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State v. Bowermaster

Court of Appeals of Ohio, Third District, Hardin

June 24, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
ADAM WADE BOWERMASTER, DEFENDANT-APPELLANT.

          Appeal from Hardin County Common Pleas Court Trial Court No. CRI 20172072.

          Michael B. Kelley for Appellant

          Jason M. Miller for Appellee

          OPINION

          SHAW, J.

         {¶1} Defendant-appellant, Adam Wade Bowermaster ("Bowermaster"), appeals the September 28, 2018 Entry of Sentence issued by the Hardin County Court of Common Pleas journalizing his conviction for three counts of Illegal use of a Minor in a Nudity-Oriented Material or Performance and one count of Tampering with Evidence, and sentencing him to fifty-seven months in prison. On appeal, Bowermaster claims that the prosecutor made improper comments at sentencing which invalidated his plea and deprived him of due process of law.

         Procedural History

         {¶2} On June 20, 2018, the Hardin County Grand Jury returned a four-count indictment against Bowermaster alleging in Counts One, Two, and Three that he committed the offense of Illegal use of a Minor in a Nudity-Oriented Material or Performance, in violation of R.C. 2907.323(A)(3), a felony of the fifth degree, and in Count Four that he committed the offense of Tampering with Evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree. According to the Bill of Particulars, the charges stemmed from allegations that Bowermaster possessed on his cell phone nude photographs of three girls under the age of eighteen, who were not his children or wards. A search warrant was executed at Bowermaster's home. Upon hearing the officers at the door, Bowermaster hid his cell phone under the couch. Bowermaster was subsequently arraigned and entered a plea of not guilty to each count in the indictment.

         {¶3} On August 15, 2018, Bowermaster appeared before the trial court for a change of plea hearing. Pursuant to the negotiated plea agreement, Bowermaster pled guilty to the indictment in exchange for a jointly recommended sentence by the prosecutor of five years of community control and ninety days of local jail time subject to several conditions. Prior to accepting his guilty plea, the trial court informed Bowermaster that it was not bound by the jointly recommended sentence and that it could impose a different sentence within the statutory range. Bowermaster acknowledged this authority of the trial court on the record and decided to move forward with entering a guilty plea to the charges. The trial court ordered a pre-sentence report investigation to be completed and scheduled sentencing for a later date.

         {¶4} On September 20, 2018, the trial court conducted a sentencing hearing. The prosecutor reaffirmed his agreement to recommend five years of community control with a ninety-day period of local jail time, which would have been deemed as time served due to the calculation of jail time credit. However, the trial court highlighted aspects of the pre-sentence investigation report detailing Bowermaster's lengthy criminal history, which included committing offenses and serving three prison terms while supervised on community control, and being unsuccessfully discharged from postrelease control. The trial court further determined that Bowermaster was not amenable to community control.

         {¶5} Accordingly, the trial court imposed a prison term of nine months on Bowermaster for his conviction on each of the three Illegal use of a Minor in a Nudity-Oriented Material or Performance offenses and a thirty month prison term for his conviction on the Tampering with Evidence conviction. The trial court made the necessary findings to order the prison terms to be served consecutively for a total prison term of fifty-seven months. The trial court also classified Bowermaster as a Tier I sex offender for his three convictions for Illegal use of a Minor in a Nudity-Oriented Material or Performance.

         {¶6} Bowermaster filed this appeal, asserting the following assignments of error.

         ASSIGNMENT OF ERROR NO. 1

         THE TRIAL COURT ERRED IN ITS SENTENCE BECAUSE THE STATE IMPROPERLY INFLUENCED THE TRIAL COURT WHEN THE PROSECUTOR MADE INFLAMMATORY STATEMENTS AT SENTENCING THAT UNDERMINED THE PLEA RECOMMENDATION, AND DEPRIVED APPELLANT OF DUE PROCESS.

         ASSIGNMENT ...


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