[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.
-vs-
                                                  Case 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
