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State v. Small

Court of Appeals of Ohio, Tenth District

July 28, 2005

State of Ohio, Plaintiff-Appellant,
v.
Darryl L. Small, Defendant-Appellee.

ON MOTION TO CERTIFY A CONFLICT C.P.C. No. 02CR-10-6221.

Ron O'Brien, Prosecuting Attorney, and Steven L Taylor, for appellant.

Yeura Venters, Public Defender, and Allen V. Adair, for appellee.

DECISION

PETREE, J.

{¶1} Pursuant to App.R. 25, defendant-appellee, Darryl L. Small, moves this court for an order to certify a conflict between our decision in State v. Small, Franklin App. No. 04AP-316, 2005-Ohio-2291, and decisions in State v. Barksdale, Montgomery App. No. 19294, 2003-Ohio-43 (Young, J., dissenting), cause dismissed, 99 Ohio St.3d 1549, 2003-Ohio-4781; State v. Reine, Montgomery App. No. 19157, 2003-Ohio-50 (Young, J., dissenting), cause dismissed, 99 Ohio St.3d 1549, 2003-Ohio-4781; State v. Young, Montgomery App. No. 19472, 2003-Ohio-2205 (Young, J., filing a concurring opinion), cross-appeal dismissed, 99 Ohio St.3d 1529, 2003-Ohio-4445, appeal not allowed, 99 Ohio St.3d 1549, 2003-Ohio-4781, and appeal not allowed, 101 Ohio St.3d 1491, 2004- Ohio-1293; State v. Washington (Nov. 14, 2001), Lake App. No. 99-L-015; State v. Hickman, Portage App. No. 2003-P-0087, 2004-Ohio-3929; and State v. Gooden, Cuyahoga App. No. 82681, 2004-Ohio-2699, at ¶64-68. For the reasons set forth below, we deny defendant's motion to certify.

{¶2} Motions seeking an order to certify a conflict are governed by Section 3(B)(4), Article IV of the Ohio Constitution, which provides:

Whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination.

See, also, Whitelock v. Gilbane Bldg. Co. (1993), 66 Ohio St.3d 594, syllabus, rehearing denied by, Whitelock v. Cleveland Clinic Found. (1993), 67 Ohio St.3d 1420; App.R. 25; and S.Ct.Prac.R. IV.

{¶3} Before and during the certification of a case to the Supreme Court of Ohio, pursuant to Section 3(B)(4), Article IV, Ohio Constitution, three conditions must be met. Whitelock, at 596. The Whitelock court instructed:

* * * First, the certifying court must find that its judgment is in conflict with the judgment of a court of appeals of another district and the asserted conflict must be "upon the same question." Second, the alleged conflict must be on a rule of law - not facts. Third, the journal entry or opinion of the certifying court must clearly set forth that rule of law which the certifying court contends is in conflict with the judgment on the same question by other district courts of appeals. * * *

Id. at 596.

{¶4} Defendant proposes this question for certification:

Does classification of an individual convicted of a non-sexually motivated kidnapping involving a victim under the age of eighteen as a sexually oriented offender under former R.C. 2950.01(D)(1)(b)(i) violate the Due ...

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