State v. Fluharty

2012 Ohio 4258

• Court: Ohio Court of Appeals
• Decided: September 17, 2012
• Docket: 2011CA00231
• Status: Published

Opinion

[Cite as State v. Fluharty, 2012-Ohio-4258.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : Patricia A. Delaney, P.J. : W. Scott Gwin, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 2011CA00231 : : MARION R. FLUHARTY : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Stark County Court of Common Pleas Case No. 2010CR0220

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 17, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO GEORGE URBAN Prosecuting Attorney 116 Cleveland Avenue, N.W. Stark County, Ohio 808 Courtyard Centre Canton, Ohio 44702 BY: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney Appellate Section 110 Central Plaza South, Suite – 510 Canton, Ohio 44702-1413 [Cite as State v. Fluharty, 2012-Ohio-4258.]

Edwards, J.

{¶1} Appellant, Marion Fluharty, appeals a judgment of the Stark County

Common Pleas Court convicting him of failing to provide notice of change of address in

violation of R.C. 2950.05(A)(E)(1) and sentencing him to five years incarceration.

Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} Appellant was convicted of rape in 1999 upon a plea of guilty for engaging

in sexual acts with a child less than thirteen years of age, and as a result, is classified

as a sexual predator. Appellant was sentenced to ten years incarceration and was

released on September 5, 2009. On September 9, 2009, appellant signed a form titled

“Notice of Registration Duties” which required him to notify the sheriff of any address

change twenty days prior to changing his address.

{¶3} On December 9, 2009, appellant again signed a “Notice of Registration

Duties.” He reported his address as 1115 2nd Street, Room 2, Canton, Ohio. The

notice again warned that failure to notify of a change in residence address would result

in criminal prosecution. At this time, appellant provided Deputy Harry Emery, the

corrections officer primarily responsible for registering sex offenders, a letter stating that

he would have to move from this address at the end of December because his “funding

runs out.” Emery warned appellant that he had to supply an address even if he became

homeless and his address is under a bridge or on a street corner. Appellant responded

that he understood he had to provide an address.

{¶4} Appellant was able to extend his stay at R&R Transitional Housing, the

address he registered in December, through January. On Friday, January 29, 2010, Stark County App. Case No. 2011CA00231 3

appellant visited his parole officer, Sandra Woolf, because he was having difficulty

finding housing. The room he wanted in downtown Canton was not available when he

came up with the money to pay for it, and when he was shown another room which did

not meet his expectations, he became angry and was escorted off the property.

{¶5} Woolf made some phone calls and found a vacant apartment at 601

Brown Street N.W., Canton, owned by David DeChiara. DeChiara agreed to meet with

appellant that evening because he knew appellant needed to find housing quickly.

Appellant signed a lease that night and gave DeChiara $375.00 for February rent.

DeChiara wanted a security deposit, but appellant did not have the money and he told

DeChiara that ICAN would pay the deposit. DeChiara gave appellant the keys to the

apartment.

{¶6} Appellant slept at his aunt’s house that night. The next day, January 30,

2010, he moved into the Brown Avenue apartment. On Saturday, January 30, his cell

phone showed he called a number assigned to the secretary to Sheriff Tim Swanson at

7:59 a.m., 8:01 a.m. and 8:03 a.m. While appellant claimed he attempted to call Emery

on Friday, Saturday, Monday, Tuesday and Wednesday, he left no messages on

Emery’s voice mail and Emery received no calls on those days. Someone is in the

notification office to answer calls on Monday through Friday from 6:00 a.m. until 8:00

p.m., and on the weekends voice mail is available to leave messages.

{¶7} Deputy John Von Spiegel received information from another officer that

appellant had moved. Von Spiegel investigated and arrested appellant on Thursday,

February 4, 2010, for failure to notify of a change in address. Stark County App. Case No. 2011CA00231 4

{¶8} Appellant was indicted by the Stark County Grand Jury in March of 2010

for failing to provide notice in writing of a residence address change as a Tier III

offender. On June 3, 2010, the Ohio Supreme Court found the Adam Walsh Act

unconstitutional in State v. Bodyke, 126 Ohio St.3d 255, 2010-Ohio-2424, 933 N.E.2d

753. The state then filed a superseding indictment alleging that appellant failed to

comply with his registration obligations as a sexual predator. The trial court dismissed

the indictment and the state appealed. This Court reversed the trial court’s ruling and

remanded the case for further proceedings. State v. Fluharty, 5th Dist. No.

2010CA00242, 2011-Ohio-4074.

{¶9} Appellant appeared in open court on September 26, 2011, and waived his

right to a jury trial. He also signed a written waiver of his right to jury trial. After

advising appellant of all the rights he was giving up by waiving his right to jury trial, the

court filed a judgment finding the waiver was made knowingly, intelligently and

voluntarily.

{¶10} The case proceeded to bench trial. Appellant was convicted as charged

and sentenced to five years incarceration. He assigns three errors on appeal:

{¶11} “I. THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY WHEN

IT WAS IMPOSSIBLE FOR HIM TO COMPLY WITH THE REQUIREMENTS OF R.C.

2950.05.”

{¶12} “II. APPELLANT’S CONVICTIONS [SIC] WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶13} “III. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND

OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND Stark County App. Case No. 2011CA00231 5

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, BECAUSE HIS

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.”

I

{¶14} In his first assignment of error, appellant argues that it was impossible for

him to comply with R.C. 2950.05 because he did not know where he was going to live

until late in the afternoon of January 29, 2010. Therefore, he could not meet the

advance 20 day notice provision of the statute.

{¶15} R.C. 2950.05(A) provides:

{¶16} “(A) If an offender or delinquent child is required to register pursuant to

division (A)(2), (3), or (4) of section 2950.04 or 2950.041 of the Revised Code, the

delinquent child if not a public registry-qualified juvenile offender registrant shall provide

written notice of any change of residence address, and the offender and public registry-

qualified juvenile offender registrant shall provide notice of any change of residence,

school, institution of higher education, or place of employment address, to the sheriff

with whom the offender or delinquent child most recently registered the address under

division (A)(2), (3), or (4) of section 2950.04 or 2950.041 of the Revised Code or under

division (B) of this section. A written notice of a change of school, institution of higher

education, or place of employment address also shall include the name of the new

school, institution of higher education, or place of employment. The delinquent child if

not a public registry-qualified juvenile offender registrant shall provide the written notice

at least twenty days prior to changing the residence address, and the offender and

public registry-qualified juvenile offender registrant shall provide the written notice at Stark County App. Case No. 2011CA00231 6

least twenty days prior to changing the address of the residence, school, or institution of

higher education and not later than three days after changing the address of the place

of employment. They shall provide the written notices during the period they are

required to register. If a residence address change is not to a fixed address, the

offender or delinquent child shall include in that notice a detailed description of the place

or places at which the offender or delinquent child intends to stay and, not later than the

end of the first business day immediately following the day on which the person obtains

a fixed residence address, shall provide that sheriff written notice of that fixed residence

address. If a person whose residence address change is not to a fixed address

describes in a notice under this division the place or places at which the person intends

to stay, for purposes of divisions (C) to (I) of this section, sections 2950.06 to 2950.13 of

the Revised Code, and sections 311.171 and 2919.24 of the Revised Code, the place or

places so described in the notice shall be considered the person's residence address

and registered residence address until the person provides the written notice of a fixed

residence address as described in this division.”

{¶17} Appellant relies on this Court’s opinion in State v. Ascoine, Fifth Dist. No.

2003CA00001, 2003-Ohio-4145, in support of his claim that it was impossible for him to

comply with the statute. In that case, the sexually oriented offender was kicked out of

his in-laws home. He stayed with various friends for the next few months without

informing the sheriff of his new address. This Court reversed his conviction, finding that

it was impossible for him to notify the sheriff of his change in address twenty days in

advance. Id. at ¶20. In so holding, this Court urged the legislature to address the

loophole created by the statute by requiring the registrant to provide notice of a change Stark County App. Case No. 2011CA00231 7

of address within a prescribed amount of time after the change occurs when the

registrant cannot comply with R.C. 2950.05(A). Id. at ¶22.

{¶18} The legislature did in fact close this loophole by an amendment in 2005.

R.C. 2950.05(G)(1) now provides:

{¶19} “(G)(1) It is an affirmative defense to a charge of a violation of division

(F)(1) of this section that it was impossible for the person to provide the written notice to

the sheriff as required under division (A) of this section because of a lack of knowledge,

on the date specified for the provision of the written notice, of a residence, school,

institution of higher education, or place of employment address change, and that the

person provided notice of the residence, school, institution of higher education, or place

of employment address change to the sheriff specified in division (A) of this section as

soon as possible, but not later than the end of the first business day, after learning of

the address change by doing either of the following:

{¶20} “The person provided notice of the address change to the sheriff specified

in division (A) of this section by telephone immediately upon learning of the address

change or, if the person did not have reasonable access to a telephone at that time, as

soon as possible, but not later than the end of the first business day, after learning of

the address change and having reasonable access to a telephone, and the person, as

soon as possible, but not later than the end of the first business day, after providing

notice of the address change to the sheriff by telephone, provided written notice of the

address change to that sheriff. Stark County App. Case No. 2011CA00231 8

{¶21} “The person, as soon as possible, but not later than the end of the first

business day, after learning of the address change, provided written notice of the

address change to the sheriff specified in division (A) of this section.”

{¶22} The evidence established that on Sunday, January 30, 2010, appellant

placed several phone calls to a phone number assigned to the personal secretary of the

elected sheriff of Stark County. However, this is not the number provided to him to use

to give notice of a change in address, and he failed to leave a message. The evidence

established that appellant did not notify the sheriff of his change of address by the end

of the first business day after his move.

{¶23} The first assignment of error is overruled.

II

{¶24} In his second assignment of error, appellant argues that the judgment is

against the manifest weight and sufficiency of the evidence.

{¶25} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1983).

{¶26} An appellate court's function when reviewing the sufficiency of the

evidence is to determine whether, after viewing the evidence in a light most favorable to Stark County App. Case No. 2011CA00231 9

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492, paragraph two of the syllabus (1991).

{¶27} Appellant first argues that the indictment alleges that he failed to notify the

sheriff of a change in address between the dates of January 9, 2010 and January 29,

2010, but he could not have violated the twenty-day notice provision between these

dates because he did not have a new address on January 29, 2010. We first note that

the indictment specifies that the offense occurred “on or about the 9th day of January” to

“on or about the 29th day of January.” Further, DeChiara testified that appellant signed

a lease during the evening of January 29, 2010, and gave DeChiara $375.00 for

February rent. DeChiara gave appellant the keys to the apartment that night.

Therefore, the evidence established that appellant had a new residence on January 29,

2010, and appellant testified himself that he moved into the apartment on January 30,

2010, and spent that night there. Tr. 98.

{¶28} Appellant also argues that the judgment is against the manifest weight and

sufficiency of the evidence because he had notified the sheriff that he had to leave R&R

housing on January 29, 2010, and he made three attempts to call the sheriff’s secretary

on January 30, 2010. However, appellant did not leave a message giving his new

address, nor did he contact the sheriff and leave his new address during the next week

during business hours. The evidence is undisputed that while the sheriff had knowledge

that appellant would have a change of address when he had to leave his housing on

January 29, he did not give the sheriff the new address twenty days prior to the move or

within one business day after moving into the apartment at 601 Brown Avenue. Stark County App. Case No. 2011CA00231 10

{¶29} The second assignment of error is overruled.

III

{¶30} In his third assignment of error, appellant argues that counsel was

ineffective for encouraging him to waive his right to a jury trial.

{¶31} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the

result of the proceedings would have been different. Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989). In other words, appellant must show that counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied upon as having produced a just result. Id.

{¶32} Appellant appeared before the court on September 26, 2011, three days

before his trial, and informed the court that he wished to waive his right to a jury trial.

The trial court conducted an extensive examination to ensure that appellant understood

the effect of his waiver. At no time did appellant express any reservations about his

decision or indicate in any manner that he was not choosing to waive jury trial

knowingly, intelligently or voluntarily. Only after he was convicted did appellant express

dissatisfaction with his decision to waive jury trial and attempt to blame this decision on

his attorney:

{¶33} “I do not see how you can, you can find me guilty, sir. And I wish to file

some sort of an appeal. I knew I should have took it to trial, and this lady talked me out Stark County App. Case No. 2011CA00231 11

of it, said Oh, it’s better just to have you do it, and I took her word, and I thought you

would be fair enough to understand these things and look at not just - - I don’t know;

there’s a lot of frivolous things, and, and I, I just - - I don’t understand how you can find

me guilty, sir.

{¶34} “I done everything - - tried to do everything according to the law. I’ve been

in college. I volunteered for Goodwill. I’ve not drank or done nothing in 12 years now. I

tried to work. I worked for these people back here (indicating) for a little while, three

months.

{¶35} “That’s - - down here at - - where is it - - No. 3 section not altered in - - or

not later than three days after changing, Your Honor, and I got ahold (sic) of him the

third day which was Wednesday, the third business day. Which I don’t know if that

made a difference but.

{¶36} “I’m fighting for my life. I did ten years. And I never raped that girl, Your

Honor. We almost had sex but she backed out and we never went no further; that was

it.” Tr. 126-127.

{¶37} Appellant has not demonstrated that his counsel’s performance fell below

an objective standard of reasonable representation. His colloquy to the court

demonstrates that he agreed to the bench trial initially and only after being convicted did

he second guess his decision. Further, appellant has not demonstrated that had the

case proceeded to jury trial rather than bench trial, the result would have been different.

By his own testimony, he did not notify the sheriff of his new address within one

business day of moving. He had several excuses for his failure to do so, namely that he

called the wrong number, he was busy with school, he was confused during this time Stark County App. Case No. 2011CA00231 12

period and his parole officer knew where he was living. However, the evidence was

undisputed that he failed to comply with the statutory requirement.

{¶38} The third assignment of error is overruled.

{¶39} The judgment of the Stark County Common Pleas Court is affirmed.

By: Edwards, J.

Delaney, P.J. and

Gwin, J. concur

______________________________

JUDGES

JAE/r0621 [Cite as State v. Fluharty, 2012-Ohio-4258.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : MARION R. FLUHARTY : : Defendant-Appellant : CASE NO. 2011CA00231

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.

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