State v. Beavers, 11AP-1064
| Citation | 2012 Ohio 3654 |
| Decision Date | 14 August 2012 |
| Docket Number | No. 11AP-1064,11AP-1064 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Kevin J. Beavers, Defendant-Appellant. |
| Court | United States Court of Appeals (Ohio) |
(ACCELERATED CALENDAR)
DECISION
Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Bleile, Witte & Lape, and Stephenie N. Lape, for appellant.
APPEAL from the Franklin County Court of Common Pleas
{¶ 1} Defendant-appellant, Kevin J. Beavers ("appellant"), appeals from a decision of the Franklin County Court of Common Pleas denying his post-sentence motion to withdraw guilty plea. For the reasons that follow, we affirm that judgment.
{¶ 2} On April 12, 2010, appellant was indicted on four counts of importuning and one count of disseminating matter harmful to juveniles. All five charges are felonies of the fifth degree. On November 16, 2010, appellant entered a plea of guilty to one count of importuning and one count of disseminating matter harmful to juveniles. A pre-sentence investigation report was ordered and sentencing was scheduled for January 5, 2011. At the sentencing hearing, appellant was placed on community control (sex offender caseload) for a period of two years. Appellant was also determined to be a Tier Isexual offender. The conviction and sentence was journalized on January 7, 2011. Appellant did not file an appeal.
{¶ 3} On September 13, 2011, appellant filed a motion to withdraw guilty plea, alleging the criminal statute for disseminating matter harmful to juveniles, R.C. 2907.31, is unconstitutionally void for vagueness, and consequently, appellant should be permitted to withdraw his plea in order to prevent manifest injustice. Plaintiff-appellee, the State of Ohio, filed a memorandum opposing the motion to withdraw guilty plea. On November 8, 2011, the trial court journalized an entry denying the motion to withdraw. This timely appeal now follows in which appellant raises a single assignment of error:
{¶ 4} In his sole assignment of error, appellant argues the trial court erred in denying his motion to withdraw guilty plea because the statute on disseminating matter harmful to juveniles is unconstitutionally vague, which in turn renders the statute void and his conviction a manifest injustice. Appellant further argues the presence of manifest injustice negates any timeliness requirement for the filing of his motion to withdraw.
{¶ 5} Appellant's void-for-vagueness argument focuses specifically on the affirmative defense provision found in R.C. 2907.31(C)(1), which sets forth an affirmative defense to the offense if the material was "presented for a bona fide medical, scientific, educational, governmental, judicial, or other proper purpose, by a physician, psychologist, sociologist, scientist, teacher, librarian, clergyman, prosecutor, judge, or other proper person."
{¶ 6} Appellant argues the term "other proper purpose" as used in this provision is not defined, nor is "a bona fide medical, scientific, educational, governmental, [or] judicial [purpose]." Appellant contends this failure forces persons engaging in the activities described in R.C. 2907.31(A) to have to guess as to whether or not their conduct constitutes a "proper purpose." Consequently, appellant submits the statute does not provide a person of ordinary intelligence with fair notice that his or her contemplated conduct is prohibited by the statute, and therefore, the statute is unconstitutionally vague, and the trial court abused its discretion in denying appellant's post-sentence motion to withdraw guilty plea. We disagree.
{¶ 7} A post-sentence motion to withdraw guilty plea may be made only to correct a manifest injustice. Crim.R. 32.1. Therefore, the trial court was required to determine whether granting the motion is necessary to correct a manifest injustice. "Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process." State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. Manifest injustice " 'is an extremely high standard, which permits a defendant to withdraw his guilty plea only in extraordinary cases.' " State v. Tabor, 10th Dist. No. 08AP-1066, 2009-Ohio-2657, ¶ 6, quoting State v. Price, 4th Dist. No. 07CA47, 2008-Ohio-3583, ¶ 11.
{¶ 8} "A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice." State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. A motion pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court. Id. at paragraph two of the syllabus. Thus, appellate review of the trial court's denial of a post-sentence motion to withdraw guilty plea is limited to the determination of whether the trial court abused its discretion. State v. Conteh, 10th Dist. No. 09AP-490, 2009-Ohio-6780, ¶ 16. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 9} " 'An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.' " State ex rel. O'Brien v. Heimlich, 10th Dist. No. 08AP-521, 2009-Ohio-1550, ¶ 24, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus. " 'A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality.' " State ex rel. O'Brien at ¶ 24, quoting State ex rel. Dickman at 147. The party alleging a statute is unconstitutional must prove that assertion beyond a reasonable doubt in order to prevail. State v. Anderson, 57 Ohio St.3d 168, 171 (1991).
{¶ 10} " 'Under the vagueness doctrine, statutes which do not fairly inform a person of what is prohibited will be found unconstitutional as violative of due process.' "State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, ¶ 14, quoting State v. Reeder, 18 Ohio St.3d 25, 26 (1985), citing Connally v. Gen. Constr. Co., 269 U.S. 385 (1926). "[A]ny statute which 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute' is void for vagueness." State v. Tanner, 15 Ohio St.3d 1, 3 (1984), quoting Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972). Yet, " " Reeder at 26, quoting Jordan v. De George, 341 U.S. 223, 231-32 (1951).
{¶ 11} The provision at issue which appellant asserts is void for vagueness does not address the criminal offense itself, which is defined in R.C. 2907.31(A), but rather the provision in R.C. 2907.31(C)(1), which sets forth an affirmative defense. The relevant portions of the statute, entitled "Disseminating matter harmful to juveniles," reads as follows:
(Emphasis added.)
{¶ 12} In reading R.C. 2907.31 in its entirety, it is apparent that the statute identifies specific situations in which it is proper to present obscene or harmful materials to juveniles. The statute further defines the persons who may do so. However, appellant has not argued that he falls into one of these categories and, upon review of the evidence in the record, we find nothing to demonstrate he should fall into one of the specified categories or that the affirmative defense was available to him. Instead, the conduct at issue here centers around whether appellant directly delivered, furnished, disseminated, provided, exhibited, or presented to a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as a juvenile, any material or performance that is obscene and harmful to juveniles.
{¶ 13} The record indicates that appellant disseminated harmful material to a police officer posing as a 15-year-old boy, thereby demonstrating that appellant committed conduct which is clearly statutorily prohibited conduct under R.C. 2907.31(A)(1). " 'One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.' " Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), fn 7, quoting Parker v. Levy, 417 U.S. 733, 756 (1974). Here, the language of R.C. 2907.31(A)(1) conveys a sufficiently definite warning as to the proscribed conduct, pursuant to common understanding and practices.
{¶ 14} Furthermore, appellant is without standing to challenge the statute except as it is being applied to him. Gandee v. Glaser, 785 F.Supp. 684, 694 (S.D.Ohio 1992). See also State of Ohio/City of Hamilton v. Hendrix, 144 Ohio App.3d 328 (12th Dist.2001) (...
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