[Cite as State v. Johnson,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2015-02-016

: OPINION - vs - 11/9/2015 :

RYAN BLAKE JOHNSON, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2014-09-1475

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant

PIPER, P.J.

{¶ 1} Defendant-appellant, Ryan Johnson, appeals a decision of the Butler County

Court of Common Pleas accepting his guilty plea.

{¶ 2} Johnson was indicted on charges of rape of a child under 13 years old and

gross sexual imposition. As part of a plea bargain, the state amended the rape charge to a

first-degree felony without the age specification, and the gross sexual imposition charge was Butler CA2015-02-016

dismissed. Johnson read and signed a plea form that indicated the details of the plea

agreement, including that Johnson would be classified as a Tier III sex offender as a result of

his rape conviction.

{¶ 3} The trial court held a plea hearing, during which it performed a colloquy

informing Johnson of the constitutional rights he was relinquishing, as well as details

surrounding the plea agreement and sentencing. Johnson pled guilty at the end of the

hearing, and the trial court accepted Johnson's plea as knowingly, voluntarily, and

intelligently made. The trial court later sentenced Johnson to eight years in prison. Johnson

now appeals the trial court's decision to accept his guilty plea, raising the following

assignment of error.

{¶ 4} DEFENDANT-APPELLANT'S PLEA WAS NOT KNOWING, INTELLIGENT,

AND VOLUNTARY.

{¶ 5} Johnson argues in his sole assignment of error that the trial court erred in

accepting his guilty plea because the trial court misinformed him of notification requirements

and did not address his right to subpoena witnesses.

{¶ 6} When a defendant enters a guilty plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily, and the failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and the

Ohio Constitution. State v. Butcher, 12th Dist. Butler No. CA2012-10-206,

. To ensure that a defendant's plea is properly accepted, the trial court must engage the

defendant in a colloquy pursuant to Crim.R. 11(C). State v. Henson, 12th Dist. Butler No.

CA2013-12-221,

.

{¶ 7} According to Crim.R. 11(C)(2), the trial court may not accept a defendant's

guilty plea without first addressing the defendant personally and:

(a) Determining that the defendant is making the plea voluntarily, -2- Butler CA2015-02-016

with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.

(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

{¶ 8} A guilty plea is invalid if the trial court does not strictly comply with Crim.R.

11(C)(2)(c), which requires the trial court to verify that the defendant understands the

constitutional rights he is waiving. State v. Shavers, 12th Dist. Butler No. CA2014-05-119,

, ¶ 9. While the most accurate way to inform a criminal defendant of his

constitutional rights during the plea colloquy "is to use the language contained in Crim.R.

11(C), * * * a trial court's failure to literally comply with Crim.R. 11(C) does not invalidate a

plea agreement if the record demonstrates that the trial court explained the constitutional

right 'in a manner reasonably intelligible to that defendant.'" (Emphasis sic.) State v. Barker,

,

, ¶ 14 quoting State v. Veney,

,

, ¶ 27. "This is because a trial court can still convey the requisite information

on constitutional rights to the defendant even when the court does not provide a word-for-

word recitation of the criminal rule, so long as the trial court actually explains the rights to the

defendant."

.

{¶ 9} Johnson first argues that the trial court did not strictly comply with Crim.R. 11(C)

because the court failed to tell him that one of the rights he was waiving was the right to have

the court compel witnesses to appear and testify on his behalf. According to Crim.R. -3- Butler CA2015-02-016

11(C)(2)(c), a defendant must be informed that by pleading guilty, he is waiving the right "to

have compulsory process for obtaining witnesses in the defendant's favor."

{¶ 10} During the trial court's colloquy at the plea hearing, the court stated:

Do you further give up your right to call or compel witness [sic] to testify against yourself? What that means is you give up your right to call - - to force witnesses to take the witness stand and be a witness against yourself. And further the - - to be a witness, sorry. You're giving up your right to - - to force witnesses to come to the court through the subpoena process to compel them to testify even though they don't wish to be here.

You're also giving up your right, what we call you [sic] right or confrontation of the right to face your accusers. In every trial the accusing witnesses have to take the witness stand, they have to testify under oath; they're subject to cross examination by your attorney. But again, today because you are pleading guilty you give up this right of confrontation, and also what we call compulsory service; do you understand that?

{¶ 11} While the trial court misspoke at first when explaining Johnson's right to

compulsory process, we nonetheless find that the trial court corrected its misstatement and

explained the right of compulsory service in a way that was reasonably intelligible to Johnson.

The trial court apologized for its misstatement, which indicated to Johnson that the trial court

had previously misspoke when indicating the compulsory process was to call witnesses

against Johnson. After the court's apology, it went forward to correctly indicate that the right

being waived was the right to make the court compel a witness' appearance as well as

testimony. The court's discussion clearly included a reiteration that Johnson was waiving his

right of compulsory service.

{¶ 12} There is no indication in the record that Johnson did not understand that

compulsory service was specific to his right to have witnesses appear in his defense. In fact,

the court always addressed the compulsory service issue to Johnson as "your right."

Johnson was aware he was waiving his right by pleading guilty.

{¶ 13} The court's colloquy successfully informed Johnson that the state had the -4- Butler CA2015-02-016

burden to prove the charges against him, that he had the right against self-incrimination, and

that the state had to prove the charges beyond a reasonable doubt. The trial court correctly

explained that the right to compel included making witnesses "testify even though they don't

wish to be here," which obviously explained to Johnson that the court would require these

witnesses' appearance on behalf of Johnson. This is especially true where the trial court

informed Johnson that the plea hearing was held to inform him of important information

regarding his plea and to allow Johnson to question any fact regarding the plea process.

{¶ 14} At the beginning of the plea hearing, the court directly addressed Johnson and

stated, "Now, I'm going to go over a number of issues with you this morning on the record. If

at any point during our conversation you are unsure of anything I'm going to discuss, you

need to stop me so I can review those – those issues with you in more detail. Or if

necessary, we can recess the hearing so you can talk privately to your attorney * * *." Later

during the colloquy, and specific to the compulsory service issue, the trial court specifically

inquired as to whether or not Johnson was willing to "further give up your right to call or

compel witness [sic] to testify * * *."

{¶ 15} The court's colloquy was directed at Johnson specifically, and he was informed

at each turn that it was his right to compulsory service, and Johnson clearly understood that

the right being addressed was the right to call witnesses on his behalf. Therefore, there is no

indication that the trial court's initial, brief, misstatement somehow vitiated Johnson's

understanding that he had a right to compel witnesses to testify for him.

{¶ 16} This is especially true where Johnson signed the plea form, which included a

very specific statement that the plea would result in waiver of his right to "use the power of

the court to call witnesses to testify for me." Johnson verified during the plea hearing that he

read the form, signed it, and understood it, and posed no questions or indication of

misunderstanding during the trial court's colloquy. See Barker,

, at ¶ 25 -5- Butler CA2015-02-016

("alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference to

other portions of the record, including the written plea, in determining whether the defendant

was fully informed of the right in question").

{¶ 17} After reviewing the record, we find that the trial court explained the right of

compulsory service to Johnson in a manner that would make him understand that he was

waiving his right to compulsory service, and that any ambiguity caused by the trial court's

initial misstatement was certainly clarified by the written plea agreement. Thus, the record

reveals the trial court strictly complied with Crim.R. 11(C)(2)(c).

{¶ 18} Johnson also argues that the trial court failed to substantially comply with

Crim.R. 11(C) by misstating the repercussions of his Tier III sexual classification. Crim.R.

11(C)(2)(a) requires a trial court to inform a defendant of the maximum penalty associated

with a plea. However, the trial court need only substantially comply with the nonconstitutional

notifications required by Crim.R. 11(C)(2)(a) and (b), which includes notification of the

maximum penalty involved. Shavers,

, at ¶ 9. Substantial compliance with

this provision of Crim.R. 11 is sufficient so long as no prejudice results. State v. Irvin, 12th

Dist. Warren No. CA2013-03-027,

. "To demonstrate prejudice in this

context, the defendant must show that the plea would otherwise not have been entered."

{¶ 19} Pursuant to the substantial compliance standard, the appellate court must

review the totality of the circumstances surrounding the defendant's plea and determine

whether the defendant subjectively understood the effects of his plea. State v. Givens, 12th

Dist. Butler No. CA2014-02-047,

.

{¶ 20} The trial court's colloquy should have informed Johnson that community

notification was a mandatory aspect of his Tier III classification. Instead, the trial court stated

that "the County Sheriff or the people who are responsible could put you on a notification list

of where you live * * *." (Emphasis added.) Despite the ambiguity raised by the trial court's -6- Butler CA2015-02-016

statement, we find that the trial court's colloquy was in substantial compliance with Crim.R.

11(C)(2)(a) because it informed Johnson that he would be subject to community notification

and did nothing to make Johnson believe that he would not be subject to the notification

requirement.

{¶ 21} While the trial court did not say that the notification was mandatory, its

statement that the sheriff or other personnel could require public notification clearly indicates

that Johnson was aware that he would be subject to notification. This is not a case where

the trial court incorrectly stated that Johnson would not be subject to notification. Instead,

while the trial court should have used the word "must" instead of "could," the court's colloquy

nevertheless informed Johnson that his rape conviction would result in a Tier III classification,

and that "every 90 days for the rest of your life you will be required to register in the County in

which you live, your residence and - - and your work employment * * *." The court further

explained, "now, equally important there's also what we call public notification requirement

attached to that." The words "requirement attached" indicates that such notification was

mandatory in nature, and that the requirement was in place because of Johnson's

classification. There is no indication in the record that Johnson somehow believed that the

trial court's statement that notification "could" occur made the mandatory nature of the

notification null or void.

{¶ 22} Again, we also note that Johnson's plea form serves to clarify any ambiguity

caused by the trial court's statement during the colloquy. The plea form contains a notation

that the plea would result in Johnson being classified a "Tier III sex offender, (every 90 days

for life)." Johnson did not indicate during the plea hearing that he was confused regarding

the notification requirement, or that he understood the trial court's colloquy to be in conflict

with the written plea form. Moreover, there is no indication in the record that Johnson was

prejudiced by the trial court's inclusion of the word "could" in regard to the notification issue. -7- Butler CA2015-02-016

Johnson does not assert that he would not have made his plea had he been told that

notification was mandatory, or that he was led to believe he was not subject to the notification

requirement.

{¶ 23} After reviewing the record and considering the totality of the circumstances

surrounding Johnson's plea, we find that Johnson subjectively understood the effects of his

plea, including the notification requirement associated with his rape conviction and Tier III

classification.

{¶ 24} Having found that Johnson's plea was knowing, voluntary, and intelligent, we

find that the trial court did not err in accepting the plea. As such, Johnson's sole assignment

of error is overruled.

{¶ 25} Judgment affirmed.

S. POWELL and M. POWELL, JJ., concur.

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