State v. White

[Cite as State v. White, 2013-Ohio-2135.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
DUSTIN J. WHITE : Case No. CT2012-0046
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2012-0167
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 22, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT L. SMITH DAVID A. SAMS
27 North Fifth Street P.O. Box 40
Zanesville, OH 43701 West Jefferson, OH 43162
Muskingum County, Case No. CT2012-0046 2
Farmer, J.
{¶1} On July 25, 2012, a bill of information was filed charging appellant, Dustin
White, with two counts of unlawful sexual conduct with a minor in violation of R.C.
2907.04. At the time of the offenses, the victim was 15 years old and appellant was 18
years of age or older.
{¶2} Appellant pled guilty to the counts on July 25, 2012. By sentencing entry
filed August 29, 2012, the trial court sentenced appellant to three years of community
control, ninety days of local incarceration included therein, and classified him as a Tier II
sexual offender.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE BILL OF INFORMATION WAS STRUCTURALLY INSUFFICIENT
UNDER OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS AS IT
FAILED TO CONTAIN A NECESSARY ALLEGATION THAT THE OFFENSE IN
QUESTION WAS A SEXUALLY ORIENTED OFFENSE FOR PURPOSES OF OHIO
REVISED CODE CHAPTER 2950."
II
{¶5} "THE DEFENDANT-APPELLANT'S CONVICTION AND SENTENCE FOR
HAVING UNLAWFUL SEXUAL RELATIONS WITH A MINOR AS A FELONY OF THE
FOURTH DEGREE AND HIS RESULTING CLASSIFICATION AS A TIER II SEX
OFFENDER ARE VOID AS THE INFORMATION FAILED TO ALLEGE THAT
Muskingum County, Case No. CT2012-0046 3
APPELLANT WAS FOUR OR MORE YEARS OLDER THAN THE MINOR VICTIM AS
REQUIRED BY OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS."
III
{¶6} "THE DEFENDANT-APPELLANT'S PLEA WAS UNKNOWING,
UNINTELLIGENT AND INVOLUNTARY CONTRARY TO OHIO LAW AND THE STATE
AND FEDERAL CONSTITUTIONS."
I, II
{¶7} Appellant claims the bill of information was deficient as it failed to allege
that the offense in question was a "sexually oriented offense" for purposes of R.C.
Chapter 2950, and failed to allege that appellant was four or more years older than the
minor victim. We disagree.
{¶8} The bill of information filed July 25, 2012 contained two counts. Both
counts were identical and stated the following:
The undersigned, the duly elected and qualified Prosecuting
Attorney of said County in the name and by the authority of the State of
Ohio, says that prior to this information DUSTIN J. WHITE was duly
advised by the Common Pleas Court of the nature of the charge against
him and of his rights under the Constitution, and being then represented
by Attorney Frederick Sealover waived, in writing and in open court,
prosecution of the offense by indictment, and by way of information
DUSTIN J. WHITE between the dates of 01/02/2012 and 01/30/2012, in
the County of Muskingum, did being eighteen (18) years of age or older,
Muskingum County, Case No. CT2012-0046 4
knowingly engage in sexual conduct, to-wit: vaginal intercourse, with
another, to-wit, A.E.S. dob 12/14/1996, who is not the spouse of the said
DUSTIN J. WHITE, the said DUSTIN J. WHITE knowing the said A.E.S.
dob 12/14/1996, is thirteen (13) years of age or older, but less than
sixteen (16) years of age, or being reckless in that regard; in violation of
Ohio Revised Code, Title 29, Section 2907.04(A), and against the peace
and dignity of the State of Ohio.
{¶9} During appellant's plea hearing, the trial court explained to appellant that
he would be classified as a Tier II sex offender which appellant acknowledged he
understood. July 25, 2012 T. at 6. The trial court repeated this information to appellant
during the sentencing hearing, and again appellant acknowledged he understood.
August 27, 2012 T. at 4-5.
{¶10} We note an objection to the classification was not made during the
sentencing hearing. Id. at 6. An error not raised in the trial court must be plain error for
an appellate court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). In
order to prevail under a plain error analysis, appellant bears the burden of
demonstrating that the outcome of the trial clearly would have been different but for the
error. Long. Notice of plain error "is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at
paragraph three of the syllabus.
{¶11} Pertinent to this appeal, a "sexually oriented offense" is defined by R.C.
2950.01(A)(3) as follows:
Muskingum County, Case No. CT2012-0046 5
(A) "Sexually oriented offense" means any of the following
violations or offenses committed by a person, regardless of the person's
age:
(3) A violation of section 2907.04 of the Revised Code when the
offender is at least four years older than the other person with whom the
offender engaged in sexual conduct or when the offender is less than four
years older than the other person with whom the offender engaged in
sexual conduct and the offender previously has been convicted of or
pleaded guilty to a violation of section 2907.02, 2907.03, or 2907.04 of the
Revised Code or a violation of former section 2907.12 of the Revised
Code.
{¶12} Both counts in the bill of information specify a violation of R.C. 2907.04,
the birth date of the victim making the victim 15 years old at the time of the offenses,
and the age of appellant, 18 years of age or older. Appellant was 19 years old at the
time of the filing of the bill of information. July 25, 2012 T. at 13. Appellant was 4 years
and 35 days older than the victim. August 27, 2012 T. at 6.
{¶13} We do not find it to be necessary for the bill of information to further allege
the penalty for the offenses pursuant to R.C. Chapter 2950. The bill of information set
forth all of the elements of the offenses, specifically referenced R.C. 2907.04, and
included sufficient information to determine the ages of the parties involved.
Muskingum County, Case No. CT2012-0046 6
{¶14} In addition, the plea form that appellant signed on July 25, 2012 included
the following:
Registration: In person verification. If you have entered a plea of
guilty to a sexually oriented offense, as defined in Chapter 2950.01 of the
Ohio Revised Code, you have been classified as one of the following: a
Tier I, a Tier II, or a Tier III offender. Inasmuch as you have been
classified as a sex offender, you have a duty to register with law
enforcement as follows:
TIER II: registration every 180 days for a period of twenty-five
(25) years.
{¶15} Although appellant argues the Tier II classification is punitive, it does not
enhance the degree of the offense. In support of his argument, appellant cites this court
to the case of State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908. We find this case
not to be controlling as it spoke only to what was required to be in a sentencing entry
and not an indictment: "[w]hen a trial court fails to include a mandatory driver's license
suspension as part of an offender's sentence, that part of the sentence [is] void.
Resentencing of the offender is limited to the imposition of the mandatory driver's
license suspension." Harris, at paragraph one of the syllabus.
{¶16} Upon review, we find the bill of information in this case to be sufficient.
{¶17} Assignments of Error I and II are denied.
Muskingum County, Case No. CT2012-0046 7
III
{¶18} Appellant claims his plea was unknowing, unintelligent, and involuntary
because he was not explained jury unanimity. We disagree.
{¶19} Crim.R. 11 governs pleas. Subsection (C)(2) states the following:
(2) In felony cases the court may refuse to accept a plea of guilty or
a plea of no contest, and shall not accept a plea of guilty or no contest
without first addressing the defendant personally and doing all of the
following:
(a) Determining that the defendant is making the plea voluntarily,
with understanding of the nature of the charges and of the maximum
penalty involved, and if applicable, that the defendant is not eligible for
probation or for the imposition of community control sanctions at the
sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and
sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury
trial, to confront witnesses against him or her, to have compulsory process
for obtaining witnesses in the defendant's favor, and to require the state to
Muskingum County, Case No. CT2012-0046 8
prove the defendant's guilt beyond a reasonable doubt at a trial at which
the defendant cannot be compelled to testify against himself or herself.
{¶20} We find the plea colloquy sub judice conforms to the mandates of Crim.R.
11. Further, as this court stated in State v. Rogers, 5th Dist. No. CT2008-0066, 2009-
Ohio-4899, ¶ 11:
This Court, along with several courts, including the Ohio Supreme
Court, has held there is no requirement that a trial court inform a
defendant of his right to a unanimous verdict. State v. Dooley, Muskingum
App. No. CT2008-0055, 2009-Ohio-2095; State v. Hamilton, Muskingum
App. No. CT2008-0011, 2008-Ohio-6328; State v. Fitzpatrick, 102 Ohio
St.3d 321, 2004-Ohio-3167, at ¶ 44-46 (accused need not be told that jury
unanimity is necessary to convict and to impose sentence); State v. Smith,
Muskingum App. No. CT2008-0001, 2008-Ohio-3306 at ¶ 27 (there is no
explicit requirement in Crim.R. 11(C)(2)(a) that a defendant be informed of
his right to a unanimous verdict; State v. Williams, Muskingum App. No.
CT2007-0073, 2008-Ohio-3903 at ¶ 9 (the Supreme Court held an
accused need not be told the jury verdict must be unanimous in order to
convict); State v. Barnett, Hamilton App. No. C-060950, 2007-Ohio-4599,
at ¶ 6 (trial court is not required to specifically inform defendant that she
had right to unanimous verdict; defendant's execution of a written jury trial
waiver and guilty plea form, as well as her on-the-record colloquy with the
Muskingum County, Case No. CT2012-0046 9
trial court about these documents, was sufficient to notify her about the
jury trial right she was foregoing); State v. Goens, Montgomery App. No.
19585, 2003-Ohio-5402, at ¶ 19; State v. Pons (June 1, 1983),
Montgomery App. No. 7817 (defendant's argument that he be told that
there must be a unanimous verdict by the jury is an attempted super
technical expansion of Crim.R. 11); State v. Small (July 22, 1981), Summit
App. No. 10105 (Crim.R. 11 does not require the court to inform the
defendant that the verdict in a jury trial must be by unanimous vote).
{¶21} Assignment of Error III is denied.
{¶22} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Wise, J. concur.
s/ Sheila G. Farmer______________
s/ W. Scott Gwin _____________
s/ John W. Wise_________________
JUDGES
SGF/sg
[Cite as State v. White, 2013-Ohio-2135.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DUSTIN J. WHITE :
:
Defendant-Appellant : CASE NO. CT2012-0046
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed. Costs
to appellant.
s/ Sheila G. Farmer______________
s/ W. Scott Gwin _____________
s/ John W. Wise_________________
JUDGES