State v. Mejia

[Cite as State v. Mejia, 2020-Ohio-6870.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY

State of Ohio Court of Appeals No. H-19-017

Appellee Trial Court No. CRI 20180827

v.

Lucas Velasco Mejia DECISION AND JUDGMENT

Appellant Decided: December 23, 2020

*****

James Joel Sitterly, Huron County Prosecuting Attorney, and
Bambi S. Couch, Assistant Prosecuting Attorney, for appellee.

Brian A. Smith, for appellant.

*****

ZMUDA, P.J.

I. Introduction

{¶ 1} Appellant, Lucas Mejia, appeals the judgment of the Huron County Court of

Common Pleas, sentencing him to 25 years to life in prison after he pled guilty to one

count of rape. Because we conclude that appellant’s sentence is contrary to law, we

reverse and remand this matter to the trial court for resentencing.
 A. Facts and Procedural Background

{¶ 2} On October 19, 2018, a three-count indictment was filed with the trial court,

charging appellant with one count of rape in violation of R.C. 2907.02(A)(1)(b) and (B),

a felony of the first degree (“Count 1”), one count of rape in violation of R.C.

2907.02(A)(1)(b) and (B) with a specification that appellant “purposely compelled the

victim to submit by force or threat of force,” a felony of the first degree (“Count 2”), and

one count of sexual battery in violation of R.C. 2907.03(A)(5) and (B), a felony of the

second degree (“Count 3”). The charges stemmed from sexual acts appellant perpetrated

on a 12-year-old victim in August 2018.

{¶ 3} At his arraignment on October 22, 2018, appellant entered a plea of not

guilty to the aforementioned charges, and the matter proceeded through pretrial discovery

and motion practice. Following successful plea negotiations, appellant appeared before

the trial court on March 21, 2019, for a plea hearing.

{¶ 4} At the plea hearing, the state informed the court that the parties reached an

agreement whereby appellant would plead guilty to Count 1 in the indictment in

exchange for the state’s dismissal of Counts 2 and 3. Thereafter, the trial court engaged

appellant in a thorough Crim.R. 11 colloquy and asked the state to recite the factual basis

for the charge of rape.

{¶ 5} During the Crim.R. 11 colloquy, the trial court informed appellant that “the

mandatory penalty in this case is that the Court would have to impose * * * a prison term

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of 25 years up to life.” In explaining the factual basis for the rape charge to which

appellant was pleading guilty, the state informed the court:

On August 18, 2018 through August 25, 2018, and then on

August 26, 2018, the defendant in the course of conduct took [the victim],

date of birth 4-5-2006 to Shelby in Richland County, Ohio, from her home

located in Plymouth in Huron County, Ohio, to have sexual intercourse

with her.

They’re seen on video renting a room. He provides the hotel with

his passport. The stepdaughter speaks fluent English and provides the

innkeeper with all the information. They’re seen going into a hotel room

together, and a short time later leaving the hotel together.

On August 26, 2018, a neighbor of the defendant and of the victim

had suspicions that the two were engaging in a sexual relationship. She

observed the defendant and the victim leave their home and enter the woods

behind their house. She followed these two into the woods to a spot where

the footprints stopped and located a tied off condom filled with what she

thought was semen. She collected the condom, turned it over to law

enforcement and an investigation started.

The victim admitted she engaged in a sexual relationship with

[appellant] since age of 11; that the sexual relationship was just vaginal

penetration with his penis, and that a condom was always used. A SANE

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 exam was performed, a sexual assault examination was performed on the

victim. The defendant’s DNA was found inside the victim. The condom

was sent to laboratory for DNA testing. The victim’s DNA was located on

the outside of the condom.

{¶ 6} At the conclusion of the Crim.R. 11 colloquy, the trial court confirmed with

appellant that he signed the written plea form indicating his agreement to plead guilty to

rape as contained in Count 1 of the indictment. The plea form, which is included in the

record on appeal, reflects appellant’s agreement to plead guilty to Count 1 in exchange

for the dismissal of Counts 2 and 3 of the indictment. Moreover, the plea form reflects a

mandatory sentence of 25 years to life under R.C. 2971.03(A)(3)(d)(i), a statutory section

applicable to sexually violent offenders that the state, on appeal, concedes is irrelevant to

the present case. Ultimately, the trial court accepted appellant’s guilty plea and

continued the matter for sentencing, which took place on April 17, 2019.

{¶ 7} At the sentencing hearing, the trial court considered the principles and

purposes of sentencing under R.C. 2929.11, and balanced the seriousness and recidivism

factors under R.C. 2929.12. Thereafter, the trial court stated: “As far as the prison

sentence, the Court has no option in this case. The prison sentence is mandatory, and on

Count 1, the offense of rape being a felony of the first degree, the Court would impose a

25 year to life prison sentence that is mandatory.” The court went on to inform appellant

that he would be classified as a Tier III sex offender as a result of his conviction and

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provided appellant with an explanation of the registration requirements attributable to

that classification.

{¶ 8} Following the sentencing hearing, appellant filed a timely notice of appeal.

B. Assignments of Error

{¶ 9} On appeal, appellant assigns the following errors for our review:

I. The failure of Appellant’s trial counsel to file a Motion to

Suppress constituted ineffective assistance of counsel in violation of

Appellant’s rights under Article I, Section 10 of the Ohio Constitution and

the Sixth and Fourteenth Amendments to the United States Constitution,

rendering Appellant’s guilty plea not knowingly, voluntarily, and

intelligently entered.

II. Appellant’s sentence was contrary to law.

III. The failure of Appellant’s trial counsel to advocate for a lesser

prison sentence for Appellant constituted ineffective assistance of counsel

in violation of Appellant’s rights under Article I, Section 10 of the Ohio

Constitution and the Sixth and Fourteenth Amendments to the United States

Constitution.

IV. Appellant’s sentence was not supported by the record.

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 II. Analysis

A. Ineffective Assistance of Counsel

{¶ 10} In appellant’s first assignment of error, he argues that his trial counsel’s

failure to file a motion to suppress prior to his plea constituted ineffective assistance of

counsel and resulted in a guilty plea that was not knowingly, intelligently, and voluntarily

entered.

{¶ 11} To demonstrate ineffective assistance of counsel, appellant must first show

that trial counsel’s representation “fell below an objective standard of reasonableness.”

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). Because “effective assistance” may involve different approaches or strategies,

our scrutiny of trial counsel’s performance “must be highly deferential” with a “strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting

Strickland at 689. Should appellant demonstrate her trial counsel’s performance was

defective, appellant must also demonstrate that prejudice resulted. Bradley at paragraph

two of the syllabus.

{¶ 12} In order to satisfy the “prejudice” element for an ineffective-assistance

claim following a guilty plea, “‘the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.’” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283,

855 N.E.2d 48, ¶ 89, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d

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203 (1985). “In many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the

inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions

obtained through trial.” Hill at 59. The United States Supreme Court has recognized,

“defendants obviously weigh their prospects at trial in deciding whether to accept a plea.”

Lee v. United States, --- U.S. ----, 137 S.Ct. 1958, 1966, 198 L.Ed.2d 476 (2017). “Thus,

‘when the defendant’s decision about going to trial turns on his prospects of success and

those are affected by the attorney’s error – for instance, where a defendant alleges that his

lawyer should have but did not seek to suppress an improperly obtained confession’ – the

defendant must show that ‘he would have been better off going to trial.’” State v. Willis,

6th Dist. Wood No. WD-16-048, 2017-Ohio-8924, ¶ 12, quoting Lee at 1965. “Where an

attorney error allegedly affects how a trial would have played out, [courts should] analyze

that error’s effects on a defendant’s decisionmaking [sic] by making a prediction of the

likely trial outcome.” Lee at 1967, fn. 3.

{¶ 13} In the present case, appellant argues that he would not have entered a guilty

plea but for trial counsel’s ineffectiveness in failing to file a motion to suppress

statements, including admissions of sexual intercourse with the victim, that he made

during custodial interrogation without being first completely advised of his Miranda

rights. In making his argument, appellant relies upon an August 27, 2018 recording of

the interview of appellant at the Huron County Jail, as well as the August 27, 2018

reports of the Greenwich Police Department and Huron County Sheriff’s Department.

Notably, this evidence is not part of the record on appeal, having never been introduced

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by appellant below. Indeed, we previously ordered this evidence stricken from the record

pursuant to a motion to strike filed by the state, and noted in our decision that we would

not consider the supplemental materials containing said evidence in rendering our

decision in this appeal.

{¶ 14} Because there is no evidence in the record to support appellant’s assertion

that he was deprived of his Fifth Amendment rights against self-incrimination when he

was interviewed by law enforcement on August 27, 2018, we find that appellant cannot

establish that his trial counsel acted incompetently in failing to file a motion to suppress

on that basis. Therefore, we find that trial counsel was not deficient for failing to file a

motion to suppress in this case. State v. Gott, 6th Dist. Lucas No. L-14-1066, 2015-Ohio-

917, ¶ 28 (to prove ineffective assistance due to counsel’s failure to file a motion to

suppress, the record must support both a finding that the motion would have been granted

and a finding that the absence of the motion prejudiced the appellant’s case).

{¶ 15} In light of the foregoing, we find appellant’s first assignment of error not

well-taken.

B. Sentencing Issues

{¶ 16} In his second assignment of error, appellant argues that his prison sentence

of 25 years to life was contrary to law.

{¶ 17} Our review of felony sentences is governed by R.C. 2953.08(G)(2). Under

R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate and

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remand a sentence only if the record demonstrates, clearly and convincingly, either of the

following:

(a) That the record does not support the sentencing court’s findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant; or

(b) That the sentence is otherwise contrary to law.

{¶ 18} Appellant does not challenge the trial court’s findings under R.C. 2929.11,

2929.12, 2929.13, or 2929.14. Rather, appellant argues that his indefinite prison sentence

of 25 years to life is contrary to law because it is not authorized under the sentencing

statutes applicable to this case, as he was not convicted as a sexually violent offender

under R.C. 2971.03(A), and there was no allegation or finding that appellant compelled

the victim to submit by force or threat of force, or caused the victim serious physical

harm, as required to trigger the mandatory minimum sentence of 25 years to life under

R.C. 2971.03(B)(1)(c).

{¶ 19} At the plea hearing in this case, appellant pled guilty to one count of rape

under R.C. 2907.02(A)(1)(b) and (B), which provides:

(A)(1) No person shall engage in sexual conduct with another who is

not the spouse of the offender or who is the spouse of the offender but is

living separate and apart from the offender, when any of the following

applies:

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 ***

(b) The other person is less than thirteen years of age, whether or not

the offender knows the age of the other person.

***

(B) Whoever violates this section is guilty of rape, a felony of the

first degree. * * * Except as otherwise provided in this division,

notwithstanding sections 2929.11 to 2929.14 of the Revised Code, an

offender under division (A)(1)(b) of this section shall be sentenced to a

prison term or term of life imprisonment pursuant to section 2971.03 of the

Revised Code. * * * If an offender under division (A)(1)(b) of this section

previously has been convicted of or pleaded guilty to violating division

(A)(1)(b) of this section or to violating an existing or former law of this

state, another state, or the United States that is substantially similar to

division (A)(1)(b) of this section, if the offender during or immediately

after the commission of the offense caused serious physical harm to the

victim, or if the victim under division (A)(1)(b) of this section is less than

ten years of age, in lieu of sentencing the offender to a prison term or term

of life imprisonment pursuant to section 2971.03 of the Revised Code, the

court may impose upon the offender a term of life without parole.

{¶ 20} Depending on the facts of each case, the foregoing statute authorizes a

prison sentence of life in prison, life without parole, or a shorter indefinite sentence for

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offenders who are convicted of rape in violation of R.C. 2907.02(A)(1)(b). Recently, the

Ohio Supreme Court explained that “[w]hen a trial court does not sentence a defendant

convicted under R.C. 2907.02(A)(1)(b) to life without parole under R.C. 2907.02(B),

R.C. 2971.03(B) provides three possible indefinite sentences that may be imposed

instead: 10 years to life, 15 years to life, or 25 years to life.” State v. Bowers, --- Ohio

St.3d ----, 2020-Ohio-5167, --- N.E.3d ----, ¶ 5.1

{¶ 21} Because it did not impose a prison sentence of life without parole in this

case, and since R.C. 2971.03(A) is inapplicable in this case, the trial court was required to

impose a sentence authorized under R.C. 2971.03(B)(1)(a) through (c), which provides,

in relevant part:

(B)(1) * * * if a person is convicted of or pleads guilty to a violation

of division (A)(1)(b) of section 2907.02 of the Revised Code committed on

or after January 2, 2007, if division (A) of this section does not apply

regarding the person, and if the court does not impose a sentence of life

without parole when authorized pursuant to division (B) of section 2907.02

of the Revised Code, the court shall impose upon the person an indefinite

prison term consisting of one of the following:

1
In its brief, which was filed prior to the issuance of the decision in Bowers on
November 10, 2020, the state acknowledged that Bowers was pending before the Ohio
Supreme Court. Notably, the parties did not reference Bowers during the December 3,
2020 oral arguments in this case.

11.
 (a) Except as otherwise required in division (B)(1)(b) or (c) of this

section, a minimum term of ten years and a maximum term of life

imprisonment.

(b) If the victim was less than ten years of age, a minimum of fifteen

years and a maximum of life imprisonment.

(c) If the offender purposely compels the victim to submit by force

or threat of force, or if the offender previously has been convicted of or

pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the

Revised Code or to violating an existing or former law of this state, another

state, or the United States that is substantially similar to division (A)(1)(b)

of that section, or if the offender during or immediately after the

commission of the offense caused serious physical harm to the victim, a

minimum term of twenty-five years and a maximum of life imprisonment.

{¶ 22} Under this statutory framework, the default mandatory sentence is ten years

to life under R.C. 2971.03(B)(1)(a) unless the provisions of R.C. 2971.03(B)(1)(b) or (c)

are applicable. Because the victim in this case was 12 years old at the time of the

offense, R.C. 2971.03(B)(1)(b) is inapplicable. Thus, the trial court’s imposition of a

prison sentence of 25 years to life is only proper if R.C. 2971.03(B)(1)(c) is applicable.

Under that section, “there are three ways in which a twenty-five year to life sentence may

be utilized by a trial court: use of force or threat of force in the commission of the

offense; a prior conviction for rape of a child under 13; or serious physical harm caused

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to the victim of the offense.” State v. Morris, 5th Dist. Delaware No. 19 CAA 12 0069,

2020-Ohio-5361, ¶ 26. The state only argues that the use or threat of force element is

applicable in this case.

{¶ 23} Under R.C. 2901.01, “force” is defined as “any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.” The

record contains no references to appellant’s use or threat of force by the trial court, and

the state concedes that the “record is silent as to use of the word ‘force.’” The state

argues that R.C. 2971.03(B)(1)(c) is applicable in this case notwithstanding the fact that

the record is silent on the issue of force, because an inference of force may be drawn in

cases involving the rape of a child under the Ohio Supreme Court’s decisions in State v.

Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), and State v. Dye, 82 Ohio St.3d 323,

695 N.E.2d 763 (1998). “In that line of cases, a person may be convicted of rape with

force under R.C. 2907.02(A)(2) without evidence of the express or overt threat of harm

or without evidence of significant physical restraint, if the offender is in a position of

authority over the victim.” In re T.W., 2018-Ohio-3275, 112 N.E.3d 527, ¶ 18 (8th Dist.),

citing Dye at 329. “The element of force can be implied if the state demonstrates that the

victim’s will was overcome by fear or duress based on the offender’s position of

authority.” Id., citing Dye at 327. Relying upon these principles, the state argues that the

trial court was not required to separately find that force was used or threatened here,

because its finding of force was implicit in its imposition of a prison sentence of 25 years

to life.

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 {¶ 24} In Eskridge, a father was charged with, and convicted of, the rape of his

four-year-old daughter. The indictment specifically alleged that Eskridge used force or

the threat of force in the commission of the rape. Eskridge at 56. Under the version of

R.C. 2907.02 that was applicable at the time, a life sentence was mandatory if Eskridge

purposely compelled his daughter to submit by force or threat of force. After being

ordered to serve a life sentence, Eskridge appealed and the matter proceeded to the Ohio

Supreme Court, who accepted the appeal in order to address the issue of “whether there

was substantial evidence presented at trial to prove that force or the threat of force was

used in the commission of the rape.” Id.

{¶ 25} In its decision, the Ohio Supreme Court reviewed the portions of the trial

transcripts that were relevant to the use of force and concluded that “the child’s

testimony, the child’s tender age, and the relationship of parental authority that defendant

had with his four-year-old daughter” constituted “substantial evidence from which the

trial court could have found beyond a reasonable doubt that Eskridge committed the act

with force.” Id. at 58. The court went on to explain that

the victim testified that Eskridge removed her panties and there was

testimony that he laid her on the bed – both acts of compulsion and

constraint that are independent of the act of rape. The victim’s testimony

also expressed her revulsion at her father’s conduct. Further, we note the

age difference and disparity in size between Eskridge, a twenty-eight-year-

old man, and the victim, a four-year-old child. A four-year-old child

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 cannot consent to sexual conduct. The victim here did not and could not

have participated in the sexual conduct of her own free will.

Id.

{¶ 26} Ultimately, the Ohio Supreme Court recognized that coercion is inherent in

the parent-child relationship and stated that “force need not be overt and physically

brutal, but can be subtle and psychological.” Id. at 58-59.

{¶ 27} Ten years after Eskridge was decided, the Ohio Supreme Court issued its

decision in Dye. There, Dye, a 44-year-old non-relative and weekly caregiver of the

nine-year-old victim, was indicted on five counts of rape and five counts of felonious

sexual penetration, each with the specification that he had used or threatened force.

Following a jury trial, Dye was convicted of all five counts of rape and three counts of

felonious sexual penetration.

{¶ 28} On appeal to the Ohio Supreme Court, the issue was whether Dye could be

convicted of raping the victim with force under R.C. 2907.02(A)(1)(b) and (B) “without

evidence of express threat of harm or evidence of significant physical restraint.” Dye, 82

Ohio St.3d at 326, 695 N.E.2d 763. In challenging his conviction, Dye argued that

Eskridge was inapplicable due to the absence of a parent-child relationship. The Ohio

Supreme Court rejected this distinction, stating that Eskridge was applicable in cases

involving children and “an important figure of authority.” Id. at 328. Thus, the court

found that while Dye was not the victim’s parent, he “stood in a position of authority

over him” and “the evidence of psychological force is substantial.” Id. The court also

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“recognize[d] that it is nearly impossible to imagine the rape of a child without force

involved,” but noted that “some amount of force must be proven beyond that force

inherent in the crime itself” in order to prove the element of force necessary to sentence a

defendant to life imprisonment. Id. In the final analysis, the court held that “a person in

a position of authority over a child under thirteen may be convicted of rape of that child

with force pursuant to R.C. 2907.02(A)(1)(b) and (B) without evidence of express threat

of harm or evidence of significant physical restraint.” Id. at 329.

{¶ 29} While instructive as to the state’s burden of production at trial regarding

the force element in rape case under R.C. 2907.02(A)(1)(b), the Ohio Supreme Court’s

decisions in Eskridge and Dye do not address the issue in this case. Here, we are

presented with a more fundamental question: may a defendant who pleads guilty to rape

under R.C. 2907.02(A)(1)(b) and (B) be sentenced to 25 years to life under R.C.

2971.03(B)(1)(c) when the indictment fails to include a specification that force was used

in the commission of the rape, the record is silent as to the issue of force, and the trial

court does not make a determination that force was used in the commission of the rape at

the time of accepting the plea or sentencing the defendant? As to this question, Eskridge

and Dye are silent. Indeed, both of those cases involved defendants whose indictments

included force specifications, and the issue of force was litigated by the parties during

trial.

{¶ 30} Recently, the Ohio Supreme Court issued its decision in Bowers, supra, ---

Ohio St.3d ----, 2020-Ohio-5167, --- N.E.3d ----. There, a defendant who also pled guilty

16.
to rape under R.C. 2907.02(A)(1)(b) and (B) was sentenced to 25 years to life in prison

for rape under R.C. 2971.03(B)(1)(c) despite the absence of a specification in the

indictment that the victim was compelled to submit by force or the threat of force. At

sentencing, the trial court concluded that its only sentencing option for Bowers was a

sentence of 25 years to life, and proceeded to impose that sentence without making any

factual findings under R.C. 2971.03(B)(1)(c). Id. at ¶ 6.

{¶ 31} On appeal, the First District reversed the trial court’s imposition of

sentence, finding that the sentence was not authorized because “none of the prerequisites

for such a sentence under R.C. 2971.03(B)(1)(c) – the use of force or the threat of force

in the commission of the offense, a prior conviction for rape of a child under 13, or

serious physical harm caused to the victim of the offense – was present.” Id. at ¶ 10. The

state appealed, and the Ohio Supreme Court accepted the appeal on two propositions of

law, one of which raised the issue of whether a trial court must make an express finding

of force when sentencing an offender convicted of raping a child under the age of ten to a

term of 25 years to life in prison, when the record contains evidence of force. Id. at ¶ 11.

{¶ 32} In affirming the First District’s judgment, the Ohio Supreme Court agreed

with Bowers that “a sentence of 25 years to life under R.C. 2971.03(B)(1)(c) was not an

option in the absence of a finding that the victim was compelled to submit by force or

that one of the other factors under that provision was present.” Id. at ¶ 17. The court

further rejected the state’s argument that R.C. 2971.03(B)(1)(c) does not require any

17.
express findings to be made so long as there is evidence of force in the record, because

the court found that force is an element of the charged offense. Id. at ¶ 24.

{¶ 33} Subsequent to the Ohio Supreme Court’s decision in Bowers, the Fifth

District issued its decision in Morris, supra, 5th Dist. Delaware No. 19 CAA 12 0069,

2020-Ohio-5361, on November 19, 2020. There, the court examined Bowers and

concluded that “the use of force or threat of force must be alleged in the indictment and

there must be a finding that the victim was compelled to submit by force.” Morris at

¶ 26. The court applied Bowers and found the imposition of a jointly recommended

prison sentence of 25 years to life under R.C. 2971.03(B)(1)(c) was not contrary to law,

because the use of force was “specifically included in the indictment,” articulated by the

state during its recitation of the facts at the plea hearing, and expressly found to be

applicable by the trial court prior to sentencing. Id. at ¶ 27.

{¶ 34} Consistent with the reasoning articulated by the Ohio Supreme Court in

Bowers and the Fifth District in Morris, we find that the trial court’s prison sentence of

25 years to life under R.C. 2971.03(B)(1)(c) in this case was contrary to law. Our

thorough review of the record reveals no mention of force by the court or the parties,

either at the plea hearing or at the sentencing hearing. Moreover, like Bowers (and unlike

Morris), the indictment here is silent as to the issue of force under Count 1. Notably, the

indictment does contain a statement that appellant “purposely compelled the victim to

submit by force or threat of force” in Count 2. However, appellant only pled guilty to

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Count 1 of the indictment, and thus the indictment language regarding force is

inapplicable here.

{¶ 35} It appears from our review of the record that the trial court sentenced

appellant to 25 years to life under the mistaken understanding that said sentence was

mandatory under R.C. 2971.03(A)(3)(d)(i), as indicated on appellant’s plea form. In its

brief to this court, the state acknowledges that “[t]he requirement for a conviction under a

sexually violent predator specification to enhance a sentence is found under O.R.C.

2971.03(A), which the State agrees has no applicability in this matter.” See also State v.

Johnson, 8th Dist. Cuyahoga No. 109127, 2020-Ohio-2947, ¶ 9 (noting that R.C.

2971.03(A) expressly applies to offenders convicted of sexually violent predator

specifications while R.C. 2971.03(B) “makes no mention of a sexually violent predator

specification and specifically applies to a person convicted under the child rape

provision.”).

{¶ 36} Because Count 1 of the indictment did not include a specification that

appellant used or threatened force during the commission of the offense in this case, we

conclude that R.C. 2971.03(B)(1)(c) is inapplicable, and thus appellant’s prison sentence

of 25 years to life founded upon that statutory section is contrary to law. Accordingly,

we find appellant’s second assignment of error well-taken.

{¶ 37} Our resolution of the second assignment of error in appellant’s favor

requires us to reverse appellant’s sentence and remand this matter to the trial court to

resentence appellant in accordance with R.C. 2907.02(B) and 2971.03(B)(1)(b).

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Consequently, appellant’s remaining assignments of error are moot and we will not

address them.

III. Conclusion

{¶ 38} In light of the foregoing, the judgment of the Huron County Court of

Common Pleas is reversed, and this matter is remanded to the trial court for resentencing.

The costs of this appeal are assessed to the state under App.R. 24.

Judgment reversed
and remanded.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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