[Cite as State v. Little, 2019-Ohio-745.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY
STATE OF OHIO, CASE NO. 16-18-06 PLAINTIFF-APPELLEE,
v.
JORDAN A. LITTLE, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court Trial Court No. 18-CR-0004
Judgment Affirmed
Date of Decision: March 4, 2019
APPEARANCES:
Howard A. Elliot for Appellant
Douglas Rowland for Appellee Case No. 16-18-06
WILLAMOWSKI, J.
{¶1} Defendant-appellant Jordan Little (“Little”) brings this appeal from the
judgment of the Court of Common Pleas of Wyandot County sentencing him to an
aggregate prison term of eight years. On appeal Little challenges the trial court’s
compliance with Criminal Rule 11 and the imposition of consecutive sentences. For
the reasons set forth below, the judgment is affirmed.
{¶2} On January 10, 2018, the Wyandot County Grand Jury indicted Little
on seven counts of Pandering Sexually Oriented Matter involving a Minor in
violation of R.C. 2907.322(A)(2), felonies of the second degree (counts 1-7), four
counts of Pandering Sexually Oriented Matter involving a Minor in violation of R.C.
2907.322(A)(5), felonies of the fourth degree (counts 8-11), and one count of Illegal
Use of a Minor in Nudity Oriented Material or Performance in violation of R.C.
2907.323(A)(5), a felony of the fourth degree (count 12). Doc. 1. On June 26, 2018,
a change of plea hearing was held. Doc. 22. At that time, Little agreed to enter a
plea of guilty to counts one and two and in exchange for the plea, the State agreed
to dismiss counts three through twelve. Doc. 21. In the written plea agreement,
Little was informed that he could be sentenced to basic prison terms of two to eight
years on each count. Id. Little also was informed that there was no sentence
recommendation. Id. Additionally, Little was notified in the written agreement that
he was forfeiting his right to “use the power of the Court to call witnesses to testify
-2- Case No. 16-18-06
for [him].” Id. At the hearing, the trial court held the following pertinent discussion
with Little.
The Court: * * * Do you understand by pleading guilty you give up your right to a jury or court trial? At that trial, you have the right to be present, to be represented by counsel, and counsel at public expense if you cannot afford one?
The Defendant: Yes, Your Honor.
The Court: do you understand you give up your right to confront and have your attorney question the witnesses against you and you understand you do not have to call witnesses; however, if you needed to call them, you’re entitled to summon and have them present to testify on your behalf?
June 26, 2018 Tr. at 9-10. The trial court, following the dialogue with Little, found
the guilty “pleas to be knowingly, voluntarily, and intelligently given, and that
[Little] understood his Constitutional Rights as explained him.” Doc. 22 at 4. The
trial court then accepted the pleas of guilty to counts one and two of the indictment
and granted the State’s motion to dismiss counts three through twelve of the
indictment. Id. The trial court then ordered that a pre-sentence investigation (“PSI”)
be conducted. Id.
{¶3} On August 28, 2018, a sentencing hearing was held. Doc. 27. The PSI
revealed that Little had no adult criminal record, but had previously been
adjudicated as a delinquent child. The trial court ordered Little to serve a prison
term of four years on each count with the sentences to be served consecutively for
-3- Case No. 16-18-06
an aggregate sentence of eight years. Id. Little appeals from this judgment and on
appeal raises the following assignments of error.
First Assignment of Error
The trial court erred when in accepting a plea of guilty from [Little], the court failed to follow the mandates of Criminal Rule 11(C)(2) on the instruction of the defendant of [his] constitutional rights, thus [rendering] the plea invalid and precluding the court from accepting such plea and making a finding of guilty.
Second Assignment of Error
The trial court [erred] in imposing consecutive sentences upon [Little] when it based its determination that under [R.C. 2929.14(C)(4)(c) juvenile adjudications may be used to demonstrate that the offender has a history of criminal conduct.
{¶4} In the first assignment of error, Little claims that the trial court failed to
comply with the requirements of Criminal Rule 11(C)(2).
In felony cases the court may refuse to accept a plea of guilty * * *, and shall not accept a plea of guilty * * * without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty * * *, and that the court, upon acceptance of the plea may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the
-4- Case No. 16-18-06
rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
Crim.R. 11(C)(2).
{¶5} Little argues that the trial court failed to properly inform him of his right
to use compulsory process for obtaining witnesses in the defendant’s favor. As
indicated above, the trial court did inform Little that he had the right to summon
witnesses to testify on his behalf. This court has previously addressed this issue in
State v Welly, 3d Dist. Seneca No. 13-14-43, 2015-Ohio-2734. In Welly, the trial
court used the exact same language as was used in this case. Id. at ¶ 2. Welly argued
that the trial court’s statement that he was “entitled to summon witnesses” was not
sufficient to inform him of his right to compulsory process as required by Criminal
Rule 11(C)(2). Id. at ¶ 5. This court, relying upon the Ohio Supreme Court’s
holding in State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953, N.E.2d 826,
held that the terms “to summon” means to compel one’s appearance. Id. at ¶ 6.
“Thus, the use of the language summon witnesses does convey to the defendant that
he had the right to order witnesses to appear on his behalf” and complies with the
requirements of Criminal Rule 11(C)(2). Id. For this reason, the first assignment
of error is overruled.
-5- Case No. 16-18-06
{¶6} Little argues in the second assignment of error that the trial court erred
by considering his juvenile adjudications of delinquent when imposing consecutive
sentences. The imposition of consecutive sentences is governed by R.C.
2929.14(C)(4)
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[Cite as State v. Little, 2019-Ohio-745.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY
STATE OF OHIO, CASE NO. 16-18-06 PLAINTIFF-APPELLEE,
v.
JORDAN A. LITTLE, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court Trial Court No. 18-CR-0004
Judgment Affirmed
Date of Decision: March 4, 2019
APPEARANCES:
Howard A. Elliot for Appellant
Douglas Rowland for Appellee Case No. 16-18-06
WILLAMOWSKI, J.
{¶1} Defendant-appellant Jordan Little (“Little”) brings this appeal from the
judgment of the Court of Common Pleas of Wyandot County sentencing him to an
aggregate prison term of eight years. On appeal Little challenges the trial court’s
compliance with Criminal Rule 11 and the imposition of consecutive sentences. For
the reasons set forth below, the judgment is affirmed.
{¶2} On January 10, 2018, the Wyandot County Grand Jury indicted Little
on seven counts of Pandering Sexually Oriented Matter involving a Minor in
violation of R.C. 2907.322(A)(2), felonies of the second degree (counts 1-7), four
counts of Pandering Sexually Oriented Matter involving a Minor in violation of R.C.
2907.322(A)(5), felonies of the fourth degree (counts 8-11), and one count of Illegal
Use of a Minor in Nudity Oriented Material or Performance in violation of R.C.
2907.323(A)(5), a felony of the fourth degree (count 12). Doc. 1. On June 26, 2018,
a change of plea hearing was held. Doc. 22. At that time, Little agreed to enter a
plea of guilty to counts one and two and in exchange for the plea, the State agreed
to dismiss counts three through twelve. Doc. 21. In the written plea agreement,
Little was informed that he could be sentenced to basic prison terms of two to eight
years on each count. Id. Little also was informed that there was no sentence
recommendation. Id. Additionally, Little was notified in the written agreement that
he was forfeiting his right to “use the power of the Court to call witnesses to testify
-2- Case No. 16-18-06
for [him].” Id. At the hearing, the trial court held the following pertinent discussion
with Little.
The Court: * * * Do you understand by pleading guilty you give up your right to a jury or court trial? At that trial, you have the right to be present, to be represented by counsel, and counsel at public expense if you cannot afford one?
The Defendant: Yes, Your Honor.
The Court: do you understand you give up your right to confront and have your attorney question the witnesses against you and you understand you do not have to call witnesses; however, if you needed to call them, you’re entitled to summon and have them present to testify on your behalf?
June 26, 2018 Tr. at 9-10. The trial court, following the dialogue with Little, found
the guilty “pleas to be knowingly, voluntarily, and intelligently given, and that
[Little] understood his Constitutional Rights as explained him.” Doc. 22 at 4. The
trial court then accepted the pleas of guilty to counts one and two of the indictment
and granted the State’s motion to dismiss counts three through twelve of the
indictment. Id. The trial court then ordered that a pre-sentence investigation (“PSI”)
be conducted. Id.
{¶3} On August 28, 2018, a sentencing hearing was held. Doc. 27. The PSI
revealed that Little had no adult criminal record, but had previously been
adjudicated as a delinquent child. The trial court ordered Little to serve a prison
term of four years on each count with the sentences to be served consecutively for
-3- Case No. 16-18-06
an aggregate sentence of eight years. Id. Little appeals from this judgment and on
appeal raises the following assignments of error.
First Assignment of Error
The trial court erred when in accepting a plea of guilty from [Little], the court failed to follow the mandates of Criminal Rule 11(C)(2) on the instruction of the defendant of [his] constitutional rights, thus [rendering] the plea invalid and precluding the court from accepting such plea and making a finding of guilty.
Second Assignment of Error
The trial court [erred] in imposing consecutive sentences upon [Little] when it based its determination that under [R.C. 2929.14(C)(4)(c) juvenile adjudications may be used to demonstrate that the offender has a history of criminal conduct.
{¶4} In the first assignment of error, Little claims that the trial court failed to
comply with the requirements of Criminal Rule 11(C)(2).
In felony cases the court may refuse to accept a plea of guilty * * *, and shall not accept a plea of guilty * * * without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty * * *, and that the court, upon acceptance of the plea may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the
-4- Case No. 16-18-06
rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
Crim.R. 11(C)(2).
{¶5} Little argues that the trial court failed to properly inform him of his right
to use compulsory process for obtaining witnesses in the defendant’s favor. As
indicated above, the trial court did inform Little that he had the right to summon
witnesses to testify on his behalf. This court has previously addressed this issue in
State v Welly, 3d Dist. Seneca No. 13-14-43, 2015-Ohio-2734. In Welly, the trial
court used the exact same language as was used in this case. Id. at ¶ 2. Welly argued
that the trial court’s statement that he was “entitled to summon witnesses” was not
sufficient to inform him of his right to compulsory process as required by Criminal
Rule 11(C)(2). Id. at ¶ 5. This court, relying upon the Ohio Supreme Court’s
holding in State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953, N.E.2d 826,
held that the terms “to summon” means to compel one’s appearance. Id. at ¶ 6.
“Thus, the use of the language summon witnesses does convey to the defendant that
he had the right to order witnesses to appear on his behalf” and complies with the
requirements of Criminal Rule 11(C)(2). Id. For this reason, the first assignment
of error is overruled.
-5- Case No. 16-18-06
{¶6} Little argues in the second assignment of error that the trial court erred
by considering his juvenile adjudications of delinquent when imposing consecutive
sentences. The imposition of consecutive sentences is governed by R.C.
2929.14(C)(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:
(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 [R.C. 2929.16, 2929.17, or 2929.18] or was under post-release control for a prior offense.
(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.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
R.C. 2929.14(C)(4). “When imposing consecutive sentences, a trial court must state
the required findings as part of the sentencing hearing and by doing so it affords
notice to the offender and to defense counsel.” State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, ¶ 29, 16 N.E.3d 659.
-6- Case No. 16-18-06
{¶7} Little claims that since the juvenile adjudication was not a criminal
conviction, the trial court erred in considering it when it imposed consecutive
sentences. When exercising its discretion during felony sentencing, a trial court
must consider the statutory policies including those set forth in R.C. 2929.11 and
R.C. 2929.12. State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8-9.
Little argues that since the adjudication of delinquency is not a criminal conviction,
it should not be considered as such during sentencing. See State v. Hand, 149 Ohio
St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. This claim is a correct statement of the
law and an adjudication of delinquency may not be used to enhance the penalty for
a later crime. Id. However, the consideration of the juvenile adjudication in
fashioning an appropriate sentence is not only permitted, but is required by R.C.
2929.12(D-E). Thus, the consideration of this factor is not improper. Kerns at ¶14.
{¶8} Here, the trial court imposed four-year prison terms on each offense.
These sentences are within the statutory range. The trial court found that the
Defendants actions were not victimless as by viewing child pornography, he is
encouraging the “industry” which harms “countless children”, some of which were
babies and toddlers. Doc. 27 at 3. The trial court noted that “viewing child porn is
not a mistake, it is a deliberate act that harms the most vulnerable citizens.” Id. The
-7- Case No. 16-18-06
trial court then ordered that the sentences be served consecutively and made the
following findings in support of this sentence.1
Consecutive sentences are necessary to protect the public from future crime or to punish the offender. Consecutive sentences are not disproportionate to the seriousness of the Defendant’s conduct and to the danger the offender poses to the public. Further, Defendant’s history of criminal conduct – juvenile and adult, demonstrates that consecutive sentences are necessary to protect the public from future crime by the Defendant. 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.
Id. at 4. Thus, the trial court made all of the statutorily required findings. These
findings are supported by the record. Therefore, the trial court did not abuse its
discretion in requiring the sentences to be served consecutively. The second
assignment of error is overruled.
{¶9} Having found no prejudicial error in the particulars assigned and
argued, the judgment of the Wyandot County Court of Common Pleas is affirmed.
ZIMMERMAN, P.J. and SHAW, J., concur.
/hls
1 This court notes that the trial court could have imposed eight years on each of the offenses and then ordered them to be served concurrently with the same aggregate prison term being reached.
-8-