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Geauga County sex case remanded for plain error
TRACEY BLAIR
Legal News Reporter
Published: December 30, 2013
A Geauga County trial court committed plain error by imposing a consecutive sentence without appropriate findings against a sex offender.
However, the defendant was not denied due process of law by being immediately sentenced for contempt of court after insulting the prosecutor, the 11th District Court of Appeals ruled recently.
Michael D. Jirousek pleaded guilty to various felony sexually-oriented offenses from 2011 as well as an unrelated 2012 misdemeanor assault case.
He was sentenced to 17 months in prison for unlawful sexual conduct with a minor; 11 months in prison for importuning, to run concurrently and 12 months for pandering obscenity involving a minor, to run consecutively to the first two counts.
“The trial court, however, did not set forth any findings to support the imposition of consecutive sentencing as required by R.C. 2929.14(C)(4),” 11th District Judge Cynthia Westcott Rice wrote in a 3-0 opinion. “The trial court is required to make the appropriate statutory findings prior to imposing consecutive sentence.”
The case has been remanded.
According to case summary:
Jirousek pleaded not guilty to felony assault before Common Pleas Judge Forrest W. Burt during a July 10, 2012, hearing.
After adjournment, court reconvened because Jirousek called the prosecutor a “vulgar” slang term referring to part of the female body.
“Appellant apologized on record,” wrote Judge Rice. “The trial court, however, did not accept the apology and rebuked appellant, stating: `This gentleman is doing his job. He’s an assistant prosecutor. He’s an officer of the court. He’s an officer of the state. What makes you possibly that it’s acceptable to call him that under the circumstances?’
“The court subsequently held appellant in contempt, sentenced him to 10 days in jail, and suspended the court’s sentence. In response to the court’s action, appellant offered to `drop and give (the court) five hundred’ instead.”
Jirousek was also sentenced to 180 days in jail after pleading guilty to misdemeanor assault. Each sentence was ordered to run concurrently with his felony sentences.
On appeal, Jirousek claimed the insult was protected by the First Amendment and judicial privilege.
The appellate court found Jirousek did not file a timely appeal on the matter.
Appellate judges Timothy P. Cannon and Colleen Mary O’Toole concurred.
The case is cited State v. Jirousek, 2013-Ohio-5267.