[Cite as State v. Cruea,

.]

IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2012 CA 2

v. : T.C. NO. 11CR303

MICHAEL CRUEA : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

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OPINION

Rendered on the 9th day of November , 2012.

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ROBERT E. LONG III, Atty. Reg. No. 0066796, Assistant Prosecuting Attorney, 201 W. Main Street, Safety Building, Troy, Ohio 45373 Attorney for Plaintiff-Appellee

J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} Defendant-appellant Michael S. Cruea appeals his conviction and sentence

for one count of rape, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and 2

two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4), both felonies of

the third degree. Cruea filed a timely notice of appeal with this Court on March 30, 2012.

{¶ 2} On October 20, 2011, Cruea was indicted in Case No. 2011CR303 for one

count of gross sexual imposition (G.S.I.). At his arraignment on October 24, 2011, Cruea

pled not guilty to the charge of G.S.I. The record establishes that during the arraignment,

defense counsel acknowledged receipt of the indictment and waived any defects in service.

Defense counsel, however, did not waive the reading of the indictment.

{¶ 3} Shortly thereafter on December 23, 2011, Cruea was indicted in Case No.

2011CR412 for one count of rape and one count of G.S.I. At his arraignment on January 3,

2012, Cruea pled not guilty to the charges against him. At the second arraignment, defense

counsel waived the reading of the indictment on defendant’s behalf.

{¶ 4} On February 22, 2012, Cruea pled no contest to one count of rape and two

counts of G.S.I. in Case Nos. 2011CR303 and 2011CR412. The trial court accepted

Cruea’s no contest pleas and found him guilty on all counts. At the sentencing hearing on

March 1, 2012, the trial court sentenced Cruea to eight years in prison for the rape count and

two years for the G.S.I. count in Case No. 2011CR412. With respect to the remaining

G.S.I. count in Case No. 2011CR303, the trial court sentenced Cruea to two years in prison.

The trial court ordered all of the sentences to run concurrently for an aggregate sentence of

eight years.

{¶ 5} It is from this judgment that Cruea now appeals.

{¶ 6} Cruea’s sole assignment of error is as follows:

{¶ 7} “APPELLANT’S PLEA OF NO CONTEST WAS NOT KNOWINGLY 3

AND FREELY ENTERED DUE TO A SERIES OF FAILINGS BY THE TRIAL COURT

TO PROPERLY ADVISE HIM.”

{¶ 8} In his sole assignment, Cruea contends that his no contest pleas were not

made in a knowing, intelligent, and voluntary fashion in light of the following three events:

1) the trial court did not read the indictment in Case No. 2011CR303 aloud to Cruea at his

arraignment on October 24, 2011, for one count of G.S.I. and Cruea did not waive the

reading of the indictment; 2) during the colloquy at Cruea’s plea hearing, the trial court

twice referred to his “no contest” plea as a “guilty” plea; and 3) the trial court failed to

properly advise Cruea with respect to how his no contest plea would affect his sexual

offender reporting requirements. Cruea asserts that the cumulative effect of these errors

resulted in a plea that was less than knowing, voluntary, and intelligent.

{¶ 9} 1) Failure to Read the Indictment

{¶ 10} On October 24, 2011, Cruea was arraigned on the indictment in Case No.

2011CR303 before the trial court. Defense counsel for Cruea noted on the record that he

had received a copy of the indictment, he waived any defects in service, and he pled not

guilty. We note, however, that defense counsel did not waive the reading of the indictment.

Cruea did not object to the trial court’s failure to read the indictment.

{¶ 11} Crim. R. 10(A) provides:

Arraignment shall be conducted in open court, and shall

consist of reading the indictment, information or complaint

to the defendant, or stating to the defendant the

substance of the charge, and calling on the 4

defendant to plead thereto. The defendant may in

open court waive the reading of the indictment, information or

complaint. The defendant shall be given a copy of the

indictment *** and shall acknowledge receipt thereof, before

being called upon to plead.

{¶ 12} A challenge regarding improper arraignment is waived if the defendant fails

to object to the defect prior to appeal. State v. Boone, 9th Dist. Summit No. 26104,

; see Garland v. Washington,

,

,

(1914) (“A waiver ought to be conclusively implied where the parties had proceeded as

if defendant had been duly arraigned and a formal plea of not guilty had been interposed, and

where there was no objection made on account of its absence until, as in this case, the record

was brought to this court for review.”); King v. United States,

(6th

Cir. 1928) (“[E]ven though the defendant had not been formally arraigned, or had not pleaded

to the indictment, his proceeding to trial without raising this objection would imply a waiver,

or at least the formal defect would not be prejudicial.”)

{¶ 13} Cruea does not dispute that the record establishes that he appeared at the

October 24, 2011, arraignment with counsel and the he did not object at any point during

these initial proceedings. A defendant who is represented by counsel, pleads not guilty, and

proceeds to trial without objection forfeits objections to errors in his arraignment on appeal.

State v. Boone,

. At no point in the proceedings did Cruea raise an

objection to his arraignment on the basis that the indictment had not been read aloud. Upon

review, Cruea has waived the argument he now makes by failing to raise it before the trial 5

court. Accordingly, we conclude that Cruea has failed to demonstrate any reversible error

regarding his arraignment.

{¶ 14} 2) Trial Court Misstating “Guilty” for “No Contest” during Plea

Hearing

{¶ 15} In this portion of his first assignment, Cruea argues that his no contest plea

was less than knowing and voluntary because the trial court mistakenly referred to his no

contest plea as a “guilty” plea during the plea colloquy. We note that the record establishes

that the trial court did, in fact, ask Cruea on two occasions if he understood that he was

pleading “guilty” rather than “no contest” to the accompanying sex offender classification.

{¶ 16} We further note that during the hearing, Cruea acknowledged that he read

and signed a form entitled “Plea of No Contest.” The form stated “I withdraw my former

not guilty plea and enter a plea of no contest.” Cruea signed the form immediately prior to

the beginning of the plea hearing.

{¶ 17} Significantly, the record establishes that although the trial court

did incorrectly refer to Cruea’s “no contest” plea as a “guilty” plea on two occasions, the

trial court correctly referred to his plea as “no contest” the majority of the time during the

hearing. The trial court made the following statements to Cruea regarding his no contest

plea at the hearing:

The Court: You heard the discussion earlier in this hearing about

the plea agreement. Did you hear that discussion?

Cruea: Yes sir.

Q: And is that your understanding of the plea agreement? 6

A: Yes sir.

Q: And other than what’s in the plea agreement, has anyone promised

you anything in order to get you to enter a No Contest plea today?

A: No sir.

Q: Has anyone threatened you in any way in order to get you to enter

a No Contest plea?

A: No sir. (Tr. 6)

***

Q: Do you understand that by pleading no contest to these charges in

the indictment, including the amended charge, you’re not admitting

you’re guilty, but you are admitting the truth of the facts that are

contained in the indictment. Do you understand that?

A: Yes sir.

Q: Do you understand that a no contest plea cannot be used against

you in any future civil or criminal proceeding, do you understand that?

A: Yes sir.

Q: And do you also understand that if the allegations that are

contained in the indictment, including the amendment are sufficient

to state the felony offenses that you’re charged with then the

Court must find you guilty on your no contest plea? Do you

understand that?

A: Yes sir. [Cite as State v. Cruea,

.] Q: Do you also understand that you are pleading guilty to a

sexually oriented, child victim oriented offense? Do you understand

that?

A: And you understand that because of the offense to which you

are pleading guilty will determine whether you’ll be classified as a

one – Tier I, Tier II, or Tier III sex offender, do you understand that?

A: Yes sir.

***

Q: Your attorney has given me this plea form, Plea of No Contest.

Did you sign it on the front and the back?

A: From what I can see from here, yes sir.

***

Q: Okay, and did you read it over and go over it with your attorney –

A: Yes I did.

Q: - before you signed it?

A: Yes.

Q: Do you have any questions about what’s on that form?

A: No.

***

Q: And at this time do you wish to enter a plea of No Contest

to Count One, the amended charge of rape, a felony of the first

degree, do you wish to enter a No Contest plea to that charge?

A: Yes sir. [Cite as State v. Cruea,

.] Q: And do you also wish to enter a No Contest plea to Count Two

of 11CR412, gross sexual imposition? Do you wish to enter a No

Contest plea to that charge?

A: Yes sir.

Q: And in Case 11CR303, do you wish to enter a No Contest plea

to the charge of gross sexual imposition, a felony of the third degree?

A: Yes sir.

Q: And are you entering a No Contest plea to each of these charges

voluntarily and of your own free will?

A: Yes sir.

Q: The record should reflect, and the Court finds the Defendant

is making a knowing, intelligent, and voluntary decision to

tender a plea of No Contest to each of the charges, including

the amended indictment. The Court finds that the Defendant

has been informed of all of his constitutional rights, that he

understands that nature of the charges, the effects of a No

Contest plea, as well as the possible penalties which could be

imposed. The Court has reviewed the indictments and also

the amended indictment, and finds there is a sufficient

factual basis for the plea. Does either the State or counsel

for the Defendant have any objection to any aspect of the plea

hearing?

The State: No Your Honor. [Cite as State v. Cruea,

.] Defense Counsel: No Your Honor. (Tr. 15-19).

{¶ 18} At this point, the trial court went on to make a finding of guilty regarding

Cruea’s no contest plea.

{¶ 19} Accordingly, the record establishes that other than the two isolated instances

where the trial court incorrectly referred to Cruea’s plea as a “guilty” plea, the court correctly

advised Cruea regarding the nature of the no contest plea he was entering. The trial court

explained the effect of a no contest to plea to Cruea, and ensured that he was entering the no

contest plea in a knowing, voluntary, and intelligent fashion. Neither Cruea nor his counsel

expressed any confusion regarding the nature of the no contest plea. In fact, the record

supports the conclusion that Cruea completely understood the nature and effect of the plea

into which he was entering. Moreover, neither Cruea nor his attorney objected to trial

court’s mistaken references to the plea as “guilty” plea. Upon review, we find that the trial

court’s isolated, incorrect references to Cruea’s no contest plea as a “guilty” plea were

harmless, and therefore cannot form the basis upon which to vacate his no contest plea.

{¶ 20} 3) Sex Offender Reporting Requirements

{¶ 21} In his final argument, Cruea asserts that his plea should be vacated because

the trial court failed to properly advise him with respect to how his no contest plea would

affect his sexual offender reporting requirements. Specifically, Cruea argues that the trial

court failed to advise him of his specific reporting responsibilities once he was designated as

a sexual offender.

{¶ 22} Initially, we note that the trial court incorrectly designated Cruea as a Tier II

sexual offender under the Adam Walsh Act, despite the fact that Cruea’s rape offense in Cae

No. 2011CR412 occurred between 1987 and 1994, before the A.W.A. took effect. The fact 10

that the State allowed Cruea to choose what statute he wanted to be sentenced under did not

affect the law under which he was to be designated as a sexually oriented offender. In State

v. Williams, The Ohio Supreme Court held that the A.W.A. is unconstitutional as applied to

any sex offender who committed the underlying sex offense before the A.W.A.’s 2008

enactment.

,

,

. The Court

concluded that applying the A.W.A. to such offenders violates the retroactivity clause of the

Ohio Constitution.

Simply put, Cruea should have been classified under Megan’s Law

which may be applied retroactively and would apply to Cruea’s sex offenses given the dates

of their commission. Accordingly, the trial court committed plain error when it designated

Cruea as a Tier II sex offender under the A.W.A.

{¶ 23} We further note that under Megan’s Law, whether or not a defendant

convicted of a sexually oriented offense has a community reporting responsibility depends

upon the classification he or she receives after a sex offender classification hearing has been

held. Thus, when the trial court in the instant case informed Cruea “that based upon your

classification status, the Sheriff may have to – may be required to notify victims, neighbors,

schools, churches and other institutions of your name, address and the offense” the trial court

was not misinforming Cruea regarding his future responsibilities. Under Megan’s Law,

were Cruea to be classified as a sexual predator, he would have community reporting

responsibilities. If Cruea were to be classified as a habitual sexual offender, it would be at

the trial court’s discretion whether to make him subject to community reporting

responsibilities. Conversely, if the trial court classified Cruea as sexually oriented offender,

he would not have any community reporting duties. Accordingly, the trial court did not err 11

when it advised Cruea of the “possible consequences” his no contest would have on his

sexual offender designation, and his plea will not be vacated.

{¶ 24} Accordingly, the trial court committed plain error when it designated Cruea

as a Tier II sex offender under the A.W.A. Pursuant to Megan’s Law, the trial court should

have held a sex offender classification hearing in order to determine whether Cruea should

be designated as a 1) sexually oriented offender; 2) habitual sex offender; or a 3) sexual

predator. R.C. 2950.09. (H.B. 180, January 1, 1997). Once that determination is made after

a classification hearing, the trial court can inform Cruea of his reporting responsibilities

based on his designation.

{¶ 25} Cruea’s sole assignment of error is sustained in part and overruled in part.

{¶ 26} Accordingly, Cruea’s classification as a Tier II sexual offender is reversed,

and this matter is remanded for a sex offender classification hearing in order to determine

whether he should be designated as a 1) sexually oriented offender; 2) habitual sex offender;

or a 3) sexual predator under Megan’s Law. R.C. 2950.09. In all other respects, the

judgment of the trial court is affirmed.

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GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Robert E. Long, III J. Allen Wilmes Hon. Christopher Gee