State v. Miller , 2017 Ohio 2818 ( 2017 )

[Cite as State v. Miller, 2017-Ohio-2818.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
FULTON COUNTY
State of Ohio Court of Appeals No. F-16-005
Appellee Trial Court No. 15CR09
v.
Michael A. Miller DECISION AND JUDGMENT
Appellant Decided: May 12, 2017
*****
Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from an April 29, 2016 judgment of the Fulton County
Court of Common Pleas, denying appellant’s Crim.R. 32.1 motion to withdraw the
underlying March 8, 2016 voluntarily negotiated pleas to one count of sexual battery, in
violation of R.C. 2907.03, a felony of the fifth degree, one count of failure to appear, in
violation of R.C. 2937.29, a felony of the fourth degree, and one amended count of
attempted corruption of another with drugs, in violation of R.C. 2925.02, a felony of the
fifth degree. In exchange for the pleas, three additional felony counts and two
misdemeanor counts pending against appellant were dismissed. For the reasons set forth
below, this court reverses the judgment of the trial court and remands the case to the trial
court.
{¶ 2} Appellant, Michael Miller, sets forth the following two assignments of error:
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT IN ACCEPTING A GUILTY PLEA WHICH WAS NOT
MADE KNOWINGLY, IN VIOLATION OF APPELLANT’S DUE
PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY DENYING HIS MOTION TO WITHDRAW HIS
PLEA.
{¶ 3} The following undisputed facts are relevant to this appeal. In August 2014,
appellant engaged in sexual intercourse with a 13 year-old girl at a Fulton County public
park. Pursuant to a negotiated plea, appellant pled guilty to one count of menacing by
stalking.
2.
{¶ 4} Shortly thereafter, in September 2014, appellant engaged in a variety of
unlawful sexual activities with a different victim, a 15 year-old girl, in addition to
furnishing the girl with unlawful drugs.
{¶ 5} On January 13, 2015, as a result of appellant’s array of unlawful sexual acts
with the second victim, appellant was indicted on two counts of corrupting another with
drugs, in violation of R.C. 2925.02, felonies of the fourth degree, one count of trafficking
in marijuana, in violation of R.C. 2925.03, a felony of the fifth degree, one count of
sexual battery in violation of R.C. 2907.03, a felony of the fifth degree, one count of rape,
in violation of R.C. 2907.02, a felony of the first degree, two counts of contributing to the
delinquency of the child, in violation of R.C. 2919.24, misdemeanors of the first degree,
one count of criminal endangering, in violation of R.C. 2909.06, a misdemeanor of the
second degree, and one count of failure to appear, in violation of R.C. 2937.29, a felony
of the fourth degree.
{¶ 6} On March 8, 2016, pursuant to a negotiated plea agreement, appellant pled
guilty to one count of sexual battery, in violation of R.C. 2907.03, a felony of the fifth
degree, one count of failure to appear, in violation of R.C. 2937.29, a felony of the fourth
degree, and one amended count of attempted corruption of another with drugs, in
violation of R.C. 2925.02, a felony of the fifth degree. In exchange, the remaining
charges pending against appellant were dismissed.
{¶ 7} On September 19, 2015, shortly after being released on bond in connection
to the January 13, 2015 nine-count criminal indictment against him, appellant engaged in
another forcible sexual liaison with a third victim, resulting in a third set of sexual
3.
offense charges against appellant. Unlike the first two victims, the third victim had
reached the age of majority at the time of the events.
{¶ 8} On April 20, 2016, appellant proceeded to trial on the charges involving this
third victim. On April 22, 2016, appellant was acquitted of the charges involving the
adult victim.
{¶ 9} On April 29, 2016, one week following appellant’s acquittal of the charges
in the sole case involving an age of majority victim, appellant was scheduled to be
sentenced on the three counts that appellant voluntarily pled guilty to one month earlier,
on March 8, 2016, in connection to the second, 15 year-old victim.
{¶ 10} Following the acquittal in the separate case with an adult victim, appellant
sought to withdraw his March 8, 2016 pleas involving the 15-year-old victim. In support,
appellant stated, “I have faith that the jurors will be able to see the truth.”
{¶ 11} Appellant’s motion to withdraw was denied. On May 6, 2016, appellant
was sentenced to a total term of incarceration of 68 months. This appeal ensued.
{¶ 12} Appellant’s assignments of error both stand for the proposition that the trial
court erred in failing to grant appellant’s motion to withdraw and they will be addressed
simultaneously.
{¶ 13} It is well-established that the underlying purpose of Crim.R. 11(C) is to
ensure that the necessary information is relayed to a defendant to enable a voluntary and
intelligent decision regarding whether or not to plead guilty to pending criminal charges.
State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981).
4.
{¶ 14} In a recent case we similarly considered the adequacy of Tier III sex
offender notification furnished by the trial court. In that case, highly pertinent to our
consideration of the instant appeal, we found the trial court’s Tier III notification to be
inadequate, thereby compromising Crim.R. 11(C) compliance, where the trial court failed
to specifically notify the defendant of the community notification and residential
restriction components of the Tier III requirements. State v. Mahler, 6th Dist. Ottawa
No. OT-16-009, 2017-Ohio-1222, ¶ 13.
{¶ 15} The record in this case reflects that the trial court conveyed to appellant,
“Do you understand * * * Count IV, sexual battery, carries a potential penalty of
incarceration for a definite term of anywhere from twelve to sixty months, possible fine
of up to $10,000.00, and a SORN registration requirement of a TIER III, which would be
a lifetime requirement that you register with the Sheriff of any county in which you
reside?”
{¶ 16} Accordingly, the record shows that although trial court informed appellant
of his Tier III sex offender registration requirements, it failed to further inform appellant
of the additional Tier III components of community notification and residential
restrictions. As such, consistent with our holding in Mahler, we find that the trial court
did not satisfy Crim.R. 11(C) and erred in denying appellant’s Crim.R. 32.1 motion to
withdraw the underlying plea.
{¶ 17} Wherefore, we find appellant’s assignments of error to be well-taken.
5.
{¶ 18} On consideration whereof, the judgment of the Fulton County Court of
Common Pleas is hereby reversed and remanded to the trial court for further proceedings
consistent with this opinion. Appellee is ordered to pay the cost of this appeal pursuant
to App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
6.