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State v. Henry

Court of Appeals of Ohio, Sixth District, Erie

May 19, 2017

State of Ohio Appellee
v.
James Henry Appellant

         Trial Court No. 2013-CR-373

          Kevin J. Baxter, Erie County Prosecuting Attorneys, Aaron Lindsey and Jonathan M. McGookey, Assistant Prosecuting Attorneys, for appellee.

          Brian J. Darling and Kristin M. Lease, for appellant.

          DECISION AND JUDGMENT

          JENSEN, P.J.

         {¶ 1} Appellant, James Henry, appeals from a judgment of conviction and sentence entered by the Erie County Court of Common Pleas after a jury found him guilty of two counts of gross sexual imposition, three counts of rape, and one count of attempted rape. He assigns the following errors for review:

I. THE TRIAL COURT'S SENTENCING OF APPELLANT JAMES HENRY VIOLATED HIS CONSTITUTIONAL RIGHTS UNDER BOTH THE U.S. CONSTITUTION, ARTICLE I, SECTION 9, CL. 3, AS WELL AS OHIO CONSTITUTION, ARTICLE II, SECTION 28. THIS COURT SHOULD REMAND THE CASE TO THE TRIAL COURT FOR RESENTENCING.
II. THE TRIAL COURT'S SENTENCING OF APPELLANT JAMES HENRY TO LIFE IMPRISONMENT WITHOUT PAROLE UNDER R.C. 297103(A), WHEN HE HAD NOT BEEN CONVICTED OF THE SPECIFICATION REQUIRED BY THAT DIVISION WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW, AND THIS COURT SHOULD REMAND THE CASE TO THE TRIAL COURT FOR RESENTENCING.
III. JAMES HENRY'S COURT APPOINTED COUNSEL'S REPRESENTATION FELL BELOW THE OBJECTIVE STANDARD OF REASONABLE REPRESENTATION, AND, BUT FOR COUNSEL'S ERRORS, THE TRIAL RESULT WOULD HAVE BEEN DIFFERENT.

         {¶ 2} In September of 2011, the Erie County Grand Jury returned a six-count indictment against appellant, charging him with two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), three counts of rape in violation of R.C. 2907.02(A)(1)(b), and one count of attempted rape in violation of R.C. 2923.02(A). Counts 3 through 5 included a specification that "defendant purposely compelled the victim to submit by force or the threat of force during the commission of the offense." The six incidents alleged in the indictment involved one victim, T.H. (DOB 04/18/97), the minor daughter of appellant's live-in girlfriend. The case was tried to a jury in August of 2015. T.H. was 18 years old at the time of trial.

         {¶ 3} At the close of the state's evidence, appellant moved for a judgment of acquittal. After the trial court denied the motion, appellant rested without presenting any evidence, and the case was submitted to the jury. The jury found appellant guilty on all six counts. Each count had a separate finding that the victim, at the time of the offense, was less than 13 years of age. The jury also entered a separate finding under Counts 3 through 5 that appellant "did compel the victim to submit by force or threat of force during commission of offense."

         {¶ 4} The trial court sentenced appellant to five years in prison as to Count 1, and five years in prison as to Count 2. As to Counts 3, 4, and 5, the trial court imposed what it described as "mandatory life." As to Count 5, the court sentenced appellant to "mandatory 25 to life." Finally, the court imposed an eight-year prison sentence as to Count 6. The trial court ordered the sentences in Counts 1 through 5 to run concurrent with one another and consecutive to Count 6. Appellant was classified as a sexually oriented offender.

         First Assignment of Error

         {¶ 5} In his first assignment of error, appellant argues that the trial court erred, as to Counts 3 (alleged to have occurred between September 2004 and June 2005) and 4 (alleged to have occurred between June 2005 and April 17, 2006) in sentencing him under a post-2006 version of R.C. 2907.02(B) rather than the version of the statute that was in effect at the time he committed the offenses for which he was convicted. Appellant contends that the penalty imposed for a violation of the statute changed from "life with the possibility of parole after ten years" to "mandatory life imprisonment."

         {¶ 6} In response, the state argues that at the time appellant committed the offenses of rape in violation of R.C. 2907.02(A)(1)(b), R.C. 2907.02(B) allowed for "life without parole, " but that the trial court did not impose it. The state then points to evidence outside the record-an offense information sheet from the Ohio Department of Rehabilitation and Correction-in support of its position that the department "has computed appellant's release date inclusive of the ten year parole eligibility."

         {¶ 7} Preliminarily, we note that neither the state nor this court can rely on evidence outside the record to interpret the sentence imposed by the trial court. The record speaks for itself.

         {¶ 8} The version of R.C. 2907.02(B) effective June 13, 2002 through January 2, 2007, provides, in relevant part, as follows:

Whoever violates this section is guilty of rape, a felony of the first degree. * * * If the offender under division (A)(1)(b) of this section purposely compels the victim to submit by force or threat of force or if the victim under division (A)(1)(b) of this section is less than ten years of age, whoever violated division (A)(1)(b) of this section shall be imprisoned for life. If the offender under division (A)(1)(b) of this section * * * during or immediately after the commission of the offense caused serious physical harm to the victim, whoever violates division (A)(1)(b) of this section shall be imprisoned for life or life without parole.

         {¶ 9} In turn, R.C. 2967.13(A)(5) provides that if a sentence of imprisonment for life was imposed for rape, for an offense committed on or after July 1, 1996, the prisoner becomes eligible for parole "after serving a term of ten full years' imprisonment."

         {¶ 10} In its September 29, 2015 judgment entry, the trial court states, as to Counts 3 and 4, that "Defendant is Sentenced to the Ohio Department of Rehabilitation and Correction to be imprisoned and confined for a definite sentence of LIFE of which LIFE is Mandatory." There is nothing on the face of the sentencing entry that would suggest appellant was sentenced to "life without parole." Thus, we must presume that, as to Counts 3 and 4, appellant is eligible for parole as set forth in R.C. 2967.13(A)(5).

         {¶ 11} We find no merit in appellant's first assignment of error ...


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