State v. Dangler , 2017 Ohio 7981 ( 2017 )

[Cite as State v. Dangler, 2017-Ohio-7981.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WILLIAMS COUNTY
State of Ohio Court of Appeals No. WM-16-010
Appellee Trial Court No. 15CR000129
v.
Brad J. Dangler DECISION AND JUDGMENT
Appellant Decided: September 29, 2017
*****
Katherine J. Zartman, Williams County Prosecuting Attorney,
and Rachael A. Sostoi, Assistant Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Brad J. Dangler, appeals from the December 14, 2015 judgment
of the Williams County Court of Common Pleas convicting him of sexual battery, a
violation of R.C. 2907.03(A)(2), a third-degree felony, following acceptance of his no
contest plea, and sentencing him to 36 months incarceration followed by five years of
postrelease control. For the reasons which follow, we reverse.
{¶ 2} On appeal, appellant asserts the following assignments of error:
Assignment of Error One: Appellant’s guilty (sic)1 plea was
involuntary and unknowing when the trial court failed to substantially
comply with Crim.R. 11 by informing appellant of the punitive
consequences of his plea.
Assignment of Error Two: The trial court erred when it imposed
attorney fees at sentencing, without finding appellant had the ability to pay.
{¶ 3} Appellant was indicted in a single-count indictment on August 18, 2015,
alleging a violation of R.C. 2907.02(A)(2), rape. On November 10, 2015, he entered his
no contest plea to an amended indictment based on a negotiated plea. At the plea
hearing, the court informed appellant he would be obligated to register as a Tier III sex
offender for life. At the sentencing hearing, the trial court recited the specific reporting
obligations and stated appellant would receive a file-stamped copy of the written
obligations which appellant executed acknowledging he understood the explanation of his
registration obligations as a Tier III sex offender. This document is not included in the
record.
{¶ 4} In his first assignment of error, appellant argues his plea was not voluntarily
and knowingly made because the trial court failed to substantially comply with Crim.R.
1
Appellant entered a no contest plea, not a guilty plea.
2.
11 and inform appellant of the punitive consequences of his plea. More specifically,
appellant contends the record does not reflect that he was asked to sign any notification
or explanation of the duties and consequences of the Tier III sex offender classification.
He asserts that the trial court only informed him that he would be obligated to register
and not that there were community notification requirements, residence restrictions, and
in-person verification requirements every 90 days.
{¶ 5} A plea must be made knowingly, intelligently, and voluntarily to be valid
under both the United States and Ohio Constitutions. Boykin v. Alabama, 395 U.S. 238,
243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660
N.E.2d 450 (1996). The primary function of Crim.R. 11(C) is to provide the necessary
record for review by which we can determine whether the plea was knowingly,
intelligently, and voluntarily made. State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d
474 (1990). The Ohio Supreme Court has repeatedly stated that literal compliance with
Crim.R. 11(C), for both constitutional and non-constitutional rights, is the proper means
to ensure that a defendant’s guilty plea or no contest plea is valid. State v. Barker, 129
Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 14; State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 30; Nero at 108.
{¶ 6} Crim.R. 11(C)(2) requires that the sentencing judge must personally address
the defendant at the plea hearing and inform the defendant of all of the penalty
consequences of entering a plea. Crim.R. 11(C)(2)(a); State v. Montgomery, 148 Ohio
3.
St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 41. The requirements imposed upon a
defendant classified as a child victim sex offender or sexually-oriented offender pursuant
to R.C. Chapter 2950 (including registration, community notifications, and residential
restrictions) are now considered punitive sanctions. State v. Williams, 129 Ohio St.3d
344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 15. Therefore, the trial court must
substantially notify the defendant of the statutorily-mandated registration and verification
requirements (R.C. 2950.04, 2950.05, and 2950.06), community notification
requirements (R.C. 2950.11), and residential restrictions (R.C. 2950.034). State v. Kouts,
6th Dist. Sandusky No. S-16-012, 2017-Ohio-2905, ¶ 9; State v. Miller, 6th Dist. Fulton
No. F-16-005, 2017-Ohio-2818, ¶ 16; State v. Mahler, 6th Dist. Ottawa No. OT-16-009,
2017-Ohio-1222, ¶ 12-13; State v. Ragusa, 6th Dist. Lucas No. L-15-1244, 2016-Ohio-
3373. Prejudice is not required to be shown where the trial court completely failed to
comply with Crim.R. 11. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881
N.E.2d 1224, ¶ 22.
{¶ 7} In the case before us, the sentencing judge began by stating the requirements
could be discussed in detail and that appellant would receive a written copy of the
obligations for execution. The court then advised appellant of the lifetime registration
and verification requirements he faced. However, the court failed to notify appellant of
the community notification requirements and the residential restrictions. Even if the
written explanation mentioned at the hearing included this information, the trial court did
not satisfy its obligation to personally inform appellant of these penalties. Having
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completely failed to comply with Crim.R. 11(C) and inform appellant of each of the
penalties, the plea was invalid. Appellant’s first assignment of error is well-taken.
{¶ 8} Because we must vacate the plea and judgment of conviction and
sentencing, the issue of attorney fees raised in appellant’s second assignment of error is
moot, and we decline to address it. App.R. 12(A)(1)(c).
{¶ 9} Having found that the trial court did commit error prejudicial to appellant
and that substantial justice has not been done, the judgment accepting appellant’s plea,
convicting him, and sentencing him is hereby vacated. This case is remanded to the trial
court for further proceedings consistent with this decision. Appellee is ordered to pay the
costs of this appeal pursuant to App.R. 24.
Judgment vacated.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
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