[Cite as State v. Bush,

.]

IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 10CA82

vs. : T.C. CASE NO. 06CRB1895

ENOCH BUSH, JR. : (Criminal Appeal from Municipal Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 18th day of November, 2011.

. . . . . . . . .

Betsy A. Deeds, Atty. Reg. No. 0076747, Asst. Fairborn Pros., 510 West Main Street, Fairborn, OH 45324 Attorney for Plaintiff-Appellee

Daniel J. O’Brien, Atty. Reg. No. 0031461, 1210 Talbott Tower, 131 N. Ludlow Street, Dayton, OH 45402 Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Defendant, Enoch Bush, appeals from a final judgment

that denied his post-sentence motion to withdraw his guilty plea.

{¶ 2} On or about September 7, 2006, Defendant was charged

by complaint in Fairborn Municipal Court with one count of sexual

imposition, the victim between thirteen and sixteen years of age, 2

in violation of R.C. 2907.06(A)(4), which is a misdemeanor of the

third degree. On March 6, 2007, Defendant entered a plea of guilty

as charged and was sentenced to sixty days in jail and fined two

hundred and fifty dollars. At the time of sentencing, the State

took the position that Defendant had a duty to register as a sexually

oriented offender because the victim in this case was thirteen

years of age. The trial court took the matter of the registration

requirement under advisement and indicated that the court would

issue a written decision.

{¶ 3} On June 4, 2007, the trial court issued its written

decision requiring Defendant to register as a sexually oriented

offender for period of ten years pursuant to R.C. 2950.04. The

court sent copies of that decision to Defendant’s trial counsel

and to Defendant at his last known address. By that time, Defendant

had already completed his sentence, including serving the jail

term and paying the fine. Over three years later, August 2, 2010,

Defendant sent a letter to the trial court asking to withdraw his

guilty plea and requesting relief from the sex offender

registration requirement.

{¶ 4} After retaining new counsel, on August 24, 2010,

Defendant filed a motion to withdraw his guilty plea because he

was never advised at the time he entered his plea that as result

of his guilty plea he would be required to register as a sex 3

offender. A hearing was held on August 24, 2010. On November

12, 2010, the trial court overruled Defendant’s post-sentence

motion to withdraw his guilty plea. In concluding that Defendant

failed to demonstrate any manifest injustice, the trial court noted

that Defendant had some knowledge about a possible sex offender

reporting requirement because that matter was discussed in his

presence at the time he entered his guilty plea, that Defendant

waited over three years, without explanation, after the court

ordered him to register as a sex offender before seeking relief,

and that a trial court is not required to advise a defendant about

sex offender reporting requirements when accepting a guilty or

no contest plea. See: State v. Cupp, Montgomery App. Nos. 21176,

21348,

.

{¶ 5} Defendant appealed to this court.

ASSIGNMENT OF ERROR

{¶ 6} “THIS INDIGENT DEFENDANT WAS DENIED DUE PROCESS OF LAW

AND EQUAL PROTECTION OF THE LAW AND WAS INADEQUATELY REPRESENTED

BY APPOINTED DEFENSE COUNSEL, WHICH FAILURE WAS CONJOINED IN BY

THE TRIAL JUDGE, IN EACH OR BOTH FAILING TO WARN THE DEFENDANT

OF ANY OF HIS CONSTITUTIONAL RIGHTS UNDER RULE 11C (b), (c) AND

(D); IN FAILING TO FULLY INFORM THE DEFENDANT OF THE EFFECTS OF

HIS PLEA OF GUILTY, IN FAILING TO DETERMINE THAT THE DEFENDANT

WAS MAKING HIS PLEA KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY; IN 4

FAILING TO SET ASIDE AND VACATE THE PLEA AFTER THE DEFENDANT’S

STATEMENT, WITH 60 SECONDS OF THE PLEA, THAT HE (THE DEFENDANT)

DIDN’T DO ANYTHING, THE ALLEGED VICTIM TRIED TO KISS HIM AND HE

SENT HER HOME, AND APPOINTED DEFENSE COUNSEL NOT ONLY FAILING TO

TELL THE DEFENDANT THAT ONE OF THE EFFECTS OF HIS PLEA WAS MANDATORY

REPORTING REQUIREMENTS, WHICH ON THIS RECORD, DEFENSE COUNSEL

OBVIOUSLY DID NOT KNOW, AND WHICH OBVIOUSLY THE COURT ITSELF ALSO

DID NOT KNOW, LEADING TO EXTREME PREJUDICE AND MANIFEST INJUSTICE

VISITED UPON THIS DEFENDANT.”

{¶ 7} Defendant argues that the trial court abused its

discretion when it denied his post-sentence motion to withdraw

his guilty plea because the failure to advise Defendant at the

time he entered his plea about the effect of his plea, specifically

that he would be subject to sex offender registration and reporting

requirements, constitutes a manifest injustice.

{¶ 8} In State v. Minkner, Champaign App. No. 2009CA16,

, we stated:

{¶ 9} “{¶ 24} Crim.R. 32.1 provides that ‘[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 plea.’

{¶ 10} “{¶ 25} A defendant who files a post-sentence motion 5

to withdraw his guilty plea thus bears the burden of establishing

a ‘manifest injustice.’ State v. Smith (1977),

,

paragraph one of the syllabus; State v. Milbrandt, Champaign App.

No.2007-CA-3,

. A manifest injustice has been

defined as ‘a clear or openly unjust act’ that involves

‘extraordinary circumstances.’ State v. Stewart, Greene App. No.

2003-CA-28,

, at ¶6. ‘[A] “manifest injustice”

comprehends a fundamental flaw in the path of justice so

extraordinary that the defendant could not have sought redress

from the resulting prejudice through another form of application

reasonably available to him or her.’ State v. Hartzell (Aug. 20,

1999), Montgomery App. No. 17499. ‘Crim.R. 32.1 requires a

defendant making a postsentence motion to withdraw a plea to

demonstrate manifest injustice because it is designed “to

discourage a defendant from pleading guilty to test the weight

of potential reprisal, and later withdraw the plea if the sentence

was unexpectedly severe.”’ State v. Boswell,

,

, quoting State v. Caraballo (1985),

.

{¶ 11} “{¶ 26} We review a trial court’s decision on a motion

to withdraw a guilty plea for an abuse of discretion. State v.

Whitmore, Clark App. No. 06-CA-50,

.”

{¶ 12} “‘Abuse of discretion’ has been defined as an attitude 6

that is unreasonable, arbitrary or unconscionable. Huffman v.

Hair Surgeon, Inc. (1985),

. It is to be

expected that most instances of abuse of discretion will result

in decisions that are simply unreasonable, rather than decisions

that are unconscionable or arbitrary.

{¶ 13} “A decision is unreasonable if there is no sound

reasoning process that would support that decision. It is not

enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would

support a contrary result.” AAAA Enterprises, Inc v. River Place

Community Redevelopment (1990),

.

{¶ 14} Defendant argues that the failure of the court or his

counsel to advise him at the time he entered his guilty plea about

the effects of that plea, specifically that he would be subject

to sex offender registration and reporting requirements,

constitutes a manifest injustice and therefore he should be

permitted to withdraw his plea. We disagree.

{¶ 15} This court has repeatedly held that a trial court need

not inform a defendant about the registration and notification

requirements in Ohio Revised Code Chapter 2950 before accepting

a plea. In re C.A., Montgomery App. No. 23022,

,

at ¶56; State v. Cupp, Montgomery App. Nos. 21176, 21348, 7

; State v. Abrams (Aug. 20, 1999), Montgomery App.

No. 17459. A trial court’s failure to do so does not render the

plea invalid. Abrams. In addition, we have also held that a trial

court’s failure to comply with Crim.R. 11(C) when taking a plea

is not an extraordinary circumstance demonstrating a form of

manifest injustice required for Crim.R. 32.1 relief. Minker, at

¶29-31. Accordingly, no manifest injustice supporting withdrawal

of Defendant’s plea has been demonstrated. Thus, the trial court

did not abuse its discretion by denying Defendant’s motion to

withdraw his plea.

{¶ 16} Defendant relies upon our decision in State v. Powell,

,

. Defendant’s reliance is

misplaced, however, because that case is distinguishable.

{¶ 17} In Powell, the defendant pled guilty to voyeurism in

violation of R.C. 2907.08(A). The victim of that offense was not

a minor child under age eighteen. In accordance with the law in

effect at that time, that offense was a presumptively

registration-exempt sexually oriented offense, unless the trial

court issued a separate order specifically removing the presumptive

exemption pursuant to R.C. 2950.021. The trial court did not do

that in designating Powell a Tier I sex offender at the time sentence

was imposed. Under those circumstances, we found a manifest

injustice and ordered the plea vacated. 8

{¶ 18} Here, unlike in Powell, Defendant did not enter a guilty

plea to a presumptively registration-exempt sexually oriented

offense. The victim of this offense was not eighteen years of

age or older. R.C. 2950.01(D)(1)(e), (P)(1)(a). When the victim

is under the age of eighteen, no presumption arises that the offense

is exempt from registration. Under those circumstances, the trial

court is not required to issue an order specifically removing the

presumptive exemption before requiring Defendant to register as

a sexually oriented offender.

{¶ 19} Defendant’s assignment of error is overruled. The

judgment of the trial court will be affirmed.

HALL, J., concurs.

FAIN, J., concurring:

{¶ 20} I agree with everything stated in Judge Grady’s opinion

for the court. In that opinion, it is noted that we have repeatedly

held that a trial court need not inform a defendant about the

registration and notification requirements in R.C. Chapter 2950

before accepting a plea. I write separately merely to note that

this may change for defendants sentenced after the Adam Walsh Act

amendments to R.C. Chapter 2950 (2007 Am.Sub.S.B. No. 10). As

a result of State v. Williams,

,

,

the registration, notification and verification requirements for 9

persons classified as sexual offenders under the Adam Walsh Act

are not regarded as remedial; they are punitive. Id., ¶ 16, 21.

If those requirements are now punitive under R.C. Chapter 2950,

then they are part of the penalty for the offense. Consequently,

the defendant must be informed of them before his plea of guilty

or no contest may be accepted. Crim. R. 11(C)(2)(a).

{¶ 21} But Bush is not subject to the Adam Walsh Act amendments.

His registration and notification requirements arise from the

previous version of R.C. Chapter 2950 (Megan’s Law), and those

requirements, being merely remedial, are not part of the penalty

for his offense. Accordingly, as a long line of our cases have

held, the trial court was not required to inform him of them before

accepting his plea.