2019 OHIO 1915 - State v. Anderson

[Cite as State v. Anderson,

2019-Ohio-1915

.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                      Court of Appeals No. L-18-1110

        Appellee                                   Trial Court No. CR0201801190

v.

Gregory D. Anderson                                DECISION AND JUDGMENT

        Appellant                                  Decided: May 17, 2019

                                               …

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Dan M. Weiss, for appellant.

                                               …

        PIETRYKOWSKI, J.

        Appellant, Gregory Anderson, appeals from the April 25, 2018 judgment of the

Lucas County Court of Common Pleas convicting him of attempted rape, a violation of

R.C. 2923.02 and 2907.02(A)(1)(c) and (B), following acceptance of appellant’s guilty

plea entered pursuant to North Carolina v. Alford,

400 U.S. 25, 31

91 S.Ct. 160

27 L.Ed.2d 162

 (1970). Appellant appeals and asserts the following single assignment of

error:

               TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

         IN ACCEPTING A GUILTY PLEA, WHICH WAS NOT MADE

         KNOWINGLY, IN VIOLATION OF APPELLANT’S DUE PROCESS

         RIGHTS.

         A guilty or no contest plea must be made knowingly, intelligently, and voluntarily

to be valid under both the United States and Ohio Constitutions. Boykin v. Alabama,

395 U.S. 238, 242-243

89 S.Ct. 1709

23 L.Ed.2d 274

 (1969); State v. Engle,

74 Ohio St.3d 525, 527

660 N.E.2d 450

 (1996). Ohio Crim.R. 11(C) sets forth a procedure which will

enable the trial court to accept only constitutionally-valid guilty pleas and provide a

record for review. State v. Barker,

129 Ohio St.3d 472

2011-Ohio-4130

953 N.E.2d 826

, ¶ 9. Before accepting a plea of guilty or no contest to a felony offense, Crim.R.

11(C)(2) requires that a trial court conduct a hearing with a personal colloquy with the

defendant, make specific determinations and give specific warnings required by Crim.R.

11(C)(2)(a) and (b), and notify the defendant of the constitutional rights listed in Crim.R.

11(C)(2)(c). State v. Veney,

120 Ohio St.3d 176

2008-Ohio-5200

897 N.E.2d 621, ¶ 13

.

Failure to comply with Crim.R. 11 renders the plea void because the trial court could not

have concluded whether it was knowingly and voluntarily made, State v. Clark,

119 Ohio St.3d 239

2008-Ohio-3748

893 N.E.2d 462, ¶ 31-32

. In that case, the defendant does




2.
not need to demonstrate prejudice and the plea must be vacated. State v. Sanders, 6th

Dist. Lucas No. L-15-1068,

2016-Ohio-1397, ¶ 6-8

.

       Appellant argues that the trial court did not substantially comply with Crim.R. 11

because the court did not notify appellant of all of the punitive consequences of entering

a guilty plea and having a sex offender classification. More specifically, appellant argues

the trial court did not inform him of the two major penalty requirements related to his

Tier III classification: the ban against living within 1,000 feet of a school, preschool, or

child daycare, R.C. 2950.034(A), and the registration reporting requirements of R.C.

2950.041(2)(c) and (d) (regarding employment within a county or state).

       The requirements imposed upon a defendant classified as a child-victim or sex-

offender pursuant to R.C. Chapter 2950 (registration, community notifications, and

residential restrictions) are now considered punitive sanctions. State v. Williams,

129 Ohio St.3d 344

2011-Ohio-3374

952 N.E.2d 1108, ¶ 15-16

. Because the trial court is

required by Crim.R. 11 to inform the defendant of the punitive consequences of entering

a guilty plea, we have consistently held that the sentencing court must also inform the

defendant generally of the three above-mentioned penalty requirements imposed on

offenders who have a child-victim or sex-offender classification. State v. Dornoff, 2018-

Ohio-3084,

105 N.E.3d 1278, ¶ 15

 (6th Dist.); State v. Dangler, 6th Dist. Williams No.

WM-16-010,

2017-Ohio-7981, ¶ 6

; State v. Cook, 6th Dist. Lucas No. L-15-1066,

2016 Ohio App. LEXIS 2929

 (Apr. 8, 2016). Compare State v. Hagan, 12th Dist. Butler No.




3.
CA2018-07-136,

2019-Ohio-1047, ¶ 29-30

. However, the court is not required to review

the restrictions or requirements in detail. State v. Ragusa, 6th Dist. Lucas No.

L-15-1244, 2016-Ohio- 3373, ¶ 5.

At the plea hearing in the case before us, the trial court verified that appellant’s

counsel informed him of the Tier III registration requirements and appellant executed the

notification form. Furthermore, the court directly informed appellant that as a Tier III sex

offender he would have to register his residence, his place of employment, his automobile

information, e-mail addresses, internet identifiers, and telephone numbers. The court also

explained the details of registration if there were any changes in residency and that the

verification requirement would continue every 90 days for the rest of his life.

Appellant argues the court did not inform him that he would have to register in a

county where he was employed permanently or temporarily, R.C. 2950.041(2)(c) and (d).

We disagree. The court indicated appellant would have to register certain information

without discussing specifics. We find this was sufficient to give appellant notice of the

registration requirements. However, we agree with appellant that the court completely

failed to notify appellant of the residential restrictions, including that he was prohibited

from residing within 1,000 feet of a school, preschool, or child daycare, and that

appellant would be subject to the community notification requirements of R.C. 2950.11.

Therefore, we find the plea was constitutionally invalid. Appellant’s sole assignment of

error is found well-taken.

4.
Having found that the trial court did commit error prejudicial to appellant and that

substantial justice has not been done, the judgment of the Lucas County Court of

Common Pleas is hereby vacated. This case is remanded to the trial court for

proceedings consistent with this decision. Appellee is ordered to pay the costs of this

appeal pursuant to App.R. 24.

Certification of Conflict

Pursuant to Ohio Constitution, Article IV, Section 3(B)(4) and App.R. 25, we

certify the record in this case to the Ohio Supreme Court for final review and

determination because our holding, which follows the precedent of our court, is in direct

conflict with the judgment pronounced by State v. Hagan, 12th Dist. Butler No. CA2018-

07-136,

2019-Ohio-1047, ¶ 29-30

, and is currently before the Ohio Supreme Court in the

appeal of State v. Dangler, 6th Dist. Williams No. WM-16-010,

2017-Ohio-7981

. State

v. Dangler,

2018-Ohio-723

92 N.E.3d 876

.

       The parties are directed to S.Ct.Prac.R. 5.03 and 8.01 for guidance on how to

proceed.


                                                                         Judgment vacated
                                                                            and remanded.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




5.
                                             State v. Anderson
                                             C.A. No. L-18-1110




Mark L. Pietrykowski, J.   _______________________________
                                       JUDGE
Arlene Singer, J.
                           _______________________________
Gene A. Zmuda, J.                      JUDGE
CONCUR.
                           _______________________________
                                       JUDGE




6.