[Cite as State v. Akers, 2016-Ohio-1373.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 15 CA 37 JAMELL C. AKERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. 15 CRB 1022
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 31, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEPHANIE L. HALL MARGARET A. SMITH ASSISTANT PROSECUTOR LAW OFFICE OF MARGARET A. SMITH 123 East Chestnut Street Post Office Box 880 Post Office Box 1008 660 Hill Road North Lancaster, Ohio 43130 Pickerington, Ohio 43147 Fairfield County, Case No. 15 CA 37 2
Wise, J.
{¶1} Appellant Jamell C. Akers appeals from his conviction in the Fairfield
County Municipal Court on one misdemeanor count of domestic violence and two
misdemeanor counts of violation of a protection order. Appellee is the State of Ohio. The
relevant facts leading to this appeal are as follows.
{¶2} On or about May 4, 2015, Appellant Akers physically assaulted A.L., his
former girlfriend. Appellant is the purported father of A.L.’s infant son, although legal
paternity has not been established and the two have never been married. Appellant was
thereupon charged by the responding Pickerington police officer with one count of
domestic violence, R.C. 2919.25(A), and two counts of violation of a protection order,
R.C. 2919.27. All three offenses were charged as misdemeanors of the first degree.1
{¶3} On June 16, 2015, appellant appeared the Fairfield County Municipal Court
(“trial court”) and entered pleas of guilty to all three of the above counts.
{¶4} The trial court accepted the pleas and found appellant guilty of all three
counts. Appellant was sentenced to one-hundred eighty days in jail (ninety days
suspended) on the domestic violence count and one-hundred eighty days in jail on each
count of violating a protective order, with all counts to be served consecutively to each
other. The latter jail days were suspended, with further orders of intensive supervised
probation under conditions including, inter alia, contact with the infant son only “upon a
domestic relations order *** as order[ed] by DR Court.”
1 A more detailed assessment of the incident and injuries leading to the charges at issue is not necessary in the present appeal. An additional charge of unlawful restraint was subsequently dismissed. Fairfield County, Case No. 15 CA 37 3
{¶5} Appellant filed a notice of appeal on July 9, 2015. He herein raises the
following two Assignments of Error:
{¶6} “I. THE TRIAL VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS
UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION
AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION WHEN IT PROHIBTED
[SIC] APPELLANT, AS A CONDITION OF HIS COMMUNITY CONTROL SANCTION,
FROM CONTACT WITH HIS INFANT SON UNTIL HE OBTAINED ORDERS FROM THE
DOMESTIC RELATIONS DIVISION OF THE COURT OF COMMON PLEAS.
{¶7} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING, AS A
CONDITION OF [HIS] COMMUNITY CONTROL SANCTION, THAT APPELLANT HAVE
NO CONTACT WITH HIS INFANT SON UNTIL HE OBTAINED ORDERS FROM THE
DOMESTIC RELATIONS DIVISION OF THE COURT OF COMMON PLEAS.”
I.
{¶8} In his First Assignment of Error, appellant argues the trial court violated his
constitutional due process rights in ordering a community control provision of no contact
with his putative son pending an order from the domestic relations court. We disagree.
{¶9} Clearly, a parent has a fundamental liberty interest in the care, custody, and
management of his or her child. See In re Gower/Evans Children, 5th Dist. Tuscarawas
No. 06AP060034, 2006-Ohio-5676, ¶ 28, citing Santosky v. Kramer (1982), 455 U.S. 745,
753, 102 S.Ct. 1388, 71 L.Ed.2d 599. Furthermore, it is well-established that where a
party argues that a statute or regulation impinges upon a fundamental constitutional right,
courts must apply a strict-scrutiny standard of review. See State v. Emery, 12th Dist. Fairfield County, Case No. 15 CA 37 4
Clermont No. CA2014-09-062, 2015-Ohio-1487, ¶ 13, citing Harrold v. Collier, 107 Ohio
St.3d 44, 2005–Ohio–5334, ¶ 39.
{¶10} However, a merely putative father obtains no automatic right or privilege of
visitation with his child. See In the Matter of Adoption of Sunderhaus, 12th Dist. Butler
No. CA89-12-176, 1990 WL 154010. We recognize the General Assembly has enacted
certain statutory rights for putative fathers, such as affording the right to consent to
adoption to those putative fathers who register as such with the statewide “putative father
registry” not later than fifteen days after the minor child’s birth (see R.C. 3107.07), the
right to pursue an action in paternity (see R.C. 3111.04(A)(1)), and the allowance of
temporary orders allocating parental rights and responsibilities while a paternity action is
pending (see R.C. 3109.043). In addition, R.C. 3109.12(A) states in pertinent part that if
a child is born to an unmarried woman, the father “may file a complaint requesting that
the court of appropriate jurisdiction of the county in which the child resides grant him
reasonable parenting time rights with the child,” but this first requires that “the father of
the child has acknowledged the child and that acknowledgment has become final
pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code or [the
petitioning father] has been determined in an action under Chapter 3111. of the Revised
Code to be the father of the child ***.”
{¶11} Thus, it has been aptly stated that “[a]n unwed father's interest in a
relationship with his child acquires protection under the Fourteenth Amendment when he
attempts to come forward to participate in the rearing of his child and accepts some
measure of responsibility for the child's future.” In re Adoption of Baby F., 10th Dist. Fairfield County, Case No. 15 CA 37 5
Franklin No. 03AP-1092, 2004-Ohio-1871, ¶ 14 (emphasis added), citing Lehr v.
Robertson (1983), 463 U.S. 248, 261-262, 103 S.Ct. 2985, 77 L.Ed.2d 614.
{¶12} In the case sub judice, it was made clear at sentencing that appellant had
never signed the child’s birth certificate (see Tr. at 20-21) and had not in some fashion
established legal paternity (see Tr. at 10). Under the circumstances presented, we hold
appellant’s fundamental rights under the Fourteenth Amendment were not implicated and
there was no constitutional violation resulting from the trial court’s community control
restriction regarding child visitation.
{¶13} Appellant's First Assignment of Error is overruled.
II.
{¶14} In his Second Assignment of Error, appellant contends the trial court abused
its discretion in ordering a community control provision of no contact with his putative son,
pending future orders from the domestic relations court. We disagree.
{¶15} Generally, misdemeanor sentencing is within the sound discretion of the
trial court and will not be disturbed upon review if the sentence is within the limits of the
applicable statute. State v. Smith, 9th Dist. Wayne No. 05CA0006, 2006–Ohio–1558, ¶
21, citing State v.
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[Cite as State v. Akers, 2016-Ohio-1373.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 15 CA 37 JAMELL C. AKERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. 15 CRB 1022
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 31, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEPHANIE L. HALL MARGARET A. SMITH ASSISTANT PROSECUTOR LAW OFFICE OF MARGARET A. SMITH 123 East Chestnut Street Post Office Box 880 Post Office Box 1008 660 Hill Road North Lancaster, Ohio 43130 Pickerington, Ohio 43147 Fairfield County, Case No. 15 CA 37 2
Wise, J.
{¶1} Appellant Jamell C. Akers appeals from his conviction in the Fairfield
County Municipal Court on one misdemeanor count of domestic violence and two
misdemeanor counts of violation of a protection order. Appellee is the State of Ohio. The
relevant facts leading to this appeal are as follows.
{¶2} On or about May 4, 2015, Appellant Akers physically assaulted A.L., his
former girlfriend. Appellant is the purported father of A.L.’s infant son, although legal
paternity has not been established and the two have never been married. Appellant was
thereupon charged by the responding Pickerington police officer with one count of
domestic violence, R.C. 2919.25(A), and two counts of violation of a protection order,
R.C. 2919.27. All three offenses were charged as misdemeanors of the first degree.1
{¶3} On June 16, 2015, appellant appeared the Fairfield County Municipal Court
(“trial court”) and entered pleas of guilty to all three of the above counts.
{¶4} The trial court accepted the pleas and found appellant guilty of all three
counts. Appellant was sentenced to one-hundred eighty days in jail (ninety days
suspended) on the domestic violence count and one-hundred eighty days in jail on each
count of violating a protective order, with all counts to be served consecutively to each
other. The latter jail days were suspended, with further orders of intensive supervised
probation under conditions including, inter alia, contact with the infant son only “upon a
domestic relations order *** as order[ed] by DR Court.”
1 A more detailed assessment of the incident and injuries leading to the charges at issue is not necessary in the present appeal. An additional charge of unlawful restraint was subsequently dismissed. Fairfield County, Case No. 15 CA 37 3
{¶5} Appellant filed a notice of appeal on July 9, 2015. He herein raises the
following two Assignments of Error:
{¶6} “I. THE TRIAL VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS
UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION
AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION WHEN IT PROHIBTED
[SIC] APPELLANT, AS A CONDITION OF HIS COMMUNITY CONTROL SANCTION,
FROM CONTACT WITH HIS INFANT SON UNTIL HE OBTAINED ORDERS FROM THE
DOMESTIC RELATIONS DIVISION OF THE COURT OF COMMON PLEAS.
{¶7} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING, AS A
CONDITION OF [HIS] COMMUNITY CONTROL SANCTION, THAT APPELLANT HAVE
NO CONTACT WITH HIS INFANT SON UNTIL HE OBTAINED ORDERS FROM THE
DOMESTIC RELATIONS DIVISION OF THE COURT OF COMMON PLEAS.”
I.
{¶8} In his First Assignment of Error, appellant argues the trial court violated his
constitutional due process rights in ordering a community control provision of no contact
with his putative son pending an order from the domestic relations court. We disagree.
{¶9} Clearly, a parent has a fundamental liberty interest in the care, custody, and
management of his or her child. See In re Gower/Evans Children, 5th Dist. Tuscarawas
No. 06AP060034, 2006-Ohio-5676, ¶ 28, citing Santosky v. Kramer (1982), 455 U.S. 745,
753, 102 S.Ct. 1388, 71 L.Ed.2d 599. Furthermore, it is well-established that where a
party argues that a statute or regulation impinges upon a fundamental constitutional right,
courts must apply a strict-scrutiny standard of review. See State v. Emery, 12th Dist. Fairfield County, Case No. 15 CA 37 4
Clermont No. CA2014-09-062, 2015-Ohio-1487, ¶ 13, citing Harrold v. Collier, 107 Ohio
St.3d 44, 2005–Ohio–5334, ¶ 39.
{¶10} However, a merely putative father obtains no automatic right or privilege of
visitation with his child. See In the Matter of Adoption of Sunderhaus, 12th Dist. Butler
No. CA89-12-176, 1990 WL 154010. We recognize the General Assembly has enacted
certain statutory rights for putative fathers, such as affording the right to consent to
adoption to those putative fathers who register as such with the statewide “putative father
registry” not later than fifteen days after the minor child’s birth (see R.C. 3107.07), the
right to pursue an action in paternity (see R.C. 3111.04(A)(1)), and the allowance of
temporary orders allocating parental rights and responsibilities while a paternity action is
pending (see R.C. 3109.043). In addition, R.C. 3109.12(A) states in pertinent part that if
a child is born to an unmarried woman, the father “may file a complaint requesting that
the court of appropriate jurisdiction of the county in which the child resides grant him
reasonable parenting time rights with the child,” but this first requires that “the father of
the child has acknowledged the child and that acknowledgment has become final
pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code or [the
petitioning father] has been determined in an action under Chapter 3111. of the Revised
Code to be the father of the child ***.”
{¶11} Thus, it has been aptly stated that “[a]n unwed father's interest in a
relationship with his child acquires protection under the Fourteenth Amendment when he
attempts to come forward to participate in the rearing of his child and accepts some
measure of responsibility for the child's future.” In re Adoption of Baby F., 10th Dist. Fairfield County, Case No. 15 CA 37 5
Franklin No. 03AP-1092, 2004-Ohio-1871, ¶ 14 (emphasis added), citing Lehr v.
Robertson (1983), 463 U.S. 248, 261-262, 103 S.Ct. 2985, 77 L.Ed.2d 614.
{¶12} In the case sub judice, it was made clear at sentencing that appellant had
never signed the child’s birth certificate (see Tr. at 20-21) and had not in some fashion
established legal paternity (see Tr. at 10). Under the circumstances presented, we hold
appellant’s fundamental rights under the Fourteenth Amendment were not implicated and
there was no constitutional violation resulting from the trial court’s community control
restriction regarding child visitation.
{¶13} Appellant's First Assignment of Error is overruled.
II.
{¶14} In his Second Assignment of Error, appellant contends the trial court abused
its discretion in ordering a community control provision of no contact with his putative son,
pending future orders from the domestic relations court. We disagree.
{¶15} Generally, misdemeanor sentencing is within the sound discretion of the
trial court and will not be disturbed upon review if the sentence is within the limits of the
applicable statute. State v. Smith, 9th Dist. Wayne No. 05CA0006, 2006–Ohio–1558, ¶
21, citing State v. Pass, 6th Dist. Lucas No. L–92–017, 1992 WL 386011. See, also, State
v. Chadwick, 5th Dist. Knox No. 08CA15, 2009–Ohio–2472, ¶ 30. Likewise, a trial court
has broad discretion to impose misdemeanor community control sanctions, and we must
affirm such a decision absent an abuse of discretion. State v. Tobin, 10th Dist. Franklin
No. 11AP-776, 2012-Ohio-1968, ¶ 5. An abuse of discretion implies the court's attitude is
unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151,
404 N.E.2d 144. Furthermore, there is no requirement that a trial court, in sentencing on Fairfield County, Case No. 15 CA 37 6
misdemeanor offenses, specifically state its reasons on the record. State v. Harpster, 5th
Dist. Ashland No. 04COA061, 2005–Ohio–1046, ¶ 20.
{¶16} R.C. 2929.21(A) first states that “[a] court that sentences an offender for a
misdemeanor * * * shall be guided by the overriding purposes of misdemeanor
sentencing. * * *.” The overriding purposes of misdemeanor sentencing are to protect the
public from future crime by the offender and others and to punish the offender. R.C.
2929.21(A). In order to achieve those purposes, a sentencing court must consider “the
impact of the offense upon the victim and the need for changing the offender's behavior,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or the victim and the public.” Id.; State v. Coleman, 4th Dist. Scioto No. 05CA3037, 2006–
Ohio–3200, ¶ 21. In addition, R.C. 2929.21(B) states in pertinent part as follows: “A
sentence imposed for a misdemeanor * * * shall be reasonably calculated to achieve the
two overriding purposes of misdemeanor sentencing set forth in division (A) of this
section, commensurate with and not demeaning to the seriousness of the offender's
conduct and its impact upon the victim, and consistent with sentences imposed for similar
offenses committed by similar offenders.”
{¶17} In the case sub judice, the record indicates that the child was present during
the domestic violence episode leading to the charges against appellant. See Police
Narrative Supplement at 1. It also appears from the record that the incident took place at
a location where appellant had slept overnight under the same roof as A.L., despite the
existence of an ongoing protection order designed to keep appellant away from her. Id.;
Tr. at 11-13. Upon review, we find the additional layer of protection to the child in question Fairfield County, Case No. 15 CA 37 7
was a reasonable means of protecting the public from future crime and was clearly within
the bounds of the trial court’s community control discretion.
{¶18} Appellant's Second Assignment of Error is overruled.
{¶19} For the foregoing reasons, the judgment of the Municipal Court of Fairfield
County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/d 0309