register as a violent offender, and as a sex offender. The
court explained to Hutchins what would be required of him as a registered violent
offender and sex offender. When the court asked if Hutchins understood these
requirements, Hutchins acknowledged that he had signed a form that listed all the
requirements explained to him by the trial court:
THE COURT: The last paragraph on this form, Mr. Hutchins, reads: I
acknowledge that the above requirements have been explained to me.
I understand the requirements that I must abide by all the provisions
of Ohio Revised Code Chapter Sections 2903.41 through 2903.44.
There is a signature line on here, Mr. Hutchins. It kind of looks like it
says Michael Hutchins with today’s date. Is that your signature, sir?
THE DEFENDANT: Yes.
THE COURT: All right. Thank you for that.
The trial court provided a similar explanation to Hutchins regarding the
requirements for registering as a sex offender, and Hutchins acknowledged he
signed a form stating the requirements as well. Hutchins did not object to having to
register as either a violent offender or as a sex offender.
The court then heard from the victim in CR-19-639870-A, who chose
to attend the sentencing hearing and bravely detailed the traumatic event. The trial
court then sentenced Hutchins for each case. In CR-19-639867-A, Hutchins was
sentenced to 12 months in prison, to run concurrently with the other two cases, with
up to three years discretionary postrelease control. In CR-19-639868-A, Hutchins
was sentenced to 36 months in prison, to run concurrently with the other two cases,
with three years mandatory postrelease control. Last, in CR-19-639870-A, Hutchins
was sentenced to a total of 33 years in prison: 10 years on each of Counts 2, 3, and
4; 7 years on Count 6; 12 months on Count 9; 36 months on each of Counts 12 and
14; 180 days on Count 15. The court ordered Counts 2, 3, 4, and Count 15 to run
consecutively to each other with the other counts running concurrently for a total
prison term of 33 years.
On April 14, 2020, Hutchins filed a timely notice of appeal. On July
28, 2020, Hutchins filed a motion in the lower court for a correction of jail-time
credit. The same day, Hutchins filed a motion in this court requesting a stay and
limited remand for the trial court to rule on his motion for jail-time credit. On July
30, 2020, this court granted the motion for a stay and ordered a limited remand.
On August 11, 2020, the trial court ruled on Hutchins’s motion, granting the motion
and recalculating his jail-time credit with an additional 124 days for time served in
the Cuyahoga County Juvenile Detention Jail.
On October 9, 2020, Hutchins filed an unopposed motion to stay the
appeal pending the Ohio Supreme Court’s decisions in State v. Hubbard, Ohio
Supreme Court Nos. 2020-0544 and 2020-0625, and State v. Jarvis, Ohio Supreme
Court No. 2020-0549, which concerned the constitutionality of Sierah’s Law, Ohio’s
violent offender registry, and two conflicting appellate decisions regarding this law.
This court granted this second motion to stay.
On October 21, 2021, the Ohio Supreme Court issued its simultaneous
opinions for State v. Hubbard, Slip Opinion No. 2021-Ohio-3710 and State v.
Jarvis, Slip Opinion No. 2021-Ohio-3712. On October 25, 2021, this court lifted the
stay in the instant case. We now turn to the merits of Hutchins’s appeal.
LAW AND ARGUMENT
On appeal, Hutchins raised two assignments of error for our review:
I. The retroactive application of Ohio’s violent offender registry
violates the U.S. and Ohio Constitution’s ban on retroactive laws.
Article I, Sections 9 and 10 of the U.S. Constitution; and Article II,
Section 28 of the Ohio Constitution.
II. [Hutchins] was denied his right to effective assistance of counsel
when his counsel failed to object to the imposition of the violent
offender registry. Sixth and Fourteenth Amendments to the U.S.
Constitution; and Article I, Sections 10 and 16 of the Ohio
Constitution.
Hutchins’s first assignment of error alleges that the retroactive
application of R.C. 2903.41-44, commonly referred to as Sierah’s Law, violates the
Ohio Constitution and the United States Constitution. Sierah’s Law requires “the
Ohio Bureau of Criminal Investigation to establish and maintain the Violent
Offender Database and to make it available to federal, state, and local law-
enforcement officers.” Hubbard at ¶ 19, citing R.C. 2903.43(F)(2). The database
contains information on “violent offenders,” which the statute defined to include:
offenders who, on or after March 20, 2019, (1) are convicted of or plead
guilty to aggravated murder, murder, voluntary manslaughter,
kidnapping, or second-degree-felony abduction (or an attempt to
commit, conspiracy to commit, or complicity in committing any of
those offenses), or (2) were serving a term of confinement for any of
those offenses on the law’s effective date.
Hubbard at ¶ 19, citing R.C. 2903.41(A) and 2903.42(A)(1). Just like Hutchins, the
issue that went before the Ohio Supreme Court in Hubbard was the constitutionality
of the retroactive application of this statute, which is the requirement for offenders
to register despite their offense occurring prior to the enactment of the statute. Id.
at ¶ 8. Both Hutchins’s and Hubbard’s offenses took place prior to the enactment of
Sierah’s Law. However, the Ohio Supreme Court has definitively determined “that
the application of Sierah’s Law to violent offenders who committed their offenses
prior to its effective date does not violate the Retroactivity Clause of the Ohio
Constitution.” Id. at ¶ 45. This court has most recently held, based on the Ohio
Supreme Court’s decision in Hubbard, that Sierah’s law does not violate Ohio
Constitution’s Retroactivity Clause. State v. Brown, 8th Dist. Cuyahoga No. 109979,
2021-Ohio-4130, ¶ 28. Therefore, concerning Hutchins’s right under the Ohio
Constitution, this court must find the law does not violate the Retroactivity Clause.
Id.; Hubbard at ¶ 45.
Unlike the defendant in Hubbard, Hutchins also alleges the
retroactive application of Sierah’s Law violates his rights under Article I, Sections 9
and 10 of the United States Constitution, also known as the Ex Post Facto Clause.
As detailed in the Justice Stewart’s dissent in Hubbard, an ex post facto analysis
requires the application of the “intent-effects” test pursuant to the Supreme Court’s
decision in Smith v. Doe, 538 U.S. 84, 92-93, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003):
Under that test, a court is required to determine whether the legislature
intended to enact a civil, remedial law or a criminal, punitive one.
[Smith] at 92-93. “If the intention of the legislature was to impose
punishment, that ends the inquiry.” Id. at 92. But if the legislature
intended to enact a civil, remedial law, then the court must also
examine whether the law is so punitive in purpose or effect as to
override the legislature’s intent to enact a remedial law. Id. A new law
that intentionally punishes criminal behavior that predated the law or
that upon scrutiny is found to have the purpose or effect of punishing
such criminal behavior is ex post facto and thus unconstitutional. Id.
at 92-93, 97.
Hubbard, Slip Opinion No. 2021-Ohio-3710, at ¶ 48 (Stewart, J., dissenting).
Whether a statutory scheme is civil or criminal is a question of
statutory construction where the statute’s text and structure are considered to
determine the legislative objective. Smith at 92 (internal citations omitted). In
Hubbard, the Ohio Supreme Court considered the Ohio General Assembly’s intent
in enacting Sierah’s Law and after examining the statute’s language found that “[t]he
statutory language of Sierah’s Law does not indicate that it was enacted to inflict
punishment.” Hubbard at ¶ 31. The court further found that the General Assembly
“did not intend for Sierah’s Law to inflict additional punishment on violent
offenders.” Id. at ¶ 32. Last, the court found that the statute was enacted for the
“remedial purpose to protect the public from violent offenders after their release
from prison.” Id. at ¶ 42. Therefore, based on the Supreme Court’s findings we must
find that the legislature’s intent in enacting Sierah’s Law was remedial and not
criminal.
The second part of the intent-effects test requires the court to
determine if the effect of Sierah’s Law is so punitive in purpose or effect as to
override the legislature’s intent to enact a remedial law. In Hubbard, the Ohio
Supreme Court analyzed the various effects Sierah’s Law has on offenders. See
Hubbard at ¶ 33-42. The court based its analysis on the “useful guideposts”
provided by the United States Supreme Court to determine whether the statute in
effect imposes punishment:
“Whether the sanction involves an affirmative disability or restraint,
whether it has historically been regarded as punishment, whether it
comes into play only on a finding of scienter, whether its operation will
promote the traditional aims of punishment — retribution and
deterrence, whether the behavior to which it applies is already a crime,
whether an alternative purpose to which it may rationally be connected
is assignable for it, and whether it appears excessive in relation to the
alternative purpose assigned are all relevant to the inquiry, and may
point in differing directions.”
Hubbard at ¶ 33, citing State v. Casalicchio, 58 Ohio St.3d 178, 182, 569 N.E.2d 916(1991), quoting Kennedy v. Mendoza- Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554,
9 L.Ed.2d 644 (1963). Based on these guideposts, the Ohio Supreme Court went on
to find that “[t]he database-enrollment requirements of Sierah’s Law do not impose
an affirmative disability or physical restraint * * * [t]he duty to enroll in the Violent
Offender Database does not resemble traditional forms of punishment.” Hubbard
at ¶ 34, 36. The Ohio Supreme Court also found “the requirement to enroll in the
database does not attach based on a finding of the offender’s scienter * * * [a]nd
enrollment does not promote the traditional aims of punishment, such as
retribution and deterrence. Hubbard at ¶ 38-39. Lastly, the Ohio Supreme Court
found that “the requirement to register once a year is not excessive in relation to the
regulatory purpose of allowing law enforcement to know the location and
description of violent offenders in order to ensure public safety.” Hubbard at ¶ 40.
Therefore, based on the Ohio Supreme Court’s findings regarding the de minimis
effects of Sierah’s Law, we are obliged to find that the law is not so punitive in
purpose or effect as to override the legislature’s intent to enact a remedial law. Based
on the Ohio Supreme Court’s findings, we must hold Sierah’s Law does not violate
Hutchins’s constitutional protection against ex post facto laws pursuant to Article I,
Sections 9 and 10 of the United States Constitution. Hutchins’s first assignment of
error is overruled.
Hutchins’s second assignment of error alleges his trial counsel was
ineffective for failing to object to his registration in the violent offender database.
Both the Ohio and the U.S. Constitution grant a defendant the right in all criminal
prosecutions to have counsel’s assistance for one’s defense. Ohio Constitution
Article I, Section 10; the Sixth Amendment to the U.S. Constitution. The United
States Supreme Court has reasoned that the right to counsel for one’s defense entails
having the right to effective assistance of counsel. McMann v. Richardson, 397 U.S.
759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). To that end, the United States
Supreme Court has established the elements required to prevail on an ineffective
assistance of counsel claim, which the Ohio Supreme Court has adopted. See
Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
One must show two things to succeed on such a claim: (1) counsel
substantially violated an essential duty to the client, which requires showing that
counsel’s representation fell below an objective standard of reasonableness, and (2)
the violation prejudiced the defense, which requires showing that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different. Bradley at 141-142, citing Strickland at 687-
689.
As a result of the Ohio Supreme Court’s decision in Hubbard, which
dictated the resolution of Hutchins’s first assignment of error as discussed above,
we cannot say that his trial counsel was ineffective by failing to object to Hutchins’s
registration in the violent offender database. State v. Robinson, 8th Dist. Cuyahoga
No. 105951, 2018-Ohio-2058, ¶ 18 (finding that counsel was not ineffective for
failing to object to jury instructions that were found to be proper). Having
determined, based on the Ohio Supreme Court’s findings in Hubbard, that
Hutchins’s registration did not violate any of his rights provided under the Ohio or
United States Constitutions, we cannot say that his counsel’s failure to object to this
registration constitutes a substantial violation of any essential duty owed to
Hutchins. Id. Nor can we say the failure to object prejudiced Hutchins in any way
because any objection would have been futile given the constitutionality of Sierah’s
Law. Id. Therefore, Hutchins has failed to demonstrate that his trial counsel’s
performance was deficient and that he was prejudiced.
Hutchins’s second assignment of error is overruled.
Accordingly, the judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________
MARY EILEEN KILBANE, JUDGE
ANITA LASTER MAYS, P.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY