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Date: 12-04-2017

Case Style:

STATE OF OHIO- vs -TYLER P. MERKLE

Merkle Changes Plea in Sexual Battery Case

Case Number: 2016-G-0103

Judge: COLLEEN MARY O’TOOLE

Court: IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO

Plaintiff's Attorney: James R. Flaiz, Geauga County Prosecutor

Defendant's Attorney: Richard J. Perez

Description: Appellant was employed as a study hall aide, tutor, and athletic coach at
Chardon High School. Appellant, who was 26 years old at the time, began a sexual
relationship with a 15 year old female student between December 2015 and April 2016.
Appellant exchanged love notes, cell phone communications, and pictures.
{¶3} On May 24, 2016, the Geauga County Grand Jury indicted appellant on
twelve counts: counts one through ten, sexual battery, felonies of the third degree, in
violation of R.C. 2907.03(A)(7); count eleven, illegal use of a minor in nudity oriented
material or performance, a felony of the second degree, in violation of R.C.
2907.323(A)(1); and count twelve, illegal use of a minor in nudity oriented material or
performance, a felony of the fifth degree, in violation of R.C. 2907.323(A)(3). Appellant
was represented by counsel, pleaded not guilty to all charges, and waived his right to a
speedy trial.
{¶4} On August 24, 2016, appellant withdrew his not guilty plea and entered
into a plea agreement with appellee, the state of Ohio. Appellant pleaded guilty to
counts one through four, sexual battery, felonies of the third degree, in violation of R.C.
2907.03(A)(7). The parties agreed that counts one through four do not merge for
purposes of sentencing. The trial court accepted appellant’s guilty plea, dismissed the
remaining charges, and referred the matter to the Adult Probation Department for a
presentence investigation and report.
{¶5} On October 31, 2016, the trial court sentenced appellant to 60 months in
prison on each of the four sexual battery counts, to be served concurrently, for a total
sentence of 60 months, and imposed a monetary fine. The court notified appellant that
post-release control is mandatory for five years. The court further classified appellant
3
as a Tier III sex offender.1 Appellant filed a timely appeal and raises the following four
assignments of error:
{¶6} “[1.] Ohio Revised Code Section 2950.01 is in violation of appellant’s
constitutional rights under the Ohio and United States Constitution, as such, R.C.
2950.01 is unconstitutional.
{¶7} “[2.] Ohio Revised Code Section 2950.01 is in violation of appellant’s due
process rights under the Ohio and United States constitution, as such, R.C. 2950.01 is
unconstitutional.
{¶8} “[3.] Ohio Revised Code Section 2950.01 is in violation of appellant’s
Eighth Amendment rights under the Ohio and United States constitutions, as such, R.C.
2950.01 is unconstitutional.
{¶9} “[4.] The trial court erred when it sentenced appellant in a manner
inconsistent and disproportionate with other, similar Ohio cases and the sentences of
[h]is co-defendants.”
{¶10} In his first assignment of error, appellant argues that R.C. 2950.01 violates
his constitutional rights. Appellant asserts there is no rational basis in protecting the
public from sex offenders by labeling individuals convicted of sexual battery under R.C.
2907.03 automatically with a Tier III status. Appellant further asserts that the statute
prohibiting sexual conduct between a student and a teacher, administrator, coach, or
other person in authority employed by or serving in a school and the application of R.C.
2950.01 to that violation is not rationally related to a legitimate governmental purpose.
1. Appellant’s counsel had objected to the lifetime reporting requirement on constitutional grounds.
4
{¶11} “The constitutionality of a statute is a matter of law which an appellate
court reviews de novo.” State v. Jenson, 11th Dist. Lake No. 2005-L-193, 2006-Ohio
5169, ¶5.
{¶12} Statutes are presumed constitutional. State v. Noling, 149 Ohio St. 3d
327, 2016-Ohio-8252, ¶9. Regarding an equal protection argument, “[b]efore a court
may declare unconstitutional an enactment of the legislative branch, ‘it must appear
beyond a reasonable doubt that the legislation and constitutional provisions are clearly
incompatible.’” ‘(Citations omitted.) Arbino v. Johnson & Johnson, 116 Ohio St.3d 468,
2007-Ohio-6948, * * *, ¶25. The rational-basis ‘test requires that a statute be upheld if it
is rationally related to a legitimate government purpose. (* * *) Under such a review, a
statute will not be invalidated if it is grounded on a reasonable justification, even if its
classifications are not precise. (* * *).’ (Parallel citation omitted.) Id. at ¶66.” (Parallel
citation omitted.) State v. Valentyn, 11th Dist. Lake No. 2015-L-072, 2015-Ohio-4834,
¶8.
{¶13} “* * * Ohio’s classification of sexual offenders was altered by the passage
of Senate Bill 10, Ohio’s Adam Walsh Act. With the passage of Senate Bill 10, the
General Assembly enacted a new classification and registration scheme introducing a
tier structure. As such, an individual may be labeled as a Tier I, II, or III offender. An
individual’s registration and classification obligations under Senate Bill 10 depend on his
or her crime, not upon his or her threat to the community.” State v. Metzger, 11th Dist.
Portage No. 2010-P-0077, 2011-Ohio-3749, ¶9.
{¶14} R.C. 2950.01 is the statutory scheme that classifies sex offenses and
offenders into different categories. At issue here is R.C. 2950.01(G)(1)(a) which states:
5
{¶15} “(G) ‘Tier III sex offender/child-victim offender’ means any of the following:
{¶16} “(1) A sex offender who is convicted of, pleads guilty to, has been
convicted of, or has pleaded guilty to any of the following sexually oriented offenses:
{¶17} “(a) A violation of section 2907.02 or 2907.03 [sexual battery] of the
Revised Code[.]”
{¶18} In this case, appellant pleaded guilty to four counts of sexual battery in
violation of R.C. 2907.03(A)(7) which states:
{¶19} “(A) No person shall engage in sexual conduct with another, not the
spouse of the offender, when any of the following apply:
{¶20} “* * *
{¶21} “(7) The offender is a teacher, administrator, coach, or other person in
authority employed by or serving in a school for which the state board of education
prescribes minimum standards pursuant to division (D) of section 3301.07 of the
Revised Code, the other person is enrolled in or attends that school, and the offender is
not enrolled in and does not attend that school.”
{¶22} Appellant argues that the sexual battery statute as applied to a teacher,
administrator, coach, or other person in authority employed by or serving in a public
school, R.C. 2907.03(A)(7), is unconstitutional. “The legislature explained in enacting
the statute that it intended to protect individuals in a variety of situations where another
might take unconscionable advantage of that individual. See 1974 Committee
Comment to R.C. 2907.03(A)(7). In 1994, the legislature amended the statute to
include 2907.03(A)(7) in response to a case which held that teachers did not fall under
any of the classifications in the prior statute.” State v. Shipley, 9th Dist. Lorain No.
6
03CA008275, 2004-Ohio-434, ¶80 (holding that R.C. 2907.03(A)(7) is constitutional and
does not violate equal protection); see also State v. Summers, 3d Dist. Mercer No. 10
13-22, 2014-Ohio-4538, ¶51-52 (holding that R.C. 2907.03(A)(7) is constitutional and
there is a clear rational basis for the statute).
{¶23} The particular issue raised by appellant has not yet come before the Ohio
Supreme Court. However, appellant’s equal protection/constitutional challenge has
been previously addressed and decided by our sister courts. See Shipley, supra, at
¶77, 80; see also Summers, supra, at ¶51-52. In fact, at oral argument, appellant’s
attorney conceded that the issues have been determined and that the law does not
favor appellant.
{¶24} The precedent has upheld the legitimate governmental interest in tracking
sex offenders post-conviction and that unconscionable sexual conduct, such as the
case before us involving third degree felonies, supports lifetime reporting requirements.
We find based upon precedent that the Tier III status under R.C. 2950.01(G)(1)(a), as it
relates to R.C. 2907.03(A)(7), does not violate the equal protection clause. R.C.
2907.03(A)(7) is rationally related to its intended purpose of preventing teachers,
administrators, coaches, or other persons in authority employed by or serving in a public
school from taking unconscionable advantage of students, no matter their age, by using
their undue influence over the students in order to pursue sexual relationships.
Appellant has failed to show that the statute and tiers bear no rational relationship to a
legitimate governmental purpose. See Shipley, supra, at ¶81; see also Summers,
supra, at ¶51. Appellant has failed to demonstrate that the strong presumption of
7
constitutionality afforded to statutes has been overcome in this case. See Summers,
supra, at ¶52.
{¶25} Appellant’s first assignment of error is without merit.
{¶26} In his second assignment of error, appellant contends that R.C. 2950.01 is
in violation of appellant’s due process rights under the Ohio and United States
constitutions. Appellant asserts a hearing is required before a trial court can impose a
Tier III sex offender label.
{¶27} The Ohio Supreme Court in State v. Hayden, 96 Ohio St.3d 211, 2002
Ohio-4169, considered an argument that under the prior version of the sexual
registration statute, a criminal defendant’s automatic classification as a sexually
oriented offender resulting from his conviction for a crime specified in the statute
deprived him of procedural due process. The Supreme Court held that it did not. Id.
¶18.
{¶28} We determine the case before us to be indistinguishable from the holding
in Hayden. Appellant was entitled to all the due process protections of a jury trial on the
pending charges. By pleading guilty, he waived those rights. Appellant’s classification
as a Tier III sex offender was a required part of his criminal sentence as a result of his
sexual battery convictions under R.C. 2907.03(A)(7). See State v. Moore, 2nd Dist.
Darke No. 2014-CA-13, 2015-Ohio-551, ¶10.
{¶29} Appellant’s second assignment of error is without merit.
{¶30} In his third assignment of error, appellant alleges that R.C. 2950.01 is in
violation of his Eighth Amendment rights under the Ohio and United States
constitutions.
8
{¶31} “For adult sexual offenders under R.C. Chapter 2950 (as enacted by S.B.
10, the Adam Walsh Act), trial courts have no discretion in labeling the offender.” State
v. Martin, 8th Dist. Cuyahoga No. 102783, 2016-Ohio-922, ¶15. The Ohio Supreme
Court has held that the Tier II registration and address verification requirement for sex
offenders does not constitute cruel and unusual punishment. State v. Blankenship, 145
Ohio St.3d 221, 2015-Ohio-4624.
{¶32} Our sister courts have likewise held that the Tier III requirement and
designation for adult sex offenders, at issue in the case at bar, does not constitute cruel
and unusual punishment under the Ohio and United States constitutions. State v.
Lukacs, 188 Ohio App.3d 597, 2010-Ohio-2364, ¶66-67 (1st Dist.); State v. Stidam, 4th
Dist. Adams No. 15CA1014, 2016-Ohio-7906, ¶51, 58; State v. Martin, 8th Dist. supra
at ¶15, 17-19, 29; State v. Ortiz, 185 Ohio App.3d 733, 2010-Ohio-38, ¶27 (9th Dist.).
{¶33} Appellant’s third assignment of error is without merit.
{¶34} In his fourth assignment of error, appellant maintains the trial court erred
in sentencing him in a manner inconsistent and disproportionate with other similar Ohio
cases and with the sentences of other defendants.
{¶35} “‘(T)his court utilizes R.C. 2953.08(G) as the standard of review in all
felony sentencing appeals.’ State v. Hettmansperger, 11th Dist. Ashtabula No. 2014-A
0006, 2014-Ohio-4306, ¶14. R.C. 2953.08(G) provides, in pertinent part:
{¶36} “(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
9
{¶37} “The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and convincingly finds either
of the following:
{¶38} “(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶39} “(b) That the sentence is otherwise contrary to law.”
{¶40} “This court has held that consistency in sentencing is not a matter of
comparing similar offenders or similar cases. State v. DeMarco, 11th Dist. Lake No.
2007-L-130, 2008-Ohio-3511, ¶25. In holding that cases cannot be formulaically
compared in the abstract, we are ultimately acknowledging the circumstances and
realities attaching to one case will always differ from another. State v. Vanderhoof, 11th
Dist. Lake No. 2013-L-036, 2013-Ohio-5366, ¶24, citing State v. Burrell, 11th Dist.
Portage No. 2009-P-0033, 2010-Ohio-6059. And, by designating a range from which a
judge can choose an appropriate sentence, Ohio law recognizes that more severe
punishments may be necessary to accomplish the purposes of felony sentencing, even
if two defendants commit the same type of crime. Id. ‘Consistency in sentencing is
accordingly measured by a trial court’s proper application and consideration of Ohio’s
sentencing guidelines.’ Vanderhoof, supra citing State v. Price, 11th Dist. Geauga No.
2007-G-2785, 2008-Ohio-1134, ¶33. Thus, for an appellant to demonstrate
10
inconsistency in sentencing, he or she must show the trial court failed to properly
consider the relevant statutory factors and guidelines. Id.” State v. Moore, 11th Dist.
Geauga No. 2014-G-3195, 2014-Ohio-5183, ¶49.
{¶41} Appellant takes issue with R.C. 2929.11 and 2929.12. Although trial
courts have full discretion to impose any term of imprisonment within the statutory
range, they must consider the sentencing purposes in R.C. 2929.11 and the guidelines
contained in R.C. 2929.12.
{¶42} R.C. 2929.11, “Overriding purposes of felony sentencing,” states in part:
{¶43} “(A) A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of felony sentencing
are to protect the public from future crime by the offender and others and to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources. To achieve those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both.
{¶44} “(B) A sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony 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 crimes committed by similar offenders.”
11
{¶45} The guidelines contained in R.C. 2929.12, “Factors to consider in felony
sentencing,” state in part:
{¶46} “(A) Unless otherwise required by section 2929.13 or 2929.14 of the
Revised Code, a court that imposes a sentence under this chapter upon an offender for
a felony has discretion to determine the most effective way to comply with the purposes
and principles of sentencing set forth in section 2929.11 of the Revised Code. In
exercising that discretion, the court shall consider the factors set forth in divisions (B)
and (C) of this section relating to the seriousness of the conduct, the factors provided in
divisions (D) and (E) of this section relating to the likelihood of the offender’s recidivism,
and the factors set forth in division (F) of this section pertaining to the offender’s service
in the armed forces of the United States and, in addition, may consider any other factors
that are relevant to achieving those purposes and principles of sentencing.
{¶47} “(B) The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and any other relevant factors, as
indicating that the offender’s conduct is more serious than conduct normally constituting
the offense:
{¶48} “(1) The physical or mental injury suffered by the victim of the offense due
to the conduct of the offender was exacerbated because of the physical or mental
condition or age of the victim.
{¶49} “(2) The victim of the offense suffered serious physical, psychological, or
economic harm as a result of the offense.
{¶50} “(3) The offender held a public office or position of trust in the community,
and the offense related to that office or position.
12
{¶51} “(4) The offender’s occupation, elected office, or profession obliged the
offender to prevent the offense or bring others committing it to justice.
{¶52} “(5) The offender’s professional reputation or occupation, elected office, or
profession was used to facilitate the offense or is likely to influence the future conduct of
others.
{¶53} “(6) The offender’s relationship with the victim facilitated the offense.
{¶54} “(7) The offender committed the offense for hire or as a part of an
organized criminal activity.
{¶55} “(8) In committing the offense, the offender was motivated by prejudice
based on race, ethnic background, gender, sexual orientation, or religion.
{¶56} “(9) If the offense is a violation of section 2919.25 or a violation of section
2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family
or household member at the time of the violation, the offender committed the offense in
the vicinity of one or more children who are not victims of the offense, and the offender
or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of
one or more of those children.
{¶57} “(C) The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and any other relevant factors, as
indicating that the offender’s conduct is less serious than conduct normally constituting
the offense:
{¶58} “(1) The victim induced or facilitated the offense.
{¶59} “(2) In committing the offense, the offender acted under strong
provocation.
13
{¶60} “(3) In committing the offense, the offender did not cause or expect to
cause physical harm to any person or property.
{¶61} “(4) There are substantial grounds to mitigate the offender’s conduct,
although the grounds are not enough to constitute a defense.
{¶62} “(D) The sentencing court shall consider all of the following that apply
regarding the offender, and any other relevant factors, as factors indicating that the
offender is likely to commit future crimes:
{¶63} “(1) At the time of committing the offense, the offender was under release
from confinement before trial or sentencing; was under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code; was under post-release
control pursuant to section 2967.28 or any other provision of the Revised Code for an
earlier offense or had been unfavorably terminated from post-release control for a prior
offense pursuant to division (B) of section 2967.16 or section 2929.141 of the Revised
Code; was under transitional control in connection with a prior offense; or had
absconded from the offender’s approved community placement resulting in the
offender’s removal from the transitional control program under section 2967.26 of the
Revised Code.
{¶64} “(2) The offender previously was adjudicated a delinquent child pursuant
to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter
2152. of the Revised Code, or the offender has a history of criminal convictions.
{¶65} “(3) The offender has not been rehabilitated to a satisfactory degree after
previously being adjudicated a delinquent child pursuant to Chapter 2151. of the
Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised
14
Code, or the offender has not responded favorably to sanctions previously imposed for
criminal convictions.
{¶66} “(4) The offender has demonstrated a pattern of drug or alcohol abuse that
is related to the offense, and the offender refuses to acknowledge that the offender has
demonstrated that pattern, or the offender refuses treatment for the drug or alcohol
abuse.
{¶67} “(5) The offender shows no genuine remorse for the offense.
{¶68} “(E) The sentencing court shall consider all of the following that apply
regarding the offender, and any other relevant factors, as factors indicating that the
offender is not likely to commit future crimes:
{¶69} “(1) Prior to committing the offense, the offender had not been adjudicated
a delinquent child.
{¶70} “(2) Prior to committing the offense, the offender had not been convicted
of or pleaded guilty to a criminal offense.
{¶71} “(3) Prior to committing the offense, the offender had led a law-abiding life
for a significant number of years.
{¶72} “(4) The offense was committed under circumstances not likely to recur.
{¶73} “(5) The offender shows genuine remorse for the offense.”
{¶74} At the sentencing hearing, the trial court stated the following: it considered
the purposes and principles of felony sentencing in arriving at a just sentence together
with the seriousness and recidivism factors and balanced those factors and considered
all relevant factors as well as the degree and type of felonies; the court took appellant’s
statement into account, as well as the PSI report, Dr. Risen’s report (from the Center for
15
Marital and Sexual Health), the burden on state and local resources, appellant’s
sentencing memo, letters in support of appellant, victim impact correspondence, and the
entire record; weighed the mitigation arguments; indicated that appellant’s conduct was
socially unaccepted, out of custom, illicit, criminal, felonious, and the crimes are very,
very seriously regarded; acknowledged that appellant had done some good in his life
but those good things did not cancel out appellant’s conduct; noted that appellant, while
engaging in sexual conduct with a 15 year old student, knew her age and had
researched the potential penalties and was well aware of the serious consequences
associated with his criminal activity; appellant showed a blatant disregard for the law;
appellant was mature enough to know and did know right from wrong; appellant
betrayed and abused a sacred trust of an underage high school student; it was not an
impulse event but rather a persistent course of conduct; indicated that following
appellant’s arrest, he violated his bond conditions by continuing to contact the minor
victim; and the court concluded that anything less than prison would be demeaning to
the seriousness of the offense.
{¶75} Also, in its October 31, 2016 judgment, the trial court indicated it had
considered the record, information, reports, and victim impact statement, based upon
the purposes and principles of sentencing under R.C. 2929.11 and the seriousness and
recidivism sentencing factors under R.C. 2929.12 before imposing sentence.
{¶76} Accordingly, the record reflects the trial court gave due deliberation to the
relevant statutory considerations. The court considered the purposes and principles of
felony sentencing under R.C. 2929.11, and balanced the seriousness and recidivism
factors under R.C. 2929.12, as evidenced from the record. Appellant was concurrently
16
sentenced to 60 months on four counts of sexual battery, felonies of the third degree,
following a guilty plea. Thus, the court sentenced appellant within the statutory range
under R.C. 2929.14(A) (“(3)(a) For a felony of the third degree that is a violation of
section * * * 2907.03 [sexual battery] * * * of the Revised Code * * * the prison term shall
be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty
months.”)
{¶77} Further, the record reveals the court properly advised appellant regarding
post-release control. Therefore, the trial court complied with all applicable rules and
statutes and, as a result, appellant’s sentence is not clearly and convincingly contrary to
law.
{¶78} Appellant’s fourth assignment of error is without merit.

Outcome: For the foregoing reasons, appellant’s assignments of error are not well
taken. The judgment of the Geauga County Court of Common Pleas is affirmed.

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