State v. Wolf

2019 Ohio 4170

STATE OF OHIO, Plaintiff-Appellee, v. ZACHARY WOLF, Defendant-Appellant.

Case No. 19CA2

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

September 26, 2019

DECISION AND JUDGMENT ENTRY

APPEARANCES:

James Anzelmo, Gahanna, Ohio, for appellant.¹

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT

ABELE, J.

{¶ 1} This is an appeal from an Athens County Common Pleas Court judgment of conviction and sentence. The trial court found Zachary Wolf, defendant below and appellant herein, guilty of (1) five counts of pandering sexually-oriented matter involving a minor, in violation of R.C. 2907.322(A)(1), and (2) five counts of illegal use of a minor in nudity-oriented material or performance, in violation of R.C. 2907.323(A)(1). Appellant assigns the following error for review:

"THE TRIAL COURT ERRED BY DENYING WOLF'S MOTION TO DISMISS, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION."

{¶ 2} Shortly after an Athens County grand jury returned an indictment that charged appellant with violating five counts each of R.C. 2907.322(A)(1) and R.C. 2907.323(A)(1),² appellant filed a motion to dismiss the indictment. In particular, appellant alleged that the statutes, R.C. 2907.322(A)(1) and R.C. 2907.323(A)(1), are void for vagueness as applied to his alleged conduct: pandering or using sexually or nudity oriented material that involved sixteen and seventeen year old females. Appellant argued that because the material involved minors above Ohio's age of consent, he could not have known that pandering or using sexually or nudity, oriented material that involved sixteen and seventeen year old females constituted a crime.

{¶ 3} Appellant additionally argued that the statutes encourage arbitrary and erratic arrests. Appellant contended that although the state charged him with violating the statutes, the state did not file charges against the females depicted in the material or against another individual who purportedly admitted that he distributed photos of the females. Appellant asserted that at least one of the females consented to producing the material and that the other female sent material to a third individual, who was not charged with violating either of the statutes. The trial court held a hearing to consider appellant's motion to dismiss and later overruled appellant's motion.

{¶ 4} Appellant subsequently entered guilty pleas to each count of the indictment. The trial court merged the pandering-sexually-oriented-matter-involving-a-minor offenses with the illegal-use-of-a-minor-in-nudity-oriented-material-or-performance offenses and sentenced appellant to serve twelve months in prison. This appeal followed.

{¶ 5} In his sole assignment of error, appellant asserts that the trial court erred by denying his motion to dismiss the indictment. Appellant contends that the charged offenses are void for vagueness as applied to his conduct and that his convictions violate his due process rights. Appellant reiterates the arguments he raised during the trial court proceedings: (1) that he could not have known that pandering or using the material constituted a crime when the minors involved are above the age of consent; and (2) that the statutes were arbitrarily applied.

STANDARD OF REVIEW

{¶ 6} "Generally, appellate courts conduct a de novo review of a trial court's decision concerning a defendant's motion to dismiss all or part of an indictment based upon a constitutional challenge to the statute under which the defendant stands indicted." State v. Wheatley, 2018-Ohio-464, 94 N.E.3d 578 (4th Dist.), ¶ 5, citing State v. Mason, 2016-Ohio-8400, 111 N.E.3d 432, ¶ 17; State v. Fisher, 4th Dist. Ross No. 16CA3553, 2017-Ohio-7260, 2017 WL 3585616, ¶ 8 (stating that "we use a de novo standard of review to assess errors based upon violations of constitutional law"); accord State v. Philpotts, 8th Dist. Cuyahoga No. 107374, 2019-Ohio-2911, 2019 WL 3237897, ¶ 9; see Crutchfield Corp. v. Testa, 151 Ohio St.3d 278, 2016-Ohio-7760, 88 N.E.3d 900, ¶ 16 (stating that constitutionality of a statute is a legal question, which appellate court reviews de novo); State v. Kirk, 8th Dist. Cuyahoga No. 104866, 2016-Ohio-8296, 2016 WL 7496605, ¶ 4 (stating that courts review de novo trial court decision regarding motion to dismiss indictment); State v. Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 20 ("Appellate courts apply a de novo standard of review when reviewing the denial of a motion to dismiss an indictment on the grounds of double jeopardy."); State v. Workman, 4th Dist. Athens No. 14CA25, 2015-Ohio-4483, 2015 WL 6549290, ¶ 9. Accordingly, an appellate court does not defer to a trial court's decision, but instead independently determines whether the trial court's decision is legally correct. Workman at ¶ 9.

{¶ 7} In the case sub judice, appellant asserts that the trial court incorrectly concluded that the statutes are not void for vagueness as applied to his conduct.

VOID-FOR-VAGUENESS DOCTRINE

{¶ 8} The void-for-vagueness doctrine "rests on the twin constitutional pillars of due process and separation of powers." United States v. Davis, — U.S. —, 139 S.Ct. 2319, 2325, 204 L.Ed.2d 757 (2019) (citations omitted). "Vague laws contravene the 'first essential of due process of law' that statutes must give people 'of common intelligence' fair notice of what the law demands of them." Id., quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926); accord Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999); Kolender v. Lawson, 461 U.S. 352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). In addition, vague laws "undermine the Constitution's separation of powers and the democratic self-governance it aims to protect. Only the people's elected representatives in the legislature are authorized to 'make an act a crime.'" Id., quoting United States v. Hudson, 7 Cranch 32, 34, 11 U.S. 32, 3 L.Ed. 259 (1812). The doctrine thus "guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges." Sessions v. Dimaya, — U.S. —, 138 S.Ct. 1204, 1212, 200 L.Ed.2d 549 (2018).

{¶ 9} A court that is reviewing whether a statute is void for vagueness "must determine whether the enactment (1) provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement." Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 84, citing Kolender, 461 U.S. at 357. In order to survive a void-for-vagueness challenge, a statute "must be written so that a person of common intelligence is able to determine what conduct is prohibited," and the legislative enactment "must provide sufficient standards to prevent arbitrary and discriminatory enforcement." State v. Williams, 88 Ohio St.3d 513, 532, 728 N.E.2d 342 (2000).

{¶ 10} "A statute may be challenged as unconstitutional on the basis that it is invalid on its face or as applied to a particular set of facts. In an as-applied challenge, the challenger 'contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, [is] unconstitutional.'" State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting). The party raising an as-applied challenge bears the burden "to present clear and convincing evidence of a presently existing set of facts" that makes the statute unconstitutional as applied. Cleveland Gear Co. v. Limbach, 35 Ohio St.3d 229, 231, 520 N.E.2d 188 (1988).

{¶ 11} In the case at bar, we first question whether appellant, by pleading guilty, preserved the as-applied void-for-vagueness issue for appeal. Generally, a guilty plea constitutes a complete admission of guilt, Crim.R. 11(B)(1), and "'renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established.'" State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 78, quoting Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), fn.2; accord State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 19; State v. Legg, 2016-Ohio-801, 63 N.E.3d 424 (4th Dist.), ¶ 12. Thus, a defendant who voluntarily, knowingly, and intelligently enters a guilty plea "'may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.'" Fitzpatrick at ¶ 78, quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). In other words, a voluntary, knowing, and intelligent guilty plea waives any alleged constitutional violations unrelated to the entry of the guilty plea and nonjurisdictional defects in the proceedings. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 105; State v. Storms, 4th Dist. Athens No. 05CA30, 2006-Ohio-3547, 2006 WL 1882428, ¶ 9. A guilty plea thus "'effectively waives all appealable errors at trial unrelated to the entry of the plea.'" Ketterer at ¶ 105, quoting State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the syllabus. However, a guilty plea does not "waive a claim that judged on its face the charge is one which the State may not constitutionally prosecute." Menna, 423 U.S. at 63, 96 S.Ct. 241; accord Class v. United States, — U.S. —, 138 S.Ct. 798, 803, 200 L.Ed.2d 37 (2018) (...