State v. Koch

2016 Ohio 7926

• Court: Ohio Court of Appeals
• Decided: November 17, 2016
• Docket: 16-CA-16
• Status: Published

Opinion

[Cite as State v. Koch, 2016-Ohio-7926.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 16-CA-16 : CLIFFORD D. KOCH : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 15CR11- 0197

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 17, 2016

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

CHARLES T. MCCONVILLE JOHN A. DANKOVICH KNOX. CO. PROSECUTOR KNOX. CO. PUBLIC DEFENDER 117 E. High St., Suite 234 11 East High St. Mount Vernon, OH 43050 Mount Vernon, OH 43050 Knox County, Case No. 16-CA-16 2

Delaney, J.

{¶1} Appellant Clifford D. Koch appeals from the April 26, 2016 Journal Entry

and June 8, 2016 Sentencing Entry of the Knox County Court of Common Pleas.

Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The facts underlying appellant’s criminal convictions are not in the record

before us.1

{¶3} On December 8, 2015, appellant was charged by indictment with one count

of failure to provide change of address, a felony of the third degree pursuant to R.C.

2950.05(F)(1). The indictment notes appellant is a sexually-oriented offender pursuant

to two convictions in the Knox County Court of Common Pleas: unlawful sexual conduct

with a minor pursuant to R.C. 2907.04, a felony of the fourth degree, [conviction date

June 30, 2006]; and importuning pursuant to R.C. 2907.07(B), a felony of the fourth

degree [conviction date July 30, 2012].

{¶4} Appellant last registered with the Knox County Sheriff on January 20, 2015,

as a sexually-oriented offender.

{¶5} Appellant has two prior convictions in the Knox County Court of Common

Pleas for failure to provide notice of change of address pursuant to R.C. 2950.05: August

24, 2009 and July 30, 2012.

1 Appellant asserts in his brief he was living in a Wal-Mart parking lot and calling into the sheriff’s office daily to report his whereabouts pursuant to the sheriff’s policy for homeless sex offenders. Those facts, however, are not in the appellate record. Knox County, Case No. 16-CA-16 3

{¶6} In the instant case, appellant entered a plea of guilty as charged and a

sentencing hearing was held on June 3, 2016. The trial court sentenced appellant to a

prison term of three years.

{¶7} Appellant now appeals from the June 8, 2016 Sentencing Entry of the Knox

County Court of Common Pleas.

{¶8} Appellant raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶9} “I. THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM

SENTENCE.”

{¶10} “II. R.C. 2950.05(F)(1) IS UNCONSTITUTIONAL AS APPLIED.”

ANALYSIS

I.

{¶11} In his first assignment of error, appellant argues he should not have

received the maximum sentence because the trial court did not state reasons in support

of its findings. We disagree.

{¶12} The trial court sentenced appellant to a prison term of three years, the

minimum statutorily-mandated penalty for the offense in light of appellant’s prior

convictions. The instant offense is a felony of the third degree pursuant to R.C.

2950.99(A)(1)(b) because the highest-level offense requiring appellant to register is

unlawful sexual conduct with a minor, a felony of the fourth degree pursuant to R.C.

2907.04(A).

{¶13} Appellant has two prior convictions for failure to provide notice of change of

address, rendering him subject to R.C. 2950.99(A)(2)(b), which states: Knox County, Case No. 16-CA-16 4

In addition to any penalty or sanction imposed under division

(A)(1)(b)(i), (ii), or (iii) of this section or any other provision of law for

a violation of a prohibition in section 2950.04, 2950.041, 2950.05, or

2950.06 of the Revised Code, if the offender previously has been

convicted of or pleaded guilty to, or previously has been adjudicated

a delinquent child for committing, a violation of a prohibition in section

2950.04, 2950.041, 2950.05, or 2950.06 of the Revised Code when

the most serious sexually oriented offense or child-victim oriented

offense that was the basis of the requirement that was violated under

the prohibition is a felony if committed by an adult or a comparable

category of offense committed in another jurisdiction, the court

imposing a sentence upon the offender shall impose a definite

prison term of no less than three years. The definite prison term

imposed under this section, subject to divisions (C) to (I) of section

2967.19 of the Revised Code, shall not be reduced to less than three

years pursuant to any provision of Chapter 2967. or any other

provision of the Revised Code. (Emphasis added.)

{¶14} As appellee points out, R.C. 2950.99(A)(2)(b) has been described as a

“sentencing enhancement provision” which requires a mandatory minimum sentence of

three years. See, e.g., State v. Barnes, 9th Dist. Lorain Nos. 13CA010502, 13CA010503,

2014-Ohio-2721; State v. Ashford, 2nd Dist. Montgomery No. 23311, 2010-Ohio-1681;

State v. Littlejohn, 8th Dist. Cuyahoga No. 103234, 2016-Ohio-1125. Knox County, Case No. 16-CA-16 5

{¶15} The trial court did not err in sentencing appellant to the minimum mandated

term of three years.

{¶16} Appellant’s first assignment of error is overruled.

II.

{¶17} In his second assignment of error, appellant argues R.C. 2950.05(F)(1) is

unconstitutional as applied to him because it subjects an offender guilty of a “minimal

violation” to a mandatory prison term of three years. We disagree.

{¶18} We first disagree with appellant’s underlying premise that his conviction

does not merit a prison term of three years. On the basis of the limited record before us,

appellant has two prior convictions for this offense and thus is a recidivist.

{¶19} Appellant argues, though, that a prison term of three years is cruel and

unusual punishment for “miscommunication” about the location of a registered sex

offender. As appellee points out, the Ohio Supreme Court has held that the state’s system

of sex offender registration and address verification has been held not to constitute cruel

and unusual punishment in violation of the Eighth Amendment to the United States

Constitution or Article I, Section 9 of the Ohio Constitution. See, State v. Blankenship,

145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516.

{¶20} R.C. 2950.05(F)(1) and 2950.99(A)(2)(b) do not constitute cruel and

unusual punishment as applied to appellant. The Eighth Amendment to the United States

Constitution prohibits excessive sanctions and provides: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Section 9, Article I of the Ohio Constitution likewise sets forth the same restriction:

“Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual Knox County, Case No. 16-CA-16 6

punishments inflicted.” The Ohio Supreme Court has noted, “Central to the Constitution's

prohibition against cruel and unusual punishment is the ‘precept of justice that

punishment for crime should be graduated and proportioned to [the] offense.’” In re C.P.,

131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 25, quoting Weems v. United

States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

{¶21} Appellant argues, essentially, that his 3-year sentence is disproportionate

to his crime.2 “‘The Eighth Amendment does not require strict proportionality between

crime and sentence. Rather, it forbids only extreme sentences that are “grossly

disproportionate” to the crime.’” State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d

167 (1999), quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115

L.Ed.2d 836 (1991), (Kennedy, J., concurring in part and in judgment). Appellant’s

sentence is not grossly disproportionate.

{¶22} Our proportionality analysis under the Eighth Amendment should be guided

by objective criteria, “including (i) the gravity of the offense and the harshness of the

penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the

sentences imposed for commission of the same crime in other jurisdictions.” State v.

Morin, 5th Dist. Fairfield No. 2008-CA-10, 2008-Ohio-6707, ¶ 70, citing Solem v. Helm,

463 U.S. 277, 290-292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). “It is well established

that sentences do not violate these constitutional provisions against cruel and unusual

2 We note appellant phrases his argument in terms of the prohibition against cruel and unusual punishment, but also argues the mandatory minimum sentence is unconstitutional because it removes judicial discretion from the sentencing process. This argument in the context of R.C. 2950.99(A)(2)(b) was considered and rejected by the Ninth District Court of Appeals in State v. Barnes, 9th Dist. Lorain Nos. 13CA010502, 13CA010503, supra. Knox County, Case No. 16-CA-16 7

punishment unless the sentences are so grossly disproportionate to the offenses as to

shock the sense of justice in the community. State v. Chaffin, 30 Ohio St.2d 13, 282

N.E.2d 46 (1972); State v. Jarrells, 72 Ohio App.3d 730, 596 N.E.2d 477 (2nd Dist.1991);

State v. Hamann, 90 Ohio App.3d 654, 672, 630 N.E.2d 384 (8th Dist.1993). Appellant

does not argue his 3-year sentence shocks the sense of justice in the community; nor do

we find it does so.

{¶23} “As a general rule, a sentence that falls within the terms of a valid statute

cannot amount to a cruel and unusual punishment.” McDougle v. Maxwell, 1 Ohio St.2d

68, 69, 203 N.E.2d 334 (1964). “[P]unishments which are prohibited by the Eighth

Amendment are limited to torture or other barbarous punishments, degrading

punishments unknown at common law, and punishments which are so disproportionate

to the offense as to shock the moral sense of the community.” Id.

{¶24} Having determined supra that the trial court properly applied the statutory

sentencing enhancement provision, a determination that appellant's sentence amounts

to cruel and unusual punishment would amount to holding the provision unconstitutional.

See, State v. Anderson, 146 Ohio App.3d 427, 2001-Ohio-4297, 766 N.E.2d 1005, ¶ 74

(8th Dist.) Cruel and unusual punishments are “rare” and are limited to sanctions that

under the circumstances would be shocking to any reasonable person. State v.

Blankenship, 145 Ohio St.3d 221, 2015–Ohio–4624, 48 N.E.3d 526, ¶ 32. It is not

shocking to the conscience that an offender who repeatedly violates the address-

notification requirement is subject to a minimum three-year prison term.

{¶25} The prison sentence imposed is not grossly disproportionate to the offense

and does not constitute cruel and unusual punishment. Knox County, Case No. 16-CA-16 8

{¶26} Appellant’s second assignment of error is overruled.

CONCLUSION

{¶27} Appellant’s two assignments of error are overruled and the judgment of the

Knox County Court of Common Pleas is affirmed.

By: Delaney, J. and

Farmer, P.J.

Gwin, J., concur.