State v. Hussing

[Cite as State v. Hussing, 2012-Ohio-4938.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 97972

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

MONICA HUSSING
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-521825

BEFORE: Blackmon, A.J., Celebrezze, J., and Sweeney, J.

RELEASED AND JOURNALIZED: October 25, 2012
ATTORNEY FOR APPELLANT

Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary H. McGrath
Anna M. Faraglia
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:

{¶1} Appellant Monica Hussing appeals her guilty plea to attempted involuntary

manslaughter and assigns the following four errors for our review:

I. The trial court did not comply with Criminal Rule 11 before
accepting Hussing’s guilty plea, and the plea of guilty was not
knowingly, intelligently, and voluntarily made.

II. The trial court erred when it sentenced Hussing to the maximum
possible prison sentence.

III. The trial court erred during the sentencing hearing when it
considered a victim impact statement from the Cuyahoga County
Department of Children and Family Services in violation of R.C.
2930.13.

IV. The trial court erred when it relied upon the statements of an

expert witness at sentencing, which statements contained new material

facts, in violation of R.C. 2930.14(B).

{¶2} Having reviewed the record and pertinent law, we affirm Hussing’s

conviction. The apposite facts follow.

Facts

{¶3} In April 2009, the Cuyahoga County Grand Jury indicted Hussing on one

count of involuntary manslaughter, three counts of child endangerment, and one count of

felonious assault. 1 The charges arose from the 2008 death of her eight-year-old son,

Willy, who died of bronchopneumonia due to Stage IV Hodgkin’s Lymphoma. The

child’s death was ruled a homicide due to Hussing’s failure to seek medical attention for

Hussing’s husband, William Robinson, Sr., was indicted on identical charges
1

and has filed a separate appeal.
her dying child. In January 2012, Hussing pled guilty to one count of attempted

involuntary manslaughter. Sentence was continued for the court to obtain a presentence

investigation report and psychiatric report. The state and Hussing also submitted

sentencing memoranda.

{¶4} According to the statements made at the sentencing hearing and the

information contained in the sentencing memorandum, Willy suffered a needlessly

painful death. Willy originally lived with his parents and his five siblings in Warren,

Ohio. In October 2006, Hussing’s sister, Sheila Slawinski, stayed with the family for

two weeks after a death in the family. At that time, Slawinski noticed swelling in

Willy’s neck and that it was painful for Willy to walk. The only bathroom in the home

was on the second floor; Willy would cry at the bottom of the steps because it would hurt

to the climb the stairs. Slawinski and Hussing argued regarding Willy’s condition, with

Slawinski pleading with her to take him to a doctor. Hussing refused to take him for

medical care, and the sisters ceased communicating with each other.

{¶5} Shortly thereafter, an anonymous call was made to Trumbull County

Children and Family Services, which Hussing contends was made by Slawinski. The

caller contacted the agency because the children were not in school and because of the

lump observed on Willy’s neck. A social worker was assigned to the case; their case

plan required the parents to enroll the children in school and to take Willy to the doctor.

For six months, Hussing would repeatedly lie to her social worker and tell him that she

had applied for home schooling and medical coverage. In fact, she had not applied for

either. The parents eventually moved to Cuyahoga County to escape the agency’s
supervision. The Cuyahoga County Department of Children and Family Services

(“CCDCFS”) were not aware of the family until the hospital called to report the death of

Willy.

{¶6} In the spring of 2007, Slawinski saw photos of Willy on line and observed

he looked sick. She called Hussing and told her that she would take Willy to the doctor

and pay for his care. Hussing told her, “You need to mind your own f-----g business and

stay the f--k out of mine.” The last time that Slawinski saw Willy was at her daughter’s

graduation party in the summer of 2007. At that time, the aunt noticed that Willy sat by

himself and did not play with the other children. He looked pale, had blue circles under

his eyes, and complained that his legs and stomach hurt. The oldest child, who is 18,

lived with Hussing at the time of the hearing.

{¶7} Grant Boone is Hussing’s brother. He told the prosecutor that he saw a

lump the size of a softball on Willy’s neck in May of 2007. When he told his sister to

take Willy to the doctor she told him to “Mind your own f-----g business. They’re my

kids and I’m raising them.” He last saw Willy three weeks prior to his death. His face

and head were swollen, and he was very pale.

{¶8} Timothy Boone was Willy’s cousin. He told the prosecutor that he saw

Willy crying at the bottom of the stairs because his legs hurt so bad he could not climb the

stairs to use the bathroom. He said Willy would urinate in a milk jug because he could

not climb the stairs and spent a lot of time sleeping. He heard Willy ask his mother

several times to take him to the doctor, and she would tell him to wait for his father to

come home.
 {¶9} Tina Milloy, Willy’s aunt, told the prosecutor that she too saw Willy in so

much pain he could not climb the stairs. She asked Hussing several months before

Willy’s death why she did not take him to the doctor, and Hussing stated she did not have

medical coverage. Milloy informed her that the free clinic would treat her son.

{¶10} Records from the Trumbull Memorial Hospital indicated that on December

18, 2007, the parents had obtained treatment for one of their daughter’s who sustained a

knee injury even though the family was not insured. Willy was exhibiting signs of

sickness during this time, yet received no treatment. Dr. Lolita McDavid, Medical

Director of Child Advocacy and Protection at Rainbow Babies & Children’s Hospital,

testified that the cost of the medical care did not excuse the parents’ failure to seek care

for the child because Medicaid would have covered the child’s treatment.

{¶11} Dr. John Letterio from Rainbow Babies & Children’s Hospital, a specialist

in pediatric hematology oncology, testified at the hearing. He stated that he was certain

that if Willy had received medical treatment, he would have survived because Hodgkins

Lymphoma is a “highly curable cancer.” The doctor testified that it would have been

impossible for the parents to have not realized that the child was sick and in pain.

According to the doctor, aside from the loss of organ function, the pain from the growth

of the cancer throughout Willy’s body would have been “immeasurable.”

{¶12} Reviewing the autopsy photographs, the doctor testified that the child’s

limbs had atrophied and his abdomen protruded indicating that the child had become

malnourished and was in a catabolic state prior to death. It would have been strenuous

for Willy to walk for the last few months of his life because of the congestion in his lungs
and the cancer invading his bone marrow. This would not have been a physical state that

abruptly occurred during the last days of his life.

{¶13} CCDCFS, which is currently monitoring Willy’s siblings, submitted a

victim impact statement in which it stated that Willy’s siblings have all been affected by

their parents’ failure to care for Willy and his eventual death. They suffer from feelings

of confusion regarding the tragedy of their brother’s death and love for their parents.

The children recalled that a few days before his death, Willy called each one of them into

his room to spend time with them and say goodbye because he knew he was going to die.

According to the social worker, “they’re going to have to go through a tremendous

amount of pain and difficulty before they can begin to heal and become emotionally

healthy adults.” Slawinski and her husband now have custody of the four minor

children.

{¶14} Willy’s 18 year-old half-sister testified on her mother’s behalf. At the

time of sentencing she was living with her mother. She was 14 years old when her

brother died. She claimed that her parents tried to get medical help for her brother, but

were denied assistance. She stated that her brother was able to do things like a normal

eight year old and was not in pain and did not appear sick. She claimed he did not

become sick until several days prior to his death.

{¶15} Hussing addressed the court and stated that her sister who spoke of her son

might have seen him about four times in his life, and, therefore, did not know her son

well. She also stated that she missed and loved her son. In her sentencing

memorandum, Hussing argued she did not know her son was seriously ill and thought he
suffered from swollen glands. She also contended she could not afford to pay for

medical care for Willy.

{¶16} After setting forth its findings, the trial court sentenced Hussing to the

maximum sentence of eight years in prison.

Guilty Plea

{¶17} In her first assigned error, Hussing argues that her guilty plea was not

knowingly, intelligently, and voluntarily made because the trial court failed to adequately

explain her right against self-incrimination and failed to adequately explain the possible

sentence she was facing.

{¶18} Under Crim.R. 11(C), prior to accepting a guilty plea in a felony case, a

court must conduct an oral dialogue with the defendant to determine that the plea is

voluntary, that the defendant understands the nature of the charges and the maximum

penalty involved, and to personally inform the defendant of the constitutional guarantees

he is waiving by pleading guilty.

{¶19} In determining whether the trial court has satisfied its duties under Crim.R.

11 in taking a plea, reviewing courts have distinguished constitutional and

non-constitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, ¶18 and 27; State v. Gibson, 34 Ohio App.3d 146, 147, 517 N.E.2d 990 (8th

Dist.1986). The trial court must strictly comply with those provisions of Crim.R. 11(C)

that relate to the waiver of constitutional rights. State v. Stewart, 51 Ohio St.2d 86,

88-89, 364 N.E.2d 1163 (1977); State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115

(1981), paragraph one of the syllabus.
 {¶20} For nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not

required and “substantial compliance” is sufficient. State v. Stewart, 51 Ohio St.2d 86,

364 N.E.2d 1163 (1977); State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893

N.E.2d 462, ¶ 31. “Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of his plea and the

rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

{¶21} Hussing contends her plea was invalid because the trial court did not

adequately explain her right against self-incrimination. This is a constitutional right and,

therefore, requires strict compliance. The trial court advised Hussing and her husband as

follows:

At all times during these proceedings each of you have the absolute
right to remain silent. If you were to proceed to trial and not testify,
the State of Ohio could not use your silence against you in an effort to
prove you guilty; do you understand that? Tr. 20.

To which Hussing responded, “Yes, your honor.”

{¶22} Strict compliance “does not require a rote recitation of the exact language of

the rule; rather, the focus on review is whether the record shows that the judge explained

these rights in a manner reasonably intelligible to the defendant.” Ballard, 66 Ohio St.2d

480, 423 N.E.2d 115. The trial court’s advisement adequately explained the right

against self-incrimination. We held in State v. Burston, 8th Dist. No. 93645,

2010-Ohio-5120, that the advisement, “Do you understand that you are giving up your

right in each case to remain silent and not testify?” complied with Crim.R. 11(C) because

it was reasonably intelligible to the defendant. Here, the trial court went even further and
explained that her silence could not be used against her. Moreover, when the trial court

asked if she understood its explanation of the right, she stated that she did.

{¶23} Hussing also contends the trial court failed to adequately advise her of the

possible sentence. The trial court informed Hussing that “felonies of the second degree

are punishable by between two and eight years in state prison.” Hussing contends the

trial court should have told her that the possible sentence was 2, 3, 4, 5, 6, 7, or 8 years,

which would have notified her that she could not receive a sentence such as two and

one-half years. Crim.R. 11(C)(2)(a) only requires that the defendant be advised of the

maximum penalty involved. The trial court advised that the maximum sentence was

eight years; therefore, it complied with its duty in advising Hussing pursuant to

Crim.R.11(C)(2)(a). The court has no duty to advise the defendant that nothing less than

whole years can be imposed. Accordingly, Hussing’s first assigned error is overruled.

Maximum Sentence

{¶24} In her second assigned error, Hussing argues that the trial court erred by

sentencing her to the maximum sentence.

{¶25} We review Hussing’s sentence under the two-prong test set forth in State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Under the first prong, we

review whether the trial court complied with all applicable rules and statutes to determine

if the sentence was clearly and convincingly contrary to law. After finding the first

prong satisfied, we review the trial court’s decision under an abuse of discretion standard.

Id. at ¶ 4.
 {¶26} The record reflects that Hussing was sentenced to a prison term of eight

years for the charge of attempted involuntary manslaughter, a felony of the second

degree, which is within the statutory parameters for such an offense. The record also

indicates that the trial court considered the appropriate statutory guidelines in determining

the sentence.

{¶27} H.B. 86 took effect on September 30, 2011. Hussing was sentenced on

February 16, 2012, therefore, the amendments to the sentencing statutes apply to

Hussing’s sentence. One of the changes H.B. 86 imposed as to the felony sentencing

laws concerns the purposes of felony sentencing, as stated in R.C. 2929.11(A). The two

primary purposes of felony sentencing remain “to protect the public from future crime by

the offender and others and to punish the offender * * *.” Id. These goals, however, are

to be realized “using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” Id.

{¶28} In complying with the objectives set forth in R.C. 2929.11, the court must

consider the seriousness and recidivism factors under R.C. 2929.12. State v. Stone, 3d

Dist. No. 9-11-39, 2012-Ohio-1895, ¶ 10. However, R.C. 2929.11 and 2929.12 do not

mandate judicial fact-finding, but direct the court to “consider” the factors. State v.

Sutton, 8th Dist. No. 97132, 2012-Ohio-1054. “Thus, ‘in exercising its discretion, a court

is merely required to “consider” the purposes of sentencing in R.C. 2929.11 and the

statutory * * * factors set forth in R.C. 2929.12.’” Sutton, citing State v. Lloyd, 11th Dist.

No. 2006-Ohio-L-185, 2007-Ohio-3013, ¶ 44.
 {¶29} Here, prior to sentencing Hussing, the trial court acknowledged the

purposes and principles of sentencing as set forth in R.C. 2929.11 and after discussing the

facts of the case proceeded to detail the seriousness and recidivism factors set forth in

R.C. 2929.12 in determining the sentence. The court found that 1) the offender’s

relationship with the child facilitated the offense because the child was at his parents’

mercy to receive medical care; 2) the mental and physical injury suffered by the child due

to the parents’ conduct “was exacerbated because of the physical and mental condition or

age of the victim”; and, 3) the victim suffered serious physical, psychological harm as a

result of the offense.

{¶30} As to the likelihood of recidivism, the court found that based on the

presentence investigation report and the psychological report, the mother had a

demonstrated pattern of drug or alcohol abuse and refused treatment for the abuse. The

psychiatric report indicated that Hussing was addicted to marijuana. The court also

found that Hussing showed no remorse regarding the death of the child. Finally, the

court acknowledged that the parents did not have prior criminal histories, but concluded

that the criminal conduct was so egregious that prison was necessary.

{¶31} Based on the record, the first prong of the Kalish test was satisfied because

the court complied with the sentencing statutes in imposing the sentence. Regarding the

second prong of the test, we conclude the trial court did not abuse its discretion by

imposing the maximum sentence. Hussing’s conduct was more serious than conduct that

normally constitutes the offense according to the factors listed in R.C. 2929.12(B). The

record demonstrates that Hussing was the victim’s mother and that he was at her mercy to
obtain medical care. In fact he pleaded with her to take him to the doctor, yet she refused

and allowed the child to suffer a slow and painful death that could have been prevented

with medical care. Accordingly, Hussing’s second assigned error is overruled.

Victim Impact Statement

{¶32} In her third assigned error, Hussing argues the trial court erred by

considering the victim impact statement from the CCDCFS because the CCDCFS was not

a victim.

{¶33} At trial, Hussing’s counsel objected to the victim impact statement. In

response, the state explained that CCDCFS became involved with the family after Willy

died and has since been involved with the remaining children. The purpose of the impact

statement was to present the effect that Willy’s death had on his siblings, rather than bring

the traumatized children to court to face their parents. Thus, CCDCFS was acting as the

children’s representative. Moreover, the victim was dead. R.C. 2930.01 defines

“victim’s representative” as “a member of the victim’s family or another person who

pursuant to the authority of section 2930.02 of the Revised Code exercises the rights of a

victim under this chapter.” R.C. 2930.02(A) allows a representative to speak on behalf

of the victim if the victim is a minor or deceased. In the case, the siblings were minors

and the victim was deceased. Therefore, the court did not err by allowing the statement

of CCDCFS to be introduced. Accordingly, Hussing’s third assigned error is overruled.

Expert Witness
 {¶34} In her fourth assigned error, Hussing argues the trial court erred by

allowing the expert testimony of Dr. Letterio at the sentencing hearing. Hussing

contends the doctor was allowed to testify without being sworn in or subject to

cross-examination.

{¶35} Defense counsel objected to Dr. Letterio testifying at the sentencing

hearing. The prosecutor responded that the doctor’s testimony was necessary because

defense counsel had appeared on national TV to state that medical care was not afforded

to the family and that Willy never exhibited any characteristics that would have indicated

that he was ill. These were the same arguments contained within Hussing’s sentencing

memorandum. Thus, the state was anticipating Hussing was going to deny the child

exhibited any symptoms. Dr. Letterio testified that the autopsy indicated the child had

tumors on every organ of his body, had a protruding stomach and joints, and would have

been in excruciating pain; therefore, it would have been impossible for the parents to have

not known the child was seriously ill. The doctor also testified that if the child had

received medical care he would have survived the cancer.

{¶36} R.C. 2929.19(A) provides in part:

At the hearing, the offender, the prosecuting attorney, the victim or the
victim’s representative in accordance with section 2930.14 of the
Revised Code, and, with the approval of the court, any other person may
present information relevant to the imposition of sentence in the case.
(Emphasis added.)

{¶37} The doctor’s testimony was relevant to the imposition of the sentence. The

mother and her eldest daughter stated at the sentencing hearing that the child appeared

healthy until a few days before his death. The state anticipated Hussing would maintain
that she was ignorant of his condition; therefore, the doctor’s testimony was necessary to

rebut this contention.

{¶38} We find no error in the trial court allowing the doctor to give unsworn

testimony as the Rules of Evidence do not apply to sentencing hearings. Evid.R.

101(C)(1), (3). As to the court’s failure to allow cross-examination, defense counsel

never requested the opportunity to question the doctor. Moreover, the child’s relatives all

stated that it was obvious that Willy was sick and in pain. Therefore, the doctor’s

testimony was not new evidence. Accordingly, Hussing’s fourth assigned error is

overruled.

{¶39} Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution. The defendant’s conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
JAMES J. SWEENEY, J., CONCUR