[Cite as State v. Miller, 2012-Ohio-2132.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HENRY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 7-11-21

        v.

KEVIN L. MILLER,                                           OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Henry County Common Pleas Court
                             Trial Court No. 01CR071

                                        Judgment Vacated

                               Date of Decision: May 14, 2012




APPEARANCES:

        Gregory L. VanGunten for Appellant

        John H. Hanna for Appellee
Case No. 7-11-21


ROGERS, J.

       {¶1} Although originally placed on our accelerated calendar, we elect,

pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.

       {¶2} Defendant-Appellant, Kevin Miller (“Miller”), appeals the judgment

of the Court of Common Pleas of Henry County designating him a sexual predator

under former R.C. 2950.09. On appeal, Miller argues that insufficient evidence

was presented to establish that he was a sexual predator, and that the trial court’s

eight-year delay between the classification hearing and the judgment entry

determining the sexual predator status is unconstitutional. Finding that the delay

was unreasonable and that the trial court was divested of jurisdiction to enter such

a finding, we reverse the judgment of the trial court.

       {¶3} In December 2001, Miller pled guilty to three counts of gross sexual

imposition. The State sought to classify Miller as a sexual predator. During the

evidentiary hearing on the matter, the State presented no testimony but submitted a

copy of the police report, a copy of the social worker’s report, cards, and a rock

given by Miller to the victim. Miller presented the testimony of his minister

concerning the progress he had made in counseling. In February 2002, the trial

court held a sentencing and sexual predator classification hearing. At the hearing,

the trial court, after hearing evidence and reading the presentence investigation,

ruled that Miller was a sexual predator and sentenced him to five years’


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community control sanctions. Miller appealed the trial court’s entry designating

him a sexual predator, arguing insufficient evidence.          On appeal, this court

reversed and remanded for further proceedings as the trial court failed to discuss

on the record the particular evidence that formed the basis of its decision as

required by State v. Eppinger, 91 Ohio St.3d 158 (2001).

         {¶4} On remand, the trial court held a second evidentiary hearing in May

2003 to determine Miller’s sexual predator status. In October 2011, the trial court,

sitting “[b]y [a]ssignment” evaluated the evidence introduced at the 2003 hearing

and again classified Miller a sexual predator. Judgment Entry, Docket No. 25. It

is from this judgment Miller appeals, asserting the following as error for our

review.

                              Assignment of Error No. I

         THE EVIDENCE IS INSUFFICIENT, AS A MATTER OF
         LAW, TO PROVE “BY CLEAR AND CONVINCING
         EVIDENCE” THAT APPELLANT “IS LIKELY TO ENGAGE
         IN THE FUTURE IN ONE OR MORE SEXUALLY
         ORIENTED OFFENSES.[”]

                             Assignment of Error No. II

         THE DELAY OF OVER EIGHT YEARS IN DECIDING THE
         STATUTORY CLASSIFICATION OF THIS OFFENDER
         VIOLATED   HIS   RIGHTS       UNDER THE  OHIO
         CONSTITUTION, ARTICLE I, §16.

         {¶5} As the second assignment of error is dispositive, we elect to address it

first.

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Case No. 7-11-21


                             Assignment of Error No. II

       {¶6} In his second assignment of error, Miller argues that the eight-year

delay between the time of the R.C. 2950.09 sexual predator classification hearing

and the judgment entry on the matter violates Crim.R. 32(A) and Art.I § 16 of the

Ohio Constitution, Ohio’s due process clause.

       {¶7} We hold that the sexual predator classification is void as the trial court

was divested of jurisdiction.     First, the delay was unjustified, lengthy, and

unreasonable. Art. I § 16 of the Ohio Constitution provides that justice shall be

administered without denial or delay. Crim.R. 32(A) mandates that “sentence

shall be imposed without unnecessary delay.” In Neal v. Maxwell, the Ohio

Supreme Court held that a reasonable delay in imposing sentence does not

invalidate a sentence. 175 Ohio St. 201, 202 (1963). Subsequently, appellate

courts have held that a delay in sentencing must be reasonable in order to be valid

and that any unreasonable delay invalidates the sentence. State v. Brown, 152

Ohio App.3d 8, 2003-Ohio-1218 (7th Dist.); State v. Johnson, 12th Dist. No.

CA2002-07-016, 2003-Ohio-6261 (more than six-year delay between guilty plea

and sentence divested trial court of jurisdiction to sentence defendant); Warren v.

Ross, 116 Ohio App.3d 275 (11th Dist. 1996) (without an explanation for delay,

trial court lost jurisdiction to revoke defendant’s driver’s license as more than four

years elapsed between the conviction and the order purporting to revoke the


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license); City of Willoughby v. Lukehart, 39 Ohio App.3d 74 (11th Dist. 1987)

(without a substantive reason, the trial court was divested of jurisdiction to impose

sentence as a sixteen-month delay between the time of arrest and sentencing was

unjustified and lengthy).

       {¶8} Although this case is factually distinguishable from the foregoing, the

reasoning is nonetheless instructive. In the instant case, Miller is challenging not

the delay in time before the sentence was imposed, but the nearly eight-and-one-

half-year delay in classifying him a sexual predator. As the trial court provided no

reasonable justification for the delay on the record, we find this delay

unreasonable and unjustifiable.     Accordingly, the trial court was divested of

jurisdiction over the matter.

       {¶9} Secondly, the trial court no longer had jurisdiction to deem Miller a

sexual predator in 2011 because he had completed his sentence. Once a defendant

completes serving his or her sentence, the authority of the trial court terminates.

See State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, ¶ 34-37 (the trial

court’s authority to impose mandatory post-release control ended when defendant

completed his original incarceration), citing State v. Simpkins, 117 Ohio St.3d 420,

2008-Ohio-1197, State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, Hernandez

v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126.




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Case No. 7-11-21


       {¶10} In February 2002, Miller was sentenced to five years’ community

control sanctions. Miller undeniably completed serving his sentence in 2007.

Four years later, when Miller was ultimately deemed a sexual predator, the trial

court no longer had authority over the matter. Accordingly, we hold that the

sexual predator classification is void.           Ruling otherwise would condone an

indefinite jurisdiction of the trial court over all matters before it, which contradicts

our aspirations of an efficient and effective judiciary as well as resolving cases

without unreasonable delay.

       {¶11} Thirdly, the trial court lacked authority to preside over the matter and

issue an entry as he was improperly assigned. Art. IV § 6(C) of the Ohio

Constitution provides for the assignment of a retired judge to serve as an acting

judge. The assignment is made by the chief justice or acting chief justice of the

Ohio Supreme Court. Ohio Const. Art. IV § 6(C). In this case, the decision and

judgment    entry    were   signed    and     entered    by   the   trial   court   “[b]y

[a]ssignment.” Docket No. 25. The record reveals, however, that there was no

assignment by the Supreme Court of Ohio. Therefore, the assigned trial judge

lacked jurisdiction over the matter due to the erroneous assignment, and the sexual

predator classification is void.

       {¶12} In light of the foregoing analysis, we sustain Appellant’s second

assignment of error.


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                             Assignment of Error No. I

       {¶13} In his first assignment of error, Miller argues that the evidence

introduced at the second hearing failed to establish by clear and convincing

evidence that he was likely to engage in future sexually oriented offenses and

therefore, the trial court erred in determining that he was a sexual predator. Due to

the resolution of the second assignment of error, this assignment is moot and we

decline to address it. App.R. 12(A)(1)(c).

       {¶14} Having found error prejudicial to Appellant herein, in the particular

assigned and argued in the second assignment of error, we vacate the judgment of

the trial court.

                                                                 Judgment Vacated

SHAW, P.J. and PRESTON, J., concur.

/jlr




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