State v. Snow

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[Cite as State v. Snow, 2007-Ohio-6338.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, : APPEAL NO. C-060963 TRIAL NO. B-0507641 : O P I N I O N. vs. TINNAGEE SNOW, Defendant-Appellant. : : : Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: November 30, 2007 Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee, Roger W. Kirk, for Defendant-Appellant. Note: We have removed this case from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS CUNNINGHAM, Judge. {¶1} Raising two assignments of error, defendant-appellant Tinnagee Snow appeals from the trial court s November 3, 2006, entry adjudicating him a sexual predator following a classification hearing. Snow s classification as a sexual predator stemmed from his plea of guilty to one count of unlawful sexual conduct with a minor.1 The 18-yearold Snow admitted to having had intercourse with a female co-worker who was under 16 years of age. The trial court accepted his guilty plea, imposed a sentence of one year s imprisonment, and adjudicated Snow a child-victim predator.2 {¶2} In the appeal numbered C-050974, this court reversed the child-victim- predator adjudication and remanded the case to the trial court for a new classification hearing. At the November 3, 2006, hearing, both parties stipulated to a written evaluation of Snow prepared by a court-appointed clinical psychologist. Snow, having been released from prison, testified that he was gainfully employed and was scheduled to attend a sexually-oriented-offense treatment program that was to begin five days after the date of the hearing. {¶3} Following the classification hearing, the trial court reviewed the factors identified in R.C. 2950.09(B) and found that Snow had a history of substance abuse, employment instability, and rule violations, that Snow had had intercourse with an underage female, and that as a juvenile he had been adjudicated delinquent for attempted gross sexual imposition involving a nine-year-old child. The trial court also noted that Snow s score on a Static-99 test indicated a moderate-to-high risk of recidivism and that the court-appointed psychologist indicated that Snow had dismissed the seriousness of his prior gross-sexual-imposition offense and of the current offense. 1 2 See R.C. 2907.04(A). See R.C. 2950.01(S)(1)(a)(i). 2 OHIO FIRST DISTRICT COURT OF APPEALS {¶4} In his first assignment of error, Snow challenges the weight of the evidence adduced to support the trial court s adjudication that Snow is a sexual predator. We are persuaded that the trial court had ample evidentiary material before it to produce a firm belief or conviction that Snow was likely to engage in one or more sexually oriented offenses sometime in the future. 3 Consequently, the trial court s determination that Snow is a sexual predator was supported by competent, credible evidence and will not be reversed.4 The assignment of error is overruled. {¶5} In his second assignment of error, Snow contends that Ohio s sexual- predator adjudicatory scheme, found in R.C. Chapter 2950, is unconstitutional under Blakely v. Washington5 because the scheme permits the imposition of an additional criminal sentence upon factual findings made by only a judge and not made by a jury or admitted by a defendant. Since Snow s adjudication as a sexual predator was based solely upon the trial court s detailed factual findings, he argues that the adjudication constitutes a sentence and additional potential penalties imposed in violation of the Sixth Amendment to the federal constitution.6 {¶6} But R.C. Chapter 2950 is neither criminal, nor a statute that inflicts punishment. 7 A sexual-predator proceeding is civil and remedial in nature.8 Therefore, the Sixth Amendment rights that an accused would enjoy [i]n all criminal prosecutions R.C. 2950.01(E)(1); see, also, State v. Eppinger, 91 Ohio St.3d 158, 162, 2001-Ohio-247, 743 N.E.2d 881. 4 See State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, syllabus; see, also, In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 481 N.E.2d 613. 5 (2004), 542 U.S. 296, 124 S.Ct. 2531; see, also, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. 6 Appellant s Brief at 5. 7 State v. Williams, 88 Ohio St.3d 513, 528, 2000-Ohio-428, 728 N.E.2d 342; see, also, State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, 700 N.E.2d 570. 8 See State v. Gowdy, 88 Ohio St.3d 387, 2000-Ohio-355, 727 N.E.2d 579. 3 3 OHIO FIRST DISTRICT COURT OF APPEALS do not attach to a sexual-predator hearing.9 Judicial fact-finding made pursuant to R.C. Chapter 2950 does not run afoul of Blakely s proscription against imposing a sentence greater than that allowed by the jury verdict or by the [accused s] admissions at a plea hearing. 10 The second assignment of error is overruled. {¶7} Therefore, the trial court s sexual-predator adjudication is affirmed. Judgment affirmed. SUNDERMANN, P.J., and HENDON, J., concur. Please Note: The court has recorded its own entry on the date of the release of this opinion. 9 Sixth Amendment to the United States Constitution; see, also, Goldfuss v. Davidson, 79 Ohio St. 3d 116, 126, 1997-Ohio-401, 679 N.E.2d 1099; State v. Hall (Oct. 10, 1997), 1st Dist. No. C960772. 10 State v. Foster at ¶7; see State v. Bursey, 8th Dist. No. 88924, 2007-Ohio-4847, at ¶18. 4

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