DocketNumber: No. 07 BE 37.
Citation Numbers: 2009 Ohio 1019
Judges: DeGENARO, J.
Filed Date: 3/5/2009
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} On appeal, Milliken first argues that the trial court erred by improperly utilizing statutory sentencing provisions held to be unconstitutional by the Ohio Supreme Court in State v. Foster,
{¶ 3} Secondly, Milliken argues that the trial court erred when it accepted his guilty plea without advising him of the consequences of his resulting classification as a sex offender. This argument is meritless because sex offender registration, notification and residency requirements are civil remedies, not part of the punishment, and therefore the trial court was not obligated pursuant to Crim. R. 11(C)(2) to explain those consequences during the plea hearing. Accordingly, the judgment of the trial court is affirmed.
{¶ 5} On August 23, 2007, the trial court conducted a sexual predator hearing. Milliken's counsel first indicated that Milliken would stipulate to the sexual predator classification, "at least partially, because of the fact that the new law come January 1 will make this irrelevant * * *" However, the trial court nonetheless made its findings with regards to Milliken's sex offender status, and ultimately concluded there was clear and convincing evidence that Milliken was a sexual predator, pursuant to R.C.
{¶ 6} On that same day, the court held the sentencing hearing and, as a result, sentenced Milliken to life imprisonment on R.C.
{¶ 7} Because Milliken is indigent, counsel was appointed to handle the appeal. On March 24, 2008, appellate counsel filed a no-merit brief and requested to withdraw as counsel pursuant to Anders v.California (1967),
{¶ 8} On August 20, 2008, we denied appellate counsel's motion to withdraw. A review of the appellate record revealed counsel had failed to order a transcript of the plea hearing. We found that counsel could not have conscientiously examined the case without that transcript. Accordingly, we ordered a transcript of the plea hearing and directed appellate counsel to review it and submit a new brief. We also issued a limited remand to the trial court pursuant to State v. Baker,
{¶ 10} "The trial court erred by improperly utilizing previously held unconstitutional and subsequently severed portions of R.C. §
{¶ 11} Based upon the Ohio Supreme Court's recent plurality decision in State v. Kalish,
{¶ 12} Under the first prong appellate courts must "examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law." Kalish at ¶ 26 (O'Connor, J., plurality opinion.) To satisfy this prong, the trial court must consider the statutory sentencing factors in R.C.
{¶ 13} Milliken's two arguments regarding his sentence both relate to the first prong of the Kalish test. First, Milliken contends that the trial court erred by improperly utilizing R.C.
{¶ 14} R.C.
{¶ 15} "If a prison term is imposed for a violation of division (B) of section
{¶ 16} However, any reference to R.C.
{¶ 17} After reviewing the sentencing transcript in this case, however, and in light of the fact that R.C.
{¶ 18} R.C.
{¶ 19} "(4) 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:
{¶ 20} "(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
{¶ 21} "(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.
{¶ 22} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 23} In the instant case, the trial court stated:
{¶ 24} "In accord with 2929.14(E)(3), the Court finds that consecutive service, up to a minimum of 18 years, is necessary to protect the public from future crime and to punish the offender; and consecutive sentences are not disproportionate to the seriousness of *Page 5 his conduct and the danger he poses to the public, and that the offender committed multiple rape offenses, sexual battery and gross sexual imposition offenses against children when they were ages of less than 10 years, 13 years and 14 years old. And that the offenses, combined with his previous criminal record demonstrate an escalating pattern of criminal behavior and deviant sexual behavior and that the offenses were committed based upon a relationship of stepfather and/or family friend of these children, which relationship also facilitated the offenses; and that the harm to the victims was so great that a single term does not adequately reflect the seriousness of the conduct and of this offender's criminal conduct, all of which demonstrate that consecutive sentences are necessary to protect the public from future crimes by this offender and by others."
{¶ 25} This same analysis and language was utilized in the sentencing entry.
{¶ 26} Thus, it appears that the trial court did utilize R.C.
{¶ 27} However, Milliken did not object to the trial court's use of this provision during the sentencing hearing and has therefore waived appellate review, absent plain error. As the Ohio Supreme Court held inState v. Murphy,
{¶ 28} "The waiver rule requires that a party make a contemporaneous objection to alleged trial error in order to preserve that error for appellate review. The rule is of long standing, and it goes to the heart of an adversary system of justice.
{¶ 29} "Even constitutional rights ``may be lost as finally as any others by a failure to assert them at the proper time.' State v.Childs (1968),
{¶ 30} The Criminal Rules of Procedure do carve out one narrow objection exception to the contemporaneous-objection requirement. Crim. R. 52(B) provides: "[p]lain errors or defects affecting substantial rights may be noticed although they were *Page 6
not brought to the attention of the court." This rule places three limitations on our ability to recognize plain error: (1) there must be a deviation from a legal rule; (2) the error must be an obvious defect in the trial proceedings; and, (3) the error must have affected the outcome of the trial. State v. Barnes,
{¶ 31} The trial court's imposition of consecutive sentences for the two rape counts would have occurred even if the court had not utilized R.C.
{¶ 32} Second, Milliken argues that the trial court erred by utilizing R.C.
{¶ 33} "The Court specifically finds that defendant is an offender who has not previously served in [sic] time in prison for criminal offenses. However, in accord with 2929.14(B), the Court will impose a longer term for these offenses."
{¶ 34} R.C.
{¶ 35} "Except as provided in division (C), (D)(1), (D)(2), (D)(3), (D)(5), (D)(6), (G), or (L) of this section, in section
{¶ 36} (1) The offender was serving a prison term at the time of the offense, or the *Page 7 offender previously had served a prison term.
{¶ 37} (2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."
{¶ 38} Presumably then, since the trial court found that Milliken had not previously served time in prison, by referring to R.C.
{¶ 39} In Foster, the Ohio Supreme Court held that R.C.
{¶ 40} The trial court did not commit plain error in this instance. The court adhered to the sentence recommended in the plea agreement, with the exception of that recommended for the R.C.
{¶ 41} In sum, we find no plain error with regards to the court's use of R.C.
{¶ 42} Moving on to the second Kalish prong, we do not find that Milliken's sentence constituted an abuse of discretion. "The term ``abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980),
{¶ 43} In this case, when sentencing Milliken the trial court indicated it considered: *Page 8
{¶ 44} "the record, the oral statements; the Belmont County Criminal Incident Report; the Presentence Report; the record of the proceedings, including the testimony and evidence admitted today; the NCIC report; criminal history report; the Victim Impact Statement and the purposes and principles of sentencing under 2929.11; and the seriousness and recidivism factors relevant to the offense and this offender, pursuant to 2929.12; and the need for deterrence, incapacitation, rehabilitation and restitution."
{¶ 45} Based on a review of the above, we do not find that the trial court's sentence was unreasonable, arbitrary or unconscionable. Milliken's crimes involved repeated sexual offenses against young children. The court found that several of the R.C.
{¶ 46} Finally, the court considered the sentencing hearing testimony of Linda Hackney, who is Milliken's former wife and also the mother of one of the victims. Hackney stated that Milliken's crimes had "torn [her] family completely apart," and that "lives had been destroyed." The victims and their families also submitted letters detailing the trauma they experienced as a result of the abuse perpetrated by Milliken.
{¶ 47} Based on the foregoing, we do not find that the sentence chosen by the trial court constituted an abuse of discretion. In fact, the sentence imposed deviated only slightly from that which was recommended by the State pursuant to the plea agreement.
{¶ 48} Accordingly, we find Milliken's sentence was neither clearly and convincingly contrary to law, nor an abuse of discretion. Milliken's first assignment of error is meritless. *Page 9
{¶ 50} "The trial court erred when it accepted the Defendant's plea of guilty when it did not advise defendant of the effects of such a plea."
{¶ 51} ``More specifically, Milliken argues here that his plea was not knowing, intelligent and voluntary and therefore did not conform to Crim. R. 11(C)(2) because the trial court did not explain to him during the plea colloquy the consequences of pleading guilty to a sex offense, i.e., that Milliken would be subject to the sex offender registration, notification and residency restrictions pursuant to R.C. Chapter
{¶ 52} However, Milliken cites no case law in support of this contention. In fact, we have recently held that "a discussion of the consequences being classified as a sexual predator cannot be a mandatory part of the Crim. R. 11 colloquy." State v. Peterson, 7th Dist. No. 07MA59,
{¶ 53} The rationale behind these holdings is that the requirements imposed upon sex offenders pursuant to R.C. Chapter
{¶ 54} Since a discussion of the civil consequences of pleading guilty to a sex offense is not a mandatory part of the Crim. R. 11 colloquy, Milliken's second assignment of error is meritless.
Vukovich, P.J., concurs.
Donofrio, J., concurs. *Page 1