[Cite as State v. Merkle, 2017-Ohio-8802.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2016-G-0103
        - vs -                                  :

TYLER P. MERKLE,                                :

                 Defendant-Appellant.           :


Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2016 C
000061.

Judgment: Affirmed.


James R. Flaiz, Geauga County Prosecutor, Courthouse Annex, 231 Main Street,
Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee).

Richard J. Perez, Rosplock & Perez, Interstate Square Building I, 4230 State Route
306, #240, Willoughby, OH 44094 (For Defendant-Appellant).




COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Tyler P. Merkle, appeals from the October 31, 2016 judgment of

the Geauga County Court of Common Pleas, sentencing him on four counts of sexual

battery involving an underage student and labeling him a Tier III sex offender following a

guilty plea. On appeal, appellant raises a constitutional challenge and takes issue with

his 60-month prison sentence. Finding no reversible error, we affirm.
       {¶2}     Appellant was employed as a study hall aide, tutor, and athletic coach at

Chardon High School. Appellant, who was 26 years old at the time, began a sexual

relationship with a 15 year old female student between December 2015 and April 2016.

Appellant exchanged love notes, cell phone communications, and pictures.

       {¶3}     On May 24, 2016, the Geauga County Grand Jury indicted appellant on

twelve counts: counts one through ten, sexual battery, felonies of the third degree, in

violation of R.C. 2907.03(A)(7); count eleven, illegal use of a minor in nudity oriented

material or performance, a felony of the second degree, in violation of R.C.

2907.323(A)(1); and count twelve, illegal use of a minor in nudity oriented material or

performance, a felony of the fifth degree, in violation of R.C. 2907.323(A)(3). Appellant

was represented by counsel, pleaded not guilty to all charges, and waived his right to a

speedy trial.

       {¶4}     On August 24, 2016, appellant withdrew his not guilty plea and entered

into a plea agreement with appellee, the state of Ohio. Appellant pleaded guilty to

counts one through four, sexual battery, felonies of the third degree, in violation of R.C.

2907.03(A)(7).     The parties agreed that counts one through four do not merge for

purposes of sentencing. The trial court accepted appellant’s guilty plea, dismissed the

remaining charges, and referred the matter to the Adult Probation Department for a

presentence investigation and report.

       {¶5}     On October 31, 2016, the trial court sentenced appellant to 60 months in

prison on each of the four sexual battery counts, to be served concurrently, for a total

sentence of 60 months, and imposed a monetary fine. The court notified appellant that

post-release control is mandatory for five years. The court further classified appellant




                                             2
as a Tier III sex offender.1 Appellant filed a timely appeal and raises the following four

assignments of error:

        {¶6}    “[1.] Ohio Revised Code Section 2950.01 is in violation of appellant’s

constitutional rights under the Ohio and United States Constitution, as such, R.C.

2950.01 is unconstitutional.

        {¶7}    “[2.] Ohio Revised Code Section 2950.01 is in violation of appellant’s due

process rights under the Ohio and United States constitution, as such, R.C. 2950.01 is

unconstitutional.

        {¶8}    “[3.] Ohio Revised Code Section 2950.01 is in violation of appellant’s

Eighth Amendment rights under the Ohio and United States constitutions, as such, R.C.

2950.01 is unconstitutional.

        {¶9}    “[4.] The trial court erred when it sentenced appellant in a manner

inconsistent and disproportionate with other, similar Ohio cases and the sentences of

[h]is co-defendants.”

        {¶10} In his first assignment of error, appellant argues that R.C. 2950.01 violates

his constitutional rights. Appellant asserts there is no rational basis in protecting the

public from sex offenders by labeling individuals convicted of sexual battery under R.C.

2907.03 automatically with a Tier III status. Appellant further asserts that the statute

prohibiting sexual conduct between a student and a teacher, administrator, coach, or

other person in authority employed by or serving in a school and the application of R.C.

2950.01 to that violation is not rationally related to a legitimate governmental purpose.




1. Appellant’s counsel had objected to the lifetime reporting requirement on constitutional grounds.


                                                     3
       {¶11} “The constitutionality of a statute is a matter of law which an appellate

court reviews de novo.” State v. Jenson, 11th Dist. Lake No. 2005-L-193, 2006-Ohio-

5169, ¶5.

       {¶12} Statutes are presumed constitutional. State v. Noling, 149 Ohio St. 3d

327, 2016-Ohio-8252, ¶9. Regarding an equal protection argument, “[b]efore a court

may declare unconstitutional an enactment of the legislative branch, ‘it must appear

beyond a reasonable doubt that the legislation and constitutional provisions are clearly

incompatible.’” ‘(Citations omitted.) Arbino v. Johnson & Johnson, 116 Ohio St.3d 468,

2007-Ohio-6948, * * *, ¶25. The rational-basis ‘test requires that a statute be upheld if it

is rationally related to a legitimate government purpose. (* * *) Under such a review, a

statute will not be invalidated if it is grounded on a reasonable justification, even if its

classifications are not precise. (* * *).’ (Parallel citation omitted.) Id. at ¶66.” (Parallel

citation omitted.) State v. Valentyn, 11th Dist. Lake No. 2015-L-072, 2015-Ohio-4834,

¶8.

       {¶13} “* * * Ohio’s classification of sexual offenders was altered by the passage

of Senate Bill 10, Ohio’s Adam Walsh Act. With the passage of Senate Bill 10, the

General Assembly enacted a new classification and registration scheme introducing a

tier structure. As such, an individual may be labeled as a Tier I, II, or III offender. An

individual’s registration and classification obligations under Senate Bill 10 depend on his

or her crime, not upon his or her threat to the community.” State v. Metzger, 11th Dist.

Portage No. 2010-P-0077, 2011-Ohio-3749, ¶9.

       {¶14} R.C. 2950.01 is the statutory scheme that classifies sex offenses and

offenders into different categories. At issue here is R.C. 2950.01(G)(1)(a) which states:




                                              4
       {¶15} “(G) ‘Tier III sex offender/child-victim offender’ means any of the following:

       {¶16} “(1) A sex offender who is convicted of, pleads guilty to, has been

convicted of, or has pleaded guilty to any of the following sexually oriented offenses:

       {¶17} “(a) A violation of section 2907.02 or 2907.03 [sexual battery] of the

Revised Code[.]”

       {¶18} In this case, appellant pleaded guilty to four counts of sexual battery in

violation of R.C. 2907.03(A)(7) which states:

       {¶19} “(A) No person shall engage in sexual conduct with another, not the

spouse of the offender, when any of the following apply:

       {¶20} “* * *

       {¶21} “(7) The offender is a teacher, administrator, coach, or other person in

authority employed by or serving in a school for which the state board of education

prescribes minimum standards pursuant to division (D) of section 3301.07 of the

Revised Code, the other person is enrolled in or attends that school, and the offender is

not enrolled in and does not attend that school.”

       {¶22} Appellant argues that the sexual battery statute as applied to a teacher,

administrator, coach, or other person in authority employed by or serving in a public

school, R.C. 2907.03(A)(7), is unconstitutional. “The legislature explained in enacting

the statute that it intended to protect individuals in a variety of situations where another

might take unconscionable advantage of that individual.            See 1974 Committee

Comment to R.C. 2907.03(A)(7).        In 1994, the legislature amended the statute to

include 2907.03(A)(7) in response to a case which held that teachers did not fall under

any of the classifications in the prior statute.” State v. Shipley, 9th Dist. Lorain No.




                                             5
03CA008275, 2004-Ohio-434, ¶80 (holding that R.C. 2907.03(A)(7) is constitutional and

does not violate equal protection); see also State v. Summers, 3d Dist. Mercer No. 10-

13-22, 2014-Ohio-4538, ¶51-52 (holding that R.C. 2907.03(A)(7) is constitutional and

there is a clear rational basis for the statute).

       {¶23} The particular issue raised by appellant has not yet come before the Ohio

Supreme Court.      However, appellant’s equal protection/constitutional challenge has

been previously addressed and decided by our sister courts. See Shipley, supra, at

¶77, 80; see also Summers, supra, at ¶51-52. In fact, at oral argument, appellant’s

attorney conceded that the issues have been determined and that the law does not

favor appellant.

       {¶24} The precedent has upheld the legitimate governmental interest in tracking

sex offenders post-conviction and that unconscionable sexual conduct, such as the

case before us involving third degree felonies, supports lifetime reporting requirements.

We find based upon precedent that the Tier III status under R.C. 2950.01(G)(1)(a), as it

relates to R.C. 2907.03(A)(7), does not violate the equal protection clause.         R.C.

2907.03(A)(7) is rationally related to its intended purpose of preventing teachers,

administrators, coaches, or other persons in authority employed by or serving in a public

school from taking unconscionable advantage of students, no matter their age, by using

their undue influence over the students in order to pursue sexual relationships.

Appellant has failed to show that the statute and tiers bear no rational relationship to a

legitimate governmental purpose.        See Shipley, supra, at ¶81; see also Summers,

supra, at ¶51.     Appellant has failed to demonstrate that the strong presumption of




                                               6
constitutionality afforded to statutes has been overcome in this case. See Summers,

supra, at ¶52.

       {¶25} Appellant’s first assignment of error is without merit.

       {¶26} In his second assignment of error, appellant contends that R.C. 2950.01 is

in violation of appellant’s due process rights under the Ohio and United States

constitutions. Appellant asserts a hearing is required before a trial court can impose a

Tier III sex offender label.

       {¶27} The Ohio Supreme Court in State v. Hayden, 96 Ohio St.3d 211, 2002-

Ohio-4169, considered an argument that under the prior version of the sexual

registration statute, a criminal defendant’s automatic classification as a sexually

oriented offender resulting from his conviction for a crime specified in the statute

deprived him of procedural due process. The Supreme Court held that it did not. Id.

¶18.

       {¶28} We determine the case before us to be indistinguishable from the holding

in Hayden. Appellant was entitled to all the due process protections of a jury trial on the

pending charges. By pleading guilty, he waived those rights. Appellant’s classification

as a Tier III sex offender was a required part of his criminal sentence as a result of his

sexual battery convictions under R.C. 2907.03(A)(7). See State v. Moore, 2nd Dist.

Darke No. 2014-CA-13, 2015-Ohio-551, ¶10.

       {¶29} Appellant’s second assignment of error is without merit.

       {¶30} In his third assignment of error, appellant alleges that R.C. 2950.01 is in

violation of his Eighth Amendment rights under the Ohio and United States

constitutions.




                                             7
      {¶31} “For adult sexual offenders under R.C. Chapter 2950 (as enacted by S.B.

10, the Adam Walsh Act), trial courts have no discretion in labeling the offender.” State

v. Martin, 8th Dist. Cuyahoga No. 102783, 2016-Ohio-922, ¶15. The Ohio Supreme

Court has held that the Tier II registration and address verification requirement for sex

offenders does not constitute cruel and unusual punishment. State v. Blankenship, 145

Ohio St.3d 221, 2015-Ohio-4624.

      {¶32} Our sister courts have likewise held that the Tier III requirement and

designation for adult sex offenders, at issue in the case at bar, does not constitute cruel

and unusual punishment under the Ohio and United States constitutions.            State v.

Lukacs, 188 Ohio App.3d 597, 2010-Ohio-2364, ¶66-67 (1st Dist.); State v. Stidam, 4th

Dist. Adams No. 15CA1014, 2016-Ohio-7906, ¶51, 58; State v. Martin, 8th Dist. supra

at ¶15, 17-19, 29; State v. Ortiz, 185 Ohio App.3d 733, 2010-Ohio-38, ¶27 (9th Dist.).

      {¶33} Appellant’s third assignment of error is without merit.

      {¶34} In his fourth assignment of error, appellant maintains the trial court erred

in sentencing him in a manner inconsistent and disproportionate with other similar Ohio

cases and with the sentences of other defendants.

      {¶35} “‘(T)his court utilizes R.C. 2953.08(G) as the standard of review in all

felony sentencing appeals.’ State v. Hettmansperger, 11th Dist. Ashtabula No. 2014-A-

0006, 2014-Ohio-4306, ¶14. R.C. 2953.08(G) provides, in pertinent part:

      {¶36} “(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the sentence or

modification given by the sentencing court.




                                              8
       {¶37} “The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court’s standard for

review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:

       {¶38} “(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

       {¶39} “(b) That the sentence is otherwise contrary to law.”

       {¶40} “This court has held that consistency in sentencing is not a matter of

comparing similar offenders or similar cases. State v. DeMarco, 11th Dist. Lake No.

2007-L-130, 2008-Ohio-3511, ¶25.        In holding that cases cannot be formulaically

compared in the abstract, we are ultimately acknowledging the circumstances and

realities attaching to one case will always differ from another. State v. Vanderhoof, 11th

Dist. Lake No. 2013-L-036, 2013-Ohio-5366, ¶24, citing State v. Burrell, 11th Dist.

Portage No. 2009-P-0033, 2010-Ohio-6059. And, by designating a range from which a

judge can choose an appropriate sentence, Ohio law recognizes that more severe

punishments may be necessary to accomplish the purposes of felony sentencing, even

if two defendants commit the same type of crime. Id. ‘Consistency in sentencing is

accordingly measured by a trial court’s proper application and consideration of Ohio’s

sentencing guidelines.’ Vanderhoof, supra citing State v. Price, 11th Dist. Geauga No.

2007-G-2785, 2008-Ohio-1134, ¶33.            Thus, for an appellant to demonstrate




                                             9
inconsistency in sentencing, he or she must show the trial court failed to properly

consider the relevant statutory factors and guidelines. Id.” State v. Moore, 11th Dist.

Geauga No. 2014-G-3195, 2014-Ohio-5183, ¶49.

       {¶41} Appellant takes issue with R.C. 2929.11 and 2929.12.             Although trial

courts have full discretion to impose any term of imprisonment within the statutory

range, they must consider the sentencing purposes in R.C. 2929.11 and the guidelines

contained in R.C. 2929.12.

       {¶42} R.C. 2929.11, “Overriding purposes of felony sentencing,” states in part:

       {¶43} “(A) 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 others 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 to the victim of the offense, the public,

or both.

       {¶44} “(B) A sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing set forth in division (A) of this

section, commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.”




                                             10
       {¶45} The guidelines contained in R.C. 2929.12, “Factors to consider in felony

sentencing,” state in part:

       {¶46} “(A) Unless otherwise required by section 2929.13 or 2929.14 of the

Revised Code, a court that imposes a sentence under this chapter upon an offender for

a felony has discretion to determine the most effective way to comply with the purposes

and principles of sentencing set forth in section 2929.11 of the Revised Code.             In

exercising that discretion, the court shall consider the factors set forth in divisions (B)

and (C) of this section relating to the seriousness of the conduct, the factors provided in

divisions (D) and (E) of this section relating to the likelihood of the offender’s recidivism,

and the factors set forth in division (F) of this section pertaining to the offender’s service

in the armed forces of the United States and, in addition, may consider any other factors

that are relevant to achieving those purposes and principles of sentencing.

       {¶47} “(B) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant factors, as

indicating that the offender’s conduct is more serious than conduct normally constituting

the offense:

       {¶48} “(1) The physical or mental injury suffered by the victim of the offense due

to the conduct of the offender was exacerbated because of the physical or mental

condition or age of the victim.

       {¶49} “(2) The victim of the offense suffered serious physical, psychological, or

economic harm as a result of the offense.

       {¶50} “(3) The offender held a public office or position of trust in the community,

and the offense related to that office or position.




                                             11
       {¶51} “(4) The offender’s occupation, elected office, or profession obliged the

offender to prevent the offense or bring others committing it to justice.

       {¶52} “(5) The offender’s professional reputation or occupation, elected office, or

profession was used to facilitate the offense or is likely to influence the future conduct of

others.

       {¶53} “(6) The offender’s relationship with the victim facilitated the offense.

       {¶54} “(7) The offender committed the offense for hire or as a part of an

organized criminal activity.

       {¶55} “(8) In committing the offense, the offender was motivated by prejudice

based on race, ethnic background, gender, sexual orientation, or religion.

       {¶56} “(9) If the offense is a violation of section 2919.25 or a violation of section

2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family

or household member at the time of the violation, the offender committed the offense in

the vicinity of one or more children who are not victims of the offense, and the offender

or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of

one or more of those children.

       {¶57} “(C) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant factors, as

indicating that the offender’s conduct is less serious than conduct normally constituting

the offense:

       {¶58} “(1) The victim induced or facilitated the offense.

       {¶59} “(2) In committing the offense, the offender acted under strong

provocation.




                                             12
       {¶60} “(3) In committing the offense, the offender did not cause or expect to

cause physical harm to any person or property.

       {¶61} “(4) There are substantial grounds to mitigate the offender’s conduct,

although the grounds are not enough to constitute a defense.

       {¶62} “(D) The sentencing court shall consider all of the following that apply

regarding the offender, and any other relevant factors, as factors indicating that the

offender is likely to commit future crimes:

       {¶63} “(1) At the time of committing the offense, the offender was under release

from confinement before trial or sentencing; was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code; was under post-release

control pursuant to section 2967.28 or any other provision of the Revised Code for an

earlier offense or had been unfavorably terminated from post-release control for a prior

offense pursuant to division (B) of section 2967.16 or section 2929.141 of the Revised

Code; was under transitional control in connection with a prior offense; or had

absconded from the offender’s approved community placement resulting in the

offender’s removal from the transitional control program under section 2967.26 of the

Revised Code.

       {¶64} “(2) The offender previously was adjudicated a delinquent child pursuant

to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter

2152. of the Revised Code, or the offender has a history of criminal convictions.

       {¶65} “(3) The offender has not been rehabilitated to a satisfactory degree after

previously being adjudicated a delinquent child pursuant to Chapter 2151. of the

Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised




                                              13
Code, or the offender has not responded favorably to sanctions previously imposed for

criminal convictions.

       {¶66} “(4) The offender has demonstrated a pattern of drug or alcohol abuse that

is related to the offense, and the offender refuses to acknowledge that the offender has

demonstrated that pattern, or the offender refuses treatment for the drug or alcohol

abuse.

       {¶67} “(5) The offender shows no genuine remorse for the offense.

       {¶68} “(E) The sentencing court shall consider all of the following that apply

regarding the offender, and any other relevant factors, as factors indicating that the

offender is not likely to commit future crimes:

       {¶69} “(1) Prior to committing the offense, the offender had not been adjudicated

a delinquent child.

       {¶70} “(2) Prior to committing the offense, the offender had not been convicted

of or pleaded guilty to a criminal offense.

       {¶71} “(3) Prior to committing the offense, the offender had led a law-abiding life

for a significant number of years.

       {¶72} “(4) The offense was committed under circumstances not likely to recur.

       {¶73} “(5) The offender shows genuine remorse for the offense.”

       {¶74} At the sentencing hearing, the trial court stated the following: it considered

the purposes and principles of felony sentencing in arriving at a just sentence together

with the seriousness and recidivism factors and balanced those factors and considered

all relevant factors as well as the degree and type of felonies; the court took appellant’s

statement into account, as well as the PSI report, Dr. Risen’s report (from the Center for




                                              14
Marital and Sexual Health), the burden on state and local resources, appellant’s

sentencing memo, letters in support of appellant, victim impact correspondence, and the

entire record; weighed the mitigation arguments; indicated that appellant’s conduct was

socially unaccepted, out of custom, illicit, criminal, felonious, and the crimes are very,

very seriously regarded; acknowledged that appellant had done some good in his life

but those good things did not cancel out appellant’s conduct; noted that appellant, while

engaging in sexual conduct with a 15 year old student, knew her age and had

researched the potential penalties and was well aware of the serious consequences

associated with his criminal activity; appellant showed a blatant disregard for the law;

appellant was mature enough to know and did know right from wrong; appellant

betrayed and abused a sacred trust of an underage high school student; it was not an

impulse event but rather a persistent course of conduct; indicated that following

appellant’s arrest, he violated his bond conditions by continuing to contact the minor

victim; and the court concluded that anything less than prison would be demeaning to

the seriousness of the offense.

      {¶75} Also, in its October 31, 2016 judgment, the trial court indicated it had

considered the record, information, reports, and victim impact statement, based upon

the purposes and principles of sentencing under R.C. 2929.11 and the seriousness and

recidivism sentencing factors under R.C. 2929.12 before imposing sentence.

      {¶76} Accordingly, the record reflects the trial court gave due deliberation to the

relevant statutory considerations. The court considered the purposes and principles of

felony sentencing under R.C. 2929.11, and balanced the seriousness and recidivism

factors under R.C. 2929.12, as evidenced from the record. Appellant was concurrently




                                           15
sentenced to 60 months on four counts of sexual battery, felonies of the third degree,

following a guilty plea. Thus, the court sentenced appellant within the statutory range

under R.C. 2929.14(A) (“(3)(a) For a felony of the third degree that is a violation of

section * * * 2907.03 [sexual battery] * * * of the Revised Code * * * the prison term shall

be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty

months.”)

       {¶77} Further, the record reveals the court properly advised appellant regarding

post-release control. Therefore, the trial court complied with all applicable rules and

statutes and, as a result, appellant’s sentence is not clearly and convincingly contrary to

law.

       {¶78} Appellant’s fourth assignment of error is without merit.

       {¶79} For the foregoing reasons, appellant’s assignments of error are not well-

taken. The judgment of the Geauga County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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