[Cite as State v. Akers, 2016-Ohio-1373.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 15 CA 37
JAMELL C. AKERS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. 15 CRB 1022


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         March 31, 2016



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

STEPHANIE L. HALL                              MARGARET A. SMITH
ASSISTANT PROSECUTOR                           LAW OFFICE OF MARGARET A. SMITH
123 East Chestnut Street                       Post Office Box 880
Post Office Box 1008                           660 Hill Road North
Lancaster, Ohio 43130                          Pickerington, Ohio 43147
Fairfield County, Case No. 15 CA 37                                                     2

Wise, J.

       {¶1}   Appellant Jamell C. Akers appeals from his conviction in the Fairfield

County Municipal Court on one misdemeanor count of domestic violence and two

misdemeanor counts of violation of a protection order. Appellee is the State of Ohio. The

relevant facts leading to this appeal are as follows.

       {¶2}   On or about May 4, 2015, Appellant Akers physically assaulted A.L., his

former girlfriend. Appellant is the purported father of A.L.’s infant son, although legal

paternity has not been established and the two have never been married. Appellant was

thereupon charged by the responding Pickerington police officer with one count of

domestic violence, R.C. 2919.25(A), and two counts of violation of a protection order,

R.C. 2919.27. All three offenses were charged as misdemeanors of the first degree.1

       {¶3}   On June 16, 2015, appellant appeared the Fairfield County Municipal Court

(“trial court”) and entered pleas of guilty to all three of the above counts.

       {¶4}   The trial court accepted the pleas and found appellant guilty of all three

counts. Appellant was sentenced to one-hundred eighty days in jail (ninety days

suspended) on the domestic violence count and one-hundred eighty days in jail on each

count of violating a protective order, with all counts to be served consecutively to each

other. The latter jail days were suspended, with further orders of intensive supervised

probation under conditions including, inter alia, contact with the infant son only “upon a

domestic relations order *** as order[ed] by DR Court.”




1  A more detailed assessment of the incident and injuries leading to the charges at issue
is not necessary in the present appeal. An additional charge of unlawful restraint was
subsequently dismissed.
Fairfield County, Case No. 15 CA 37                                                       3


      {¶5}   Appellant filed a notice of appeal on July 9, 2015. He herein raises the

following two Assignments of Error:

      {¶6}   “I. THE TRIAL VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS

UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION

AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION WHEN IT PROHIBTED

[SIC] APPELLANT, AS A CONDITION OF HIS COMMUNITY CONTROL SANCTION,

FROM CONTACT WITH HIS INFANT SON UNTIL HE OBTAINED ORDERS FROM THE

DOMESTIC RELATIONS DIVISION OF THE COURT OF COMMON PLEAS.

      {¶7}   “II. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING, AS A

CONDITION OF [HIS] COMMUNITY CONTROL SANCTION, THAT APPELLANT HAVE

NO CONTACT WITH HIS INFANT SON UNTIL HE OBTAINED ORDERS FROM THE

DOMESTIC RELATIONS DIVISION OF THE COURT OF COMMON PLEAS.”

                                            I.

      {¶8}   In his First Assignment of Error, appellant argues the trial court violated his

constitutional due process rights in ordering a community control provision of no contact

with his putative son pending an order from the domestic relations court. We disagree.

      {¶9}   Clearly, a parent has a fundamental liberty interest in the care, custody, and

management of his or her child. See In re Gower/Evans Children, 5th Dist. Tuscarawas

No. 06AP060034, 2006-Ohio-5676, ¶ 28, citing Santosky v. Kramer (1982), 455 U.S. 745,

753, 102 S.Ct. 1388, 71 L.Ed.2d 599. Furthermore, it is well-established that where a

party argues that a statute or regulation impinges upon a fundamental constitutional right,

courts must apply a strict-scrutiny standard of review. See State v. Emery, 12th Dist.
Fairfield County, Case No. 15 CA 37                                                        4

Clermont No. CA2014-09-062, 2015-Ohio-1487, ¶ 13, citing Harrold v. Collier, 107 Ohio

St.3d 44, 2005–Ohio–5334, ¶ 39.

       {¶10} However, a merely putative father obtains no automatic right or privilege of

visitation with his child. See In the Matter of Adoption of Sunderhaus, 12th Dist. Butler

No. CA89-12-176, 1990 WL 154010. We recognize the General Assembly has enacted

certain statutory rights for putative fathers, such as affording the right to consent to

adoption to those putative fathers who register as such with the statewide “putative father

registry” not later than fifteen days after the minor child’s birth (see R.C. 3107.07), the

right to pursue an action in paternity (see R.C. 3111.04(A)(1)), and the allowance of

temporary orders allocating parental rights and responsibilities while a paternity action is

pending (see R.C. 3109.043). In addition, R.C. 3109.12(A) states in pertinent part that if

a child is born to an unmarried woman, the father “may file a complaint requesting that

the court of appropriate jurisdiction of the county in which the child resides grant him

reasonable parenting time rights with the child,” but this first requires that “the father of

the child has acknowledged the child and that acknowledgment has become final

pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code or [the

petitioning father] has been determined in an action under Chapter 3111. of the Revised

Code to be the father of the child ***.”

       {¶11} Thus, it has been aptly stated that “[a]n unwed father's interest in a

relationship with his child acquires protection under the Fourteenth Amendment when he

attempts to come forward to participate in the rearing of his child and accepts some

measure of responsibility for the child's future.” In re Adoption of Baby F., 10th Dist.
Fairfield County, Case No. 15 CA 37                                                        5

Franklin No. 03AP-1092, 2004-Ohio-1871, ¶ 14 (emphasis added), citing Lehr v.

Robertson (1983), 463 U.S. 248, 261-262, 103 S.Ct. 2985, 77 L.Ed.2d 614.

       {¶12} In the case sub judice, it was made clear at sentencing that appellant had

never signed the child’s birth certificate (see Tr. at 20-21) and had not in some fashion

established legal paternity (see Tr. at 10). Under the circumstances presented, we hold

appellant’s fundamental rights under the Fourteenth Amendment were not implicated and

there was no constitutional violation resulting from the trial court’s community control

restriction regarding child visitation.

       {¶13} Appellant's First Assignment of Error is overruled.

                                             II.

       {¶14} In his Second Assignment of Error, appellant contends the trial court abused

its discretion in ordering a community control provision of no contact with his putative son,

pending future orders from the domestic relations court. We disagree.

       {¶15} Generally, misdemeanor sentencing is within the sound discretion of the

trial court and will not be disturbed upon review if the sentence is within the limits of the

applicable statute. State v. Smith, 9th Dist. Wayne No. 05CA0006, 2006–Ohio–1558, ¶

21, citing State v. Pass, 6th Dist. Lucas No. L–92–017, 1992 WL 386011. See, also, State

v. Chadwick, 5th Dist. Knox No. 08CA15, 2009–Ohio–2472, ¶ 30. Likewise, a trial court

has broad discretion to impose misdemeanor community control sanctions, and we must

affirm such a decision absent an abuse of discretion. State v. Tobin, 10th Dist. Franklin

No. 11AP-776, 2012-Ohio-1968, ¶ 5. An abuse of discretion implies the court's attitude is

unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151,

404 N.E.2d 144. Furthermore, there is no requirement that a trial court, in sentencing on
Fairfield County, Case No. 15 CA 37                                                         6

misdemeanor offenses, specifically state its reasons on the record. State v. Harpster, 5th

Dist. Ashland No. 04COA061, 2005–Ohio–1046, ¶ 20.

       {¶16} R.C. 2929.21(A) first states that “[a] court that sentences an offender for a

misdemeanor * * * shall be guided by the overriding purposes of misdemeanor

sentencing. * * *.” The overriding purposes of misdemeanor sentencing are to protect the

public from future crime by the offender and others and to punish the offender. R.C.

2929.21(A). In order to achieve those purposes, a sentencing court must consider “the

impact of the offense upon the victim and the need for changing the offender's behavior,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or the victim and the public.” Id.; State v. Coleman, 4th Dist. Scioto No. 05CA3037, 2006–

Ohio–3200, ¶ 21. In addition, R.C. 2929.21(B) states in pertinent part as follows: “A

sentence imposed for a misdemeanor * * * shall be reasonably calculated to achieve the

two overriding purposes of misdemeanor 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

offenses committed by similar offenders.”

       {¶17} In the case sub judice, the record indicates that the child was present during

the domestic violence episode leading to the charges against appellant. See Police

Narrative Supplement at 1. It also appears from the record that the incident took place at

a location where appellant had slept overnight under the same roof as A.L., despite the

existence of an ongoing protection order designed to keep appellant away from her. Id.;

Tr. at 11-13. Upon review, we find the additional layer of protection to the child in question
Fairfield County, Case No. 15 CA 37                                                   7


was a reasonable means of protecting the public from future crime and was clearly within

the bounds of the trial court’s community control discretion.

       {¶18} Appellant's Second Assignment of Error is overruled.

       {¶19} For the foregoing reasons, the judgment of the Municipal Court of Fairfield

County, Ohio, is hereby affirmed.



By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.



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