[Cite as State v. Hawkins,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Appellate Case No. 2012-CA-49 Plaintiff-Appellee : : Trial Court Case No. 2012-CR-08 v. : : DAVID R. HAWKINS : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 21st day of June, 2013.

...........

STEPHEN K. HALLER, Atty. Reg. #0009172, by NATHANIEL R. LUKEN, Atty. Reg. #0087864, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

TYLER D. STARLINE, Atty. Reg. #0078552, Finlay, Johnson & Beard, Ltd., 260 North Detroit Street, Xenia, Ohio 45385 Attorney for Defendant-Appellant

.............

HALL, J.,

{¶ 1} David R. Hawkins appeals from his conviction and sentence following a guilty plea to two counts of sexual battery in violation of R.C. 2907.03(A)(2).

{¶ 2} Hawkins advances two assignments of error on appeal. First, he contends the trial

court erred in accepting his guilty plea without properly informing him of his classification under

the Adam Walsh Act and the corresponding sex-offender reporting and notification (“SORN”)

requirements. Second, he claims the trial court erred at sentencing by failing to advise him of his

right to appeal.

{¶ 3} The record reflects that Hawkins originally was indicted on two counts of rape and

one count of sexual battery for engaging in multiple sex acts with a twelve-year-old girl. The

sexual-battery charge in the indictment is identified as a second-degree felony because the

indictment specifies the victim’s age. See R.C. 2907.03(B) (providing that sexual battery is a

second-degree felony if the victim is less than thirteen years old). As part of a negotiated

agreement, Hawkins later pled guilty to two counts of sexual battery in violation of R.C.

2907.03(A)(2), each a third-degree felony. (Doc. #34).

{¶ 4} During the plea hearing, the trial court conducted a Crim.R. 11 colloquy, advising

Hawkins of the various rights he was waiving and informing him of the potential punishment. At

one point, the trial court inquired whether sexual battery was a Tier III sex offense. The

prosecutor incorrectly responded that it was a Tier II offense.1 (Plea Tr. at 9-10). The trial court

then asked Hawkins whether he understood that his guilty plea would result in sex-offender

registration requirements and that he would have to follow them. Hawkins stated that he

understood. (Id.). He also signed a plea form that mentioned "sexual registration" as one of his

sanctions. (Doc. #34).

{¶ 5} At sentencing, the trial court correctly advised Hawkins that the sexual-battery

1 Sexual battery is a Tier III sex offense. R.C. 2950.01(G)(1)(a). 3

charges were Tier III sex offenses. It proceeded to provide a more detailed explanation of

Hawkins’ sex-offender reporting requirements, including a requirement to verify his address

every ninety days for life. (Sentencing Tr. at 4-8). Hawkins stated that he understood. (Id. at 8).

The trial court then imposed an aggregate six-year prison sentence This appeal followed.

{¶ 6} In his first assignment of error, Hawkins challenges the validity of his guilty plea.

He argues that his plea was not knowing, intelligent, and voluntary because (1) he was

misinformed about the applicable sex-offense tier level and (2) he was uninformed about

mandatory reporting requirements, including address verification every ninety days for life and

potential criminal prosecution for failure to comply. Because the Adam Walsh Act version of

Ohio’s SORN law applicable to Hawkins has been held to be punitive, he asserts that the trial

court was required to discuss the applicable requirements during the plea colloquy.

{¶ 7} In response, the State contends the trial court substantially complied with Crim.R.

11 during the plea hearing despite the prosecutor’s misstatement about the applicable tier level

and the lack of any specifics regarding SORN’s requirements. Alternatively, absent substantial

compliance, the State argues that the trial court partially complied with Crim.R. 11 by telling

Hawkins he would be required to register as a sex offender. As a result of this alleged partial

compliance, the State argues that Hawkins must demonstrate prejudice by establishing that he

would not have pled guilty if he had been fully informed about his obligations.

{¶ 8} Prior to the Adam Walsh Act version of R.C. Chapter 2950, a trial court had no

obligation to inform a sex offender of the applicable registration, verification, and notification

requirements before accepting a guilty plea. See, e.g., State v. Stape, 2d Dist. Montgomery No.

22586,

. Those requirements were considered remedial, collateral 4

consequences of the underlying sex offense. Therefore, Crim.R. 11 imposed no duty on a trial

court to mention them.

{¶ 9} In State v. Williams,

,

,

,

the Ohio Supreme Court held that the Adam Walsh Act version of R.C. Chapter 2950 is punitive,

not remedial. As a result, we agree with Hawkins that Crim.R. 11 obligates a trial court to advise

a defendant who is being sentenced under the Adam Walsh Act at least of the basic registration

requirement before accepting his plea. In a concurring opinion penned more than eighteen

months ago, one member of the present panel foreshadowed this result, reasoning:

* * * [W]e 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 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).

State v. Bush, 2d Dist. Greene No. 10CA82,

(Fain, J., concurring).

{¶ 10} Our sister courts have reached the same conclusion. For example, in State v.

Jackson, 1st Dist. Hamilton No. C-110645,

, the First District reasoned: 5

In order for a trial court to ensure that a defendant's plea is knowing,

voluntary, and intelligent, it must engage the defendant in a colloquy pursuant to

Crim.R. 11(C). State v. Clark,

,

,

. When accepting a plea of guilty, a trial court must determine that the

defendant understands the nature of the charges and of the maximum penalty

involved. Crim.R. 11(C)(2)(a).

The registration, community-notification, and verification requirements of

the Adam Walsh Act for persons classified as sex offenders are punitive in nature.

State v. Williams,

,

,

. As such, they are part of the penalty imposed for the offense.

Consequently, a defendant must be informed of them before his plea of guilty may

be accepted. Since Jackson was not informed of the requirements that would result

if he was classified as a Tier I offender, he did not enter a knowing plea to the

charge of gross sexual imposition.

Id. at ¶5-6.

{¶ 11} Similarly, the Eighth District has recognized that the sex-offender registration,

verification, and notification requirements imposed by the Adam Walsh Act are punitive and

must be addressed in a Crim.R. 11 plea colloquy. State v. Allen, 8th Dist. Cuyahoga No. 97820,

. In Allen, the court concluded that SORN’s requirements were part of the

“maximum penalty” a sex offender faced. Id. at ¶12. The Eighth District also found the

substantial-compliance standard applicable, reasoning:

A trial court only needs to substantially comply with the nonconstitutional 6

requirements of Crim.R. 11(C)(2)(a), which includes the maximum penalties.

“Substantial compliance means that under the totality of the circumstances the

defendant subjectively understands the implications of his plea and the rights he is

waiving.” The trial court is not “required to review each of the numerous

individual restrictions set forth in R.C. Chapter 2950” in order to substantially

comply with Crim.R. 11 in advising a defendant regarding his sexual offender

classification.

(Citations omitted.) Id.

{¶ 12} Consistent with the concurring opinion in Bush, and the opinions of the First and

Eighth Districts, we conclude that the trial court had a duty to address the basic obligation

imposed on Hawkins by the Adam Walsh Act before accepting his guilty plea. We also agree

with the Eight District’s finding that this duty was a non-constitutional requirement of Crim.R.

11. “When reviewing non-constitutional requirements of Crim.R. 11, an appellate court uses a

substantial compliance standard, meaning that ‘under the totality of the circumstances the

defendant subjectively understands the implications of his plea and the rights he is waiving.’”

State v. Collins, 2d Dist. Greene No. 2012-CA-2,

, quoting State v. Nero,

,

(1990).

{¶ 13} Here the record does not reflect that Hawkins subjectively understood the

implications of his guilty plea as to the obligations imposed by the Adam Walsh Act. During the

plea hearing, the prosecutor incorrectly represented that sexual battery was a Tier II sex offense.

Prior to entering his guilty plea, Hawkins was not advised that sexual battery actually was a Tier

III sex offense. Nor was he advised that a conviction on a Tier III sex offense obligates an 7

offender to verify his address every ninety days for life or that it includes community

notification.2 After the prosecutor incorrectly announced that sexual battery was a Tier II offense,

the trial court discovered that defense counsel had not discussed sex-offender registration with

Hawkins “at all.” (Plea Tr. at 10). The trial court then simply told Hawkins “there will be a

registration requirement and I will announce that at the sentencing and you will have to follow

those requirements.” (Id.).

{¶ 14} In our view, the foregoing statement fell short of satisfying the trial court’s

obligation under Crim.R. 11 to advise Hawkins of the basic consequences he faced under R.C.

Chapter 2950. “This is not to say, however, that the trial court is required to review each of the

numerous individual restrictions and requirements set forth in R.C. Chapter 2950 in order to

substantially comply with nonconstitutional provisions of Crim.R. 11.” State v. Creed, 8th Dist.

Cuyahoga No. 97317,

. For present purposes, we hold only that the trial

court did not substantially comply with Crim.R. 11 when it allowed the prosecutor’s

misstatement about the applicable tier level to stand uncorrected and failed to inform Hawkins

about his address-verification obligation every ninety days for life and about the fact that a Tier

III conviction includes community notification. The trial court’s bare observation that “there will

2 Pursuant to R.C. 2950.11(F)(1)(a), community notification generally is required for a Tier III sex offense. State v. Gillingham, 2d Dist. Montgomery No. 23244,

, ¶30 (recognizing that “Tier III offenders are subject to community notification as a default”). Under certain circumstances, a trial court has the discretion either not to impose or to suspend such community notification. See, e.g., R.C. 2950.11(F)(2); R.C. 2950.11(H)(1); State v. McConville,

,

,

, ¶4-13. Here the trial court’s judgment entry includes a form explaining Hawkins’ duties as a sex offender. The form contains a checkmarked box indicating that he is a Tier III sex offender. A box reading “Not Subject to Community Notification pursuant to O.R.C. 2950.11(F)(2)” was left empty and not checkmarked by the trial court. (See Attachment to Judgment Entry, Doc. #40). Therefore, absent any indication in the record to the contrary, we must conclude that the trial court intended for Hawkins to be subject to community notification pursuant to R.C. 2950.11(F)(1)(a). 8

be a registration requirement” was not enough, even under a substantial-compliance standard.

{¶ 15} "When the trial judge does not substantially comply with Crim.R. 11 in regard to a

nonconstitutional right, reviewing courts must determine whether the trial court partially

complied or failed to comply with the rule. 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." (Emphasis sic.) State v. Clark,

,

,

. “If the trial judge completely failed to comply

with the rule, e.g., by not informing the defendant of a mandatory period of postrelease control,

the plea must be vacated.”

{¶ 16} Although the trial court did mention an unspecified “registration requirement,” the

trial court wholly failed to mention in-person address verification every ninety days for life or

community notification during the plea hearing. Its omissions about these topics reflect

non-compliance with Crim.R. 11 rather than partial compliance. The prosecutor’s misstatement

about the applicable tier level also was significant. A Tier II sex offender faces semi-annual

reporting for twenty-five years, whereas a Tier III sex offender must report to the sheriff’s office

four times a year for life and typically must endure community notification.

{¶ 17} On the record before us, we find non-compliance with Crim.R. 11 as to the

punitive address-verification and community-notification provisions of the Adam Walsh Act

version of R.C. Chapter 2950. As a result, Hawkins’ guilty plea must be vacated without regard

to a showing of prejudice. Clark at ¶32.

{¶ 18} In opposition to our conclusion, the State claims the present case is analogous to 9

State v. Garrett, 9th Dist. Summit No. 24377,

. In Garrett, the defendant moved

to withdraw his guilty plea to involuntary manslaughter five years after his conviction. He argued

that the plea was invalid because the trial court had not properly explained post-release control.

During the defendant’s plea hearing, defense counsel stated that he had discussed post-release

control with the defendant and that the defendant understood the process. Id. at ¶1-2. Also during

the plea hearing, the trial court advised the defendant that he faced “up to five years” of

post-release control. The defendant actually faced a mandatory five-year term of post-release

control. Id. at ¶3-5. The Ninth District nevertheless found substantial compliance with Crim.R.

11 with regard to the information about post-release control.

{¶ 19} We find Garrett readily distinguishable. There the trial court did inform the

defendant of a post-release control obligation. In contrast, the trial court in Hawkins’ case did not

mention the lifetime address-verification or community-notification requirements of R.C.

Chapter 2950. As the Garrett court itself recognized, substantial compliance cannot exist where a

trial court fails to mention an obligation. Garrett at ¶18-19, citing State v. Sarkozy,

,

,

. Hawkins’ first assignment of error is sustained.

{¶ 20} In his second assignment of error, Hawkins contends the trial court erred in failing

to mention his right to appeal at sentencing. Our resolution of the first assignment of error

renders this assignment of error moot. The trial court’s omission would not require reversal in

any event because Hawkins filed a timely notice of appeal with the assistance of appointed

appellate counsel. See, e.g., State v. Middleton, 12th Dist. Preble No. CA2004-01-003,

(“Regardless of whether the common pleas court committed error with

regard to Crim.R. 32(B)(2) and (3), appellant has failed to show prejudice. Appellant was 10

appointed counsel and filed an appeal within the requisite time period. Accordingly, there was no

reversible error in this case.”). The second assignment of error is overruled.

{¶ 21} Having sustained Hawkins’ first assignment of error, we reverse the trial court’s

judgment and remand the cause for vacation of the guilty plea in this case.

.............

FAIN, P.J., and DONOVAN, J., concur.

Copies mailed to:

Stephen K. Haller Nathaniel R. Luken Tyler D. Starline Hon. Stephen Wolaver