State v. Marcum , 2013 Ohio 2189 ( 2013 )

[Cite as State v. Marcum, 2013-Ohio-2189.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 12CA22 & 12CA26
vs. :
PATRICIA MARCUM, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: William T. Cramer, 470 Olde Worthington Road, Ste. 200,
Westerville, Ohio 43082
COUNSEL FOR APPELLEE: Laina Fetherolf, Hocking County Prosecuting Attorney, 88
South Market Street, Logan, Ohio 43138
CRIMINAL APPEAL FROM MUNICIPAL COURT
DATE JOURNALIZED: 5-6-13
ABELE, J.
{¶ 1} This is a consolidated appeal from several Hocking County Municipal Court
judgments of conviction and sentence. Patricia L. Marcum, defendant below and appellant
herein, (1) admitted that she violated the terms of her probation in one case, and (2) pled guilty in
another case to the obstruction of official business in violation of R.C. 2921.31(A).
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE MUNICIPAL COURT ABUSED ITS DISCRETION BY
ORDERING APPELLANT TO HAVE NO CONTACT WITH
HER SPOUSE AS A CONDITION OF COMMUNITY
CONTROL.”
SECOND ASSIGNMENT OF ERROR:
“THE NO-CONTACT ORDER VIOLATES THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT BY
ENCROACHING ON APPELLANT’S FUNDAMENTAL
CONSTITUTIONAL FREEDOM TO MARRY.”
{¶ 3} In 2010, appellant was charged with: (1) obstruction of official business in
violation of R.C. 2921.31, and (2) abuse of the 911 system in violation of R.C. 4931.49.
Appellant initially pled not guilty, but later agreed to plead guilty. The trial court accepted her
plea and imposed a variety of community control sanctions, including an order to “[s]tay away
from [her husband] James Marcum.” Appellant appealed the latter part of that sentence and we
reversed the judgment. See State v. Marcum, 4th Dist. Nos. 11CA8 & 11CA10, 2012-Ohio-572(Marcum I). On remand, the trial court re-entered judgment without including an order that
appellant have no contact with her husband.
{¶ 4} Subsequently, appellant was charged with a probation violation. Appellant,
pursuant to a plea agreement, admitted guilt and the trial court imposed a partially suspended jail
sentence. Appellant timely appealed that judgment (Case No. 12CA22).
{¶ 5} On May 8, 2012, in a separate case, appellant was, once again, charged with
obstructing official business in violation of R.C. 2921.31(A). Appellant signed a “Plea
Agreement” form on October 1, 2012 and consented, inter alia, to having “[n]o contact with
James Marcum.” That same day the court filed a judgment entry that included the provision.
Appellant timely appealed that judgment as well (Case No. 12CA21). However, on November
8, 2012, because the trial court’s judgment entry did not contain all the requisite elements of a
final judgment under Crim.R. 32(C) or R.C. 2505.02, we dismissed the appeal for the lack of a
HOCKING, 12CA22 & 12CA26 3
final appealable order. The trial court entered a second judgment on November 14, 2012 and
appellant timely appealed that case (Case No. 12CA26).
{¶ 6} On December 10, 2012, this Court granted appellant’s motion to consolidate both
appeals. It appears, however, that the two assignments of error are both directed at the judgment
from Case No. 12CA26.
I
{¶ 7} In her first assignment of error, appellant asserts that the trial court erred by
ordering her to “stay away” from her husband, James Marcum, and that the order should be
reversed as in Marcum I.
{¶ 8} Initially, we note that our review of the facts in the case sub judice reveal facts
very different from Marcum I. Indeed, as the appellee's brief correctly points out, the October 1,
2012 “Plea Agreement” (as a condition of probation) provides that appellant have “no contact
with James Marcum.” Appellant and the prosecutor both signed that agreement and the trial
court included that provision in the judgment of conviction and sentence. Our review of the
record in Marcum I, which is also here on appeal in Case No. 12CA22, reveals no similar
provision in the plea agreement in that case.
{¶ 9} We also recognize that the factual underpinning for the trial court's order in the
matter currently under review has changed in light of the various domestic violence convictions
that did not exist when we decided the first case. As such, the posture today is much different
than during our previous holding and weighs greatly in favor of affirming the trial court's order
on the merits.
{¶ 10} However, even if we assume, arguendo, that the court erred by ordering appellant
HOCKING, 12CA22 & 12CA26 4
to “stay away” from her husband, “the invited error doctrine” prohibits a party from taking
advantage of an error that she, herself, induced the court to make. State v. Hicks, 4th Dist. No.
11CA933, 2012-Ohio-3831, at ¶11; State v. Rizer, 4th Dist. No. 10CA3, 2011-Ohio-5702, at ¶27.
This doctrine applies to errors arising from a negotiated plea agreement. See State v. Patterson,
5th Dist. No. CT2008-0054, 2009-Ohio-273, at ¶12; State v. Robinson, 8th Dist. No. 90411,
2008-Ohio-3972, at ¶7.
{¶ 11} Consequently, whatever error, if any, that the trial court may have arguably
committed with its order to appellant to have no contact with James Marcum, the terms of
appellant's plea agreement invited the court to issue the order that she now believes is improper.
As such, we do not decide if the trial court erred, but rather that the invited error doctrine bars
appellant from raising any such error at this time.
{¶ 12} Accordingly, appellant’s first assignment of error is without merit and is hereby
overruled.1
II
{¶ 13} Appellant’s second assignment of error asserts that the order to “stay away from
James Marcum” violates her federal constitutional right of marriage. We agree, as an abstract
proposition of law, that appellant and her husband have a fundamental right of marriage. See
Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). However, we need
not, and do not, consider that right here, nor do we address (1) whether this type of an order
violates that right, or (2) whether that right – like other rights – could have been waived as part of
1
Interestingly, had this appeal arisen from a felony rather than a misdemeanor, R.C. 2953.08(D)(1) would have
barred this assignment of error.
HOCKING, 12CA22 & 12CA26 5
the plea agreement. Our review of the record reveals that this particular issue was not raised
during the trial court proceedings. It is well settled that appellate courts will not consider
constitutional arguments raised for the first time on appeal. State v. Johnson, 4th Dist. Nos. Nos.
11CA925, 11CA926, 11CA927, 20012-Ohio-5879, at ¶15; State v. Cottrill, 4th Dist. No.
11CA3270, 2012-Ohio-1525, at ¶6. Thus, appellant’s second assignment of error is without merit
and is hereby overruled.
{¶ 14} Having considered the assignments of error that appellant assigned and argued, we
hereby affirm the trial court's judgment.
JUDGMENT AFFIRMED.
[Cite as State v. Marcum, 2013-Ohio-2189.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of 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 Hocking County
Municipal Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
McFarland, P.J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.