[Cite as State v. Crawford, 2018-Ohio-1188.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105738




                                      STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    JOHN CRAWFORD

                                                          DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-596358-A

        BEFORE:          Jones, J., McCormack, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: March 29, 2018
ATTORNEY FOR APPELLANT

Myriam A. Miranda
P.O. Box 40222
Bay Village, Ohio 44140


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Mary Weston
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

         {¶1} Defendant-appellant John Crawford (“Crawford”) appeals his conviction and

sentence for sexual battery, rape, and unlawful sexual conduct with a minor.      Finding no

merit to the appeal, we affirm.

         {¶2} In 2015, Crawford was charged in a 18-count indictment with multiple counts

of rape, kidnapping, complicity to commit rape, and unlawful sexual conduct with a

minor.     The matter proceeded through a long and arduous pretrial process related to

Crawford’s desire to switch attorneys.         Crawford finally agreed to plead guilty to one

count of sexual battery, with the named victim J.G.; one count of rape, with the named

victim L.R.; and one count of unlawful sexual conduct with a minor, with the named

victim S.T.    As part of the plea agreement, Crawford agreed to be classified as a sexual

predator for purposes of his sex offender registration duties under Megan’s Law, and was

advised that upon his release from prison he will have to register as a sex offender every

90 days for the rest of his life. Crawford also agreed that he would not be eligible for

judicial or any other type of early release.

         {¶3} During the plea hearing, the state explained that Crawford’s convictions for

sexual battery and unlawful sexual conduct with a minor were subject to the sexual

offender registration requirements under Megan’s Law because the crimes occurred

before January 1, 2008.     The state further explained that his conviction for rape was

subject to the registration requirements under the Adam Walsh Act because the crime

occurred after January 1, 2008.
       {¶4} The trial court engaged in a colloquy with Crawford and informed him of his

constitutional rights, the nature of the charged offenses, and the consequences of the plea

agreement, including the maximum possible penalties.      The trial court advised Crawford

of:   (a) the right to counsel; (b) the right to a trial by jury; (c) the right to confront

witnesses; (d) the right to compulsory process via the subpoena power; (e) the right to

have the state prove the case beyond a reasonable doubt; and (f) the right not to testify

against himself.

       {¶5} When asked, Crawford informed the court that he understood his rights and

the penalties that he was facing, he could read and write, and he was not under the

influence of any drugs, medication, or alcohol.      He further stated he had not been

promised anything, threatened, or coerced in connection with the plea, and was satisfied

with the representation of his attorney.

       {¶6} At the sentencing hearing, the trial court reviewed the state’s sentencing

memorandum, which requested the maximum possible penalty and informed the parties

that the maximum possible penalty was 17½ years incarceration, not 18½ years as had

been indicated at the time of the plea.

       {¶7} J.G. was present in court at the time of the sentencing.    The state told the

court that J.G. had been diagnosed with post-traumatic stress disorder as a result of the

assault, suffered from nightmares and had trouble sleeping, and still needed counseling

more than ten years after the assault occurred in 2004.     The state read into the record

J.G.’s and L.R.’s victim impact statements.      J.G. described herself as “broken” and
emotionally damaged.       L.R.’s statement noted that she suffered to this day as a result of

the assault, had difficulty communicating and having relationships with males, was afraid

of the dark, crowds, and cars that looked like Crawford’s, and could not talk about the

assault with her family or therapist.

         {¶8} The court stated that it had considered the record, the presentence

investigation report, the statements made at the sentencing hearing, the state’s sentencing

memorandum, the victim impact statements, and all other information provided to the

court.

         {¶9} In sentencing Crawford, the trial court stated the following:

         My role here today is to punish you for the crimes that you pled to, to
         protect the public from future crimes.

         ***

         The court must and has formulated its decision based upon the overriding
         principles and purposes of felony sentencing, namely to protect the public
         from future crime by the defendant and to punish the offender using the
         minimum sanctions the court determines accomplishes those purposes
         without imposing an unnecessary burden on state or local government.

         To achieve these purposes, the court has considered the need for

         incapacitation, deterrence and rehabilitation. This court has also considered

         the seriousness and recidivism factors relevant to the offense and the

         offender. * * * The court has considered the offender’s conduct is more

         serious than conduct normally constituting the offense, because of the

         physical and mental injuries suffered by the victim[s] of the offense, due to

         the conduct of the offender, was exacerbated because of the physical and
      mental condition or age of the victims. The victims of the offenses suffered

      serious physical, psychological harm as a result of the offense.

      * * * You have a lengthy history of committing such crimes and have
      admittedly stated that you’ve “wronged a thousand women.” You have a
      high likelihood to re-offend.

      The court must and has insured that the sentence being imposed does not
      demean the seriousness of the crime and the impact that it has on the
      victims, and is consistent with other similar offenses committed by like
      offenders.

      * * * The court has determined that a prison sentence is necessary to protect
      the public and does not demean the seriousness of the offense.

      {¶10} The trial court imposed a maximum, consecutive sentence of 17½            years

and made the following findings in support of consecutive sentences:

      Your sentences are consecutive because the court finds that your history
      demonstrates a consecutive sentence is necessary to protect the public. A
      single term is not sufficient to protect the public from you, and will demean
      the seriousness of the crime. The harm that you caused is so severe that it
      has to be punished in this manner.
      With regard to the consecutive sentences, the court made that finding and
      sentenced you to consecutive sentences in order to punish you and your
      conduct and protect the public from future crime, and a consecutive
      sentence is not disproportionate to the seriousness of the conduct and the
      danger imposed by you, and that your history demonstrates that consecutive
      sentences are necessary to protect the public.

      {¶11} Crawford filed a notice of appeal.      In his appeal he raises the following

assignments of error for our review:

      I: The trial court erred when it proceeded on an indictment that was void
      for vagueness, which did not provide sufficient notice to Appellant in
      violation of his constitutional and statutory rights.

      II: The trial court erred when it arbitrarily chose to sentence Appellant in
      count one under the new sentencing provisions while, at the same time,
       applying Megan’s Law registration requirements.

       III: The sentence imposed was not supported by the record and is contrary
       to law as it violates the ex post facto clauses of the Ohio and U.S.
       Constitutions.

       IV: Appellant’s plea was not entered in accordance with Crim. R. 11.

       {¶12} In the first assignment of error, Crawford challenges his indictment by

arguing that it was void for vagueness because it failed to give him proper notice as to the

offenses he was accused of and their consequences.         Specifically,   Crawford claims that

because Count 1 of the indictment, which charged him with the rape of J.G., gave a date

range of December 22, 2004, to May 26, 2014, it was too vague for him to know the

specific date of his alleged offense.

       {¶13} In Ohio, a person accused of a felony is entitled to receive an indictment

setting forth the “nature and cause of the accusation pursuant to Section 10, Article I of

the Ohio Constitution and the Sixth Amendment to the United States Constitution.”

State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781 (1985).

       {¶14} Our review of the indictment shows that the date range of the offenses in the

18-count indictment spans from December 22, 2004, to May 26, 2014. Counts 1 and 2

state that the date of the offenses was “[o]n or about December 22, 2004.”         Counts 3, 4,

5, 6, and 7 state that the date of the offenses was “[o]n or about April 1, 2005.” Counts

9, 10, 11, 17 and 18 state that the date of the offenses was “[o]n or about May 26, 2014.”1

       {¶15} The indictment clearly states that Count 1 was alleged to have occurred on

       1
           Counts 12 – 16 name another defendant, Yvon Norton.
or about December 22, 2004.        Crawford’s argument is without merit and the first

assignment of error is accordingly overruled.

       {¶16} In the second assignment of error, Crawford contends that the trial court

erred when it sentenced him under “new sentencing provisions instead of the provisions

of S.B. 2” for Count 1. This argument centers around Crawford’s contention in the first

assignment of error that the date range assigned to Count 1 spanned from December 22,

2004 to May 26, 2014.

       {¶17} Effective July 1, 1997, Ohio enacted Megan’s Law.        Under Megan’s Law,

an offender who had been sentenced to a prison term for a sexually oriented crime is

required to register as a sex offender. In re Von, 146 Ohio St.3d 448, 2016-Ohio-3020,

57 N.E.3d 1158, ¶ 14.     Effective January 1, 2008, Ohio enacted the Adam Walsh Act,

which repealed Megan’s Law.          Id. at ¶ 15.     Only offenders who commit their

underlying offense(s) on or after the effective date of the Adam Walsh Act can be

constitutionally subjected to its requirements. Id. at ¶ 17.

       {¶18} As we discussed in the first assignment of error, the date Count 1 was

alleged to have occurred was on or about December 22, 2004.        The trial court classified

Crawford under Megan’s Law, not the Adam Walsh Act, for that crime.           Therefore, the

trial court did not err in classifying Crawford under the law that was applicable at the time

of his offense.   We further note that Crawford, as part of his plea agreement, agreed to

be classified as a sexual predator under Megan’s Law.

       {¶19} Crawford also argues that the trial court should have sentenced him under
Am.Sub.S.B. No. 2 (“S.B. 2”) instead of the new sentencing provisions because his crime

occurred prior to the enactment of the new sentencing provisions under Am.Sub.H.B. 86

(“H.B. 86”).   We disagree.

      {¶20} R.C. 1.58(B) provides: “If the penalty, forfeiture, or punishment for any

offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or

punishment, if not already imposed, shall be imposed according to the statute as

amended.” H.B. 86 contains uncodified law addressing the effect of R.C. 1.58(B) on its

new sentencing provisions. The uncodified law of H.B. 86 provides for the application

of R.C. 1.58(B), specifying that if the potential sentence for an offense was reduced under

H.B. 86, then R.C. 1.58(B) would apply to give the benefit of the reduced sentence to

offenders who had not yet been sentenced.

      {¶21} In Count 1, Crawford pleaded guilty to an amended charge of sexual battery,

a felony of the third degree, and was sentenced to 60 months in prison. Under S.B. 2,

Crawford could have been sentenced to a term of one to five years in yearly increments

for that crime. Under H.B. 86, Crawford was subject to imprisonment for 12, 18, 24, 30,

36, 42, 48, 54, or 60 months in prison. Thus, Crawford was subject to less time in prison

under H.B. 86 if he was given more than the minimum sentence of 12 months, e.g.,

Crawford could have been sentenced to 18 months under H.B. 86 instead of two years

under S.B. 2, or to 30 months under H.B. 86 instead of three years under S.B. 2, and so

on.

      {¶22} Since the passage of H.B. 86, Ohio courts have routinely held that
defendants in positions like Crawford who committed crimes prior to H.B. 86’s effective

date of September 30, 2011, but were penalized after its effective date, are to be

sentenced under the H.B. 86 amendments. State v. Jackson, 8th Dist. Cuyahoga No.

100877, 2014-Ohio-5137, ¶ 35, citing State v. Limoli, 140 Ohio St.3d 188,

2014-Ohio-3072, 16 N.E.3d 641; see also State v. Frost, 8th Dist. Cuyahoga No. 102376,

2015-Ohio-4493; but see State v. Johnson, 9th Dist. Summit No. 26788, 2013-Ohio-4680,

¶ 8 (holding that an offender who had committed a first-degree felony after the effective

date of S.B. 2, but prior to the effective date of H.B. 86, and who was sentenced after the

effective date of H.B. 86, faced a maximum penalty of 10 years imprisonment, not an

11-year sentence under H.B. 86).

       {¶23} Thus, we find that the trial court did not err in sentencing Crawford under

the sentencing provisions of H.B. 86.

       {¶24} The second assignment of error is overruled.

       {¶25} In the third assignment of error, Crawford claims that his sentence was

contrary to law.

       {¶26} When reviewing Crawford’s felony sentence, this court may increase,

reduce, modify a sentence, or vacate and remand for resentencing if we clearly and

convincingly find that the record does not support the sentencing court’s statutory

findings under R.C. 2929.14(B)(2), or the sentence is contrary to law. R.C.

2953.08(G)(2).     A sentence is contrary to law if (1) the sentence falls outside the

statutory range for the particular degree of offense, or (2) the trial court failed to consider
the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the

sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist. Cuyahoga No. 102710,

2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206,

2014-Ohio-1520, ¶ 13.

      {¶27} Courts have “full discretion” to impose a sentence within the applicable

statutory range. State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15,

citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph

seven of the syllabus. Therefore, a sentence imposed within the statutory range is

“presumptively valid” if the court considered the applicable sentencing factors. Id.

      {¶28} Crawford contends that the court failed to consider the minimum sentence

necessary under R.C. 2929.11(A).    We disagree.

      {¶29} R.C. 2929.11(A) provides:

      A court that sentences an offender for a felony shall be guided by the
      overriding purposes of felony sentencing. The overriding purposes of felony
      sentencing are to protect the public from future crime by the offender and
      other and to punish the offender using the minimum sanctions that the court
      determines accomplish those purposes without imposing an unnecessary
      burden on state or local government resources. To achieve those purposes,
      the sentencing court shall consider the need for incapacitating the offender,
      deterring the offender and others from future crime, rehabilitating the
      offender, and making restitution of the victim of the offense, the public, or
      both.

      {¶30} This court has held that “[a]lthough the trial court must consider the

principles and purposes of sentencing as well as the mitigating factors, the court is not

required to use particular language or make specific findings on the record regarding its

consideration of those factors.”    State v. Carter, 8th Dist. Cuyahoga No. 103279,
2016-Ohio-2725, ¶ 15.

       {¶31} Our review of the record confirms the trial court considered the factors and

the principles and purposes of sentencing.     The trial court stated at the sentencing

hearing and in the sentencing journal entry that it considered the required statutory

factors.   The court noted that it considered the record, statements made during the

sentencing hearing, the presentence investigation report, victim impacts statements, and

“all other information provided and relied upon” before passing sentence.          Before

determining that a prison sentence was necessary to protect the public and did not demean

the seriousness of the offenses, the court stated that it had considered: (1) the need for

incapacitation, deterrence and rehabilitation; (2) the seriousness and recidivism factors

relevant to the offense and Crawford; (3) the victims of the offenses suffered serious

physical, psychological harm as a result of the offense; (4) Crawford’s conduct was more

serious than conduct normally constituting the offense because of the physical and mental

injuries suffered by the victim of the offense; (5) the crimes spanned over a long time

period; and (6) Crawford’s criminal history.

       {¶32} Finally, Crawford contends that the trial court did not support its reasoning

as to why it was imposing consecutive sentences. But Crawford concedes that the trial

court made the necessary findings to impose consecutive sentences.      As mentioned, a

trial court is not required to use magic words in sentencing an offender to consecutive

sentences.   In this case, the trial court determined that consecutive sentences were

appropriate because Crawford’s criminal history demonstrated that consecutive sentences
are necessary to protect the public; a single term was not sufficient to protect the public

and would demean the seriousness of the crime; the harm that he caused was so severe

that consecutive sentences were necessary; consecutive sentences were necessary in order

to punish Crawford; and, finally, consecutive sentences were not disproportionate to the

seriousness of the conduct and the danger he imposed.

       {¶33} In light of the above, Crawford’s sentence was supported by the record and

was not contrary to law.     Further, the trial court did not err in sentencing him to

consecutive sentences.   The third assignment of error is overruled.

       {¶34} In the fourth assignment of error, Crawford claims that his plea was not

entered in accordance with Crim.R. 11.    We disagree.

       {¶35} Under both the United States and Ohio Constitutions, a guilty plea must be

made knowingly, intelligently, and voluntarily to be valid. State v. Engle, 74 Ohio St.3d

525, 527, 660 N.E.2d 450 (1996).     Therefore, before accepting a defendant’s guilty plea,

the trial court must address the defendant personally to inform the defendant of the

constitutional rights he or she is waiving by pleading guilty. Crim.R. 11(C)(2). The

court must also determine that the defendant understands the nature of the charges, the

maximum penalty, and the effects of the plea. Id.; State v. Montgomery, 148 Ohio St.3d

347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 41.

       {¶36} There are two levels of compliance with Crim.R. 11(C):              strict and

substantial. A court must strictly comply with the rule when explaining the defendant’s

constitutional rights or the plea is invalid under the presumption that it was not knowingly
and voluntarily entered.       State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893

N.E.2d 462, ¶ 31. For nonconstitutional rights, substantial compliance is sufficient. Id.

 “Substantial compliance means that under the totality of the circumstances the defendant

subjectively understands the implications of his [or her] plea and the rights he [or she] is

waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

          {¶37} In this case, the transcript establishes that the trial court engaged in a full

and complete colloquy with Crawford concerning his plea, as required by Crim.R. 11(C).

 The trial court strictly complied with Crim.R. 11(C)(2)(c) by providing explanations of

each of the constitutional rights Crawford waived by entering a plea, and Crawford

indicated that he understood each right and, by pleading guilty, that he was waiving those

rights.

          {¶38} The trial court also substantially complied with Crim.R. 11(C)(2)(a) and (b).

 The court ensured that Crawford knew the degree of the offense, the maximum penalty

and fine for the offense, the sex offender classification attached to the offense, and the

consequences of being classified as a sex offender. Although Crawford was mistakenly

told that he faced an 18½-year-term of imprisonment, when the maximum term he faced

was 17½ years, Crawford has not shown how this mistake prejudiced him. Moreover,

this court has routinely held that such a misstatement does not prejudice a defendant.

State v. Richmond, 8th Dist. Cuyahoga No. 104713, 2017-Ohio-2656, ¶ 22; see also State

v. Davis, 8th Dist. Cuyahoga No. 101338, 2015-Ohio-178.                If the trial court had

informed Crawford that the maximum penalty he could receive for his           crimes was 18½
years in prison and then sentenced him to that maximum, our analysis would be different

and we would be more inclined to find prejudice. See Richmond at ¶ 21.

       {¶39} The record demonstrates that the trial court complied with the requirements

of Crim.R. 11(C)(2) and, based on the totality of the circumstances, Crawford understood

the implications of his plea and the rights he waived.            We find, therefore, that

Crawford’s guilty pleas were made voluntarily, knowingly, and intelligently and his

fourth and final assignment of error is overruled.

       {¶40} The trial court did not err in proceeding on the indictment as charged,

accepting Crawford’s guilty pleas, in classifying Crawford as a sexual predator, or in

sentencing him to 17½ years in prison.

       {¶41} Accordingly, the judgment is affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE
TIM McCORMACK, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
