State v. Peterson

2024 Ohio 5379

Opinion

[Cite as State v. Peterson, 2024-Ohio-5379.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2024 CA 00028 JACOB A. PETERSON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2023 CR 00369

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: November 12, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT BRIAN A. SMITH PROSECUTING ATTORNEY BRIAN A. SMITH LAW FIRM, LLC 20 South Second Street 123 South Miller Road, Suite 250 Newark, Ohio 43055 Fairlawn, Ohio 44333 Licking County, Case No. 2024 CA 00028 2

Wise, J.

{¶1} Appellant, Jacob A. Peterson, appeals from the November 16, 2023

judgment entry of the Licking County Court of Common Pleas convicting him of rape and

gross sexual imposition after he pleaded guilty. Plaintiff-appellee, the State of Ohio, did

not file a brief in this appeal.

FACTS AND PROCEDURAL HISTORY

Peterson pleads guilty

{¶2} The May, 2023 term of the Licking County Grand Jury indicted the appellant,

Jacob A. Peterson, on two counts of rape, a violation of R.C. 2907.02(A)(1)(b) [F1] and

two counts of gross sexual imposition, a violation of R.C. 2907.05(A)(4) [F3]. It was

alleged the victim was less than thirteen years of age.

{¶3} Peterson pleaded not guilty at his arraignment and the case proceeded

before the Licking County Common Pleas Court.

{¶4} On November 16, 2023, Peterson appeared before the trial court and

changed his pleas from not guilty to guilty to one count of rape and one count of gross

sexual imposition. (Tr. Plea, Sentencing at 14).

{¶5} The trial court, pursuant to Crim.R. 11, carefully explained the ramifications

of guilty pleas, including his right to a jury trial and right to confront witnesses. The trial

court explained that by pleading guilty, he severely limited his chances of any appeal

being successful. Tr. Plea and Sentencing at 7-9.

{¶6} The facts that led to the charges were stated by the state:

On May 24, 2023, A.G. filed a report with the Newark Police

Department on behalf of her four-year-old daughter, C.G. A.G. advised that Licking County, Case No. 2024 CA 00028 3

on the morning of May 24, 2023, she was getting her daughter ready for

day care. A.G. began speaking with her daughter about going to see her

babysitter, C.P., after day care, at which time C.G. expressed that she did

not want to go. When A.G. asked C.G. why she did not want to go to C.P.’s

house, C.G. disclosed that C.P.’s 18-year-old son, Defendant Jacob

Peterson, makes her play “the booger game.” When A.P. questioned C.G.

about “the booger game”, C.G. began to describe that it involves the

Defendant placing his penis inside of her mouth.

C.G. was subsequently taken to Kids’ Place and interviewed by a

Licking County Children’s Services worker. As C.G. began to describe “the

booger game” to the CPS worker it became apparent that “the booger

game” was C.G. performing oral sex on the Defendant.

C.G. described Jacob Peterson placing his penis inside of her mouth

and described the Defendant ejaculating into a towel. C.G. also disclosed

that the Defendant would spit on her back side and place his penis inside

her butt – in her buttocks.

Newark Police Department subsequently located the Defendant and

conducted an interview with the Defendant at the Newark Police station.

The Defendant admitted to having C.G. perform oral sex on him as part of

“the booger game” at least two to three times. The Defendant further

admitted to placing his penis in between C.G.’s buttocks, spitting on her

buttocks for lubrication, and moving the penis back and forth to ejaculate.

The Defendant estimated that he had done this around four to five times. Licking County, Case No. 2024 CA 00028 4

{¶7} Tr. Plea and Sentencing at 10-11.

{¶8} When asked if he agreed with those facts, Peterson stated “Yes Your

Honor.” Tr. Plea and Sentencing at 11.

{¶9} Peterson then pleaded guilty to the charges:

[COURT] Are you asking the Court to accept your guilty pleas

here today, Mr. Peterson?

[DEFENDANT] Yes, Your Honor.

[COURT] Are you changing your pleas to guilty because you

are, in fact guilty?

{¶10} Tr. Plea, Sentencing at 13-14. See also Admission of Guilt Nov. 16, 2023.

{¶11} The state dismissed the remaining counts of rape and gross sexual

imposition.

{¶12} The trial court accepted his plea and proceeded to sentencing.

Sentencing

{¶13} Peterson was sentenced to an agreed upon prison sentence of fifteen years

to life on the count of rape and a prison term of five years on the count of gross sexual

imposition to run consecutively for an aggregated prison term of twenty years to life.

{¶14} Peterson was sentenced to post-release control and declared a Tier III

sexual offender.

{¶15} The trial court found that consecutive sentences were necessary to protect

the public from future crime and that consecutive sentences were not disproportionate

to the seriousness of the offender’s conduct and to the danger the offender poses to the Licking County, Case No. 2024 CA 00028 5

public. The trial court also found the offender’s history of criminal conduct demonstrates

that consecutive sentences are necessary to protect the public from future crime by the

offender.

Anders appeal

{¶16} Following his conviction and sentence, appellate counsel was appointed

and this Court granted appellant leave to file a delayed appeal.

{¶17} Appellant’s counsel filed a brief on July 17, 2024 and moved this Court for

permission to withdraw as counsel for appellant on the grounds that the appeal is

frivolous citing Anders v. California, 386 U.S. 738, 739 (1987). Appellant’s counsel cited

one potential assignment of error, to wit: “Whether Appellant’s convictions on Count One

and Four were contrary to law because the trial court did not have subject matter

jurisdiction to convict and sentence Appellant, where appellant was not subject to the

juvenile bindover procedure pursuant to R.C. 2152.10, since the Indictment stated the

date of the purported offenses as ‘on or about the 1st day of August 2022,’ one day after

Appellant’s eighteenth birthday due to his stated date of birth of July 31, 2004, in violation

of Appellant’s right to Due Process under the Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Section 16 of the Ohio Constitution.

{¶18} Appellant’s counsel alleged that after reviewing the original court file,

sentencing entry, pleadings and the transcript of proceedings, he could find no error by

the trial court prejudicial to appellant’s rights which may be argued to this Court on

appeal. Licking County, Case No. 2024 CA 00028 6

{¶19} Appellant’s counsel alleged and the record reveals that he provided

Peterson a copy of an appellant’s brief containing the one potential assignment of error.

The record reveals no brief filed by appellant and no response from the state.

{¶20} This matter is now before this Court on the motion of counsel to withdraw

pursuant to Anders and an independent analysis of the appeal.

LAW AND ANALYSIS

{¶21} In Anders, the United States Supreme Court established five criteria which

must be met before a motion to withdraw may be granted:

(1) A showing appellant’s counsel thoroughly reviewed the

transcript and record in the case before determining the appeal to be

frivolous.

(2) A showing a motion to withdraw has been filed by appellant’s

counsel.

(3) The existence of a brief filed by appellant’s counsel raising

any potential assignments of error.

(4) A showing the appellant’s counsel provided to the appellant a

copy of said brief.

(5) A showing appellant’s counsel provided appellant adequate

opportunity to file a pro se brief raising any additional assignments of error

appellant believes the appellate court should address. Id. at 744.

{¶22} Upon a finding that these criteria have been met, Anders requires that the

court, not counsel, proceed to decide whether the case is wholly frivolous. If so, the

court may allow appellant’s counsel to withdraw and dismiss the appeal. Licking County, Case No. 2024 CA 00028 7

{¶23} If, however, the court finds any legal points, arguably on the merits, it must,

prior to decision, afford the indigent appellant the assistance of counsel to argue the

appeal. State v. Middaugh, 2003-Ohio-91, ¶¶ 4-9 (5th Dist.), citing Anders, supra; See

also Local App.R. 9 (G)(1).

{¶24} With that standard in mind, we review this appeal.

{¶25} First, we find that appellant’s counsel, through the merit brief filed and his

assertions, made a thorough review of the case. Second, we find that while appellant’s

counsel did not file a separate motion to withdraw, it made such a motion in his brief and

timely served appellant with the brief identifying one potential assignment of error.

Appellant has filed no brief or documents and the record indicates that he received a

copy of the brief and had an opportunity to respond with his own filings.

{¶26} We turn now to any potential assignments of error. Appellant’s counsel lists

the following potential assignment of error:

POTENTIAL ASSIGNMENT OF ERROR

{¶27} “I. WHETHER APPELLANT’S CONVICTION ON COUNTS ONE AND

FOUR WERE CONTRARY TO LAW, BECAUSE THE TRIAL COURT DID NOT HAVE

SUBJECT MATTER JURISDICTION TO CONVICT AND SENTENCE APPELLANT,

WHERE APPELLANT WAS NOT SUBJECT TO THE JUVENILE BINDOVER

PROCEDURE PURSUANT TO R.C. 2152.10, SINCE THE INDICTMENT STATED

THE DATE OF THE PURPORTED OFFENSES AS ‘ON OR ABOUT THE 1ST DAY OF

AUGUST 2022’ ONE DAY AFTER APPELLANT’S EIGHTEENTH BIRTHDAY DUE TO

HIS STATED DATE OF BIRTH OF JULY 31, 2004.” Licking County, Case No. 2024 CA 00028 8

{¶28} A guilty plea is a complete admission to the facts set forth in the indictment,

provided that the plea is voluntary, knowing and intelligent. State v. Colon, 2017-Ohio-

8478, ¶ 15 (8th Dist.).

{¶29} So, too, the plea was a negotiated plea and sentence. R.C. 2953.08(D)(1)

limits an appellate court’s ability to review an agreed upon sentence. “A sentence

imposed upon a defendant is not subject to review under this section if the sentence is

authorized by law, has been recommended jointly by the defendant and the prosecution

in the case, and is imposed by a sentencing judge.” State v. Holman, 2023-Ohio-716, ¶

10 (“Because Holman’s sentence was within the recommended sentencing range and

was authorized by law, it is not reviewable on appeal pursuant to R.C. 2953.08(D)(1).”)

{¶30} Accordingly, we turn to the transcripts and record of the plea hearing and

sentencing hearing. We review whether the trial court erred in accepting appellant’s

guilty plea and complied with Crim.R. 11. We next review the sentence appellant

received and whether it was within the penalties prescribed for felonies of rape and gross

sexual imposition involving a victim under the age of thirteen. Finally, we consider the

potential assignment of error suggested by appellant’s counsel.

{¶31} We find that appellant’s pleas of guilty were taken in accordance with

Crim.R. 11.

{¶32} The trial court carefully laid out the rights that Peterson waived by entering

a guilty plea, including the right to a jury trial and the right to subpoena witnesses on his

behalf. Peterson acknowledged that he was giving up those rights, was not under any

duress, and that he was satisfied with his trial counsel. Licking County, Case No. 2024 CA 00028 9

{¶33} We further find that the sentence of twenty years to life in prison was

reasonable, not contrary to law and within the sentencing parameters for the rape and

gross sexual imposition of a child under thirteen years of age. So too, the trial court

made the necessary findings to order consecutive sentences. R.C. 2929.14(E)(4).

{¶34} In his potential assignment of error, appellant’s counsel argues that the

conviction on rape and gross sexual imposition were contrary to law because the trial

court did not have subject matter jurisdiction to convict and sentence appellant where

the indictment stated the date of the offense as on or about the first day of August, 2022,

and appellant did not reach his eighteenth birthday until July 31, 2004.

{¶35} The implication of this potential assignment of error is that appellant may

have been age 17 when he committed one or more acts of criminal conduct alleged in

the indictment because the indictment stated on or about the first day of August, 2022.

{¶36} Appellant did not challenge the indictment or raise the issue of the potential

jurisdiction of the juvenile court. An appellate court will not consider any error which

counsel for a party could have called but did not call to the trial court’s attention at a time

when such error could have been avoided or corrected by the trial court. State v. Childs,

14 Ohio St.2d 56 (1968), paragraph three of the syllabus.

{¶37} Appellant never challenged that he was an adult and 18 or older when he

committed the crimes. Indeed, he agreed with the facts as recited at his plea and

sentencing hearing that he was the age of 18 when he committed the acts.

{¶38} Accordingly, we find there is no merit to the proposed assignment of error.

{¶39} After a full and complete examination of the record, including a transcript of

the proceedings below, we further find this appeal is wholly frivolous. The record, including the plea hearing and sentencing hearing is lacking any legal points arguable

on the merits.

{¶40} This Court grants the motion of appellant’s counsel to withdraw from the

case, dismisses the appeal, and affirms the conviction and sentence of the trial court.

By: Wise, J.

Delaney, P. J., and

Baldwin, J., concur.

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