State v. Kase

[Cite as State v. Kase, 187 Ohio App.3d 590, 2010-Ohio-2688.]

STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

The STATE OF OHIO, )
) CASE NO. 09 BE 18
APPELLEE, )
)
v. ) OPINION
)
KASE, )
)
APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 09CR25.

JUDGMENT: Sentence Reversed.
Remanded for Resentencing.

APPEARANCES:

Christopher M. Berhalter, Belmont County Prosecuting Attorney, and Grace L. Hoffman,
Assistant Prosecuting Attorney, for appellee.

Thomas M. Ryncarz, for appellant.

JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite

Dated: June 3, 2010
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DEGENARO, Judge.
{¶ 1} This timely appeal comes for consideration upon the record in the trial court

and appellant's brief. Defendant-appellant, Jeffrey Peter Kase, appeals the judgment of

the Belmont County Court of Common Pleas convicting him of one count of rape of a child

under 13 and sentencing him to life in prison without parole. On appeal, Kase argues that

his sentence is clearly and convincingly contrary to law and an abuse of discretion.

{¶ 2} Upon review, we conclude that Kase's sentence was contrary to law. The

sentence announced by the trial court during the sentencing hearing, i.e., "a life sentence,"

was imprecise and differed from the sentence stated in the sentencing entry, i.e., "life

without parole." Further, although the trial court properly notified Kase about his sex-

offender classification and corresponding duties immediately after it accepted Kase's guilty

plea during a Sex Offender Registration and Notification (“SORN”) hearing, the trial court's

sentencing entry is deficient in that it failed to include a statement that Kase is a Tier III sex

offender/child-victim offender pursuant to R.C. 2929.19(B)(4)(a)(v). Accordingly, Kase's

sentence is reversed, and this cause is remanded to the trial court for resentencing.

Facts and Procedural History

{¶ 3} Kase was accused of raping his nine-year-old stepdaughter, F.B., and as a

result was indicted by the Belmont County Grand Jury on February 4, 2009, on one count

of rape of a child under 13, a violation of R.C. 2907.02(A)(1)(b). Kase was arraigned and

pleaded not guilty, and counsel was appointed.

{¶ 4} On May 18, 2009, Kase agreed to plead guilty to the charge. In exchange for

his guilty plea, the state made no sentencing recommendation per se but "agree[d] that a
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sentence of 15 years to life is an option available to the Court" and stated that the "plea

covers and attached jeopardy to any sexual offenses committed by this defendant against

this victim prior to December 26, 2008." A plea hearing was held on May 18, 2009, during

which the trial court fully apprised Kase of his rights pursuant to Crim.R. 11(C), and Kase

knowingly, voluntarily, and intelligently waived those rights and agreed to plead guilty to the

charge.

{¶ 5} After accepting the guilty plea, the trial court proceeded to conduct a hearing

during which it notified Kase of his responsibilities as a Tier III sex offender. During this

time, Kase also signed a detailed document that explained his duties to register as a Tier

III sex offender. The sentencing hearing was continued until June 15, 2009, to allow time

for the preparation of a presentence investigation (“PSI”), which Kase had requested.

{¶ 6} During the sentencing hearing, defense counsel urged the court to impose

the minimum sentence of 15 years to life in prison. Counsel conceded that Kase's conduct

was abhorrent but advocated that Kase was not the "worst of the worst" in terms of sexual

offenders. He also claimed that Kase was extremely remorseful. Kase was then permitted

to speak in mitigation of sentence, during which time he made an inappropriate comment

to the victim. The court found Kase in contempt for that comment and ordered him

returned to his holding cell. At the end of the day, after proceeding with the day's docket,

the court recalled Kase's sentencing hearing. Defense counsel apologized for Kase's

comment and maintained that Kase was sincerely repentant and very much regrets what

happened. The victim's mother, Kase's wife, spoke about the severe impact of the crime

on the victim and their family. The prosecutor made some brief comments, explaining to
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the court that the state's only recommendation in the plea agreement was that there are

two sentencing options available: 15 years to life, or life without parole.

{¶ 7} At the conclusion of the sentencing hearing, the court imposed a sentence as

follows:

{¶ 8} "The Court finds, based upon what has happened in here this morning, that

the case is of such severity, and the defendant's conduct indicated to me less than a

remorseful attitude or a recognition that what happened was abominable.

{¶ 9} "The defendant will be sentenced to a life sentence."

{¶ 10} A judgment entry of sentencing was filed on June 15, 2009, which ordered

that Kase serve a sentence of "life without parole." Kase filed a notice of appeal on July 6,

2009, and filed a merit brief on October 21, 2009. The state has failed to file a response

brief.

{¶ 11} On November 4, 2009, well after Kase filed a notice of appeal, the trial court

sua sponte issued an amended judgment entry of sentencing. This amended entry did not

change Kase's sentence in any way; rather, it merely provided more reasoning as to the

court's sentencing decision. "Once a case has been appealed, the trial court loses

jurisdiction except to take action in aid of the appeal." In re S.J., 106 Ohio St.3d 11, 2005-

Ohio-3215, 829 N.E.2d 1207, at ¶9, citing State ex rel. Special Prosecutors v. Judges,

Court of Common Pleas (1978), 55 Ohio St.2d 94, 97, 9 O.O.3d 88, 378 N.E.2d 162. In

other words, "the trial court retains all jurisdiction not inconsistent with the court of appeals'

jurisdiction to reverse, modify, or affirm the judgment." Yee v. Erie Cty. Sheriff's Dept.
 -5-

(1990), 51 Ohio St.3d 43, 44, 553 N.E.2d 1354, citing In re Kurtzhalz (1943), 141 Ohio St.

432, 48 N.E.2d 657, paragraph two of the syllabus.

{¶ 12} The trial court's amended judgment entry of sentencing did not change the

sentence; i.e., it also specified "life without parole." Rather, it provided additional reasoning

underlying the court's sentencing decision. As such, the amended entry is not inconsistent

with this court's jurisdiction, and we will consider it.

Sentencing

{¶ 13} As a preliminary matter, we note that the state has failed to file a brief in this

action, and thus pursuant to App.R. 18(C), we "may accept the appellant's statement of the

facts and issues as correct and reverse the judgment if appellant's brief reasonably

appears to sustain such action."

{¶ 14} Pursuant to the Ohio Supreme Court's decision in State v. Kalish, 120 Ohio

St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, appellate courts now review felony sentences

under a two-prong test. Under the first prong, appellate courts must "examine the

sentencing court's compliance with all applicable rules and statutes in imposing the

sentence to determine whether the sentence is clearly and convincingly contrary to law."

Id. at ¶26. To satisfy this prong, the trial court must consider the statutory sentencing

factors in R.C. 2929.11 and 2929.12, adhere to all other applicable rules and statutes in

imposing the sentence, and impose a sentence that is within the statutory range for the

relevant offenses. Id. at ¶13-15. If the sentence is not clearly and convincingly contrary to

law, an appellate court must move to the second prong and determine whether the trial
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court abused its discretion in its application of the sentencing factors and resulting

sentencing determination. Id. at ¶17, 19-20.

{¶ 15} In his first of two assignments of error, Kase asserts:

{¶ 16} "The trial court committed error in imposing the maximum sentence because

the Appellant's sentence is clearly and convincingly contrary to law."

{¶ 17} Kase does not contest that his sentence fell within the permissible statutory

range, but rather raises several other issues. For ease of analysis, they will be discussed

slightly out of order. First, Kase contends that the trial court failed to discuss the R.C.

2929.11 and 2929.12 factors during the sentencing hearing and that his sentence was

erroneous for this reason. This argument is meritless because although the trial court did

not explicitly cite those sections during the hearing, it did engage in some balancing of the

factors contained within those provisions prior to pronouncing the sentence. Specifically,

the court stated: "The Court finds, based upon what has happened in here this morning,

that the case is of such severity, and the defendant's conduct indicated to me less than a

remorseful attitude or a recognition that what happened was abominable." Thus, the court

evinced some consideration of the seriousness and recidivism factors during the hearing.

Moreover, as Kase concedes, the trial court specifically mentioned that it considered R.C.

2929.11 and 2929.12 in its judgment entry of sentencing.

{¶ 18} And even if the record had been completely silent—which it is not—this court

has recently held in State v. James, 7th Dist. No. 07 CO 47, 2009-Ohio-4392, that "reversal

is not automatic where the sentencing court fails to provide reasons for its sentence or fails

to state at sentencing or in a form judgment entry, 'after considering R.C. 2929.11 and
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2929.12.' " Id. at ¶50. This court opted to "return to the Adams rule that a silent record

raises the rebuttable presumption that the sentencing court considered the proper factors."

Id. Thus, Kase's first argument is meritless.

{¶ 19} Second, Kase argues that his sentence violates R.C. 2929.13(A), which

provides that a felony "sentence shall not impose an unnecessary burden on state or local

government resources."

{¶ 20} "Just what constitutes a 'burden' on state resources is undefined by the

statute, but the plain language suggests that the costs, both economic and societal, should

not outweigh the benefit that the people of the state derive from an offender's

incarceration." State v. Goins, 7th Dist. No. 06-MA-131, 2008-Ohio-1170, at ¶35, quoting

State v. Vlahopoulos, 154 Ohio App.3d 450, 2003-Ohio-5070, 797 N.E.2d 580, at ¶5. In

addition, "a sentencing court need not elevate resource conservation above the principles

and purposes of sentencing. * * * The relevant premise in R.C. 2929.13(A) entails

weighing the cost to the government with the benefit that society derives from an offender's

incarceration." State v. Ballard, 7th Dist. No. 08 CO 13, 2009-Ohio-5472, at ¶92. Further,

the trial court is not required to make findings pursuant to R.C 2929.13(A). Id. at ¶91.

{¶ 21} There is no indication that Kase's sentence for rape unduly burdens

government resources. Kase committed an egregious crime against his stepdaughter, and

both sentencing options before the court involved lengthy prison terms. The fact that the

court chose the maximum penalty, i.e., life without parole, as opposed to 15 years to life,

does not mean that the sentence places an unnecessary burden on government

resources.
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{¶ 22} Third, Kase takes issue with the fact that the trial court failed to notify him of

his responsibilities as a Tier III sex offender during the sentencing hearing and failed to

include a statement in the sentencing entry specifying his sex-offender classification.

{¶ 23} R.C. 2929.19(B)(4)(a) states that "[t]he court shall include in the offender's

sentence a statement that the offender is a tier III sex offender/child-victim offender, and

the court shall comply with the requirements of section 2950.03 of the Revised Code if any

of the following apply: * * * (v) [t]he offender is sentenced to a term of life without parole

under division (B) of section 2907.02 of the Revised Code." Since Kase was sentenced to

a term of life without parole pursuant to R.C. 2907.02(B), the trial court was required to

comply with R.C. 2929.19(B)(4)(a).

{¶ 24} R.C. 2929.19(B)(4)(a) has two components, one of which is that the trial court

shall comply with the notification requirements contained in R.C. 2950.03, which are as

follows:

{¶ 25} "(A) Each person who has been convicted of, is convicted of, has pleaded

guilty to, or pleads guilty to a sexually oriented offense or a child-victim oriented offense

and who has a duty to register pursuant to section 2950.04 or 2950.041 of the Revised

Code and each person who is adjudicated a delinquent child for committing a sexually

oriented offense or a child-victim oriented offense and who is classified a juvenile offender

registrant based on that adjudication shall be provided notice in accordance with this

section of the offender's or delinquent child's duties imposed under sections 2950.04,

2950.041, 2950.05, and 2950.06 of the Revised Code and of the offender's duties to

similarly register, provide notice of a change, and verify addresses in another state if the
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offender resides, is temporarily domiciled, attends a school or institution of higher

education, or is employed in a state other than this state. The following official shall provide

the notice required under this division to the specified person at the following time:

{¶ 26} "(2) Regardless of when the person committed the sexually oriented offense

or child-victim oriented offense, if the person is an offender who is sentenced on or after

January 1, 2008 for any offense, and if division (A)(1) of this section does not apply, the

judge shall provide the notice to the offender at the time of sentencing." (Emphasis

added.) R.C. 2950.03(A)(2).

{¶ 27} Here, the trial court did provide notice of Kase's classification as a Tier III

offender and the duties flowing from that classification. This notification occurred

immediately after the court conducted the Crim.R. 11 colloquy and accepted Kase's guilty

plea to the rape charge. During this hearing, which the trial court termed a "SORN

hearing," the court advised Kase that based on his conviction for a violation of R.C.

2907.02(A)(1)(b), Kase is classified as a Tier III sex offender. Kase was advised of all

reporting requirements for a Tier III classification, and he acknowledged his understanding

of those requirements. At that time, Kase also signed a written form entitled "Explanation

of Duties to Register as a Sex Offender or Child Victim Offender Duties commencing on or

After January 1, 2008 (ORC 2950.04 or 2950.041)." The trial court then granted Kase's

request for a PSI and continued the sentencing hearing until June 15, 2009, to allow time

for preparation of the PSI. At the June 15, 2009 hearing, the trial court proceeded to

sentence Kase to a term of life in prison without parole. The court did not reiterate the sex-
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offender registration and notification requirements during that hearing, and Kase argues

that this constitutes error. We disagree.

{¶ 28} R.C. 2950.03(A)(2) requires that notice shall be given "at the time of

sentencing." Here, the trial court provided notice during a SORN hearing, which occurred

immediately after the court accepted Kase's guilty plea. At that point, the plea proceedings

had concluded, and the sentencing proceedings had commenced. The court did not err by

failing to re-notify Kase during the June 15, 2009 sentencing hearing.

{¶ 29} The second component of R.C. 2929.19(B)(4)(a) mandates that the trial court

include a statement of the defendant's sex-offender classification in the judgment entry of

sentencing. Here, the trial court erred by failing to include this statement in either the

original or the amended sentencing entry.

{¶ 30} Third, Kase contends that the sentence specified in the sentencing entry is

inconsistent with the sentence stated from the bench during sentencing. "Crim.R. 43(A)

provides that the defendant shall be present at every stage of the trial, including at the

imposition of sentence. Because the defendant's presence is required when the court

imposes sentence, the trial court errs when its judgment entry of sentence differs from the

sentence that it announced at the sentencing hearing in the defendant's presence." State

v. Kovach, 7th Dist. No. 08-MA-125, 2009-Ohio-2892, at ¶28, citing State v. Jordan, 10th

Dist. No. 05AP-1330, 2006-Ohio-5208, at ¶48.

{¶ 31} In this case, the trial court pronounced during the sentencing hearing that

Kase would receive a "life sentence." In its judgment entry, the court imposed a sentence

of "life without parole." At first blush, these two statements appear to be consistent. The
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trial court had two sentencing options: 15 years to life, or life without parole. The court

stressed that it believed Kase's crime to be "abominable" and further made no mention of

postrelease control. Looking at the sentencing transcript as a whole, it could appear that in

imposing a "life sentence," the trial court chose the more severe of the two options, i.e., life

without parole.

{¶ 32} Nonetheless, we must conclude based on our precedent that the trial court's

use of imprecise language during the sentencing hearing constitutes reversible error.

Recent opinions of this court have interpreted Crim.R. 43(A) strictly. For example, in

Kovach, 2009-Ohio-2892, this court found reversible error when the language in the

amended sentencing entry (two years for the third-degree felony and 12 months for the

fifth-degree felony, to be served concurrently), differed from what the court stated at the

hearing ("a term of two years," with no further specification provided). Id. at ¶29. See also

State v. Allen, 7th Dist. No. 08-MA-179, 2009-Ohio-2896 (error when trial court ordered

sentences to run consecutively in judgment entry but failed to specify concurrent or

consecutive at the hearing). In this case, the sentence pronounced at the hearing was

imprecise and differed from that in the judgment entry of sentence. This imprecision is

material. Both sentencing options provide for a "life sentence," but only one provides the

opportunity for parole. Accordingly, Kase's first assignment of error is meritorious.

{¶ 33} In his second and final assignment of error, Kase asserts:

{¶ 34} "The trial court committed error in imposing the maximum sentence because

the trial court abused its discretion in imposing said sentence upon the Appellant."
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{¶ 35} Since our resolution of the first assignment of error, that Kase's sentence is

contrary to law, is dispositive of this appeal, we decline to address Kase's second

assignment of error. "If on appeal the trial court's sentence is * * * clearly and convincingly

contrary to law, * * * the appellate court's review is at an end." Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, at ¶15. Therefore Kase's second assignment of error is

moot.

{¶ 36} In conclusion, Kase's first assignment of error is meritorious. Kase's

sentence is contrary to law because the sentence announced by the trial court during the

sentencing hearing, i.e., "a life sentence," was imprecise and differed from the sentence

stated in the sentencing entry, i.e., "life without parole." Further, although the trial court

properly notified Kase about his sex-offender classification and corresponding duties

immediately after it accepted Kase's guilty plea during a SORN hearing, the trial court's

sentencing entry is deficient in that it failed to include a statement that Kase is a Tier III sex

offender/child-victim offender pursuant to R.C. 2929.19(B)(4)(a)(v). Accordingly, Kase's

sentence is reversed, and this cause is remanded to the trial court for resentencing.

Judgment accordingly.

DONOFRIO and W AITE, JJ., concur.