[Cite as State v. Brunning, 2011-Ohio-1936.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 95376




                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                      LINDELL W. BRUNNING, JR.
                                                     DEFENDANT-APPELLANT




                            JUDGMENT:
                         AFFIRMED IN PART;
                    REVERSED AND VACATED IN PART



                                Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                           Case Nos. CR-532770 and CR-532822

        BEFORE:           S. Gallagher, J., Kilbane, A.J., and E. Gallagher, J.
       RELEASED AND JOURNALIZED: April 21, 2011

ATTORNEY FOR APPELLANT

Richard A. Neff
614 W. Superior Avenue
Suite 1310
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




SEAN C. GALLAGHER, J.:

       {¶ 1} Appellant Lindell Brunning (“Brunning”) appeals his conviction and sentence,

after pleading guilty, in Cuyahoga County Common Pleas Court Case      Nos. CR-532770 and

CR-532822.    For the following reasons, we reverse Brunning’s conviction and vacate his

sentence in CR-532770, and affirm the trial court’s judgment in CR-532822.
          {¶ 2} On December 23, 1983, Brunning was convicted of rape.         He was released on

November 7, 2008, after serving a 25-year sentence.            Brunning had a duty to register

pursuant to Megan’s Law.         The Ohio Attorney General reclassified him as a Tier III sex

offender according to Ohio’s Adam Walsh Act (“AWA”).             The state then indicted Brunning

in two separate cases.      The state advanced three counts in CR-532770: Brunning failed to

verify his current address with the sheriff in violation of R.C. 2950.06(F); failed to notify the

sheriff of a change of address in violation of R.C. 2950.05(E)(1) ; and tampered with records
                                                                     1




in violation of R.C. 2913.42(A), based on the allegation that he falsified documents in

connection with the first two counts.     The first two counts are felonies of the second degree,

and the last is a felony of the third degree.   Brunning pleaded guilty to all three counts.

          {¶ 3} In     CR-532822, the state advanced 18 separate felony counts.          Brunning

pleaded guilty to Counts 4, 12, and 18 of the indictment.           The state dismissed all other

counts.       Count 4 was an unlawful sexual conduct with a minor charge with the offender being

ten years or older than the victim.     Counts 12 and 18 were two sexual battery charges.      All

three counts were based on three separate incidents against the same victim, occurring

sometime between June and September 2009.          As part of the plea deal, the state amended the

three counts by removing the sexually violent predator specifications.


          The indictment lists the violation pursuant to R.C. 2950.05(E)(1) rather than R.C.
          1

2950.05(F)(1). The version of that section in effect at the time of the indictment was
R.C. 2950.05(F)(1). The language of the provisions did not change.
         {¶ 4} Brunning pleaded guilty to the three counts in CR-532770.        He received the

maximum prison sentence of eight years on each of the first two counts for reporting

violations and five years on the tampering with evidence charge despite the prosecutor and the

trial court agreeing during the plea colloquy that all three reporting offenses should merge for

purposes of sentencing.    The trial court ordered those sentences to be served consecutively to

each other.    With the merger, the resulting sentence on CR-532770 should have been eight

years.     Brunning also pleaded guilty to the three counts in CR-532822.       He received the

maximum sentence of five years each, to be served consecutively with each other, having been

made no promises during the plea colloquy as to the sentence on that case.             Brunning

received an aggregate sentence of 36 years.

         {¶ 5} Brunning raises three assignments of error relating to both cases.   The first two

assignments of error deal with CR-532770 and will be addressed in reverse order.

         {¶ 6} The second assignment of error is as follows: “Appellant’s conviction in case

10-CR-532770 must be vacated because the law on which it is based, Ohio’s Adam Walsh

Act, is unconstitutional as applied to appellant.”   We find that Brunning’s second assignment

of error has merit.

         {¶ 7} The crux of the charges against Brunning in CR-532770 was that he failed to

verify and notify the sheriff of a change in his primary address.   As part of those charges, the

state claimed Brunning falsified documents by providing the sheriff with a wrong address.
All occurred on August 3, 2009.      Brunning was reclassified as a Tier III offender after the

AWA became effective.       He had previously been adjudicated under Megan’s Law and had a

duty to register from the 1983 conviction.

       {¶ 8} The Supreme Court held that the reclassification under the AWA was

unconstitutional if offenders had a duty to report from a prior court order under Megan’s Law.

 State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 22.               Further,

any reporting violation based on an AWA registration requirement that is inapplicable to the

defendant is unlawful.      State v. Gingell, Slip Opinion No. 2011-Ohio-1481 (reversing

defendant’s conviction for failing to verify residency under the heightened AWA standards

based on Bodyke).

       {¶ 9} Likewise, in State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83, this court

presciently held that the reclassification cannot serve as the basis for reporting violations if an

offender had a duty to register under Megan’s Law from a prior order of a court.          Id. at ¶

11.   The majority noted that Bodyke does not create “a fictitious distinction between an

unlawful reclassification ‘that imposes a more onerous verification requirement’ and a

reclassification that does not impose heightened verification requirements. Bodyke deemed

reclassifications under the AWA unlawful, the only condition being that the offender has

‘already been classified by court order under former law.’”     Id. at ¶10, fn. 1.
          {¶ 10} This distinction is important.   Once offenders already under the obligation to

report pursuant to Megan’s Law were reclassified pursuant to R.C. 2950.031 and 2950.032,

their duties to report were derived from the AWA.        The violations for an offender’s failure to

verify or notify of a change of address pursuant to R.C. 2950.06(F) and R.C. 2950.05(E)(1), or

any tampering with evidence charge for falsifying documents stemming from the reporting

violation, were based on the duty to register and verify unlawfully imposed upon those already

subject to reporting requirements through prior court order.

          {¶ 11} In the instant case, we first note that neither the trial court nor Brunning had the

benefit of the Bodyke decision during the pendency of the trial court’s proceedings.

Brunning’s reclassification under the AWA is contrary to the law. Brunning’s conviction

arising from reporting violations under the AWA is therefore also contrary to law. Gingell,

2011-Ohio-1481; see, also, State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880, ¶

29;       State v. Patterson, Cuyahoga App. No. 93096, 2010-Ohio-3715; State v. Jones,

Cuyahoga App. No. 93822, 2010-Ohio-5004.

          {¶ 12} The state argues that Brunning pleaded guilty and thereby waived any right to

challenge his conviction based on the unconstitutionality of the law upon which it was based.

The state cites to State v. Hayden, Cuyahoga App. No. 90474, 2008-Ohio-6279, at ¶ 6, for

the proposition that a defendant cannot claim the indictment is insufficient after pleading

guilty.     While this is a correct statement of law, Brunning is not arguing that the indictment is
merely defective.    Crim.R. 12(C)(2) provides that defenses and objections based on defects in

the indictment shall be raised prior to trial.   However, the rule also provides two exceptions:

(1) when the indictment fails to show jurisdiction in the court, and (2) when the indictment

fails to charge an offense.   Crim.R. 12(C)(2).     In this case, the basis of the indictment was

found to be unconstitutional, and therefore the indictment failed to charge an offense against

Brunning.    The law cited by the state is inapplicable to the current appeal.

       {¶ 13} Because of the foregoing analysis, we reverse Brunning’s conviction in

CR-532770.     Brunning’s conviction was predicated upon the reporting requirements held to

be unconstitutional as applied to him.      We vacate his sentence, and note that Brunning is

subject to the reporting requirements established under Megan’s Law.

       {¶ 14} Brunning’s      first   assignment    of   error   is   as     follows:   “(a)   The

defendant-appellant’s guilty plea was not knowingly and voluntarily entered into since it was

conditioned on false promises made by the State and the trial court.       (b) The trial court erred

when it failed to merge the offenses in case 10-CR-532770 for sentencing.”          Because of our

resolution of Brunning’s second assignment of error, the first assignment of error is moot and

we need not address the issues raised.    See App.R. 12(A)(1)(c).

       {¶ 15} Brunning’s third assignment of error is as follows:     “The sentence imposed by

the court is inconsistent with the principles and purpose of sentencing under the Ohio Revised

Code and therefore is contrary to law.”          Having vacated Brunning’s conviction under
CR-532770, we will address this assignment of error based on the 15-year aggregate sentence

Brunning received in CR-532822.        Contrary to the state’s argument, we do not agree that this

argument is moot because Brunning’s total sentence was reduced through the disposition of

the first two assignments of error.      Brunning argues that the trial court failed to properly

consider the factors contained in R.C. 2929.11 through 2929.14 and rendered a sentence that is

inconsistent with sentences of similar offenders.      Brunning’s third assignment of error is not

well taken.

       {¶ 16} This court has already recognized that we review felony sentences using the

Kalish framework.       State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
                    2




In Kalish, the Ohio Supreme Court applied a two-prong approach to appellate review of felony

sentences.    We must ensure that the sentencing courts complied with all applicable rules and

statutes in imposing a sentence to determine whether the sentence is clearly and convincingly

contrary to law.    Id. at 25.   If the first prong is satisfied, we then review the trial court’s

decision under an abuse-of-discretion standard.      Id.




       2
         In this district, there have been discussions on whether Kalish is binding precedent or merely
persuasive because it was a plurality opinion. See, e.g., State v. Wuff, Cuyahoga App. No. 94087,
2011-Ohio-700 (recognizing that Kalish is a plurality decision and has no binding precedent); cf.,
State v. Walker, Cuyahoga App. No. 94490, 2011-Ohio-456 (citing to Kalish without limitation).
Whether Kalish is persuasive or binding is no longer relevant in this district. This court has applied,
and therefore adopted, the Ohio Supreme Court’s two-pronged approach to reviewing felony
sentences in all cases.
       {¶ 17} We first must review whether the sentence is contrary to law pursuant to R.C.

2953.08(G).    “[T]rial courts have full discretion to impose a prison sentence within the

statutory range and are no longer required to make findings and give reasons for imposing

maximum, consecutive or more than the minimum sentence.”            (Internal quotations omitted.)

Id. at ¶ 11; citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 100.

 Although Foster eliminated mandatory judicial fact-finding, it did not invalidate R.C.

2929.11 and 2929.12.         Kalish at ¶ 13.    Therefore, the trial court must consider those

statutes in determining an appropriate sentence within the permissible statutory ranges.     Id.

       {¶ 18} In the current case, we do not find Brunning’s sentence contrary to law.         The

trial court sentenced him to the maximum consecutive sentences possible within the statutory

range for his convictions.     Brunning pleaded guilty to three third-degree felony counts, all of

which are punishable by prison for a term between one to five years.          Moreover, the trial

court acknowledged in the sentencing entry that it considered all factors of law and found that

the prison term was consistent with the purposes of R.C. 2929.11.      Brunning’s sentence is not

clearly and convincingly contrary to law.

       {¶ 19} We next must consider whether the trial court abused its discretion.      The term

“abuse of discretion” means “an unreasonable, arbitrary, or unconscionable action.”        State ex

rel. Doe v. Smith, 123 Ohio St.3d 44, 47, 2009-Ohio-4149, 914 N.E.2d 159.                  It is “a

discretion exercised to an end or purpose not justified by, and clearly against reason and
evidence.   The term has been defined as a view or action that no conscientious judge, acting

intelligently, could honestly have taken.”      (Citations and quotations omitted.)       State v.

Hancock, 108 Ohio St.3d 57, 77, 2006-Ohio-160, 840 N.E.2d 1032.

       {¶ 20} Under current Ohio law, a trial court “now has the discretion and inherent

authority to determine whether a prison sentence within the statutory range shall run

consecutively or concurrently.”    State v. Elmore, 122 Ohio St.3d 472, 480, 2009-Ohio-3478,

912 N.E.2d 582; State v. Bates, 118 Ohio St.3d 174, 178, 2008-Ohio-1983, 887 N.E.2d 328.

Although trial courts have this discretion, the trial court must still consider the purposes of the

felony sentencing statutes set forth in R.C. 2929.11 and 2929.12, which provide factors to

consider relating to the seriousness of the offense and recidivism of the offender.      See State

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

54, 62, 2006-Ohio-855, 846 N.E.2d 1.

       {¶ 21} Brunning argues the trial court abused its discretion by imposing the maximum

sentences to be served consecutively when offenders in similar situations received lesser

prison terms.     See State v. Omiecinski, Cuyahoga App. No. 90510, 2009-Ohio-1066

(sentencing defendant to an aggregate sentence of four years on three counts of sexual battery

without describing the facts underlying the charges or whether the defendant was a repeat

offender); State v. Felton, Cuyahoga App. No. 92295, 2010-Ohio-4105 (sentencing the

defendant with a community control sanction for one count of sexual battery based on a single
incident); State v. Fortson, Cuyahoga App. No. 92337, 2010-Ohio-2337 (sentencing the

defendant, a corrections officer, to an aggregate seven-year sentence on three counts of rape,

three counts of sexual battery, and three counts of gross sexual imposition against six inmates).

       {¶ 22} The trial court considered all the factors required under Ohio law and discussed

the seriousness of the offense.     The court was particularly troubled with the fact that

Brunning’s 25-year sentence for raping a child under the age of 13 did not deter him from

recommitting a similar offense against another minor.      The trial court further reviewed the

presentence investigation report; heard arguments from counsel, including a review of

mitigating factors; heard from Judith Huggins, who spoke on Brunning’s behalf; and

considered Brunning’s remorse.       In reviewing the record, we find that the trial court

considered the statutory factors and did not abuse its discretion in imposing the maximum

sentences to be served consecutively for an aggregate sentence of 15 years.        We therefore

overrule Brunning’s third assignment of error.

       {¶ 23} We vacate Brunning’s sentence and reverse his conviction in CR-532770 and

affirm the trial court’s judgment in CR-532822.

       It is ordered that appellant and appellee share the 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.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
