State v. Jirousek

2013 Ohio 5267

Opinion

[Cite as State v. Jirousek, 2013-Ohio-5267.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NOS. 2013-G-3128 - vs - : and 2013-G-3130

MICHAEL D. JIROUSEK, :

Defendant-Appellant. :

Criminal Appeals from the Geauga County Court of Common Pleas, Case Nos. 11 C 000164 and 12 C 000061.

Judgment: Affirmed in part; reversed in part and remanded.

James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee).

Paul A. Mancino, Jr., Mancino, Mancino & Mancino, 75 Public Square, #1016, Cleveland, OH 44113-2098 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} This appeal follows two separate judgments of conviction based on

appellant Michael Jirousek’s guilty pleas. In the first case, appellant pleaded guilty to

various felony-sexually oriented offenses (“Case No. 11C000164”) and, in the second,

he pleaded guilty to a misdemeanor assault (“Case No. 12C000061”). The cases were

consolidated by this court for purposes of appeal and appellant now challenges various

aspects of the judgments of conviction entered by the Geauga County Court of Common Pleas. For the reasons that follow, we affirm in part, reverse in part, and

remand the matter for further proceedings.

{¶2} CASE NO. 11C000164

{¶3} On November 21, 2011, appellant was indicted on one count of

importuning, in violation of R.C. 2907.07(D)(1), a felony of the fifth degree; one count of

unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A), a felony of the

fourth degree; and one count of endangering children, a violation of R.C. 2919.22(B)(5),

a felony of the second degree.

{¶4} Appellant ultimately entered pleas of guilty to one count of felony-five

importuning; one count of felony-four unlawful sexual conduct with a minor, and one

count of felony-four pandering obscenity involving a minor, a stipulated, lesser-included

offense of endangering children. The court set the matter for sentencing and ordered a

presentence investigation report (“PSI”).

{¶5} After a hearing, appellant was sentenced to 17 months imprisonment for

unlawful sexual conduct with a minor; 11 months imprisonment for importuning, to run

concurrently with the 17-month sentence; and 12 months for pandering obscenity

involving a minor, to run consecutively to the 17-month aggregate sentence for the first

two counts. Appellant was notified that, by pleading to the importuning charge, he

would be classified a Tier I sex offender and obligated to register for a period of 15

years, which would have to be updated annually. The court additionally advised

appellant that, by pleading to the charges of unlawful sexual conduct with a minor and

pandering, he would be classified as a Tier II sex offender and be required to register

and reregister every six months for a period of 25 years.

2 {¶6} CASE NO 12C000061

{¶7} On June 20, 2012, appellant was indicted on one count of assault, in

violation of R.C. 2903.123(A)(C)(2)(b), a felony of the fifth degree. On July 10, 2012,

appellant was arraigned and pleaded not guilty before Judge Forrest W. Burt. After the

proceedings were adjourned, the court reconvened because appellant, as he left the

courtroom, cast a vulgar epithet at the prosecutor. The court found appellant in

contempt of court and ordered appellant to serve a total sentence of 20 days in jail; the

sentence was suspended and the case was ultimately assigned to Judge David L.

Fuhry for all remaining proceedings.

{¶8} Appellant entered a plea of guilty to assault, in violation of R.C.

2903.13(A), a misdemeanor of the first degree. The court set the matter for sentencing

and indicated its intention to consider the PSI from Case No. 11C000164.

{¶9} The case came on for sentencing and the court imposed a 180-day jail

term for the misdemeanor assault count; the court further imposed the suspended 20-

day sentence for appellant’s contempt at the arraignment. Each term was ordered to be

served concurrently with the prison terms imposed in Case No. 11C000164.

{¶10} Appellant assigns 15 errors for this court’s review. For ease of discussion,

we shall consolidate our analysis of appellant’s first, second, and third assignments of

error. They provide, respectively:

{¶11} “[1.] Defendant was denied due process of law when the court sentenced

defendant immediately for a comment which was arguably protected by the First

Amendment and judicial privilege.”

3 {¶12} “[2.] Defendant was denied due process of law when he was summarily

found in contempt of court and immediately sentenced.”

{¶13} “[3.] Defendant was denied due process of law when the court failed to

grant defendant allocution before imposing a sentence for contempt.”

{¶14} During a July 10, 2012 status hearing, the trial court convened for

appellant to stipulate to his competency to stand trial and to accept appellant’s then-

entered plea of not guilty to the charge of felony-five assault in Case No. 12C000061.

After the proceedings adjourned, the court reconvened due to an exchange between

appellant and the prosecutor in which the former referred to the latter as a “pussy.”

Appellant apologized on record. The trial court, however, did not accept the apology

and rebuked appellant, stating: “This gentleman is doing his job. He’s an assistant

prosecutor. He’s an officer of the court. He’s an officer of the state. What makes you

possibly think that it’s acceptable to call him that under the circumstances?”

{¶15} The court subsequently held appellant in contempt, sentenced him to 10

days in jail, and suspended the sentence. In response to the court’s action, appellant

offered to “drop and give [the court] five hundred instead[.]” The court reiterated its

contempt finding and increased the appellant’s sentence to 20 days in jail. The court

again suspended the sentence. The court, via a different judge, later imposed the 20

days in a January 10, 2013 judgment entry, and ordered the sentence to run

consecutive with the 180-day sentence for the first-degree misdemeanor assault to

which he pleaded guilty; and each sentence was ordered to run concurrently with

appellant’s felony sentences entered in Case. No. 11C000164.

4 {¶16} Preliminarily, the state asserts that the contempt order was a valid and

final order when the court entered the order. As a result, it argues, appellant’s

arguments relating to that order are untimely.

{¶17} The state is correct that a judgment of contempt becomes final and

appealable when there is a finding of contempt and the imposition of a penalty.

O’Grady v. O’Grady, 11th Dist. Trumbull No. 2012-T-0004, 2012-Ohio-4208, ¶34.

Furthermore, courts have held that an order finding a party in contempt that imposes a

suspended jail sentence meets these criteria. See Abernathy v. Abernathy, 8th Dist.

Cuyahoga No. 92708, 2010-Ohio-435, ¶37; The Estate of Renee Harrold v. Collier, 9th

Dist. Wayne Nos. 07CA0074 and 08CA0024, 2009-Ohio-2782, ¶14; Peterson v.

Peterson, 5th Dist. Muskingum No. CT2003-0049, 2004-Ohio-4714, ¶8. And, in this

case, appellant did not file his first notice of appeal, however, until January 10, 2013,

some six months after the order was issued from the bench. To the extent the order

was final and appealable on July 10, 2012, i.e., the date of its issuance, appellant has

failed to invoke this court’s jurisdiction to consider the order. In this respect, appellant’s

first, second, and third assignments of error are not properly before this court.

{¶18} Notwithstanding this conclusion, it is well-settled that a court speaks only

through its journal entries. See e.g. State v. King, 11th Dist. Portage No. 2008-P-0040,

2010-Ohio-3254, ¶55. Following this axiom, the order became final and appealable

upon its ultimate journalization; to wit: January 10, 2013. Appellant filed his notice of

appeal of the entry on February 4, 2013, well within the 30-day window for invoking this

court’s jurisdiction. Assuming appellant timely filed his appeal of the contempt order,

5 however, the record indicates that appeal has been rendered moot by the expiration of

the sentence.

{¶19} Sentencing occurred on December 14, 2012. Appellant was given 158

days credit and, as a result, his sentence for the assault conviction expired on January

5, 2013, 22 days after the court’s imposition of punishment. Furthermore, appellant’s

contempt convictions would have expired January 25, 2013, 20 days after the expiration

of the assault sentence.

{¶20} The Supreme Court of Ohio has observed that, “[t]he completion of a

sentence is not voluntary and will not make an appeal moot if the circumstances

surrounding it demonstrate that the appellant neither acquiesced in the judgment nor

abandoned the right to appellate review, that the appellant has a substantial stake in the

judgment of conviction, and that there is subject matter for the appellate court to

decide.” Cleveland Heights v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, paragraph

one of the syllabus. In the case of a misdemeanor conviction,

{¶21} a misdemeanant who contests charges at trial and, after being

convicted, seeks a stay of execution of sentence from the trial

court for the purpose of preventing an intended appeal from being

declared moot and thereafter appeals the conviction objectively

demonstrates that the sentence is not being served voluntarily,

because no intent is shown to acquiesce in the judgment or to

intentionally abandon the right of appeal. Id. at ¶ 23.

{¶22} Conversely, when an appellant completes a misdemeanor sentence

without requesting a stay pending appeal and does not offer evidence from which an

6 appellate court could infer that the appellant would suffer collateral disability or loss of

civil rights stemming from the misdemeanor conviction, the appeal is moot. State v.

Jones, 9th Dist. Wayne No. 12CA0024, 2012-Ohio-6150, ¶ 52.

{¶23} “A direct contempt is one committed in the presence of or so near the

court as to obstruct the due and orderly administration of justice.” See e.g. In re Lands,

146 Ohio St. 589, 595 (1946). In this case, appellant made the contemptible remarks

both near the court and before the judge. The contemptible conduct, therefore, was a

form of direct contempt. “A direct contempt conviction is a petty or minor offense, and

only a misdemeanor, when its punishment is imprisonment not in the penitentiary and

not for more than a year.” In re Stukey, 2d Dist. Montgomery No. 15604, 1996 Ohio

App. LEXIS 4583, *2 (Oct. 11, 1996), citing In re Neff, 20 Ohio App.2d 213 (5th

Dist.1969).

{¶24} Because appellant’s sentence has expired, he did not move for a stay of

execution of that sentence, and has offered no evidence that he will suffer a collateral

disability or a loss of civil rights from the misdemeanor conviction, his satisfied judgment

is rendered moot as a matter of law.

{¶25} Given the foregoing analysis, appellant’s first three assigned errors lack

merit.

{¶26} Appellant’s fourth assignment of error provides:

{¶27} “Defendant was denied due process of law when the court imposed a

consecutive sentence without appropriate findings.”

{¶28} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Ohio Supreme

Court set forth a two-step process for reviewing felony sentences. The first step is to

7 “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.” Id. at ¶4. If the first prong is satisfied, the second prong requires the

trial court’s judgment to be reviewed under the abuse-of-discretion standard.

{¶29} H.B. 86, which became effective on September 30, 2011, revived the

language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The

revisions to the felony sentencing scheme under H.B. 86 now require a trial court to

make specific findings when imposing consecutive sentences. Appellant was sentenced

on December 27, 2012 and therefore the new provisions apply.

{¶30} R.C. 2929.14(C)(4) provides:

{¶31} 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:

{¶32} (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 2929.16, 2929.17, or 2929.18

of the Revised Code, or was under post-release control for a prior

offense.

8 {¶33} (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.

{¶34} (c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶35} The legislature, in amending former R.C. 2929.14(E)(4), intended:

{¶36} “to simultaneously repeal and revive the amended language in

those divisions that was invalidated and severed by the Ohio

Supreme Court’s decision in State v. Foster, 109 Ohio St.3d 1,

2006 Ohio 856, 845 N.E.2d 470.” The General Assembly further

explained that the amended language in those divisions “is subject

to reenactment under the United States Supreme Court’s decision

in Oregon v. Ice, (2009) 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed.

2d 517, and the Ohio Supreme Court’s decision in State v. Hodge,

(2010) [128] Ohio St.3d [1], slip opinion no. 2010-Ohio-6320, 941

N.E.2d 768, * * *.” State v. Beckworth, 11th Dist. Ashtabula No.

2012-A-0051, 2013-Ohio-1739, ¶14, quoting Section 11, H.B. 86.

9 {¶37} Accordingly, the legislature intended courts to interpret the language in

current R.C. 2929.14(C)(4) in the same manner as the courts did prior to Foster.

Beckworth, supra.

{¶38} Appellant, however, did not object to the imposition of consecutive

sentences at the sentencing hearing and has consequently forfeited all but plain error.

See Crim.R. 52(B); State v. Wilson, 10th Dist. Franklin No.12AP-551, 2013-Ohio-1520,

¶8. Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting rights may be noticed

although they were not brought to the attention of the court.” An error is “plain” when it

is an obvious defect in the trial proceedings.

{¶39} In this case, the trial court sentenced appellant to 12 months for felony-

four pandering obscenity and ran that sentence consecutively to a 17-month prison term

(11 months for felony-five importuning and 17 months for felony-four unlawful conduct

with a minor, to be served concurrently). The trial court, however, did not set forth any

findings to support the imposition of consecutive sentencing as required by R.C.

2929.14(C)(4). The trial court is required to make the appropriate statutory findings

prior to imposing consecutive sentence. We therefore hold the trial court committed

plain error as a matter of law when it imposed consecutive sentences in this case.

{¶40} Appellant’s fourth assignment of error has merit.

{¶41} For his fifth assignment of error, appellant contends:

{¶42} “Defendant was denied his Sixth Amendment right when the court

sentenced defendant based on facts not admitted at the time of the plea.”

{¶43} Although the disposition of appellant’s fourth assignment of error requires

the court to resentence appellant, we shall address appellant’s sentencing argument as

10 any arguable error is capable of repetition at a future hearing. That said, appellant

contends that his Sixth Amendment right to trial by jury was violated when the trial court,

at sentencing in Case No. 11C000164, relied upon facts to which he never admitted.

Appellant relies upon the Sixth Amendment jurisprudence announced in Apprendi v.

New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004).

Appellant misconstrues the import of these cases.

{¶44} In general, Apprendi and Blakely stand for the proposition that a jury must

determine any fact, other than a prior conviction, that increases the maximum

authorized penalty for a crime. See State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-

3478, ¶5. In Foster, supra, the Supreme Court of Ohio held that former R.C.

2929.14(B), 2929.14(C), 2929.14(E)(4), and R.C. 2929.19(B)(2) violate a defendant’s

Sixth Amendment right to a jury trial by requiring a court to make particular findings

before imposing more-than-the-minimum, the maximum, or consecutive sentences.1

The Court consequently excised all unconstitutional aspects of Ohio’s sentencing

scheme pursuant to Apprendi and Blakely.

{¶45} After Foster, Ohio’s felony sentencing scheme no longer violated the Sixth

Amendment because a trial court was no longer obligated to make findings before

imposing a felony sentence; rather, a court could, in its discretion, impose any sentence

(or sentences) so long as it is within the available punitive ranges set forth under R.C.

2929.14(A), and doing so does not amount to an abuse of discretion. Moreover, post-

Foster, the court, within its discretion, may choose to support its sentence by setting

forth its reasons for selecting the sentence imposed. If it elected to do so, this exercise

1. As discussed above, the Ohio legislature, pursuant to Ice, supra, and Hodge, supra, revived the requirements of former R.C. 2929.14(E)(4), which mandated certain factual findings before a court imposes consecutive sentences. Those requirements were re-codified under R.C. 2929.14(C)(4).

11 did not violate the Sixth Amendment because the court’s findings or justifications are not

a statutory condition precedent to imposing the selected sentence, but merely a function

of the court’s discretion.

{¶46} In this case, prior to imposing sentence, the court made certain

observations on record, all of which were gleaned either from the sentencing hearing or

the PSI. In particular, the court advised appellant that the statute prohibiting unlawful

sexual conduct with a minor requires an offender to either know the age of the victim or

act recklessly in that regard. The court noted that in appellant’s version of events, he

believed that one of the victims, a 13-year-old girl, was 19 years old. The court stated

that, even assuming appellant possessed this belief, his behavior was reckless and he

“chose to fool [him]self.” The court continued:

{¶47} Having said that, when you are out trolling on the internet and then

in terms of luring that person to the vehicle and then saying you

can’t get out until we have sex, that certainly qualifies as being

reckless, especially when you found this person on the internet.

{¶48} I do find that in fact the victim of counts one and two was 13. The

victim of count three the age was at least or at most 17, or could

have been as young as 15, depending on those activities.

{¶49} We emphasize that this information came directly from information

submitted to the court at the sentencing hearing as well as the PSI, which included the

official police version of events as well as appellant’s version of the offenses. At

sentencing, a trial court is required to consider “the record, and information presented at

the hearing, any presentence investigation report, and any victim impact statement.”

12 State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶37. Considering and relying upon

this information does not run afoul of Foster, Apprendi, or Blakely because Ohio law

does not mandate the court to make findings based upon such information to increase

an otherwise maximum-authorized penalty. Rather, the information merely exists to

provide the court assistance in fashioning a sentence consistent with the purposes and

principles of felony sentencing. We therefore hold the trial court did not err in relying

upon information that appellant did not specifically admit at his plea hearing.

{¶50} Appellant’s fifth assignment of error lacks merit.

{¶51} Appellant’s sixth assignment of error provides:

{¶52} “Defendant was denied due process of law when he was sentenced for

fourth and fifth degree felonies to prison rather than a community control sanction.”

{¶53} Appellant contends the trial court erred by sentencing him to prison terms

for the fourth- and fifth-degree felonies to which he was sentenced because he was

entitled to community control sanctions. We do not agree.

{¶54} R.C. 2929.13(B)(1)(a) provides, in relevant part:

{¶55} Except as provided in division (B)(1)(b) of this section, if an

offender is convicted of or pleads guilty to a felony of the fourth or

fifth degree that is not an offense of violence or that is a qualifying

assault offense, the court shall sentence the offender to a

community control sanction of at least one year’s duration if all of

the following apply:

{¶56} * * *

13 {¶57} (iv) The offender previously has not been convicted of or pleaded

guilty to a misdemeanor offense of violence that the offender

committed within two years prior to the offense for which sentence

is being imposed. (Emphasis added.)

{¶58} In October 2012, appellant had entered a plea of guilty to misdemeanor

assault. Consequently, at the time of sentencing, December 2012, appellant had

pleaded guilty to a misdemeanor offense of violence within two years of the court’s

sentence. Because appellant failed to meet one of the four statutory criteria of R.C.

2929.13(B)(1)(a), he was not entitled to community control.

{¶59} Furthermore, R.C. 2929.13(B)(1)(b) specifically provides, in relevant part:

{¶60} The court has discretion to impose a prison term upon an offender

who is convicted of or pleads guilty to a felony of the fourth or fifth

degree that is not an offense of violence or that is a qualifying

assault offense if any of the following apply:

{¶61} * * *

{¶62} (v) The offense is a sex offense that is a fourth or fifth degree felony

violation of any provision of Chapter 2907. of the Revised Code.

{¶63} Appellant pleaded guilty to felony-four unlawful sexual conduct with a

minor, in violation of R.C. 2907.04(A) and felony-four pandering obscenity involving a

minor, in violation of R.C. 2907.321(A)(5). Appellant also pleaded guilty to felony-five

importuning, in violation of R.C. 2907.07(D)(1). Each of these crimes is a sex offense of

the fourth or fifth degree in violation of R.C. Chapter 2907. Thus, even assuming

14 appellant had not pleaded guilty to misdemeanor assault, the court still possessed the

discretion to sentence him to prison.

{¶64} Appellant’s sixth assignment of error lacks merit.

{¶65} Appellant’s seventh assignment of error provides:

{¶66} “Defendant was denied due process of law when the court did not fully

explain the penalties for entering pleas of guilty to sexually oriented offenses.”

{¶67} When determining whether the trial court has met its obligations under

Crim.R. 11 in accepting a plea, appellate courts have distinguished between

constitutional and non-constitutional rights. With respect to the constitutional rights, a

trial court must advise a defendant that, by pleading guilty, he or she is waiving: “(1) the

right to a jury trial, (2) the right to confront one’s accusers, (3) the right to compulsory

process to obtain witnesses, (4) the right to require the state to prove guilt beyond a

reasonable doubt, and (5) the privilege against compulsory self-incrimination.” State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, at syllabus. A trial court must strictly

comply with those provisions of Crim.R. 11(C) that relate to the waiver of constitutional

rights and the failure to do so invalidates the plea. Veney, supra; see also State v.

Lavender, 11th Dist. Lake No. 2000-L-049, 2001 Ohio App. LEXIS 5858, *11 (Dec. 21,

2001).

{¶68} Alternatively, the remaining non-constitutional rights set forth under

Crim.R. 11 require the court to: (1) determine the defendant understands the nature of

the charge(s) and possesses an understanding of the legal and practical effect(s) of the

plea; (2) determine the defendant understands the maximum penalty that could be

imposed; and (3) determine that the defendant is aware that, after entering a guilty plea

15 or a no contest plea, the court may proceed to judgment and sentence. See Crim.R.

11(C)(2)(a) and (b); see also State v. Nero, 56 Ohio St.3d 106, 108 (1990). Although

literal compliance with Crim.R. 11 as it pertains to the non-constitutional rights is

preferred, an advisement substantially complying with the letter of the rule is legally

sufficient. Nero, supra. A court substantially complies where the record demonstrates

the defendant, under the totality of the circumstances, subjectively understood the

implications of the plea and the rights waived. Id.

{¶69} Furthermore, even when a trial court fails to substantially comply with the

non-constitutional requirements of Crim.R. 11(C), such an error is reversible if a

defendant demonstrates he or she was prejudiced by the lack of compliance. State v.

Johnson, 40 Ohio St.3d 130, 134 (1988); see also Crim.R. 52(A); Crim.R. 33. The test

for prejudice is “whether the plea would have otherwise been made.” Nero, supra.

{¶70} Appellant argues the trial court provided an incomplete statement of the

penalties to which he would be subject as a consequence of his plea to sexually

oriented offenses in Case No. 11C000164. In particular, appellant argues his plea was

not entered with a full understanding of the nature of the charge because the trial court

did not inform him of the residency restrictions that attach to the crimes to which he

pleaded. We do not agree.

{¶71} At the plea hearing, the trial court informed appellant of the maximum

terms of imprisonment and fines to which he would be subject by pleading to the

sexually oriented offenses. The court further stated that, by pleading to the importuning

charge, appellant would be classified a Tier I sex offender and obligated to register for a

period of 15 years, which would have to be updated annually. The court additionally

16 advised appellant that, by pleading to the charges of unlawful sexual conduct with a

minor and pandering, he would be classified as a Tier II sex offender and be required to

register and reregister every six months for a period of 25 years. The court did not, until

sentencing, advise appellant that he would be precluded from residing within 1,000 feet

of a school, daycare, or child care facility.

{¶72} Appellant was notified he would be subject to various notification and

reporting requirements as a Tier I and II sex offender for the terms specified in the

statute. And the totality of the circumstances demonstrate that, by pleading to the sex

offenses at issue, appellant understood he would be subjected to various limitations and

restrictions as a result of his classifications. Hence, even though the court did not

inform appellant of the residency restriction, we conclude the court substantially

complied with Crim.R. 11(C)(a) and (b). See State v. Creed, 8th Dist. Cuyahoga No.

97317, 2012-Ohio-2627, ¶17 (holding where record demonstrated court advised

defendant of his obligations to register and notify for life as a Tier III sex offender, the

failure to specifically inform him of residency restrictions did not invalidate the plea.)

{¶73} Further, even if we determined the court’s omission did not substantially

comply with Crim.R. 11, appellant has failed to argue he suffered prejudice. And the

record supports the lack of notice of the residency restriction was harmless. To wit,

upon learning, at sentencing, he would be subject to the residency restriction, no

objection was entered. This suggests appellant did not find the restriction substantively

problematic or prejudicial. Without some demonstration of prejudice, we decline to find

appellant’s plea invalid.

{¶74} Appellant’s seventh assignment of error lacks merit.

17 {¶75} Appellant’s eighth assignment of error asserts:

{¶76} “Defendant was denied due process of law when the court did not

determine that the defendant understood the nature of the offenses to which he was

entering pleas of guilty.”

{¶77} Appellant contends his plea was not knowingly and voluntarily entered

because the trial court failed to ensure he understood the nature of the offenses to

which he was pleading. We do not agree.

{¶78} At the plea hearing, the trial court asked appellant if he understood that his

plea would act as an admission of guilt to the crimes of importuning, a felony of the fifth

degree; unlawful sexual conduct with a minor, a felony of the fourth degree; and

pandering obscenity involving a minor, a felony of the fourth degree. Appellant stated

he understood this. The court continued:

{¶79} [L]et’s talk about the third count, there’s some aspects about that.

That was referred to by the prosecutor as a stipulated lesser

included offense. Now, the significance of that, among your rights

you could insist that a grand jury indict you on that because it’s a

different charge than you were originally indicted for.

{¶80} By stipulating that it’s a lesser included offense, you are telling me

that you are willing to proceed with that offense in your plea today

on that charge and not - - or you’re giving up your right to have a

grand jury consider whether you should be indicted for that offense.

Do you understand that?

{¶81} Appellant responded in the affirmative.

18 {¶82} The court later advised appellant the maximum terms of imprisonment of

the charges as well as the maximum fines appellant was facing. And, as discussed

above, the court also explained appellant would be classified as both a Tier I and Tier II

sex offender as a result of his pleas and advised appellant of the notification and

registration requirements that attach to his classifications. Appellant stated on record

that he had no questions regarding the court’s explanations.

{¶83} With the foregoing in mind, we conclude the court advised appellant and

satisfactorily determined he understood the legal and practical effects of entering his

pleas. The record therefore demonstrates the appellant had a sufficient understanding

of the nature of the offenses to which he was pleading guilty.

{¶84} Appellant’s eighth assignment of error lacks merit.

{¶85} For his ninth assigned error, appellant contends:

{¶86} “Defendant was denied due process of law when the court did not

completely inform defendant about court costs but imposed full court costs in his

judgment entry of sentencing.”

{¶87} Under this assignment of error, appellant asserts the trial court failed to

comply with the requirements of R.C 2947.23(A)(1)(a) when it imposed costs in Case

No. 11C000164. R.C. 2947.23 has been amended since appellant’s sentencing, but at

the time of sentencing, it provided, in relevant part:

{¶88} In all criminal cases, including violations of ordinances, the judge or

magistrate shall include in the sentence the costs of prosecution,

including any costs under section 2947.231 of the Revised Code,

and render a judgment against the defendant for such costs. At the

19 time the judge or magistrate imposes sentence, the judge or

magistrate shall notify the defendant of both of the following:

{¶89} (a) If the defendant fails to pay that judgment or fails to timely

make payments towards that judgment under a payment schedule

approved by the court, the court may order the defendant to

perform community service in an amount of not more than forty

hours per month until the judgment is paid or until the court is

satisfied that the defendant is in full compliance with the approved

payment schedule.

{¶90} In relevant part, the 2012 amendment, effective March 22, 2013,

substituted, in the second sentence of the language of section (A)(1)(a), “If” for “At the

time,” and substituted “a community control sanction or other nonresidential sanction”

for “sentence,” and also inserted the phrase “when imposing the sanction” to that

sentence.

{¶91} Given our disposition of appellant’s fourth assignment of error, this matter

must be remanded for resentencing on appellant’s felonies. On remand, the trial court

must proceed in light of the amended version of R.C. 2947.23. Any arguable error in

the court’s imposition of costs in the original judgment is therefore rendered moot.

{¶92} Appellant’s ninth assignment of error is without merit.

{¶93} Appellant’s tenth, eleventh, twelfth, and thirteenth of assignments of error

are related and shall be addressed together. They state, respectively:

{¶94} “[10.] Defendant was denied due process of law when he was sentenced

twice for contempt before two different judges.”

20 {¶95} “[11.] Defendant has been denied due process of law when the court

imposed a jail sentence for contempt after that sentence had been suspended by

another judge.”

{¶96} “[12.] Defendant was denied due process of law when he was sentenced

for contempt which had occurred before a different judge.”

{¶97} “[13.] Defendant was denied due process of law when he was sentenced

for contempt without any evidence.”

{¶98} Pursuant to our disposition of appellant’s first, second, and third assigned

errors, assignments of error 10 through 13 are moot. That is, because appellant’s

sentence on the misdemeanor, direct contempt order has expired, he did not move for a

stay of execution of that sentence, and has offered no evidence that he will suffer a

collateral disability or a loss of civil rights from the misdemeanor conviction, these

challenges to his satisfied judgment are moot as a matter of law. See Lewis, supra.

{¶99} Appellant’s tenth, eleventh, twelfth, and thirteenth assignments of error

lack merit.

{¶100} Appellant’s fourteenth and fifteenth assignments of error provide:

{¶101} “[14.] Defendant was denied due process of law when he was sentenced

to a maximum misdemeanor sentence of 180 days based on judicial factfinding.”

{¶102} “[15.] Defendant was denied due process of law when the court did not

completely inform defendant about court costs but imposed full court costs in his

judgment entry of sentence.”

{¶103} Similar to the assignments of error challenging appellant’s direct contempt

order, appellant’s arguments relating to his sentence on the misdemeanor assault

21 charge are moot. Appellant’s sentence for the assault plea expired on January 5, 2013.

Appellant, however, did not move for a stay of execution of that sentence, nor has he

offered any evidence that he will suffer a collateral disability or a loss of civil rights from

the misdemeanor conviction. Thus, these challenges to his satisfied judgment are moot

as a matter of law.

{¶104} Appellant’s fourteenth and fifteenth assignments of error are without merit.

{¶105} For the reasons discussed in this opinion, appellant’s fourth assignment of

error is sustained. All remaining assigned errors are without merit. The matter is

therefore reversed and remanded to the trial court for resentencing in Case No.

11C000164 due to the trial court’s failure set forth proper findings to support the

imposition of consecutive sentencing as required by R.C. 2929.14(C)(4). The judgment

of the trial court is accordingly affirmed in part, reversed in part, and remanded.

TIMOTHY P. CANNON, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.