State v. Jackson ( 2014 )


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  • [Cite as State v. Jackson, 
    2014-Ohio-820
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 99804
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    HOWARD JACKSON
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-492332
    BEFORE:           McCormack, J., Jones, P.J., and E.T. Gallagher, J.
    RELEASED AND JOURNALIZED: March 6, 2014
    ATTORNEY FOR APPELLANT
    Paul A. Daher
    700 W. St. Clair Ave.
    Suite 218
    Cleveland, OH 44113
    ATTORNEYS FOR APPELLEE
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    By: Daniel T. Van
    Assistant County Prosecutor
    9th Floor, Justice Center
    1200 Ontario Street
    Cleveland, OH 44113
    TIM McCORMACK, J.:
    {¶1} Howard Jackson was convicted in 2007 of four counts of unlawful sexual
    conduct with a minor and classified as a sexual predator.       Six years later, he filed a
    delayed appeal, claiming he should not have been sentenced to consecutive sentences or
    classified as a sexual predator.   For the following reasons, we affirm the judgment of the
    trial court.
    {¶2} Jackson, 18 at the time, engaged in consensual sexual conduct with a
    14-year-old girl on multiple occasions between July and September 2006, eventually
    impregnating her. He was indicted for eight counts of unlawful sexual conduct with a
    minor, in violation of R.C. 2907.04. Jackson pleaded guilty to Counts 1 through 4, and
    the state nolled the remaining counts.
    {¶3} At the sex offender classification hearing on May 1, 2007, the state
    submitted a Court Psychiatric Clinic report as evidence, and also informed the court that
    Jackson had a juvenile record, including aggravated robbery and a prior sex offense,
    which he committed against a seven-year-old girl when he was 12.          In addition to that
    prior offense, Jackson also admitted to engaging in sexual conduct with two other young
    females — his 13-year-old stepsister and a niece of his foster parents.
    {¶4} The trial court sentenced Jackson to an 18-month prison term for each of
    the four counts of unlawful sexual conduct with a minor, to be served consecutively, for a
    total of six years.   Jackson has since completed his prison term and has been released
    from prison.
    {¶5} On April 22, 2013, Jackson filed a delayed appeal. This court granted
    leave and appointed counsel for his appeal.    He raises two assignments of error.   In his
    first assignment of error, Jackson claims the trial court erred when it imposed consecutive
    sentences for his multiple counts of unlawful sexual conduct with a minor; he argues the
    court should have merged these offenses as allied offenses for sentencing purposes.
    Under the second assignment of error, Jackson argues the trial court erred in classifying
    him as a sexual predator without making the proper findings as required by R.C. 2950.09.
    {¶6} Although neither the state nor appellant raises the issue of mootness, in
    light of Jackson’s completion of his sentence, we must first determine whether his appeal
    is moot. As we explain in the following, Jackson’s appeal regarding his sentence is
    moot, but his appeal regarding his sexual predator classification is not.
    {¶7} “Any appeal of a sentence already served is moot.” State v. Gruttadauria,
    8th Dist. Cuyahoga No. 90384, 
    2008-Ohio-3152
    , ¶ 6, citing State v. Bostic, 8th Dist.
    Cuyahoga No. 84842, 
    2005-Ohio-2184
    , ¶ 21. See also State v. Barcomb, 8th Dist.
    Cuyahoga No. 80196, 
    2002-Ohio-4435
    ; State v. Smith, 11th Dist. Lake No. 2000-L-195,
    
    2002-Ohio-1330
    ; State v. Beamon, 11th Dist. Lake No. 2000-L-160, 
    2001-Ohio-8712
    .
    {¶8} Our review of Jackson’s first assignment of error shows that he does not
    claim he should not have been separately convicted of multiple offenses.        Rather, he
    only claims that, because his offenses are allied offenses, the trial court should have not
    imposed consecutive sentences for the multiple counts.                     Because Jackson only
    challenges the length of his sentence, the portion of his appeal regarding his consecutive
    sentence is moot, because he has finished serving his sentences and has been released
    from prison.1
    {¶9} Regarding Jackson’s second assignment of error, which challenges his
    sexual predator classification as result of his convictions of sexual offenses, this issue is
    not mooted by his having completed his prison term. “[W]here an individual challenges
    only the length of his sentence, or the manner of serving his sentence, there is no
    collateral disability or loss of civil rights that can be remedied after the sentence is
    completed.” Gruttadauria at ¶ 6, citing Beamon at ¶ 4.              However, as we explained in
    Gruttadauria, “[a]n appeal challenging a felony conviction is not moot even if the entire
    We note that, even if we were to consider Jackson’s first assignment of error, his claim lacks
    1
    merit. We first point out that Jackson’s indictment contained eight “carbon copy” counts of unlawful
    sexual conduct with a minor between July and September 2006. “Carbon copy” counts violate due
    process as they fail to give a criminal defendant adequate notice of the particular charges. State v.
    Hendrix, 11th Dist. Lake No. 2011-L-043, 
    2012-Ohio-2832
    , ¶ 46, citing Russell v. United States,
    
    369 U.S. 749
    , 763-764, 
    82 S.Ct. 1038
    , 
    8 L.Ed.2d 240
     (1962). However, by voluntarily entering a
    guilty plea, Jackson waived his right to challenge any defects in the indictment. State v. Moree, 8th
    Dist. Cuyahoga No. 90894, 
    2009-Ohio-472
    , ¶ 21. Indeed, Jackson does not challenge a defect in
    the indictment, rather, he claims his multiple counts are allied offenses and should have been merged.
    Offenses are “allied” if the defendant’s conduct is such that “a single act could lead to the
    commission of separately defined offenses, but those separate offenses were committed with a state of
    mind to commit only one act.” State v. Thompson, 8th Dist. Cuyahoga No. 99628, 
    2014-Ohio-202
    ,
    ¶ 18, citing State v. Johnson, 
    128 Ohio St.3d 153
    , 
    2010-Ohio-6314
    , 
    942 N.E.2d 1061
    , ¶ 48-50.
    Here, it is undisputed that Jackson engaged in sexual activities with the victim on multiple occasions.
    His conduct cannot be described as “a single act” leading to “the commission of separately defined
    offenses.” Jackson’s first assignment of error lacks merit even if we were to consider it.
    sentence has been served before the appeal is heard, because ‘[a] person convicted of a
    felony has a substantial stake in the judgment of conviction which survives the
    satisfaction of the judgment imposed upon him or her.’”                       (Emphasis added.)
    Gruttadauria, quoting State v. Golston, 
    71 Ohio St.3d 224
    , 
    643 N.E.2d 109
     (1994),
    paragraph one of the syllabus.      Because Jackson suffers the collateral consequence of his
    convictions of sex offenses, his appeal regarding the sexual predator classification
    stemming from his convictions is not mooted by the completion of his sentence, and we
    will address it.
    {¶10} Under the second assignment of error, Jackson claims the trial court erred in
    classifying him as a sexual predator without making the proper findings required by R.C.
    2950.09.
    {¶11} Jackson was classified as a sexual predator under the version of R.C.
    Chapter 2950 then in effect, commonly referred to as “Megan’s Law,” also known as
    House Bill 180. 2      “Under Megan’s Law, offenders who had committed a sexually
    We note that in January 2008, Ohio’s Adam Walsh Act (S.B. No. 10) went into effect,
    2
    repealing Megan’s Law and altering the classification, registration, and notification scheme of
    convicted sex offenders. Under the new classification scheme, the Ohio Attorney General is
    authorized to determine the classification of each offender under a three-tiered system. Designations
    such as “sexual predator” no longer exist, nor do the hearings required under former R.C. 2950.09.
    Rather, sex offenders are classified by the Attorney General solely on the basis of the offense for
    which they have been convicted. State v. Clay, 
    177 Ohio App.3d 78
    , 
    2008-Ohio-2980
    , 
    893 N.E.2d 909
    , ¶ 6 (1st Dist.).
    oriented offense that was not registration-exempt were labeled a sexually oriented
    offender, a habitual sexual offender, or a sexual predator based upon the crime committed
    and the findings made by the trial court at a sexual-offender classification hearing.”
    State v. Green, 1st Dist. Hamilton No. C-090650, 
    2010-Ohio-4371
    , ¶ 1, citing Clay.
    {¶12} Under Megan’s Law, the state must prove that an offender is a sexual
    predator by clear and convincing evidence.        State v. Wilson, 
    113 Ohio St.3d 382
    ,
    
    2007-Ohio-2202
    , 
    865 N.E.2d 1264
    , ¶ 20.        Clear and convincing evidence is evidence
    that “will produce in the mind of the trier of facts a firm belief or conviction as to the
    facts sought to be established.”    
    Id.
       Clear-and-convincing standard requires a higher
    degree of proof than “a preponderance of the evidence,” but less than “beyond a
    reasonable doubt.” 
    Id.
    {¶13} Former R.C. 2950.09(B)(3) listed ten factors for a court to consider in
    determining whether a sexual offender is a sexual predator.
    The factors include (1) the offender’s age, (2) the offender’s criminal
    record, (3) the age of the victim, (4) whether there were multiple victims,
    (5) whether the offender used drugs or alcohol to impair the victim, (6) if
    the offender has previously been convicted of a crime, whether he
    completed his sentence, and if the prior offense was a sexually oriented
    offense, whether he completed a sex-offender program, (7) whether the
    offender has a mental illness or disability, (8) the nature of the offender’s
    sexual contact with the victim and whether it was part of a pattern of abuse,
    (9) whether the offender displayed cruelty or made threats of cruelty, and
    (10) any other “behavioral characteristics” that contribute to the offender’s
    actions.
    Wilson at fn. 1, citing R.C. 2950.09(B)(3)(a) through (j).
    {¶14} However, “a court has discretion to determine what weight, if any, it will
    assign to each factor, and under R.C. 2950.09(B)(3)(j) may consider other ‘characteristics
    that contribute to the offender’s conduct.’” Wilson at ¶ 19, quoting State v. Thompson,
    
    92 Ohio St.3d 584
    , 
    752 N.E.2d 276
     (2001), paragraph one of the syllabus.
    In determining whether an offender convicted of a sexually-oriented offense
    was a sexual predator, the trial court had to consider the evidence under the
    legislative guidelines set forth in [former] R.C. 2950.09(B)(3). No
    requisite number of factors, however, had to apply before a trial court could
    find that an offender was a sexual predator. The trial court, moreover,
    could place as much or as little weight on the factors as it deemed
    appropriate. Furthermore, the trial court was not required to list the
    criteria, but was only required to consider all the criteria and guidelines
    under R.C. 2950.09(B)(3). The trial court, however, had to articulate
    sufficient findings on the record to demonstrate an offender’s likelihood of
    recidivism.
    (Citations omitted.) Clay, 
    177 Ohio App.3d 78
    , 
    2008-Ohio-2980
    , 
    893 N.E.2d 909
    , at ¶
    5.
    {¶15} This court has also stated that “not all factors need to be found in order to
    designate an offender a sexual predator.”     State v. Brooks, 8th Dist. Cuyahoga No.
    90171, 
    2008-Ohio-3096
    , ¶ 12.     “[T]he court need not elaborate on its reasons for finding
    certain factors as long as the record includes the particular evidence upon which the trial
    court relied in making its adjudication.” State v. Twigg, 8th Dist. Cuyahoga No. 88142,
    
    2007-Ohio-1302
    , ¶ 21, citing State v. Eppinger, 
    91 Ohio St.3d 158
    , 166, 
    743 N.E.2d 881
    (2001), and State v. Machado, 8th Dist. Cuyahoga No. 87609, 
    2006-Ohio-6423
    .
    {¶16}     We     review     sex-offender-classification   proceedings     under    a
    manifest-weight-of-the-evidence standard and will affirm the trial court if the court’s
    findings are supported by some competent, credible evidence. Wilson, 
    113 Ohio St.3d 382
    , 
    2007-Ohio-2202
    , 
    865 N.E.2d 1264
    , at ¶ 41.
    {¶17} Here, our review of the transcript of the sex offender classification hearing
    shows that the trial court articulated sufficient findings on the record to demonstrate
    Jackson’s likelihood of recidivism. The court emphasized the victim’s young age, his
    juvenile adjudication of a prior sex offense committed against a seven-year-old when he
    was 12. The court also found significant his poor scoring under STATIC-99, a scoring
    system estimating recidivism of sex offenders. Based on these factors, the court stated
    that it found by clear and convincing evidence that Jackson was very likely to commit
    future sexually-oriented crimes.   Contrary to Jackson’s claim, the court is not required to
    enumerate all statutory factors in finding Jackson to be a sexual predator.    Because the
    record contains competent, credible evidence to support the trial court’s finding that the
    state proved by clear and convincing evidence that Jackson is a sexual predator, we affirm
    the trial court’s classification. Wilson at ¶ 42.      The second assignment of error is
    overruled.
    {¶18} Judgment affirmed.
    It is ordered that appellee recover of appellant 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.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    ______________________________________________
    TIM McCORMACK, JUDGE
    LARRY A. JONES, SR, P.J., and
    EILEEN T. GALLAGHER, J., CONCUR
    

Document Info

Docket Number: 99804

Judges: McCormack

Filed Date: 3/6/2014

Precedential Status: Precedential

Modified Date: 2/19/2016