State v. Neitz , 2019 Ohio 439 ( 2019 )

[Cite as State v. Neitz, 2019-Ohio-439.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 18CA0024-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
NICHOLAS NEITZ COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 17CR0664
DECISION AND JOURNAL ENTRY
Dated: February 11, 2019
HENSAL, Judge.
{¶1} Nicholas Neitz appeals his convictions and sentence in the Medina County Court
of Common Pleas. For the following reasons, this Court affirms.
I.
{¶2} According to Mr. Neitz, he allowed a police officer who was conducting an
investigation to view the files on his cellphone. Although unrelated to the investigation, the
officer discovered nude pictures and videos of two of Mr. Neitz’s former girlfriends and another
girl on the phone. Mr. Neitz was over 18 years old at the time the officer discovered the files,
but the girls were between 15 and 17 years old at the time they sent them to Mr. Neitz. The
Grand Jury subsequently indicted Mr. Neitz on two counts of pandering sexually-oriented matter
involving a minor under Revised Code section 2907.322(A)(5) and one count of illegal use of a
minor in nudity-oriented material or performance under Section 2907.323(A)(3).
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{¶3} Mr. Neitz agreed to plead guilty to one of the offenses under Section
2907.322(A)(5) and to the offense under Section 2907.323(A)(3) in exchange for the dismissal
of the third offense and the State’s agreement to recommend a non-residential community
control sanction at sentencing. The trial court sentenced Mr. Neitz to 90 days in jail and three
years of community control. It also ordered him to register as a sex offender for 25 years. Mr.
Neitz has appealed his convictions and sentence, assigning four errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN FAILING TO DISCLOSE INFORMATION
AND/OR STATEMENTS INCLUDED IN THE PRE-SENTENCE REPORT
AND/OR VICTIM IMPACT STATEMENT TO APPELLANT PRIOR TO
SENTENCING.
{¶4} In his first assignment of error, Mr. Neitz argues that the State failed to provide
him with a full copy of the pre-sentence investigation report before sentencing. In particular, he
argues that he was not provided with several pages of the report, including the ones with the
probation department’s sentencing recommendations, the ones showing the probation
department’s weighing of the sentencing factors and the facts it relied on in support of those
decisions, and any of the additional information that was included in the probation department’s
sentencing evaluation. He also argues that he was not allowed to see a secret victim impact
statement that the mother of one of his former girlfriends prepared, in violation of his right to
confrontation. He further argues that it was improper for the court to consider the mother’s
statement because she was not an authorized representative of his former girlfriend.
{¶5} Mr. Neitz acknowledges that he received part of the pre-sentence investigation
report. Each page of the report indicates that it is “[p]age * * * of 12[.]” Accordingly, it would
have been apparent to Mr. Neitz before the sentencing hearing that he had not received the entire
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report. He did not file a motion regarding his failure to receive the entire report before the
sentencing hearing or make an objection at the sentencing hearing about not receiving some of
its pages. We, therefore, conclude that Mr. Neitz has forfeited his argument concerning the pre-
sentence investigation report. See State v. Fitzgerald, 9th Dist. Summit No. 23072, 2007-Ohio-
701, ¶ 8 (“[A] forfeiture occurs where a party fails to assert a right or make an objection before
the trial court in a timely fashion.”). Although this Court may still review for plain error, Mr.
Neitz has not developed a plain error argument in his appellate brief, and this Court declines to
construct one for him. Crim.R. 52(B); State v. Thomas, 9th Dist. Summit No. 27266, 2015-
Ohio-2935, ¶ 15 (declining to address constitutional argument that was not raised in the trial
court).
{¶6} Regarding Mr. Neitz’s allegation that the mother of one of his former girlfriends
was able to submit a secret victim impact statement, we note that the prosecutor referred to the
statement on the record near the beginning of the sentencing hearing. The prosecutor told the
court that the mother and Mr. Neitz’s former girlfriend were in the courtroom and that he did not
believe that they wanted to speak, but that he “believe[d] a victim’s impact statement was turned
in by [the] mother.” Mr. Neitz did not object to the submission of the statement or allege that he
had been unable to review it. We, therefore, conclude that he has also forfeited consideration of
his arguments about the victim impact statement. We note that Mr. Neitz has not developed a
plain error argument about the victim impact statement in his brief, and we decline to construct
one for him. Thomas at ¶ 15. Mr. Neitz’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN CONSIDERING ALLEGATIONS OF
CRIMINAL CONDUCT RELATIVE TO COUNTS DISMISSED BY THE
STATE OF OHIO AS PART OF THE PARTIES’ PLEA AGREEMENT.
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{¶7} In his second assignment of error, Mr. Neitz argues that the trial court improperly
considered the circumstances surrounding one of his former girlfriends at sentencing because the
charge relating to that girlfriend was the one that was dismissed. At the sentencing hearing, the
State noted that Mr. Neitz had only told the probation department about the circumstances
relating to two of the girls who sent him nude images. Before sentencing Mr. Neitz, the court
asked him about the third girl. Mr. Neitz told the court that he had not described what happened
with the third girl to the probation department because his attorney had advised him that the
charge involving that girl was the one that was dropped. He proceeded to explain to the court
how the pictures of the girl ended up on his phone. Mr. Neitz argues that, because he only
pleaded guilty to two charges, only two of the girls could be considered victims. He argues that
the court improperly punished him for his behavior toward someone who was not a victim of the
offenses.
{¶8} The Ohio Supreme Court has recognized that “a sentencing judge may take into
account facts introduced at trial relating to other charges, even ones of which the defendant has
been acquitted.” State v. Wiles, 59 Ohio St.3d 71, 78 (1991), quoting United States v. Donelson,
695 F.2d 583, 590 (2d Cir.1982). Moreover, the charges in Mr. Neitz’s indictment do not refer
to any particular victim. Each simply referred to “a minor” without any additional identifying
information. Each of the offenses is alleged to have occurred on or about July 5, 2017, which is
the date that the officer discovered the files on Mr. Neitz’ s phone, not the date that the girls sent
the files to Mr. Neitz. The bill of particulars that is in the record does not contain any additional
information that associates each of the counts to any particular girl. The parties also did not state
anything during Mr. Neitz’s plea hearing that suggests that the dismissed charge related to a
specific girl. Accordingly, we conclude that Mr. Neitz has failed to establish that the trial court
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erred when it considered the circumstances pertaining to all three girls in determining his
sentence. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1 (“[A]n appellate court
may vacate or modify a felony sentence on appeal only if it determines by clear and convincing
evidence” that: (1) “the record does not support the trial court’s findings under relevant
statutes[,]” or (2) “the sentence is otherwise contrary to law.”). Mr. Neitz’s second assignment
of error is overruled.
ASSIGNMENT OF ERROR III
TRIAL COUNSEL WAS INEFFECTIVE IN THAT: HE FAILED TO
CHALLENGE THE POLICE OFFICER’S AUTHORITY TO INVESTIGATE;
HE FAILED TO CHALLENGE THE ILLEGAL SEARCH OF APPELLANT’S
PHONE; AND, HE FAILED TO CHALLENGE THE CONSTITUTIONALITY
OF THE CRIMINAL STATUTES WHICH HAVE CRIMINALIZED A
CONSENSUAL, LEGAL AND CONSTITUTIONALLY PROTECTED
SEXUAL RELATIONSHIP.
{¶9} In his third assignment of error, Mr. Neitz argues that his trial counsel was
ineffective. He argues that his trial counsel should have moved to suppress the files that were
found on his phone because the officer who found them was pursing an unauthorized
investigation. He also argues that his counsel should have challenged the constitutionality of the
charges against him. A guilty plea, however, “waives the right to appeal issues of ineffective
assistance of counsel, unless the ineffective assistance of counsel caused the guilty plea to be
involuntary.” State v. Carroll, 9th Dist. Lorain No. 06CA009037, 2007-Ohio-3298, ¶ 5; State v.
Emich, 9th Dist. Medina No. 17CA0039-M, 2018-Ohio-627, ¶ 16. Mr. Neitz has not argued that
his trial counsel’s ineffectiveness caused his plea to be involuntary. We, therefore, conclude that
he has waived his ineffective-assistance-of-counsel arguments. Carroll at ¶ 5; Emich at ¶ 16.
Mr. Neitz’s third assignment of error is overruled.
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ASSIGNMENT OF ERROR IV
THE GRAND JURY INDICTMENT FAILED TO INCLUDE A FINDING OF
PROBABLE CAUSE AND IS THEREFORE VOID HAVING FAILED ITS
PRIMARY PURPOSE.
{¶10} In his fourth assignment of error, Mr. Neitz argues that the indictment was void
because it did not include a finding of probable cause. In State v. Stevens, 9th Dist. Medina Nos.
16CA0033-M, 16CA0034-M, 2017-Ohio-5482, this Court considered the same issue and
concluded that an indictment does not need to include a finding of probable cause. Id. at ¶ 6.
Moreover, because Mr. Neitz did not challenge his indictment in the trial court, he has forfeited
all but plain error. Id. at ¶ 7. We note that he has not argued plain error in his appellate brief,
and we decline to create such an argument on his behalf. Id. Mr. Neitz’s fourth assignment of
error is overruled.
III.
{¶11} Mr. Neitz’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
MICHAEL CALLOW, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prsosecuting Attorney, for Appellee.