State v. White

[Cite as State v. White, 2013-Ohio-2135.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
DUSTIN J. WHITE : Case No. CT2012-0046
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2012-0167

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 22, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT L. SMITH DAVID A. SAMS
27 North Fifth Street P.O. Box 40
Zanesville, OH 43701 West Jefferson, OH 43162
Muskingum County, Case No. CT2012-0046 2

Farmer, J.

{¶1} On July 25, 2012, a bill of information was filed charging appellant, Dustin

White, with two counts of unlawful sexual conduct with a minor in violation of R.C.

2907.04. At the time of the offenses, the victim was 15 years old and appellant was 18

years of age or older.

{¶2} Appellant pled guilty to the counts on July 25, 2012. By sentencing entry

filed August 29, 2012, the trial court sentenced appellant to three years of community

control, ninety days of local incarceration included therein, and classified him as a Tier II

sexual offender.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶4} "THE BILL OF INFORMATION WAS STRUCTURALLY INSUFFICIENT

UNDER OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS AS IT

FAILED TO CONTAIN A NECESSARY ALLEGATION THAT THE OFFENSE IN

QUESTION WAS A SEXUALLY ORIENTED OFFENSE FOR PURPOSES OF OHIO

REVISED CODE CHAPTER 2950."

II

{¶5} "THE DEFENDANT-APPELLANT'S CONVICTION AND SENTENCE FOR

HAVING UNLAWFUL SEXUAL RELATIONS WITH A MINOR AS A FELONY OF THE

FOURTH DEGREE AND HIS RESULTING CLASSIFICATION AS A TIER II SEX

OFFENDER ARE VOID AS THE INFORMATION FAILED TO ALLEGE THAT
Muskingum County, Case No. CT2012-0046 3

APPELLANT WAS FOUR OR MORE YEARS OLDER THAN THE MINOR VICTIM AS

REQUIRED BY OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS."

III

{¶6} "THE DEFENDANT-APPELLANT'S PLEA WAS UNKNOWING,

UNINTELLIGENT AND INVOLUNTARY CONTRARY TO OHIO LAW AND THE STATE

AND FEDERAL CONSTITUTIONS."

I, II

{¶7} Appellant claims the bill of information was deficient as it failed to allege

that the offense in question was a "sexually oriented offense" for purposes of R.C.

Chapter 2950, and failed to allege that appellant was four or more years older than the

minor victim. We disagree.

{¶8} The bill of information filed July 25, 2012 contained two counts. Both

counts were identical and stated the following:

The undersigned, the duly elected and qualified Prosecuting

Attorney of said County in the name and by the authority of the State of

Ohio, says that prior to this information DUSTIN J. WHITE was duly

advised by the Common Pleas Court of the nature of the charge against

him and of his rights under the Constitution, and being then represented

by Attorney Frederick Sealover waived, in writing and in open court,

prosecution of the offense by indictment, and by way of information

DUSTIN J. WHITE between the dates of 01/02/2012 and 01/30/2012, in

the County of Muskingum, did being eighteen (18) years of age or older,
Muskingum County, Case No. CT2012-0046 4

knowingly engage in sexual conduct, to-wit: vaginal intercourse, with

another, to-wit, A.E.S. dob 12/14/1996, who is not the spouse of the said

DUSTIN J. WHITE, the said DUSTIN J. WHITE knowing the said A.E.S.

dob 12/14/1996, is thirteen (13) years of age or older, but less than

sixteen (16) years of age, or being reckless in that regard; in violation of

Ohio Revised Code, Title 29, Section 2907.04(A), and against the peace

and dignity of the State of Ohio.

{¶9} During appellant's plea hearing, the trial court explained to appellant that

he would be classified as a Tier II sex offender which appellant acknowledged he

understood. July 25, 2012 T. at 6. The trial court repeated this information to appellant

during the sentencing hearing, and again appellant acknowledged he understood.

August 27, 2012 T. at 4-5.

{¶10} We note an objection to the classification was not made during the

sentencing hearing. Id. at 6. An error not raised in the trial court must be plain error for

an appellate court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). In

order to prevail under a plain error analysis, appellant bears the burden of

demonstrating that the outcome of the trial clearly would have been different but for the

error. Long. Notice of plain error "is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at

paragraph three of the syllabus.

{¶11} Pertinent to this appeal, a "sexually oriented offense" is defined by R.C.

2950.01(A)(3) as follows:
Muskingum County, Case No. CT2012-0046 5

(A) "Sexually oriented offense" means any of the following

violations or offenses committed by a person, regardless of the person's

age:

(3) A violation of section 2907.04 of the Revised Code when the

offender is at least four years older than the other person with whom the

offender engaged in sexual conduct or when the offender is less than four

years older than the other person with whom the offender engaged in

sexual conduct and the offender previously has been convicted of or

pleaded guilty to a violation of section 2907.02, 2907.03, or 2907.04 of the

Revised Code or a violation of former section 2907.12 of the Revised

Code.

{¶12} Both counts in the bill of information specify a violation of R.C. 2907.04,

the birth date of the victim making the victim 15 years old at the time of the offenses,

and the age of appellant, 18 years of age or older. Appellant was 19 years old at the

time of the filing of the bill of information. July 25, 2012 T. at 13. Appellant was 4 years

and 35 days older than the victim. August 27, 2012 T. at 6.

{¶13} We do not find it to be necessary for the bill of information to further allege

the penalty for the offenses pursuant to R.C. Chapter 2950. The bill of information set

forth all of the elements of the offenses, specifically referenced R.C. 2907.04, and

included sufficient information to determine the ages of the parties involved.
Muskingum County, Case No. CT2012-0046 6

{¶14} In addition, the plea form that appellant signed on July 25, 2012 included

the following:

Registration: In person verification. If you have entered a plea of

guilty to a sexually oriented offense, as defined in Chapter 2950.01 of the

Ohio Revised Code, you have been classified as one of the following: a

Tier I, a Tier II, or a Tier III offender. Inasmuch as you have been

classified as a sex offender, you have a duty to register with law

enforcement as follows:

TIER II: registration every 180 days for a period of twenty-five

(25) years.

{¶15} Although appellant argues the Tier II classification is punitive, it does not

enhance the degree of the offense. In support of his argument, appellant cites this court

to the case of State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908. We find this case

not to be controlling as it spoke only to what was required to be in a sentencing entry

and not an indictment: "[w]hen a trial court fails to include a mandatory driver's license

suspension as part of an offender's sentence, that part of the sentence [is] void.

Resentencing of the offender is limited to the imposition of the mandatory driver's

license suspension." Harris, at paragraph one of the syllabus.

{¶16} Upon review, we find the bill of information in this case to be sufficient.

{¶17} Assignments of Error I and II are denied.
Muskingum County, Case No. CT2012-0046 7

III

{¶18} Appellant claims his plea was unknowing, unintelligent, and involuntary

because he was not explained jury unanimity. We disagree.

{¶19} Crim.R. 11 governs pleas. Subsection (C)(2) states the following:

(2) In felony cases the court may refuse to accept a plea of guilty or

a plea of no contest, and shall not accept a plea of guilty or no contest

without first addressing the defendant personally and doing all of the

following:

(a) Determining that the defendant is making the plea voluntarily,

with understanding of the nature of the charges and of the maximum

penalty involved, and if applicable, that the defendant is not eligible for

probation or for the imposition of community control sanctions at the

sentencing hearing.

(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the

court, upon acceptance of the plea, may proceed with judgment and

sentence.

(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury

trial, to confront witnesses against him or her, to have compulsory process

for obtaining witnesses in the defendant's favor, and to require the state to
Muskingum County, Case No. CT2012-0046 8

prove the defendant's guilt beyond a reasonable doubt at a trial at which

the defendant cannot be compelled to testify against himself or herself.

{¶20} We find the plea colloquy sub judice conforms to the mandates of Crim.R.

11. Further, as this court stated in State v. Rogers, 5th Dist. No. CT2008-0066, 2009-

Ohio-4899, ¶ 11:

This Court, along with several courts, including the Ohio Supreme

Court, has held there is no requirement that a trial court inform a

defendant of his right to a unanimous verdict. State v. Dooley, Muskingum

App. No. CT2008-0055, 2009-Ohio-2095; State v. Hamilton, Muskingum

App. No. CT2008-0011, 2008-Ohio-6328; State v. Fitzpatrick, 102 Ohio

St.3d 321, 2004-Ohio-3167, at ¶ 44-46 (accused need not be told that jury

unanimity is necessary to convict and to impose sentence); State v. Smith,

Muskingum App. No. CT2008-0001, 2008-Ohio-3306 at ¶ 27 (there is no

explicit requirement in Crim.R. 11(C)(2)(a) that a defendant be informed of

his right to a unanimous verdict; State v. Williams, Muskingum App. No.

CT2007-0073, 2008-Ohio-3903 at ¶ 9 (the Supreme Court held an

accused need not be told the jury verdict must be unanimous in order to

convict); State v. Barnett, Hamilton App. No. C-060950, 2007-Ohio-4599,

at ¶ 6 (trial court is not required to specifically inform defendant that she

had right to unanimous verdict; defendant's execution of a written jury trial

waiver and guilty plea form, as well as her on-the-record colloquy with the
Muskingum County, Case No. CT2012-0046 9

trial court about these documents, was sufficient to notify her about the

jury trial right she was foregoing); State v. Goens, Montgomery App. No.

19585, 2003-Ohio-5402, at ¶ 19; State v. Pons (June 1, 1983),

Montgomery App. No. 7817 (defendant's argument that he be told that

there must be a unanimous verdict by the jury is an attempted super

technical expansion of Crim.R. 11); State v. Small (July 22, 1981), Summit

App. No. 10105 (Crim.R. 11 does not require the court to inform the

defendant that the verdict in a jury trial must be by unanimous vote).

{¶21} Assignment of Error III is denied.

{¶22} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.

s/ Sheila G. Farmer______________

s/ W. Scott Gwin _____________

s/ John W. Wise_________________

JUDGES

SGF/sg
[Cite as State v. White, 2013-Ohio-2135.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DUSTIN J. WHITE :
:
Defendant-Appellant : CASE NO. CT2012-0046

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed. Costs

to appellant.

s/ Sheila G. Farmer______________

s/ W. Scott Gwin _____________

s/ John W. Wise_________________

JUDGES