[Cite as State v. Miller,
2012-Ohio-2132.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 7-11-21
v.
KEVIN L. MILLER, OPINION
DEFENDANT-APPELLANT.
Appeal from Henry County Common Pleas Court
Trial Court No. 01CR071
Judgment Vacated
Date of Decision: May 14, 2012
APPEARANCES:
Gregory L. VanGunten for Appellant
John H. Hanna for Appellee
Case No. 7-11-21
ROGERS, J.
{¶1} Although originally placed on our accelerated calendar, we elect,
pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.
{¶2} Defendant-Appellant, Kevin Miller (“Miller”), appeals the judgment
of the Court of Common Pleas of Henry County designating him a sexual predator
under former R.C. 2950.09. On appeal, Miller argues that insufficient evidence
was presented to establish that he was a sexual predator, and that the trial court’s
eight-year delay between the classification hearing and the judgment entry
determining the sexual predator status is unconstitutional. Finding that the delay
was unreasonable and that the trial court was divested of jurisdiction to enter such
a finding, we reverse the judgment of the trial court.
{¶3} In December 2001, Miller pled guilty to three counts of gross sexual
imposition. The State sought to classify Miller as a sexual predator. During the
evidentiary hearing on the matter, the State presented no testimony but submitted a
copy of the police report, a copy of the social worker’s report, cards, and a rock
given by Miller to the victim. Miller presented the testimony of his minister
concerning the progress he had made in counseling. In February 2002, the trial
court held a sentencing and sexual predator classification hearing. At the hearing,
the trial court, after hearing evidence and reading the presentence investigation,
ruled that Miller was a sexual predator and sentenced him to five years’
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community control sanctions. Miller appealed the trial court’s entry designating
him a sexual predator, arguing insufficient evidence. On appeal, this court
reversed and remanded for further proceedings as the trial court failed to discuss
on the record the particular evidence that formed the basis of its decision as
required by State v. Eppinger, 91 Ohio St.3d 158 (2001).
{¶4} On remand, the trial court held a second evidentiary hearing in May
2003 to determine Miller’s sexual predator status. In October 2011, the trial court,
sitting “[b]y [a]ssignment” evaluated the evidence introduced at the 2003 hearing
and again classified Miller a sexual predator. Judgment Entry, Docket No. 25. It
is from this judgment Miller appeals, asserting the following as error for our
review.
Assignment of Error No. I
THE EVIDENCE IS INSUFFICIENT, AS A MATTER OF
LAW, TO PROVE “BY CLEAR AND CONVINCING
EVIDENCE” THAT APPELLANT “IS LIKELY TO ENGAGE
IN THE FUTURE IN ONE OR MORE SEXUALLY
ORIENTED OFFENSES.[”]
Assignment of Error No. II
THE DELAY OF OVER EIGHT YEARS IN DECIDING THE
STATUTORY CLASSIFICATION OF THIS OFFENDER
VIOLATED HIS RIGHTS UNDER THE OHIO
CONSTITUTION, ARTICLE I, §16.
{¶5} As the second assignment of error is dispositive, we elect to address it
first.
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Case No. 7-11-21
Assignment of Error No. II
{¶6} In his second assignment of error, Miller argues that the eight-year
delay between the time of the R.C. 2950.09 sexual predator classification hearing
and the judgment entry on the matter violates Crim.R. 32(A) and Art.I § 16 of the
Ohio Constitution, Ohio’s due process clause.
{¶7} We hold that the sexual predator classification is void as the trial court
was divested of jurisdiction. First, the delay was unjustified, lengthy, and
unreasonable. Art. I § 16 of the Ohio Constitution provides that justice shall be
administered without denial or delay. Crim.R. 32(A) mandates that “sentence
shall be imposed without unnecessary delay.” In Neal v. Maxwell, the Ohio
Supreme Court held that a reasonable delay in imposing sentence does not
invalidate a sentence. 175 Ohio St. 201, 202 (1963). Subsequently, appellate
courts have held that a delay in sentencing must be reasonable in order to be valid
and that any unreasonable delay invalidates the sentence. State v. Brown,
152
Ohio App.3d 8,
2003-Ohio-1218 (7th Dist.); State v. Johnson, 12th Dist. No.
CA2002-07-016,
2003-Ohio-6261 (more than six-year delay between guilty plea
and sentence divested trial court of jurisdiction to sentence defendant); Warren v.
Ross,
116 Ohio App.3d 275 (11th Dist. 1996) (without an explanation for delay,
trial court lost jurisdiction to revoke defendant’s driver’s license as more than four
years elapsed between the conviction and the order purporting to revoke the
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license); City of Willoughby v. Lukehart, 39 Ohio App.3d 74 (11th Dist. 1987)
(without a substantive reason, the trial court was divested of jurisdiction to impose
sentence as a sixteen-month delay between the time of arrest and sentencing was
unjustified and lengthy).
{¶8} Although this case is factually distinguishable from the foregoing, the
reasoning is nonetheless instructive. In the instant case, Miller is challenging not
the delay in time before the sentence was imposed, but the nearly eight-and-one-
half-year delay in classifying him a sexual predator. As the trial court provided no
reasonable justification for the delay on the record, we find this delay
unreasonable and unjustifiable. Accordingly, the trial court was divested of
jurisdiction over the matter.
{¶9} Secondly, the trial court no longer had jurisdiction to deem Miller a
sexual predator in 2011 because he had completed his sentence. Once a defendant
completes serving his or her sentence, the authority of the trial court terminates.
See State v. Harrison, 122 Ohio St.3d 512,
2009-Ohio-3547, ¶ 34-37 (the trial
court’s authority to impose mandatory post-release control ended when defendant
completed his original incarceration), citing State v. Simpkins,
117 Ohio St.3d 420,
2008-Ohio-1197, State v. Bezak,
114 Ohio St.3d 94,
2007-Ohio-3250, Hernandez
v. Kelly,
108 Ohio St.3d 395,
2006-Ohio-126.
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Case No. 7-11-21
{¶10} In February 2002, Miller was sentenced to five years’ community
control sanctions. Miller undeniably completed serving his sentence in 2007.
Four years later, when Miller was ultimately deemed a sexual predator, the trial
court no longer had authority over the matter. Accordingly, we hold that the
sexual predator classification is void. Ruling otherwise would condone an
indefinite jurisdiction of the trial court over all matters before it, which contradicts
our aspirations of an efficient and effective judiciary as well as resolving cases
without unreasonable delay.
{¶11} Thirdly, the trial court lacked authority to preside over the matter and
issue an entry as he was improperly assigned. Art. IV § 6(C) of the Ohio
Constitution provides for the assignment of a retired judge to serve as an acting
judge. The assignment is made by the chief justice or acting chief justice of the
Ohio Supreme Court. Ohio Const. Art. IV § 6(C). In this case, the decision and
judgment entry were signed and entered by the trial court “[b]y
[a]ssignment.” Docket No. 25. The record reveals, however, that there was no
assignment by the Supreme Court of Ohio. Therefore, the assigned trial judge
lacked jurisdiction over the matter due to the erroneous assignment, and the sexual
predator classification is void.
{¶12} In light of the foregoing analysis, we sustain Appellant’s second
assignment of error.
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Case No. 7-11-21
Assignment of Error No. I
{¶13} In his first assignment of error, Miller argues that the evidence
introduced at the second hearing failed to establish by clear and convincing
evidence that he was likely to engage in future sexually oriented offenses and
therefore, the trial court erred in determining that he was a sexual predator. Due to
the resolution of the second assignment of error, this assignment is moot and we
decline to address it. App.R. 12(A)(1)(c).
{¶14} Having found error prejudicial to Appellant herein, in the particular
assigned and argued in the second assignment of error, we vacate the judgment of
the trial court.
Judgment Vacated
SHAW, P.J. and PRESTON, J., concur.
/jlr
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