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State v. Ingels

Court of Appeals of Ohio, First District, Hamilton

February 28, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
EARL INGELS, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas APPEAL NO. C-160864 TRIAL NOS. B-9802147 B-9800321

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Earl Ingels, pro se.

          OPINION

          CUNNINGHAM, PRESIDING JUDGE.

         {¶1} Defendant-appellant Earl Ingels presents on appeal four assignments of error that, distilled to their essence, challenge the Hamilton County Common Pleas Court's judgments overruling his "Motion[s] to Set Aside a Void Violent Sexual Predator Sanction." We remand for resentencing on the kidnapping offenses charged in counts one and three of the indictment in the case numbered B-9800321, because those sentences are void when R.C. Chapter 2971 did not confer upon the trial court the authority to enhance the sentences based on specifications that Ingels was a "sexually violent predator."

         {¶2} In 1998, following a joint trial on the charges contained in the indictments in the cases numbered B-9800321 and B-9802147, Ingels was convicted on five counts of kidnapping, two counts of gross sexual imposition, and a single count of attempted kidnapping. We affirmed those convictions on direct appeal. State v. Ingels, 1st Dist. Hamilton Nos. C-980673 and C-980674, 1999 WL 1488934 (Dec. 3, 1999), appeal not accepted, 99 Ohio St.3d 1539, 2003-Ohio-4671, 795 N.E.2d 679. Thereafter, we twice remanded for correction of postrelease control. See State v. Ingels, 1st Dist. Hamilton No. C-130311, 2014-Ohio-363; State v. Ingels, 1st Dist. Hamilton Nos. C-140312, C-140313 and C-140328, 2015-Ohio-1621, appeal not accepted, 143 Ohio St.3d 1447, 2015-Ohio-3427, 36 N.E.3d 193. See also State v. Ingels, 1st Dist. Hamilton Nos. C-160295, C-160303 and C-160304 (Oct. 7, 2016) (affirming the second correction of postrelease control). The other postconviction challenges to his convictions advanced in motions filed between 2005 and 2016 were unavailing. See State v. Ingels, 1st Dist. Hamilton No. C-100297, 2011-Ohio-2901, appeal not accepted, 130 Ohio St.3d 1418, 2011-Ohio-5605, 956 N.E.2d 309; State v. Ingels, 1st Dist. Hamilton No. C-120052 (Dec. 7, 2012), appeal not accepted, 134 Ohio St.3d 1509, 2013-Ohio-1123, 984 N.E.2d 1102; State v. Ingels, 1st Dist. Hamilton No. C-120238, 2013-Ohio-1460, appeal not accepted, 137 Ohio St.3d 1411, 2013-Ohio-5096, 998 N.E.2d 510.

         The Motion

         {¶3} In his 2016 "Motion to Set Aside a Void Violent Sexual Predator Sanction, " filed in each of the cases numbered B-9802147 and B-9800321, Ingels sought "correction]" of the sentences imposed for the kidnapping offenses charged in counts one and three of the indictment in the case numbered B-9800321, on the ground that those sentences are void because the trial court lacked the statutory authority to impose them. Citing the Ohio Supreme Court's decision in State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, Ingels argued that the sentence-enhancement provisions of R.C. Chapter 2971 in effect in 1998, when he was sentenced, had not conferred upon the trial court the authority to enhance his kidnapping sentences based on the specifications that he was a "sexually violent predator, " because those specifications were not, as R.C. 2971.03 then required, based on a sexually-violent-offense conviction that had existed before the indictment charging the sexually-violent-predator specification, but were instead based on the conduct underlying the sexually-violent-offense charges contained in the jointly-tried indictments in the cases numbered B-9800321 and B-9802147. The motion sought relief in the form of "removing [the] Sexual Violent Predator sanction" from the judgment of conviction and a declaration that the state had "forfeited any rights" to so sanction him or to classify him as a sexual predator under R.C. 2950.09.

         {¶4} Ingels presented Smith claims on direct appeal from the second correction of postrelease control and in postconviction motions filed in 2009, 2011, and 2012. In 2011, we affirmed the dismissal of Ingels's 2009 motion, upon our determination that the claimed error did not render his sentences void. See Ingels, 1st Dist. Hamilton No. C-100297, 2011-Ohio-2901. We then relied on that determination to hold that the law of our 2011 decision precluded the trial court, in correcting postrelease control, and the common pleas court, in deciding Ingels's subsequent postconviction motions, from granting relief on that ground. See Ingels, 1st Dist. Hamilton Nos. C-160295, C-160303 and C-160304; Ingels, 1st Dist. Hamilton No. C-120238, 2013-Ohio-1460; Ingels, 1st Dist. Hamilton No. C-120052.

         {¶5} In this appeal from the overruling of Ingels's 2016 motion, we revisit that determination. We conclude that the sentences imposed for the kidnapping offenses charged in counts one and three of the indictment in the case numbered B-9800321 are void, because the trial court lacked the statutory authority to impose them. And on that basis, we overrule our prior decisions to the extent that they hold to the contrary.

         No Statutory Authority to Enhance the Kidnapping Sentences

         {¶6} The kidnapping charges in counts one and three of the indictment in the case numbered B-9800321 each carried a sexual-motivation specification and a sexually-violent-predator specification. With respect to each offense, the jury found that Ingels had acted with a sexual motivation, and the trial court found that Ingels was a "sexually violent predator" for purposes of the sentencing-enhancement provisions of R.C. Chapter 2971. Thus, the trial court, pursuant to R.C. 2971.03(A)(3), enhanced Ingels's sentences for the sexually motivated kidnappings, imposing for each offense a prison term of nine years to life, instead of a definite prison term of up to ten years prescribed for first-degree-felony kidnapping. See R.C. 2929.14(A)(1).

         {¶7} R.C. 2971.03, in relevant part, mandates an enhanced sentence upon a guilty verdict or plea on a kidnapping charge if the offender also "is convicted of or pleads guilty to both a sexual motivation specification and a sexually violent predator specification that were included in the * * * count in the indictment * * * charging that offense." R.C. 2971.03(A). R.C. 2971.01(H)(1), as it provided in 1998 when Ingels was sentenced, defined a "sexually violent predator" as "a person who has been convicted of or pleaded guilty to committing, on or after January 1, 1997, a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses." (Emphasis added.) In 2005, the General Assembly amended the statute to define a "sexually violent predator" as "a person who, on or after January 1, 1997, commits a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses." (Emphasis added.) R.C. 2971.01(H)(1).

         {¶8} The 2005 amendment was prompted by the Ohio Supreme Court's 2004 decision in State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283. In Smith, the court held that a "[c]onviction of a sexually violent offense cannot support the specification that the offender is a sexually violent predator as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction and the * * * specification are charged in the same indictment." Id. at syllabus. That holding derived from the court's reading of former R.C. 2971.01(H)(1) to require that a sexually-violent-predator specification be ...


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