[Cite as State v. Dewitt,
2012-Ohio-5162.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vsCase No. 12-CA-35
RYAN M. DEWITT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Common
Pleas Court, Case No. 11-CR-442
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 1, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT DAVID A. SAMS
Licking County Prosecutor Box 40
W. Jefferson, Ohio 43162
By: TRACY F. VAN WINKLE
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 12-CA-35 2
Hoffman, J.
{¶1} Defendant-appellant Ryan Dewitt appeals his conviction and sentence
entered by the Licking County Court of Common Pleas. Plaintiff-appellee is the state of
Ohio.
STATEMENT OF THE CASE1
{¶2} On March 13, 2012, Appellant entered a plea of no contest to one count of
gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4).
Prior to the plea, the state moved to amend the bill of particulars to reflect a sixty month
maximum term rather than the thirty-six month term originally stated. The trial court
granted the amendment. After accepting the plea, the trial court found Appellant guilty
of the charge, and sentenced Appellant to a term of thirty-six months in prison,
classifying him a Tier II sexual offender.
{¶3} Appellant now appeals, assigning as error:
{¶4} “I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS
UNDER THE STATE AND FEDERAL CONSTITUTIONS BY AN AMENDMENT OF
THE BILL OF PARTICULARS CONTRARY TO OHIO LAW WHICH SUBJECTED HIM
TO A GREATER MAXIMUM SENTENCE.
{¶5} “II. THE JUDGMENT IS BASED ON INSUFFICIENT EVIDENCE AND
THE VERDICT WAS OTHERWISE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS.
1
A rendition of the facts is unnecessary for our disposition of this appeal.
Licking County, Case No. 12-CA-35 3
{¶6} “III. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS BY A
SENTENCE WHICH WAS CONTRARY TO OHIO LAW AND THE STATE AND
FEDERAL CONSTITUTIONS.”
I.
{¶7} In the first assignment of error Appellant maintains he was denied due
process of law when the State amended the bill of particulars subjecting him to a
greater maximum sentence.
{¶8} Criminal Rule 7(E) states, in pertinent part,
{¶9} "(E) Bill of particulars
{¶10} "When the defendant makes a written request within twenty-one days after
arraignment but not later than seven days before trial, or upon court order, the
prosecuting attorney shall furnish the defendant with a bill of particulars setting up
specifically the nature of the offense charged and of the conduct of the defendant
alleged to constitute the offense. A bill of particulars may be amended at any time
subject to such conditions as justice requires." (Emphasis added.)
{¶11} Here, the state moved to amend the bill of particulars prior to Appellant's
entering his plea. Appellant did not object to the amendment. Furthermore, Appellant
suffered no prejudice as his sentence did not exceed the thirty-six month term set forth
in the original, unamended bill of particulars. Appellant has not demonstrated his plea
was other than knowing, voluntary and intelligent. The State sentenced Appellant within
the statutory range for the offense, and the parameters set forth in the bill of particulars.
{¶12} Appellant's first assignment of error is overruled.
Licking County, Case No. 12-CA-35 4
II.
{¶13} In the second assignment of error, Appellant argues the judgment is
based upon insufficient evidence and the verdict is against the manifest weight of the
evidence. Specifically, Appellant asserts the State's rendition of the facts during the
plea hearing failed to allege he acted with a purpose to sexually gratify.
{¶14} In entering a plea of no contest, Appellant waives all but plain error. State
v. Barnes, 94 Ohio St.3d 21,
2002-Ohio-68. Accordingly, there must be an error, which
is an obvious defect in the trial proceedings, affecting a substantial right of the
Appellant.
Id. The burden of proving plain error falls upon Appellant, and he must
demonstrate the outcome would have been different absent the error.
{¶15} In entering a plea of no contest, Appellant admitted to those facts in the
indictment as true. A criminal defendant who has pleaded no contest to a charge
cannot later challenge his conviction on the grounds it was against the manifest weight
of the evidence. State v. Jackson Ninth App. Dist. Nos. 24463, 24501, 2009-Ohio-4336.
The conviction following a no contest plea does not derive from evidence adduced at
trial, but from the no contest plea itself, which is an admission of the truth of the facts
alleged in the indictment. State v. Hall, Second Dist. App. No. 23488.
2009-Ohio-6390.
Therefore, a conviction based upon a no contest plea is not amenable to review on
appeal to see whether it is against the manifest weight of the evidence.
Id.
{¶16} In State v. Dereese, Fifth App. No. 09CA11, 2009-Ohio-6725, this Court
found, "a plea of no contest constitutes an admission of the facts alleged in the
indictment and waives any argument concerning the sufficiency of the evidence."
Licking County, Case No. 12-CA-35 5
{¶17} Assuming arguendo Appellant's argument was not waived by his plea of
no contest, we find the trier of fact was free to infer Appellant’s sexual motivation in
making physical contact with the victim.
{¶18} Appellant's second assignment of error is overruled.
III.
{¶19} In the third assignment of error, Appellant asserts his sentence is contrary
to law. Appellant maintains Ohio law required he be sentenced to the minimum term of
twelve months in prison.
{¶20} Initially, we note, Appellant never entered an objection to the imposition of
the thirty-six month prison sentence.
{¶21} Additionally, Appellant was sentenced within the range of terms for the
offense charged, and cannot now demonstrate plain error.
{¶22} In State v. Little, Fifth App. Dist. No. CT2011-0057, 2012-Ohio-2895, this
Court held,
{¶23} "As set forth above, Appellant entered a plea to sexual battery, in violation
of R.C. 2907.03(A)(1). H.B. 86 did not amend or change the statute for which Appellant
was convicted. Further, H.B. 86, Section 4 does not specifically include sexual battery
as one of the offenses for which the legislation is to be applied retroactively.
{¶24} "Accordingly, we find Appellant's argument the trial court was required to
comply with the requirements of H.B. 86 in issuing Appellant's sentence herein is not
well taken.
{¶25} "The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–
Ohio–4912 set forth a two step process for examining felony sentences. The first step is
Licking County, Case No. 12-CA-35 6
to ‘examine the sentencing court's compliance with all applicable rules and statutes in
imposing the sentence to determine whether the sentence is clearly and convincingly
contrary to law.’
Kalish at ¶ 4. If this first step ‘is satisfied,’ the second step requires the
trial court's decision be ‘reviewed under an abuse-of-discretion standard.’
Id.
{¶26} "The relevant sentencing law at the time of sentencing herein was
controlled by the Ohio Supreme Court's decision in State v. Foster, i.e. ‘ … trial courts
have full discretion to impose a prison sentence within the statutory range and are no
longer required to make findings or give their reasons for imposing maximum,
consecutive, or more than the minimum sentences.’ 109 Ohio St.3d 1, 30, 2006–Ohio–
856 at ¶ 100,
845 N.E.2d 470, 498.
{¶27} "Upon review of Appellant's sentence, the same is within the parameters
for the offense and does not amount to an abuse of discretion. We find the record fails
to demonstrate the trial court failed to give careful and substantial deliberation to the
relevant statutory considerations."
{¶28} As in Little, the charge for which Appellant was sentenced was not
enumerated within H.B. 86; therefore, pursuant to Kalish, supra, we find the trial court
properly considered the principles and factors necessary in imposing the sentence
herein. The sentence was within the statutory range for the offense. We find the trial
court did not abuse its discretion in sentencing Appellant to the term imposed.
{¶29} The third assignment of error is overruled.
Licking County, Case No. 12-CA-35 7
{¶30} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
Licking County, Case No. 12-CA-35 8
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RYAN M. DEWITT :
:
Defendant-Appellant : Case No. 12-CA-35
For the reasons stated in our accompanying Opinion, the judgment of the Licking
County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
