[Cite as State v. Whitten, 2026-Ohio-3637.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 115908
v. :
BRADY WHITTEN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 17, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-25-701245-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Caroline Maver and Daniel T. Van, Assistant
Prosecuting Attorneys, for appellee.
Jonathan N. Garver, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant Brady Whitten (“Whitten”) appeals his
convictions from the Cuyahoga County Court of Common Pleas. He raises the
following assignments of error for review:
Assignment of Error I: The State denied [Whitten] due process of
law and violated the double jeopardy clause by vindictively pursuing
charges against [Whitten] in Cuyahoga County after similar charges
involving the same victim were prosecuted in Lorain County resulting
in [Whitten] being placed on probation. Fifth and Fourteenth
Amendments to the Constitution of the United States and Article I,
Sections 10 and 16, of the Constitution of the State of Ohio.
Assignment of Error II: The trial court abused its discretion and
denied [Whitten] due process of law by failing to hold a hearing on the
issue of competency to stand trial after a referral had been made
pursuant to R.C. 2945.371.
Assignment of Error III: The trial court abused its discretion and
denied [Whitten] due process of law and violated R.C. 2947.06(B) by
failing to review and consider the mitigation of punishment report
prepared pursuant to R.C. 2947.06(B). Fourteenth Amendments to the
Constitution of the United States and Article I, Sections 10 and 16, of
the Constitution of the State of Ohio.
For the reasons set forth below, we affirm Whitten’s convictions.
I. Facts and Procedural History
This case stems from offenses that were alleged to have occurred in
two separate homes in Parma, Ohio from January 1, 2019, through June 5, 2023.
Whitten’s stepdaughter alleged that Whitten requested nude photographs of her and
that Whitten had sexual contact with her when she was under the age of 13. It began
when she was 11 years old and happened multiple times a week. She first reported
the conduct to her boyfriend when she was 14 years old. At that time, she and her
mother lived with Whitten in North Ridgeville, Ohio, which is in Lorain County.
The allegations were reported to the North Ridgeville Police
Department. After the investigation, in September 2023, Whitten was charged in
Lorain County Court of Common Pleas in a five-count indictment. See State v. Whitten, Lorain C.P. No. CR-23-109232.1 Count 1 charged him with importuning,
a felony of the fifth degree; Counts 2 and 3 charged him with gross sexual imposition,
felonies of the third degree (victim under 13); and Counts 4 and 5 charged him with
gross sexual imposition, felonies of the fourth degree.
In November 2024, Whitten pled guilty to importuning, a felony of
the fifth degree, and two counts of gross sexual imposition, felonies of the fourth
degree. The State dismissed Counts 2 and 3 without prejudice. The public docket
indicates that these counts were dismissed based on a conflict regarding venue.
(Whitten, Lorain C.P. No. CR-23-109232, docket entry Nov. 25, 2024.) Whitten was
sentenced to three years of probation, and ordered to pay court costs, and ordered
to register as a Tier I sex offender.
After sentencing, North Ridgeville police advised the Parma Police
Department of the allegations that occurred in Parma’s jurisdiction.
The Parma police investigated and in April 2025, Whitten was
indicted in Cuyahoga County with a 13-count indictment, which included seven
counts of gross sexual imposition in violation of R.C. 2907.05(A)(4)(victim under
13), felonies of the third degree; two counts of kidnapping in violation of R.C.
2905.01(A)(4) with sexual motivation specifications, felonies of the first degree; one
count of abduction in violation of R.C. 2905.02(B), a felony of the third degree; one
count of attempted gross sexual imposition in violation of R.C. 2923.02 and
1 Whitten’s motion to supplement the record with certified copies of the indictment, the bill of particulars, and the docket in Lorain C.P. No. CR-23-109232 was unopposed and granted by this court. (J.E. Mar. 9, 2026).
2907.05(A)(4), a felony of the fourth degree; and two counts of illegal use of a minor
in nudity-oriented material or performance in violation of R.C. 2907.323(A)(1),
felonies of the second degree.
Whitten was arraigned, pled not guilty, and was assigned an attorney.
Multiple pretrials were conducted. In August 2025, Whitten was referred to the
Court Psychiatric Clinic for a competency evaluation. Although the report was
completed and submitted to the trial court, which indicated that Whitten was
competent to stand trial, nothing was placed on the record.
In November 2025, Whitten pled guilty to three counts of gross sexual
imposition, felonies of the third degree, and one count of attempted kidnapping, a
felony of the second degree without the sexual motivation specification. He agreed
that the offenses were not allied offenses of similar import and accepted a Tier II
sex-offender registration.
Whitten was sentenced to 5 years in prison on each count of gross
sexual imposition and 7 to 10 ½ years in prison on the attempted kidnapping count.
The sentences were ordered to be served concurrently for a total of 7 to 10 ½ years
in prison. The trial court imposed 5 years of mandatory postrelease control and
ordered Whitten to pay court costs. He received 6 days of jail-time credit. Whitten
was advised of his registration requirements.
This appeal followed.
II. Law and Analysis
Vindictive Prosecution and Double Jeopardy Claims
In Whitten’s first assignment of error, he argues that his due process
rights and the Double Jeopardy Clause were violated when the Cuyahoga County
Prosecutor’s Office vindictively pursued charges that could have, and should have,
been pursued in the Lorain County case. He contends that he was only indicted in
Cuyahoga County because he received probation in the Lorain County case.
The State counters that Whitten waived this argument by pleading
guilty and by failing to raise the issue in the trial court. The State further argues that
the subsequent indictment did not violate double jeopardy and was not vindictive
prosecution because it involved separate offenses, on separate dates, in separate
counties.
Vindictive Prosecution
The Due Process Clause protects criminal defendants from vindictive
prosecution. State v. Weston, 2014-Ohio-4252, ¶ 47 (7th Dist.), citing Thigpen v.
Roberts, 468 U.S. 27, 30 (1984); Blackledge v. Perry, 417 U.S. 21, 27-28 (1974); U.S.
Const., amend XIV, § 1. “To establish that the government’s actions amounted to
vindictive prosecution, the defendant must demonstrate either actual
vindictiveness, which requires ‘direct evidence of an expressed hostility or threat to
him for having exercised a constitutional right.’” State v. Tankers, 1998 Ohio App.
LEXIS 1724,*13 (8th Dist. Apr. 23, 1998), quoting U.S. v. Scholz, 91 F.3d 157 (9th
Cir. 1996). “To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.” Id., citing Bordenkircher v.
Hayes, 434 U.S. 357, 363 (1978); U.S. v. Goodwin, 457 U.S. 368, 374 (1982).
Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution, and Article I, Section 10 of the Ohio Constitution protect a
defendant from being twice put in jeopardy for the same offense. In re A.G., 2016-Ohio-3306, ¶ 8. Both the United States Supreme Court and the Ohio Supreme Court
have acknowledged that
“[t]he Double Jeopardy Clause protects against three abuses: (1) ‘a
second prosecution for the same offense after acquittal,’ (2) ‘a second
prosecution for the same offense after conviction,’ and (3) ‘multiple
punishments for the same offense.’ North Carolina v. Pearce, 395 U.S.
711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other
grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d
865 (1989).”
Id. at ¶ 8, quoting State v. Ruff, 2015-Ohio-995, ¶ 10.
Waiver
With limited exception, when a defendant like Whitten enters a guilty
plea, “a plea of guilty is a complete admission of the defendant’s guilt.”
Crim.R. 11(B)(1). “[A] defendant who enters a guilty plea waives all
nonjurisdictional defects in prior proceedings, including most challenges to the
indictment.” State v. Logan, 2026-Ohio-2076, ¶ 35 (8th Dist.), citing State v. Sims,
2018-Ohio-388, ¶ 12 (8th Dist.). “As this court has explained, a guilty plea
represents a break in the chain of events that preceded it in the criminal process.”
Id. at ¶ 36, citing State v. Belton, 2016-Ohio-1581, ¶ 83. When a defendant admits in open court that he is guilty of the charged offense, he may not thereafter assert
independent claims concerning the alleged deprivation of constitutional rights that
occurred before the plea was entered. Id., citing State v. Szidik, 2011-Ohio-4093,
¶ 5 (8th Dist.). The waiver does not apply if the errors actively prevented the
defendant from entering a knowing, intelligent, and voluntary plea. Id.
Whitten relies on Blackridge v. Perry, 417 U.S. 21 (1974), asserting
that his vindictive-prosecution and double-jeopardy claims are not waived by
accepting a plea. In Blackridge, while serving a prison sentence, Perry assaulted
another inmate and was charged with misdemeanor assault with a deadly weapon.
He was convicted after a bench trial and sentenced to six more months in prison.
Perry exercised his right for trial de novo in a court of general jurisdiction, which is
an absolute right under North Carolina law and annuls the prior conviction. In the
meantime, the State filed felony charges for the same conduct. Perry pled guilty and
was sentenced to five to seven years in prison.
Perry filed a writ of habeas corpus in federal court arguing a violation
of his due process rights and the Double Jeopardy Clause. The Blackridge Court
recognized a narrow exception where the Due Process Clause prohibits the State
from dragging a defendant into court on a more serious charge based on the same
conduct following the exercise of a legal right.
As will be discussed below, Blackridge is distinguishable because
Whitten was not dragged into court to face increased charges for the same offenses
that he pled guilty to in Lorain County. Rather, he was charged with separate offenses that occurred in a separate jurisdiction. Thus, Whitten waived his
vindictive-prosecution and double-jeopardy claim when he pled guilty.2
Moreover, Whitten did not raise his vindictive-prosecution or doublejeopardy claims in the trial court. Alleged defects in the institution of the
prosecution and/or in the indictment must be raised before trial or they are waived.
Crim.R. 12(C) and (H). “‘As a general rule, an appellate court will not consider an
alleged error that the complaining party did not bring to the trial court’s attention
at the time the alleged error is said to have occurred.’” Cleveland v. Townsend,
2013-Ohio-5421 (8th Dist.), quoting State v. Slagle, 65 Ohio St.3d 597, 604 (1992).
At sentencing, in an effort to secure probation, Whitten argued that
he was currently on probation in Lorain County based on charges arising out of
similar conduct involving his stepdaughter. The trial court inquired and the State
explained that the offenses occurred over several years, starting in Cuyahoga County
and continued in Lorain County when his stepdaughter reported the allegations.
The Parma Police Department was informed of the allegations after the Lorain
County case concluded. At no time did Whitten claim vindictive prosecution or a
violation of the Double Jeopardy Clause; therefore, Whitten forfeited all but plain
error. State v. Toda, 2019-Ohio-4903, ¶ 15 (6th Dist.), citing State v. Pirman, 94
Ohio App.3d 203, 208 (11th Dist. 1994).
2 We also note that Whitten does not contend that his plea was unknowingly or
involuntarily entered, nor do we find any indication in the record to suggest his plea was not knowingly, intelligently, or voluntarily entered.
Plain Error
“Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” Crim.R. 52(B). Plain
error is an obvious error or defect in the trial court proceedings that affects a
substantial right. State v. Rogers, 2015-Ohio-2459, ¶ 22. Plain error requires a
showing that there was an error, that the error was plain or obvious, and that but for
the error the outcome of the proceeding would have been different and that reversal
is necessary to correct a manifest miscarriage of justice. State v. Buttery, 2020-Ohio-2998, ¶ 7, citing State v. Quarterman, 2014-Ohio-4034, ¶ 16. The party
asserting plain error “bears the burden of proof to demonstrate plain error on the
record.” Rogers at ¶ 22, citing Quarterman at ¶ 16.
With the foregoing law in mind, we review Whitten’s vindictiveprosecution and double-jeopardy claims for plain error. The crux of his argument
is that all of the charges should have been prosecuted in Lorain County and that the
Lorain County Prosecutor’s Office chose not to pursue the charges committed in
Cuyahoga County and “instead, chose to hold them in reserve — an ace in the hole
— in order to give the prosecution a second bite at the apple in the event that it was
dissatisfied with the outcome of the Lorain County prosecution.” (Whitten brief, p.
12.) He asserts that under Crim.R. 8(A) and R.C. 2901.12(H) the offenses should
have been charged in one county because the case involved the same victim and
same conduct.
As an initial matter, we note that “[d]ouble jeopardy only prevents
multiple prosecutions for the ‘same offense’ or a ‘separate offense where the
government has lost an earlier prosecution involving the same facts;’ but does not
require the government to bring its prosecutions together.” (Emphasis added.)
State v. Lawrence, 2025-Ohio-5277, ¶ 19 (9th Dist.), quoting United States v. Dixon,
509 U.S. 688, 705 (1993).
Similarly, Ohio’s venue statute, R.C. 2901.12, does not require the
State to prosecute all the charges that are part of a course of criminal conduct in one
county. Rather, R.C. 2901.12 provides in relevant part:
(H) When an offender, as part of a course of criminal conduct, commits
offenses in different jurisdictions, the offender may be tried for all of
those offenses in any jurisdiction in which one of those offenses or any
element of one of those offenses occurred[.]
(Emphasis added.) “The venue statute allows the State to bring charges against a
defendant occurring in different jurisdictions, that occurred as part of a course of
conduct, in any jurisdiction in which one of those offenses or any element of one of
those offenses occurred but does not require it. Thus, the use of the permissive term
‘may’ instead of the term ‘shall.’” (Emphasis added.) Lawrence at ¶ 23.
Likewise, Crim.R. 8(A) states that
[t]wo or more offenses may be charged in the same indictment,
information or complaint in a separate count for each offense if the
offenses charged, whether felonies or misdemeanors or both, are of the
same or similar character, or are based on the same act or transaction,
or are based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan, or are part of a course
of criminal conduct.
(Emphasis added.) Again, Crim.R. 8 allows the joinder of offenses but does not
require it.
Whitten’s vindictive-prosecution and double-jeopardy claims fail
because, as set forth above, neither prosecutor’s office is required to prosecute
crimes occurring in another jurisdiction simply because the offenses involved the
same victim or a course of conduct for the convenience or interests of any of the
parties. Furthermore, it is in the public’s interest to prosecute crimes in the counties
in which they occur, so potential criminals will not be incentivized to commit
offenses in certain jurisdictions assuming they will not be prosecuted in that
jurisdiction.
Furthermore, we find no merit to Whitten’s claim that anyone from
Lorain County purposely waited to inform the Parma Police Department. In this
case, there are very few facts in the record because it was a plea. However, based on
the record before this court, which includes the presentence-investigation report
and the Lorain County Children Service’s records, it is evident that Whitten’s
stepdaughter was very reluctant to talk with anyone, including the forensic
examiner, regarding the details of the allegations and where the offenses occurred.
This is not uncommon with children who have been sexually abused. The details
may be revealed over time and sometimes the details will never be revealed.
A review of the bill of particulars in Lorain County shows that the
Lorain County prosecutor thought all of the offenses occurred at Whitten’s home on
Jaycox Road, in North Ridgeville, including the offenses that occurred when Whitten’s stepdaughter was under the age of 13. Moreover, the State did not dismiss
the charges that occurred in Cuyahoga County until the day of the plea, indicating
that there was a conflict with the venue. Based on the record before this court, it
appears that this is when it was learned that some of offenses occurred in a different
location. By dismissing these counts, all of the offenses committed in Parma from
the time Whitten’s stepdaughter was 11 years old until she turned 13 years old were
left unresolved. North Ridgeville Police Department and the Lorain County
Prosecutor’s Office were required to report the allegations to Parma Police
Department pursuant to R.C. 2151.421.
Finally, after reviewing the Lorain County indictment and the
Cuyahoga County indictment, as well as the pleas accepted in both cases, we find
that the Double Jeopardy Clause was not violated. Whitten’s plea in the Lorain
County case encompassed sexual conduct that occurred when his stepdaughter was
over the age of 13 and the offenses occurred in their home on Jaycox Road in North
Ridgeville, Ohio, which was detailed in the bill of particulars. Whereas, Whitten’s
plea in the Cuyahoga County case involved sexual conduct that occurred when his
stepdaughter was under the age of 13 and the offenses occurred in their home on
Aaron Drive and then in their home on Royal Ridge Drive both in Parma, Ohio,
which was detailed in the indictment.3
3 We note that the timeframe included in the Cuyahoga County indictment, January 1, 2019, through June 5, 2023, includes some of the time that the stepdaughter was over the age of 13 and living in Lorain County. Clearly this is a mistake in the indictment; however, that defect was waived when Whitten pled guilty. Furthermore, we find that it does not rise to a constitutional violation because the record reflects that the
After careful review, we find Whitten has not established a plain or
obvious error in the proceedings; therefore, we find no plain error.
Accordingly, Whitten’s first assignment of error is overruled.
Failing to Hold a Hearing on Competency to Stand Trial
In Whitten’s second assignment of error, he argues that the trial court
abused its discretion and denied him due process of law when it failed to hold a
hearing on competency to stand trial in accordance with R.C. 2945.37(B). The State
counters that failure to hold a hearing is harmless error when the record shows no
indicia of incompetence.
Initially, we note that a defendant is presumed to be competent unless
it is demonstrated by a preponderance of the evidence that he is incapable of
understanding the nature and objective of the proceedings against him or of
presently assisting in his defense. R.C. 2945.37(G). Nevertheless, R.C. 2945.37(B)
states that in a criminal case, if the competency to stand trial is raised, “the trial court
shall hold a hearing on the issue.” (Emphasis added.) However, the ““‘failure to
hold a mandatory competency hearing is harmless error where the record fails to
reveal sufficient indicia of incompetency.’”” State v. Winegarner, 2023-Ohio-319,
¶ 34 (8th Dist.), quoting State v. Almashni, 2010-Ohio-898, ¶ 13 (8th Dist.), quoting
allegations occurred multiple times a week from the time Whitten’s stepdaughter was 11, at two separate homes in Parma, which are delineated in the indictment along with the alleged sexual contact. Therefore, it was not the same conduct that he pled guilty to in Lorain County.
State v. Bock, 28 Ohio St.3d 108, 110 (1986), citing Drope v. Missouri, 420 U.S. 162
(1975).
In State v. Hough, 2022-Ohio-4436, the Ohio Supreme Court
reaffirmed its prior holding in Bock stating that “whether a trial court’s failure to
hold a competency hearing is reversible error is to be determined on a case-by-case
basis.” Id. at ¶ 28. “Where a competency hearing is not held, the right to a hearing
would be constitutionally mandated where the record contains sufficient evidence
of incompetence demonstrating that a competency determination is necessary to
preserve a defendant’s right to a fair trial.” Winegarner at ¶ 34, citing Almashni at
¶ 13, citing State v. Skatzes, 2004-Ohio-6391, ¶ 156.
Here, a competency evaluation was requested by defense counsel and
performed by the Court Psychiatric Clinic. The report was returned to the trial court
prior to Whitten’s plea. The report found Whitten competent to stand trial;
however, no hearing was held in accordance with R.C. 2945.37(B). Nevertheless, we
find that failing to hold a hearing in this case was harmless error.
A review of the record confirms that there is no indicia of
incompetency. First, we note that Whitten was not referred for a competency
evaluation in Lorain County and he successfully navigated that case with a plea and
probation. Second, Whitten had an extensive conversation with the trial court at a
violation hearing regarding his knowledge of the exclusion zones required with his
GPS monitor. He was able to articulate the two zones he was advised of and why he
was observed in a third zone that he was not advised about. Third, Whitten participated in his plea hearing and indicated that he understood the plea
proceedings. Finally, Whitten gave a coherent allocution at sentencing and engaged
in an extensive exchange with the trial court regarding his employment, his sexoffender treatment, his substance-abuse history, and his children of whom he had
custody.
Although R.C. 2945.37(B) requires the trial court to hold a hearing
when competency is questioned, we find that in this case, the failure to hold the
hearing was harmless error because the record does not suggest that Whitten was
incompetent and the Court Psychiatric Clinic found that Whitten was competent to
stand trial.
Accordingly, Whitten’s second assignment of error is overruled.
Failing to Cite the Mitigation-of-Penalty Report
In Whitten’s third and final assignment of error, Whitten argues that
the trial court abused its discretion and his due process rights were violated because
the trial court did not expressly state that it had considered the mitigation report
when sentencing Whitten, and, therefore, his sentence is contrary to law.
The State counters that his sentence is not contrary to law because the
trial court considered R.C. 2929.11 and the sentence was within the statutory range.
The State further argues that Whitten cites no statute or case law in support of his
position and that the record reflects that the trial court did, in fact, consider the
mitigation report.
At the plea hearing, Whitten requested a mitigation-of-penalty report
pursuant to R.C. 2947.06(B), which states:
The court may appoint not more than two psychologists or
psychiatrists to make any reports concerning the defendant that the
court requires for the purpose of determining the disposition of the
case. . . . The psychologist’s or psychiatrist’s reports shall be made in
writing, in open court, and in the presence of the defendant . . . [.] A
copy of each report of a psychologist or psychiatrist may be furnished
to the defendant, if present, who may examine the persons making the
report, under oath, as to any matter or thing contained in the report.
At the sentencing hearing, the trial court stated that it
had the opportunity to review the presentence investigation report
prepared by the Cuyahoga County Adult Probation Department and
has made that report available to counsel. Before imposing sentence,
this Court will consider the record, the PSI, and any written or oral
statements made to the Court today, as is required by Revised Code
Section 2929.19(B)(1).
(Tr. 43.) The trial court also acknowledged receipt of the mitigation-of-penalty
report and the sentencing memoranda submitted by Whitten and the State.
Whitten’s attorney then set forth a detailed argument explaining how
the presumption of prison was overcome; specifically referring to the report stating
that
the psychiatric recommendations in the mitigation of penalty report by
Ph.D., Becca Bergquist, were that [Whitten] be given continued
psychiatric treatment, even recommending cognitive behavioral
therapy, which I don’t believe he is currently receiving the CBT. He is
just receiving that specific like sex offender, mental health type of
therapy. They asked continued substance abuse management with the
Suboxone and then outpatient sex offender treatment. So those are the
court clinic’s recommendations as far as continued care goes.
(Tr. 50.)
After hearing from the State and Whitten’s stepdaughter’s victimimpact statement, the trial court heard from Whitten. Whitten apologized for his
conduct. The trial court questioned him about his employment, his substance abuse,
and the sex-offender-treatment program that he was attending through Lorain
County. The trial court then stated:
So after consideration of the record, the oral statements made here
today, looking at the presentence investigation report, the purposes
and principles of sentencing under Ohio Revised Code Section 2929.11,
the seriousness and recidivism factors relevant to the offense and
offender pursuant to Revised Code Section 2929.12, and the need for
deterrence, incapacitation, rehabilitation, and restitution, the Court
finds that a prison term is consistent with the purposes and principles
of sentencing set forth in section 2929.11 of the Revised Code and finds
that the offender is not amenable to an available community control
sanction.
Furthermore, the Court has considered the factors set forth in 2929.12
and finds that a prison term is commensurate with the seriousness of
the defendant’s conduct, its impact on the victim, and that it’s
reasonably necessary to deter the offender in order to protect the public
from future crimes, and would not place an unnecessary burden on
government resources.
(Tr. 66-67.)
After careful review, we are unable to conclude that the trial court
committed reversible error by failing to directly reference the mitigation-of-penalty
report during the sentencing hearing. This court has rejected a similar argument in
State v. Floyd, 2015-Ohio-763, ¶ 17 (8th Dist.), and then again in State v. Reid, 2019-Ohio-531, ¶ 13 (8th Dist.), noting that “this court found no case law or statute to
support the contention that ‘failing to mention the psychiatric report at the
sentencing hearing constitutes reversible error.’” Reid at ¶ 13, quoting Floyd at ¶ 17. As in Floyd and Reid, Whitten has not cited any persuasive authority to support his
position on appeal. Furthermore, it is evident from the record that the trial court
considered all of the arguments of counsel, including Whitten’s mitigation
arguments drawn directly from the report.
Finally, we find that Whitten’s sentence was not contrary to law
because the record reflects that the trial court considered R.C. 2929.11 and 2929.12,
and sentenced Whitten within the statutory range. Therefore, we find that Whitten’s
due process rights were not violated.
Accordingly, Whitten’s third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The appellant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
TIMOTHY W. CLARY, J., CONCUR