[Cite as State v. Tate, 2016-Ohio-8309.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104342

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

MELISSA A. TATE

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-600455-A 

BEFORE: S. Gallagher, J., E.A. Gallagher, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: December 22, 2016 
ATTORNEY FOR APPELLANT 

Paul A. Mancino, Jr. 

Mancino, Mancino & Mancino 

75 Public Square Building 

Suite 1016 

Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Khalilah A. Lawson 

Assistant Prosecuting Attorney 

Justice Center - 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
SEAN C. GALLAGHER, J.: 

{¶1} Melissa Tate appeals her child endangerment conviction and the imposed 

three-year prison term. We affirm. 

{¶2} Tate was a child-care services provider. In October 2015, Tate abnormally 

isolated and abused a child in her care, repeatedly hitting the two-year-old victim with 

some kind of a stick. When the victim’s mother arrived to pick up her child, multiple 

bruises were instantly visible and the child was without pants. Tate casually left the 

child care center after the abuse occurred. For this, Tate pleaded guilty to a single count 

of child endangerment in violation of R.C. 2919.22(B)(2), a third-degree felony. A 

surveillance camera recorded Tate’s criminal behavior and was played for the trial court 

at sentencing. After hearing from the defendant, the state, and the victim’s relatives, the 

trial court imposed the maximum sentence of three years in prison. Tate timely appealed, 

challenging her sentence as a matter of right under R.C. 2953.08(A)(1)(a) and her guilty 

plea. We find no merit to Tate’s appeal. 

{¶3} With regard to her guilty plea, Tate claims she was denied due process, and 

her guilty plea thus was invalid because the state failed to specifically name the victim in 

the indictment. In the indictment, the state identified the victim as “John Doe,” but 

included the child’s date of birth. Without citation to authority, Tate claims that the 

victim’s identity must be disclosed in the indictment to adequately inform her of the 

charges. 
{¶4} There are two problems preventing us from considering Tate’s argument as 

having merit. By voluntarily entering a guilty plea, Tate waived the right to contest any 

nonjurisdictional defects occurring before the guilty plea, including any alleged defects in 

the indictment. State v. Salter, 8th Dist. Cuyahoga No. 82488, 2003-Ohio-5652, ¶ 8, 

citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1990); Stacy v. Van Coren, 18 

Ohio St.2d 188, 248 N.E.2d 603 (1969); State v. Hill, 8th Dist. Cuyahoga No. 61685, 

1993 Ohio App. LEXIS 641 (Feb. 4, 1993). Second, and more importantly, “Ohio law 

does not require that a victim be named in an indictment when the identity of the victim is 

not an essential element of the crime.” State v. Hills, 8th Dist. Cuyahoga No. 98848, 

2013-Ohio-2902, ¶ 4; State v. Cicerchi, 182 Ohio App.3d 753, 2009-Ohio-2249, 915 

N.E.2d 350, ¶ 35, fn. 7 (8th Dist.). Nothing in the record indicates there was any 

confusion over which child Tate abused in October 2015, and even if Tate had not waived 

a challenge to nonjurisdictional defects in the indictment, Ohio law does not require the 

state to specifically name the victim in the indictment in this instance. We overrule 

Tate’s argument to the contrary. 

{¶5} Tate advanced three challenges against her three-year sentence of 

imprisonment: (1) the trial court erred by considering the video depicting the conduct 

underlying the criminal charges in violation of Blakely v. Washington, 542 U.S. 296, 124 

S.Ct. 2531, 159 L.Ed.2d 403 (2004); (2) trial counsel provided ineffective assistance by 

failing to object to the trial court’s consideration of that video; and (3) the trial court 

failed to consider the principles and purposes of sentencing before imposing the 
maximum sentence on the third-degree felony. None of Tate’s arguments with respect to 

the imposition of her prison sentence have merit. 

{¶6} Tate contends that the trial court’s consideration of the video surveillance 

footage of her committing the crime violated Blakely because no jury weighed the 

evidence. We disagree. When the defendant’s finding of guilt results from a plea 

agreement, that agreement has never precluded the trial court from considering the 

underlying facts of the case. State v. Smith, 8th Dist. Cuyahoga No. 101387, 

2014-Ohio-5553, ¶ 15, citing State v. Frankos, 8th Dist. Cuyahoga No. 78072, 2001 Ohio 

App. LEXIS 3712 (Aug. 23, 2001), and State v. Clayton, 8th Dist. Cuyahoga No. 99700, 

2014-Ohio-112, ¶ 18. The trial court is not only permitted to consider the conduct 

underlying the charges during the sentencing hearing, but must do so under R.C. 

2929.12(B), which requires the court to consider the seriousness of the offender’s 

conduct. Id. “[T]he seriousness of the offense will generally be based upon the judge’s 

perception of the real facts of what occurred, and the plea bargained offense will simply 

set a ceiling on what the judge can impose.” Frankos, quoting Griffin & Katz, Ohio 

Felony Sentencing Law, at 450-451 (2000 Ed.). Thus, during the sentencing stage, there 

was no error in viewing the video surveillance footage, which undisputedly depicted Tate 

beating the two-year-old child with a stick. 

{¶7} Further, as we have done in the past on identical arguments, we decline to 

apply Blakely to this assignment of error. State v. Hinton, 8th Dist. Cuyahoga No. 

84582, 2005-Ohio-3427, ¶ 16. In Blakely, the Supreme Court held that any fact 
increasing the penalty for a crime beyond the prescribed statutory maximum for that 

crime must be submitted to the jury. Id. at 304. There is no assertion here that the trial 

court’s consideration of the video depicting Tate’s criminal behavior was specifically 

related to a judicial finding that enhanced a sentence beyond the statutory maximum 

sentence. The trial court imposed a three-year sentence, which is within the statutorily 

prescribed sentencing range for the crime to which Tate pleaded guilty. In light of the 

fact that a trial court must consider the evidence of the underlying criminal conduct, we 

need not delve into the ineffective assistance of counsel claim that is predicated on 

allowing the trial court to consider the video. Tate’s trial counsel could not have 

prevented the trial court from viewing the video and, thus, could not have rendered 

ineffective assistance by failing to object. 

{¶8} Finally, Tate claims that the trial court failed to consider the principles and 

purposes of felony sentencing despite the fact that at both the sentencing hearing and 

again in the final entry of conviction, the trial court expressly considered all that was 

required by R.C. 2929.11 and 2929.12. Essentially, Tate is asking this appellate panel to 

reweigh the evidence adduced at the sentencing hearing as it relates to the R.C. 2929.11 

and 2929.12 sentencing factors. Such a review is beyond the statutory limitations placed 

on appellate sentencing review. 

{¶9} Appellate review of felony sentences is governed by R.C. 2953.08. State v. 

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. A defendant has the 

right to appeal any sentence consisting of the maximum term allowed for an offense, any 
prison sentence imposed for a fourth- or fifth-degree felony in certain situations, a 

sentence stemming from certain violent sex offenses, any sentence that included an 

additional prison term imposed pursuant to R.C. 2929.14(B)(2)(a), or a sentence that is 

contrary to law. R.C. 2953.08(A). 

{¶10} Appellate courts must look to the plain language of a statute in determining 

legislative intent. Marcum at ¶ 8. R.C. 2953.08(G)(2) unambiguously provides that an 

appellate court may not modify, vacate, or otherwise alter a final sentence unless it clearly 

and convincingly finds in its review under division (A), (B), or (C) “[(1)] [t]hat the record 

does not support the sentencing court’s findings under division (B) or (D) of 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; [or (2)] [t]hat the sentence is otherwise 

contrary to law.” The review provided for in R.C. 2953.08 is limited. An appellate 

court “may vacate or modify any sentence that is not clearly and convincingly contrary to 

law only if the appellate court finds by clear and convincing evidence that the record does 

not support the sentence.” Marcum at ¶ 23. 

{¶11} We cannot review Tate’s final assigned error as presented, in which she 

seeks reconsideration of the weight to be given to the sentencing factors for the purpose 

of determining the appropriate length of the prison term in this appeal. Tate has failed to 

argue, let alone demonstrate, that her sentence was contrary to law, and as a result, she 

has not presented a basis for us to conclude by clear and convincing evidence that the 

record does not support the sentence. 
{¶12} The trial court, in this case, expressly considered the principles and purposes 

of felony sentencing. A trial court “need only consider the sentencing factors pursuant to 

R.C. 2929.11 and 2929.12 and need not make findings in support of those factors to 

impose a sentence that is not considered contrary to law.” State v. Ongert, 8th Dist. 

Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 12, citing State v. Karlowicz, 8th Dist. 

Cuyahoga No. 102832, 2016-Ohio-925, ¶ 12; State v. Akins, 8th Dist. Cuyahoga No. 

99478, 2013-Ohio-5023, ¶ 18; State v. Switzer, 8th Dist. Cuyahoga No. 102175, 

2015-Ohio-2954, ¶ 12. An appellate court lacks the authority under R.C. 2953.08 to 

consider the weight given to respective sentencing factors because such discretion rests 

solely with the trial court. Ongert; State v. Anderson, 8th Dist. Cuyahoga No. 103490, 

2016-Ohio-3323, ¶ 9 (an assignment of error claiming the trial court failed to consider the 

sentencing factors would be frivolous when the trial court expressly indicates it had, and 

any assigned error relating to the weight the trial court gave to the sentencing factors 

would likewise be frivolous under the Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 

18 L.Ed.2d 493 (1967), review). We overrule Tate’s final assignment of error 

challenging the length of her prison sentence because we cannot clearly and convincingly 

conclude that the sentence is contrary to law. 

{¶13} Tate’s conviction is 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 defendant’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. 

SEAN C. GALLAGHER, JUDGE 

EILEEN A. GALLAGHER, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR