[Cite as State v. Little, 2019-Ohio-745.]




                        IN THE COURT OF APPEALS OF OHIO
                            THIRD APPELLATE DISTRICT
                                WYANDOT COUNTY




STATE OF OHIO,
                                                            CASE NO. 16-18-06
        PLAINTIFF-APPELLEE,

        v.

JORDAN A. LITTLE,                                           OPINION

        DEFENDANT-APPELLANT.



                 Appeal from Wyandot County Common Pleas Court
                            Trial Court No. 18-CR-0004

                                        Judgment Affirmed

                               Date of Decision: March 4, 2019



APPEARANCES:

         Howard A. Elliot for Appellant

         Douglas Rowland for Appellee
Case No. 16-18-06


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Jordan Little (“Little”) brings this appeal from the

judgment of the Court of Common Pleas of Wyandot County sentencing him to an

aggregate prison term of eight years. On appeal Little challenges the trial court’s

compliance with Criminal Rule 11 and the imposition of consecutive sentences. For

the reasons set forth below, the judgment is affirmed.

       {¶2} On January 10, 2018, the Wyandot County Grand Jury indicted Little

on seven counts of Pandering Sexually Oriented Matter involving a Minor in

violation of R.C. 2907.322(A)(2), felonies of the second degree (counts 1-7), four

counts of Pandering Sexually Oriented Matter involving a Minor in violation of R.C.

2907.322(A)(5), felonies of the fourth degree (counts 8-11), and one count of Illegal

Use of a Minor in Nudity Oriented Material or Performance in violation of R.C.

2907.323(A)(5), a felony of the fourth degree (count 12). Doc. 1. On June 26, 2018,

a change of plea hearing was held. Doc. 22. At that time, Little agreed to enter a

plea of guilty to counts one and two and in exchange for the plea, the State agreed

to dismiss counts three through twelve. Doc. 21. In the written plea agreement,

Little was informed that he could be sentenced to basic prison terms of two to eight

years on each count. Id.      Little also was informed that there was no sentence

recommendation. Id. Additionally, Little was notified in the written agreement that

he was forfeiting his right to “use the power of the Court to call witnesses to testify



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for [him].” Id. At the hearing, the trial court held the following pertinent discussion

with Little.

       The Court: * * * Do you understand by pleading guilty you give
       up your right to a jury or court trial? At that trial, you have the
       right to be present, to be represented by counsel, and counsel at
       public expense if you cannot afford one?

       The Defendant: Yes, Your Honor.

       The Court: do you understand you give up your right to confront
       and have your attorney question the witnesses against you and
       you understand you do not have to call witnesses; however, if you
       needed to call them, you’re entitled to summon and have them
       present to testify on your behalf?

       The Defendant: Yes, Your Honor.

June 26, 2018 Tr. at 9-10. The trial court, following the dialogue with Little, found

the guilty “pleas to be knowingly, voluntarily, and intelligently given, and that

[Little] understood his Constitutional Rights as explained him.” Doc. 22 at 4. The

trial court then accepted the pleas of guilty to counts one and two of the indictment

and granted the State’s motion to dismiss counts three through twelve of the

indictment. Id. The trial court then ordered that a pre-sentence investigation (“PSI”)

be conducted. Id.

       {¶3} On August 28, 2018, a sentencing hearing was held. Doc. 27. The PSI

revealed that Little had no adult criminal record, but had previously been

adjudicated as a delinquent child. The trial court ordered Little to serve a prison

term of four years on each count with the sentences to be served consecutively for


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an aggregate sentence of eight years. Id. Little appeals from this judgment and on

appeal raises the following assignments of error.

                            First Assignment of Error

      The trial court erred when in accepting a plea of guilty from
      [Little], the court failed to follow the mandates of Criminal Rule
      11(C)(2) on the instruction of the defendant of [his] constitutional
      rights, thus [rendering] the plea invalid and precluding the court
      from accepting such plea and making a finding of guilty.

                           Second Assignment of Error

      The trial court [erred] in imposing consecutive sentences upon
      [Little] when it based its determination that under [R.C.
      2929.14(C)(4)(c) juvenile adjudications may be used to
      demonstrate that the offender has a history of criminal conduct.

      {¶4} In the first assignment of error, Little claims that the trial court failed to

comply with the requirements of Criminal Rule 11(C)(2).

      In felony cases the court may refuse to accept a plea of guilty * *
      *, and shall not accept a plea of guilty * * * without first
      addressing the defendant personally and doing all of the
      following:

      (a) Determining that the defendant is making the plea voluntarily,
          with understanding of the nature of the charges and of the
          maximum penalty involved, and, if applicable, that the
          defendant is not eligible for probation or for the imposition of
          community control sanctions at the sentencing hearing.

      (b) Informing the defendant of and determining that the
          defendant understands the effect of the plea of guilty * * *, and
          that the court, upon acceptance of the plea may proceed with
          judgment and sentence.

      (c) Informing the defendant and determining that the defendant
          understands that by the plea the defendant is waiving the

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Case No. 16-18-06


           rights to jury trial, to confront witnesses against him or her, to
           have compulsory process for obtaining witnesses in the
           defendant’s favor, and to require the state to prove the
           defendant’s guilt beyond a reasonable doubt at a trial at which
           the defendant cannot be compelled to testify against himself or
           herself.

Crim.R. 11(C)(2).

       {¶5} Little argues that the trial court failed to properly inform him of his right

to use compulsory process for obtaining witnesses in the defendant’s favor. As

indicated above, the trial court did inform Little that he had the right to summon

witnesses to testify on his behalf. This court has previously addressed this issue in

State v Welly, 3d Dist. Seneca No. 13-14-43, 2015-Ohio-2734. In Welly, the trial

court used the exact same language as was used in this case. Id. at ¶ 2. Welly argued

that the trial court’s statement that he was “entitled to summon witnesses” was not

sufficient to inform him of his right to compulsory process as required by Criminal

Rule 11(C)(2). Id. at ¶ 5. This court, relying upon the Ohio Supreme Court’s

holding in State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953, N.E.2d 826,

held that the terms “to summon” means to compel one’s appearance. Id. at ¶ 6.

“Thus, the use of the language summon witnesses does convey to the defendant that

he had the right to order witnesses to appear on his behalf” and complies with the

requirements of Criminal Rule 11(C)(2). Id. For this reason, the first assignment

of error is overruled.




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Case No. 16-18-06


      {¶6} Little argues in the second assignment of error that the trial court erred

by considering his juvenile adjudications of delinquent when imposing consecutive

sentences.   The imposition of consecutive sentences is governed by R.C.

2929.14(C)(4)

      If multiple prison terms are imposed on an offender for
      convictions of multiple offenses, the court may require the
      offender to serve the prison terms consecutively if the court finds
      that the consecutive service is necessary to protect the public from
      future crime or to punish the offender and that consecutive
      sentences are not disproportionate to the seriousness of the
      offender's conduct and to the danger the offender poses to the
      public, and if the court also finds any of the following:

      (a) The offender committed one or more of the multiple offenses
      while the offender was awaiting trial or sentencing, was under a
      sanction imposed pursuant to [R.C. 2929.16, 2929.17, or 2929.18]
      or was under post-release control for a prior offense.

      (b) At least two of the multiple offenses were committed as part of
      one or more courses of conduct, and the harm caused by two or
      more of the multiple offenses so committed was so great or
      unusual that no single prison term for any of the offenses
      committed as part of any of the courses of conduct adequately
      reflects the seriousness of the offender's conduct.

      (c) The offender's history of criminal conduct demonstrates that
      consecutive sentences are necessary to protect the public from
      future crime by the offender.

R.C. 2929.14(C)(4). “When imposing consecutive sentences, a trial court must state

the required findings as part of the sentencing hearing and by doing so it affords

notice to the offender and to defense counsel.” State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, ¶ 29, 16 N.E.3d 659.


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       {¶7} Little claims that since the juvenile adjudication was not a criminal

conviction, the trial court erred in considering it when it imposed consecutive

sentences. When exercising its discretion during felony sentencing, a trial court

must consider the statutory policies including those set forth in R.C. 2929.11 and

R.C. 2929.12. State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8-9.

Little argues that since the adjudication of delinquency is not a criminal conviction,

it should not be considered as such during sentencing. See State v. Hand, 149 Ohio

St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. This claim is a correct statement of the

law and an adjudication of delinquency may not be used to enhance the penalty for

a later crime. Id. However, the consideration of the juvenile adjudication in

fashioning an appropriate sentence is not only permitted, but is required by R.C.

2929.12(D-E). Thus, the consideration of this factor is not improper. Kerns at ¶14.

       {¶8} Here, the trial court imposed four-year prison terms on each offense.

These sentences are within the statutory range. The trial court found that the

Defendants actions were not victimless as by viewing child pornography, he is

encouraging the “industry” which harms “countless children”, some of which were

babies and toddlers. Doc. 27 at 3. The trial court noted that “viewing child porn is

not a mistake, it is a deliberate act that harms the most vulnerable citizens.” Id. The




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trial court then ordered that the sentences be served consecutively and made the

following findings in support of this sentence.1

         Consecutive sentences are necessary to protect the public from
         future crime or to punish the offender. Consecutive sentences are
         not disproportionate to the seriousness of the Defendant’s
         conduct and to the danger the offender poses to the public.
         Further, Defendant’s history of criminal conduct – juvenile and
         adult, demonstrates that consecutive sentences are necessary to
         protect the public from future crime by the Defendant. At least
         two of the multiple offenses were committed as part of one or
         more courses of conduct and the harm caused by two or more of
         the multiple offenses so committed was so great or unusual that
         no single prison term for any of the offenses committed as part of
         any of the courses of conduct adequately reflects the seriousness
         of the offender’s conduct.

Id. at 4. Thus, the trial court made all of the statutorily required findings. These

findings are supported by the record. Therefore, the trial court did not abuse its

discretion in requiring the sentences to be served consecutively. The second

assignment of error is overruled.

         {¶9} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Wyandot County Court of Common Pleas is affirmed.


                                                                                   Judgment Affirmed

ZIMMERMAN, P.J. and SHAW, J., concur.

/hls




1
  This court notes that the trial court could have imposed eight years on each of the offenses and then ordered
them to be served concurrently with the same aggregate prison term being reached.

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