State v. Wild

2012 Ohio 4724

• Court: Ohio Court of Appeals
• Decided: October 11, 2012
• Docket: 98057
• Status: Published

Opinion

[Cite as State v. Wild, 2012-Ohio-4724.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98057

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JAMES WILD DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-552243

BEFORE: Boyle, J., Blackmon, A.J., and Stewart, J.

RELEASED AND JOURNALIZED: October 11, 2012 ATTORNEY FOR APPELLANT

Paul Mancino, Jr. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Gregory Mussman Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:

{¶1} Defendant-appellant, James Wild, appeals his sentence, raising the

following three assignments of error:

[I.] Defendant was denied due process of law when the court imposed a maximum sentence for a fourth degree felony.

[II.] Defendant was denied his rights under the Sixth Amendment when the court proceeded to sentence defendant based on facts not admitted by defendant at the time of his plea.

[III.] Defendant was denied due process of law when the court did not properly advise defendant concerning the length fo[r] a reporting requirement as a sexual offender.

{¶2} Finding no merit to the appeal, we affirm.

Procedural History and Facts

{¶3} In August 2011, Wild was indicted for two counts of rape and two counts of

sexual battery — all four counts carrying sexually violent predator specifications, and one

count of kidnapping with a sexual motivation specification. Pursuant to a plea

agreement, Wild subsequently pleaded guilty to an amended indictment on a single count

of gross sexual imposition, a fourth degree felony.

{¶4} According to the presentence investigation report, the victim — Wild’s

cousin — stated that she traveled to Cleveland from Florida after her father passed away

in July 2011. The victim stated that on July 5, 2011, she picked up her father’s ashes

and then hung out with Wild in the evening, drinking and reminiscing about “old times.”

She subsequently fell asleep and awoke to Wild penetrating her vagina. At the plea hearing, the prosecutor indicated that, despite the evidence in this case, the state was

willing to enter an agreement to a reduced count primarily because the victim expressed

her desire not to have to return to Cleveland for the trial.

{¶5} According to the presentence investigation report, Wild did not admit to

committing the offenses. Instead, Wild stated that he had been drinking and “does not

remember anything.”

{¶6} On February 28, 2012, the trial court imposed a maximum sentence of 18

months on the single count of gross sexual imposition. Prior to sentencing Wild,

however, the trial court considered the presentence investigation report and the victim

impact statement. The trial court then detailed on the record why the maximum sentence

was appropriate in this case. Specifically, the trial court highlighted the fact that Wild

committed the underlying act against his cousin, who was mourning the loss of her father.

The trial court further noted that Wild had previously committed an act of domestic

violence, which also occurred while he was drinking. And while the trial court

recognized that Wild was now seeking treatment for his drinking problem, the court noted

that such treatment was not sought until many months following the underlying crime.

{¶7} The court further informed Wild of his duties to register as a sex offender

and advised him of postrelease control.

{¶8} The next day, the trial court called Wild back to court in order to have him

sign the form that the judge had read at the sentencing hearing concerning his registration

requirements as a sex offender. At that time, the trial court also gave Wild’s defense counsel the opportunity to express an objection on the record that he had made in

chambers in the presence of the prosecutor following the sentencing hearing.

Specifically, Wild’s defense counsel objected to the trial court’s reference to the victim

impact statement at the sentencing hearing and the court’s failure to allow him to review

it ahead of time. Defense counsel then reiterated that he did not believe that Wild

deserved the maximum sentence, that sending him to prison for the maximum sentence

prevents Wild from supporting his children, and that the victim “exaggerated” a lot of the

complaints in her impact statement.

{¶9} Wild now appeals his sentence, raising three assignments of error.

Maximum Sentence

{¶10} In his first assignment of error, Wild argues that the trial court erred in

imposing the maximum sentence on a fourth degree felony. Relying on R.C.

2929.13(B)(1), Wild contends that the trial court was prohibited from imposing a prison

sentence and should have imposed a community controlled sanction. The statute

provides, in relevant part, as follows:

(B) (1) (a) 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, the court shall sentence the offender to a community control sanction of at least one year’s duration if all of the following apply:

(i) The offender previously has not been convicted of or pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for which sentence is being imposed.

(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree. (iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year’s duration that are available for persons sentenced by the court.

{¶11} Wild, however, fails to recognize that he was convicted of an “offense of violence.”

R.C. 2907.05, gross sexual imposition, is expressly included in the definition of “offense of violence.”

See R.C. 2901.01(A)(9). Further, Wild was also convicted of misdemeanor domestic violence — also

an offense of violence — that was committed within two years of the underlying offense in this case.

See id. Thus, the requirement to impose a community controlled sanction under R.C. 2929.13(B)(1)

does not apply in this case because Wild did not satisfy the three mandatory conditions.

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

Victim Impact Statement

{¶13} In his second assignment of error, Wild argues that the trial court should not

have considered the victim impact statement, i.e., the letter from the victim, in

determining his sentence. He contends that the trial court improperly relied on this

statement in reaching the conclusion that a maximum sentence was warranted. But R.C.

2929.19, which sets forth procedures for the sentencing hearing, expressly requires that a

trial court judge consider, among other things, “any victim impact statement made”

before imposing a sentence. R.C. 2929.19(B)(1). Similarly, R.C. 2947.051(A)

specifically states that “[t]he court, in accordance with sections 2929.13 and 2929.19 of the Revised Code, shall consider the victim impact statement in determining the sentence

to be imposed upon the offender.”

{¶14} To the extent that Wild is claiming that the trial court improperly relied on

facts in the victim impact statement that are false, there is absolutely no proof of this in

the record. Indeed, Wild’s counsel failed to identify any falsities in the impact statement

when given the chance to review it.

{¶15} Finally, as for Wild’s general attack on his maximum sentence, we find no

basis to conclude that the trial court erred in imposing a maximum sentence in this case.

A trial court’s sentence will not be disturbed on appeal absent a defendant’s showing by

clear and convincing evidence that the sentence is unsupported by the record or otherwise

contrary to law. State v. Elson, 3d Dist. No. 12-11-11, 2012-Ohio-2842, ¶ 8; R.C.

2953.08(G)(2). The appellate court “shall review the record, including the findings

underlying the sentence or modification given by the sentencing court. The appellate

court may increase, reduce, or otherwise modify a sentence.” Id.

{¶16} In reviewing a trial court’s sentence, we are guided by the principles that a

sentence imposed for a felony shall be reasonably calculated to achieve the two

overriding purposes of felony sentencing: (1) “to protect the public from future crime by

the offender and others,” and (2) “to punish the offender using the minimum sanctions

that the court determines accomplish those purposes.” R.C. 2929.11(A). The sentence

imposed shall also be “commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed

for similar crimes committed by similar offenders.” R.C. 2929.11(B).

{¶17} Here, the trial court imposed 18 months in prison on a fourth degree felony

sex offense — a sentence within the authorized range and, therefore, not contrary to law.

See R.C. 2929.14(A)(4). Based on this record, we find that the imposition of the

maximum sentence is supported by the record in this case and that the sentence is

consistent with the sentencing purposes provided in R.C. 2929.11.

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

Length of Registration

{¶19} In his final assignment of error, Wild appears to be attacking his guilty plea

on the grounds that he was never advised of the length of reporting requirements at the

time of his plea hearing. Wild’s argument has no merit. Even if the trial court failed to

notify Wild at the time of his plea that he would be subject to a 15-year verification

period as a Tier I offender, such failure does not negate the plea.

{¶20} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660

N.E.2d 450. We will not reverse such a determination if the trial court substantially

complied with the nonconstitutional requirements of Crim.R. 11(C)(2)(a), which includes

the maximum penalties. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163 (1977). “Substantial

compliance means that under the totality of the circumstances, the defendant subjectively

understands the implications of the plea and the rights he is waiving.” State v. Williams,

10th Dist. No. 10AP-1135, 2011-Ohio-6231, ¶ 36.

{¶21} Moreover, the failure to comply with nonconstitutional rights does not

invalidate a plea unless the defendant suffers prejudice. Williams at ¶ 36. “The test for

prejudice is ‘whether the plea would have otherwise been made.’” Id., quoting Nero at

108.

{¶22} We note that the Ohio Supreme Court has held that, based on the significant

changes to the statutory scheme governing sex offenders following the enactment of S.B.

10, R.C. Chapter 2950 is deemed punitive in nature and not remedial. State v. Williams,

129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16. Contrary to the state’s

assertion on appeal, this court has recently held that because the requirements of R.C.

Chapter 2950 are now punitive, “then they are no longer considered collateral

consequences of a conviction. Rather, they are part of the penalty for the offense and

must be addressed during a Crim.R. 11 colloquy.” State v. Creed, 8th Dist. No. 97317,

2012-Ohio-2627, ¶ 16, citing State v. Bush, 2d Dist. No. 10CA82, 2011-Ohio-5954, ¶ 20

(Fain, J., concurring).

{¶23} Here, the record reflects that the trial court informed Wild that he would be

classified as a Tier I sex offender and then detailed all of the reporting requirements.

The trial court, however, failed to inform Wild that as a Tier I offender, he was subject to a 15-year period of having to comply with the notification and registration requirements.

Despite this omission, we find that the trial court’s advisement prior to accepting Wild’s

plea substantially complies with Crim.R. 11(C)(2)(a). Notably, upon learning of the

reporting requirement at sentencing, Wild never objected nor moved to vacate his plea.

On appeal, he now claims that the trial court erred in not informing him of the length of

time for reporting. Wild, however, does not even allege, let alone provide any argument,

as to how the trial court’s omission prejudiced him.

{¶24} Accordingly, the final assignment of error is overruled.

{¶25} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE

PATRICIA ANN BLACKMON, A.J., and MELODY J. STEWART, J., CONCUR