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State v. Herzberger

Court of Appeals of Ohio, Ninth District

August 26, 2013

STATE OF OHIO Appellee
v.
GREGORY D. HERZBERGER Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 09CR079694

ROBERT ALAN BRENNER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

MOORE, Presiding Judge.

(¶1} Defendant-Appellant, Gregory D. Herzberger, appeals from the October 5, 2012 judgment entry of the Lorain County Court of Common Pleas. We affirm.

I.

(¶2} Mr. Herzberger was accused of performing various sexual acts on his biological daughters from 1996 through 2007. He was indicted on multiple counts including: felonious sexual penetration, rape, and gross sexual imposition. As a result of a plea bargain, Mr. Herzberger pleaded guilty to three counts of rape. The parties agreed upon a sentence of nine years of imprisonment.

(¶3} At the time of Mr. Herzberger's sentencing hearing, the trial court also held a sexual offender classification hearing under Megan's Law. See former R.C. 2950.09. Because of the dates of the alleged offenses, the parties agreed that Megan's Law should be used for classification purposes. After considering the relevant factors set forth in former R.C. 2950.09, the trial court classified Mr. Herzberger as a sexual predator. See also former R.C. 2950.01(E)(1).

(¶4} Mr. Herzberger appealed, raising a single assignment of error for our consideration.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY FINDING THAT [MR.] HERZBERGER IS A SEXUAL PREDATOR AND NOT A SEXUALLY ORIENTED OFFENDER.

(¶5} In his sole assignment of error, Mr. Herzberger argues that the trial court erred in its finding that he is a sexual predator, instead of a sexually oriented offender. Specifically, Mr. Herzberger argues that he should not be classified as a sexual predator because (1) he is in poor health, (2) he will be 70 years old when he is released from prison, and (3) he will have no opportunity to abuse young children because his children are now adults. For the following reasons, we do not agree with Mr. Herzberger's flawed logic.

(ΒΆ6} Former R.C. 2950.01(E)(1) defines a sexual predator as an individual who "has been convicted of or pleaded guilty to committing a sexually oriented offense that is not a registration-exempt sexually oriented offense and is likely to engage ...


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