State v. Hindman ( 2023 )

[Cite as State v. Hindman, 2023-Ohio-1974.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112026
v. :
ROBERT HINDMAN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED
RELEASED AND JOURNALIZED: June 15, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-670360-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha L.
Forchione, Assistant Prosecuting Attorney, for appellee.
Maxwell Martin, for appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant Robert Hindman appeals from his judgment of
conviction, which was rendered after a plea by way of information. After a careful
review of the record and pertinent law, we vacate the plea.
After negotiations with the state, in May 2022, Hindman executed a
waiver of indictment and presentment to the grand jury pursuant to R.C. 2941.021.
The assistant prosecuting attorney placed the parties’ agreement on the record.
Under the agreement, Hindman pled guilty to a bill of information consisting of two
counts of sexual battery, felonies of the second degree, and one count of endangering
children, a misdemeanor of the first degree.
In his first assignment of error, Hindman contends that his plea is
invalid because the trial court failed to inform him at the plea hearing of the
maximum penalty. Specifically, the trial court failed to inform Hindman that if he
pled guilty to sexual battery he would be classified as a sex offender and be subject
to certain registration requirements.
“When a defendant enters a plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525,
527, 660 N.E.2d 450 (1996). Guilty pleas are governed by Crim.R. 11. The rule
requires the court to advise the defendant of certain constitutional and statutory
rights, among those the maximum penalty involved. See Crim.R. 11(C)(2)(a).
The record here demonstrates that the trial court complied with
Crim.R. 11(C)(2)(c) and orally advised Hindman before accepting his felony plea
that the plea waived his constitutional rights to a jury trial, to confront witnesses
against him, to have compulsory process for obtaining witnesses in his favor, and to
require the state to prove his guilt beyond a reasonable doubt at a trial.
The record further demonstrates that the trial court complied with
Crim.R. 11(C)(2)(a) and orally advised Hindman of his nonconstitutional rights.
Specifically, the court advised him of the nature of the charges, eligibility for
community-control sanctions, and the effect of his plea. The trial court also advised
Hindman as to the prison time he faced for each of the three counts, as well as the
prison time he was subject to on the sexual battery counts under the Reagan Tokes
Law. At issue in this appeal is whether the trial court failed to fully advise Hindman
of the maximum penalty involved given that it failed to advise him that his plea
would result in him being a Tier III sex offender and of the accompanying
registration requirements.
In State v. Brown, 2019-Ohio-527, 132 N.E.3d 176 (8th Dist.), this court
considered a situation where the trial court failed to mention that the defendant
would be labeled a sex offender by virtue of his plea and the consequences of being
labeled a sex offender. This court found that the omissions “constitute a complete
failure to comply with Crim.R. 11” and vacated the plea. Id. at ¶ 13, 16.
The state acknowledges Brown and concedes the error.
Notwithstanding its concession, the state notes a subsequent decision from this
court, State v. Fisher, 8th Dist. Cuyahoga No. 109276, 2021-Ohio-1592, in which
two judges on this court called into question Brown’s holding (see Sean C. Gallagher,
P.J., concurring; and Kathleen Ann Keough, J., concurring with majority and Judge
Sean C. Gallagher’s separate concurring opinion).
In Fisher, the defendant pled guilty to burglary and sexual battery, a
crime for which a conviction of mandates a sex-offender classification. At the
defendant’s plea hearing, the trial court informed the defendant that “any plea to
this case would render you as a Tier III sex offender which the Court will review with
you at your sentencing.” Id. at ¶ 4. The defendant indicated he understood. Id.
On appeal, the defendant contended that the trial court “failed
completely” to advise him of the maximum penalty he faced as required by
Crim.R. 11(C)(2)(a) when he entered a guilty plea to a charge of sexual battery. Id. at
¶ 10. This court disagreed, noting that at the plea hearing the trial court advised him
of the possible prison sentence, the fine he faced, and that he would be classified as
a Tier III sex offender. Id.
This court noted that “[b]eing labeled a Tier III sex offender and the
implications of that classification are punitive in nature.” Id. at ¶ 11, citing State v.
Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16. This court
reasoned, however, that while Williams found that the entire statutory scheme of
the sex offender laws, found in R.C. Chapter 2950, as a whole are punitive, no single
provision taken alone is punitive. Fisher at id., citing Williams. This court therefore
found that “failing to advise the defendant of any individual ramification of his [or
her] plea does not rise to the level of a complete failure.” Fisher at id., citing State
v. Dornoff, 6th Dist. Wood No. WD-16-072, 2020-Ohio-3909, ¶ 17.
Under the “totality of the circumstances,” this court found that the
defendant knowingly, voluntarily, and intelligently entered his plea and that the trial
court did not “completely fail” to inform him of the maximum penalty he faced.
Fisher at ¶ 12. The Fisher Court found that prior to accepting the defendant’s plea,
the trial court specifically informed the defendant that “he would be classified as a
Tier III sex offender, which would be further discussed with him at sentencing.” Id.This court reasoned that, “[b]y explaining that being classified a
Tier III sex offender would be further discussed at sentencing, the trial court
indicated that the classification was part of his punishment, even though it did not
inform him of his specific obligations flowing from that classification.” (Citations
omitted.) Id. Further, at the plea hearing, prior to the court’s colloquy with the
defendant, the prosecutor explained that the punishment for the sexual battery
count includes “a Tier III sex offender registration which is every 90 days for life
registration. There are community residential requirements as well.” Id.The Fisher panel distinguished Fisher from another Eighth District
case, State v. Baker, 8th Dist. Cuyahoga No. 108301, 2020-Ohio-107. In Baker, the
trial court merely advised the defendant that the count to which he was pleading
guilty was “‘a Tier 3 sex offense, and we’ll go into that later.’” Fisher at ¶ 13, quoting
Baker at ¶ 22. This court found that the trial court “did nothing to indicate that ‘the
fact that Baker would be pleading guilty to a Tier 3 sex offense had any additional
penalties or consequences.’” Fisher at id., quoting Baker at id. Further, there was
no indication in Baker that “‘anyone else’” informed the defendant that his guilty
plea would result in him being classified as a Tier III sex offender or that he would
face penalties as a result. Fisher at id., quoting Baker at id.Moreover, in Fisher, this court, citing State v. Dangler, 162 Ohio St.3d
1, 2020-Ohio-2765, 164 N.E.3d 286, found that Baker “is no longer valid law.”
Fisher at ¶ 14. In Dangler, prior to accepting the defendant’s guilty plea to sexual
battery, the trial court advised him, “[y]ou would also be obligated to register as a
Tier III sex offender which means you would have an obligation to register for your
lifetime.” Id. at ¶ 4. The defendant indicated that he understood. Id. The defendant
was sentenced and labeled a sex offender.
On appeal, the defendant sought to vacate his plea on the ground that
it was invalid because the trial court failed to fully explain the obligations and
requirements associated with being a sex offender. The Supreme Court noted that,
traditionally, when a defendant seeks to have his or her conviction reversed on
appeal, he or she must establish that an error occurred in the trial-court proceedings
and that he or she was prejudiced by that error. Id. at ¶ 13, citing State v. Perry, 101
Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14-15; State v. Stewart, 51 Ohio
St.2d 86, 93, 364 N.E.2d 1163 (1977); Crim.R. 52.
The court noted that it has made an exception to the prejudice
requirement, that being, a trial court’s failure to explain the constitutional rights a
defendant would be waiving by a guilty plea. Dangler at ¶ 14. However, when a trial
court fails to fully cover the nonconstitutional rights a defendant would be waiving
by pleading guilty, a defendant must affirmatively show prejudice to invalidate a
plea. Id.But the Supreme Court noted there is “one additional exception to the
prejudice requirement: a trial court’s complete failure to comply with a portion of
Crim.R. 11(C) eliminates the defendant’s burden to show prejudice.” (Emphasis sic.)
Id., citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224,
¶ 22 (holding that the trial court completely failed to comply with
Crim.R. 11(C)(2)(a)’s requirement that it explain the maximum penalty when the
court made no mention of postrelease control in the plea colloquy, despite the fact
the defendant was subject to a mandatory five years of postrelease control).
The Dangler Court went on to consider whether a sex-offender
classification and its accompanying obligations constitute a “penalty” imposed on a
defendant. Id. at ¶ 18. The court noted its prior decision in Williams, 129 Ohio St.3d
344, 2011-Ohio-3374, 952 N.E.2d 1108, wherein it considered whether the sex-
offender statutes could be applied retroactively without violating the prohibition on
retroactive laws contained in the Ohio Constitution. To answer that question, the
court had to consider whether the statutory scheme is remedial or punitive. The
Williams Court concluded that the scheme is “‘so punitive that its retroactive
application is unconstitutional.’” Dangler at ¶ 19, quoting Williams at ¶ 21.
Dangler noted that Williams did not address whether the sex-
offender-registration scheme constitutes a penalty for purposes of Crim.R. 11. In
Dangler, the state urged the court to reconsider Williams, but the court declined
because “to do so would be beyond the scope of the certified question and is
unnecessary for purposes of deciding this case. Instead, based on the rationale of
Williams, we proceed with the assumption that the scheme as a whole constitutes a
penalty for purposes of Crim.R. 11.” Dangler at ¶ 20.
We note, as the state also notes in this case, the Supreme Court’s
choice of the word “assumption” in Dangler. While it does not connote a ringing
endorsement that the sex-offender classification scheme is a penalty for purposes of
Crim.R. 11, it also is not a flat-out rejection of that notion. Thus, the prevailing law
at this time is that Ohio’s sex-offender classification scheme is a penalty for purposes
of Crim.R. 11. The trial court therefore was required to provide some advisement
about the classification prior to accepting Hindman’s plea.
Brown, 2019-Ohio-527, 132 N.E.3d 176, Baker, 8th Dist. Cuyahoga
No. 108301, 2020-Ohio-107, and Dangler mandate that Hindman’s plea be vacated,
specifically because no advisement whatsoever as to the sex-offender classification
was given to him prior to his plea. See Dangler at ¶ 15. Further, Fisher is
distinguishable from this case because in Fisher, some advisement was given to the
defendant, causing this court to consider the prejudice requirement, which the court
found the defendant failed to demonstrate.
The first assignment of error is sustained. The remaining assignments
of error, which are relative to sentencing, are moot, and we decline to address them.
See App.R. 12(A)(1)(c).
Plea vacated.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
MICHAEL JOHN RYAN, JUDGE
MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J.,