State v. Ulm ( 2022 )

[Cite as State v. Ulm, 2022-Ohio-4741.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29168
:
v. : Trial Court Case No. 2019-CR-433
:
TYLER ULM : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 29th day of December, 2022.
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MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springfield, Ohio 45066
Attorney for Defendant-Appellant
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TUCKER, P.J.
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{¶ 1} Defendant-appellant Tyler Ulm appeals from his convictions for rape and
gross sexual imposition following his guilty pleas. For the reasons set forth below, we
affirm the trial court’s judgment in part, reverse in part, and remand. The reversal relates
only to the trial court’s improper imposition of post-release control for four counts of rape
which required imposition of life sentences, and, if Ulm is released from prison, life-time
parole supervision.
I. Facts and Procedural History
{¶ 2} In February 2020, Ulm was indicted on two counts of rape (under age
10/force) in violation of R.C. 2907.02(A)(1)(b), two counts of rape (under age 10) in
violation of R.C. 2907.02(A)(1)(b), and two counts of gross sexual imposition (under age
13) in violation of R.C. 2907.05(A)(4). The record indicates that Ulm victimized two
children, one of whom was three years old at the time of the offenses.
{¶ 3} Following negotiations, the State and Ulm reached an agreement whereby
Ulm agreed to plead guilty as charged in exchange for an agreed-upon sentence. On
March 17, 2020, the trial court conducted a plea hearing immediately followed by a
sentencing hearing. On that date, Ulm signed plea and waiver forms for the indicted
charges. He also signed two forms which set forth an explanation of his duties to register
as a Tier II and Tier III sex offender or child victim offender. At the outset of the plea
hearing, defense counsel noted that Ulm was present to “do the plea, the sex offender
designation, waive the PSI, and have him sentenced.” Tr. p 4. Defense counsel also
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affirmed that Ulm had executed the offender registration notification forms. Tr. p. 5.
The only other mention of the offender registration requirements during the plea colloquy
occurred when the trial court asked Ulm, “[and] you understand that you’re going to be
given a registration requirement?” Tr. p. 6. Ulm answered in the affirmative.
{¶ 4} The matter proceeded into the sentencing portion of the hearing, during
which the following colloquy occurred:
THE COURT: Mr. Ulm, have you and your lawyer gone over these
explanation of duties to register as a sex offender?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And you understand that for the gross sexual
imposition, that that duty is imposed for 25 years. So should you ever be
released from prison, you need to - - and I don’t know what the requirements
are when you are in prison, but I’m sure they’re probably explained
somewhere on here. But anyway, wherever you work, live, or go to school,
in each - - if they are in different counties, then in each of those counties
you need to register with the sheriff in that county; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And this will be the same with - - and that’s for 25 years on
that. And then on the other felonies of the first degree, that’s tier 3, so you
need to - - well, what I failed to mention to you is you need to walk in or it
needs to be in person when you register for the felonies 3 every 180 days.
And on the tier 3, you need to register in person every 90 days for the rest
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of your life; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: All right. At this time, we’ll ask the court’s bailiff to serve
the Defendant here in open court with a copy of each of these registration
requirements.
Tr. p. 19-20.
{¶ 5} Thereafter, as agreed to by the parties, the court imposed a sentence of 25
years to life in prison for each of the convictions for forcible rape of a child under age 10.
The two sentences were ordered to run consecutively to each other and concurrently with
the other sentences. The trial court also imposed sentences of 15 years to life for each
of other rapes and five-year for each of the gross sexual impositions, to be run
concurrently with all other sentences. In all, the trial court imposed an aggregate
sentence of 50 years to life to be served concurrently with a 60-year sentence previously
imposed in federal court. Ulm was designated a Tier II sex offender for the gross sexual
imposition offenses and as a Tier III sex offender for the rape offenses.
{¶ 6} Ulm appeals.
I. Knowing, Intelligent, and Voluntary Nature of Ulm’s Plea
{¶ 7} Ulm’s first assigned error is as follows:
THE TRIAL COURT FAILED TO COMPLY WITH CRIM.R. 11 AND
THEREFORE, ULM’S PLEA WAS NOT VOLUNTARILY, KNOWINGLY,
NOR INTELLIGENTLY ENTERED.
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{¶ 8} Ulm asserts that the trial court “completely failed” to comply with Crim.R. 11
when it failed to personally address him with respect to his sex offender designation and
registration requirements prior to accepting his pleas. He also argues that he was not
notified of his designation and registration requirements until he was sentenced.
Although Ulm acknowledges that the information was contained in the plea form and that
he signed the offender notification forms at the time of his plea, he contends that these
signed forms were not substitutes for the trial court’s obligation to personally address him
concerning these requirements prior to accepting his pleas and did not constitute
“substantial compliance” with Crim.R. 11. Instead, he argues that the trial court
completely failed to comply with the rule, which requires that the plea be vacated.
{¶ 9} This court has stated:
Due process requires that a defendant's guilty plea be knowing,
intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,
23 L.Ed.2d 274 (1969); see also State v. Inskeep, 2d Dist. Champaign No.
2016-CA-2, 2016-Ohio-7098, ¶ 12. A trial court's compliance with Crim.R.
11(C) ensures that a plea comports with due process. State v. McElroy,
2d Dist. Montgomery No. 28974, 2021-Ohio-4026, ¶ 14; State v. Russell,
2d Dist. Clark No. 10-CA-54, 2011-Ohio-1738, ¶ 6.
Crim.R. 11(C)(2)(c) requires the trial court to inform the defendant of
the constitutional rights he is waiving by entering a plea. These rights are
the right to a jury trial, the right to confront witnesses, the right to compulsory
process, the right against self-incrimination, and the right to require the
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State to establish guilt beyond a reasonable doubt. Since constitutional
rights are involved, strict compliance with this portion of the rule is required.
State v. Jones, 2d Dist. Greene No. 2020-CA-12, 2020-Ohio-4767, ¶ 10,
citing State v. Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211,
¶ 5. A failure of strict compliance requires a finding that the plea is not
consistent with due process; prejudice, under this circumstance, is
presumed, and the plea must be invalidated. Id., citing State v. Miller, 159
Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 16, State v. Veney,
120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31-32.
Crim.R. 11(C)(2)(a) requires the trial court to determine that the plea
is being made voluntarily, that the defendant understands the nature of the
charge, the maximum penalty involved, and, if applicable, that the
defendant is not eligible to be sentenced to a term of community control
sanctions. Crim.R. 11(C)(2)(b) requires the trial court to determine that the
defendant understands the effect of the plea and that the trial court, upon
acceptance of the plea, may proceed to sentencing. Since Crim.R.
11(C)(2)(a) and (b) do not implicate constitutional rights, a trial court's partial
compliance with these portions of the rule, as opposed to strict compliance,
does not necessarily require that the plea be vacated. Instead, the
defendant must establish that the failure of strict compliance has caused
prejudice. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164
N.E.3d 286, ¶ 16. In this context, prejudice is measured by whether the
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defendant would have entered the plea if there had been full compliance
with, as applicable, Crim.R. 11(C)(2)(a) or (b). Id. at ¶ 23. But, a trial
court's complete failure to comply with either Crim.R. 11(C)(2)(a) or (b)
eliminates the defendant's burden to establish prejudice.
State v. Perdue, 2022-Ohio-722, 185 N.E.3d 683, ¶ 10-12 (2d Dist.).
{¶ 10} In State v. Williams, 129 Ohio St.3d 324, 2011-Ohio-3374, 952 N.E.2d
1108, ¶ 16, the Ohio Supreme Court held that the Adam Walsh Act version of R.C.
Chapter 2950 is punitive, not remedial. Thus, the registration and other requirements
imposed upon a sexual offender are a component of the offender’s maximum penalty.
State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286.
{¶ 11} We find Dangler to be dispositive of the issue at hand. Dangler entered a
negotiated plea to one count of sexual battery. During the plea colloquy, the trial court
informed him that he would be designated a Tier III sex offender and, as a result, he would
have a lifetime registration requirement. Dangler was not informed of the specific
registration requirements, nor was he informed of the community notification and
residency restrictions imposed by a Tier III designation. A month later, the trial court
conducted a sentencing hearing during which the trial court imposed an agreed upon
sentence, designated Dangler a Tier III sex offender, and more fully informed him of the
registration and other requirements imposed by R.C. Chapter 295. Id. at ¶ 3-5.
{¶ 12} On appeal, the Sixth District concluded that each R.C. Chapter 2950
requirement constitutes a separate penalty and, given this, in order to comply with Crim.R.
11(C)(2)(a)’s maximum-penalty advisement, a trial court must inform the defendant of
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each registration requirement at the plea hearing. The Sixth District further concluded
that the trial court’s failure to advise Dangler of the specific Tier III requirements
constituted a complete failure to comply with Crim.R. 11(C)(2)(a)’s maximum-penalty
advisement. Based upon this conclusion, Dangler’s plea was vacated. Id. at ¶ 6-8.
{¶ 13} The Supreme Court reversed, concluding that “[b]ecause the trial court
advised Dangler that he would be subject to the registration requirements [imposed by
R.C. Chapter 2950], the trial court did not completely fail to comply with Crim.R.
11(C)(2)(a)’s maximum-penalty-advisement requirement.” Id. at ¶ 22. The Supreme
Court then stated that since there was partial compliance, Dangler had to establish
prejudice before the plea could be vacated. Thus, Dangler would need to “establish[ ]
that he would not have pleaded no contest but for the trial court’s failure to explain the
sex-offender-classification scheme more thoroughly.” Id. at ¶ 23. The Supreme Court
finally noted that prejudice must be established “on the face of the record” and that the
record provided no support for the conclusion that Dangler’s plea decision would have
changed if he had been more completely informed of “the details of the sex-offender-
classification scheme.” Id. at ¶ 24, quoting Hayward v. Summa Health Sys./Akron City
Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 26, quoting Wagner v.
Roche Laboratories, 85 Ohio St.3d 457, 462, 709 N.E.2d 162 (1999). As a result of
these conclusions, the Sixth District’s judgment was reversed, and Dangler’s plea was
reinstated.
{¶ 14} In Ulm’s case, the transcript reveals that he had signed the sex offender
notifications forms. And, during the plea hearing, the trial court asked Ulm if he
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understood that he would be subject to a registration requirement; Ulm replied, “Yes sir.”
From this, we conclude that the trial court partially complied with the Crim.R. 11(C)(2)(a)
maximum penalty notification as it related to the R.C. 2950 statutory scheme. In coming
to this determination, we understand that Dangler was provided a bit more information
than Ulm was provided, but this is not relevant because the issue is whether there was
some compliance, not the degree of such partial compliance. Finally, Ulm does not
assert, and the record on its face does not reflect, that Ulm’s plea decision would have
been different if he had been provided a complete explanation of the R.C. Chapter 2950
requirements.
{¶ 15} Accordingly, Ulm’s first assignment of error is overruled.
II. Post-Release Control Advisement
{¶ 16} The second assignment of error states as follows:
THE TRIAL COURT FAILED TO PROPERLY ADVISE ULM OF
POST RELEASE CONTROL FOR THE OFFENSE FOR WHICH HE
ENTERED A GUILTY PLEA AT THE TIME OF HIS PLEA AND
THEREFORE, HIS PLEAS SHOULD BE VACATED, AND HIS SENTENCE
IS INVALID.
{¶ 17} Ulm asserts that the trial court improperly informed him he would be subject
a term of lifetime post-release control on the convictions for rape, and his sentence should
be vacated.
{¶ 18} “ ‘Post-release control’ involves a period of supervision by the Adult Parole
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Authority after an offender's release from prison that includes one or more post-release
control sanctions imposed under R.C. 2967.28.” State v. Collins, 2d Dist. Montgomery
No. 27939, 2018-Ohio-4760, ¶ 15. “Post-release control is mandatory for some offenses
and is imposed at the discretion of the Parole Board for others, depending on the nature
and degree of the offense.” Id. citing R.C. 2967.28(B) and (C). “If a defendant has
committed an offense subject to post-release control under R.C. 2967.28, the trial court
must notify the defendant at sentencing of the post-release control requirement and the
consequences if the defendant violates post-release control.” (Citations omitted.) Id. at
¶ 16.
{¶ 19} R.C. 2967.28 provides:
(B) Each sentence to a prison term, other than a term of life imprisonment,
for a felony of the first degree, for a felony of the second degree, for a felony
sex offense, or for a felony of the third degree that is an offense of violence
and is not a felony sex offense shall include a requirement that the offender
be subject to a period of post-release control imposed by the parole board
after the offender's release from imprisonment. * * * Unless reduced by the
parole board pursuant to division (D) of this section when authorized under
that division, a period of post-release control required by this division for an
offender shall be of one of the following periods:
(1) For a felony sex offense, five years[.]
{¶ 20} All of Ulm’s convictions were for felony sex offenses, and the trial court
properly imposed five years of post-release control for each of the gross sexual imposition
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convictions. However, the rape offenses carried life sentences. Thus, by the plain
language of R.C. 2967.28(B), the trial court could not impose a period of post-release
control for the rape offenses. But the court stated that for each rape offense, Ulm would
be subject to supervision “by the Parole Board for a period of LIFE Post-Release Control
after [his] release from imprisonment.” It is not clear from this language whether the trial
court meant to merely notify Ulm that he would be subject to parole supervision upon his
release or whether the trial court intended to impose a term of post-release control.
Given the language used by the trial court, we must conclude that it incorrectly imposed
post-release control. On remand, the court need not conduct a resentencing hearing;
instead, it may simply amend the judgment entry to reflect that if Ulm is released from
prison, he will be subject to life-time parole supervision. See State v. Hibbler, 2d Dist.
Clark No. 2019-CA-19, 2019-Ohio-3689, ¶ 15.
{¶ 21} The second assignment of error is sustained.
III. Merger Issue
{¶ 22} The third assignment of error asserted by Ulm states:
THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE ULM’S
OFFENSES IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF
THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION,
AND THEREFORE, HIS SENTENCE IS CONTRARY TO LAW.
{¶ 23} Ulm argues that Count II (rape of a child under the age of 10) and Count III
(rape of a child under the age of 10 by force) should have merged prior to sentencing.
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In support, he notes that the offenses occurred on the same date and that it “is unlikely
that these offenses were committed against two different persons on the same day.”
{¶ 24} The Fifth Amendment to the United States Constitution provides in relevant
part that no person shall “be subject for the same offense to be twice put in jeopardy of
life or limb.” This protection applies to the states through the Fourteenth Amendment to
the United States Constitution. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056,
23 L.Ed.2d 707 (1969). The Ohio Constitution, Article I, Section 10 also provides double
jeopardy protection to Ohio citizens. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,
34 N.E.3d 892, ¶ 10. The prohibition against double jeopardy protects citizens from a
second prosecution for the same offense and against multiple punishments for the same
offense. Id.{¶ 25} In Ohio, the multiple punishment double jeopardy protection has been
codified at R.C. 2941.25:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
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{¶ 26} In the past, the Ohio Supreme Court has created several different tests to
use when making a decision regarding merger. The most recent test is set forth in Ruff:
* * * [W]hen determining whether offenses are allied offenses of
similar import within the meaning of R.C. 2941.25, courts must ask three
simple questions when the defendant's conduct supports multiple offenses:
(1) Were the offenses dissimilar in import or significance? (2) Were they
committed separately? and (3) Were they committed with separate animus
or motivation? An affirmative answer to any of the above will permit
separate convictions. The conduct, the animus, and the import must all be
considered.
Id. at ¶ 31.
{¶ 27} We begin by noting that Ulm did not raise the merger issue in the trial court.
But “when an error in failing to merge allied offenses is obvious, it rises to plain error.”
State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 14.
{¶ 28} Ulm admits, and the record indicates, that this case involved two minor
victims. But Ulm claims that the subject offenses were most likely committed against the
same victim with the same animus. We find no support in the record for this assertion.
Indeed, on the record, the State expressly noted that the parties had agreed that Counts
I and III were separate offenses and, importantly, that neither count would merge with any
other charged offenses, which necessarily included Count II. Tr. p. 10. Ulm did not
dispute this assertion. As such, the record indicates that Ulm entered guilty pleas to the
offenses with the understanding that they were not allied offenses. Accordingly, the third
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assignment of error is overruled.
IV. Ineffective Assistance of Counsel
{¶ 29} The fourth assignment of error is as follows:
ULM RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 30} Ulm claims his trial counsel’s performance was deficient in numerous
respects. Specifically, he contends counsel was ineffective for failing to (1) file a motion
to dismiss on speedy trial grounds; (2) raise the issue of merger; and (3) assure that the
record was complete for appeal.
{¶ 31} To establish ineffective assistance of counsel, a defendant must establish
deficient performance and that he was prejudiced by counsel's deficient performance.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984);
State v. Hartman, 2d Dist. Montgomery No. 27162, 2017-Ohio-7933, ¶ 30.
{¶ 32} A defendant, in order to establish that his attorney provided deficient
representation, must “prove that his counsel's performance fell below an objective
standard of reasonable representation.” (Citations omitted.) Hartman at ¶ 30. This
objective standard includes a “strong presumption that counsel's conduct falls within a
wide range of reasonable professional assistance.” Strickland at 689, citing Michel v.
Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).
{¶ 33} We turn first to Ulm’s claim that counsel should have filed a motion to
dismiss on speedy trial grounds. The right to a speedy trial is guaranteed by the Sixth
Amendment to the United States Constitution and Article I, Section 10 of the Ohio
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Constitution. Ohio’s speedy trial statute, R.C. 2945.71, implements the constitutional
right to a speedy trial and must be strictly enforced. State v. Pachay, 64 Ohio St.2d 218,
416 N.E.2d 589 (1980). That statute requires the State to bring a felony defendant to
trial within 270 days of arrest. R.C. 2945.71(C). The record demonstrates that Ulm was
not arrested on or charged with any state offenses until he was indicted on February 11,
2020. He entered his guilty pleas the following month. Ulm has failed to demonstrate
that his statutory speedy trial rights were violated and, as such, there was no ineffective
assistance of counsel.
{¶ 34} Ulm also notes he was arrested on federal charges in March 2018. Based
upon this, he asserts that his constitutional right to a speedy trial began to run as of that
date. Ulm does not cite, and we cannot find, any support for this argument. Further,
although Ulm intimates that the federal and state charges were similar, we note that we
are permitted to take judicial notice of the public record of Ulm’s federal case. See State
ex rel. Dodson v. Ohio Dept. of Rehab. & Correction, 10th Dist. Franklin No. 21AP-448,
2022-Ohio-2552, ¶ 34. That record indicates that federal authorities charged Ulm with
child pornography offenses. Here, the charges were for sexual abuse of minors. Thus,
while the cases were arguably related, the federal and state charges were separate and
distinct from one another. And there is nothing in this record to indicate that the State
was aware of any potential offenses at the time Ulm was arrested in 2018 for the federal
charges. Therefore, we find no merit in this argument.
{¶ 35} Ulm further argues that the delay between the commission of the offenses
and the indictment in state court violated his speedy trial rights. An unjustified delay
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between commission of an offense and an indictment for that offense which results in
actual prejudice to the defendant can violate a defendant’s right to due process. State
v. Hawkins, 2d Dist. Montgomery No. 27019, 2018-Ohio-867, ¶ 9. The record does not
demonstrate an unjustified delay or that Ulm suffered prejudice as a result of the delay
between the commission of the offenses and the indictment.
{¶ 36} Because we find no basis for concluding that Ulm’s right to a speedy trial or
to due process were violated, we necessarily conclude that counsel was not ineffective
for failing to raise these issues.
{¶ 37} We next address Ulm’s claim that trial counsel was ineffective because he
did not seek a merger of the rape convictions for purposes of sentencing as argued in the
third assignment of error. Given our resolution of that argument, we find no basis for a
claim of ineffective assistance of counsel in this regard.
{¶ 38} Finally, Ulm contends that counsel was ineffective for failing to “ensure that
the record on appeal was complete, i.e. the Federal PSI, Victim Impact Statements, or
otherwise.” Since the parties entered into an agreed sentence, we cannot discern how
the omission of these documents caused Ulm any prejudice.
{¶ 39} Based upon this record, we conclude that Ulm has failed to establish his
claim of ineffective assistance of counsel. Accordingly, the fourth assignment of error is
overruled.
V. Conclusion
{¶ 40} The first, third, and fourth assignments of error are overruled. The second
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assignment of error is sustained. The trial court’s judgment is affirmed in part, reversed
in part, and remanded to the trial court so that its judgment entry may be amended to
reflect that, on the four rape convictions, if Ulm is released from prison, he will be subject
to life-time parole supervision.
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WELBAUM, J., concurs.
DONOVAN, J., concurs in part and dissents in part:
{¶ 41} I disagree with the resolution of the first assignment of error. Here, the trial
court failed to meet its obligation to advise Ulm “at least of the basic registration
requirement before accepting his plea[s].” State v. Hawkins, 2d Dist. Greene No. 2012-
CA-49, 2013-Ohio-2572, ¶ 9, citing State v. Bush, 2d Dist. Greene No. 2010-CA-82, 2011-
Ohio-5954, ¶ 20 (Fain, J., concurring). As in Hawkins, Ulm was not advised that rape is
a Tier III offense, requiring address verification every 90 days for life or that it includes
community notification. He was not advised that gross sexual imposition is a Tier II
offense requiring semi-annual reporting for 25 years. Ulm merely indicated in response
to a single query from the trial judge that he knew he would be given “a registration
requirement,” and he did not indicate that he discussed any requirements with defense
counsel prior to entering his pleas. I conclude the singular query by the trial judge was
insufficient under Hawkins and Dangler, and that prejudice need not be established. I
would reverse.
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Copies sent to:
Mathias H. Heck, Jr.
Elizabeth A. Ellis
Johnna M. Shia
Hon. Robert G. Hanseman