[Cite as State v. Holloway, 2012-Ohio-4936.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97906
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICKEY R. HOLLOWAY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-550299
BEFORE: Boyle, P.J., Sweeney, J., and Rocco, J.
RELEASED AND JOURNALIZED: October 25, 2012
ATTORNEY FOR APPELLANT
John P. Parker
988 East 185th Street
Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Mickey Holloway, appeals his sentence, raising the
following two assignments of error:
I. The trial court abused its discretion and erred as a matter of law under
the Fourteenth Amendment of the federal Constitution by ordering the
Probation Department to supervise the appellant as a sex offender when he
was convicted of a non-sex offense.
II. The appellant’s status as a sex offender under ORC 2950 must be
vacated because he has not been convicted of a sex crime, was not notified
in open court of any requirements under ORC 2950 and did not agree to any
of the requirements of ORC 2950.
{¶2} Although we find no error in the community controlled sanctions imposed
by the trial court, including Holloway’s supervision under the sex offender unit, the trial
court has no authority to label Holloway as “a Tier sex offender”1 and require him to
report as a sex offender. We, therefore, find some merit to the appeal and reverse that
portion of the trial court’s order that labels Holloway as a sex offender. But we
otherwise affirm Holloway’s sentence with respect to the community controlled sanctions
imposed.
Procedural History and Facts
{¶3} Holloway was indicted on single counts of rape, gross sexual imposition,
and kidnapping, all carrying a sexually violent predator specification. The alleged
1
The trial court stated in the sentencing journal entry that “defendant is now a Tier sex
offender.”
victim was Holloway’s 9-year-old stepdaughter, who subsequently recanted after
reporting the incident that gave rise to the indictment. Pursuant to a plea agreement
reached with the state, Holloway subsequently pleaded guilty to an amended indictment
of aggravated assault, a fourth degree felony. The trial court accepted Holloway’s guilty
plea and found him guilty on the single count of aggravated assault. The court then
ordered that a presentence investigation report (“PSI”) be prepared prior to sentencing.
{¶4} At the sentencing hearing, the trial court gave defense counsel the
opportunity to address any of the information contained in the PSI. Defense counsel
stated that Holloway wanted to reunite with his family and that Holloway’s wife, the
alleged victim’s mother, was supporting him. Notably, however, defense counsel never
objected to the recommendation contained in the report that Holloway be placed in the
sex offender’s unit if placed on probation.
{¶5} Defense counsel further emphasized that the victim recanted her allegations
on more than one occasion to more than one person. He further explained that after the
Department of Children and Family Services became involved, the family received
counseling for approximately one year and was reunited. But after the indictment was
filed, Holloway was split from his family again and pleaded guilty to put this case behind
him and reunite with his family as soon as possible. Defense counsel urged the trial
court to impose community controlled sanctions with the appropriate supervision,
acknowledging that Holloway needs alcohol treatment.
{¶6} Conversely, the prosecutor addressed the court, explaining that the plea
agreement was reached because the state did not want to have to impeach the victim —
an 11-year-old girl — at trial. The prosecutor, however, pointed to the physical
evidence that existed corroborating the victim’s story — specifically Holloway’s DNA,
and emphasized that this was the second report by the same victim. The prosecutor
urged the trial court to impose strict conditions upon Holloway if it opted not to send him
to prison.
{¶7} The trial court ultimately sentenced Holloway to 60 days in the county jail,
followed by a period of two years of community controlled sanctions. As part of
Holloway’s community controlled sanctions, the trial court ordered that Holloway submit
to a sex offender assessment, complete sex offender counseling, and be subject to
polygraph examinations as recommended by the treatment team.
{¶8} The journal entry sentencing Holloway also stated that he was labeled “a
Tier sex offender” and must therefore comply with the reporting requirements.
{¶9} Holloway now appeals his sentence.
Community Controlled Sanction
{¶10} In his first assignment of error, Holloway argues that the trial court abused
its discretion in imposing sanctions, “treating him as sex offender,” when such sanctions
were unrelated to the crime for which he was convicted, i.e., aggravated assault.
{¶11} R.C. 2929.15(A)(1) vests the trial court with discretion to impose any
condition of community control sanctions it deems appropriate. State v. Talty, 103 Ohio
St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201. In Talty, the Supreme Court of Ohio
adopted a test to determine the reasonableness of community control conditions. Under
the test, courts should consider whether the condition “is reasonably related to
rehabilitating the offender, (2) has some relationship to the crime of which the offender
was convicted, and (3) relates to conduct which is criminal or reasonably related to future
criminality and serves the statutory ends of probation.” Id. at ¶ 12. However, the
community control conditions cannot be overly broad so as to unnecessarily impinge upon
the offender’s liberty. Id. at ¶ 13. We review the trial court’s imposition of community
control sanctions under an abuse-of-discretion standard. Id. at ¶ 10.
{¶12} Holloway argues that the trial court’s sentence contravenes the second
element of the Talty test because aggravated assault is not a sex offense.
{¶13} Contrary to Holloway’s unsupported assertion, we find that the trial court’s
sentence relates to the underlying facts giving rise to the conviction. Indeed, the only
allegations giving rise to the indictment involve a sex offense as set forth in the PSI,
which the trial court specifically considered before sentencing Holloway. The trial court
further followed the recommendation contained in the PSI to place Holloway under
supervision in the sex offender unit if a prison term was not imposed. The mere fact that
a defendant reaches a plea agreement for a lesser offense does not mean that a trial court
should disregard the underlying facts giving rise to the indictment and ultimate
conviction. Here, the trial court’s requirement that Holloway be supervised in the sex
offender unit was appropriate given the underlying facts. Aside from the victim
reporting the incident, the state further indicated that it had some DNA evidence
connecting Holloway to the offense. Indeed, this is not a case where the sanction is so
overbroad or completely unrelated to the facts giving rise to the conviction. Compare
Strongsville v. Feliciano, 8th Dist. No. 96294, 2011-Ohio-5394.
{¶14} Further, sentencing courts must consider the purpose of sentencing before
imposing any sentence, which include (1) protecting the public from future crime by the
offender and others, and (2) punishing the offender (using the minimum sanctions that the
court determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources). R.C. 2929.11(A). “To achieve those purposes,
the sentencing court shall consider the need for incapacitating the offender, deterring the
offender and others from future crime, rehabilitating the offender, and making restitution
to the victim of the offense, the public, or both.” Id.
{¶15} Here, the conditions imposed as part of the community controlled sanction
comport with this principle and achieve the sentencing goals. Indeed, as part of
Holloway’s supervision in the sex offender unit, Holloway will be required to submit to a
sex offender assessment and possibly a polygraph examination. He was also ordered to
successfully complete sex offender counseling. All these measures not only protect the
public, including his step-daughter (the victim), but they also aid in rehabilitating
Holloway while adequately punishing him for the offense. We find no basis to conclude
that the trial court abused its discretion in this case.
{¶16} The first assignment of error is overruled.
Sex Offender Label
{¶17} In his second assignment of error, Holloway argues that the trial court erred
in labeling him a sex offender and requiring him to report as a sex offender. The state
concedes the error, noting that the trial court never mentioned sex offender registration
during the sentencing hearing but that the journal entry wrongly reflects otherwise. We
sustain the second assignment of error. Upon remand, we order that the trial court
vacate that portion of Holloway’s sentencing order.
{¶18} Judgment affirmed in part, reversed in part, and case remanded to
the lower court for further proceedings consistent with this opinion.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas 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.
MARY J. BOYLE, PRESIDING JUDGE
JAMES J. SWEENEY, J., CONCURS;
KENNETH A. ROCCO, J., CONCURS IN JUDGMENT WITH
SEPARATE OPINION
KENNETH A. ROCCO, J., CONCURRING IN JUDGMENT:
{¶19} Although I am constrained to agree with the majority’s disposition of this
appeal, I write separately to express my concern regarding what occurred in this case.
The defendant was originally indicted on charges of rape, gross sexual imposition, and
kidnapping, all carrying a sexual violent predator specification. As part of a negotiated
plea bargain, the first count of the indictment was amended from rape to aggravated
assault. The defendant was permitted to plead guilty to a charge of aggravated assault
under R.C. 2903.12(A)(1), and the remaining counts were nolled.
{¶20} The original indictment was based on an incident of alleged sexual abuse
involving the defendant’s 9-year-old stepdaughter. During a police interview conducted
the day of the alleged incident, defendant’s stepdaughter told police that, at approximately
2:00 a.m., she awoke to the defendant touching and licking her vaginal area. She pulled
her pants and panties up, but the defendant pulled them down again and pulled her close
to him, rubbing her buttocks. The record indicates that the victim initially told her sister
about the incident at school and, with her sister’s encouragement, later told a teacher
about the incident, who contacted social services.
{¶21} DNA evidence corroborated the victim’s allegations. This was the second
incident in which the defendant had allegedly engaged in this type of conduct with the
same victim.
{¶22} R.C. 2903.12(A)(1), aggravated assault, provides, in pertinent part: “No
person, while under the influence of sudden passion or in a sudden fit of rage, either of
which is brought on by serious provocation occasioned by the victim that is reasonably
sufficient to incite the person into using deadly force, shall knowingly * * * [c]ause
serious physical harm to another * * * .”
{¶23} The record is incomplete. However, it is virtually impossible to imagine a
circumstance in which a 9-year-old girl could have “by serious provocation * * *
incite[d]” her stepfather “into using deadly force” within the meaning of R.C.
2903.12(A)(1). Certainly no such facts exist in the record.
{¶24} Under Crim.R. 7(D), a trial court may amend an indictment “in respect to
any defect, imperfection, or omission in the form or substance, or of any variance with the
evidence, provided no change is made in the name or identity of the crime charged.”
Here, the trial court erred in amending the first count of the indictment from rape under
R.C. 2907.02(A)(1)(b) to aggravated assault under R.C. 2903.12(A)(1) because the
amendment “changed the name or identity of the crime charged.” Crim.R. 7(D).
{¶25} However, in State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934
N.E.2d 920, the Ohio Supreme Court held that “[a] defendant may plead guilty to an
indictment that was amended to change the name or identity of the charged crime when
the defendant is represented by counsel, has bargained for the amendment, and is not
prejudiced by the change.” Id. at syllabus. The court held that under such
circumstances, error in amending the indictment “is not reversible plain error, because
there was no miscarriage of justice.” Id. at ¶ 7. As this case aptly demonstrates, this
can result in a defendant pleading guilty to an offense that is highly implausible — if not
impossible — under the alleged facts.
{¶26} I appreciate the inherent difficulties in cases involving young victims and
the concerns and challenges presented by a (now 11-year-old) recanting witness.
However, I question whether justice and the public interest were served by the state in
this case in agreeing to accept the defendant’s guilty plea to a lesser offense in the
amended indictment that he could not have possibly committed based on the alleged facts.
This is not a case in which the only evidence against the defendant was the victim’s
statement. According to the transcript from the sentencing hearing, there was other
“strong” evidence against the defendant, including Department of Children and Family
Services’ records and DNA evidence supporting the victim’s allegations, which, as the
trial court acknowledged, “is rare in these cases.” Cases are certainly prosecuted with
less evidence.
{¶27} Accordingly, it is with great reluctance that I concur in the majority’s
opinion.