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State v. Gates

Court of Appeals of Ohio, Sixth District, Sandusky

May 11, 2018

State of Ohio Appellee
v.
Michael J. Gates Appellant

          Trial Court No. 16 CR 1253

          Timothy F. Braun, Sandusky County Prosecuting Attorney, and Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.

          Russell V. Leffler, for appellant.

          DECISION AND JUDGMENT

          JENSEN, J.

         I. Introduction

         {¶ 1} Appellant, Michael Gates, appeals the judgment of the Sandusky County Court of Common Pleas, sentencing him to 16 years in prison after he pleaded guilty to one count of rape and one count of gross sexual imposition. Finding no error, we affirm.

         A. Facts and Procedural Background

         {¶ 2} On December 29, 2016, appellant was indicted on one count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. The indictment stemmed from an incident that occurred in September 2016, in which appellant engaged in fellatio and masturbation with a juvenile who was two years old at the time. Appellant had previously confessed to committing these acts during an interview and subsequent polygraph test with law enforcement officers from the Ottawa County Sheriffs office and the FBI.

         {¶ 3} Appellant entered a plea of not guilty, and the matter proceeded through discovery. On March 28, 2017, appellant, through appointed counsel, filed a motion to suppress "any and all statements made by [appellant] to law enforcement that the State may intend to use at trial." The basis for the motion to suppress was the assertion that appellant was not properly advised of his Miranda rights prior to police questioning. On June 21, 2017, the trial court denied appellant's motion to suppress, finding that appellant's confessions were voluntarily given while appellant was not under arrest.

         {¶ 4} Two months later, appellant appeared before the trial court and entered a consent to be tried on a bill of information. The bill of information contained one count of rape in violation of R.C. 2907.02(A)(2), a felony of the first degree, and one count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree. According to the bill of information, the rape count pertained to appellant's act of fellatio, while the gross sexual imposition count related to appellant's touching of the juvenile's penis in an act of masturbation that was "separate from the fellatio in Count 1." After a thorough Crim.R. 11 coloquy at which appellant acknowledged satisfaction with his counsel's representation, the trial court accepted appellant's plea on the bill of particulars and found him guilty of the offenses specified therein. Notably, the court did not ask the state to present a factual basis for the charges contained in the bill of particulars.

         {¶ 5} At the conclusion of the hearing on the bill of particulars, the court referred appellant to the adult probation department for the preparation of a presentence investigation report and set the matter for sentencing. The sentencing hearing was held on September 26, 2017. At sentencing, the trial court ordered appellant to serve prison terms of 11 years for rape and 5 years for gross sexual imposition, to be served consecutively, for a total prison sentence of 16 years.

         {¶ 6} On October 11, 2017, appellant filed his timely notice of appeal.

         B. Assignments of Error

         {¶ 7} On appeal, appellant presents the following ...


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