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State v. Elder2/28/2003
DECISION AND JUDGMENT ENTRY
This matter comes before the court on appeal from the Ottawa
. County Court of Common Pleas. The facts giving rise to this appeal are as follows.
. On January 30, 2001, a bill of information was filed charging appellant, Joseph Elder, with one count of sexual battery and one count of attempted sexual battery. The alleged victim was appellant's minor daughter. On February 13, 2001, appellant entered guilty pleas to both charges. The court found him guilty and sentenced him to five years in prison for the charge of sexual battery and eighteen months in prison for the charge of attempted sexual battery. The sentences were ordered served consecutively. Appellant was also adjudicated a sexual predator pursuant to R.C. 2950.01(E). Appellant now appeals setting forth the following assignments of error:
. "I. IT CONSTITUTED ERROR NOT TO INCLUDE THE FINDING THAT APPELLANT WAS DETERMINED TO BE A SEXUAL PREDATOR IN THE JUDGMENT OF SENTENCE AND CONVICTION.
. "II. THE CLASSIFICATION OF APPELLANT AS A SEXUAL PREDATOR IS UNSUPPORTED BY THE RECORD.
. "III. THE CLASSIFICATION OF APPELLANT AS A SEXUAL PREDATOR IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
. "IV. IT CONSTITUTED ERROR NOT TO PROVIDE APPELLANT WITH THE NOTICE REQUIRED BY OHIO REVISED CODE SECTION 2950.03(A)(2) AT THE TIME OF SENTENCING.
. "V. IT CONSTITUTED ERROR NOT TO COMPLETE THE HEARING TO DETERMINE WHETHER APPELLANT IS A SEXUAL PREDATOR AT THE TIME OF SENTENCING.
. "VI. THE PROCEEDINGS UNDERTAKEN TO CLASSIFY APPELLANT AS A SEXUAL PREDATOR WERE CONDUCTED IN A MANNER CONTRARY TO LAW.
. "VII. IT CONSTITUTED ERROR TO IMPOSE MAXIMUM SENTENCES UPON APPELLANT.
. "VIII. IT CONSTITUTED ERROR TO IMPOSE CONSECUTIVE SENTENCES UPON APPELLANT."
. In his first, fourth, fifth and sixth assignments of error, appellant challenges the procedure employed in classifying him a sexual predator. Appellant's arguments can be summarized as follows: (1) the court erred in not classifying appellant a sexual predator before sentencing and (2) the court erred in issuing two separate judgment entries rather than specifying appellant's predator determination in his judgment entry of sentence.
. R.C. 2950.09(B)(1) provides that a sexual predator hearing shall be conducted "prior to sentencing." R.C. 2950.03(B)(3) provides in pertinent part: " f the judge determines by clear and convincing evidence that the offender is a sexual predator, the judge shall specify in the offender's sentence and the judgment of conviction that contains the sentence that the judge has determined that the offender is a sexual predator and shall specify that the determination was pursuant to division (B) of this section. * * *" R.C. 2950.03(A)(2) provides that a defendant classified as a sexual predator shall be notified of his duty to register as a sexual predator at the time of sentence.
. At appellant's sentencing on May 2, 2001, the trial judge stated: " s I have in previous cases, I will consider as evidence for the purposes of this classification hearing the pre-sentence investigation and the evaluation done by the Court Diagnostic and Treatment Center * In addition, the court will consider for purposes of the sexual classification, the testimony taken at the trial herein, which commenced December 5th of the year 2000." Appellant's defense attorney stated that the only evidence he intended to rely upon was the presentence investigation and the Court Diagnostic evaluation. The trial judge responded: "All right. Fine. I will consider the matter of the classification submitted. I
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