State v. Howard
| Decision Date | 02 October 2017 |
| Docket Number | CASE NO. 8-17-09,CASE NO. 8-17-01 |
| Citation | 2017 Ohio 8020 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. JAMES MICHAEL HOWARD, DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
Appeals from Logan County Common Pleas Court
Judgments Affirmed
APPEARANCES:
Joseph C. Patituce for Appellant
Eric C. Stewart for Appellee
{¶1} This matter comes before us upon two consolidated appeals. Defendant-Appellant, James Michael Howard ("Howard"), brings these appeals from the Logan County Common Pleas Court judgments convicting him of two counts of Unlawful Sexual Conduct with a Minor and denying his motion to withdraw his plea. On appeal, Howard asserts that the trial court erred: (1) when it failed to instruct Howard of the maximum penalties of the charges to which he pled; (2) when it accepted Howard's guilty plea after improperly instructing Howard on sex offender registration requirements; (3) when it failed to instruct Howard of his Sixth Amendment right to a jury trial; and (4) when it denied Howard's motion to withdraw his plea. For the reasons that follow, we affirm the judgments of the Logan County Common Pleas Court.
{¶2} On December 17, 2015, Detective Mike Brugler ("Det. Brugler"), of the Logan County Sheriff's Office was contacted by Hardin County Sheriff Sergeant Scott Holbrook regarding sexual assaults that occurred in Logan County. (11/01/2016 Tr., Vol. II, at 194). Det. Brugler met with K.J., the alleged victim of the sexual assaults, the day following receipt of the report. (Id.). K.J. told Det. Brugler that Howard, her great uncle, had sexually assaulted her multiple times in the past. (Id.). According to K.J., the sexual assaults began when she was thirteen(13) years old and occurred at Howard's residence. (Id. at 121). K.J. reported that Howard assaulted her by giving her massages in which Howard would touch her breasts, her inner thighs, and eventually her vagina and her buttocks. (Id. at 122-23). K.J. recalled a specific event, when she was thirteen, when Howard digitally penetrated her. (Id. at 124-25). K.J. reported that Howard's touching of her happened "a handful of times" when she was thirteen years old. (Id.).
{¶3} K.J. further told Det. Brugler that Howard's sexual assaults of her escalated as she aged, with Howard forcing her to perform oral sex on him when she was fourteen (14), and by forcibly digitally penetrating her vagina at age fifteen (15). (Id. at 129-30). Further, K.J. reported that Howard forced her to have vaginal intercourse with him at age sixteen (16). (Id. at 132). K.J. also reported that at age eighteen (18), Howard forced K.J. to engage in sex with Howard and another person. (Id. at 133). K.J. reported that Howard stopped sexually abusing her when she moved from Ohio to attend college. (Id. at 138).
{¶4} At trial, K.J. testified that many years after the abuse ended, she decided to contact law enforcement to report Howard's abuse because the prior sexual abuse was ruining her marriage. (Id. at 140).
{¶5} K.J. met a second time with Det. Brugler on December 21, 2015. At this meeting Det. Brugler instructed K.J. to contact Howard by phone. (Id. at 195). She did so and the call was recorded by Det. Brugler. (Id.). During the call, Howardrecounted with K.J. the sexual incident that involved the additional male, which occurred at a local hotel. (Id. at 150). Howard also admitted that his sexual abuse (of K.J.) started when she was "either 14 or 15." (Id.). At the conclusion of the call, Howard can be heard asking K.J. for a naked picture of her. (Id. at 156).
{¶6} On January 12, 2016, the Logan County Grand Jury indicted Howard on nine felony counts pertaining to sexually abusing K.J. Specifically, Howard was indicted on the following charges: Count I, Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2); Count II, Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2); Count III, Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2); Count IV, Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2); Count V, Complicity to Rape, a felony of the first degree, in violation of R.C. 2923.01 and R.C. 2907.02(A)(2); Count VI, Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2); Count VII, Complicity to Rape, a felony of the first degree, in violation of R.C. 2923.01 and R.C. 2907.02(A)(2); Count VIII, Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2); and Count IX, Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2). (Doc. No. 2). Howard pled not guilty to all charges.
{¶7} On April 18, 2016, Howard filed a motion to suppress in the trial court, and a hearing on the motion was held on May 19, 2016. The trial court denied the motion on May 24, 2016.
{¶8} On November 1, 2016 Howard's charges proceeded to a jury trial. However, at the close of the State's case-in-chief on November 2, 2016, a plea agreement was reached between the State and Howard. Howard's plea agreement with the State consisted of Counts I and II being amended to Unlawful Sexual Conduct with a Minor, in violation of R.C. 2907.04, both being a felony of third degree, with the remaining charges being dismissed.
{¶9} Because Unlawful Sexual Conduct with a Minor is not a lesser included offense of Rape, Howard executed a Waiver of Indictment along with a Petition to Enter a Plea of Guilty or No Contest, and pled guilty to the two counts of Unlawful Sexual Conduct with a Minor. (Doc. No. 71; 72; 11/02/2016 Tr., Vol. II, at 296).
{¶10} When he changed his plea, the trial court advised Howard that he would have to register as a Tier II sex offender, biannually for a period of 25 years.1 (Id. at 292). The trial court further advised Howard that he would be subject to a mandatory period of five years of post-release control. (Id. at 291-92). The trial court journalized the change of plea proceedings through its judgment entry filed November 14, 2016. (Doc. No. 79).
{¶11} Thereafter, Howard's sentencing occurred on December 5, 2016, at which time the trial court sentenced him to five years in prison on each amended charge, consecutively, for an aggregate sentence of ten years in prison. (12/05/2016 Tr. at 11). The trial court again informed Howard that after he was released from prison, he would be subject to a 5-year period of post-release control, and further informed Howard of the potential penalties should Howard violate his post-release control. (Id. at 11-12). Howard's sentencing proceedings were journalized by the trial court in its entry filed on December 9, 2016. (Doc. No. 83).
{¶12} On January 3, 2017, Howard filed a motion to withdraw his plea and a notice of appeal. (Doc. Nos. 104; 106). The appeal was stayed pending the trial court's ruling on Howard's motion to withdraw his plea. Further, the State filed a motion with the trial court to reclassify Howard as a sex offender on February 16, 2017, so the trial court withheld its ruling on Howard's motion to withdraw plea until the completion of the reclassification hearing. (Doc. No. 116).
{¶13} On April 3, 2017, over Howard's objection, a reclassification hearing occurred in the trial court. The trial court re-classified Howard under Megan's law as a sexual offender on the two charges, wherein Howard received a ten-year registration requirement, as opposed to the twenty-five year registration period previously imposed.
{¶14} Thereafter, the trial court denied Howard's Motion to Withdraw Plea on April 5, 2017, and on April 21, 2017, Howard filed a second notice of appeal in Appellate Case Number 8-17-09. Thus, for purposes of our Appellate review, we have consolidated Howard's cases.
{¶15} From these judgments Howard timely appeals, and presents the following assignments of error for our review:
{¶16} As an initial matter, we note that Assignments of Error I, II, and III are part of consolidated Appellate Case Number 8-17-01 and Assignment of Error IV involves consolidated Appellate Case Number 8-17-09.
{¶17} On appeal, Howard presents the following issues for our review: (1) whether the trial court committed reversible error when it accepted Appellant's guilty plea after failing to advise him of the maximum penalties that could be imposed in the event that he violated post release control; (2) whether the trial court committed reversible error when it accepted Appellant's guilty plea after improperly advising him of the sex offender registration requirements during the Criminal Rule 11 plea colloquy; (3) whether the trial court committed reversible error when it failed to instruct Appellant of his Sixth Amendment right to a trial by jury; and (4) whether the trial court erred when it denied Howard's request to withdraw his plea. Because assignments of error I, II, and III all pertain to alleged deficiencies with Howard's Crim.R. 11(C) plea advisements, we will address them together.
Crim.R. 11(C)(2) Standard of Review
{¶18} "Crim.R. 11(C)(2) imposes several requirements a trial court must perform before accepting a defendant's guilty plea in a felony case." State v. Gaspareno, 2016-Ohio-990, 61 N.E.3d 550, ¶ 48 (3rd Dist.). Specifically, it provides:
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