[Cite as State v. Tyson,
2025-Ohio-3074.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff- Appellee, :
No. 114691
v. :
TAIJUAN TYSON, :
Defendant-Appellant. :
_______________________________________
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: August 28, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-24-693158-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Megan Helton and Melissa Riley, Assistant
Prosecuting Attorneys, for appellee.
Law Office of Schlachet and Levy, Jaye M. Schlachet, and
Eric M. Levy, for appellant.
MICHELLE J. SHEEHAN, P.J.:
Defendant-appellant Taijuan Tyson appeals his convictions and
sentence. He raises four assignments of error for our review:
1. Appellant’s pleas must be vacated in violation of Crim.R. 11 as not
entered knowingly, intelligently and voluntarily where appellant was
not informed of post release control and the consequences for a
violation prior to entering his guilty pleas.
2. Appellant’s pleas must be vacated in violation of Crim.R. 11 as not
entered knowingly, intelligently and voluntarily where appellant was
not informed of the consequences of being classified as a Tier II sex
offender prior to entering his guilty pleas.
3. Appellant’s sentence as journalized is clearly and convincingly
contrary to law where he was improperly classified as a Tier III sex
offender and five years of mandatory post release control was imposed
on Count [1].
4. The trial court erred and abused its discretion when it denied
appellant’s pre-sentencing motion to withdraw guilty plea.
After review, we find that the trial court’s failure to inform Tyson at the
plea hearing that by pleading guilty to attempted pandering sexually oriented matter
to a minor, he would be subject to a mandatory term of five years of postrelease
control (and the consequences for violating) and be classified as a Tier II sex
offender (and the required registration requirements) did not prejudice Tyson. It is
not clear on the face of the record that Tyson would not have entered into guilty
pleas had the trial court given him the full postrelease-control and sex-offender
advisements.
However, we agree with Tyson that although the trial court properly
notified him at the sentencing hearing that he was classified as a Tier II sex offender
and the accompanying registration requirements, it improperly stated in the
sentencing entry that he was classified as a Tier III sex offender and included the
registration requirements for that classification. We further agree with Tyson that
although the trial court properly notified him that he would be subject to five years
of postrelease control at the sentencing hearing, it improperly included five years of
postrelease control for Count 1.
We also find no merit to Tyson’s argument that the trial court abused
its discretion when it denied his presentence motion to withdraw his plea.
We therefore affirm Tyson’s convictions and sentence but remand for
the trial court to issue a nunc pro tunc sentencing entry to reflect what actually
occurred at the sentencing hearing. Specifically, Tyson should be classified as a
Tier II sex offender with the accompany registration requirements for that
classification and be subject to a mandatory period of five years of postrelease
control for Count 5.
I. Procedural History and Facts
In June 2024, Tyson was charged with seven counts related to incidents
involving a 16-year-old victim whom he had met online, including one count each of
extortion, trespass, and possessing criminal tools and two counts each of pandering
sexually oriented matter involving a minor and menacing by stalking.
In November 2024, Tyson withdrew his former plea of not guilty and
pleaded guilty to Count 1, extortion, a third-degree felony, and amended Count 5,
attempted pandering sexually oriented matter involving a minor, a third-degree
felony. As part of the plea, Tyson also agreed to forfeit a black Vortex cell phone, an
iPhone, and tablet. At the request of the State, the trial court dismissed the
remaining charges.
The trial court set the matter for sentencing but prior to that occurring,
Tyson moved to withdraw his plea. He argued that he “indicated to counsel that he
did not fully understand the charges against him and the effect of a guilty plea” and
that he “believed that by entering a guilty plea, his bond would be reinstated and he
would be released from county jail.” The trial court denied his motion.
The trial court sentenced Tyson to 18 months in prison on both Count 1
and amended Count 5 and ordered that the sentences be served concurrently to one
another. The trial court notified Tyson at the sentencing hearing that he would be
subject to a mandatory term of five years of postrelease control and the
consequences for violating the conditions of his postrelease control. The trial court
also notified Tyson at the sentencing hearing that he was classified as a Tier II sex
offender and the registration requirements that accompany that classification.
Finally, the trial court also imposed a fine of $10,000 but suspended it and imposed
costs, noting that he could pay costs either by money or community service.
In the sentencing entry, however, the trial court improperly stated
that Tyson was subject to five years of postrelease control for Count 1 and Count 5,
when it should have just been for Count 5. And the trial court improperly stated in
the sentencing entry that Tyson was classified as a Tier III sex offender. The trial
court later issued a corrected entry before Tyson filed his notice of appeal, notifying
Tyson that he was classified as a Tier II sex offender rather than a Tier III sex
offender, but it did not include any registration requirements. Tyson appeals from
his sentencing entry.
II. Crim.R. 11 and Maximum-Penalty Advisements
A. Crim.R. 11
A defendant must enter into a plea knowingly, intelligently, and
voluntarily for it to be constitutional under the United States and Ohio
Constitutions. State v. Engle, 74 Ohio St.3d 525, 527 (1996), citing Kercheval v.
United States,
274 U.S. 220 (1927). To ensure the constitutionality of a guilty plea
in a felony case, Crim.R. 11(C) sets forth specific procedures that trial courts must
follow when accepting guilty pleas, covering the waiver of constitutional rights and
the explanation of nonconstitutional rights. State v. Nero,
56 Ohio St.3d 106, 107
(1990).
Crim.R. 11(C)(2) provides that the court must address defendants
personally and (1) determine that they understand the nature of the charges against
them and the maximum penalty involved, (2) inform them of and determine that
they understand the effect of a guilty plea and that the court may proceed with
judgment and sentence, and (3) inform them of and determine that they understand
the constitutional rights that they are giving up by entering into their plea.
Crim.R. 11(C)(2)(a)-(c). Our focus when reviewing pleas is not “on whether the trial
judge has ‘[incanted] the precise verbiage’ of the rule . . . but on whether the dialogue
between the court and the defendant demonstrates that the defendant understood
the consequences of his plea.” State v. Dangler, 2020-Ohio-2765, ¶ 12, quoting
State v. Stewart,
51 Ohio St.2d 86, 92 (1977).
When criminal defendants seek to have their convictions reversed on
appeal, the traditional rule is that they must establish an error occurred in the trial-
court proceedings and they were prejudiced by that error. Dangler at ¶ 13, citing
State v. Perry,
2004-Ohio-297, ¶ 14-15. “The test for prejudice is ‘whether the plea
would have otherwise been made.’” Id. at ¶ 16, quoting
Nero at 108.
The Ohio Supreme Court explained in Dangler that there are only
two instances where a defendant does not have to affirmatively show prejudice when
a trial court does not fulfill its obligations under Crim.R. 11. Id. at ¶ 14. The first is
when the “trial court fails to explain the constitutional rights that a defendant waives
by pleading guilty or no contest . . . .” Id. Under such circumstances, prejudice is
presumed. Id.
The second exception to the prejudice requirement occurs when the
trial court completely fails to comply with a portion of Crim.R. 11(C)(2). Dangler,
2020-Ohio-2765, at ¶ 15, citing State v. Sarkozy,
2008-Ohio-509, ¶ 22. Although
the Supreme Court did not explain what “complete failure to comply” meant, it cited
to Sarkozy as an example. The Supreme Court explained that in Sarkozy, it “held
that the trial court had completely failed to comply with Crim.R. 11(C)(2)(a)’s
requirement that it explain the maximum penalty when the court made no mention
of postrelease control in the plea colloquy, despite the fact the defendant was subject
to a mandatory five years of postrelease control.” Id. at ¶ 15, citing
Sarkozy at ¶ 22.
When reviewing whether a plea should be vacated, the Supreme
Court stated that courts must answer the following questions: “(1) has the trial court
complied with the relevant provision of the rule? (2) if the court has not complied
fully with the rule, is the purported failure of a type that excuses a defendant from
the burden of demonstrating prejudice? and (3) if a showing of prejudice is required,
has the defendant met that burden?” Dangler at ¶ 17. The Supreme Court noted
that this “should be a fairly straightforward inquiry.”
Id.
We review whether the trial court accepted Tyson’s plea in
compliance with Crim.R. 11(C) de novo. State v. Tutt, 2015-Ohio-5145, ¶ 13 (8th
Dist.), citing State v. Spock,
2014-Ohio-606, ¶ 7 (8th Dist.).
B. Plea Hearing
At the plea hearing, the State informed the trial court that Tyson had
agreed to withdraw his former plea of not guilty and plead guilty to Count 1 and an
amended Count 5. The State told the trial court that Count 1, extortion, was a third-
degree felony with a potential prison sentence between 9 and 36 months, a fine up
to $10,000, and a discretionary period of two years of postrelease control if Tyson
was sentenced to prison. The State further informed the court that amended
Count 5, attempted pandering sexually oriented matter involving a minor, was also
a third-degree felony with a potential prison sentence of 9 to 36 months in prison, a
fine up to $10,000, and a mandatory period of five years of postrelease control if
Tyson was sentenced to prison.
The State explained that by pleading guilty to a sex offense, Tyson
would be classified as a Tier II sex offender, which meant that he would have to
register with the sheriff where he lives, works, or is educated every 180 days for
25 years. According to the State, Tyson also agreed (1) to have no contact with the
victim, (2) that the offenses were not allied offenses, and (3) to forfeit a black Vortex
cell phone, a black iPhone, and a green Vortex tablet. The State asked the court to
nolle the remaining charges if Tyson agreed to the conditions of his plea deal. The
State said that the victim and her representative had been consulted about the plea
deal and that no threats or promises had been made to Tyson other than what it had
placed on the record that day.
Defense counsel informed the trial court that the State’s account of
the plea deal was in fact the deal that Tyson had agreed to. According to defense
counsel, he discussed the deal with Tyson, Tyson understood his rights and that he
would be giving those rights up by entering into the plea deal, and that he
understood the possible penalties involved. Defense counsel further stated, “I do
believe [Tyson] has a full understanding, and his forthcoming change of pleas will
be knowingly, intelligently, and voluntarily made.” Defense counsel also told the
court that he and Tyson had plenty of time to discuss all the issues of the case and
that Tyson asked pertinent questions indicating that he understood “the risks and
all the consequences.”
Tyson agreed with the trial court that everything his defense counsel
stated was true. Tyson further told the court that he was 22 years old, was not under
the influence of drugs, alcohol, or medication, had completed high school, and was
currently attending “Ohio media school.” Tyson told the court that he was satisfied
with his counsel’s representation and explained that he had a lot of questions about
his case that his defense counsel answered them. And Tyson agreed that no one had
coerced or forced him to enter into the plea.
The trial court informed Tyson of his constitutional rights and made
sure that he understood that by entering into the plea, he would be waiving those
rights. The trial court then reviewed the charges with Tyson and explained the
maximum penalty for extortion under Count 1, including up to 36 months in jail, a
$10,000 fine, and two years of postrelease control. For amended Count 5, the court
stated that it had been reduced from a “felony 2 to a felony 3” by adding attempt.
However, the court did not explain the maximum penalty for attempted pandering
sexually oriented matter involving a minor or tell Tyson that he would be subject to
five years of postrelease control and be classified as a Tier II sex offender.
Tyson pleaded guilty to both charges, and the trial court accepted his
pleas and found that he knowingly, voluntarily, and intelligently waived his
constitutional rights.
C. Postrelease Control
In his first assignment of error, Tyson argues that his plea must be
vacated because the trial court failed to inform him at the plea hearing that he would
be subject to a mandatory period of five years of postrelease control upon his release
from prison and the consequences for violating the conditions of his postrelease
control. He further argues that because the trial court completely failed to inform
him about postrelease control, he does not have to show that he was prejudiced by
the trial court’s error.
Postrelease control is part of the “maximum penalty involved” when
a trial court imposes a prison term. State v. Griffin, 2004-Ohio-4344, ¶ 13 (8th
Dist.). Therefore, the first question we must ask under Dangler,
2020-Ohio-2765,
is whether the trial court complied with Crim.R. 11(C)(2)(a), which requires that the
trial court determine that the defendant is “making the plea voluntarily, with
understanding of . . . the maximum penalty involved.”
At the plea hearing in this case, the trial court informed Tyson that by
pleading guilty to extortion, he would be subject to two years of postrelease control.
But the court did not inform Tyson that by pleading guilty to attempted pandering
sexually oriented matter involving a minor, he would be subject to a mandatory
period of five years of postrelease control or the consequences he could face for
violating the conditions of his postrelease control. And although the State did place
on the record at the plea hearing that Tyson would face five years of mandatory
postrelease control for attempted pandering if he received a prison sentence, it did
not explain the consequences for violating postrelease control. Thus, we agree with
Tyson that the trial court did not comply with Crim.R. 11(C)(2)(a), i.e., it failed to
inform him that he would face five years of mandatory postrelease control if he
pleaded guilty to Count 5 or the consequences he could face for violating the
conditions of his postrelease control.
The second question under Dangler if the court has not fully
complied with the rule is whether the purported failure is the type that excuses the
defendant from the burden of establishing prejudice; i.e., did the trial court fail to
fully cover a constitutional right or completely fail to comply with another portion
of Crim.R. 11? There is no question that the trial court fully informed Tyson of the
constitutional rights he was waiving and made sure that he understood he was
waiving them. Thus, the first exception to the prejudice requirement does not apply
here. Turning to the “additional exception to the prejudice requirement” under
Dangler, namely, whether the trial court completely failed to comply with
Crim.R. 11(C)(2)(a), we find that it did not completely fail to comply. Id. at ¶ 15.
Unlike the scenario in Sarkozy, 2008-Ohio-509, where the trial court “made no
mention of postrelease control in the plea colloquy,” the trial court informed Tyson
that he would be subject to postrelease control for Count 1.
“In the context of postrelease control, the Ohio Supreme Court has
stated that a trial court partially complies with Crim.R. 11(C)(2)(a) when it mentions
mandatory postrelease control at the plea hearing without explaining it.” State v.
Jones, 2019-Ohio-993, ¶ 16 (8th Dist.), citing State v. Clark,
2008-Ohio-3748.
Although we no longer analyze a trial court’s Crim.R. 11 colloquy for partial or
substantial compliance, we find that the Supreme Court’s finding of partial
compliance in Clark to be instructive here regarding whether the trial court
completely failed to discuss a mandatory penalty under the first and second
questions of Dangler,
2020-Ohio-2765. Partial compliance means some
compliance, and some compliance is not a complete failure to comply.
In State v. McKissic, 2010-Ohio-62 (8th Dist.), the defendant argued
on appeal that although the trial court informed him that he could be subject to three
years of postrelease control upon his release from prison, it did not comply with
Crim.R. 11(C) because it did not inform him of the consequences of violating the
conditions of postrelease control. We disagreed and explained:
When a trial court fails to mention postrelease control “at all” during
a plea colloquy, the court fails to comply with Crim.R. 11, and the
reviewing court must vacate the plea and remand the cause. Sarkozy
at ¶ 25. But “some compliance” with the rule with respect to
postrelease control “prompts a substantial-compliance analysis and
the corresponding ‘prejudice’ analysis.” Id. at ¶ 23; see, also, State v.
Clark, 119 Ohio St.3d 239,
2008-Ohio-3748, ¶ 32,
893 N.E.2d 462 (“If
the trial judge partially complied, e.g., by mentioning mandatory
postrelease control without explaining it, the plea may be vacated only
if the defendant demonstrates a prejudicial effect.”).
Id. at ¶ 13.
We concluded in McKissic that the trial court substantially complied
with the requirements of Crim.R. 11(C) when it advised the defendant about
postrelease control. Id. at ¶ 14. We stated that despite the trial court’s failure to
advise him about the consequences of violating postrelease control, the court
“sufficiently apprised him of the possibility of postrelease control” and McKissic
“failed to show that he was prejudiced by the trial court’s failure to advise him of the
consequences of violating a postrelease control period that might never be imposed
. . . .” Id.
While we recognize this case was decided before Dangler, 2020-
Ohio-2765, we believe it is still good law. Although the Ohio Supreme Court
explained in Dangler that its prior caselaw, including Clark, 2008-Ohio-3748,
“muddled” the Crim.R. 11(C) “analysis by suggesting different tiers of compliance”
and that “those formulations have served only to unduly complicate what should be
fairly straightforward,” it did not explicitly overrule its prior case law. Indeed, the
“simplified” questions set forth by the Supreme Court in Dangler did not create an
entirely new Crim.R. 11 analysis. And we highly doubt the Supreme Court intended
to overrule over 50-plus years of precedential case law. The Court was merely trying
to simplify the analysis that courts have been “grappling with” since 1973, which was
when Crim.R. 11 was adopted. Id. at ¶ 12, 17. Again, partial compliance is not a
complete failure to comply.
Therefore, the trial court’s error in this case is not the type that
excuses a defendant from the burden of demonstrating prejudice because the trial
court did not completely fail to discuss postrelease control with Tyson during the
plea colloquy.
We must now turn to the third question under Dangler to determine
if Tyson met his burden of establishing that he would not have entered into the plea
had the trial court properly informed him that he would be subject to a mandatory
term of five years of postrelease control and the consequence that he could face if he
violated the terms of his postrelease control. Dangler at ¶ 17. Regarding prejudice,
the Supreme Court explained that it “must be established ‘“on the face of the
record.”’” Id. at ¶ 24, quoting Hayward v. Summa Health Sys./Akron City Hosp.,
2014-Ohio-1913, ¶ 26, quoting Wagner v. Roche Laboratories,
85 Ohio St.3d 457,
462 (1999).
After review, we conclude that there is nothing on the face of the
record to indicate that Tyson would not have entered into his plea had the trial court
informed him that he would be subject to five years of postrelease control and the
consequences he would face if he violated the terms of his postrelease control. The
focus on review is “whether the dialogue between the court and the defendant
demonstrates that the defendant understood the consequences of his plea.”
Dangler, 2020-Ohio-2765, at ¶ 12, citing State v. Veney,
2008-Ohio-5200, ¶ 15-16.
We have reviewed the court’s dialogue with Tyson and conclude that he did.
First, the State placed on the record at the plea hearing that Tyson
had agreed to plead guilty to attempted pandering sexually oriented matter
involving a minor under amended Count 5 and that this offense was a third-degree
felony with a potential prison sentence of 9 to 36 months in prison, a fine up to
$10,000, and a mandatory period of five years of postrelease control if the court
sentenced him to prison. The trial court also informed Tyson that he would be
subject to two years of postrelease control for Count 1. Therefore, unlike the trial
court in Sarkozy, 2008-Ohio-509, which failed to mention postrelease control at all
during the plea colloquy, Tyson was aware that he would serve a term of postrelease
control.
Tyson was also represented by counsel, who informed the trial court
that he had discussed the plea deal with Tyson and that Tyson understood the rights
he was waiving and the maximum penalties he could face. Defense counsel also told
the court that he believed Tyson fully understood the plea deal and would be
entering into it knowingly, intelligently, and voluntarily. And defense counsel stated
that Tyson understood all the consequences of pleading guilty.
Tyson told the court that everything his defense counsel stated was
true and that he was satisfied with his counsel’s representation. Tyson stated that
he had a lot of questions about his case, which his defense counsel answered. And
Tyson stated that no one had coerced or forced him to enter into the plea.
Furthermore, Tyson was originally facing up to eight years in prison
for pandering sexually oriented matter involving a minor, a second-degree felony.
As part of the plea deal, the State agreed to amend Count 5 to attempted pandering
sexually oriented matter involving a minor, which is a third-degree felony with a
maximum prison term of 36 months in prison. The trial court ultimately sentenced
Tyson to 18 months in prison, half the maximum possible time. Therefore, Tyson
avoided the inherent risk of going to trial and received the benefit of the plea
bargain.
Tyson argues that because he filed a presentence motion to withdraw
his guilty plea, that is evidence of prejudice on the face of the record. We disagree.
In his presentence motion to withdraw his plea, Tyson argued that he thought that
by entering into the plea, the trial court would reinstate his bond and release him
from jail. Because the trial court did not do so, Tyson requested in his motion that
the trial court vacate his plea. We do not find that Tyson’s motion establishes that
he would not have entered into the plea had the trial court given him the complete
postrelease-control advisement. Notably, Tyson’s plea deal did not include the
promise of a particular sentence or that he would be released on bond until his
sentencing hearing.
After review, we conclude that Tyson has not established that he was
prejudiced by the trial court’s failure to inform him that he would be subject to a
mandatory period of five years of postrelease control if he was sentenced to prison
for attempted pandering sexually oriented matter to a minor. Tyson’s first
assignment of error is overruled.
D. Sex-Offender Classification and Registration Requirements
In his second assignment of error, Tyson contends that the trial court
erred when it accepted his guilty plea to amended Count 5 because it did so without
informing him of the consequences of being classified a Tier II sex offender. He
argues that the trial court’s failure was a complete failure that does not require him
to show prejudice.
R.C. Ch. 2950 sets forth the registration requirements, community-
notification requirements, and residency restrictions that apply to sex offenders.
R.C. Ch. 2950, “as a whole,” is punitive in nature and, thus, is part of the maximum-
penalty advisements that a trial court must explain under Crim.R. 11(C)(2)(a).
Dangler, 2020-Ohio-2765, at ¶ 22.
After review, we agree with Tyson that the trial court did not inform
him that he would be classified as a Tier II sex offender or the registration
requirements that accompany that classification — but the State did. At the
beginning of the change-of-plea hearing, the State placed on the record that because
Tyson was pleading to a sex offense, he would be classified as a Tier II sex offender
and explained that meant that he would have to register with the sheriff where he
lives, works, or is educated every 180 days for 25 years. The State claims that this
court has previously upheld pleas under similar circumstances, i.e., when the State
placed the maximum penalty on the record at the plea hearing.
The State cites State v. Moore, 2017-Ohio-8483 (8th Dist.), in
support of its argument that we should not vacate Tyson’s plea. In Moore, the State,
rather than the trial court, explained the maximum penalty at the plea hearing. On
appeal, Moore argued that the trial court failed to advise him of the maximum
penalty and, therefore, he did not knowingly, voluntarily, and intelligently enter into
his plea. This court disagreed, concluding that “[b]ased on the prosecutor’s
explanation of the maximum penalty, Moore’s affirmation that he understood that
explanation, and the statements made by Moore’s counsel, we find no evidence of
prejudice.”
In Moore, we explained that we had previously upheld a defendant’s
plea “even when the prosecutor, not the trial court, explains the maximum
sentence.” Id. at ¶ 24, citing State v. Owens, 2014-Ohio-2275, ¶ 10 (8th Dist.). In
Owens, we noted that although it was “better practice for the trial court to advise the
defendant of the maximum sentence,” there was no prejudice to the defendant when
the State recited the maximum penalty, Owen’s attorney stated that the prosecutor
correctly set forth the terms and conditions of the plea, and Owen stated he
understood the plea as explained by the prosecutor and his attorney. Id. at ¶ 10-12.
Likewise, in State v. Chaney, 2012-Ohio-4933 (8th Dist.), this court
affirmed the defendant’s convictions and sentence even though it was the prosecutor
who set forth the maximum penalties at the plea hearing. We explained that “the
record adequately demonstrate[d] that Chaney was informed of the potential
maximum penalties for the offenses involved at the outset of the plea hearing.” Id.
at ¶ 15. We concluded that “[b]ased on the totality of the circumstances, the record
show[ed] that Chaney subjectively understood the maximum potential penalties
associated with her guilty plea” and that “[t]he trial court did not violate
Crim.R. 11(C)(2)(a) in accepting Chaney’s plea.” Id.
Again, these Eighth District cases holding that there was no prejudice
to the defendant when the State placed the maximum penalty on the record were
decided before Dangler, 2020-Ohio-2765. But as we stated previously, we do not
believe that our previous cases were overruled by Dangler.
Tyson cites to State v. Baker, 2020-Ohio-107, and State v. Brown,
2020-Ohio-4474, in support of his argument that his pleas should be vacated
because the trial court failed to inform him that he would be classified as a Tier II
sex offender and the accompanying registration requirements. In both cases, we
noted that the State set forth the terms of the plea agreement on the record. Baker
at ¶ 4; Brown at ¶ 8. But unlike the present case, there is nothing in Baker or Brown
to indicate that the State placed the maximum penalty, including the advisements
under R.C. Ch. 2950, on the record before the defendant entered into the plea.
Thus, after review, we conclude that there was not a complete failure
to inform Tyson that he would be classified as a Tier II sex offender and its
accompanying registration requirements. And for the reasons stated previously, we
find no prejudice to Tyson on the face of the record nor has Tyson established that
he would not have pleaded guilty but for the trial court’s failure. Again, he was aware
of the sex-offender-classification scheme and its registration requirements because
the State placed them on the record at the plea hearing. Moreover, Tyson was
represented by counsel who informed the trial court that he believed Tyson fully
understood his rights and the penalties he would be facing by entering into the plea
and Tyson agreed that what his defense counsel told the court was true.
Accordingly, we overrule Tyson’s second assignment of error.
III. Sentence
In his third assignment of error, Tyson argues that his sentence as
journalized is contrary to law because the trial court improperly stated that he would
be subject to five years of postrelease control for both Counts 1 and 5. Tyson further
argues that in the sentencing entry, the trial court stated that he was classified as a
Tier III sex offender with the registration requirements that accompany that
classification when it should have been a Tier II sex offender. He requests this court
to remand the case for the trial court to issue a nunc pro tunc sentencing entry. The
State concedes the errors, and we agree.
At the sentencing hearing, the trial court properly informed Tyson
that he would be subject to a mandatory five years of postrelease control and advised
him of the consequences he would face if he violated the terms of his postrelease
control. In the sentencing entry, however, the trial court improperly stated that each
count carried five years of postrelease control but ran them concurrently for a total
of five years of postrelease control. While five years of postrelease control is what
the trial court imposed at the sentencing hearing and ultimately what it imposed in
the sentencing entry, it incorrectly stated in the entry that Count 1 also carried five
years of postrelease control. Count 1 carried only a discretionary period of two years
of postrelease control.
When a trial court imposes a sentence, it must notify the defendant of
and impose only the longest postrelease control applicable under R.C. 2967.28(B).
State v. Parker, 2018-Ohio-3677, ¶ 20 (8th Dist.), citing State v. Davis, 2018-Ohio-
1147, ¶ 69-70 (8th Dist.); State v. Makin,
2017-Ohio-8569, ¶ 6-8 (8th Dist.); State v.
Byrd,
2012-Ohio-5728, ¶ 3-33 (8th Dist.); State v. Orr,
2011-Ohio-6269, ¶ 46-50
(8th Dist.); State v. Morris,
2012-Ohio-2498, ¶ 16-18 (8th Dist.); and State v. Reed,
2012-Ohio-5983, ¶ 12 (6th Dist.). Therefore, the court does not need to announce
at the sentencing hearing or include in the sentencing entry the applicable
postrelease-control sanction for each individual offense.
Id.
Additionally, the trial court properly informed Tyson he would be
classified as a Tier II sex offender and the registration requirements that he must
complete every six months for 25 years. Tyson subsequently signed a form detailing
his duty to register and the accompanying requirements. In the sentencing entry,
however, the trial court incorrectly stated that Tyson was classified as a Tier III sex
offender and included the registration requirements for that level rather than the
Tier II registration requirements that it should have included. Although the trial
court later issued a corrected entry notifying Tyson that he was classified as a Tier II
sex offender rather than a Tier III sex offender, it did not include the registration
requirements for a Tier II sex-offender classification in the corrected entry.
We therefore affirm Tyson’s sentence but remand for the trial court
to issue a nunc pro tunc sentencing entry to reflect what actually occurred at the
sentencing hearing, which includes classifying Tyson as a Tier II sex offender with
the proper registration requirements and deleting five years of postrelease control
for Count 1.
Tyson’s third assignment of error is sustained.
IV. Presentence Motion to Withdraw Plea
In his fourth assignment of error, Tyson argues that the trial court
abused its discretion when it denied his presentence motion to withdraw his plea.
Crim.R. 32.1, which governs motions to withdraw guilty pleas, states:
“A motion to withdraw a plea of guilty or no contest may be made only before
sentence is imposed; but to correct manifest injustice the court after sentence may
set aside the judgment of conviction and permit the defendant to withdraw his or
her guilty plea.”
Regarding a presentence motion to withdraw a guilty plea, while
generally such a motion should be freely and liberally granted, the Ohio Supreme
Court has instructed that “[t]he decision to grant or deny a presentence motion to
withdraw a guilty plea is within the sound discretion of the trial court.” State v. Xie,
62 Ohio St.3d 521, 527 (1992), paragraph two of the syllabus. “A defendant does not
have an absolute right to withdraw a guilty plea prior to sentencing. A trial court
must conduct a hearing [to] determine whether there is a reasonable and legitimate
basis for the withdrawal of the plea.”
Id. at paragraph one of the syllabus.
This court has determined that a trial court does not abuse its
discretion in overruling a motion to withdraw
(1) where the accused is represented by highly competent counsel,
(2) where the accused was afforded a full hearing, pursuant to
Crim.R. 11, before he entered the plea, (3) when, after the motion to
withdraw is filed, the accused is given a complete and impartial hearing
on the motion, and (4) where the record reveals that the court gave full
and fair consideration to the plea withdrawal request.
State v. Peterseim, 68 Ohio App.2d 211 (8th Dist. 1980), paragraph three of the
syllabus.
Additional factors this court has considered include whether (1) the
motion was made in a reasonable time, (2) the motion states specific reasons for
withdrawal, (3) the accused understood the nature of the charges and the possible
penalties, and (4) the accused was perhaps not guilty or had a complete defense.
State v. King, 2018-Ohio-4780, ¶ 14 (8th Dist.), citing State v. Benson, 2004-Ohio-
1677, ¶ 8-9 (8th Dist.).
The standard of review for a decision on a motion to withdraw a plea
is abuse of discretion. Xie, 62 Ohio St.3d, at 527. An abuse of discretion implies that
the court’s attitude is unreasonable, arbitrary, or unconscionable. State v. Clark,
71
Ohio St.3d 466, 470 (1994). It involves views or actions “that no conscientious
judge, acting intelligently, could honestly have taken.” State v. Hancock,
2006-Ohio-160, ¶ 129-130.
Tyson was represented by highly competent counsel. The trial court
held a full hearing on Tyson’s motion to withdraw, where Tyson and his counsel both
had an opportunity to argue the reasons for Tyson’s motion. The court explained
that Tyson stated in his motion that he was requesting to withdraw his plea because
he did not fully understand the charges against him or the effect of his guilty plea.
Specifically, the court stated that Tyson argued that he believed that by entering into
the plea, his bond would be reinstated and he would be released from jail. Because
that did not happen, he wished to withdraw his plea and go to trial.
Moreover, Tyson did not assert in his motion that he had a plausible
defense. Indeed, he did not even claim in his motion that he had any defense. He
vaguely argued that he was wrongly charged with rape, but he was never indicted on
rape. He further argued that he was falsely charged but could not explain how or
why he was falsely charged.
The trial court also reviewed the transcript of the plea hearing and
concluded that it was evident from the hearing that Tyson understood the
consequences of the plea. The court also reviewed the presentence-investigation
report and found that there was nothing in it to indicate that Tyson could not
understand the legal system or the effect of his plea. The court noted that according
to the report, Tyson was convicted of similar crimes in 2019, when he was a minor.
The trial court subsequently denied his motion.
Tyson maintains that the trial court’s reasons for denying his motion
to withdraw were flawed. He claims that the trial court denied his motion because
it determined after reviewing its notes that it had advised him of postrelease control,
which meant that Tyson should have known that prison was a possibility. Tyson
contends that because the trial court’s reasons were flawed, it abused its discretion
in denying his motion. We disagree. First, Tyson was not promised any sentence.
And he agreed that no other promises were made to him to get him to enter into the
plea. Moreover, as we previously determined, Tyson was aware that he could receive
postrelease control.
While a presentence motion to withdraw the guilty plea is to be
treated liberally, it is within the sound discretion of the trial court to determine the
circumstances justifying such a motion. Peterseim, 68 Ohio App.2d at 213-214. Our
review of the record does not indicate the trial court abused its discretion in denying
Tyson’s presentence motion to withdraw the guilty plea.
Accordingly, Tyson’s fourth assignment of error is overruled.
Judgment affirmed, and case remanded.
It is ordered that appellee recover from appellant the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
WILLIAM A. KLATT, J.,* CONCUR
(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of
Appeals.)
