Parma v. Horky , 2019 Ohio 4886 ( 2019 )

[Cite as Parma v. Horky, 2019-Ohio-4886.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF PARMA, :
Plaintiff-Appellee, :
No. 107968
v. :
ZACHARY P. HORKY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED
RELEASED AND JOURNALIZED: November 27, 2019
Criminal Appeal from the Parma Municipal Court
Case Nos. 18-CRB-03100 and 18-CRB-03492
Appearances:
Timothy G. Dobeck, Parma Law Director, and John J.
Spellacy, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Cullen Sweeney, Assistant Public Defender, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Zachary P. Horky (“Horky”), appeals his
convictions in two cases that were consolidated for appeal. For the reasons that
follow, we vacate his convictions and order Horky discharged.
In 2018, Horky was charged in the Parma Municipal Court in two
different cases with one count each of criminal child enticement in violation of
Parma Codified Ordinances 636.075. He pleaded not guilty in both cases, and the
matter proceeded to a bench trial. During its opening statement, the city amended
the charge in each case to criminal child enticement in violation of R.C. 2905.05, the
state statute containing nearly identical language to that of Parma Codified
Ordinances 636.075. After hearing all the evidence, the court found Horky guilty in
both cases and sentenced him in each case to a $250 fine and 180 days in jail; the
sentences were ordered to be served consecutively. Horky’s sentence was
immediately ordered into execution.
The trial court subsequently denied Horky’s request for bond and to
stay execution of his sentence pending appeal. Subsequently, this court granted
Horky’s motion for an appellate bond and suspended the execution of his sentence
pending appeal.
Horky now appeals, raising three assignments of error of our review.
I. Final Appealable Order
At the outset, the city of Parma contends that Horky’s judgment
entries of conviction are not final appealable orders; thus, this court lacks
jurisdiction to consider his appeal. Specifically, the city contends, without citation
to any authority, that because the judgment entries of conviction do not identify the
subsection of R.C. 2905.05 of which Horky was found to be in violation, there is an
ambiguity that renders the entries not final or appealable. We disagree.
Crim.R. 32(C) specifies what a judgment entry of conviction must
contain: “A judgment of conviction shall set forth the plea, the verdict, or findings,
upon which each conviction is based, and the sentence.” “A judgment of conviction
is a final order subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of
the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp
indicating the entry upon the journal by the clerk.” State v. Lester, 130 Ohio St.3d
303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus.
In this case, the judgment entries of conviction satisfy all four
requirements: (1) each provides that Horky was convicted of criminal child
enticement, (2) states his sentence for the offense, (3) is signed by the trial judge,
and (4) is time stamped. The fact that they do not contain the code subsection of the
charge upon which Horky was found guilty does not make the judgment entries not
final nor unappealable. See, e.g., State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-
3330, 893 N.E.3d 163 (journal entry of conviction final and appealable where it only
identified the names of the offenses the defendant was convicted; not the code
section). Accordingly, this appeal is properly before this court.
II. Unconstitutional Statute
In his first assignment of error, Horky contends that his convictions
violate due process and are otherwise invalid because they are based on R.C.
2905.05(A) — a statute that has been declared unconstitutional by the Ohio
Supreme Court in State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d
1156. The state contends that the Ohio Supreme Court did not find R.C. 2905.05
unconstitutional in its entirety, but rather only declared subsection (A)
unconstitutional. The city seems to contend that Horky’s journal entries of
conviction do not indicate the subsection of which Horky was found guilty; thus,
Horky’s convictions should be upheld because it is possible he was convicted of R.C.
2905.05(B) or (C).
R.C. 2905.05, criminal child enticement, provides, in relevant part:
(A) No person, by any means and without privilege to do so, shall
knowingly solicit, coax, entice, or lure any child under fourteen years of
age to accompany the person in any manner, including entering into
any vehicle or onto any vessel, whether or not the offender knows the
age of the child, if both of the following apply:
(1) The actor does not have the express or implied permission of
the parent, guardian, or other legal custodian of the child in
undertaking the activity.
(2) The actor is not a law enforcement officer, medic, firefighter,
or other person who regularly provides emergency services, and
is not an employee or agent of, or a volunteer acting under the
direction of, any board of education, or the actor is any of such
persons, but, at the time the actor undertakes the activity, the
actor is not acting within the scope of the actor’s lawful duties in
that capacity.
(B) No person, with a sexual motivation, shall violate division (A) of
this section.
(C) No person, for any unlawful purpose other than, or in addition to,
that proscribed by division (A) of this section, shall engage in any
activity described in division (A) of this section.
In Romage, the Ohio Supreme Court held that R.C. 2905.05(A) is
unconstitutionally overbroad because it “sweeps within its prohibitions a significant
amount of constitutionally protected activity.” Id. at syllabus. See also Cleveland v.
Cieslak, 8th Dist. Cuyahoga No. 92017, 2009-Ohio-4035 (finding that Cleveland
Codified Ordinances 609.09, criminal child enticement, is unconstitutionally
overbroad).
In this case, the city does not dispute that R.C. 2905.05(A) was
declared unconstitutional, but contends that Horky’s convictions should be upheld
because it is possible he was found guilty of R.C. 2905.05(B) or (C), which was not
stricken by Romage. The city, however, ignores a plain reading of the record that
reveals that the city undoubtedly prosecuted Horky for violating R.C. 2905.05(A).
First, at the time that the city amended the charge from the city code
to the state code of R.C. 2905.05, the prosecutor stated:
And it says that no person by any means and without privilege to do so
shall knowingly solicit, coax, entice or lure any child under 14 years of
age to accompany the person in any manner including entering into a
vehicle or onto any vessel whether or not the offender knows the age of
the child if both of the following apply and so it mimics, it is the exact
same language that’s contained in the Parma Codified Ordinance.
(Tr. 4-5.) This quoted language is expressly derived from subsection (A) of R.C.
2505.05. At no time did the city add the additional elements contained in
subsections (B) or (C) of R.C. 2505.05 when making the amendment.
Additionally, during both opening and closing arguments, the city
maintained that Horky was guilty of criminal child enticement by continuing to
quote from R.C. 2905.05(A). During opening statements, the prosecutor stated:
Your honor we believe that the City will prove beyond a reasonable
doubt each and every essential element of the crime of Child
Enticement and that is that Mr. Horky did knowingly solicit, coax,
entice, or lure a child under 14 years of age to accompanying [sic] the
person in any manner. And then it goes on to say if both of the
following apply and (a) no express or implied permission of any parent
or guardian and [b] the actor is not a law enforcement officer.
(Tr. 3-4.). During closing argument, the prosecutor stated:
I believe the evidence is pretty clear that the Defendant is Guilty of Two
Counts of Child Enticement. One on or about July 13th 2018, one from
July 16th 2018, the statute is pretty clear, specifically the elements are
to knowingly solicit, coax, entice or lure a child under 14 years of age to
accompany the person in any manner if both of the following apply [a)]
there is no expressed or implied permission of the parent or guardian
and b) the actor is not a law enforcement officer, etc., well he certainly
is not a law enforcement officer, he certainly, clearly did not have
permission contrary to his testimony.
(Tr. 108.) Based on these arguments at trial, the record clearly demonstrates that
the city prosecuted Horkey under R.C. 2505.02(A).
Finally, the record does not support the city’s theory that Horky may
have been convicted of either R.C. 2905.05(B) or (C) because at no time during trial
did the city argue or even mention the presence of the additional element found in
subsection (B) — prohibiting a violation of subsection of (A) “with a sexual
motivation;” or the additional element found in subsection (C) — prohibiting a
violation of subsection (A) “for any unlawful purpose.” In fact, the record clearly
rebuts the possibility that Horky was convicted of violating either subsections (B) or
(C), both of which require some unlawful intent, because the prosecutor specifically
stated during closing that:
Whether [Horky’s] intentions were completely good or not doesn’t
matter pursuant to the statute, has no bearing on the statute, this is for
the protection of kids and he violated the statue.
(Tr. 108.)
Based on the record before this court, we find that Horky’s due
process rights were violated when he was prosecuted and convicted of violating a
statute that was previously declared unconstitutional. The assignment of error is
sustained.
Because we find merit to his first assignment of error, Horky’s second
and third assignments of error, which challenge the effectiveness of his trial counsel
and sufficiency of the evidence, are rendered moot. See App.R. 12(A)(1)(c).
Judgment vacated; Horky is ordered discharged from the sentences
imposed.
It is ordered that appellant recover from appellee 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 Parma
municipal 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.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
RAYMOND C. HEADEN, J., CONCUR