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State of Ohio v. George T. Tucholski

December 3, 2012

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
GEORGE T. TUCHOLSKI, DEFENDANT-APPELLANT.



Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011 CR 235.

The opinion of the court was delivered by: Thomas R. Wright, J.

Cite as State v. Tucholski,

OPINION

Judgment: Affirmed in part; reversed in part and remanded.

{¶1} This appeal is from the sentencing judgment in a criminal action before the Ashtabula County Court of Common Pleas. Appellant, George T. Tucholski, primarily seeks reversal of certain sanctions that the trial court imposed in light of his conviction on various sexual offenses. According to appellant, the court failed to follow the proper procedure in imposing his prison term and ordering him to pay certain fees.

{¶2} In June 2011, the county grand jury returned an eighteen-count indictment against appellant. Under each of the first two counts, he was charged with pandering sexually-oriented material involving a minor, a second-degree felony pursuant to R.C. 2907.322. In each of the next eight counts, appellant was charged with unlawful sexual conduct with a minor, a third-degree felony under R.C. 2907.04. Under each of the final eight counts, he was charged with sexual battery, a third-degree felony pursuant to R.C. 2907.03.

{¶3} In all eighteen counts of the indictment, the victim of the charged offense was appellant's granddaughter. Essentially, the counts alleged that he had engaged in sexual conduct with the victim on a number of occasions over an eighteen-month period of time. The counts further alleged that when the sexual conduct took place, the victim had been between the ages of thirteen and sixteen. In addition, the "pandering" counts asserted that, on two occasions, appellant had videotaped his conduct with the victim.

{¶4} After entering an initial plea of "not guilty" to the charges, appellant moved the trial court to suppress certain oral statements he had made to the police at the time of his arrest. Besides arguing that he was never informed of his Miranda rights during the interrogation, appellant also maintained that he had lacked the mental capacity to make a voluntary statement.

{¶5} An evidentiary hearing on appellant's suppression motion was scheduled for September 21, 2011. However, immediately prior to the hearing, he agreed to enter a plea of guilty to one count of pandering sexually-oriented materials involving a minor, four counts of unlawful sexual conduct with a minor, and three counts of sexual battery. In consideration for the guilty plea, the state agreed to dismiss the remaining counts of the indictment. Furthermore, as a term of his written guilty plea, the state and appellant agreed that the state would recommend to the trial court that he be given an aggregate sentence of 15 years on the eight remaining counts.

{¶6} Upon accepting the guilty plea, the trial court held a separate oral hearing on sentencing. After considering statements from both attorneys and the victim, the trial court orally imposed an aggregate sentence of seven years on the eight counts. As to the single "pandering" count, appellant was given a five-year term; however, in regard to the four counts of unlawful sexual conduct and the three counts of sexual battery, he was given a total term of two years, to be served consecutive to the five-year term. The trial court also informed appellant that he would be designated as a Tier III sex offender, and that he would be subject to post-release control following his release from prison. Finally, the court expressly stated to appellant during the hearing that he would be liable for court costs.

{¶7} In its final sentencing judgment, the trial court restated the prison term that had been orally imposed during the hearing. Nevertheless, the sanctions imposed in the final judgment differed from those delineated orally in one respect; besides ordering the payment of court costs, the judgment stated that appellant was liable for "any other fees as permitted by Ohio Revised Code §2929.18(A)(4)."

{¶8} In appealing both his conviction and sentence, appellant has raised three assignments of error for review:

{¶9} "[1.] Defendant-appellant had ineffective assistance of counsel when counsel had Mr. Tucholski enter a plea of guilty, thereby waiving any suppression issue on appeal.

{ΒΆ10} "[2.] The lower court failed to properly consider the statutory principles and purposes of sentencing and the seriousness and ...


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