author: WILLAMOWSKI, J.

text:
    IN RE: the ADOPTION OF S.S.
    [Michael E. Brunswick-Appellant]
    NO. 15-17-06
    Court of Appeals of Ohio, Third District, Van Wert County.
    Date of Decision: November 27, 2017
    Gregory A. Grimslid, Ada, for Appellant
    Thomas Luth, Celina, for Appellee
   WILLAMOWSKI, J.

{¶ 1} Father-appellant Michael E. Brunswick ("Michael") appeals the judgment of the Probate Division of the Court of Common Pleas of Van Wert County for finding that Michael's consent was not necessary for his daughter, SS, to be adopted by SS's mother's husband, Wesley A. Sweigart ("Sweigart"). On October 31, 2016, Sweigart submitted a petition to adopt SS that alleged Michael's consent was not necessary for this adoption, claiming that Michael had not had more than de minimis contact with SS for one year prior to the filing of this petition. For the reasons set forth below, the judgment of the lower court is reversed.

Facts and Procedural History

{¶ 2} SS is the daughter of Michael and Stephanie L. Hogenkamp ("Stephanie"). Doc. 1. SS has lived with her mother, Stephanie, in Van Wert County since May 1, 2015. Tr. 2-3. Throughout SS's childhood, Michael has paid child support pursuant to a court order that was issued in Mercer County. Doc. 9. However, no court order was issued that governed Michael's visitation rights. Tr. 3, 7. Rather, Michael worked out his schedule for visitation through verbal agreements with Stephanie. Tr. 4, 8. According to the testimony of both parties, Michael was able to visit SS regularly through the fall of 2015. Tr. 4. In 2015, however, Stephanie moved in with Wesley Sweigart ("Sweigart"), who is now her husband, and is the petitioner in this case seeking to adopt SS. Tr. 31. Doc. 1. Shortly after Stephanie moved in with Sweigart, Michael's pattern of visitation began to change. Tr. 4, 26. At this point, Stephanie's description of events begins to contradict Michael's description of events. Tr. 4, 27, 52. At trial, each party provided different reasons for why Michael's pattern of regular visitation was interrupted. Tr. 4, 27.

{¶ 3} When Michael testified, he began by explaining that he and Stephanie had no formal court order governing his visitation rights. Tr. 25-26. Initially, he and Stephanie had a verbal agreement that he could see SS "whenever [he] wanted to see her." Tr. 26. In 2014, however, Michael got a trucking job that required him to be gone for up to thirty days at a time. Tr. 26. While he had this job, he would take SS for the week each month in which he was not traveling for his job. Tr. 26. In 2015, he got a job where he worked daily in Waynesfield, Ohio. Tr. 26. During this time, he visited SS frequently during the week and on weekends as SS and Stephanie lived under two miles away from his house. Tr. 32-33. However, when Stephanie moved to Van Wert in May of 2015 to live with Sweigart, SS began to stay with Michael every other weekend. Tr. 26-27. He testified that it was harder to visit SS during the week since she lived in Van Wert and he lived in Celina. Tr. 32-33. Under this arrangement, he would get to pick up his daughter every other Friday and spend time with her over the weekend before dropping her off at Stephanie's house on Sunday evening. Tr. 26-27.

{¶ 4} This pattern of seeing SS every other weekend continued until the fall of 2015. Tr. 32. Michael testified that he had SS for the first weekend of October in 2015. He testified that he had SS for a weekend in November but did not get SS for a second weekend in November because his weekend fell close to the Thanksgiving holiday, and Stephanie had family engagements for SS that weekend. Tr. 26. Michael testified that he moved to Waynesfield, Ohio in early December. Tr. 29. Michael also testified that he had SS for a weekend in early December shortly after he moved to Waynesfield. Tr. 28.

{¶ 5} At this point, Michael's attorney introduced a picture of Michael with SS that had been uploaded onto Facebook on December 10, 2015. Sweigart's attorney pointed out that the date on the Facebook page did not indicate that this picture was taken on that date and could have been taken long before the date on which the picture was uploaded. Tr. 47-49. However, Michael explained that this picture was taken in the house he had moved into in December 2015 and demonstrated that SS had been with him after October 4, 2015. Tr. 35. Michael did not get SS for a second weekend in December because his next scheduled weekend to be with SS fell on Christmas, and Stephanie would not allow him to take SS over the holiday. Tr. 26.

{¶ 6} Michael then testified that the last time he had SS was the weekend of January 8-10, 2016. Tr. 27. Michael said that he was scheduled to get SS on the weekend of January 22-24, 2016. Tr. 26. However, on January 22, 2016, he received a text message from Stephanie that said he "could not have her [SS] until I got an attorney." Tr. 26. Michael subsequently sought legal representation, but this process was delayed by the fact that he had to save up money to afford an attorney. Tr. 27. He testified that he did not have the funds to retain an attorney after he paid for his move to Waynesfield, Ohio and Christmas presents. Tr. 27.

{¶ 7} In between January of 2016 and the hearing, Michael testified that he had some contact with SS. In May of 2016, he texted Stephanie on SS's birthday to see if Stephanie would allow him to talk to his daughter. Stephanie returned his text with a phone call, and Michael was allowed to speak to his daughter for five minutes on her birthday. Tr. 29-30. On Sweetest Day in 2016, Michael also sent a flower to SS at school. Tr. 33. Stephanie admitted during her testimony that SS did come home from school one day in 2016 with a flower and a stuffed animal on Sweetest Day. Tr. 8-9.

{¶ 8} By September 2016, Michael had obtained legal representation. Tr. 27-29. He testified that the process of getting legal representation was not completed until a payment plan was worked out with his attorney. Tr. 28. On September 30, 2016, Michael filed a motion for shared parenting in the Mercer County Juvenile Court. Tr. 31. This document also requested an order that would govern visitation going forward. Tr. 31. Specifically, Michael asked for the right to see his daughter every other weekend during the school year and to have his daughter every other week when school was out of session in the summer time. Tr. 31-32. During her testimony, Stephanie claimed that she did not receive notice of the Mercer County action prior to Sweigart filing to adopt SS. Tr. 15. However, a copy of the filing was introduced during the hearing that had a timestamp indicating that the motion had been filed on September 30, 2016. Tr. 32.

{¶ 9} When Stephanie testified at the hearing, she presented a different timeline from the one offered by Michael. Stephanie testified that the final contact that Michael had with SS was on October 4, 2015. Tr. 4. Stephanie also testified that the final time Michael contacted Stephanie was on the day he was supposed to get SS for his second weekend in October. Tr. 4. Michael texted Stephanie, saying, "[W]hen am I getting my daughter." Tr. 9. She responded by telling Michael that they "would talk when he had a lawyer." Tr. 10.

{¶ 10} Stephanie then clarified that comment by saying, "I didn't say I wouldn't speak to him. I just said that we weren't going to talk about it right that minute because he was just being completely rude to me by saying when am I getting my daughter. We had always referred to her as ours." Tr. 10. She admitted that she had the ability to dictate when Michael could see SS. Tr. 10, 11. She attempted to clarify her statement about Michael getting a lawyer, saying that this discussion meant that "[w]hen he got a lawyer * * * he and I would talk. I never said he couldn't have her [SS]." Tr. 11.

{¶ 11} On October 31, 2016-which was one month after Michael had filed a motion for shared parenting with the Mercer County Juvenile Court on September 30, 2016-Sweigart filed a petition to adopt SS. Doc. 1. Tr. 32. The petition claimed that Michael's consent to the adoption was not necessary, alleging that Michael had not had more than de minimis contact with SS for one year prior to the filing of Sweigart's petition for adoption. Doc. 1. The hearing on this matter was held on January 4, 2017. Doc. 9. On April 13, 2017, the trial court issued a judgment entry that determined Michael's consent was not necessary for the adoption of SS by Sweigart to proceed. Doc. 13. The judgment entry began with several initial findings. The trial court found that no allegation was made that Michael failed to provide child support, that SS received a flower from Michael on Sweetest Day in 2016, and that Stephanie texted Michael on January 22, 2016, saying that "he could not see the child until he had an attorney." Id. The trial judge noted that Michael and his girlfriend, Linessa Falor, testified that the last date on which SS stayed with Michael was January 10, 2016. Id. The trial judge also noted that Stephanie and her husband, Sweigart, testified that the last time SS stayed with Michael was October 4, 2015. Id.

{¶ 12} The trial court then addressed the two key issues that determined whether Michael's consent was necessary. First, the trial court found that Michael had not visited SS since October 4, 2015, determining that Stephanie's testimony was more credible. Id. Since the action for adoption was filed by Sweigart on October 31, 2016, the trial court thus determined that Michael failed to communicate with SS for one year prior to the filing of the adoption paperwork, making his consent unnecessary for the adoption to proceed. Id. The trial court characterized the Sweetest Day gift and birthday call to SS to be de minimis contact. Id. Second, the trial court found that the mother did not cause significant interference to Michael's ability to visit his daughter. Id. The trial court further stated that it did not consider Stephanie's "unusual request" that Michael get an attorney to be an obstacle that would justify Michael in not having more than de minimis contact with his daughter in between October 4, 2015 and October 31, 2016. Id.

{¶ 13} On May 12, 2017, Michael filed a notice of appeal. In his appellate brief, he raises the following four assignments of error:

First Assignment of Error
The trial court erred by not taking into account for its final decision that the Father-Appellant had been supporting the child.
Second Assignment of Error
The trial court erred in not holding that the filing of the motion by the appellant in the Mercer County Case was not in fact an attempt by the Appellant to have contact with S.S. within the year prior to Appellee's filing of his petition to adopt.
Third Assignment of Error
The trial court erred and abused its discretion in determining that the Father-Appellant did not have more than de-minimis contact with the minor child for more than a year preceding the filing of the Petition to Adopt by the Petitioner-Appellee.
Fourth Assignment of Error
The trial court erred in finding that the mother's interference with contact between Father-Appellant and child was not significant interference.

For the purposes of analytical clarity, we will consider the second and fourth assignments of error together. We will then consider the first and third assignments of error.

Second and Fourth Assignments of Error

{¶ 14} In his second assignment of error, Michael asserts that the trial court failed to consider the filing of his motion for shared parenting with the Mercer County Juvenile Court as an attempt to contact SS. He argues that the trial court erred in allowing the adoption process to proceed while another action, which was filed prior to the petition for adoption and directly addressed the parenting of SS, was pending in another court. Further, Michael contends that he was denied the ability to visit with SS and was, in filing this action, exercising his only option to regain the ability to have visitation with his daughter. Since this motion was filed within one year of his final visitation with SS, he believes that the trial court erred in concluding that the adoption could proceed without his consent.

{¶ 15} In his fourth assignment of error, Michael argues that the trial court erred in determining that Stephanie's interference in this case was not significant. He points to the fact that Stephanie controlled all access to SS as there was no court order in place that governed visitation. He then points to the fact that Stephanie conditioned future visitation with SS on Michael obtaining an attorney and to the fact that he complied with this condition, proceeding to file an action with the Mercer County Juvenile Court on September 30, 2016. In this argument, Michael also notes that Stephanie's testimony alleged that she told him to get an attorney in late October 2015, which terminated his visitation with SS, and that her husband, Sweigart, filed a petition for adoption just over one year after visitation was terminated. Michael argues that these factors, when considered together, show that Stephanie's interference was significant. We will consider the subject matter of both of these assignments of error in one analysis.

Legal Standard

{¶ 16} Under most circumstances, both of a minor's natural parents must provide written consent prior to the adoption of that minor. In re Adoption of K.C. , 3d Dist. Logan No. 8-14-03, 2014-Ohio-3985, 2014 WL 4555908, ¶ 20. However, R.C. 3107.07(A) provides the following exception to this general rule:

Consent to adoption is not required of any of the following:
(A) A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.

R.C. 3107.07(A). The application of R.C. 3107.07(A) requires a two-step analysis. See In re Adoption of M.B. , 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23.

The first step involves deciding a factual question-in this case, whether the parent willfully had failed to provide more than de minimis contact with the minor child. "A trial court has discretion to make these determinations, and in connection with the first step of the analysis, an appellate court applies an abuse-of-discretion standard when reviewing a probate court decision * * *." In the second step, if a probate court finds a failure to provide more than de minimis contact, the court then determines the issue of whether there is justifiable cause for the failure. A probate court's decision on whether justifiable cause exists will not be disturbed on appeal unless the determination is against the manifest weight of the evidence.

(Citations omitted.) K.C. at ¶ 23, citing In re Adoption of Masa , 23 Ohio St.3d 163, 492 N.E.2d 140 (1986), paragraph two of the syllabus and M.B. at ¶ 23-26.

{¶ 17} "Significant interference, or significant discouragement, in the communication between the non-custodial parent and the child by the custodial parent establishes justifiable cause for the non-custodial parent's failure to communicate with the child." In re J.D.T. , 2012-Ohio-4537, 978 N.E.2d 602, ¶ 25 (7th Dist.), citing In re Adoption of Holcomb , 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985). The language of R.C. 3107.07"indicates that the legislature intended to adopt an objective test for analyzing failure of communication '* * * against which probate courts might measure the degree to which a parent must have voluntarily abandoned his parental responsibility as a condition precedent to his having forfeited his parental rights.' " Holcomb at 366, 481 N.E.2d 613, quoting In re Adoption of Anthony , 5 Ohio App.3d 60, 62, 449 N.E.2d 511 (1982).

{¶ 18} "[T]he right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law." Masa at 164, 492 N.E.2d 140, citing Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). "Few consequences of judicial action are so grave as the severance of natural family ties." In re Adoption of P.A.C. , 126 Ohio St.3d 236, 2010-Ohio-3351, 933 N.E.2d 236, ¶ 6, quoting Santosky at 787, 102 S.Ct. 1388 (Rehnquist, J., dissenting). In applying the provisions of R.C. 3107.07(A), "we are properly obliged to strictly construe this language to protect the interests of the non-consenting parent who may be subjected to the forfeiture or abandonment of his or her parental rights." Holcomb at 366, 481 N.E.2d 613, citing In re Adoption of Peters , 113 Ohio App. 173, 177 N.E.2d 541 (1961) ; In re Schoeppner , 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976).

Legal Analysis

{¶ 19} In this case, several factors lead us to the conclusion that the trial court erred in determining that Michael's consent was not necessary for the adoption of SS to proceed. We begin our analysis by noting that the Mercer County Juvenile Court issued a child support order but did not issue an order governing visitation. In the absence of a court order, the visitation rights of the noncustodial parent are left entirely in the hands of the parties. Further, under such an arrangement, the custodial parent will necessarily have a large measure of control over the visitation rights of the noncustodial parent. Since this arrangement leaves the custodial parent with wide latitude to determine the rights of the noncustodial parent, a similar degree of latitude should be recognized for the noncustodial parent if any conditions are imposed on visitation by the custodial parent. In such circumstances, the trial court should consider whether evidence was presented that shows that the noncustodial parent made efforts to comply with the condition that was imposed by the custodial parent on visitation. In this case, the trial court did not consider any of these issues as it determined whether Michael had communicated with SS in the year leading up to the filing of Sweigart's petition for adoption. We proceed now to address these issues.

{¶ 20} In this case, according to the testimony of both parties, Stephanie and Michael were able to cooperate in the absence of an order governing visitation until shortly after Stephanie moved to Van Wert to live with Sweigart in May of 2015. Tr. 3-4, 26. After this point, the testimony of each party provides a different version of events. Sweigart and Stephanie allege that Michael did not engage in more than de minimis contact with SS for one year prior to the filing of the petition for adoption on October 31, 2016. Tr. 16, 21. Stephanie testified that the last time Michael was with SS was on October 4, 2015. Tr. 4. Michael, on the other hand, testified that the last time he had been with SS was on January 10, 2016. Tr. 26.

{¶ 21} Both parties testified that Stephanie told Michael he needed to obtain legal representation before his next visit with SS was scheduled. Tr. 9, 11, 29. While each party provided different dates for Michael's last visit with SS, both parties, in their testimony, stated that Stephanie instructed Michael to retain an attorney roughly two weeks after his last visit with SS, making this an undisputed fact. Tr. 9-11, 26. Thus, if Michael's testimony is to be believed, this places the imposition of the condition on January 22, 2016. If Stephanie's testimony is to be believed, the imposition of the condition occurred on October 16, 2015.

{¶ 22} In its judgment entry, the trial court relied upon Stephanie's testimony and, as a consequence, found that the final date that Michael had SS was on October 4, 2015. Doc. 13. For some reason, however, the trial court also found that Stephanie told Michael to obtain legal representation on January 22, 2016. Id. If the date provided by Stephanie for the final visit Michael had with SS is correct and both parties agree that Stephanie told Michael to retain an attorney two weeks after Michael's final visit with SS, this would place the conversation between Michael and Stephanie concerning legal representation in October 2015. Thus, the determination that January 22, 2016 was the date on which Stephanie told Michael to get an attorney is inconsistent with the trial court's other findings.

{¶ 23} Since it is an undisputed fact that the conversation in which Stephanie told Michael to obtain legal representation occurred within two weeks of Michael's final visit with SS and the trial court determined that the final visit Michael had with SS was on October 4, 2015, we will proceed in our analysis with the understanding that Stephanie's condition was imposed on Michael on October 16, 2015. Tr. 11-12, 26. Under a proper legal analysis of the information contained in the record, the date on which this condition was imposed is no insignificant fact. Sweigart filed his petition for adoption one year and twenty-seven days after the final date Michael had been with SS-according to Stephanie's testimony-making a small change in events of great consequence in determining whether one full year had transpired since Michael's last communication with SS. Doc. 1.

{¶ 24} In its judgment entry, the trial court determined that Michael did not have more than de minimis contact with SS for over one year prior to Sweigart filing his petition to adopt SS. Doc. 13. From the judgment entry, it appears that the trial court treated October 4, 2015, as the point at which this one-year period began. Id. Pinpointing October 4, 2015, as the moment at which the one-year period began is an error. The testimony from both parties indicates that Stephanie told Michael that he needed to obtain legal representation on the day that he was supposed to pick up SS for the weekend. Tr. 11, 26. From the testimony, it is apparent that Michael intended to spend time with SS that weekend. Tr. 26. On October 16, 2015, Stephanie, according to her testimony, prohibited Michael from seeing his daughter, defeating his attempt to make contact with SS. Tr. 11-12. Michael attempted to make contact with SS on this date, but Stephanie's interference frustrated his efforts. For this reason, the twelve days in between October 4, 2015, and October 16, 2015, should not count against Michael.

{¶ 25} Further, the manner in which Michael's attempt to make contact with SS was frustrated is of significance. Stephanie-the custodial parent-told Michael that he would need to obtain legal counsel in order to schedule another visit with his daughter. Tr. 11-12, 26. In making this pronouncement, Stephanie imposed a condition on Michael's right to visit with his daughter. It is highly questionable whether Stephanie had any basis for unilaterally and arbitrarily imposing such a condition upon Michael for visitation under the law. Nevertheless, in the absence of a court order governing visitation, Stephanie, as the custodial parent, had the defacto ability to control Michael's ability to see SS. In this context, it is clear that Stephanie was not merely telling Michael to find an attorney but was effectively telling Michael that some form of litigation would be necessary for him to see his daughter again.

{¶ 26} Even the trial court characterized Stephanie's condition as an "unusual request." Doc. 13. However, the trial court, in its analysis, did not consider the implications of this "unusual request." In order to see his daughter, Stephanie was going to require Michael to retain an attorney to pursue some form of legal action. This is a time consuming process for Michael to undertake merely to see his daughter. It appears that Michael would have had to find and retain an attorney, confer with his counsel, file the necessary paperwork, and go through the process of obtaining a visitation order from a trial court.

{¶ 27} If Stephanie had the latitude to impose such an "unusual request" unilaterally, the trial court should have allowed Michael the latitude that was necessary to comply with this condition and secure for himself the ability to see his daughter. Since he was not able to see his daughter until he complied with this condition, the time in which he was not communicating with his daughter in the immediate aftermath of this condition being imposed should not be counted against Michael. Better stated, Michael should have been given a reasonable amount of time to comply with this condition given the nature of Stephanie's request.

{¶ 28} Given these circumstances, the trial court should not have used October 4, 2015, or October 16, 2015, as the date at which the one-year time period began to accumulate against Michael. Instead, the trial court should have given Michael a reasonable amount of time from the date on which Stephanie unilaterally imposed a condition on his visitation rights-which was October 16, 2015-to comply with that condition. We need not define a reasonable amount of time in this case because Michael could not have fully complied with Stephanie's condition by October 31, 2015.

{¶ 29} Further, evidence was admitted before the trial court that showed Michael complied with the condition that Stephanie imposed. On September 30, 2016, Michael filed an action with the Mercer County Juvenile Court. Tr. 14, 32. This motion was filed within one year of October 4, 2015-which is the last date on which Michael was found to have been with SS-one year of October 16, 2015-which is the date on which Stephanie told Michael to get legal counsel-and within one year of an appropriate deadline that accounts for the reasonable amount of time Michael should have been given to comply with Stephanie's unilaterally imposed condition. In filing this motion with the Mercer County Juvenile Court, Michael was using the only recourse Stephanie left to him after she imposed the October 16, 2015, condition on his visitation with SS, taking the necessary steps to make contact with his daughter. Since this action is what Stephanie told Michael to do in order to make contact with SS, this action should be considered an attempt by Michael to make contact with SS.

{¶ 30} In this motion, he was also requesting more responsibility over the care of his daughter-in the form of a shared parenting plan-in addition to a court order that would protect his visitation rights. Thus, the subject matter of Michael's motion was the long term care and custody of SS. Since an active case on SS's long term care and custody was pending in another court, the trial court should not have considered the petition to adopt SS let alone allow the adoption to proceed without Michael's consent. The subject of the case in the Mercer County Juvenile Court is Michael's rights as a parent. In this case, the trial court terminated Michael's parental rights while another court was actively exercising jurisdiction over issues that directly addressed Michael's parental rights and responsibilities with respect to SS.

{¶ 31} Probate courts have exclusive jurisdiction over the adoption of children. In re Adoption of Pushcar , 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, ¶ 9, citing State ex rel. Portage Cty. Welfare Dept. v. Summers , 38 Ohio St.2d 144, 311 N.E.2d 6 (1974), paragraph two of the syllabus. A probate court may exercise its jurisdiction over an adoption proceeding while a juvenile court has continuing jurisdiction over that matter. In re Adoption of M.S.A. , 3d Dist. Mercer No. 10-17-01, 2017-Ohio-5771, 2017 WL 2929360, ¶ 16-18 ; In re Adoption of Joshua Tai T. , 6th Dist. Ottawa No. OT-07-055, 2008-Ohio-2733, 2008 WL 2315901, ¶ 37 ; In re Hitchcock , 120 Ohio App.3d 88, 103-104, 696 N.E.2d 1090, 1099 (8th Dist.1996) ; In re R.N.L.O. , 12th Dist. Warren No. CA2007-04-049, 2007-Ohio-4215, 2007 WL 2350987, ¶ 21.

{¶ 32} However, the Supreme Court of Ohio has held to "the bedrock proposition that once a court of competent jurisdiction has begun the task of deciding the long-term fate of a child, all other courts are to refrain from exercising jurisdiction over that matter." Pushcar at ¶ 10, quoting In re Adoption of Asente , 90 Ohio St.3d 91, 92, 734 N.E.2d 1224 (2000). Thus, "when an issue concerning the parenting of a minor child is pending in the juvenile court, a probate court must refrain from proceeding with the adoption of that child." Id. This applies "to all parenting issues pending in juvenile court." In re Adoption of G.B. , 3d Dist. Seneca No. 13-10-01, 2010-Ohio-5059, 2010 WL 4055551, ¶ 16, citing Pushcar and P.A.C. , supra .

{¶ 33} Michael filed his motion for shared parenting in the juvenile court that had issued the child support order governing SS and the parties to this action. Tr. 32. This action was in process by the time that Sweigart filed his petition to adopt SS on October 31, 2016. Doc. 1. Since the Mercer County Juvenile court was already exercising jurisdiction over this matter, the Probate Division of the Van Wert County Court of Common Pleas should have refrained from allowing the petition to adopt SS to proceed without Michael's consent. Stephanie claims that she did not receive notice of this action prior to Sweigart filing his petition for adoption. Tr. 15. However, whether she had notice of this action does not alter the fact that Michael was complying with the condition she imposed on him and was attempting to see his daughter. The important fact is that the trial court did have notice that there was an active case pending in another court that addressed the long term care and custody of SS. Tr. 32. This fact-and the other factors mentioned in this analysis-have brought us to the conclusion that the trial court erred in finding that the adoption of SS could proceed without Michael's consent. For these reasons, his second and fourth assignments of error are sustained.

First and Third Assignments of Error

{¶ 34} The resolution of the second and fourth assignments of error in this case make the issues raised in the first and third assignments of error moot. For this reason, this Court declines to address the merits of these arguments pursuant to App.R. 12(A)(1)(c).

Conclusion

{¶ 35} Having found error prejudicial to the appellant in the particulars assigned and argued, the judgment of the Probate Division of the Court of Common Pleas of Van Wert County is reversed.

Judgment Reversed And Cause Remanded

ZIMMERMAN and SHAW, J.J., concur.

      Stephanie's last name was Hogenkamp at the time of SS's birth. She has since married Wesley Sweigart and, having taken his surname, uses the name Stephanie Sweigart. Doc. 1. Tr. 2.

      The action for shared parenting was filed on September 30, 2016. Michael's final visitation date with SS, according to Stephanie, was October 4, 2015. According to Michael, his final visitation date with SS was January 10, 2016. Thus, the filing of this action for shared parenting in Mercer County was done within one year of both dates.

      In 2015, the understanding that Michael and Stephanie had was that Michael would get SS every other weekend. In this routine, Michael would pick up SS on the Friday evening of the weekend he was scheduled to have SS and would drop SS off at Stephanie's house on the following Sunday evening around 6:00 p.m. In his testimony, Michael stated that he had SS for the last time on the weekend of January 8-10. Stephanie testified that Michael had SS the last time on the weekend of October 2-4. Both parties, however, testified that Stephanie told Michael to obtain legal representation on the Friday he was going to pick up SS for his next scheduled appointment. Thus, this condition was not imposed two weeks from the last date on which he saw SS, but two weeks from date he picked SS up for his final weekend with her. If Stephanie's testimony is to be believed, this places this conversation on October 16, 2015, which is two weeks from the date on which she said Michael picked up SS for his last visit. If Michael's testimony is to be believed, this places the date of the conversation on January 22, 2016.

      State ex rel. Allen Cty. Children's Servs. Bd. v. Mercer Cty. Common Pleas Court, Probate Div. is factually distinguishable from the present case. 150 Ohio St.3d 230, 2016-Ohio-7382, 81 N.E.3d 380. This case addresses the rights of parents in the process of an adoption while Allen addresses a situation where third parties were contesting an adoption. Id.


source: Caselaw Access Project

license: Public Domain

text:
    William R. SMITH III, Plaintiff-Appellant, v. Steve SUMMERVILLE et al., Defendants-Appellees.
    NO. 17 MA 0015
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: November 30, 2017
    Atty. Cherie H. Howard, P.O. Box 357, Youngstown, Ohio 44501, For Plaintiff-Appellant.
    Atty. James S. Gentile, The Liberty Building, 42 N. Phelps St., Youngstown, Ohio 44503, For Defendants-Appellees.
   JUDGES: Hon. Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary DeGenaro

OPINION

ROBB, P.J.

{¶ 1} Plaintiff-Appellant William R. Smith, III appeals the decision of Mahoning County Common Pleas entering judgment for Defendants-Appellees Steve and Selina Summerville, individually and doing business as Faith Automotive, following a bench trial. Two issues are raised in this appeal. The first issue is whether the trial court erred in granting Appellees' motion to amend their answer after it had previously determined the motion was "overruled as moot." The second issue is whether the trial court erred in failing to grant summary judgment for Appellant. For the reasons expressed below, both arguments lack merit. The trial court's decisions are affirmed.

Statement of the Facts

{¶ 2} Appellant was the owner of a 1999 Chevy Silverado K 150 truck. In either July 2012 or September 2012, Appellant took the truck to Faith Automotive to get the brakes repaired; Appellant claims he took the truck to Faith Automotive in September 2012, while Appellees claim it was July 2012. After looking at the vehicle, Appellee Steve told Appellant it would cost between $500 and $1,000 to repair the brakes. Appellant told Appellees he did not want the vehicle repaired and would have it towed. The vehicle was not removed. This resulted in Appellees sending Appellant two letters, one in August 2012 and one in October 2012, asking him to have the vehicle removed and informing him of the cost of storage fees, which were $25 per day. The August 16, 2012 letter indicated the storage fees, as of that date, totaled $875. The October 2, 2012 letter indicated the storage fees, as of that date, totaled $2,025. The vehicle was not removed, and in November 2012 Appellee applied for a salvage certificate of title. Appellees received $900 from 422 Auto Wrecking for the vehicle.

Statement of the Case

{¶ 3} As a result of the above, Appellant filed a complaint against Appellees alleging violation of the consumer sales practices act and conversion. 6/12/13 Complaint. As to the consumer sales practices claim, Appellant asserted Appellees did not give a written estimate, there was no sign informing him of his right to a written estimate, he was not advised that if he did not authorize completion of the repairs there would be a storage fee, and the estimate for the repairs was substantially in excess of similar services. 6/12/13 Complaint. The conversion claim was dependent on the fact that Appellees refused to return the vehicle until the storage fees were paid. 6/12/13 Complaint.

{¶ 4} This complaint, however, did not properly name Appellees; Appellant named Appellees "Steve Faith, doing business as Faith Automotive" and "Selina Faith, doing business as Faith Automotive." 6/12/13 Complaint. Appellees filed an answer asserting that they were improperly served and asked for the complaint to be dismissed. 7/11/13 Answer.

{¶ 5} After obtaining leave, Appellant filed an amended complaint and correctly named Appellees. 7/15/13 Motion for Leave; 7/16/13 J.E.; 7/16/13 Amended Complaint. The only substantive change to the complaint was correctly naming the parties. This amended complaint was served on Appellees by regular mail.

{¶ 6} In November 2013, Appellant moved for a default judgment because Appellees had not answered the amended complaint. 11/13/13 Motion. Appellees responded claiming no amended answer was due because the amended complaint was not properly served on Appellees. They asserted the trial court had not obtained personal jurisdiction over them, and thus, default judgment was not warranted. They asserted the filing of a motion for default judgment was a violation of Civ.R. 11 and asked for attorney fees and sanctions.

{¶ 7} The magistrate held a hearing on the matter. It found the amended complaint was required to be served by certified mail and thus, the court did not have personal jurisdiction over Appellees. It overruled the motion for default judgment, and the motion for sanctions and attorney fees. 1/15/14 Decision.

{¶ 8} Appellant and Appellees filed objections to the magistrate's decision. The trial court upheld the magistrate's decision to overrule the motion for default judgment. However, it reversed the magistrate's decision on sanctions and attorney fees finding they were warranted. The trial court directed the magistrate to hold a hearing on the amount of sanctions and attorney fees. 4/8/14 J.E.

{¶ 9} Prior to the hearing, Appellant appealed the decision. We dismissed the appeal for a lack of a final appealable order. 14 MA 0038 5/16/14 J.E.

{¶ 10} The hearing on the sanctions and fees was set for July 23, 2014. A week prior to that hearing, Appellees filed a motion to dismiss the action for failing to perfect service within one year of the filing of the complaint. 7/17/14 Motion to Dismiss. Appellant filed a response claiming he was not required to serve the amended complaint by certified mail. Appellant asked the court to reconsider its ruling on the motion for default judgment. 7/23/14 Response to Motion to Dismiss. The evidentiary hearing addressed the sanctions, fees, and the motion to dismiss.

{¶ 11} Following the hearing, Appellant filed a motion asking for a finding that the allegations set forth in paragraphs 15-28 of the complaint were admitted by operation of law. 7/30/14 Motion. Appellant claimed the answer failed to deny the allegations in paragraphs 15-28, and thus, it should be deemed Appellees admitted those allegations. 7/30/14 Motion. Those paragraphs alleged Appellant was orally told it would cost $1,000 to fix the truck, he was not given a written estimate, there were no signs about storage fees, and Appellant went to and called Faith Automotive numerous times but there was no one there and no one answered the phone. 6/12/13 Complaint. He admitted he received the October 2, 2012 letter telling him of the accumulated storage fees. 6/12/13 Complaint and 7/16/13 Amended Complaint.

{¶ 12} Appellees then filed a Motion to Amend its Answer. 8/21/14 Motion. This motion was an alternative to the motion to dismiss. Appellees asked for leave to amend the answer if the court did not dismiss the complaint. The amended answer was attached to the motion and included a denial of the facts in paragraphs 15-28 of the complaint. 8/21/14 Motion to Amend Answer. The original answer did not reference paragraphs 15-28 of the complaint.

{¶ 13} In response, Appellant filed a motion to strike the motion to amend the answer and a memorandum in opposition to the motion to amend the answer. 9/8/14 and 9/10/14 Motions.

{¶ 14} In October 2014, the magistrate dismissed the complaint with prejudice finding the complaint was not properly served on Appellees. It also determined Appellees were entitled to $962.50 in attorney fees. The magistrate stated the motion for a finding that the allegations were admitted, the motion to amend the answer, and the motion to strike and memorandum in opposition to the motion to amend answer were "overruled as moot." 10/22/14 Magistrate Decision.

{¶ 15} After reviewing Appellant's objections and Appellees' response to the objection, the trial court adopted the magistrate's decision in all respects. 1/9/15 J.E.

{¶ 16} Appellant appealed the trial court's decision raising four issues. Smith v. Summerville , 7th Dist. No. 15 MA 10, 2015-Ohio-4153, 2015 WL 5818862. He asserted the trial court erred in dismissing the lawsuit with prejudice, denying his motion for default judgment, finding sanctions and attorney fees were warranted, and awarding unreasonable and excessive attorney fees. Id. We held the court erred in dismissing the lawsuit and accordingly, reversed the decision and remanded the matter to the trial court for further proceedings. Id. at ¶ 22-30. As to the denying of the motion for default judgment, we affirmed the trial court's ruling. Id. at ¶ 31-36. Those two decisions resolved the third issue; attorney fees and sanctions were not warranted because Appellees were properly served and there was a basis for filing the motion for default judgment. Id. at ¶ 37-39. Accordingly, we reversed the award of attorney fees and sanctions. Id. That decision rendered the argument that attorney fees were unreasonable and excessive moot. Id. at ¶ 40.

{¶ 17} Following our decision, Appellant filed a motion for summary judgment. 1/13/16 Motion for Summary Judgment. Appellant asserted a consumer transaction occurred, Appellant was not given a written estimate, and there was no conspicuous sign indicating storage fees. He claimed the answer did not make any reference to paragraphs 15-28, and thus, Appellees admitted the allegations in those paragraphs. 1/13/16 Summary Judgment Motion. As stated above those paragraphs alleged Appellant was orally told it would cost $1,000 to fix the truck, he was not given a written estimate, there were no signs about storage fees, and Appellant called and went to Faith Automotive numerous times but no one answered the phone and there was no one at the business. 6/12/13 Complaint and 7/16/13 Amended Complaint.

{¶ 18} Approximately one week later the magistrate held a status hearing and issued a status hearing order. 1/21/16 J.E. Discovery was reopened, mediation was scheduled, Appellees were given a deadline for its summary judgment motion and opposition to summary judgment motion, and a final pre-trial was scheduled. 1/21/16 J.E.

{¶ 19} Appellees timely filed an opposition to summary judgment and their own motion for summary judgment. They asserted there was no consumer transaction because when Appellant was given the oral estimate he refused to have repairs performed on the vehicle. Thus, no written estimate was required. Furthermore, Appellees claimed there was a conspicuous sign regarding storage fees in the office, and in his deposition Appellant admitted he was in the office. 4/15/16 Motion in Opposition and Summary Judgment Motion. Appellant's deposition testimony and admitted exhibits and Appellee Steve's affidavit were used to support the motions.

{¶ 20} Appellant filed a reply and argued the allegations not addressed in the answer were deemed admitted by operation of law. 4/28/16 Reply.

{¶ 21} In reviewing the summary judgment motions, the magistrate determined that in light of our appellate decision three procedural motions had to be revisited. 6/10/16 J.E. Those were the motion for a finding that the allegations were admitted, the motion to amend the answer, and the motion to strike the motion to amend and the opposition to the motion to amend. 6/10/16 J.E. The magistrate stated those motions were overruled as moot, however, the appellate court decision rendered those motions no longer moot and they remained unresolved. 6/10/16 J.E. Thus, the magistrate sua sponte revisited those motions indicating it was a clerical oversight that they remained unresolved. 6/10/16 J.E. The magistrate then granted the motion to amend. 6/10/16 J.E. The motion for a finding that the allegations were admitted and the motion to strike were overruled. 6/10/16 J.E.

{¶ 22} Appellant moved to set aside that decision and Appellee filed a response to that motion. 6/14/16 Motion to Set Aside; 7/15/16 Response. The trial court overruled the Motion to Set Aside. 8/4/16 J.E.

{¶ 23} The magistrate then denied the parties' motions for summary judgment finding there were genuine issues of fact precluding summary judgment, such as whether a consumer transaction occurred and whether there were conspicuous signs about storage fees. 8/22/16 Magistrate Order. All parties objected to the decision. 9/9/16 Appellees' Objections; 9/12/16 Appellant's Objections. The trial court overruled the objections and adopted the magistrate's decision. 9/15/16 J.E.

{¶ 24} Following a bench trial, the magistrate entered judgment in favor of Appellees. 12/5/16 Magistrate Decision. Appellant objected and renewed his objection as to the overruling of his motion for summary judgment. 12/19/16 Objections. Following Appellee's response to the objections, the trial court adopted the magistrate's decision. 12/29/16 Response; 1/20/17 J.E.

{¶ 25} Appellant timely appeals raising two assignments of error.

First Assignment of Error

"The trial court erred in vacating its January 9, 2015 judgment entry sua sponte."

{¶ 26} Appellant argues the trial court abused its discretion in adopting the magistrate's decision to sua sponte vacate the January 9, 2015 judgment based on an alleged clerical error pursuant to Civ.R. 60(A). Appellant contends the January 9, 2015 order overruled Appellees' motion to file an amended answer. He asserts there is no clerical error in the judgment and judgment was not void.

{¶ 27} Appellant's argument is premised on the position that the motion to amend the answer was overruled. However, that is not an accurate statement of how the trial court disposed of the motion. In the January 9, 2015 judgment entry, the trial court granted Appellees' motion to dismiss the complaint because service of the amended complaint that correctly named Appellees was not properly served on the Appellees within one year. On the basis of that decision, the trial court overruled the motion to amend, along with other motions, as moot:

In light of the fact that the Magistrate has sustained the Motion to Dismiss filed on behalf of Defendants herein, the Plaintiff's Amended Motion for Finding that Allegations Set Forth in Paragraphs 15-28 of Plaintiff's Complaint are Admitted by Operation of Law, Defendants' Motion to Amend Answer and Plaintiff's Motion to Strike Motion to Amend Answer are overruled as moot.

1/9/15 J.E.

{¶ 28} Our court reversed the trial court's decision dismissing the complaint and remanded the case for further proceedings. Smith , 2015-Ohio-4153, 2015 WL 5818862. Our decision rendered the motions no longer moot. The magistrate indicated as such in its decision:

However, since the Appellate Court reversed the trial Court's dismissal of the Amended Complaint thus reinstating the same and remanding the matter for further proceedings, the foregoing procedural motions are no longer moot but remain unresolved. Although counsel for the parties have not requested that the Magistrate revisit these motions, it would be imprudent for the Magistrate to permit what amounts to clerical oversight in the record to remain unresolved.

6/10/16 J.E.

{¶ 29} The Magistrate's characterization of the effect of our decision is correct. Admittedly, we did not state in the opinion the issues were no longer moot and the trial court could render a decision on them. However, such a statement was not needed. Our action changed the trial court's judgment in a substantive way. Moot issues became justiciable. The trial court, sua sponte, had the authority to rule on the procedural issues that were no longer moot because of our decision on the substantive issue.

{¶ 30} There is a rule called the appellate mandate rule. This rule pertains to "the relationship between appellate and inferior courts, [and] is a jurisdictional bar on the inferior court's authority to reconsider issues that were expressly or impliedly decided in a previous appeal." Fritzgerald v. City of Cleveland Civ. Serv. Commission , 8th Dist. No. 104492, 2017-Ohio-7086, 2017 WL 3310943, ¶ 24, citing Phillips v. Houk , 587 Fed.App. 868, 871 (6th Cir.2014). The Eighth Appellate District further explained:

An appellate mandate works in two ways: it vests the lower court on remand with jurisdiction and it gives the lower court on remand the authority to render judgment consistent with the appellate court's judgment. Under the "mandate rule," a lower court must "carry the mandate of the upper court into execution and not consider the questions which the mandate laid to rest." Sprague v. Ticonic Natl. Bank (1939), 307 U.S. 161, 168, 59 S.Ct. 777 [83 L.Ed. 1184] ; see, also, State ex rel. Cordray v. Marshall , 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, at ¶ 32 * * *. The lower court may, however, rule on issues left open by the mandate. Id. But when the mandate leaves nothing left to decide, the lower court is bound to execute it. Id.

State v. Carlisle , 8th Dist. Cuyahoga No. 93266, 2010-Ohio-3407, 2010 WL 2857806, ¶ 16.

{¶ 31} There is no claim in this case that the trial court violated the mandate rule. However, the premise of the rule does indicate trial courts are permitted to rule on issues unresolved by our decision. Here, our decision made procedural motions that were moot, no longer moot. Thus, the trial court had the authority to rule on those issues even though it had previously determined those issues to be moot. Our ruling made the issues no longer moot and our remand for further proceedings gave the trial court authority to rule on unresolved issues.

{¶ 32} Appellant does cite this court to numerous cases where the trial court used Civ.R 60 to vacate a prior order and the appellate court determined such action was not permitted. Those cases are distinguishable from the matter at hand. Civ.R. 60 is used to vacate final judgments. Parker v. Allstate Property & Cas. Ins. Co. , 7th Dist. No. 12 BE 2, 2012-Ohio-6278, ¶ 32 (" Civ.R. 60(A) only permits a trial court to sua sponte change a prior final order, 'for corrections of clerical errors that do not make substantive changes in a judgment.' "). Generally, the decision to grant or deny a motion to amend an answer is not a final judgment. Supportive Sols., L.L.C. v. Electronic Classroom of Tomorrow , 137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490, ¶ 10. The trial court's decision to overrule the motion as moot did become final when the trial court granted the motion to dismiss. However, as stated above, our decision reversed the trial court's dismissal ruling and remanded the case for further proceedings. Accordingly, the decision to overrule the motion as moot was no longer final, and the trial court was permitted to reconsider that decision sua sponte. See First Place Bank v. Blythe , 7th Dist. No. 12 CO 27, 2013-Ohio-2550, 2013 WL 3179095, ¶ 18 (Trial court's denial of a motion for summary judgment is a nonfinal order and can be reconsidered by the trial court sua sponte at any time.). Thus, even though the stated basis for ruling on the motion to amend the answer was Civ.R. 60(A) to correct a clerical mistake, the trial court did not need to invoke Civ.R. 60 to rule on those no longer moot issues which were nonfinal orders. Furthermore, the cases cited by Appellant are factually distinguishable. None of those cases dealt with a situation like the one before us where an appellate court's reversal rendered procedural issues overruled as moot justiciable upon remand.

{¶ 33} For those reasons, this assignment of error lacks merit.

Second Assignment of Error

"The trial court erred in denying Plaintiff-Appellant's Motion for Summary Judgment."

{¶ 34} The argument raised in this assignment of error is premised on finding merit with the first assignment of error. Appellant argues the trial court's decision to allow the amended answer after overruling the motion must be reversed and when that decision is reversed then summary judgment must be granted in Appellant's favor; without the amended answer Appellees admitted by operation of law material facts favorable to Appellant. If those facts are admitted, Appellant is entitled to judgment as a matter of law.

{¶ 35} The first assignment of error does not have merit. Therefore, Appellant's second argument fails. This assignment of error is overruled.

Conclusion

{¶ 36} Both assignments of error are meritless. The trial court's decision is affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.


text:
    STATE of Ohio, Plaintiff-Appellee v. Bobby WALKUP, Defendant-Appellant
    No. 17AP0006
    Court of Appeals of Ohio, Fifth District, Morgan County.
    DATE OF JUDGMENT ENTRY: December 5, 2017
    MARK HOWDYSHELL, PROSECUTING ATTORNEY, 19 EAST MAIN STREET, MCCONNELSVILLE, OH 43756, For Plaintiff-Appellee
    BOBBY WALKUP, # 336-029, BOX 57, MARION, OH 43301, For Defendant-Appellant
   JUDGES: Hon. W. Scott Gwin, P.J., Hon. Wiliam B. Hoffman, J., Hon. Earle E. Wise

OPINION

Gwin, P.J.

{¶ 1} Appellant Bobby Walkup ["Walkup"] appeals from the May 1, 2017 Judgment Entry of the Morgan County Court of Common Pleas that denied his motion for shock probation.

Facts and Procedural History

{¶ 2} On January 11, 1996, the Morgan County Grand Jury indicted Walkup on one count of aggravated murder, in violation of R.C. 2703.01, with a firearm specification; one count of aggravated arson, in violation of R.C. 2909.02(A)(2) ; and one count of assault of a peace officer, in violation of R.C. 2903.11(A)(1). The aggravated murder and aggravated arson charges arose out of the shooting death of Walkup's wife, Ella Emmajean Walkup, and subsequent fire in their home on December 23, 1995. The assault charge involved Morgan County Deputy Sheriff Jerry Hallowell.

{¶ 3} The matter proceeded to trial on August 5, 1996. After hearing all the evidence and deliberations, the jury returned a verdict of not guilty of aggravated murder, but guilty of murder, the lesser-included offense, and the firearm specification; not guilty of aggravated arson; and guilty of assault. By Judgment Entry dated August 14, 1996, the trial court sentenced Walkup to a total term of incarceration of fifteen years to life with three years actual incarceration for the firearm specification. Walkup filed a timely notice of appeal to this Court. This Court affirmed Walkup's convictions and sentence. See , State v. Walkup, 5th Dist. Morgan No. CA 96 06, 1997 WL 973474(Dec. 24, 1997), [ Walkup I ].

{¶ 4} On March 29, 1999, Walkup filed a Petition to Vacate or Set Aside Judgment and/or Sentence pursuant to R.C. 2953.21 and 2953.23. See , State v. Walkup, 5th Dist. Morgan No. 99CA06, 2000 WL 1543(Dec. 21, 1999) [ Walkup II ]. The trial court denied Walkup's petition and this court affirmed the trial court's decision. Id.

{¶ 5} On November 10, 2016, Walkup filed a Motion for Shock Probation. The trial court denied the motion by Judgment Entry filed May 1, 2017.

Assignment of Error

{¶ 6} Walkup presents one assignment of error for our review,

{¶ 7} "I. "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN THE TRIAL COURT FAILED TO DETERMINE THE DEFENDANT [SIC.] MOTION FOR SHOCK PROBATION UNDER THE STATUTORY CRITERIA UNDER OHIO LAW R.C. 2929.201 IN VIOLATION OF THE DEFENDANT [SIC.] UNITED STATES CONSTITUTIONAL RIGHTS AMENDMENT 14 DUE PROCESS OF LAW."

Law and Analysis

{¶ 8} Shock probation was available to defendants who committed their crimes prior to July 1, 1996 pursuant to R.C. 2947.061. State v. Darby , 5th Dis., Richland No. 14-CA-80, 2015-Ohio-2076, 2015 WL 3473258, citing State v. Coffman , 91 Ohio St.3d 125, 126, 742 N.E.2d 644 (2001). The shock probation statue, R.C. 2947.061, was repealed and the current judicial release statute, R.C. 2929.201, became effective via Senate Bill 2 on July 1, 1996. State v. Moore, 7th Dist., Belmont, 2013-Ohio-4454, 999 N.E.2d 223. In 1995, the former shock probation statute R.C. 2947.061 stated,

(B) Subject to sections 2951.02 to 2951.09 of the Revised Code and notwithstanding the expiration of the term of court during which the defendant was sentenced, the trial court, upon the motion of the defendant, may suspend the further execution of the defendant's sentence and place the defendant on probation upon the terms that the court determines, if the defendant was sentenced for an aggravated felony of the first, second, or third degree, is not serving a term of actual incarceration, is confined in a state correctional institution, and files the motion at any time after serving six months in the custody of the department of rehabilitation and correction.

{¶ 9} R.C. 2929.201 as presently enacted provides,

Notwithstanding the time limitation for filing a motion under former section 2947.061 of the Revised Code, an offender whose offense was committed before July 1, 1996, and who otherwise satisfies the eligibility criteria for shock probation under that section as it existed immediately prior to July 1, 1996, may apply to the offender's sentencing court for shock probation under that section on or after September 15, 2014. Not more than one motion may be filed by an offender under this section. Division (C) of former section 2947.061 of the Revised Code does not apply to a motion filed under this section. A presentence investigation report is not required for shock probation to be granted by reason of this section.

Emphasis added. Walkup's committed his crimes on December 23, 1995. Walkup I at *1. Therefore, the 1995 version of R.C. 2947.061 controls his case.

Walkup is not eligible for shock probation.

{¶ 10} In 1995, R.C. 2951.02 criteria for probation; conditions of probation; community service work; suspension of sentence; conditions; effect of use of firearm; ignition interlock devices read, in pertinent part,

(F) An offender shall not be placed on probation, and shall not otherwise have his sentence of imprisonment suspended pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code when any of the following applies:
(1) The offense involved is aggravated murder or murder .
(2) The offender is a repeat offender or a dangerous offender, as defined in section 2929.01 of the Revised Code.
(3) The offense involved was not a violation of section 2923.12 of the Revised Code and was committed while the offender was armed with a firearm or dangerous ordnance, as defined in section 2923.11 of the Revised Code.
(4) The offense involved is a violation of section 2907.02 or 2907.12 of the Revised Code.
(5) The offender is not eligible for probation or shock probation pursuant to division (C) of section 2903.06 or 2903.07 of the Revised Code or is sentenced to a term of actual incarceration.
(6) The offense involved was a violation of section 2923.12 of the Revised Code, the weapon involved in the offense was a firearm or dangerous ordnance, as defined in section 2923.11 of the Revised Code, and the offense involved was committed aboard an aircraft or with purpose to carry a concealed firearm or dangerous ordnance, as defined in section 2923.11 of the Revised Code, aboard an aircraft.

Emphasis added. Walkup was convicted of murder with a firearm specification. Therefore, he is statutorily ineligible for shock probation.

The denial of a motion for shock probation is not a final, appealable order.

{¶ 11} Even if a party does not raise the issue, this court must address, sua sponte, whether there is a final appealable order ripe for review. State ex rel. White v. Cuyahoga Metro. Hous. Aut. , 79 Ohio St.3d 543, 544, 684 N.E.2d 72 (1997).

{¶ 12} Appellate courts have jurisdiction to review the final orders or judgments of lower courts within their appellate districts. Section 3(B) (2), Article IV, Ohio Constitution. If a lower court's order is not final, then an appellate court does not have jurisdiction to review the matter and the matter must be dismissed. General Acc. Ins. Co. v. Insurance of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266( 1989) ; Harris v. Conrad , 12th Dist. No. CA-2001-12 108, 2002-Ohio-3885, 2002 WL 1310633. For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and if applicable, Civ. R. 54(B). Denham v. New Carlisle , 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999) ; Ferraro v. B.F. Goodrich Co. , 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d 282. If an order is not final and appealable, an appellate court has no jurisdiction to review the matter and it must be dismissed.

{¶ 13} A motion denying shock probation is not a final, appealable order. State v. Coffman, 91 Ohio St.3d 125, 126, 742 N.E.2d 644 (2001). The Coffman court determined that an order arising out of an action instituted upon a motion brought under the former shock-probation statute, R.C. 2947.061, was an order made in a "special proceeding." Id. at 127, 742 N.E.2d 644. However, the court held that a defendant had no "substantial right" to shock probation under the definition of "substantial right" set forth in R.C. 2505.02. Id. at 127-128, 742 N.E.2d 644.

{¶ 14} In State v. Crossty, III, 1st Dist. Hamilton, 2016-Ohio-3265, 2016 WL 3126431, the Court of Appeals noted,

The new shock-probation statute, R.C. 2929.201, became effective on September 15, 2014, and its provisions apply only to those offenders who committed offenses before July 1, 1996. The statute essentially incorporates former R.C. 2947.061 and creates no legal right to shock probation. See State v. Schlosser, 2d Dist. Montgomery No. 26888, 2016-Ohio-731, 2016 WL 768774, ¶ 6 ; compare State v. Thompson , 147 Ohio St.3d 29, 2016-Ohio-2769, 59 N.E.3d 1264, ¶ 9 (holding that "an order determining whether an offender receives jail-time credit affects a substantial right * * * because receiving properly determined jail-time credit implicates an offender's liberty interest * * * and the right to jail-time credit is protected by at least three statutory provisions.").
Coffman is dispositive of our issue in this case, as the statutory definition of a substantial right has not changed, see R.C. 2505.02(A)(1), nor has the discretionary nature of shock probation. We determine, therefore, that "the denial of a motion for shock probation under R.C. 2929.201, like the denial of a motion under R.C. 2947.061, is not a final appealable order." Schlosser at ¶ 6.

Crossty, III at 2016-Ohio-3265, 2016 WL 3126431, ¶ 11 ; Accord, State v. Mack, 10th Dist. Franklin No. 16AP-680, 2017-Ohio-7417, 2017 WL 3774830, ¶ 26.

Conclusion

{¶ 15} Accordingly, this Court is without jurisdiction to review the May 1, 2017 Judgment Entry of the Morgan County Court of Common Pleas overruling Walkup's motion for shock probation.

{¶ 16} Therefore, we dismiss this appeal.

{¶ 17} Appeal dismissed.

{¶ 18} IT IS SO ORDERED.

Hoffman, J., and

Wise, Earle, J., concur


author: Mock, Presiding Judge.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Chris WILLIAMS, Defendant-Appellant.
    NO. C-160336
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: December 8, 2017
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Timothy J. McKenna, Cincinnati, for Defendant-Appellant.
   Mock, Presiding Judge.

{¶ 1} Defendant-appellant Chris Williams was convicted of raping two minors under the age of ten. He was sentenced to life in prison on each count, with the sentences to be served consecutively. Williams now appeals, raising nine assignments of error.

Children's Disclosure of Abuse by Williams Results in Convictions

{¶ 2} The victims' mother was in a relationship with Williams over a period of several years until Williams left to live with his mother and the victims' mother went to live with her parents. The couple had three children, N.W., M.W., and a third child not at issue in this case. While Williams had no custody rights to the children, had not established his paternity, and had not provided consistent support, he did not deny that the children were his. The children would occasionally have overnight visits with Williams at his mother's home.

{¶ 3} N.W. and M.W. separately informed their mother that Williams had touched them inappropriately. M.W. told her mother that Williams had touched her "on her butt." When her mother asked her to point to where he had touched her, M.W. pointed to her vagina. She said he touched her underneath her panties while Williams and her sisters had been in bed together sleeping. M.W.'s mother did not report this incident to anyone else. Six months later, N.W. reported that Williams had done the same thing to her. At that point, the girls' mother contacted the Cincinnati Police Department.

{¶ 4} The mother took the girls to the Mayerson Center to be interviewed "so they could advise me on what treatment the girls need." Both reported that Williams had digitally penetrated their vaginas.

{¶ 5} During the course of their investigation, detectives interviewed Williams. Williams denied any inappropriate behavior. Williams admitted that he would sometimes "examine" the girls' private areas to determine if they had been abused by others. He would have the girls remove their clothing and spread their legs so he could examine them. He told the detectives that he did this under the supervision of his mother. When the interview concluded, but while Williams was still in the police station, one of the detectives called Williams's mother. She denied anything like that had occurred, and she said that she would have called the girls' mother if it had. Williams's mother called back 45 minutes later and contradicted her prior statements, telling the detective that such examinations had occurred under her supervision.

{¶ 6} At trial, the girls' mother, N.W., M.W., the Mayerson social worker, and a Cincinnati Police detective who investigated the case testified. M.W., who was nine years old when she testified, said that Williams had touched her in her "bad spot" with his finger on more than one occasion, but claimed not to remember the details such as whether Williams's finger penetrated her vagina. N.W., who was ten years old when she testified, said that Williams had inserted his finger into her vagina. She said that she told M.W. what happened, and that M.W. had confided that it had happened to her as well and told her that she should tell their mother. The social worker from the Mayerson Center testified that both girls had reported to her that Williams had digitally penetrated them.

{¶ 7} Williams testified at trial and maintained that he had not touched his daughters inappropriately and that they were not telling the truth. He testified that he did not sleep in the same bed as the girls when they spent the night. Williams's cousin and girlfriend also testified to the sleeping arrangements. His mother testified about the sleeping arrangements, and also testified about the examinations that Williams said he performed. She claimed that she had been sick and was sleeping when the detective initially called, and did not understand what the detective was asking about. She said that when she woke up and thought about it, she called the detective back to correct her misstatements.

{¶ 8} The jury found Williams guilty on two counts of rape, and the trial court sentenced him to two consecutive life sentences.

Admission of Mayerson Center Interview Recording

{¶ 9} In his first assignment of error, Williams argues that the trial court erred when it played the video recording of the interviews of N.W. and M.W. with the social worker from the Mayerson Center. Williams first argues that the interviews were testimonial as that term is defined in Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We conclude that they were not.

{¶ 10} The Sixth Amendment to the United States Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him[.]" Thus the Confrontation Clause bars the "testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." Crawford at 53-54, 124 S.Ct. 1354. But Crawford does not apply if the statements are not testimonial. State v. Muttart , 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 59.

{¶ 11} Statements made to medical personnel for the purpose of diagnosis or treatment are not testimonial under Crawford "because they are not even remotely related to the evils that the Confrontation Clause was designed to avoid." Muttart at ¶ 63. In determining whether a child's statements were made for the purpose of medical diagnosis or treatment, the factors to be examined include (1) the nature of the questioning-whether the interviewer asked leading or suggestive questions; (2) whether the child had a reason to lie; (3) whether the child understood the need to tell the truth; (4) the age of the child at the time the statements were made; and (5) whether the child's statements were consistent. State v. Lukacs , 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 7 (1st Dist.).

{¶ 12} In this case, the children's mother testified that she took the girls to the Mayerson Center "so they could advise me on what treatment the girls need." During the interview, the social worker did not use leading or suggestive questions. The children did not have a reason to lie, there was no evidence that the children had been coached, and the record demonstrates that they understood the importance of telling the truth. The children were both school-aged and gave accounts that were consistent with what they had reported to their mother and with how they testified at trial, except that M.W. claimed she could not recall if Williams actually penetrated her vagina with his finger. We conclude that the statements were made for the purpose of medical diagnosis and treatment, and the trial court did not err in admitting them. See State v. Ridder , 1st Dist. Hamilton No. C-150460, 2016-Ohio-5195, 2016 WL 4140851, ¶ 9. Therefore they were not testimonial, and Crawford does not apply.

{¶ 13} But even if the statements had been testimonial, Williams's right to confrontation would not have been violated because both children testified at trial. The Crawford court noted that

when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. It is therefore irrelevant that the reliability of some out-of-court statements " 'cannot be replicated, even if the declarant testifies to the same matters in court.' " The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

(Citations omitted.) Crawford at fn. 9 ; see Lukacs at ¶ 15 (holding that the Confrontation Clause was not implicated when the child-victim testified at trial).

{¶ 14} So, having established that admission of the video recording does not violate the Confrontation Clause, the issue remains as to whether the children's statements in the video were hearsay to which no exception applies. Evid.R. 801(C) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Generally, hearsay statements are not admissible. See Evid.R. 802. But there are exceptions to that rule. In particular, Evid.R. 803(4) permits the admission of "[s]tatements made for the purpose of medical diagnosis and treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception of general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."

{¶ 15} In this case, we have determined that the statements were made to the social worker for the purpose of medical diagnosis or treatment. Therefore, while the statements were hearsay, they were admissible under the exception contained in Evid.R. 803(4). We overrule Williams's first assignment of error.

Admission of Mother's Account of What Children Reported Was Not Prejudicial

{¶ 16} In the second assignment of error, Williams claims that the trial court erred when it allowed the children's mother to testify as to what they told her about what had happened. The statements made to the mother were made months after the events occurred, and when the children's mother testified to what she had been told, that evidence was offered for its truth. The statements to the mother were hearsay to which no exception applied, and the trial court erred when it allowed the statements into evidence. See Evid.R. 802.

{¶ 17} But even though this testimony constituted inadmissible hearsay, the jury was able to hear the same evidence through the interviews of the children at the Mayerson Center, the testimony of the social worker, and the testimony of the children at trial-all of which was properly admitted into evidence. Generally, where other admissible substantive evidence mirrors improper hearsay, the error in allowing the hearsay is deemed harmless, since it would not have changed the outcome of the trial. State v. Richcreek , 196 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 43 (6th Dist.), citing State v. Byrd , 8th Dist. Cuyahoga No. 82145, 2003-Ohio-3958, 2003 WL 21710795, ¶ 39 ; see State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 82 (holding that the erroneous admission of evidence was not prejudicial where other evidence demonstrating the same point was properly admitted). The admission of the testimony of the children's mother did not change the outcome of the trial. We overrule Williams's second assignment of error.

Sufficiency and Weight of the Evidence

{¶ 18} In his third and fourth assignments of error, Williams claims that his convictions were based on insufficient evidence and were against the weight of the evidence. In a challenge to the sufficiency of the evidence, the question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the crimes beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In reviewing a challenge to the weight of the evidence, we must review the entire record, weigh the evidence, consider the credibility of the witnesses, and determine whether the trier of fact clearly lost its way and thereby created a manifest miscarriage of justice. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus.

{¶ 19} Both N.W. and M.W. testified at trial. The jury also heard their accounts while watching their interviews with the social worker from the Mayerson Center, who also testified. The lack of physical evidence or the fact that Williams presented testimony to dispute that the attacks could have happened in the way the girls described are insufficient to justifying reversal of the convictions. See State v. Hunter , 144 Ohio App.3d 116, 120, 759 N.E.2d 809 (1st Dist.2001) (conviction for rape of a child was based on sufficient evidence and not against the manifest weight of the evidence even where there was no physical evidence of the attack and defendant presented testimony to dispute the allegations).

{¶ 20} The weight to be given the evidence and the credibility of the witnesses were primarily for the trier of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. We find that Williams's convictions were supported by both the sufficiency and the weight of the evidence. A rational trier of fact could have found the elements of rape were proven beyond a reasonable doubt. Further, a review of the entire record establishes that the jury did not lose its way in finding Williams guilty. The third and fourth assignments of error are overruled.

Ineffective Assistance

{¶ 21} In his fifth assignment of error, Williams claims that counsel was ineffective in failing to cross-examine the children and in failing to object to a statement made by the prosecutor after the direct examination of the younger daughter.

{¶ 22} To succeed on his ineffective-assistance claim, Williams must establish that his trial counsel was deficient, and that, but for his counsel's errors, the result of the proceedings would have been different. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This court has previously said that "[t]he scope of cross-examination, however, falls within the ambit of trial strategy. Debatable tactics do not render counsel's assistance ineffective. This is particularly true in sex cases with minor victims where counsel may be wise to tread lightly in questioning." (Citations omitted.) State v. Johnson , 2016-Ohio-4934, 69 N.E.3d 143, ¶ 29 (1st Dist.). In this case, counsel disclosed that Williams had instructed him not to cross-examine the children. We cannot say that counsel was ineffective for failing to do so.

{¶ 23} Counsel was also not ineffective for failing to object to a comment of the prosecutor at the conclusion of M.W.'s direct examination. During her testimony, the child was obviously nervous, and she struggled throughout to remember and answer questions while her father sat feet away staring at her. When the questioning concluded, the prosecutor said "I'm very proud of you. I've known you a long time." While Williams characterizes this as bolstering the girl's testimony, that is not a fair reading of the statement. Failing to object to this otherwise innocuous statement, made to the child after she had clearly gone through a very uncomfortable examination, was an appropriate decision for defense counsel to make under the circumstances. The fifth assignment of error is overruled.

Prosecutorial Misconduct

{¶ 24} In his sixth assignment of error, Williams claims that the statement made by the prosecutor to M.W., referenced in the preceding paragraph, constituted prosecutorial misconduct. But the Ohio Supreme Court has held that "[i]solated comments by a prosecutor are not to be taken out of context and given their most damaging meaning." State v. Hill , 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996), citing Donnelly v. DeChristoforo , 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Considering the context of that comment and its isolated character, we hold that it did not rise to the level of prejudicial misconduct. We overrule Williams's sixth assignment of error.

Cumulative Error

{¶ 25} In his seventh assignment of error, Williams claims that while no single error alleged may amount to reversible error, the cumulative effect of the errors made the trial fundamentally unfair. Under the doctrine of cumulative error, a conviction may be reversed if the cumulative effect of errors deemed separately harmless is to deny the defendant a fair trial. State v. DeMarco , 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. But, absent the admission of the mother's account of what her children had told her, Williams has demonstrated no error below. And we have established that any error in the admission of the mother's account of what her children had told her was harmless. We overrule Williams's seventh assignment of error.

Sentencing Claims

{¶ 26} In his eighth assignment of error, Williams claims that the record does not support the sentences imposed by the court. Williams concedes that the sentences were within the statutory ranges, but argues that the "record does not support the sentencing court's findings that the consecutive life sentences were appropriate."

{¶ 27} R.C. 2929.14(C)(4) requires the trial court to make certain findings before imposing consecutive sentences. First, the trial court must find that consecutive sentences are necessary either to protect the public from future crime or to punish the offender. The court must then find the imposition of consecutive sentences is not disproportionate to the seriousness of the offender's conduct and the danger he poses to the public. Finally, the court must find one 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 section 2929.16, 2929.17, or 2929.18 of the Revised Code, 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; or
(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)(a)-(c).

{¶ 28} In State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus, the Ohio Supreme Court held that when a trial court imposes consecutive sentences, it must not only announce the requisite consecutive-sentencing findings at the sentencing hearing, but it must also incorporate those findings into the sentencing entry. The trial court is not required to provide a "word-for-word recitation of the language in the statute" or to provide reasons to support the findings, as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings. Id. at ¶ 29.

{¶ 29} The record reflects that the trial court complied with Bonnell . It made the required findings for consecutive sentences during the sentencing hearing and incorporated those findings into the sentencing entry. The trial court found that consecutive sentences were necessary to protect the public and to punish Williams, and were not disproportionate to the seriousness of Williams's conduct and the danger that Williams posed to the public. The trial court also found that the two offenses were committed as part of one or more courses of conduct, and the harm caused by the two 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 Williams's conduct. The trial court was not required to make further findings, and these findings were supported by the record. See State v. Ruff , 1st Dist. Hamilton Nos. C-160385 and C-160386, 2017-Ohio-1430, 2017 WL 1400005, ¶ 24, citing State v. McGee , 1st Dist. Hamilton No. C-150496, 2016-Ohio-7510, 2016 WL 6393746, ¶ 32. We overrule Williams's eighth assignment of error.

{¶ 30} In his ninth assignment of error, Williams claims that the imposition of two, consecutive life sentences resulted in a denial of his right to due process and constituted cruel and unusual punishment. 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, 371-372, 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). Cases in which cruel and unusual punishments have been found are "limited to those involving sanctions which under the circumstances would be considered shocking to any reasonable person." McDougle v. Maxwell , 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964). To violate the prohibition against cruel and unusual punishment, the penalty must be "so greatly disproportionate to the offense as to shock the sense of justice of the community." Id.

{¶ 31} The life sentences imposed here were mandated by statute, a statute that Williams did not challenge. See State v. McConnell , 2d Dist. Montgomery No. 19993, 2004-Ohio-4263, 2004 WL 1802142, ¶ 139, citing R.C. 2907.02(B). "Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history." Harmelin at 994-995, 111 S.Ct. 2680. A sentence that falls within the terms of a valid statute generally cannot amount to cruel and unusual punishment. State v. Hairston , 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 21, citing McDougle at 69, 203 N.E.2d 334. While Williams argued that the "consecutive life terms on the two rapes violated Due Process and the prohibition against cruel and unusual punishment," the Eighth Amendment proportionality review does not apply to consecutive sentences. Hairston at ¶ 20.

{¶ 32} The fact that Williams turned down a plea offer that would have resulted in a six-year prison sentence does not change this result. On several occasions before the trial, Williams was given the opportunity to plead to one count of gross sexual imposition. The lower proposed sentence was conditioned upon Williams agreeing to plead guilty to one, lesser charge. Williams repeatedly refused to enter such a plea, and was instead found guilty of two counts of rape of a child under the age of ten, for which life in prison was the sentence. We overrule Williams's ninth assignment of error.

Conclusion

{¶ 33} Having considered and overruled all nine assignments of error, we affirm the judgment of the trial court.

Judgment affirmed.

Zayas and Myers, JJ., concur.