State v. Hindman , 2023 Ohio 1974 ( 2023 )


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  • [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.,