author: Mock, Presiding Judge. Miller, J., concurring in part and dissenting in part.

text:
    Kevin PHIPPS, Petitioner-Appellant, v. STATE of Ohio, Respondent-Appellee.
    NO. C-160795
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: February 28, 2018
    Angela Glaser, Cincinnati, for Petitioner-Appellant,
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Respondent-Appellee.
   Mock, Presiding Judge.

{¶ 1} In 2006 in New York, petitioner-appellant Kevin Phipps was convicted of "sexual misconduct," a misdemeanor. He was required to register as a sex offender for life in New York. He subsequently moved to Ohio and was automatically classified by the Hamilton County sheriff as a sexual predator under former R.C. 2950.09.

{¶ 2} On September 24, 2014, Phipps filed a petition for reclassification under former R.C. 2950.09(F) and for credit for registration under former R.C. 2950.07(E). He also filed a motion to vacate the sheriff's classification. Phipps challenged his classification on various constitutional grounds and on the grounds that the state had not proved the fact of his conviction in New York and that the New York offense of sexual misconduct was not substantially equivalent to an Ohio sexually-oriented offense.

{¶ 3} Following a hearing, the trial court entered a judgment on September 13, 2016, finding that the state had proved "the fact of conviction in the State of New York." After a second hearing, the trial court entered an order on September 22, 2016, denying Phipps's motion to vacate the classification. The court determined that the New York offense of sexual misconduct was substantially equivalent to the Ohio offense of unlawful sexual conduct with a minor. The September 22, 2016 order also stated that Phipps "had a duty to register as a sexual offender in Ohio" and that his "petition is denied." Phipps has appealed both judgments.

{¶ 4} Under former R.C. 2950.09(A), an out-of-state sex offender who had been convicted of a nonexempt sex offense and was required to register for life as a sex offender in the state where he was convicted was automatically classified as a sexual predator in Ohio. Former R.C. 2950.09(F) permitted the offender to challenge the sexual-predator classification. When an out-of-state offender challenged his classification under former R.C. 2950.09(F), the trial court was first required to determine whether the sexually-oriented offense in the other state was substantially equivalent to an Ohio sexually-oriented offense. State v. Pasqua , 157 Ohio App.3d 427, 2004-Ohio-2992, 811 N.E.2d 601, ¶ 22 (1st Dist.). If the out-of-state offense was not substantially equivalent to an Ohio sexually-oriented offense, the offender was not required to register in Ohio. See Phan v. Leis , 1st Dist. Hamilton No. C-050842, 2006-Ohio-5898, 2006 WL 3230315 ; Doe v. Leis , 1st Dist. Hamilton No. C-050591, 2006-Ohio-4507, 2006 WL 2520331. If the court found that the out-of-state offense was substantially equivalent to an Ohio sexually-oriented offense, the trial court could determine that the out-of-state offender was not a sexual predator if the offender proved, by clear and convincing evidence, that the registration requirement of the state where the offender had been convicted was not "substantially similar" to Ohio's sexual-predator classification under former R.C. Chapter 2950. Logue v. Leis , 169 Ohio App.3d 356, 2006-Ohio-5597, 862 N.E.2d 900, ¶ 4 (1st Dist.). The offender was entitled to a hearing where he had to show, by clear and convincing evidence, that he was not likely to commit a sexually-oriented offense in the future. Id. , citing Pasqua at ¶ 22.

{¶ 5} We first address Phipps's second assignment of error, which alleges that the trial court erred in denying his motion to vacate the classification where the state failed to prove the fact of his conviction. Phipps argues that the state was required to prove his New York conviction with a document that complied with R.C. 2945.75(B)(1) and Crim.R. 32(C). We disagree.

{¶ 6} The procedures under former R.C. Chapter 2950 were civil in nature. State v. Cook , 83 Ohio St.3d 404, 700 N.E.2d 570 (1998). We hold that former R.C. 2950.07(F) did not require the out-of-state sex offense to be proved in the same way that the state would have had to prove a prior conviction beyond a reasonable doubt in a criminal case where the prior conviction was an element of a new criminal offense or was required to elevate the level of a crime or enhance a sentence.

{¶ 7} State's exhibit 1 is a certified copy of a document from the Supreme Court of the State of New York, County of Kings, showing that on February 6, 2006, Phipps had pled guilty to sexual misconduct in violation of New York Penal Law 130.20 -1. A charge of rape in the third degree was dismissed. State's exhibit 3 is a certified copy of the certificate of disposition of the indictment, which showed that Phipps had pleaded guilty to, had been convicted of, and had been sentenced for sexual misconduct. We hold that the trial court did not err in determining that the documents submitted by the state were sufficient to prove the fact of Phipps's New York conviction for sexual misconduct. The second assignment of error is overruled.

{¶ 8} Phipps's first assignment of error alleges that the trial court erred in denying his motion to vacate the sexual-predator classification, because the New York offense of sexual misconduct is not substantially equivalent to the Ohio offense of unlawful sexual conduct with a minor. Phipps argues that the New York sexual-misconduct statutes and Ohio's unlawful-sexual-conduct-with-a-minor statute are not substantially similar because of the differences in the ages of the offender, the ages of the victims, and the mens rea required for a conviction. Further, the Ohio offense is a felony, while the New York offense is a misdemeanor.

{¶ 9} The section of New York Penal Law 130.20 under which Phipps was convicted provides that "[a] person is guilty of sexual misconduct when * * * [h]e or she engages in sexual intercourse with another person without such person's consent * * *." Under New York Penal Law 130.05, a person less than 17 years old is deemed incapable of giving consent. R.C. 2907.04(A), Ohio's unlawful-sexual-conduct-with-a-minor offense states, "No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard." R.C. 2907.01(A) defines "sexual conduct" as

vaginal intercourse between a male and female; anal intercourse, fellatio, and, cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

{¶ 10} In State v. Lloyd , 132 Ohio St.3d 135, 2012-Ohio-2015, 970 N.E.2d 870, ¶ 31, the Ohio Supreme Court stated,

[I]n order to determine whether an out-of-state conviction is substantially equivalent to a listed Ohio offense, a court must initially look only to the fact of conviction and the elements of the relevant criminal statutes, without considering the particular facts disclosed by the record of conviction. If the out-of-state statute defines the offense in such a way that the court cannot discern from a comparison of the statutes whether the offenses are substantially equivalent, a court may go beyond the statutes and rely on a limited portion of the record in a narrow class of cases where the factfinder was required to find all the elements essential to a conviction under the listed Ohio statute. To do so, Ohio courts are permitted to consult a limited range of material contained in the record, including charging documents, plea agreements, transcripts of the plea colloquies, presentence reports, findings of fact and conclusions of law from a bench trial, jury instructions and verdict forms, or some comparable part of the record.

{¶ 11} In State v. Collier , 8th Dist. Cuyahoga Nos. 100906, 101235 and 101272, 2014-Ohio-5683, 2014 WL 7339141, appeals not accepted , 143 Ohio St.3d 1405, 2015-Ohio-2747, 34 N.E.3d 133, the Eighth Appellate District held that because the age of consent and mens rea elements of the Illinois aggravated-criminal-sexual-abuse statute were different than those in Ohio's unlawful-sexual-conduct-with-a-minor statute, the statutes were not substantially similar. The Illinois statute prohibited "[a]n act of sexual conduct with a victim at least 13 years of age but under 17, and the accused was at least five years older than the victim." See Section 72 Ill.Comp.Stat. 5/12-16.(d); Collier at ¶ 16. The Collier court pointed out that both statutes prohibit sexual conduct by a person 18 or older, but that Ohio prohibits sexual conduct with persons 13 to 15, while Illinois defined its class of victims to include 16 year olds. The court stated,

Immediately, from the excerpt above, a comparison of the elements of these two statutes, it is easily discernable that these two statutes do not align at all and the trial judge properly concluded that the two statutes are not substantially equivalent. Here, based on the difference in the age of the victim element of the respective statutes, Collier would not have been convicted in Ohio for engaging in sexual conduct with a 16 year old.

Collier at ¶ 19.

{¶ 12} The Eighth District noted that the statutes also differed in another "significant manner," because "the Illinois statute is one of strict liability and requires no mens rea, while Ohio's statute requires proof that the conduct was done 'knowingly' or at a minimum, 'recklessly.' " Id. at ¶ 22. "Thus, there is a distinct difference between the Illinois and the Ohio statutes regarding not only the age of consent, but also the mens rea." Id. The court concluded that because the statutes were not substantially equivalent, Collier was not required to register as a sex offender in Ohio.

{¶ 13} In the instant case, there are significant differences in the New York and Ohio statutes. Ohio's statute applies to persons over 18, while the New York statute does not set an age limit for the perpetrator. Ohio's law prohibits sexual conduct with victims between the ages of 13 and 15, while the New York prohibition extends to victims under the age of 17. Ohio requires that the perpetrator knew the age of the victim or was reckless in that regard, while New York does not require a mens rea. The Ohio offense is a felony, and the New York offense is a misdemeanor.

{¶ 14} Applying the Lloyd test, it is clear that the New York sexual-misconduct statute is not substantially equivalent to Ohio's unlawful-sexual-misconduct-with-a-minor statute. Therefore, Phipps is not required to register as a sex offender in Ohio. See Doe , 1st Dist. Hamilton No. C-050591, 2006-Ohio-4507 (holding, prior to Lloyd , that the Florida attempted-sexual-battery offense for which Doe had been convicted was not substantially equivalent to Ohio's former offense of attempted felonious sexual penetration or to the current Ohio offense of attempted rape, and thus Doe was not required to register as a sex offender in Ohio because both the former and current Ohio statutes specifically included as an element force or the threat of force, while the Florida statute did not require force beyond that which was necessary for penetration).

{¶ 15} We point out that even had we held that we could not determine from a comparison of the elements whether the New York sexual-misconduct statute was substantially equivalent to Ohio's unlawful-sexual-conduct-with-a-minor statute, Phipps would not be required to register as a sex offender in Ohio. Under Lloyd , if the court cannot discern from a comparison of the statutes whether the offenses are substantially equivalent, the court may "go beyond the statutes and rely on a limited portion of the record in a narrow class of cases where the factfinder was required to find all the elements essential to a conviction under the Ohio statute ." (Emphasis added.) Lloyd , 132 Ohio St.3d 135, 2012-Ohio-2015, 970 N.E.2d 870, at ¶ 31. The New York court was not required to find that Phipps knew the age of his victim or was reckless in that regard, an element essential to a conviction under the Ohio statute. Therefore, the statutes are not substantially equivalent, and Phipps is not required to register in Ohio. The first assignment of error is sustained.

{¶ 16} The dissent argues that R.C. 2907.04(A) prohibits as a "strict liability offense[ ] an adult engaging in sexual conduct with a nonspouse who the offender knows is under the age of 16, or is reckless in not knowing the other's age." (Emphasis added.) The statute requires a mens rea of knowing or reckless as to the age of the victim for a conviction. Therefore, it does not impose strict liability.

{¶ 17} The dissent also argues that New York's sexual-misconduct statute is substantially equivalent to sexual imposition under R.C. 2907.06(A)(4). The state raised this argument in the trial court in its memorandum in opposition to Phipps's motion to vacate his sexual-predator classification. The state apparently abandoned this argument, because the state did not raise it at the hearing on Phipps's motion to vacate the sexual-predator classification-in fact, the prosecutor specifically stated at the hearing that the statute to be considered was R.C. 2907.04 -or on appeal, presumably because the state recognized that the statutes are not substantially equivalent.

{¶ 18} R.C. 2907.06(A)(4) provides that

No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
* * *
The other person, or one of the other persons, is thirteen years of age or older but less than sixteen years of age, whether or not the offender knows the age of such person, and the offender is at least eighteen years of age and four or more years older than such other person.

"Sexual contact" is "any touching of an erogenous zone of another, including, without limitation, the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B).

{¶ 19} The mens rea of purpose applies to the sexual-contact element of sexual imposition. See State v. Dunlap , 129 Ohio St.3d 461, 2011-Ohio-4111, 953 N.E.2d 816, ¶ 23 (holding that "the applicable mens rea of sexual contact, as defined in R.C. 2907.01(B), is purpose"); State v. Maynard , 9th Dist. Wayne No. 12CA0026, 2013-Ohio-2796, 2013 WL 3356762, ¶ 8, 29 (following Dunlap and holding that the element of sexual contact in a sexual-imposition violation requires a mens rea of purpose). Sexual contact "requires a specific intent behind the touching-the touching must be intended to achieve sexual arousal or gratification." Dunlap at ¶ 25. Sexual imposition under R.C. 2907.06(A)(4) is not a strict liability offense, because the statute requires that the "touching" be for the purpose of sexual arousal or gratification. Id. Therefore, the New York statute, which has no mens rea element, is not substantially equivalent to Ohio's sexual-imposition statute.

{¶ 20} Further, other elements of New York's sexual-misconduct statute do not align with Ohio's sexual-imposition statute. The Ohio statute applies to offenders over the age of 18 and four or more years older than the victim, who must be 13 years of age or older but less than 16 years old. The New York statute sets no age limit for the offender and has no requirement that the offender be four or more years older than the victim. Further, the Ohio statute applies where the victim is between the ages of 13 and 15, while the New York statute extends to victims under the age of 17. It is clear from a comparison of the elements that the New York offense of sexual misconduct is not substantially equivalent to the Ohio offense of sexual imposition.

{¶ 21} Phipps's third assignment of error, which alleges that the trial court erred in overruling his petition for reclassification without affording him a hearing on the issue of whether he was likely to commit a sexually-oriented offense in the future, is made moot by our disposition of the first assignment of error. Therefore, we do not address it.

{¶ 22} We affirm the trial court's determination in its September 13, 2016 judgment that the state had proved the fact of Phipps's New York conviction. We hold that the trial court erred in its substantial-equivalence determination, reverse the court's denial of Phipps's motion to vacate his classification and his petition for reclassification, and remand this cause with instructions to the trial court to enter an order that Phipps is not required to register as a sex offender in Ohio.

Judgment accordingly.

Myers, J., concurs.

Miller, J., concurs in part and dissents in part.

Miller, J., concurring in part and dissenting in part.

{¶ 23} I concur in the majority's conclusion that the state proved the fact of conviction. I dissent from the determination that the New York conviction was not substantially equivalent to a violation of a registration-eligible Ohio sexually-oriented offense. I agree with Phipps that he is entitled to a hearing under former R.C. 2950.09(F), and would remand the case for the hearing.

{¶ 24} "Substantially equivalent" does not mean "identical." "Substantially equivalent" means being largely but not wholly alike in signification or import. Lloyd , 132 Ohio St.3d 135, 2012-Ohio-2015, 970 N.E.2d 870, at ¶ 28. Here, New York Penal Law 130.20 prohibits, as a strict liability offense, sexual intercourse with a person less than 17 years old. Ohio likewise prohibits, as a strict liability offense, an adult engaging in sexual conduct with a nonspouse who the offender knows is under the age of 16, or is reckless in not knowing the other's age. R.C. 2907.04(A). The major distinctions are that New York prohibits sex with 16 year olds, while Ohio does not; Ohio has a marriage exception; and Ohio requires the defendant have a mens rea with respect to the victim's age.

{¶ 25} The Ohio Supreme Court warned against "requir[ing] a court to conclude that an out-of-state conviction is not substantially equivalent to a listed Ohio offense when the out-of-state statute is broader." Lloyd at ¶ 30. Doing so "would prevent Ohio law from reaching some of the offenses identified by the General Assembly only because of idiosyncrasies in the criminal codes of foreign jurisdictions." Id. The two statutes here are substantially equivalent. Both criminalize sex with a teenager regardless of consent.

{¶ 26} While I don't believe that it is necessary to go beyond the statute, doing so under the limited factual review permitted by Lloyd confirms that Phipps's conviction is substantially equivalent to a violation of R.C. 2907.04(A). Phipps was 22 years old when he engaged in sexual conduct with a 15-year-old female at least three times over the course of six weeks. The facts fall under what R.C. 2907.04(A) prohibits. Accordingly, I would hold that Phipps's New York violation is a basis for registration in Ohio.

{¶ 27} Alternatively, New York Penal Law 130.20 is also substantially equivalent to a broader Ohio offense, sexual imposition, in violation of R.C. 2907.06(A)(4). This statute prohibits "sexual contact with another" who isn't one's spouse and who is "less than sixteen years of age, whether or not the offender knows the age of such person." To qualify as a violation, the offender must be at least 18 years old and at least four years older than the victim. The age element in R.C. 2907.06(A)(4) is strict liability. State v. Golden , 5th Dist. Stark No. 2008CA182, 2009-Ohio-1624, 2009 WL 891044, ¶ 49 ; see Dunlap , 129 Ohio St.3d 461, 2011-Ohio-4111, 953 N.E.2d 816, at ¶ 23 (analyzing similar language in R.C. 2907.05(A)(4) pertaining to an offender's knowledge of a victim's age and holding that the age element was strict liability).

{¶ 28} The majority argues that the "sexual contact" element in the Ohio statute has a mens rea not present for "sexual intercourse," thereby distinguishing it from the New York statute. In Ohio, "sexual contact" involves "any touching of an erogenous zone of another" for the purpose of sexual arousal or gratification. R.C. 2907.01(B). "Sexual conduct," e.g. sexual intercourse, does not occur without "sexual contact." R.C. 2907.01(A) and (B) ; see State v. Johnson , 36 Ohio St.3d 224, 226, 522 N.E.2d 1082 (1988) (the definition of "sexual contact" is lesser than and included in the definition of "sexual conduct"). Consequently, the "purpose" required by "sexual contact" is included in "sexual conduct." The majority's argument that an offender might engage in sexual intercourse without the purpose of sexual gratification is definitionally impossible and implausible. See State v. Stanford , 12th Dist. Butler No. CA2000-12-249, 2001 WL 877306, *2 (Aug. 6, 2001) (where defendant was convicted of felonious assault for beating, chocking, and raping his victim, the assault was done to gratify the defendant's sexual needs or desires). Thus, the conduct proscribed by New York Penal Law 130.20 is encompassed by R.C. 2907.06.

{¶ 29} Both offenses are strict liability concerning the defendant's knowledge of the victim's age. Both are misdemeanors. The New York offense applies when the other person is 16. The Ohio statute does not. The Ohio statute also contains limitations on the age of the defendant not present under the New York law. But the differences are idiosyncratic, and Phipps's conduct was prohibited by both.

{¶ 30} Under former R.C. 2950.09(F), Phipps's offense is "substantially equivalent" to both R.C. 2907.04(A) and R.C. 2907.06(A)(4). The legislature clearly intended that Phipps should register unless he could demonstrate that he is not likely to commit a sexually-oriented offense in the future. See Pasqua , 157 Ohio App.3d 427, 2004-Ohio-2992, 811 N.E.2d 601, at ¶ 22.

{¶ 31} Accordingly, I would remand for the trial court to conduct a hearing where Phipps would have to prove by clear and convincing evidence that he is not likely to reoffend.

      The phrase "whether or not the offender knows the age" subjects the age element of the offense to strict liability. Dunlap at ¶ 18 ; Golden at ¶ 49 ; State v. Ferguson , 10th Dist. Franklin No. 07AP-999, 2008-Ohio-6677, 2008 WL 5265893, ¶ 74-75 (age element in R.C. 2907.02(A)(1)(b) is a strict liability offense).


source: Caselaw Access Project

author: Cunningham, Presiding Judge. Deters, J., concurring in part and dissenting in part.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Earl INGELS, Defendant-Appellant.
    NO. C-160864
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: February 28, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Earl Ingels, pro se.
    OPINION.
   Cunningham, Presiding Judge.

{¶ 1} Defendant-appellant Earl Ingels presents on appeal four assignments of error that, distilled to their essence, challenge the Hamilton County Common Pleas Court's judgments overruling his "Motion[s] to Set Aside a Void Violent Sexual Predator Sanction." We remand for resentencing on the kidnapping offenses charged in counts one and three of the indictment in the case numbered B-9800321, because those sentences are void when R.C. Chapter 2971 did not confer upon the trial court the authority to enhance the sentences based on specifications that Ingels was a "sexually violent predator."

{¶ 2} In 1998, following a joint trial on the charges contained in the indictments in the cases numbered B-9800321 and B-9802147, Ingels was convicted on five counts of kidnapping, two counts of gross sexual imposition, and a single count of attempted kidnapping. We affirmed those convictions on direct appeal. State v. Ingels, 1st Dist. Hamilton Nos. C-980673 and C-980674, 1999 WL 1488934 (Dec. 3, 1999), appeal not accepted, 99 Ohio St.3d 1539, 2003-Ohio-4671, 795 N.E.2d 679. Thereafter, we twice remanded for correction of postrelease control. See State v. Ingels , 1st Dist. Hamilton No. C-130311, 2014-Ohio-363, 2014 WL 467336 ; State v. Ingels , 1st Dist. Hamilton Nos. C-140312, C-140313 and C-140328, 2015-Ohio-1621, 2015 WL 1959414, appeal not accepted , 143 Ohio St.3d 1447, 2015-Ohio-3427, 36 N.E.3d 193. See also State v. Ingl e s , 1st Dist. Hamilton Nos. C-160295, C-160303 and C-160304 (Oct. 7, 2016) (affirming the second correction of postrelease control). The other postconviction challenges to his convictions advanced in motions filed between 2005 and 2016 were unavailing. See State v. Ingles, 1st Dist. Hamilton No. C-100297, 2011-Ohio-2901, 2011 WL 2436654, appeal not accepted, 130 Ohio St.3d 1418, 2011-Ohio-5605, 956 N.E.2d 309 ; State v. Ingl e s, 1st Dist. Hamilton No. C-120052 (Dec. 7, 2012), appeal not accepted, 134 Ohio St.3d 1509, 2013-Ohio-1123, 984 N.E.2d 1102 ; State v. Ingles, 1st Dist. Hamilton No. C-120238, 2013-Ohio-1460, 2013 WL 1501520, appeal not accepted, 137 Ohio St.3d 1411, 2013-Ohio-5096, 998 N.E.2d 510.

The Motion

{¶ 3} In his 2016 "Motion to Set Aside a Void Violent Sexual Predator Sanction," filed in each of the cases numbered B-9802147 and B-9800321, Ingels sought "correct[ion]" of the sentences imposed for the kidnapping offenses charged in counts one and three of the indictment in the case numbered B-9800321, on the ground that those sentences are void because the trial court lacked the statutory authority to impose them. Citing the Ohio Supreme Court's decision in State v. Smith , 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, Ingels argued that the sentence-enhancement provisions of R.C. Chapter 2971 in effect in 1998, when he was sentenced, had not conferred upon the trial court the authority to enhance his kidnapping sentences based on the specifications that he was a "sexually violent predator," because those specifications were not, as R.C. 2971.03 then required, based on a sexually-violent-offense conviction that had existed before the indictment charging the sexually-violent-predator specification, but were instead based on the conduct underlying the sexually-violent-offense charges contained in the jointly-tried indictments in the cases numbered B-9800321 and B-9802147. The motion sought relief in the form of "removing [the] Sexual Violent Predator sanction" from the judgment of conviction and a declaration that the state had "forfeited any rights" to so sanction him or to classify him as a sexual predator under R.C. 2950.09.

{¶ 4} Ingels had previously presented Smith claims, on direct appeal from the second common pleas court entry correcting postrelease control and in postconviction motions filed in 2009, 2011, and 2012. In 2011, we affirmed the dismissal of Ingels's 2009 motion, upon our determination that the claimed error did not render his sentences void. See Ingles , 1st Dist. Hamilton No. C-100297, 2011-Ohio-2901. We then relied on that determination to hold that the law of our 2011 decision precluded the trial court, in correcting postrelease control, and the common pleas court, in deciding Ingels's subsequent postconviction motions, from granting relief on that ground. See Ingl e s , 1st Dist. Hamilton Nos. C-160295, C-160303 and C-160304; Ingles, 1st Dist. Hamilton No. C-120238, 2013-Ohio-1460 ; Ingl e s , 1st Dist. Hamilton No. C-120052.

{¶ 5} In this appeal from the overruling of Ingels's 2016 motion, we revisit that determination. We conclude that the sentences imposed for the kidnapping offenses charged in counts one and three of the indictment in the case numbered B-9800321 are void, because the trial court lacked the statutory authority to impose them. And on that basis, we overrule our prior decisions to the extent that they hold to the contrary.

No Statutory Authority to Enhance the Kidnapping Sentences

{¶ 6} The kidnapping charges in counts one and three of the indictment in the case numbered B-9800321 each carried a sexual-motivation specification and a sexually-violent-predator specification. With respect to each offense, the jury found that Ingels had acted with a sexual motivation, and the trial court found that Ingels was a "sexually violent predator" for purposes of the sentencing-enhancement provisions of R.C. Chapter 2971. Thus, the trial court, pursuant to R.C. 2971.03(A)(3), enhanced Ingels's sentences for the sexually motivated kidnappings, imposing for each offense a prison term of nine years to life, instead of a definite prison term of up to ten years prescribed for first-degree-felony kidnapping. See R.C. 2929.14(A)(1).

{¶ 7} R.C. 2971.03, in relevant part, mandates an enhanced sentence upon a guilty verdict or plea on a kidnapping charge if the offender also "is convicted of or pleads guilty to both a sexual motivation specification and a sexually violent predator specification that were included in the * * * count in the indictment * * * charging that offense." R.C. 2971.03(A). R.C. 2971.01(H)(1), as it provided in 1998 when Ingels was sentenced, defined a "sexually violent predator" as "a person who has been convicted of or pleaded guilty to committing , on or after January 1, 1997, a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses." (Emphasis added.) In 2005, the General Assembly amended the statute to define a "sexually violent predator" as "a person who, on or after January 1, 1997, commits a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses." (Emphasis added.) R.C. 2971.01(H)(1).

{¶ 8} The 2005 amendment was prompted by the Ohio Supreme Court's 2004 decision in State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283. In Smith , the court held that a "[c]onviction of a sexually violent offense cannot support the specification that the offender is a sexually violent predator as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction and the * * * specification are charged in the same indictment." Id. at syllabus. That holding derived from the court's reading of former R.C. 2971.01(H)(1) to require that a sexually-violent-predator specification be supported by a sexually-violent-offense "conviction * * * that [had] existed prior to the * * * indictment" charging the specification. Id. at ¶ 27.

{¶ 9} In the proceedings below, the trial court enhanced Ingels's sentences for the sexually motivated kidnappings based upon its finding, in support of the accompanying sexually-violent-predator specifications, that Ingels was a "sexually violent predator." But the court's finding that Ingels was a "sexually violent predator" was based on the conduct underlying the sexually-violent-offense charges contained in the indictments in the cases numbered B-9800321 and B-9802147; its "sexually violent predator" finding was not, as former R.C. 2971.01(H)(1) had required, based on a sexually-violent-offense "conviction * * * that [had] existed prior to the * * * indictment" in the case numbered B-9800321, charging the sexually-violent-predator specifications. Accordingly, R.C. Chapter 2971, as it provided when Ingels was sentenced, did not confer upon the trial court the authority to enhance his sentences for the sexually motivated kidnappings.

The Kidnapping Sentences Are Subject to Correction as Void

{¶ 10} The Ohio Supreme Court in State v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, recently reaffirmed the long-recognized "vital" principles that only the legislature has the power to prescribe punishment for a criminal offense, that a trial court may impose only a sentence that is authorized by statute, and that a sentence that is not authorized by statute is void and thus reviewable, and subject to correction, at any time. Id. at ¶ 20-23, citing Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964), State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984), State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 28, and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6-8, 21-23, 30. R.C. Chapter 2971, as it provided in 1998 when Ingels was sentenced, did not confer upon the trial court the authority to enhance his sentences for kidnapping as charged in counts one and three of the indictment in the case numbered B-9800321. Therefore, those sentences are void and subject to correction at any time.

{¶ 11} The Eighth Appellate District concluded to the contrary in addressing a Smith claim in its 2006 decision in State v. Waver , 8th Dist. Cuyahoga No. 87495, 2006-Ohio-1743, 2006 WL 890913. Waver had petitioned the court of appeals for a writ of mandamus to compel the trial court to vacate his 1997 rape and felonious-assault convictions. The court of appeals denied the petition upon its determination that mandamus was not appropriate, and that only an "[a]ppeal [would provide] the remedy" for Waver's Smith claim. Id. at ¶ 4. In so holding, the court concluded that a successful Smith claim would not have rendered Waver's convictions void, because the Supreme Court in Smith had expressly held that "the trial court erred in relying on the jury's convictions of the underlying rape and kidnapping charges to prove the sexually-violent-predator specification alleged in the same indictment." (Emphasis added.) Id. at ¶ 4, quoting Smith , 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, at ¶ 33. See State v. Stansell , 2014-Ohio-1633, 10 N.E.3d 795 (8th Dist.) (holding that Smith does not apply retroactively to a "closed case[ ]").

{¶ 12} But the Waver decision is not controlling on this appellate district. Nor is it persuasive. For the purpose of determining whether a Smith error renders a sentence void, we perceive no significance in the Supreme Court's use of the word "erred" in declaring its holding. The void-or-voidable issue was not before the Supreme Court in Smith because the case was before the court on direct appeal, requiring no more to "remedy" the sentencing error than to hold that "the trial court erred" and to order that Smith be resentenced. But a void-or-voidable inquiry is not superfluous when, as here and in Waver , it is undertaken in a collateral proceeding. To the contrary, the determination in a collateral proceeding of whether an unauthorized sentence is void effectively determines whether the court may "remedy" the error at all. See Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 40 (holding that "void sentences are not precluded from appellate review by principles of res judicata and may be reviewed at any time, on direct appeal or by collateral attack").

{¶ 13} Nor do we find persuasive the decisions of the Ninth and Tenth Appellate Districts affirming the rejection of Smith claims advanced in postconviction motions. The Tenth District in State v. Haynes , 10th Dist. Franklin No. 14AP-276, 2015-Ohio-183, 2015 WL 268839, concluded that it was bound, under the doctrines of res judicata and the law of the case, by its "prior rulings" that Haynes's sentence was "not void despite the intervening Smith decision," and that Smith "could only apply to future cases involving sexually violent predators." Id. at ¶ 7-14. The Ninth District in State v. Ditzler, 9th Dist. Lorain No. 13CA010342, 2013-Ohio-4969, 2013 WL 6021464, similarly held that Smith does not apply retroactively to a "closed case[ ]." Id. at ¶ 5-12.

{¶ 14} Under the doctrine of the law of the case, an inferior court must follow the controlling authority of a higher court, leaving to the higher court the prerogative of overruling its own decision. See Johnson v. Microsoft Corp. , 156 Ohio App.3d 249, 2004-Ohio-761, 805 N.E.2d 179, ¶ 11 (1st Dist.), following Rodriguez de Quijas v. Shearson/Am. Express Inc. , 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). Accordingly, the common pleas court cannot be said to have erred in declining to afford Ingels the relief sought in his 2016 motion, in light of our previous rulings in his case that the claimed Smith error did not render his sentences void. But we possess, and here exercise, the prerogative to overrule those previous decisions and hold that, because R.C. Chapter 2971, as it provided when Ingels was sentenced, did not confer upon the trial court the authority to enhance his sentences for kidnapping as charged in counts one and three of the indictment in the case numbered B-9800321, those sentences are void and thus now subject to correction by the common pleas court under its jurisdiction to correct a void judgment. See State ex rel. Cruzado v. Zaleski , 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19 (holding that a court always has jurisdiction to correct a void judgment).

We Remand and Certify a Conflict

{¶ 15} Therefore, we affirm the common pleas court's judgments overruling Ingels's 2016 motions. But we remand this case to the common pleas court for resentencing, consistent with the law and this opinion, on the kidnapping offenses charged in counts one and three of the indictment in the case numbered B-9800321.

{¶ 16} And because this disposition conflicts with the decisions of the Eighth District in Waver , the Ninth District in Ditzler , and the Tenth District in Haynes , we certify to the Ohio Supreme Court, upon the authority conferred by Article IV, Section 3(B)(4) of the Ohio Constitution, the following question: "Is a sentence imposed under former R.C. Chapter 2971 void, and thus correctable at any time, when the finding that the offender was a 'sexually violent predator' was not, as former R.C. 2971.01(H)(1) had required, based on a sexually-violent-offense conviction that had existed prior to the indictment charging the sexually-violent-predator specification."

Judgment accordingly.

Zayas, J., concurs.

Deters, J., concurs in part and dissents in part.

Deters, J., concurring in part and dissenting in part.

{¶ 17} I concur with the majority in affirming the common pleas court's judgments overruling Ingels's 2016 motions. But I dissent from this court's order remanding for resentencing on the kidnapping offenses charged in counts one and three of the indictment in the case numbered B-9800321. I would not overrule our decision in State v. Ingles , 1st Dist. Hamilton No. C-100297, 2011-Ohio-2901, 2011 WL 2436654, but would, instead, follow the law of that case and affirm the dismissal of Ingels's 2016 motion on the ground that the claimed error did not render his sentences void. See State v. Ingl e s , 1st Dist. Hamilton Nos. C-160295, C-160303 and C-160304; State v. Ingles, 1st Dist. Hamilton No. C-120238, 2013-Ohio-1460, 2013 WL 1501520 ; State v. Ingl e s , 1st Dist. Hamilton No. C-120052 (Dec. 7, 2012).


author: BROWN, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Mykel SMALL, Defendant-Appellant.
    Nos. 16AP-497 16AP-565
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 1, 2018
    On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. Argued: Michael P. Walton.
    On brief: Adam R. Todd, Columbus, for appellant. Argued: Adam R. Todd.
    DECISION
   BROWN, P.J.

{¶ 1} Mykel Small, defendant-appellant, appeals from the judgment of the Franklin County Court of Common Pleas, in which the court denied appellant's motion to withdraw guilty plea.

{¶ 2} As relevant to the present appeal, in 2011, appellant was charged with aggravated possession of drugs, a first-degree felony, and aggravated possession of drugs, a third-degree felony. The charges arose from a shipment of 1,405 Oxycodone 30-milligram pills and 50 Oxycodone 15-milligram pills sent to appellant. Police intercepted the package and conducted a controlled delivery, after which they conducted a search of appellant's residence. Appellant claimed he only expected the 30-milligram pills and did not know the 15-milligram pills would be in the package.

{¶ 3} Prior to trial, appellant's trial counsel sent him a letter advising him of the plea offer. In the letter, trial counsel indicated the first count carried a mandatory prison sentence of 3 to 10 years, and the second count carried a presumption in favor of prison for a term between 9 and 36 months. Trial counsel indicated therefore, if convicted, appellant would face a potential maximum prison term of 13 years.

{¶ 4} On November 18, 2013, appellant entered a plea of guilty to aggravated possession of drugs, a first-degree felony, and the trial court dismissed the third-degree felony possession of drugs charge. On July 29, 2014, the trial court sentenced appellant to eight years on the first-degree felony aggravated possession of drugs count.

{¶ 5} Appellant appealed multiple judgments, which also included other charges, and, in State v. Small, 10th Dist. No. 14AP-659, 2015-Ohio-3640, 2015 WL 5209324, this court remanded the matter to the trial court for resentencing.

{¶ 6} On December 3, 2014, appellant filed a motion to withdraw guilty plea, in which he contended his plea was not knowing, intelligent, and voluntary. On May 19, 2015, appellant filed a supplemental memorandum in support of his motion to withdraw guilty plea. In these pleadings, appellant asserted, among other things, that because the two pertinent charges were allied offenses, he could only be convicted of one of the charges, contrary to what his counsel stated to him in the letter. He claimed if he had known such, he would not have pled guilty and would have had a jury trial.

{¶ 7} The trial court held a hearing on appellant's motion to withdraw guilty plea. After the trial court issued an oral decision at the close of trial, appellant filed an appeal. On July 21, 2016, the trial court issued a judgment in which it denied appellant's motion to withdraw guilty plea, and appellant filed another appeal. Thus, although the present matter contains two case numbers, it involves only one judgment. In his appeal, appellant asserts the following assignment of error:

The trial court's denial of Mr. Small's motion to withdraw his guilty plea to the charge for aggravated possession of drugs resulted in a manifest injustice. Mr. Small did not intelligently, knowingly and voluntarily enter his plea because trial counsel incorrectly advised him regarding the maximum possible sentence he faced at trial. The trial court failed to make a meaningful determination that Mr. Small intelligently, knowingly and voluntarily entered the plea.

{¶ 8} Appellant argues in his assignment of error that (1) he was denied effective assistance of trial counsel, and (2) he did not intelligently, knowingly, and voluntarily enter his guilty plea. With regard to his first argument, in order to establish ineffective assistance of counsel, a defendant must demonstrate "first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial." State v. Drummond , 111 Ohio St.3d 14, 2006-Ohio-5084, ¶ 205, 854 N.E.2d 1038, citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show prejudice, the defendant "must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.

{¶ 9} Appellant's post-conviction petition to withdraw guilty plea is governed by Crim.R. 32.1. The rule states that such a motion may be made after the sentence is imposed only to correct a manifest injustice. The burden of establishing the existence of a manifest injustice is on the defendant seeking the vacation of the plea. State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus.

{¶ 10} A motion made pursuant to Crim.R. 32.1 is addressed at the sound discretion of the trial court, and the good faith, credibility, and weight of the movant's assertions in support of the motion are matters to be resolved by that court.

State v. Stumpf , 32 Ohio St.3d 95, 104, 512 N.E.2d 598 (1987) ; Smith at paragraph two of the syllabus. An appellate court's review is limited to a determination of whether the trial court abused its discretion by denying the motion to withdraw a guilty plea. State v. Barnett , 73 Ohio App.3d 244, 250, 596 N.E.2d 1101 (2d Dist.1991). An abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable. State v. Montgomery , 61 Ohio St.3d 410, 413, 575 N.E.2d 167 (1991).

{¶ 11} With regard to the ineffective assistance of counsel claim, in the present case, appellant argues his trial counsel was deficient because he misadvised him regarding the maximum possible sentence he faced at trial on the two drug charges. Appellant claims his trial counsel misunderstood the nature of the charges, in that the letter from counsel to appellant included an incorrect explanation about the possible sentence for the two related charges for aggravated possession of drugs. Appellant asserts that, although trial counsel wrote in the letter that he faced a potential maximum prison term of 13 years, the court could not convict and punish appellant for both counts of aggravated possession of drugs because they arose from the same conduct, and R.C. 2941.25 forbids a defendant from being convicted of two allied offenses of similar import arising from identical conduct. Appellant maintains that, although there were two separate charges because there were differing milligram strengths of the same prescription drug, both counts arose from the same conduct involving the same drug in the same transaction. He contends he only intended to possess the 30-milligram pills and did not know the 15-milligram pills were in the same package he received from his supplier.

{¶ 12} Appellant also argues he would not have entered the guilty plea to the charge for aggravated possession of drugs if he had been correctly advised by trial counsel. In support, appellant points out he testified at the hearing on his motion that, had he known that he could have only been convicted of one charge, he would have gone to trial, and he believed and relied on the information in his trial counsel's letter in making his decision to plead guilty.

{¶ 13} After a review of the record, we find appellant failed to demonstrate his trial counsel was ineffective. In doing so, we need not specifically determine whether appellant's trial counsel misadvised him as to the possible maximum sentence he could face if he were to have a jury trial on the two charges. For appellant to prevail on his claim of ineffective assistance of counsel, this court would need to conclude that "counsel's performance fell measurably below that which might be expected from an ordinary fallible attorney." State v. McCarty , 11th Dist. No. 2015-P-0064, 2016-Ohio-4734, 2016 WL 3574298, ¶ 29. We are also required to indulge a strong presumption that counsel's conduct is within the wide range of reasonable professional representation. Strickland at 689, 104 S.Ct. 2052. The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom. Strickland at 690, 104 S.Ct. 2052. Furthermore, "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688, 104 S.Ct. 2052.

{¶ 14} In the present case, appellant addresses his ineffective assistance claim by presenting a legal argument regarding whether the two counts should have been merged. However, appellant frames the issue incorrectly. Despite his claim that trial counsel "clearly" misadvised him, the case law appellant relies on, State v. Painter , 12th Dist. No. CA2014-03-022, 2014-Ohio-5011, 2014 WL 5812320, is not unequivocally on point, and plaintiff-appellee, State of Ohio, presents case law contra appellant's claims, relying upon State v. Sowers , 5th Dist. No. 16 CA 00002, 2016-Ohio-7500, 2016 WL 6393663. The key to an ineffective assistance of counsel claim is reasonableness. A defense counsel's reasonable and arguable interpretation of law at the time of the action taken cannot rise to the level of ineffective assistance of counsel; this remains true even if the interpretation proves later to be wrong. See State v. McCown , 10th Dist. No. 06AP-153, 2007-Ohio-1417, 2007 WL 902080, ¶ 5 (under Strickland , counsel must not be functioning as counsel in order to be providing ineffective assistance of counsel; the fact that counsel did not foresee how a court would later decide a legal question does not make counsel's performance ineffective assistance of counsel); State v. Martin , 6th Dist. No. C.A. S-79-1 (May 4, 1979) (trial counsel should not be faulted for an interpretation of a statute that is arguable at the time, and counsel will not be held incompetent for failure to comply with the statute, even if it later proves to be wrong); State v. Humphries , 10th Dist. No. 78AP-564, 1979 WL 208860 (Jan. 30, 1979) (petitioner could not possibly establish ineffective assistance of defense counsel of a constitutionally recognized magnitude when counsel was following the law generally believed to be applicable at that time; at most, defense counsel's breach of duty was in not anticipating a later interpretation of an equivocal statute).

{¶ 15} Here, both parties cite debatable but reasonably arguable authority for their differing interpretations of the merger statute as it applies to the present facts. Applying the above cited tenets to this situation, even assuming, arguendo, that appellant's trial counsel was wrong in his interpretation of the merger issue, it would be difficult to find appellate counsel was so seriously deficient that counsel wholly failed to function as the "counsel" guaranteed the defendant by the Sixth Amendment, when neither the state nor appellant can point to clear authority on the relevant issue.

{¶ 16} Importantly, in light of the trial court's findings at the motion hearing, we cannot conclude that trial counsel's interpretation-that the two offenses constituted two separate offenses for which appellant could receive a total of 13 years imprisonment if found guilty of both offenses-was so unreasonable so as to constitute ineffective assistance of counsel. Appellant was indicted on two different counts-a first-degree felony for the 30-milligram Oxycodone pills, and a third-degree felony for the 15-milligram Oxycodone pills. At the conclusion of the motion hearing, the trial court indicated it agreed with appellant's trial counsel that because the pills at issue constituted two different drugs and separate dosages, they were separate offenses. The court concluded, consistent with the opinion of trial counsel, that the maximum penalty, as the court described to appellant at the time of sentencing, would have been ten years on one count and three years on the other count. The court explained appellant's concept of merger or selective enforcement was wrong, as appellant accepted the entire package of pills and possessed it at the time of the offense. The court found there was clearly a separate animus given there were two different types of drugs, even though they were in the same box. Furthermore, the court found that, despite appellant's contention he did not intend to possess as many of the pills that his supplier sent, he still decided to maintain the entire quantity his supplier sent him. That the trial court agreed with appellant's trial counsel strongly supports a conclusion the interpretation of appellant's counsel was not so unreasonable and so seriously deficient that he was not acting as the counsel guaranteed by the Sixth Amendment. Appellant was guaranteed reasonable and competent, but not perfect, counsel. See Bell v. Cone , 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) ; Kimmelman v. Morrison , 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) ; State v. Hall , 10th Dist. No. 04AP-1242, 2005-Ohio-5162, 2005 WL 2387617, ¶ 41, citing State v. Cummings , 10th Dist. No. 90AP-1144, 1992 WL 82783 (Apr. 21, 1992) (a defendant is entitled to a reasonable standard of representation, not perfect representation).

{¶ 17} Furthermore, a trial attorney is not required to engage in futile acts. State v. Ealy , 10th Dist. No. 11AP-750, 2012-Ohio-3336, 2012 WL 3008309, ¶ 17, citing State v. Hillman , 10th Dist. No. 06AP-1230, 2008-Ohio-2341, 2008 WL 2058163, ¶ 46. When a claim of ineffective assistance of counsel is based on counsel's failure to raise an issue, a defendant must show that such an argument had a reasonable probability of success. State v. Ferguson , 10th Dist. No. 16AP-307, 2016-Ohio-8537, 2016 WL 7493650, ¶ 11, citing State v. Carmon , 10th Dist. No. 11AP-818, 2012-Ohio-1615, 2012 WL 1247173, ¶ 9, and State v. Barbour , 10th Dist. No. 07AP-841, 2008-Ohio-2291, 2008 WL 2025847, ¶ 32, citing State v. Adkins , 161 Ohio App.3d 114, 2005-Ohio-2577, 829 N.E.2d 729 (4th Dist.). Here, the trial court agreed with appellant's trial counsel that appellant was subject to a total imprisonment term of 13 years. Thus, the trial court would have rejected any argument by trial counsel that the offenses merged. Therefore, we find there was not a reasonable probability of success had appellant's counsel argued before the trial court that the counts merged.

{¶ 18} For these reasons, we conclude appellant has failed to show his trial counsel was ineffective because he allegedly misadvised him regarding the maximum possible sentence he faced at trial on the two drug charges. Trial counsel's advice was not unreasonable under the circumstances, and, even if counsel had raised such issue with the trial court, the trial court would have rejected the argument, and no prejudice would have resulted.

{¶ 19} Appellant next argues the trial court erred because it did not address him and make an express finding that he entered his guilty plea intelligently, knowingly, and voluntarily. Appellant asserts Crim.R. 11(C)(2) requires a trial court personally address a defendant and determine the defendant made the plea voluntarily and with an understanding of the nature of the charges and the maximum penalty involved. Appellant contends that, if the court had complied with its duty, it would have discovered appellant was misinformed as to the possible maximum sentence he faced at trial.

{¶ 20} However, we need not delve into the details or authority surrounding appellant's claims because appellant's argument is barred by res judicata. Res judicata bars the assertion of claims against a valid, final judgment of conviction that have been raised or could have been raised on appeal. State v. Perry , 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. The applicability of res judicata is a question of law, which an appellate court reviews de novo. EMC Mtge. Corp. v. Jenkins , 164 Ohio App.3d 240, 249, 2005-Ohio-5799, 841 N.E.2d 855, ¶ 15 (10th Dist.), citing Prairie Twp. Bd. of Trustees v. Ross , 10th Dist. No. 03AP-509, 2004-Ohio-838, 2004 WL 344158, ¶ 12.

{¶ 21} As applied to the present circumstances, any issues related to the knowing, intelligent, and voluntary nature of appellant's guilty plea on the aggravated possession of drugs charge could have been raised in a direct appeal. Appellant failed to do so. This court has consistently held that res judicata bars a defendant from raising claims in a post-sentence motion to withdraw guilty plea that were either raised or could have been raised in a direct appeal from the judgment of conviction and sentence. State v. Nooks , 10th Dist. No. 14AP-344, 2014-Ohio-4828, 2014 WL 5494845, citing State v. Muhumed , 10th Dist. No. 11AP-1001, 2012-Ohio-6155, 2012 WL 6738337 ; State v. Hazel , 10th Dist. No. 10AP-1013, 2011-Ohio-4427, 2011 WL 3849677, ¶ 18, citing State v. Ketterer , 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59, 935 N.E.2d 9 (applying res judicata to bar a defendant from raising any issue in a post-sentence motion to withdraw a guilty plea that could have been raised at trial or on direct appeal); State v. Conteh , 10th Dist. No. 09AP-490, 2009-Ohio-6780, 2009 WL 4932721, ¶ 6 ; State v. Oluoch , 10th Dist. No. 07AP-45, 2007-Ohio-5560, 2007 WL 3027074, ¶ 28 ; State v. Totten , 10th Dist. No. 05AP-278, 2005-Ohio-6210, 2005 WL 3113456, ¶ 7. Therefore, res judicata precluded appellant from raising these issues in his motion to withdraw guilty plea. Thus, we find the trial court did not err when it denied appellant's motion to withdraw guilty plea, and we overrule appellant's assignment of error.

{¶ 22} Accordingly, appellant's single assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

LUPER SCHUSTER and HORTON, JJ., concur.


author: MARY J. BOYLE, J.: EILEEN T. GALLAGHER, J., DISSENTING:

text:
    CITY OF CLEVELAND, Plaintiff-Appellee v. John A. KREBS, Defendant-Appellant
    No. 105814
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 1, 2018
    Larry W. Zukerman, S. Michael Lear, Zukerman, Daiker & Lear Co., L.P.A., 3912 Prospect Avenue, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLANT
    Barbara A. Langhenry, Law Director, City of Cleveland, Bryan Fritz, Assistant City Prosecutor, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLEE
    BEFORE: Boyle, J., E.A. Gallagher, A.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Defendant-appellant, John Krebs, appeals from a judgment of the Cleveland Municipal Court convicting him of several misdemeanor traffic offenses stemming from an alleged illegal right-hand turn. He raises three assignments of error for our review:

1. The trial court failed to obtain a valid jury waiver from the Appellant prior to conducting a bench trial in the instant matter, thus violating appellant's constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
2. The trial court's judgments of conviction against appellant are based upon insufficient evidence and in violation of appellant's state and federal due process rights.
3. The judgments of conviction as to all counts are against the manifest weight of the evidence, in violation of appellant's right to a fair trial and due process of law, as guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Section 16 of the Ohio Constitution.

{¶ 2} After careful review of the record, we agree with Krebs's first assignment of error in part, i.e., we agree that the trial court failed to obtain a valid jury waiver on the failure to comply charge. The trial court did, however, have jurisdiction to conduct a bench trial on the two minor misdemeanor offenses: failure to yield to a public safety vehicle and driving on the sidewalk.

{¶ 3} We further agree with Krebs's second assignment of error that the city failed to present sufficient evidence of failure to comply and failure to yield to a public safety vehicle.

{¶ 4} Thus, while we would normally remand Krebs's conviction for failure to comply with a lawful order of police due to the trial court's failure to obtain a valid jury waiver, that is not necessary in this case because the state failed to present sufficient evidence of this charge.

{¶ 5} Finally, we disagree with Krebs that his conviction for driving on a sidewalk is against the manifest weight of the evidence.

{¶ 6} We, therefore, vacate Krebs's convictions for failure to comply with a lawful order of police and failure to yield to a public safety vehicle, and affirm his conviction for driving on the sidewalk.

I. Procedural History and Facts

{¶ 7} In March 2017, Krebs was cited for (1) failure to comply with a lawful police order in violation of Cleveland Codified Ordinances ("CCO") 403.02(A), a first-degree misdemeanor offense, (2) failure to yield to a public safety vehicle in violation of CCO 431.21, a minor misdemeanor offense, and (3) driving on the sidewalk, street, lawn, or curbs in violation of CCO 431.37, a minor misdemeanor offense.

{¶ 8} At his arraignment, Krebs pleaded not guilty to the charges and also signed and filed a written jury demand. On April 26, 2017, the trial court convened for a bench trial. The trial transcript establishes that at the outset of the proceeding the judge gave all parties notice of the previously filed jury demand and asked Krebs if he wanted to proceed to a bench trial. After consulting with his attorney, Krebs stated that he did. There is no indication in the record that Krebs ever executed a written jury waiver before his trial commenced or at any point thereafter. The following facts were presented to the bench.

{¶ 9} On the evening of March 14, 2017, there was a Cleveland Cavaliers game in downtown Cleveland. The game was sold out, and at around 5:30 p.m. there were many pedestrians and vehicles in downtown Cleveland. Rafael Mercado, a Cleveland police officer, was instructed by his supervisor to block the intersection of Prospect Avenue and Huron Road so that vehicles traveling on Prospect Avenue could not drive onto Huron Road.

{¶ 10} Officer Mercado testified that he parked his police vehicle, a sports utility vehicle, in the middle of Prospect Avenue, parallel to the crosswalk on Huron Road, and faced his car forward (east) on Prospect Avenue. In doing so, he said that he blocked cars from turning onto Huron Road from Prospect Avenue. He also activated the lights on his police vehicle. Officer Mercado, who was in his police uniform and wearing a green vest, got out of his vehicle and began directing traffic from all directions away from Huron Road.

{¶ 11} At around 5:30 p.m., Krebs, who was going to the game, was driving east on Prospect Avenue and turned right onto Huron Road to get to the "east garage" to park for the Cavaliers game. Officer Mercado testified that when he saw Krebs's vehicle begin to make the right-hand turn, he was about 15 feet away from Krebs, and he signaled Krebs to stop and began walking toward Krebs's car. Officer Mercado said that Krebs ignored his command, continued turning right onto Huron Road, and that to do so Krebs had to drive onto the sidewalk to "squeeze right through" and avoid hitting Officer Mercado's police vehicle.

{¶ 12} Officer Mercado immediately got into his vehicle, followed Krebs and effectuated a traffic stop. He then issued Krebs the three citations.

{¶ 13} Krebs testified that he saw the police vehicle, but did not see a police officer. He thought that a police officer must be directing traffic on the other side of the police vehicle. Krebs further stated that he did not hear Officer Mercado's command to stop because he had his windows rolled up and his radio on in his car. Krebs stated that when he turned right, he could see that he had "adequate room to get by," make the turn onto Huron Road and that he did not have to drive on the sidewalk to do so. Krebs felt his tires brush the edge of the curb, but he did not drive onto the sidewalk.

{¶ 14} The trial court found Krebs guilty on all counts and sentenced him to a suspended jail term of ten days, with fines amounting to $275 and court costs. It is from this judgment that Krebs now appeals.

II. Jury Waiver

{¶ 15} In his first assignment of error, Krebs argues that the trial court erred in conducting a bench trial instead of a jury trial. We agree in part.

{¶ 16} Under the Ohio Rules of Criminal Procedure, a defendant has the right to be tried by a jury for certain petty offenses, which are generally considered to be misdemeanor offenses carrying up to a six-month term of imprisonment. Crim.R. 23(A), (C) (D).

{¶ 17} Relevant to this appeal, Crim.R. 23(A) states:

In petty offense cases, where there is a right of jury trial , the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto.

(Emphasis added.)

{¶ 18} Although a defendant has a right to a jury trial for certain petty offenses if properly invoked by the dictates of Crim.R. 23(A), the right does not extend to minor misdemeanor offenses. R.C. 2945.17(B)(1).

{¶ 19} Once a defendant has invoked his or her right to a jury trial on applicable petty offenses, R.C. 2945.05 governs how a defendant may go about waiving the previously invoked right. It states:

In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: "I ____, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury."
Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial.

{¶ 20} In interpreting R.C. 2945.05, Ohio courts have been very clear that "to be valid, a waiver [under Section 2945.05 ] must meet five conditions. It must be (1) in writing, (2) signed by the defendant, (3) filed, (4) made part of the record, and (5) made in open court." State v. Lomax , 114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 9 ; State v. Fisher , 8th Dist. Cuyahoga No. 101365, 2015-Ohio-597, 2015 WL 758997, ¶ 21. "Absent strict compliance with the requirements of R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without a jury." State v. Pless , 74 Ohio St.3d 333, 658 N.E.2d 766 (1996), paragraph one of the syllabus.

{¶ 21} In this case, Krebs validly invoked his right to a jury trial on the failure to comply with a lawful police order-a first-degree misdemeanor violation-when he filed a written jury demand that complied with the dictates of Crim.R. 23(A). There is no indication in the record, however, that Krebs ever validly waived his right to be tried by a jury on this charge by signing a written waiver pursuant to R.C. 2945.05. Accordingly, his conviction for failure to comply must be vacated. See State v. Riggins , 2017-Ohio-80, 80 N.E.3d 1156 (9th Dist.) ; State v. White , 5th Dist. Muskingum No. CT2013-0039, 2013-Ohio-5858, 2013 WL 6918869 ; State v. Grier , 2d Dist. Montgomery No. 23662, 2010-Ohio-5751, 2010 WL 4867899.

{¶ 22} With respect to the two minor misdemeanor offenses, however, we find that the court had jurisdiction to conduct a bench trial on them (failure to yield to a public safety vehicle and driving on a sidewalk or curb), because there is no right to a jury trial for minor misdemeanors. R.C. 2945.17(B)(1) ; see also State v. Elder , 11th Dist. Lake No. 2014-L-001, 2014-Ohio-4312, 2014 WL 4825388, ¶ 67 (finding no error where a trial was bifurcated into a bench trial on minor misdemeanor offenses and a jury trial on applicable petty offenses).

{¶ 23} We, therefore, vacate Krebs's conviction for failure to comply in violation of CCO 403.02(A). While we would normally remand for a new trial on this charge, it is not necessary in this case (due to a lack of sufficient evidence for failure to comply as discussed in the next assignment of error).

{¶ 24} Krebs's first assignment of error is sustained in part and overruled in part.

III. Sufficiency of the Evidence

{¶ 25} In his second assignment of error, Krebs argues that there was insufficient evidence to sustain two of his convictions: failure to comply with a lawful police order and failure to yield to a public safety vehicle. Although we vacated Krebs's failure to comply conviction and remanded for a new trial, we must still address the sufficiency of the evidence argument due to double jeopardy concerns. State v. Willis, 8th Dist. Cuyahoga No. 98847, 2013-Ohio-2531, 2013 WL 3177780, ¶ 26 ; State v. Fussell , 8th Dist. Cuyahoga No. 95875, 2011-Ohio-4950, 2011 WL 4485791, ¶ 42. We will, therefore, address both of Krebs's sufficiency arguments.

{¶ 26} " '[S]ufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), citing Black's Law Dictionary 1433 (6th Ed.1990). When an appellate court reviews a record upon a sufficiency challenge, "the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

A. Failure to Comply with Lawful Police Order

{¶ 27} To prove beyond a reasonable doubt that Krebs failed to comply with a lawful order of police under CCO 403.02(A), the prosecution had to establish that Krebs "fail[ed] to comply with any lawful order or direction of any police officer invested with authority to direct, control or regulate traffic." This provision is identical to R.C. 2921.331(A) and, thus, we will use case law interpreting this statute as well.

{¶ 28} CCO 403.02(A), like R.C. 2921.331(A), does not specify a mens rea required to impose criminal liability. When statutes do not specify a mens rea for an offense, courts are guided by R.C. 2901.21, which states in subsection (B):

When the language defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense.

{¶ 29} This statute further states in subsection (C)(1):

When language defining an element of an offense that is related to knowledge or intent or to which mens rea could fairly be applied neither specifies culpability nor plainly indicates a purpose to impose strict liability, the element of the offense is established only if a person acts recklessly.

{¶ 30} This court has adopted the holding in State v. Brewer , 96 Ohio App.3d 413, 645 N.E.2d 120 (2d Dist.1994), which held that R.C. 2921.331(A) is not a strict liability offense, but rather requires the state to prove beyond a reasonable doubt that the defendant acted recklessly. State v. Elliott , 8th Dist. Cuyahoga No. 91999, 2009-Ohio-5816, 2009 WL 3647081, ¶ 64-65, citing Brewer . In Brewer , the trial court dismissed the complaint against the defendant because the state failed to include a mens rea in the complaint for R.C. 2921.331(A). The state argued on appeal that the offense was a strict liability offense.

{¶ 31} The Second District explained that "the rule of law emerging" from cases when a statute does not identity a particular mental state nor does it plainly indicate strict liability, is that the statute "may nevertheless plainly indicate a legislative intent to impose strict liability if the statute is structured so as to proscribe an act with 'expressly differentiated degrees of culpability.' " Id. at 415-416, 645 N.E.2d 120, quoting State v. Parrish , 12 Ohio St.3d 123, 465 N.E.2d 873 (1984). The court explained:

For example, in State v. Wac [68 Ohio St.2d 84, 86, 428 N.E.2d 428 (1981) ], the court found a "plain indication" that the crime of bookmaking as defined in R.C. 2915.02(A)(1) was meant to be a strict liability offense. R.C. 2915.02(A)(1) provides, "No person shall engage in bookmaking, or knowingly engage in conduct that facilitates bookmaking."

{¶ 32} The Second District applied the reasoning in Parrish and Wac to failure to comply with a lawful order of police under R.C. 2921.331(A). It held that because R.C. 2921.331(A) does not prescribe different culpabilities within the subsection, as R.C. 2915.02(A)(1) does, and R.C. 2921.331(B) was a separate offense (requiring the state to prove that the defendant acted willfully), there was "no plain indication in R.C. 2921.331 of an intent to impose strict liability."

{¶ 33} The Second District further stated that there was another reason it would not find R.C. 2921.331(A) to be a strict-liability offense. Id. at 416, 645 N.E.2d 120. It explained that R.C. 2901.21 was enacted in 1974 to implement various principles of the Model Penal Code, which "advocates the view that offenses [that] constitute moral condemnation or for which imprisonment may be imposed should not be strict liability offenses." Id. According to the Model Penal Code, strict liability is reserved "only for offenses punishable by a fine, forfeiture, or similar civil penalty and are not likely to give rise to any additional legal disadvantage as does a 'prior conviction.' " Id.

{¶ 34} The Second District concluded that the potential imprisonment contemplated for violation of R.C. 2921.331(A) lends support to its conclusion that the General Assembly could not have intended for the subsection to impose strict liability. Id. at 416-417, 645 N.E.2d 120. It further stated that "it is axiomatic that 'statutes are to be construed strictly against the state and in favor of the accused.' " Id. at 417, 645 N.E.2d 120. We note that several other districts have also adopted the holding in Brewer that R.C. 2921.331(A) is not a strict-liability offense; rather, it requires the state to prove that the defendant acted recklessly. See State v. Millik , 11th Dist. Trumbull No. 2005-T-0003, 2006-Ohio-202, 2006 WL 156698 ; State v. Shafer , 3d Dist. Hardin No. 6-05-15, 2006-Ohio-4189, 2006 WL 2337609 ; State v. Malcolm , 5th Dist. Licking Nos. 03CA09 and 03CA10, 2003-Ohio-5629, 2003 WL 22400738 ; and State v. Odorizzi , 7th Dist. Belmont No. 98-BA-5, 2001-Ohio-3205, 2001 WL 273840 (Mar. 14, 2001).

{¶ 35} Therefore, to present sufficient evidence that Krebs violated CCO 403.02(a), the prosecution had to prove beyond a reasonable doubt that Krebs acted recklessly in "fail[ing] to comply with any lawful order or direction of any police officer invested with authority to direct, control or regulate traffic."

{¶ 36} The culpability level of reckless is defined in R.C. 2901.22(C), which provides:

A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

{¶ 37} Here, the city argues that Krebs's own admission that he saw the police SUV parked in the street with it lights activated and decided to go around it was sufficient evidence to establish the elements of failure to comply with a lawful order of police. We disagree. Seeing a police vehicle with its lights on and deciding to drive around it is not tantamount to failing to comply with a lawful order. Indeed, under just these facts, there is no failure to comply with anything nor is there even an order, let alone a lawful one.

{¶ 38} In this case, Officer Mercado testified that when he saw Krebs begin to make a right-hand turn onto Huron Road, he was "right in the middle of the intersection," about 15 feet away from Krebs's car, directing traffic from all directions. Officer Mercado testified that Krebs "maybe saw" that Officer Mercado "turned [his] back for a moment," and took that opportunity to turn. Officer Mercado said that when he saw Krebs beginning to make the turn, he "signaled to" Krebs and "started to go toward his car." Yet Krebs continued to turn onto Huron Road.

{¶ 39} Krebs, however, testified that he saw the police vehicle with its lights flashing, but he did not see Officer Mercado. He assumed that there was probably a police officer directing traffic on the other side of the vehicle, but that he did not believe Huron Road was closed. In fact, he said that he could see cars with brake lights on Huron Road, so he believed it to be open.

{¶ 40} After review, we find that these facts simply do not establish that Krebs violated a lawful order of police. He could not have been reckless in violating an order that he did not see.

{¶ 41} When Officer Mercado was asked on cross-examination if it was possible that Krebs saw Officer Mercado's police vehicle, but did not see Officer Mercado. Officer Mercado responded, "I don't know where he was looking, but he needs to pay attention to pedestrians too." If we were to find Krebs's violated a lawful order of police based on this, however, it would amount to strict liability. Yes, Krebs should have been paying attention to pedestrians too, but there is no evidence that he was not doing so. Indeed, Krebs testified that although there were many pedestrians that he could see on Ninth Street and the east side of Huron Road, there were "no pedestrians in the intersection when [he] turned" from Prospect onto Huron. Moreover, even if Krebs was not paying attention to pedestrians, that would not establish that Krebs violated Officer Mercado's order.

{¶ 42} In the city's closing arguments, it argued that when there is a police vehicle in the street with its lights activated, Krebs had to have seen the officer directing traffic. Notably, however, Officer Mercado never testified that he saw Krebs looking at him or make eye contact with him before he turned right onto Huron Road.

{¶ 43} The city further argued in its closing arguments that even if Krebs did not see the officer, he is still guilty of failure to comply with a lawful order of police because Krebs was either not paying attention or he should have seen the officer. The city's argument, however, would only have merit if CCO 403.02(a) was strict liability offense. As we previously stated, failure to comply is not a strict liability offense.

{¶ 44} We have reviewed other cases where there was sufficient evidence of failure to comply with a lawful order of police. In each of them, the evidence established that the defendant was aware of the police order. See Millick , 11th Dist. Trumbull No. 2005-T-0003, 2006-Ohio-202 (defendant argued with the officer's need for the order and thus, there was sufficient evidence that he was aware that the officer had ordered him to stop); State v. Boyle , 11th Dist. Portage No. 2012-P-0003, 2012-Ohio-5581, 2012 WL 5995089 (defendant admitted that he saw the officer's lights and sirens but chose to continue to his house); Cleveland v. Benjamin , 8th Dist. Cuyahoga No. 74660, 1999 WL 608806 (Aug. 12, 1999) (officer told defendant to move her car but defendant refused); Shafer , 3d Dist. Hardin No. 6-05-15, 2006-Ohio-4189 (circumstantial evidence established that defendant knew that he was being pursued by police when defendant accelerated his speed once the officer activated his lights and continued to ignore the officer's order to pull over for over two blocks).

{¶ 45} When the Cleveland Cavaliers have a home game in downtown Cleveland at Quicken Loans Arena, there are typically a lot of police vehicles on the streets in downtown. There are many police officers directing traffic on those streets as well. Yet despite there being a lot of police officers, traffic, and pedestrians, people driving to the game can-and do-get through the traffic to their designated parking lot. While we acknowledge that the Cleveland Police Department's presence in downtown is certainly welcomed-especially when it is extremely busy due to an event-that does not change the fact that in this case, the city failed to establish that Krebs was aware of Officer Mercado's order and recklessly failed to comply with it.

{¶ 46} Accordingly, after a thorough review of the facts in this case, we find that the city failed to present sufficient evidence beyond a reasonable doubt that Krebs failed to comply with a lawful order of police. We, therefore, vacate his conviction for failure to comply.

B. Failure to Yield to a Public Safety Vehicle

{¶ 47} To be convicted of CCO 431.21, failure to yield to a public safety vehicle, the prosecution must prove beyond a reasonable doubt that:

Upon the approach of a public safety vehicle or coroner's vehicle, equipped with at least one (1) flashing, rotating or oscillating light visible under normal atmospheric conditions from a distance of five hundred (500) feet to the front of such vehicle and the driver is giving an audible signal by siren, exhaust whistle, or bell, no driver of any other vehicle shall fail to yield the right-of-way, immediately drive, if practical, to a position parallel to, and as close as possible to, the right edge or curb of the highway clear of any intersection, and stop and remain in that position until the public safety vehicle or coroner's vehicle has passed, except when otherwise directed by a police officer.

{¶ 48} Krebs maintains that he could not have been convicted of CCO 431.21 because the police vehicle was parked, did not have a driver, and was not giving an "audible signal by siren, exhaust whistle, or bell." He further maintains that he could not have been guilty of this provision because he "never failed to yield" to the police vehicle's "right-of-way."

{¶ 49} After review, we agree with Krebs that the city failed to prove that he violated CCO 431.21. The city failed to prove that "a driver" of the public safety vehicle gave an "audible signal by siren, exhaust whistle, or bell" because there was no driver of the police vehicle (the officer was standing in the street) nor was there an audible signal (the police vehicle had it lights activated, but not an audible signal). Further, the city did not establish beyond a reasonable doubt that Krebs failed to "yield the right-of-way" to a public safety vehicle and "stop and remain in such a position until the public safety vehicle" passed him-because there was no public safety vehicle attempting to pass him. This ordinance simply does not apply to the facts in this case.

{¶ 50} Accordingly, we also vacate Krebs's conviction for failure to yield to a public safety vehicle. Krebs's second assignment of error is sustained.

IV. Manifest Weight of the Evidence

{¶ 51} Lastly, Krebs contends that his convictions for all three counts were against the manifest weight of the evidence. Because we already vacated two of his convictions, we will only focus our analysis on his conviction for driving on the sidewalk.

{¶ 52} Unlike sufficiency of the evidence, a challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541 (1997). Because it is a broader review, a reviewing court may determine that a judgment of a trial court is sustained by sufficient evidence, but nevertheless conclude that the judgment is against the weight of the evidence. Id. , citing State v. Robinson , 162 Ohio St. 486, 487, 124 N.E.2d 148 (1955).

{¶ 53} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as a "thirteenth juror." Id. In doing so, it must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine " 'whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the "exceptional case in which the evidence weighs heavily against the conviction." Id.

{¶ 54} To be convicted of driving upon sidewalks, streets, or lawns, the prosecution must prove that the defendant violated the provisions of CCO 431.37, which states:

(a)(1) No person shall drive any vehicle, other than a bicycle, upon a sidewalk or sidewalk area except upon a permanent or duly authorized temporary driveway or without first obtaining a permit from the Director of Public Service.
(b) No person shall drive a vehicle on a street lawn area or the curb of a street, except upon a permanent or duly authorized temporary driveway or when otherwise lawfully authorized.

{¶ 55} At the trial in this case, the officer who cited Krebs testified that he had placed his police vehicle in the middle of the road to prevent traffic from turning right onto the street. The officer testified that he witnessed Krebs drive onto the curb and sidewalk in order to avoid the police vehicle blocking the road. Although Krebs took the witness stand and testified that he did not drive on the curb or sidewalk, the trial court was free to believe the officer over Krebs. The trier of fact is best able "to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.

{¶ 56} Accordingly, we do not find that Krebs's conviction for driving upon sidewalks, streets, or lawns was against the manifest weight of the evidence. Krebs's third assignment of error is therefore overruled.

V. Conclusion

{¶ 57} We affirm Krebs's conviction for driving on the sidewalk, but vacate his convictions for failure to comply with a lawful police order and failure to yield to a public safety vehicle.

{¶ 58} Judgment affirmed in part, reversed in part, and remanded for the trial court to issue a new judgment reflecting the holding in this case.

EILEEN A. GALLAGHER, A.J., CONCURS;

EILEEN T. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION

EILEEN T. GALLAGHER, J., DISSENTING:

{¶ 59} I concur with the majority's resolution of Krebs's first and third assignments of error. I further concur with the majority's determination that Krebs's failure to yield conviction was not supported by sufficient evidence. However, I respectfully dissent from the majority's holding that Krebs's conviction for failure to comply with a lawful police order was not supported by sufficient evidence.

{¶ 60} In this case, Krebs was convicted of failure to comply with a lawful order of a police officer, in violation of CCO 403.02(A). The ordinance provides:

No person shall fail to comply with any lawful order or direction of any police officer invested with authority to direct, control, or regulate traffic.

{¶ 61} I agree with the majority that CCO 403.02(A) mirrors the language contained in R.C. 2921.331(A). As the majority states, this court has held that R.C. 2921.331(A) is not a strict liability offense and requires the state to prove recklessness. State v. Elliott , 8th Dist. Cuyahoga No. 91999, 2009-Ohio-5816, 2009 WL 3647081, ¶ 63-65. R.C. 2901.22(C) provides the following definition for recklessness:

[a] person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.

{¶ 62} In this case, Officer Mercado testified that he parked his police vehicle near the intersection of Prospect Avenue and Huron Road in order to block access to Huron Road. The police vehicle was parked parallel with the crosswalk on Huron Road and its emergency lights were activated in order to bring attention to the closed roadway. While directing traffic, Officer Mercado observed Krebs drive his vehicle around the parked police vehicle in order to access the blocked roadway. Officer Mercado stated that when he observed Krebs begin to turn onto the blocked roadway, he immediately walked towards Krebs's vehicle and unsuccessfully "signaled" for him to stop. According to Officer Mercado, Krebs had to drive onto the sidewalk in order to "squeeze" past the police vehicle.

{¶ 63} Based on the foregoing testimony, I would find the state presented sufficient evidence that Krebs recklessly failed to comply with a lawful order or direction of a police officer who was invested with authority to direct, control, or regulate traffic. Collectively, the evidence presented at trial establishes that Officer Mercado was lawfully regulating traffic by blocking access to Huron Road for public safety at the time Krebs ignored Officer Mercado's order to stop and accessed Huron Road. In short, I believe Krebs disregarded substantial and justifiable risks by driving around the carefully positioned police vehicle, over the sidewalk, and onto the blocked roadway.

{¶ 64} I recognize that Krebs testified that he did not observe Officer Mercado directing traffic or see Officer Mercado's commands to stop until after he turned onto Huron Road. However, whether Krebs saw Officer Mercado directing traffic or saw his command to stop goes to the weight of the evidence and is a matter left to the sound discretion of the trier of fact. While Krebs contends that he did not see Officer Mercado, he admits that he observed the police vehicle parked in the middle of the intersection before he decided to drive around the police vehicle and onto Huron Road. Furthermore, Officer Mercado testified that he was just 15 feet, or five yards, away from Krebs's vehicle when he signaled for him to stop. Under the totality of these circumstances, I would defer to the trial court's assessment of credibility and find that a reasonable trier of fact could conclude that Krebs was aware of Officer Mercado's presence and disregarded his lawful order to not turn onto the blocked roadway.

{¶ 65} Furthermore, I am not convinced the state was required to prove that Krebs saw Officer Mercado directing traffic in order to prosecute the failure to comply offense. I believe a reasonable person would understand that a roadway is not accessible, pursuant to a lawful order or direction of a police officer, when an officer activates his or her vehicle's emergency lights and parks the vehicle in such a manner so as to intentionally block access to that roadway.

{¶ 66} Accordingly, I would affirm Krebs's failure to comply conviction.

      Failure to yield to a public safety vehicle (discussed in the next section), however, is a strict liability offense. See State v. Taylor , 7th Dist. Mahoning No. 14MA5, 2015-Ohio-745, 2015 WL 877906 ; State v. Pottenger , 4th Dist. Highland No. 602, 1986 WL 12403 (Nov. 4, 1986) ; Mt. Vernon v. Holton , 41 Ohio App.3d 210, 535 N.E.2d 339 (5th Dist.1987).