STATE OF OHIO vs. ZACHARY WOLF

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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.

2 R.C. 2907.322(A)(1) states: No person, with knowledge of the character of the material or performance involved, shall do any of the following: (1) Create, record, photograph, film, develop, reproduce, or publish any material that shows a minor or impaired person participating or engaging in sexual activity, masturbation, or bestiality;



R.C. 2907.323 reads: (A) No person shall do any of the following: (1) Photograph any minor or impaired person who is not the person’s child or ward in a state of nudity, or create, direct, produce, or transfer any material or performance that shows the minor or impaired person in a state of nudity, unless both of the following apply: (a) The material or performance is, or is to be, sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, member of the clergy, prosecutor, judge, or other person having a proper interest in the material or performance; (b) The minor’s or impaired person’s parents, guardian, or custodian consents in writing to the photographing of the minor or impaired person, to the use of the minor or impaired person in the material or performance, or to the transfer of the material and to the specific manner in which the material or performance is to be used.



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{¶ 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.

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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

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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

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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

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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)

(determining that defendant’s guilty plea did not waive right to challenge constitutionality of

statute) State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745, 746 (1979), paragraph one of the

syllabus (“While a counseled plea of guilty is an admission of factual guilt which removes issues

of factual guilt from the case, a defendant is not precluded from raising on appeal other issues

which attack the constitutionality of the statute under which he has been convicted.”). A

defendant who enters a guilty plea nevertheless may not raise a constitutional challenge to a

statute if the constitutional claim “contradict[s] the terms of the indictment.” In other words, a

defendant who enters a guilty plea may raise a constitutional challenge to the statute under which

the defendant was convicted when the constitutional claim is “consistent with [the defendant]’s

knowing, voluntary, and intelligent admission that he did what the indictment alleged.” Class,

138 S.Ct. at 804.

{¶ 12} In Class, for instance, the United States Supreme Court held that the defendant,

although he pleaded guilty, could challenge the statute under which the government charged him.

In Class, the government had charged the defendant with possessing firearms while located in

the parking lot of the United States Capitol grounds. The defendant later asked the district court

to dismiss the indictment and asserted that the statute with which the government had charged

him was unconstitutional under the Second Amendment and under the Due Process Clause.

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With respect to the due process issue, the defendant argued that the statute did not give him fair

notice that the statute prohibited possessing firearms while in the parking lot of the United States

Capitol. Ultimately, however, the defendant agreed to plead guilty.

{¶ 13} A written plea agreement listed the rights that the defendant expressly agreed to

waive:

(1) all defenses based upon the statute of limitations; (2) several specified trial rights; (3) the right to appeal a sentence at or below the judicially determined, maximum sentencing guideline range; (4) most collateral attacks on the conviction and sentence; and (5) various rights to request or receive information concerning the investigation and prosecution of his criminal case.



Id. at 802.

{¶ 14} The plea agreement additionally specified the claims that the defendant could raise

on appeal: “(1) newly discovered evidence; (2) ineffective assistance of counsel; and (3) certain

statutes providing for sentence reductions.” Id. Importantly, “[t]he agreement said nothing

about the right to raise on direct appeal a claim that the statute of conviction was

unconstitutional.” Id.

{¶ 15} The defendant subsequently sought to appeal his conviction and restated his

constitutional challenges. The appellate court determined that by pleading guilty, the defendant

waived his right to challenge the constitutionality of the statute. However, on further appeal to

the United States Supreme Court the defendant argued that a guilty plea, by itself, does not

“waive[] the right to challenge the constitutionality of [the] statute of conviction.” Id. at 803.

Somewhat surprisingly, the United States Supreme Court agreed with the defendant and held that

a defendant does not “relinquish his right to appeal [a trial court]’s constitutional determinations

simply by pleading guilty.” Id. The court reasoned that the defendant’s guilty plea did not

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waive his right to raise the constitutional claims when the defendant did “not in any way deny

that he engaged in the conduct to which he admitted” and when the constitutional claims were

“consistent with [the defendant]’s knowing, voluntary, and intelligent admission that he did what

the indictment alleged”. Id. at 805 and 804. The court further observed that resolving the

defendant’s constitutional claims did not require the court “‘to venture beyond th[e] record.’”

Id. at 804, quoting United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 200 L.Ed.2d 37

(2018). Rather, the court explained, the defendant asserted that the statute, “‘”judged on its

face”’ based upon the existing record, would extinguish the government’s power to

‘”constitutionally prosecute”’ the defendant if the claim were successful.” Id. at 806, quoting

United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), quoting

Menna, 423 U.S., at 62–63, and n. 2, 96 S.Ct. 241.

{¶ 16} The Class court further distinguished its holding from Broce. In Broce, the

defendants agreed to plead guilty to two counts of conspiracy but later attempted to argue that

they, in fact, engaged in only one count of conspiracy, and that the second count violated the

Double Jeopardy Clause. The United States Supreme Court held that the guilty pleas waived the

defendants’ rights “to challenge the theory of the indictments and to attempt to show the

existence of only one conspiracy in a trial-type proceeding.” Id. at 571. The court also noted

that the defendants could not “prove their claim by relying on those indictments and the existing

record.” Id. at 576. Instead, the court observed that the defendants could not “prove their claim

without contradicting those indictments.” Id. The court thus held that the “admissions inherent

in [the defendants’] guilty pleas” precluded their opportunity to challenge the constitutionality of

the two convictions. Id.

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{¶ 17} In the case at bar, appellant’s constitutional claims appear to require consideration

of facts that are not contained in the indictment and that never admitted into evidence. Instead,

appellant entered guilty pleas and thereby waived his right to present evidence regarding the

circumstances of the charged crimes. Also, the record does not contain any evidence to support

appellant’s claims that the offenses involved minors above the age of consent. Neither party

presented sworn testimony or evidence to establish the ages of the victims involved in the

offenses. Indeed, by pleading guilty appellant waived any right to present testimony or evidence

“in a trial-type proceeding.” Id. at 571. We further note that any references in the record to the

minors’ ages occurred while the parties presented their arguments during the motion to dismiss

hearing.

{¶ 18} Moreover, unlike the defendant in Class, appellant does not assert that the statutes,

judged on their face, extinguish the state’s ability to constitutionally prosecute him. Instead,

appellant argues that the statutes, specifically as applied to his conduct, extinguish the state’s

ability to constitutionally prosecute him. Appellant thus does not deny that he engaged in the

conduct alleged in the indictment. Rather, appellant claims that the conduct alleged in his

indictment cannot constitutionally support a criminal conviction when the minors involved are

above the age of consent. Consequently, considering appellant’s constitutional claims would

require this court to venture outside the record and consider facts neither alleged in the

indictment nor admitted into evidence. Appellant therefore, cannot “present clear and

convincing evidence of a presently existing set of facts” that makes the statute unconstitutional as

applied. Cleveland Gear Co., 35 Ohio St.3d at 231 (noting that a party raising an as-applied

challenge bears the burden ‘to present clear and convincing evidence of a presently existing set of

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facts’ that makes the statute unconstitutional as applied); see State v. Ross, 4th Dist. No.

16CA3771, 2017-Ohio-9400, 103 N.E.3d 81, 2017 WL 6819407, ¶ 32 (concluding that

defendant who pleaded guilty waived as-applied vagueness challenge to

controlled-substance-analog statute). Appellant’s guilty plea thus constitutes a waiver of the

right to assert that the statute is void-for-vagueness as applied to his specific situation. Class,

138 S.Ct. at 804, citing Broce, 488 U.S. at 569 (noting that defendant’s guilty plea waives

constitutional claim when claim requires court to consider facts not contained in the record);

accord United States v. Miranda, 780 F.3d 1185, 1189 (D.C.Cir.2015) (concluding that guilty

plea waives as-applied constitutional challenge); United States v. De Vaughn, 694 F.3d 1141,

1150, 1153–54 (10th Cir.2012) (stating that a voluntary and intelligent guilty plea waives

as-applied constitutional challenges).

Accordingly, based upon the foregoing reasons, we overrule appellant’s sole

assignment of error and affirm the trial court’s judgment.