Court No. 2013-CR-373
J. Baxter, Erie County Prosecuting Attorneys, Aaron Lindsey
and Jonathan M. McGookey, Assistant Prosecuting Attorneys,
J. Darling and Kristin M. Lease, for appellant.
DECISION AND JUDGMENT
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
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
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.
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
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
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 ...