[Cite as State v. Young,

.]

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

STATE OF OHIO

Plaintiff-Appellee

v.

CARLOS M. YOUNG, JR.

Defendant-Appellant

Appellate Case No. 2013-CA-22

Trial Court Case No. 2012-CR-221

(Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 23rd day of May, 2014.

...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, ELIZABETH ELLIS, Atty. Reg. No. 0074332, Assistant Greene County Prosecutors, 61 Greene Street, Xenia, Ohio 45385 Attorneys for Plaintiff-Appellee

SCOTT N. BLAUVELT, Atty. Reg. No. 0068177, 246 High Street, Hamilton, Ohio 45011 Attorney for Defendant-Appellant

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

WELBAUM, J.

{¶ 1} In this case, Defendant-Appellant, Carlos Young, Jr., appeals from his

conviction and sentence, following a guilty plea to two counts of Gross Sexual Imposition, both 2

felonies of the third degree. Young contends that the trial court erred in accepting his guilty

plea, because the plea was not knowing, intelligent, and voluntary. In particular, Young

contends that the trial court failed to fully advise him of the sex-offender tier level and the

corresponding registration and community-notification requirements of the Adam Walsh Act.

{¶ 2} We conclude that the trial court erred in failing to advise Young of the

registration requirements under R.C. Chapter 2950 before accepting Young’s guilty plea to

charges of Gross Sexual Imposition. However, the trial court partially complied with the

nonconstitutional Criminal Rule 11 requirements and Appellant did not demonstrate prejudice.

We therefore affirm the trial court judgment.

I. Facts and Course of Proceedings

{¶ 3} Young was indicted on June 4, 2012, on one count of Rape of a person less than

thirteen years of age, and two counts of Gross Sexual Imposition of a person less than thirteen

years of age. These charges arose from Young’s alleged rape of a two-year old child. The Rape

charge was a first degree-felony, carrying a potential sentence of life in prison, and the two

counts of Gross Sexual Imposition were third-degree felonies.

{¶ 4} After Young pled not guilty, the matter was tried to a jury in late October 2012.

The jury was unable to reach a verdict and was dismissed. The case was then set for retrial in

mid-December 2012. However, on December 17, 2012, Young and the State entered into a plea

agreement, pursuant to which Young agreed to plead guilty to the two charges of Gross Sexual

Imposition. In exchange, the State agreed to dismiss the Rape charge. The plea agreement,

which was signed by Young, indicated that there would be a sexual registration sanction, but said 3

nothing about the tier level or registration requirements. Doc. #144, p. 1.

{¶ 5} On December 17, 2012, the trial court conducted a Crim.R. 11 colloquy and

accepted Young’s guilty plea. During the plea hearing, the court noted that there was a “sexual

registration,” and Young stated that this was his understanding of the plea agreement. The

following exchange then occurred:

THE COURT: All right. Is there an understanding as to the tier level on

this one.

MR. HAYES: I don’t believe we’ve talked about it, Judge, and as we sit

here now, I don’t – I believe it’s a Tier II, but –

THE COURT: Well, all right. If you haven’t done it, you haven’t done

it. It’s not required at this point in time.

You understand it’s pretty black and white. You just take the charge, you

plug it into the form and you come out with the answer.

All right. Mr. Young, are there any other deals, conditions, or promises

present in this case that we haven’t discussed?

THE DEFENDANT: No. Transcript of Guilty Plea Hearing, December

17, 2012, pp. 11-12.

{¶ 6} The Rule 11 Notification and Wavier form, which was signed and filed the same

day, also indicated that sexual registration would be one of the sanctions imposed, but the tier

level and corresponding requirements were not outlined. See Doc. #142, p. 1. After accepting

the guilty plea, the trial court referred the matter for a presentence investigation and set a

sentencing hearing for February 6, 2013. 4

{¶ 7} At the sentencing hearing, the trial court discussed the sexual registration

requirements in detail. Because Young was classified as a Tier II sex offender due to the nature

of the offense, the court informed Young that he would have to verify his residence every 180

days for 25 years. The court described all the requirements for Tier II sex offenders, including

the potential sanctions for failing to register. See Transcript of Disposition Hearing, February 6,

2013, pp. 2-6. At the end of the discussion, the following exchange occurred:

THE COURT: Now, do you understand everything that I’ve indicated to

you at this point.

THE DEFENDANT: Yes.

THE COURT: Okay. And I understand that you’ve gone over this with

your Counsel and you’ve signed this document entitled Explanation of Duties to

Register as a Sex Offender; is that correct?

THE DEFENDANT: Yes.

THE COURT: All right. Anything else either Counsel wants to address

on the issue of registration?

MRS. BURKE: No, Your Honor.

MR. KING: Nothing, Your Honor. Id. at p. 6.

{¶ 8} After discussing the registration requirements, the trial court sentenced Young to

five years in prison on each count, to be served concurrently, five years of post-release control,

court costs, and $100 in restitution. In May 2013, Young filed a motion for leave to file a

delayed appeal, and we granted the motion. Young now appeals from his conviction and

sentence. 5

II. Did the Trial Court Err in Accepting the Guilty Plea?

{¶ 9} Young’s sole assignment of error states that:

The Trial Court Erred to the Prejudice of Appellant in Its Acceptance of a

Guilty Plea Which Was Not Knowing, Intelligent and Voluntary in Violation of

Appellant’s Due Process Rights Under the Fifth and Fourteenth Amendments to

the United States Constitution and Article I, Section 16 of the Ohio Constitution.

{¶ 10} Under this assignment of error, Young contends that his plea was not knowing,

intelligent, and voluntary because, prior to accepting Young’s plea, the trial court did not explain

Young’s sex offender tier level and did not determine that Young understood the tier level.

Young argues that the registration, community notification, and verification requirements

imposed by the Adam Walsh Act (AWA) constitute punishment and must be addressed during

plea hearings.

{¶ 11} We previously considered a somewhat different situation in State v. Hawkins, 2d

Dist. Greene No. 2012-CA-49,

. As here, the trial court did not discuss the

registration and notification requirements under the AWA during the plea hearing, other than to

note that the defendant would be subject to sexual registration. Id. at ¶ 4. There are a few

differences between the case before us and Hawkins. One is that the State incorrectly said

during the hearing in Hawkins that the defendant would be required to register as a Tier II, or

lower level of offender, when he was, in fact, required to register under Tier III. Here, the level

was implied as Tier II, but no decision was made because the trial court did not feel it was

necessary. 6

{¶ 12} In addition, the record in Hawkins indicates that defense counsel had not

discussed registration requirements with his client “ ‘at all.’ ” Id. at ¶ 13, quoting from the Plea

Transcript, p. 10. The record in the case before us indicates that Young knew that the plea

agreement required registration, but nothing was said during the hearing about whether he and his

attorney had discussed it. At the hearing, the prosecutor stated that “we” had not talked about

the tier level, and the implication is that the reference was to counsel for both parties. However,

the record is not completely clear on this point.

{¶ 13} In discussing the validity of the plea in Hawkins, we noted that:

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 consequences of the

underlying sex offense. Therefore, Crim.R. 11 imposed no duty on a trial court to

mention them. Id. at ¶ 8.

{¶ 14} We also observed, however, that “[i]n 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, * * * 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.” Hawkins, 2d Dist. Greene No.

2012-CA-49,

.

{¶ 15} We held that this duty is “a non-constitutional requirement of Crim.R. 11,” 7

which would require a finding only of “substantial compliance.” Id. at ¶ 12. Such a finding

means that “ ‘ “under the totality of the circumstances the defendant subjectively understands the

implications of his plea and the rights he is waiving.” ’ ” Id., quoting State v. Collins, 2d Dist.

Greene No.2012-CA-2,

, which in turn quotes State v. Nero,

,

(1990).

{¶ 16} After noting the prosecutor’s misstatement about the tier level, we observed that

the trial court had not told the defendant about the requirement to register every ninety days, or

about the fact that community notification would be required. Instead, the trial court told the

defendant that “ ‘there will be a registration requirement and I will announce that at the

sentencing and you will have to follow those requirements.’ ” Hawkins, 2d Dist. Greene No.

2012-CA-49,

, quoting from the Plea Transcript, at p. 10. We then

stated that:

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 8

days for life and about the fact that a Tier III conviction includes community

notification. The trial court's bare observation that “there will be a registration

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

at ¶ 14.

{¶ 17} Young contends that under the decision in Hawkins, we must vacate his guilty

plea based on the trial court’s failure to substantially comply with Crim.R. 11. The State argues

that the trial court substantially complied with Crim.R. 11. In addition, the State maintains that

even if the trial court failed to substantially comply, the “partial compliance” standard requires

that the plea be upheld.

{¶ 18} In support of its first argument, the State maintains that the case before us is

more like State v. Butcher, 12th Dist. Butler No. CA2012-10-206,

, than it is to

Hawkins. In Butcher, the trial court informed the defendant that he would be designated a Tier

III sex offender and would have to report to the sheriff of the county in which he resided, every

90 days for the rest of his life. Id. at ¶ 3. The court then asked the defendant if he understood

that, and if it would change anything he wanted to do regarding the plea. In response, the

defendant said no. Id.

{¶ 19} On appeal, the defendant argued that “his plea was not knowing, intelligent, or

voluntary because he was not informed that his classification as a Tier III sex offender would

require him to register in the county [where] he works, attends school, or is ‘temporarily

domiciled.’ ” Id. at ¶ 7. Although the Twelfth District Court of Appeals agreed with the

requirements established in Hawkins and other cases, it concluded that the trial court had

substantially complied with Crim.R. 11. In this regard, the court of appeals observed that: 9

In the present case, the record indicates that Butcher subjectively

understood the maximum penalty resulting from his guilty plea, including his

classification as a Tier III sex offender and the resulting registration requirements.

During the plea hearing, the trial court correctly advised Butcher that he would be

labeled a Tier III sex offender. R.C. 2950.01(G)(1)(a). The trial court also notified

Butcher that he would be subject to certain registration requirements as a result of

this classification. The trial court specifically informed Butcher that every 90 days,

for the rest of his life, he would be required to register with the sheriff of the

county where he resides. Importantly, after informing Butcher of his Tier III

classification and the lifetime reporting requirements, the trial court specifically

asked Butcher if this “in any way change[d] what you wish to do here as far as

plea,” and Butcher respond[ed], “no.”

The trial court's failure to specify that Butcher would also be required to

register with the sheriff of the county in which he works, attends school, or

“temporarily resides” does not invalidate his plea. Rather, the totality of the

circumstances indicate that Butcher subjectively understood that by pleading

guilty to rape, he would be subjected to certain restrictions as a Tier III sex

offender. Accordingly, we find that the statements made by the trial court with

regard to Butcher's registration requirements under R.C. Chapter 2950 were such

that the trial court substantially complied with the nonconstitutional provisions of

Crim .R.11. Id. at ¶ 12-13.

{¶ 20} These conclusions are consistent with our comment in Hawkins that a trial court 10

need not elaborate on every specific registration requirement before accepting a plea. Hawkins,

2d Dist. Greene No. 2012-CA-49,

. However, after examining both

Hawkins and Butcher, we conclude that the situation in the case before us is more akin to

Hawkins, and that the trial court, therefore, failed to substantially comply with Crim.R. 11. At

the plea hearing, the State indicated a belief that the registration might be Tier II, but the matter

was not settled then, nor was it explained. Furthermore, unlike Butcher, the trial court in the

case before us failed to discuss any of the registration requirements. Accordingly, the trial court

failed to substantially comply with Crim.R. 11.

{¶ 21} This leaves the question of whether the trial court partially complied. In this

vein, the State argues that a trial court partially complies with Crim.R. 11 when it mentions a

right without explaining it. The State also argues that Young was not prejudiced by the court’s

actions.

{¶ 22} We agree that the trial court partially complied with Crim.R. 11. After

concluding that the trial court in Hawkins failed to substantially comply with Crim. R.11, we

went on to consider whether the court had partially complied with the rule. We observed that:

“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,

,

, 893 N .E.2d 462, ¶ 32. “If the trial judge completely failed to 11

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

of postrelease control, the plea must be vacated.”

Hawkins, 2d Dist. Greene

No. 2012-CA-49,

.

{¶ 23} We then stated that:

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.

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. Id. at ¶ 16-17, citing Clark

at ¶ 32.

{¶ 24} Hawkins is distinguishable for two reasons. First, in Hawkins we found

significance of the misstatement about the tier level. Here, the correct tier level was mentioned.

Also in Hawkins, the misinformation resulted in prejudice because Hawkins was advised he was

entering a plea to a Tier II offense (with no community notification requirements) but actually 12

Tier III applied that required community notification and lifetime reporting requirements. As

Hawkins illustrates, a trial court giving a defendant incorrect, prejudicial information may result

in a finding of noncompliance.

{¶ 25} However that is not the case here. We find that the trial court partially complied

with Rule 11. The trial court mentioned the registration requirement and it was contained in the

plea form, but did not explain it. The trial court did not materially mislead or misinform Young.

Since we conclude that partial compliance occurred we now must consider whether Young was

prejudiced.

{¶ 26} Young has not demonstrated prejudice. As indicated above, at the time of

disposition the court personally asked Young if he understood his explanation of Tier II reporting

requirements and the document entitled Explanation of Duties to Register as a Sex Offender.

Young indicated he understood the information. In response to the inquiry by the trial court

Young’s attorney stated he had nothing to address on the issue of registration. Transcript of

Disposition Hearing, February 6, 2013, pp. 2-6. Young’s failure to question the detailed

registration information provided by the trial court at the time of sentencing demonstrates his

understanding and lack of surprise or prejudice.

{¶ 27} Accordingly, Young’s sole assignment of error is overruled.

III. Conclusion

{¶ 28} Young’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed. 13

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

FAIN, J., concurs.

FROELICH, P.J., dissenting:

{¶ 29} In Butcher, the trial court informed the defendant that he would be designated a

Tier III offender and that he would have to report to the sheriff of the county in which he resided

every ninety days; the court then followed up by asking if he understood. I agree this was partial

compliance.

{¶ 30} Here, the Appellant merely acknowledged that there was a “sexual registration”

requirement, but was never informed of the Tier level, that he would have to report to the sheriff,

or how often and for how long he would be required to report. The court’s statement that “it’s

not required at this time” was unintentionally as misleading as the incorrect designation in

Hawkins; and its explanation that “it’s pretty black and white. You just take the charge, you

plug it into the form and you come out with the answer,” while statutorily correct, did not inform

the defendant, even partially, of the “basic registration requirements.” Hawkins ¶ 9.

{¶ 31} From the record of the plea colloquy, I cannot conclude that the Appellant

subjectively understood the implications of his plea.

.......... 14

Copies mailed to:

Nathaniel R. Luken Elizabeth Ellis Scott N. Blauvelt Hon. Stephen Wolaver