author: PIETRYKOWSKI, J.

text:
    STATE of Ohio, Appellant v. Charles JEKO, Appellee
    No. L-17-1143
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: February 23, 2018
    Julia R. Bates, Lucas County Prosecuting Attorney, and Andrew J. Lastra, Assistant Prosecuting Attorney, for appellant.
    DECISION AND JUDGMENT
   PIETRYKOWSKI, J.

{¶ 1} Appellant, state of Ohio, appeals from the June 1, 2017 judgment of the Lucas County Court of Common Pleas granting the motion of appellee, Charles Jeko, for a new trial. For the reasons which follow, we reverse.

{¶ 2} On appeal, appellant asserts a single assignment of error:

THE TRIAL COURT DECISION GRANTING THE DEFENDANT A NEW TRIAL IS AN ABUSE OF DISCRETION BECAUSE THE DECISION IS UNREASONABLE, ARBITRARY, AND UNCONSCIONABLE IN LIGHT OF THE EVIDENCE ADDUCED AT TRIAL AND AFTER CONSIDERATION OF THE ACTIONS OF THE DEFENDANT AND DEFENSE COUNSEL DURING TRIAL AS THOSE ACTIONS RELATE TO THE APPEARANCE OF THE VICTIM, MARIELLE DUSA AT TRIAL.

{¶ 3} The following evidence was admitted at trial. The Toledo police officer dispatched to the scene of an alleged assault in the early morning hours of July 26, 2016, testified he found the victim sitting on a curb on Upton Avenue. She had a large amount of blood on her forehead and mouth but no injuries on her knees or hands. The officer photographed her injuries at the hospital. The victim told the officer that she had been at a bar near the corner of Upton and Berdan and met Jeko. The victim told the officer she had been pulled by Jeko toward his business/apartment and had hit her. The officer testified he did not recall the odor of Mace or pepper spray and could not recall seeing a can of Mace in the area. The officer also spoke to an eyewitness at the scene but did not check the eyewitness's line of sight to determine what he could have seen from his house and did not question any other neighbors.

{¶ 4} The witness who had called 911 testified he was checking his mail on his enclosed front porch that morning when he heard a commotion and arguing. He opened the porch door to see what was going on. When he heard a woman's scream, he left the porch and observed Jeko punch the victim in the face, knocking her out, and she fell into the street hitting her head on the asphalt. He immediately went to the woman and waved off traffic so she would not be hit by a car. His 911 call was played for the jury. The witness further testified he knew Jeko by his first name only and that he owned the nearby business. The witness did not know the victim. As the witness went to the victim, he saw Jeko casually walk to his apartment. The witness did not see Jeko put his hands up to his face. He further testified he never saw the victim spray Jeko with Mace and did not smell anything unusual in the area. He identified photographs of the area and indicated where he was standing and where the assault occurred.

{¶ 5} The police detective who investigated the assault testified that he met the victim at the hospital. He observed that she had a contusion and bruising, which looked like "road rash." She had a contusion on her lip and a laceration on her head. The victim's medical records were admitted into evidence and indicate that the lip injury required three sutures and the wound to the head was glued closed. The records also contain the statement of the victim that she believed she had passed out more than once.

{¶ 6} The victim told the detective that Jeko pulled and dragged her two and one-half blocks toward his business. She never mentioned having or using Mace. The detective went to the scene of the crime to investigate. He was unable to locate Jeko that day and the next day. He spoke to the eyewitness over the phone.

{¶ 7} The detective explained that the victim's absence from trial and lack of cooperation with the investigation, based on his professional experience, was due to a fear of retribution. He and others attempted several times to personally serve a subpoena on the victim, but no one answered the door at her home. She also could not be reached by telephone.

{¶ 8} The detective further testified he was familiar with Mace and has previously used it in his work. He testified it is a chemical aerosol agent, with a pungent odor, that comes out of a canister in a stream. The person spraying the Mace cannot help but get some of it on themselves. He further testified that he could not recall smelling Mace on the victim when he talked to her at the hospital. He believed the Mace could be washed off with 5-10 minutes of flushing the face with water.

{¶ 9} Jeko testified he is 48 years old, a former boxer, and weighs 225 pounds. He also testified the victim is 25 years old, 5' 8? tall, and weighs 145 pounds (although the medical records from that day indicated she weighed 130 pounds). He stated that he and the victim have had a tumultuous relationship for about four years and they argued a lot because she wanted money to support her heroin addiction. Regarding the events of July 26, 2016, Jeko testified he texted to the victim that he would be at a nearby bar and she met him there. She immediately began asking for money. He noticed she appeared to be in a "fogged" state like she was on heroin. They argued for about an hour and, when he was ready to leave, the bartender wanted Jeko to take the victim with him and Jeko also did not want to leave her there while she was in her confused condition. He denied pulling her toward his apartment.

{¶ 10} When they were near his business/apartment, Jeko testified they were arguing about money. The victim turned to grab something out of her purse and he expected to see her knife he knew she carried. Instead, it was a little tube and she sprayed him in the face with Mace. He pushed her away and she screamed. She sprayed him a second time in the face and he struck her. Based on her injuries he presumed he had struck her with his open left fist, which he admitted caused the injuries she sustained. He walked into his apartment to wash off the Mace, which took 5-10 seconds, and never heard the buzzer to the door of his shop. He did not call the police because they had not done anything about a prior report he made when the victim robbed him. He also did not call the police about the victim because she had stolen his phone. When he learned that there was a warrant for his arrest, he turned himself in to the police.

{¶ 11} Jeko was convicted by a jury on January 26, 2017, of one count of felonious assault. Before he was sentenced, Jeko's Crim.R. 33 motion was granted by the trial court on June 1, 2017. In its sole assignment of error, appellant challenges the granting of the motion for a new trial.

{¶ 12} In his motion, Jeko argued, pursuant to Crim.R. 33(B)(2) and (6), that a new trial was necessary because of newly discovered evidence, which was exculpatory and suppressed, in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as the result of the misconduct by appellant. Jeko supported his motion with the affidavit of the victim; a videotape of the courtroom showing the unavailable witness/victim enter the courtroom during closing argument and being immediately escorted out without the knowledge of defense counsel; and a can of Mace the victim found in her apartment, which she attested she had given to an attorney assisting the defense on March 1, 2017.

{¶ 13} The trial court rejected the claim of misconduct by appellant and a Brady violation. Jeko did not appeal the judgment. Therefore, we review only his claim that a new trial was warranted because of newly-discovered evidence. Jeko asserted there were three pieces of newly-discovered evidence: 1) that the victim had appeared at trial but was escorted out without the knowledge of the defense; 2) the victim's affidavit; and 3) the can of Mace used by the victim.

{¶ 14} Pursuant to Crim.R. 33(A)(6), the discovery of newly-discovered evidence can warrant a new trial. To grant a new trial on this ground, "it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence." State v. Petro , 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.

{¶ 15} Because the trial court exercises discretion in ruling on the motion for new trial, an appellate court reviews the trial court judgment under an abuse of discretion standard. State v. Matthews , 81 Ohio St.3d 375, 378, 691 N.E.2d 1041 (1998). The term " 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams , 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980) (citations omitted).

{¶ 16} First, we find the appearance of the victim near the end of the trial is not evidence and will not justify a new trial under Crim.R. 33(B)(6). The second and third pieces of evidence relate to the victim's can of Mace and her affidavit indicating she pointed a can of Mace at Jeko prior to him striking her. In essence, the "newly-discovered evidence" is the victim's recanting of her earlier statements that Jeko had attacked her.

{¶ 17} First, this "newly-discovered evidence" does not justify a new trial because it merely contradicts evidence presented at trial or impeaches a witness. Petro at 509, 76 N.E.2d 370 ; State v. Robertson , 1st Dist. Hamilton No. C-160681, 2017-Ohio-7225, 2017 WL 3499834, ¶ 24 ; State v. Arnold , 189 Ohio App.3d 507, 2010-Ohio-5379, 939 N.E.2d 218, ¶ 14 (2d Dist.).

{¶ 18} In the case before us, witnesses testified that they did not smell anything unusual, such as Mace, at the site of the crime and the officers testified that they did not smell Mace on the victim. An eyewitness testified he never saw Jeko put his hands up by his face. Since the victim did not testify, her subsequent affidavit did not present anything more than contradictory evidence. The fact that the victim recanted her prior statement to the prosecution that Jeko had assaulted her and that she pointed a can of Mace at him is insufficient to establish a strong probability that a new trial would result in an acquittal.

{¶ 19} Second, the victim's affidavit is not newly-discovered evidence. Jeko was required to "establish that, with due diligence, this evidence could not have been presented at trial." State v. Seiber , 56 Ohio St.3d 4, 17-18, 564 N.E.2d 408 (1990). Accord State v. Hooks , 12th Dist. Warren No. CA2000-01-006, 2000 WL 1336630, at *6-7 (Sept. 18, 2000) ; State v. Patton , 9th Dist. Summit No. 17432, 1996 WL 63028, at *3-4 (Feb. 14, 1996). The trial court abuses its discretion when it grants a motion for a new trial when "the record contains no 'clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely.' " State v. Johnson , 8th Dist. Cuyahoga No. 85416, 2005-Ohio-3724, 2005 WL 1707012, ¶ 72 (citation omitted) (while this case addresses the discovery of evidence in relation to an untimely-filed motion for a new trial, the same analysis applies to proving the inability to discover evidence at the time of trial).

{¶ 20} Since Jeko asserted in his defense the victim sprayed him with Mace, which provoked him to strike out at her, this knowledge enabled him to question the victim and call her as a witness or search for the can of Mace. Jeko presented no evidence that he used all reasonable means to contact the victim or find the can of Mace. Therefore, we find the trial court abused its discretion in granting the motion for a new trial. Appellant's sole assignment of error is found well-taken.

{¶ 21} Having found that the trial court did commit error prejudicial to appellant and that substantial justice has not been done, the judgment of the Lucas County Court of Common Pleas is reversed. This case is remanded to the trial court for further proceedings consistent with this judgment. Jeko is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed.

Thomas J. Osowik, J.

James D. Jensen, J.

CONCUR.


source: Caselaw Access Project

author: DONOVAN, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Dennis L. BAKER, Defendant-Appellant
    NO.: 27593
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on February 23, 2018
    MATHIAS H. HECK, JR., by ALICE PETERS, Atty. Reg. No. 93945, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, 301 W. Third Street, Fifth Floor, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.
    CHARLES SLICER III, Atty. Reg. No. 59927, 426 Patterson Road, Kettering, Ohio 45419, Attorney for Defendant-Appellant.
   DONOVAN, J.

{¶ 1} This matter is before the Court on the May 22, 2017 Notice of Appeal of Dennis L. Baker. Baker appeals from his judgment entry of conviction, following pleas of no contest, to two counts of having weapons while under disability (prior drug conviction), in violation of R.C. 2923.13(A)(3), felonies of the third degree, and one count of tampering with evidence (alter/destroy), in violation of R.C. 2921.12(A)(1), also a felony of the third degree. The events giving rise to this matter occurred when Baker's fiancé, Elonda Lewis, died by suicide after shooting herself in the chest, and Baker concealed a second loaded weapon in their home from responding police officers. The court merged the offenses of having weapons while under disability and imposed a sentence of 24 months, as well as a sentence of 24 months for tampering with evidence, to be served concurrently, for a total sentence of 24 months. We hereby affirm the judgment of the trial court.

{¶ 2} Baker was indicted on August 31, 2016, and he pled not guilty on September 27, 2016. On March 23, 2017, Baker withdrew his pleas of not guilty and pled no contest to each offense. At the plea hearing, defense counsel indicated to the court that "we've had some plea discussion. Mr. Baker, what he's going to do is to tender pleas of no contest as charged in the indictment. No agreement with regard to sentencing or pre-sentence investigation." The court then ascertained that Baker was 41 years old, that he is able to read and write, that he was not under the influence of alcohol, drugs or medication, and that he was not currently on community control sanctions or post-release control. The court advised Baker of the nature of the charges against him and the penalties that could be imposed on each offense, namely "a prison term of 9, 12, 18, 24, 30 or 36 months on each of those three offenses." The court ascertained Baker's understanding thereof. The court advised Baker regarding post-release control. The court further advised Baker that he was eligible for community control, and the court ascertained that no promises were made to Baker to induce his plea. The court advised Baker that a plea of no contest is "not an admission to your guilt but it's an admission of the truth of the facts contained in the indictment itself." The court engaged Baker in a thorough Crim.R. 11 colloquy, and the prosecutor read a statement of the charges. The court inquired whether Baker had the opportunity to discuss all aspects of his case with counsel, and Baker responded affirmatively. The court concluded as follows:

The Court finds the defendant did appear in open court, and after being advised orally by the Court of the contents of the entry, waiver and plea of indictment, did sign his name; that he understood the waiver of giving up his constitutional rights and did so knowingly, intelligently, voluntarily waived those rights.
The Court further finds the defendant understood the nature of the offense, the maximum penalties that could be imposed, that he is eligible for community control sanctions, may be required to pay a fine, restitution, court costs and other financial sanctions. Court further finds the defendant understood the effect of his plea, that the plea was made voluntarily, and that there is a factual basis for that plea.
Sir, I am going to accept your plea of no contest, and at this time the Court finds that the prosecution has proven each and every element beyond a reasonable doubt, and the Court makes a finding of guilty based upon the facts of the indictment and the plea itself.

The court ordered a pre-sentence investigation report.

{¶ 3} On April 18, 2017, Defendant's Sentencing Memorandum was filed. The memorandum provides that "there were two handguns recovered at the scene and Baker made statements indicating that while he had never before seen the gun used by Lewis, he was aware that there were guns * * * in the house." It further provides that Baker "panicked and made a poor decision in moving the [weapon]. He realizes that and knows he must suffer the consequences of his decisions." Baker requested community control sanctions.

{¶ 4} On April 19, 2017, Baker was sentenced. Baker spoke to the court at length about the circumstances that led to his charges and his belief that he should not be sentenced to prison. Baker indicated in part as follows:

Now, from the beginning, this whole scenario basically my longtime fiancé, she died. Now, that was a very tragic situation. You know, and I ain't going to lie. In a moment I reacted wrong, but I wasn't trying to break the law. I was trying to prevent breaking the law. Now, I know that seems backwards, but this is a narrative, you understand what I'm saying? Just like when it happened they made it seem like I shot her. You understand what I'm saying? This is a narrative.
I was just in a bad scenario. And I didn't know what to do. At the time, the woman I been living with for 15 years was dying, and I didn't know how to react or what was going on. What I didn't want to do was be right where I am here in trouble behind some guns I had no knowledge of. I had not been home for three days. I was out of town. I hadn't been home a[n] hour. I hadn't been in the room in which all this tooken (sic) place at all. You understand what I'm saying?
I was in a very bad scenario. One of the most tragic days of my life. In that day, I lost my wife, my job, my home and all my worldly possessions because-she committed suicide. I didn't want to be a part of this. You know, and it's not like I was trying to do this anymore. That's why I got a job. * * *
I have been caught with a gun before. It was in 1997. What I'm trying to tell you is that for this to be a thing about me going to prison or anything like that, there's nothing to be gained from this. I can't be rehabilitated from her suicide.
* * *
THE DEFENDANT: Well, truthfully here for me to do-I don't like to turn the way he told me how this was all going to resolve. They offered me two years from the beginning. I didn't want it. I feel like it's not-it's not justice. There's no justice in it. There's no justice in sending me to prison for this. There's nothing to gain. I'm not going to be rehabilitated. There's nothing to rehabilitate me from. She killed herself. I made a bad mistake in a bad scenario. You know what I'm saying? If it weren't for the narrative they made, they wanted to make it seem like I killed her. Most people would feel sorry for me. I'm pretty sure you're married. And I'm pretty sure if your wife had a similar scenario, the last thing you would want to be done is punished.

{¶ 5} The following exchange occurred:

THE COURT: * * *
Mr. Baker, the Court hears exactly what you have said, and it's not without empathy that I have for you. I know you went through something tragic, but the sentence of the Court has really nothing to do with the death. It's the fact that you were a convicted felon and you were in possession of a weapon, and you tried to hide evidence of that, and that's the reason that I'm doing what I'm doing.
I have considered the purposes and principles of sentencing in the Ohio Revised Code 2929.11, and the seriousness and recidivism factors in 2929.12.
MR. PENTECOST: Your Honor, if I may interrupt. Excuse me. Mr. Baker has indicated that before you actually impose sentence he would like to request to withdraw his plea.
THE COURT: There's no motion before the Court, and you certainly can file any motion that you wish to, Mr. Pentecost.
MR. PENTECOST: (Indiscernible-background noise) while we're on the record.
THE COURT: That's fine. I will consider it duly filed, but I'm not going to consider it until it's before me in writing.
Mr. Baker, I also take into account that this was your seventh felony conviction and your history shows a pattern of weapon ownership and guns. You knew you weren't supposed to have guns, and somehow or other there's a gun in the house that you actually tried to hide.

The court then proceeded to sentence Baker.

{¶ 6} Baker asserts two assignments of error herein which we will consider together. They are as follows:

DEFENDANT-APPELLANT CONTENDS THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION BY FAILING TO HOLD A HEARING ON HIS PRE-SENTENCE MOTION TO WITHDRAW HIS NO CONTEST PLEA.
And,
DEFENDANT-APPELLANT CONTENDS THE TRIAL COURT ERRED BY DENYING MR. BAKER THE RIGHT TO DUE PROCESS BY NOT GIVING FULL AND FAIR CONSIDERATION TO THE DEFENDANT'S MOTION TO WITHDRAW HIS NO CONTEST PLEA. ["SUCH HEARING MUST COMPLY WITH THE MINIMUM STANDARDS OF DUE PROCESS, I.E., MEANINGFUL NOTICE AND AN OPPORTUNITY TO BE HEARD." STATE V. ROBINSON , 8TH DIST. CUYAHOGA NO. 89651, 2008-OHIO-4866, 2008 WL 4356000, ¶ 24, CITING FUENTES V. SHEVIN , 407 U.S. 67, 80, 92 S.CT. 1983, 32 L.ED.2D 556 (1972) ].

{¶ 7} Baker asserts that he "had no opportunity to be heard on the reasoning for withdrawing his plea, nor did he have the opportunity to present evidence or testimony to support his motion. By overlooking Mr. Baker's motion without a proper hearing and proceeding with sentencing, the court erroneously denied Mr. Baker due process." Baker directs our attention to State v. Bush , 2d Dist. Clark Nos. 2015-CA-39-42, 2016-Ohio-5536, 2016 WL 4494457.

{¶ 8} The State responds that "Baker's oral motion to withdraw his no contest pleas was made in the middle of his sentencing hearing and while the trial court was already in the process of imposing his sentence. The trial court advised Baker and his counsel that he could file a motion, but the court would not consider it until it was before the court in writing." The State notes that Baker failed to file a written motion to withdraw his pleas, and that "Baker provided no basis for his request to withdraw his pleas. Consequently, Baker failed to properly raise this issue before the trial court. He also failed to request a continuance or to object to the trial court continuing with sentencing."

{¶ 9} According to the State, since "Baker made his oral motion to withdraw his pleas after the trial court indicated that it was going to sentence him to prison, his motion should be analyzed under the post-sentence standard." The State argues that "Baker failed to meet his burden of establishing manifest injustice. He failed to provide the trial court with any specific reason for his request to withdraw his pleas." The State asserts that there "is nothing in the record to indicate that Baker's request to withdraw his pleas was anything more than a change of heart after learning that he would be sentenced to prison time rather than community control sanctions." The State argues that Baker's assigned errors are subject to plain error review due to his failure to object to the trial court's proceeding with sentencing after he requested to withdraw his pleas.

{¶ 10} Crim.R. 32.1 governs the withdrawal of guilty pleas and provides: "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea."

{¶ 11} Before addressing the merits of Baker's argument, we must determine the standard applicable to his oral motion to withdraw his pleas. As this Court has previously noted:

Although "a presentence motion to withdraw a guilty plea should be freely and liberally granted[,] * * * a defendant does not have an absolute right to withdraw a plea prior to sentencing." State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). In such situations, "the trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea." Id. Furthermore, "[a]bsent an abuse of discretion on the part of the trial court in making the ruling, its decision must be affirmed." Id.
In contrast, "[a] defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice." State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. The Supreme Court of Ohio has defined "manifest injustice" as " 'a clear or openly unjust act.' " State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), quoting Webster's Third New International Dictionary 1164, 1375 (1986).
The Supreme Court of Ohio has also stressed that post-sentence withdrawal "is allowable only in extraordinary cases." (Citation omitted.) Smith at 264 [361 N.E.2d 1324]. Furthermore, "[a] motion made pursuant to Crim.R. 32.1 is addressed to 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." Id. at paragraph two of the syllabus.

State v. Berry , 2d Dist. Greene No. 2013-CA-34, 2014-Ohio-132, 2014 WL 201526, ¶ 26-28.

{¶ 12} As this Court has further noted:

When a defendant discovers before sentencing the particular sentence a trial court intends to impose, we have held that a pre-sentence motion to vacate his plea ordinarily should be treated as a post-sentence motion. This is so because a defendant cannot test the sentencing waters and then move to vacate his plea just before sentencing if he receives an unpleasant surprise. State v. Wallen , Montgomery App. No. 21688, 2007-Ohio-2129 [2007 WL 1299706], ¶ 22.

State v. Simpson , 2d Dist. Montgomery No. 24266, 2011-Ohio-6181, 2011 WL 6016056, ¶ 8.

{¶ 13} "Moreover, an evidentiary hearing is not required on every post-sentence motion to withdraw a plea. The movant must establish a reasonable likelihood that withdrawal of his plea is necessary to correct a manifest injustice before a trial court must hold a hearing on his motion. State v. Humphrey , Montgomery App. No. 19243, 2002-Ohio-6525 [2002 WL 31682046] at ¶ 42." State v. Stewart , 2d Dist. Greene No. 2002-CA-28, 2004-Ohio-3574, 2004 WL 1506252, ¶ 6.

{¶ 14} We initially note that Baker's reliance upon Bush is misplaced. Therein, Bush pled guilty to multiple charges in exchange for the dismissal of others, and the matter was set for sentencing. Id. , ¶ 3-4. Bush failed to appear for sentencing and was apprehended in Maryland five months later. Id. , ¶ 5. At his subsequent sentencing hearing, "defense counsel advised the court that his client wanted to discharge him and have a public defender appointed to pursue a motion to withdraw his plea in three of the four cases. Before Bush was given an opportunity to testify or speak, the trial court denied the request." Id. When asked if he had anything to say prior to sentencing, "Bush explained that the reason for his desire to withdraw the plea was his belief that the victim of some of the offenses had changed her story and that he had other information about the offense that would provide a defense. He also stated that he had paperwork to prove everything, but no documents were entered into evidence, and no witnesses were called." Id.

{¶ 15} This Court applied the pre-sentence standard of review to Bush's motion to withdraw his plea and concluded that the trial court abused its discretion in failing to conduct a hearing on Bush's motion. Id. , ¶ 9. This Court determined as follows:

* * * Since the ultimate question is whether Bush has a "reasonable and legitimate basis" to withdraw his plea, other than a change of heart, we examine the record made at the sentencing hearing to determine if Bush was given an adequate opportunity to establish the factual basis for his motion. Although Bush was given an opportunity to explain the basis for his motion, he was not provided the opportunity to give sworn testimony, and neither defense counsel nor the prosecutor was given any opportunity to present evidence. Bush referred to documents as evidence for his position, but he was not given the opportunity to present any documentary evidence. * * *
Bush's factual assertions focused on one of the victim's alleged recantations of certain facts she had alleged concerning the domestic dispute, but Bush was not given any opportunity to call any witnesses to develop or verify his factual allegations. Although it is not clear whether his factual allegations would provide Bush with a valid defense to the charges, this lack of clarity is the very reason why a full evidentiary hearing was necessary. On this record, it is not possible for us to determine whether the reason for Bush's desire to withdraw his plea was merely a change of heart, or based on a reevaluation of available valid defenses because of a change in witness testimony.
Accordingly, we find that the trial court abused its discretion by failing to postpone the sentencing hearing and to set the request to withdraw the plea for an evidentiary hearing prior to sentencing. * * *

Id. , ¶¶ 12-14.

{¶ 16} Unlike in Bush , we conclude that the post-sentence standard applies herein, and that Baker failed to meet his burden of proving manifest injustice. In other words, we conclude that Baker had a change of heart upon learning that the court intended to impose a prison sentence, and a change of heart does not rise to the level of manifest injustice. Baker made clear in his presentence memorandum and at his plea hearing that he did not believe that a prison term was warranted due to the tragic circumstances surrounding his offenses. He initially did not indicate that he wanted to withdraw his pleas. However, once the court indicated to Baker that "the sentence of the Court has really nothing to do with the death," and that it considered the purposes and principles of sentencing in R.C. 2929.11 and the serious and recidivism factors in R.C. 2929.12, Baker recognized his plea for community control had been rejected and that the court intended to impose a prison sentence. He immediately interrupted the sentencing hearing to request to withdraw his pleas, without providing any basis for their withdrawal. The court advised Baker that he was free to file a written motion to withdraw his pleas, which the court would consider, and he elected not to do so. In contrast, Bush advised the court that his factual allegations would provide a valid defense to his charges, and the court was accordingly required to determine whether there was a reasonable and legitimate basis for the withdrawal of his plea at a hearing. Unlike in Bush , Baker acknowledged his wrongdoing herein, and no hearing was required. Since no clear or openly unjust act appears in the record herein, we conclude that this is not an extraordinary case warranting the post-sentence withdrawal of Baker's pleas. Baker's assigned errors are accordingly overruled, and the judgment of the trial court is affirmed.

FROELICH, J. and HALL, J., concur.

      These statements by Baker reveal a knowledge of the imminent two-year sentence.


author: SINGER, J.

text:
    STATE of Ohio, Appellee v. Steven H. DORNOFF, Jr., Appellant
    No. WD-16-072
    Court of Appeals of Ohio, Sixth District, Wood County.
    Decided: August 3, 2018
    Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
    Lawrence A. Gold, for appellant.
    DECISION AND JUDGMENT
   SINGER, J.

{¶ 1} Appellant, Steven H. Dornoff, Jr., appeals the September 14, 2016 judgment of the Wood County Court of Common Pleas, where he was sentenced to 15 years of incarceration, following acceptance of his negotiated guilty plea agreement. For the reasons which follow, we vacate and remand.

{¶ 2} Appellant sets forth the following assignments of error:

1. The trial court erred to the prejudice of appellant in accepting a guilty plea, which was not made knowingly, in violation of appellant's due process rights under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 16 of the Ohio Constitution.
2. The trial court erred to the prejudice of appellant by denying his motion to withdraw his plea.

Background

{¶ 3} On September 3, 2015, appellant was charged in a six-count indictment with three counts of rape with firearm specifications, one count of felonious assault with a sexual motivation specification, one count of felonious assault with firearm and sexual motivation specifications and one count of kidnapping with a sexual motivation specification. Appellant entered a plea of not guilty. The charges stem from an incident which occurred on August 29, 2015, when appellant drove a woman to a cemetery, allegedly threatened her and struck her on the head with a rifle, then raped her.

{¶ 4} On September 7, 2016, a jury trial commenced. The trial concluded on September 8, 2016, when the court became aware that appellant agreed to enter a plea. On September 12, 2016, appellant entered a guilty plea to one count of rape with a firearm specification, one count of felonious assault with a sexual motivation specification and one count of kidnapping with a sexual motivation specification. On the document entitled "Plea of Guilty to Amended Indictment and Waiver of Trial by Jury," it provided in relevant part that "[t]he defendant is also aware that he will be required to register as a Tier 2 and Tier 3 Sexual Offender."

{¶ 5} Sentencing proceeded immediately after the plea was accepted. Appellant was sentenced to 11 years in prison on the rape count, 4 years in prison on the felonious assault count and 11 years in prison on the kidnapping count. The rape and the kidnapping counts were ordered to be served concurrently, for an aggregate sentence of 15 years of incarceration. The remaining counts of the indictment were dismissed. The court filed its judgment entry on September 14, 2016.

{¶ 6} On September 30, 2016, appellant filed with the trial court a pro se motion to withdraw his plea. The court denied the motion on October 3, 2016. Appellant filed another motion to withdraw his plea with the trial court, on November 3, 2016. This second motion was also denied by the court.

{¶ 7} On December 28, 2016, appellant filed with this court a motion for leave to file a delayed appeal; we found appellant's motion well-taken. Appellant then filed his appeal.

Assignment of Error No. 1

{¶ 8} Appellant argues his plea was not knowingly or voluntarily offered as the trial court did not discuss registration duties, community notification requirements, duration or penalties associated with being classified as a Tier III sexual offender prior to accepting his guilty plea. In addition, appellant contends his plea document did not provide specific information pertaining to Tier III registration requirements. Appellant submits the court's failure to inform him of Tier III registration requirements should be viewed as a complete failure to comply and his plea must be vacated without a showing of prejudice.

Law

Crim.R. 11

{¶ 9} Crim.R. 11(C) governs guilty and no contest pleas in felony cases.

Before a trial court may accept a guilty plea, it must address the defendant personally and inform him of, and ensure that he understands, "the nature of the charges and of the maximum penalty involved" and the "effect of the plea of guilty." Crim.R. 11(C)(2)(a) and (b). The underlying purpose of Crim.R. 11(C) is to ensure that the information a defendant needs to make a voluntary and intelligent decision about pleading guilty is conveyed to him. State v. Ballard , 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981).

{¶ 10} "If a trial court fails to literally comply with Crim.R. 11, reviewing courts must engage in a multitiered analysis to determine whether the trial judge failed to explain the defendant's constitutional or nonconstitutional rights and, if there was a failure, to determine the significance of the failure and the appropriate remedy." State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 30.

{¶ 11} If the trial court fails to strictly comply with Crim.R. 11(C) when explaining the defendant's constitutional rights, the guilty or no contest plea is invalid "under a presumption that it was entered involuntarily and unknowingly." (Citations omitted.) Id. at ¶ 31. Although the court need not use the exact language in the rule, it must explain the defendant's constitutional rights "in a manner which is reasonably intelligent to the defendant." State v. Rinehart , 6th Dist. Wood No. WD-11-030, 2013-Ohio-3372, 2013 WL 3968747, ¶ 17.

{¶ 12} A less stringent, substantial-compliance rule applies if the trial judge imperfectly explains a defendant's nonconstitutional rights, such as the maximum possible penalty and the effect of the plea. Clark at ¶ 31. "Under this standard, a slight deviation from the text of the rule is permissible; so long as the totality of the circumstances indicates that 'the defendant subjectively understands the implications of his plea and the rights he is waiving,' the plea may be upheld." Id. , quoting State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

{¶ 13} Where the trial judge does not substantially comply with Crim.R. 11 with respect to a defendant's nonconstitutional rights, a reviewing court must determine whether there was partial compliance or a complete failure to comply. Clark at ¶ 32. If the trial judge partially complied, the plea will be vacated only if the defendant demonstrates a prejudicial effect. Id. at ¶ 31. If, however, there was a complete failure to comply with the rule, the plea must be vacated and prejudice need not be demonstrated. Id. at ¶ 32.

R.C. Chapter 2950

{¶ 14} R.C. Chapter 2950 imposes classification, registration and community notification requirements on sexual offenders. The registration requirements in R.C. 2950.03, the community notification requirements in R.C. 2950.11, and the residential restrictions in R.C. 2950.034 have been determined to be punitive consequences or penalties. State v. Williams , 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 19.

{¶ 15} Before a defendant enters a plea which results in the defendant being classified as a sexual offender under R.C. Chapter 2950, "the trial court must inform the defendant of all of the punitive consequences of entering a guilty plea and having a * * * sex offender classification in order to substantially comply with non-constitutional provisions of Crim.R. 11."

State v. Ragusa , 6th Dist. Lucas No. L-15-1244, 2016-Ohio-3373, 2016 WL 3219595, ¶ 5. If the court fails to inform the defendant of all of the penalties, the plea is invalid. Id. See also State v. Dangler, 6th Dist. Williams No. WM-16-010, 2017-Ohio-7981, 2017 WL 4329775 (plea invalid because trial court informed defendant of Tier III classification but not registration or notification requirements); State v. Sanders, 6th Dist. Lucas No. L-15-1068, 2016-Ohio-1397, 2016 WL 1291902, ¶ 8 (plea invalid because trial court informed defendant of Tier III classification but not registration requirements); State v. McMahon, 6th Dist. Sandusky No. S-14-036, 2015-Ohio-3300, 2015 WL 4880942, ¶ 15 (plea invalid as trial court did not inform defendant of classification level or its implications, including registration and community notification requirements of R.C. Chapter 2950); contra State v. Creed , 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627, 2012 WL 2150349, ¶ 17 (trial court found substantial compliance where defendant informed of his classification and generally that he would be subject to various reporting and notification requirements).

Analysis

{¶ 16} Here, a review of the record shows that appellant signed a written plea of guilty document, prior to the plea hearing, which stated appellant would be required to register as a Tier II and Tier III sexual offender. However, the plea document lacked any specificity as to the punitive consequences associated with being classified as a Tier II and Tier III sexual offender.

{¶ 17} At the plea hearing, the prosecutor indicated to the trial court that appellant was entering a guilty plea to three counts and "will be registered as a Tier III sex offender." However, during the plea hearing, the trial judge did not advise appellant that he would have to register as a sexual offender, nor was appellant informed of any of the punitive consequences of entering a guilty plea and having a sexual offender classification.

{¶ 18} During the sentencing hearing, which occurred immediately after appellant's guilty plea was accepted, the judge informed appellant that he would be required to register as a Tier II sexual offender, which requires in-person registration for a period of 25 years, every 180 days, and a Tier III sexual offender, which requires registration, in person, every 90 days, for the rest of his life. Appellant acknowledged he understood.

{¶ 18} We conclude the trial court failed to comply with Crim.R. 11(C)(2) by not informing appellant of the registration requirements, community notifications and residential restrictions associated with being classified as a Tier II and III sexual offender prior to accepting appellant's guilty plea. We further conclude the trial court's failure to comply with Crim.R. 11(C)(2) renders appellant's plea involuntary, unknowing and invalid. Accordingly, appellant's first assignment of error is well-taken.

{¶ 19} In light of the foregoing, the trial court's September 14, 2016 judgment is hereby vacated, and the case is remanded to the trial court for further proceedings consistent with this decision. As a result of this determination, appellant's second assignment of error is rendered moot. The state is ordered to pay the costs of this appeal pursuant to App.R. 24.

Certification of Conflict

{¶ 20} Article IV, Section 3(B)(4) of the Ohio Constitution states that "[w]henever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination."

{¶ 21} In order to qualify for certification to the Supreme Court of Ohio pursuant to Section 3(B)(4), Article IV of the Ohio Constitution, a case must meet the following three conditions:

First, the certifying court must find that its judgment is in conflict with the judgment of a court of appeals of another district and the asserted conflict must be "upon the same question." Second, the alleged conflict must be on a rule of law-not facts. Third, the journal entry or opinion of the certifying court must clearly set forth the rule of law which the certifying court contends is in conflict with the judgment on the same question by other district courts of appeals. Whitelock v. Gilbane Bldg. Co. , 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).

{¶ 22} As we recently determined in State v. Dangler, 6th Dist. Williams No. WM-16-010, 2017-Ohio-7981, 2017 WL 4329775, the judgment in this case conflicts with State v. Creed , 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627, 2012 WL 2150349, ¶ 17, in which the court found "[t]he fact that appellant was not specifically informed that he would be prohibited from living within 1,000 feet of a school does not invalidate his plea."

{¶ 23} We therefore certify the record in this case for review and final determination to the Supreme Court of Ohio on the following issue:

During a plea proceeding, does a trial court's failure to inform a defendant about the residential restrictions imposed on sexual offenders under R.C. Chapter 2950 render the plea invalid?

{¶ 24} The parties are directed to S.Ct.Prac.R. 5.03 and 8.01 for guidance.

{¶ 25} It is so ordered.

Judgment vacated and remanded.

Thomas J. Osowik, J.

James D. Jensen, J.

CONCUR.


author: Baldwin, J.

text:
    Jennifer A. SANTOS, Plaintiff-Appellant v. Amanda M. PARKS and Michael C. Parks, Defendants-Appellees
    No. 17-COA-044
    Court of Appeals of Ohio, Fifth District, Ashland County.
    DATE OF JUDGMENT: August 3, 2018
    DAVID R. PLUMB, Weis + O'Connor LLC, 22 E. Gay Street, Suite 401, Columbus, Ohio 43215, For Plaintiff-Appellant.
    RENEE J. JACKWOOD, 3540 Burbank Road, # 139, Wooster, Ohio 44691, For Defendants-Appellees.
    JUDGES: Hon. William B. Hoffman, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.
   Baldwin, J.

{¶ 1} Plaintiff-appellant Jennifer A. Santos appeals from the November 29, 2017 Opinion and Judgment Entry issued by the Ashland County Court of Common Pleas, Juvenile Division.

STATEMENT OF THE FACTS AND CASE

{¶ 2} On January 3, 2017, appellant filed a Complaint for Grandparent's Visitation rights, seeking temporary and permanent companionship/visitation rights with her grandchild pursuant to R.C. 3109.12. The minor child, R.P. who is the subject this case, was born on September 10, 2015 to appellee Amanda M. Parks, and appellant's son, Michael C. Parks. At the time of his birth, the two were not married but later married on February 12, 2016.

{¶ 3} Appellees filed a Motion to dismiss the complaint on February 27, 2017, arguing that application of R.C. 3109.12 to them, an intact, married family unit, was unconstitutional. Appellees cited to this court's Opinion in Rugola-Dye v. Dye , 5th Dist. Delaware No. 08 CAF 06 0038, 2009-Ohio-2471, 2009 WL 1485035. A hearing for the limited purpose of determination of paternity was held on February 27, 2017. Appellees did not contest the issue of paternity. Pursuant to a Magistrate's Decision and Judgment Entry filed on March 2, 2017, the Magistrate found that appellee Michael C. Parks was the father of R.P. and that a parent-child relationship existed between the two. The Magistrate further found that appellee Amanda M. Parks and appellee Michael C. Parks were married on February 12, 2016 and continued to be married, sharing a residence with their son. The trial court approved and adopted the Magistrate's Decision.

{¶ 4} Appellant, on March 16, 2017, filed a memorandum in opposition to the Motion to Dismiss and appellees filed a reply on March 20, 2017. As memorialized in a Magistrate's Decision filed on March 22, 2017, the Magistrate recommended that the Motion to Dismiss be granted, applying this Court's precedent in the Rugola-Dye case. Appellant filed objections to the Magistrate's Decision on April 3, 2017 and appellees filed a response on April 26, 2017. The trial court, on November 29, 2017, issued an Opinion and Judgment Entry overruling the objections and ordering that the Motion to Dismiss the Complaint be granted.

{¶ 5} Appellant now raises the following assignment of error on appeal:

{¶ 6} I. WHETHER THE CENTRAL HOLDING OF RUGOLA-DYE V. DYE, 5TH DIST. DELAWARE N0. 08 CAF 060038, 2009-OHIO-2471 [2009 WL 1485035] SHOULD BE APPLIED AS A BRIGHT- LINE RULE, I.E. WHETHER R.C. 3109.12 (A) IS UNCONSTITUTIONAL AS APPLIED TO THE CIRCUMSTANCES OF HIS CASE UNDER THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION.

I

{¶ 7} Appellant, in her sole assignment of error, argues that the trial court erred in applying this Court's decision in Rugola-Dye v. Dye , 5th Dist. Delaware No. 08 CAF 06 0038, 2009-Ohio-2471, 2009 WL 1485035 to the case sub judice. Appellant specifically asks that this Court reconsider our decision in such case arguing that this case presents a constitutional question of law.

{¶ 8} "Constitutional analysis is a question of law that we review de novo." State v. Rayburn, Jackson App. No. 09CA6, 2010-Ohio-5693, 2010 WL 4792440, at ¶ 25 (citations omitted).

{¶ 9} Appellant filed her complaint for grandparent visitation pursuant to R.C. 3109.12. R.C. 3109.12(A) governs the issue of the grandmother's right of visitation with the minor child in this case. That section provides as follows:

{¶ 10} [i]f a child is born to an unmarried woman, the parents of the woman and any relative of the woman may file a complaint requesting the court of common pleas of the county in which the child resides to grant them reasonable companionship or visitation rights with the child. If a child is born to an unmarried woman and if the father of the child has acknowledged the child and that acknowledgment has become final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code or has been determined in an action under Chapter 3111. of the Revised Code to be the father of the child, the father may file a complaint requesting that the court of appropriate jurisdiction of the county in which the child resides grant him reasonable parenting time rights with the child and the parents of the father and any relative of the father may file a complaint requesting that the court grant them reasonable companionship or visitation rights with the child

{¶ 11} R.C. 3109.12(B) provides that [t]he marriage or remarriage of the mother or father of a child does not affect the authority of the court under this section to grant * * * the parents or relatives of the natural father or the parents or relatives of the mother of the child reasonable companionship or visitation rights with respect to the child.

{¶ 12} In the Rugola-Dye case cited above, the appellants, Michael C. and Jessica L. Dye, fka Ward, appealed the decision of the Delaware County Court of Common Pleas, Juvenile Division, which granted a complaint for grandparent visitation in favor of appellee Mary C. Rugola. Appellants were the parents of a son, "H.D.", born in 2005. Appellants were not married to each other at the time H.D. was born. Appellant Michael had legally acknowledged paternity of the child. Appellants did marry about eighteen months after H.D.'s birth.

{¶ 13} Appellee, H.D.'s paternal grandmother, filed a complaint in the trial court on May 22, 2006 seeking grandparent visitation under R.C. 3109.12. Following a hearing, the trial court, issued a Judgment Entry granting appellee Grandmother Mary C. Rugola-'reasonable' Companionship time with her grandson. The appellants then appealed to this Court arguing, in part, that the trial court's decision was an unconstitutional application of R.C. 3109.12. We agreed. In our Opinion, this Court stated, in relevant part, as follows at paragraphs 18-23:

In Troxel v. Granville (2000), 530 U.S. 57, 64, 120 S.Ct. 2054, 2059 [147 L.Ed.2d 49], the United States Supreme Court stated: "Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. The States' nonparental visitation statutes are further supported by a recognition, which varies from State to State, that children should have the opportunity to benefit from relationships with statutorily specified persons-for example, their grandparents. * * *."1 Nonetheless, the United States Supreme Court also recognized in the Troxel opinion that the parents' interest in the care, custody and control of their children "is perhaps the oldest of the fundamental liberty interests recognized by [the] Court." Id. at 65 [120 S.Ct. 2054]. The Ohio Supreme Court has stated that grandparents have no constitutional right of association with their grandchildren. See In re Schmidt (1986), 25 Ohio St.3d 331, 336, 496 N.E.2d 952.
The Ohio Revised Code contains at least three main subsections governing non-parent visitation with minor children. See In re C.C., Montgomery App. No. 21707, 2007-Ohio-3696 [2007 WL 2069497], ¶ 5, citing In re E.H., Lorain App. No. 04CA008585, 2005-Ohio-1952 [2005 WL 956967]. The statute at issue in the case sub judice is R.C. 3109.12(A), which authorizes a visitation complaint by a relative if the minor child was born to an unmarried woman. R.C. 3109.12(A) reads in pertinent part:
* * * If a child is born to an unmarried woman and if the father of the child has acknowledged the child and that acknowledgment has become final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code or has been determined in an action under Chapter 3111. of the Revised Code to be the father of the child, the father may file a complaint requesting that the court of appropriate jurisdiction of the county in which the child resides grant him reasonable parenting time rights with the child and the parents of the father and any relative of the father may file a complaint requesting that the court grant them reasonable companionship or visitation rights with the child.
We generally afford a presumption of constitutionality to legislative enactments. See, e.g., State v. Anderson (1991), 57 Ohio St.3d 168, 171, 566 N.E.2d 1224. Appellants herein direct us to Nicoson v. Hacker, Lake App.No.2000-L-213, 2001-Ohio-8718 [2001 WL 1602666], wherein the Eleventh District Court of Appeals found that R.C. 3109.12, supra, violates the Equal Protection Clause of the United States Constitution as applied to the facts of that case, concluding "[t]here is no rational basis for distinguishing between a child born prior to the marriage of the natural parents and a child born to the same parents after their marriage." Id. at *3. Appellants further contend that their marriage has created an intact family unit subsequent to appellee's visitation complaint, and the allowance of appellee's involvement in the child's life by judicial process violates their right to parental care, custody, and control pursuant to Troxel, supra .
We find the constitutional question before us under these facts is whether there is an Equal Protection violation in the statute's differentiation of married parents who were unmarried at the time of the complaint's filing from those who were married at the time of such a complaint. "The constitutional guarantee of equal protection requires that laws operate equally upon persons who are alike in all relevant respects." State v. Williams, 179 Ohio App.3d 584, 598, 2008-Ohio-6245 [902 N.E.2d 1042], citing McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 20. "When suspect classes are not involved, the equal-protection clause permits class distinctions in legislation if the distinctions bear some rational relationship to a legitimate government objective." Id., citing State ex rel. Vana v. Maple Hts. City Council (1990), 54 Ohio St.3d 91, 92, 561 N.E.2d 909. Under the rational basis test, the legislation must be upheld unless the classification is totally unrelated or irrelevant to the state's goals or purpose for enacting the legislation. Menefee v. Queen City Metro (1990), 49 Ohio St.3d 27, 29, 550 N.E.2d 181. We find that under R.C. 3109.12, the General Assembly has provided a means for extended family members of children born to unwed parents to involve themselves in the lives of such children, who do not benefit from a marital two-parent nuclear home environment. However, where, as in this case, the parents of the child indeed marry each other during the pendency of the relative's visitation complaint, we find no rational basis for differentiating married parents who were unmarried at the time of the complaint's filing from those who were married at that time.
We therefore hold R.C. 3109.12 is unconstitutional as applied to the particular facts and circumstances of this case.

{¶ 14} As noted by the trial court in its November 29, 2017 Decision and Judgment Entry, the facts in the Rugola-Dye case are nearly identical to the facts in the case sub judice. In both cases, the parents were not married at the time of the child's birth, but later married. In the case sub judice, the parties married approximately five months after the child's birth and almost a year prior to the filing of appellant's complaint for companionship time. Based on the Rugola-Dye case, because the parents of the child married each other during the pendency of the relative's visitation complaint, "we find no rational basis for differentiating married parents who were unmarried at the time of the complaint's filing from those who were married at that time". Rugola-Dye v. Dye, 5th Dist. Delaware No. 08 CAF 06 0038, 2009-Ohio-2471, 2009 WL 1485035, ¶ 22.

{¶ 15} We therefore hold that the trial court did not err in applying in this court's Opinion in Rugola-Dye v. Dye and finding that R.C. 3109.12 is unconstitutional as applied to the particular facts and circumstances of this case. We choose to follow our prior precedent and see no reason for our Court to reconsider the matter.

{¶ 16} Appellant's sole assignment of error is, therefore, overruled.

{¶ 17} Accordingly, the judgment of the Ashland County Court of Common Pleas, Juvenile Division, is affirmed.

Hoffman, P.J. and Earle Wise, J. concur.


author: FRANK D. CELEBREZZE, JR., J.:

text:
    IN RE: C.W., a minor child.
    No. 106465
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: August 9, 2018
    Mark A. Stanton, Cuyahoga County Public Defender, BY: Erika B. Cunliffe, Assistant Public Defender, Courthouse Square, Suite 200, 310 Lakeside Avenue, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Zen Canaday, Assistant Prosecuting Attorney, 9300 Quincy Avenue, Suite 4100, Cleveland, Ohio 44106, ATTORNEYS FOR APPELLEE.
    ALSO LISTED: C.W., 3644 Bosworth Road, Cleveland, Ohio 44111, E.W., 873 East 73rd Street, Cleveland, Ohio 44103
    BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Appellant-delinquent, C.W. ("appellant"), brings this appeal challenging a magistrate's denial of his motion to dismiss. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} On March 24, 2017, Cleveland Metropolitan Housing Authority police officers were dispatched to the intersection of East 30th Street and Central Avenue in Cleveland for a noise disturbance. As officers arrived, they observed a vehicle in a parking lot occupied by four young males. As officers approached the vehicle, they observed the driver, later identified as appellant, place an item under the driver's seat. Officers ordered the occupants out of the vehicle and as officers spoke with appellant, appellant told officers that he had placed a handgun under the driver's seat.

{¶ 3} Appellant was charged in Cuyahoga J.C. No. DL 17104838 for the following offenses: Count 1, having weapons while under disability, a third-degree felony in violation of R.C. 2923.13(A)(2), with a one-year firearm specification; Count 2, carrying a concealed weapon, a fourth-degree felony in violation of R.C. 2923.12(A)(2) ; and Count 3, improper handling a firearm in a motor vehicle, a fourth-degree felony in violation of R.C. 2923.16(B). The weapons under disability charge alleged that appellant had a previous adjudication for felonious assault that prohibited him from carrying a firearm.

{¶ 4} The matter proceeded to a trial before the juvenile court magistrate. Prior to trial commencing, the state dismissed the one-year firearm specification attached to Count 1. Also, prior to trial, appellant's counsel filed a motion to dismiss the having weapons while under disability adjudication arguing that the basis for the disability was itself a juvenile adjudication, and not a criminal conviction. The magistrate denied appellant's motion, and the matter proceeded to trial. The magistrate found appellant guilty on all three counts and appellant was adjudicated delinquent.

{¶ 5} Thereafter, appellant's trial counsel filed an objection to the magistrate's decision denying the motion to dismiss. After a hearing on the issue, the juvenile court overruled appellant's objection and adopted the magistrate's decision. It is from this ruling that appellant now appeals, assigning the following assignment of error for our review.

I. Given the Ohio Supreme Court's decision in State v. Hand , the juvenile court violated [appellant's] rights under the state and federal constitutions by relying on a previous adjudication as the predicate disability element for the offense of having a weapon under disability when it found [appellant] delinquent.

II. Law and Analysis

{¶ 6} In appellant's sole assignment of error, he argues that the juvenile court erred when it adjudicated him delinquent of having weapons while under disability, because it erred in using a prior juvenile adjudication as the "disability" element of the offense. In so doing, appellant argues that the juvenile court's decision denying his motion to dismiss is in direct contradiction to the Ohio Supreme Court's ruling in State v. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448.

{¶ 7} In Hand , the Supreme Court of Ohio held that the use of a juvenile adjudication as the equivalent of an adult conviction to enhance a penalty for a later crime is unconstitutional, because, unlike an adult conviction, a juvenile adjudication does not involve the right to a trial by jury. Id. at ¶ 38.

In so holding, the court struck down R.C. 2901.08(A), a statute that specifically provided that a prior "adjudication as a delinquent child or as a juvenile traffic offender is a conviction for a violation of the law or ordinance for purposes of determining the offense with which the person should be charged and, if the person is convicted of or pleads guilty to an offense, the sentence to be imposed * * [.]" Id. at paragraph one of the syllabus and ¶ 9. Therefore, the Supreme Court of Ohio made it clear in Hand that "a juvenile adjudication is not a conviction of a crime and should not be treated as one." Id. at ¶ 38.

State v. Ortiz , 8th Dist. Cuyahoga No. 105301, 2017-Ohio-9157, 2017 WL 6540630, ¶ 10.

{¶ 8} In his motion to dismiss, appellant asserted that the logic of Hand should extend to his case and prevent the juvenile court from considering his prior juvenile adjudication to support his having a weapon while under disability adjudication. In committing the offense of having weapons while under disability, the statute requires an offender to either have a prior conviction or a prior juvenile adjudication. Therefore, "[u]nlike the statute that was struck down in Hand , the statute at issue, R.C. 2923.13(A)(2), does not treat a prior juvenile adjudication as a conviction." State v. McComb , 2017-Ohio-4010, 91 N.E.3d 255, ¶ 26 (2d Dist.).

Rather, a prior juvenile adjudication and conviction are treated as alternative elements necessary to establish the offense of having weapons while under disability. Hand does not ban the use of a prior juvenile adjudication as an element of an offense; rather, Hand bans the use of a juvenile adjudication to enhance a penalty by treating the adjudication as an adult conviction.

McComb at id. The Second District further noted the strict holding in Hand that " 'it is fundamentally unfair to treat a juvenile adjudication as a previous conviction that enhances either the degree of or the sentence for a subsequent offense committed as an adult.' " Id. , quoting Hand at ¶ 37.

{¶ 9} This court has previously rejected the argument raised by appellant in Ortiz and State v. Stewart , 8th Dist. Cuyahoga No. 105154, 2017-Ohio-2993, 2017 WL 2291643. Albeit in those particular cases, the issue before the court was an adult defendant not a juvenile defendant, the essence of the argument is identical. In Stewart and Ortiz , we declined to interpret Hand to negate the "disability" element of the offense of having weapons while under disability resulting from a prior juvenile adjudication, stating, in relevant part:

Hand does not apply to the statute at issue here: it did not hold that a juvenile delinquency adjudication may not constitute an element of an offense. Hand addressed the narrow issue of whether a juvenile adjudication could be deemed a criminal conviction for the purpose of sentencing enhancements.

Stewart at ¶ 6, citing Hand at ¶¶ 36-37. Thus, we decline to interpret the ruling in Hand to be applicable to a juvenile charged with having weapons while under disability where the disability element constitutes a prior juvenile adjudication.

{¶ 10} Further, as this court noted in Ortiz :

Our resolution of this issue is in accordance with other appellate districts that have considered the issue. See State v. Jackson , 2d Dist. Montgomery No. 27351, 2017-Ohio-4197 [2017 WL 2493624] (concluding Hand does not apply to the use of a juvenile adjudication as an element of having a weapon while under disability); State v. Boyer , 2d Dist. Clark No. 2016-CA-63, 2017-Ohio-4199, 92 N.E.3d 213 (noting the concerns the Supreme Court articulated in Hand do not apply because the indictment for having a weapon while under disability "relates strictly to choices [the defendant] has made since reaching the age of majority"); State v. McCray , 1st Dist. Hamilton No. C-160272, 2017-Ohio-2996, 91 N.E.3d 288 (declining to extend Hand to bar the use of a juvenile adjudication to prove the disability element of having a weapon while under disability); State v. Hudson , 7th Dist. Mahoning, 2017-Ohio-645, 85 N.E.3d 371 (finding no indication the Supreme Court would extend the holding in Hand to R.C. 2923.13(A)(2) and noting that many of the other statutory alternatives for establishing the disability element encompass facts that were not subjected to a prior jury trial); State v. Brown, 10th Dist. Franklin No. 16AP-753, 2017-Ohio-7134 [95 N.E.3d 962], ¶ 21 ("We conclude, therefore, that Hand does not apply to R.C. 2923.13(A)(2).").

Ortiz, 8th Dist. Cuyahoga No. 105301, 2017-Ohio-9157, at ¶ 12. See also State v. Buttery , 1st Dist. Hamilton No. C-160609, 2017-Ohio-9113, 2017 WL 6508864, ¶ 21 ("[w]e hold that Hand does not bar the use of [the defendant's] juvenile adjudication as the basis of his indictment and conviction for failing to register.").

{¶ 11} In further examining the appellate districts for cases of similar facts and circumstances as in the instant matter, we note that this appears to be a case of first impression, where a juvenile adjudication is used as the "disability" element of a juvenile adjudication for having weapons while under disability. From our review of the above case law, Ohio appellate districts have all agreed that an adult defendant may be charged with having weapons while under disability where the disability element is a juvenile adjudication. Thus, we find the same analysis indistinguishable to appellant's arguments before this court.

{¶ 12} Accordingly, based on the precedent established in this appellate district and several other appellate districts in the state of Ohio, we conclude that the trial court did not err in refusing to apply the holding in Hand to appellant's motion to dismiss the charge of having weapons while under disability because Hand does not apply to R.C. 2923.13(A)(2). Therefore, we hold that the use of a juvenile adjudication to support an adjudication of having weapons while under disability does not violate a defendant's constitutional right to due process, whether that defendant is charged within the juvenile system or the adult criminal system. See Ortiz. See also Stewart , 8th Dist. Cuyahoga No. 105154, 2017-Ohio-2993.

{¶ 13} Lastly, to the extent that appellant argues that his adjudication for having weapons while under disability violates his rights under the Second Amendment to the United States Constitution, pursuant to Dist. of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.E.2d 637 (2008), and McDonald v. Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.E.2d 894 (2010), we find no merit to this argument.

{¶ 14} Appellant's sole assignment of error is overruled.

III. Conclusion

{¶ 15} The trial court did not err in denying appellant's motion to dismiss. The Ohio Supreme Court's decision in Hand does not ban the use of a prior juvenile adjudication as the disability element of the offense of having weapons while under disability, pursuant to R.C. 2923.13(A)(2).

{¶ 16} Judgment affirmed.

MARY J. BOYLE, P.J., and LARRY A. JONES, SR., J., CONCUR

      State v. Ortiz , Ohio Supreme Court Case No. 2018-0042, is presently pending before the Ohio Supreme Court.