State v. Merritt , 2018 Ohio 4995 ( 2018 )

[Cite as State v. Merritt, 2018-Ohio-4995.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170649
TRIAL NO. B-1701287
Plaintiff-Appellee, :
vs. : O P I N I O N.
SHANNON MERRITT, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 14, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
J. Rhett Baker, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Pursuant to a plea bargain, defendant-appellant Shannon Merritt
pleaded guilty to felonious assault, rape, and kidnapping. Charges of attempted rape
and abduction were dismissed. Prior to accepting Merritt’s pleas, the trial court
informed him that the rape charge was a sexually-oriented offense, and that he
would be classified as a Tier III sex offender under, and subject to the registration
and verification provisions of, Ohio’s version of the Adam Walsh Act (“AWA”). The
trial court accepted Merritt’s pleas, found him guilty, and imposed an agreed
aggregate sentence of 11 years’ incarceration. The judgment entry of conviction does
not contain Merritt’s Tier III sex-offender classification. Merritt has appealed,
alleging in a sole assignment of error that his pleas were not knowing, intelligent,
and voluntary, because the court did not inform him prior to accepting the pleas that
as a Tier III sex offender, he would be subject to community notification and
residential restrictions.
{¶2} In State v. Hildebrand, 1st Dist. Hamilton No. C-150046, 2018-Ohio-
2962, ¶ 6, we stated,
The registration and verification requirements of the AWA are
punitive. State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, 952
N.E.2d 1108, ¶ 16. They are part of the penalty imposed for the
offense. State v. Thomas, 2016-Ohio-501, 56 N.E.3d 432, ¶ 7 (1st
Dist.); State v. Lawson, 1st Dist. Hamilton Nos. C-120067 and C-
120077, 2012-Ohio-5281, ¶ 12; State v. Jackson, 1st Dist. Hamilton No.
C-110645, 2012-Ohio-3348, ¶ 6. “[A] sentence is a sanction or
combination of sanctions imposed for an individual offense, and
incarceration and postrelease control are types of sanctions that may
be imposed and combined to form a sentence.” State v. Holdcroft, 137
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 6. Tier classification
under the AWA is a type of sanction that may be imposed for an
offense. See Williams.
A trial court speaks through its journal entries. Hernandez v.
Kelly, 108 Ohio St. 3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 30; State
v. Lewis, 1st Dist. Hamilton No. C-160909, 2018-Ohio-1380, ¶ 9; State
v. Kirkpatrick, 2017-Ohio-7629, 97 N.E.3d 871, ¶ 16 (1st Dist.), citing
State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
¶ 29; State v. Hafford, 1st Dist. Hamilton No. C-150578, 2016-Ohio-
7282, ¶ 10. “A sanction is imposed by the sentencing entry, not by
what is said on the record during the sentencing hearing.” State v.
Halsey, 2016-Ohio-7990, 74 N.E.3d 915, ¶ 26 (12th Dist.), citing
Bonnell at ¶ 29.
{¶3} The inclusion of the defendant’s Tier III sex-offender classification in
the sentencing entry is mandatory, and its omission renders the sex-offender
classification void. Halsey at ¶ 26; see Bonnell at ¶ 29. We have held that a
judgment convicting the defendant of an offense that subjects him to the AWA’s
registration and notification requirements must accurately reflect his tier
classification. State v. Rucker, 1st Dist. Hamilton No. C-110082, 2012-Ohio-185, ¶ 31
and 48. We affirmed our holding that the proper tier classification must be included
in the judgment of conviction in State v. Rucker, 1st Dist. Hamilton No. C-150434,
2016-Ohio-5111, ¶ 11, appeal not allowed, 148 Ohio St. 3d 141, 2017-Ohio-573, 69
N.E.3d 751. Merritt’s tier classification is part of the sentence for his rape offense,
and therefore, it must be included in the entry of conviction and sentence. See id.;
Hildebrand, 1st Dist. Hamilton No. C-150046, 2018-Ohio-2962. In the absence of a
proper tier classification in the judgment of conviction, there is no order in place
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OHIO FIRST DISTRICT COURT OF APPEALS
requiring Merritt to register as a sex offender. See State v. Arszman, 1st Dist.
Hamilton No. C-160698, 2017-Ohio-7581.
{¶4} This court is required to address assignments of error that are not
moot. App.R. 12(A)(1). Merritt’s assignment of error alleges that his guilty pleas
were not knowing, intelligent, and voluntary, because the trial court did not inform
him that as a Tier III sex offender, he would be subject to community notification
and residential restrictions. The trial court did not include Merritt’s tier
classification in the judgment of conviction, and therefore, he is not subject to the
AWA’s community-notification provisions and residency restrictions.
{¶5} In State v. Halsey, 12th Dist. Butler No. CA2014-10-211, 2015-Ohio-
3405, Halsey pleaded guilty to sexual battery. At the sentencing hearing, the trial
court informed Halsey that he would be classified as a Tier III sex offender and
required to register every 90 days for the rest of his life. Halsey signed an
“Explanation of Duties to Register as a Sex Offender” form, but the form had not
been filed with the clerk of courts and was not in the record for review on appeal.
The sentencing entry was silent with regard to Halsey’s sex-offender classification.
Halsey completed his community control, and the trial court entered an order
“terminating his case.” The Butler County Sheriff’s Department continued to enforce
the Tier III registration and reporting requirements on Halsey.
{¶6} Subsequently, Halsey filed a motion to vacate his Tier III sex-offender
classification, arguing that it was void because his sentencing entry did not include
the Tier III classification. He also argued that the trial court had no jurisdiction to
impose the Tier III classification, because his case had been “terminated.” The trial
court denied Halsey’s motion. Halsey appealed, alleging that the trial court had
erred in denying his motion to vacate his void sex-offender classification. The
Twelfth Appellate District overruled Halsey’s assignment of error and affirmed the
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OHIO FIRST DISTRICT COURT OF APPEALS
judgment of the trial court, stating that the “sentencing entry makes no mention of
appellant’s Tier III sex offender classification. As a result, the trial court did not err
in denying appellant’s motion to vacate his Tier III sex offender classification as
there was nothing for the trial court to vacate.” Accord Arszman, 1st Dist. Hamilton
No. C-160698, 2017-Ohio-7581 (overruling defendant’s assignment of error alleging
that the trial court erred in overruling his motion to vacate his Tier I sex-offender
classification, and holding that the trial court did not err in overruling Arszman’s
motion to vacate, because there was no classification to vacate where there was no
judgment of conviction classifying Arszman as a Tier I sex offender); Rucker, 1st
Dist. Hamilton No. C-150434, 2016-Ohio-5111 (overruling defendant’s assignment of
error alleging that the trial court erred in modifying his sentence by adding Tier II
sex-offender registration requirements after he had served his term of imprisonment
for the sex offense, and holding that the trial court did not err in overruling
defendant’s motion where the trial court had never journalized an order imposing
Tier II sex-offender registration requirements on defendant, and therefore, there was
no order in place requiring defendant to register as a sex offender).
{¶7} Merritt’s position is similar to that of Halsey, Arszman, and Rucker. In
those cases, the courts of appeals overruled the assignments of error because the
complained-of errors were not demonstrated in those records where there were no
orders in place requiring those defendants to register. Because Merritt’s Tier III
classification was not included in the judgment of conviction and sentence, he is not
subject to community notification or residency requirements. On this record, we
cannot decide and Merritt cannot show that his guilty pleas were not knowing,
intelligent, and voluntary on the basis that he was not informed about community
notification and residency restrictions, because those sanctions were never imposed.
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OHIO FIRST DISTRICT COURT OF APPEALS
Merritt’s assignment of error is overruled, because the error of which he complains is
not demonstrated in the record. The judgment of the trial court is affirmed.
Judgment affirmed.
MYERS, J., concurs.
MILLER, J., dissents.
MILLER, J., dissenting.
{¶8} I respectfully dissent from the majority’s overruling of Merritt’s
assignment of error, because I believe that his appeal must be dismissed.
{¶9} Because Merritt’s Tier III sex-offender classification is not included in
the judgment of conviction and sentence, there is no order in place requiring him to
register, and the registration and verification requirements, the community-
notification provisions, and the residency restrictions under the AWA have not
attached. The sanctions of which Merritt asserts he was not properly advised have
not been imposed. We cannot afford relief based on unimposed sanctions. See State
v. Feister, 5th Dist. Tuscarawas No. 2018 AP 01 0005, 2018-Ohio-2336 (dismissing
the appeal on grounds that no actual controversy existed and it was impossible for
the court to grant any relief, where the defendant had appealed alleging that his
consecutive sentences were contrary to law, and the trial court determined that the
consecutive sentences were void and resentenced him, imposing concurrent
sentences); see also State v. Werber, 8th Dist. Cuyahoga No. 97797, 2012-Ohio-2516
(holding that appellate courts will not review questions that do not involve live
controversies); Cleveland v. Kilbane, 8th Dist. Cuyahoga No. 75942, 2000 WL
263285 (Mar. 9, 2000) (holding that where it is impossible for the appellate court to
grant any relief, the appeal must be dismissed). Therefore, I would dismiss Merritt’s
appeal.
Please note:
The court has recorded its own entry this date.
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