State v. Embry ( 2018 )

[Cite as State v. Embry, 2018-Ohio-2204.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170101
TRIAL NO. B-1505808
Plaintiff-Appellee, :
vs. : O P I N I O N.
ASHLEY EMBRY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: June 8, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Matthew S. Schuh, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MILLER, Judge.
{¶1} On January 29, 2016, defendant-appellant Ashley Embry was indicted
for trafficking in persons, in violation of R.C. 2905.32(A)(2)(a), compelling
prostitution, in violation of R.C. 2907.21(A)(1), with the specification that she
knowingly compelled prostitution in furtherance of human trafficking, and
promoting prostitution, in violation of R.C. 2907.22(A)(1). After defense counsel had
requested and been granted various continuances because she was not prepared, the
trial court removed Embry’s counsel and appointed different counsel. Embry
pleaded guilty to attempted trafficking in persons on January 30, 2017, and the other
charges were dismissed.
{¶2} Embry was sentenced to eight years’ imprisonment and ordered to pay
a $15,000 fine, public defender fees, and court costs. The sentencing entry states
that Embry is a Tier II sex offender.
{¶3} At the sentencing hearing, the trial court addressed Embry regarding
her sex-offender classification, stating,
It’s a felony of the second degree. I find you to be a tier two sex
offender. You’re ordered to register as a sex offender. And what you
have to do is, for a period of 25 years, you must register in person
every 180 days where you are residing and you must register with the—
whatever local agency you are living in. So you are—you’re not willing
to sign this, is that correct, ma’am.
{¶4} Embry answered, “Correct.”
{¶5} The court continued,
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OHIO FIRST DISTRICT COURT OF APPEALS
So you must register every 25 years in person—for 25 years in person
every 180 days. Did I say shall have five years of post-release control.
And credit for 410 days. You are not willing to sign this?
{¶6} After Embry answered, “No,” the trial court said, “Okay. Then I have
to give you a copy even if you’re not going to sign it. * * * Let the record reflect that
this form is being handed to her attorney, who is handing it—put it in her pocket.”
{¶7} The notice form that Embry refused to sign was docketed on March 1,
2017. The portion of the form that indicates whether the offender is a sex offender or
a child-victim offender is blank. The boxes on the form that indicate the offender’s
tier classification are blank. Likewise, the boxes on the form that indicate the
duration and frequency of the offender’s registration duties are blank. Without the
appropriate boxes being checked, there is nothing on the form to notify Embry of her
tier classification or the corresponding registration and verification requirements.
{¶8} Embry has appealed. Embry’s first assignment of error alleges that the
trial court erred in “failing to notify [Embry] of her duty to register as a sex offender
by failing to adhere to the notice requirements as set forth in [R.C.] 2950.03(B)(1).”
{¶9} The sentencing entry correctly classifies Embry as a Tier II sex
offender. See State v. Lewis, 1st Dist. Hamilton No. C-160909, 2018-Ohio-1380. As
a Tier II sex offender, upon her release from prison, Embry was required to register
with the sheriff and verify her address every 180 days for 25 years. See R.C.
2950.06(B)(2) and 2950.07(B)(2). Under R.C. 2950.03(A), “[e]ach person who has
been convicted of * * * a sexually oriented offense * * * and who has the duty to
register * * * shall be provided notice in accordance with this section of the offender’s
* * * duties imposed under sections 2950.04, 2950.041, 2950.05, and 2950.06 of the
Revised Code.” Pursuant to R.C. 2950.03(A)(2) and 2929.23(B), the trial judge was
required to provide Embry with notice of her registration duties and their duration.
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OHIO FIRST DISTRICT COURT OF APPEALS
See Lewis at ¶ 11. R.C. 2950.03(A) required that Embry be provided with that notice
“at the time of sentencing.” See State v. Stacy, 1st Dist. Hamilton No. C-150730,
2016-Ohio-7977, ¶ 9.
{¶10} The specifics of the sex offender registration notice requirements are
set forth in R.C. 2950.03(B)(1), which states,
The notice provided under division (A) of this section shall inform the
offender * * * of the offender’s * * * duty to register, to provide notice
of a change in the offender’s * * * residence address or in the offender’s
school, institution of higher education, or place of employment
address, as applicable, and register the new address, to periodically
verify the offender’s * * * residence address or the offender’s school,
institution of higher education, or place of employment address, as
applicable, and, if applicable, to provide notice of the offender’s * * *
intent to reside, pursuant to sections 2950.04, 2950.041, 2905.05, and
2950.06 of the Revised Code. The notice shall specify that, for an
offender, it applies regarding residence addresses or school, institution
of higher education, and places of employment addresses * * *.
Additionally, it shall inform the offender of the offender’s duties to
similarly register, provide notice of a change in, and verify those
addresses in states other than this state as described in division (A) of
this section.
{¶11} R.C. 2950.03(B)(1)(a) provides that the “judge shall require the
offender to read and sign a form stating that the offender’s duties to register * * *
have been explained to the offender,” and that “[i]f the offender is unable to read, the
* * * judge shall certify on the form that the * * * judge specifically informed the
offender of those duties and that the offender indicated an understanding of those
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OHIO FIRST DISTRICT COURT OF APPEALS
duties.” The notice “shall be on a form prescribed by the bureau of criminal
identification and investigation and shall contain all of the information specified in
division (A) of this section and all of the information required by the bureau.” R.C.
2950.03(B)(2). R.C. 2950.03(B)(3) requires that after the form is signed or certified
in accordance with R.C. 2950.03(B)(1)(a), the judge
shall give one copy of the form to the offender, * * * [and] shall send
one copy of the form to the bureau of criminal identification and
investigation[,] * * * the sheriff of the county in which the offender
expects to reside, and * * * the sheriff of the county in which the
offender was convicted or pleaded guilty if the offender has a duty to
register pursuant to division (A)(1) of section 2950.04 or 2950.041 of
the Revised Code.
{¶12} At sentencing, the trial court classified Embry as a Tier II sex offender
and informed her that she was required to register every 180 days for 25 years with
“whatever local agency you are living in.” The sentencing entry correctly states that
Embry is a Tier II sex offender. But the court did not inform Embry that she had to
register with the sheriff, and the court did not orally provide any of the notifications
required under R.C. 2950.03(B). The record shows that the court did provide a
notice form to Embry, which she refused to sign, but the form did not indicate
whether Embry was a sex offender or a child-victim offender, her tier classification,
or the duration or frequency of her registration duties, because all of those areas of
the form had been left blank. In handing Embry such a form, the trial court
complied with neither the letter nor the spirit of the notice requirements.
{¶13} We hold that the trial court did not provide Embry the notice required
by R.C. 2950.03. Therefore, this cause must be remanded for the trial court to
correctly notify Embry of her Tier II registration and verification duties and their
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OHIO FIRST DISTRICT COURT OF APPEALS
duration. See Lewis, 1st Dist. Hamilton No. C-160909, 2018-Ohio-1380, at ¶ 12;
Stacy, 1st Dist. Hamilton No. C-150730, 2016-Ohio-7977, at ¶ 14-15. The first
assignment of error is sustained.
{¶14} Embry’s second assignment of error alleges that she was denied the
effective assistance of counsel. Embry argues that trial counsel was ineffective in
failing to make a presentence motion to withdraw her guilty plea. Embry essentially
argues that she had actually wanted to go to trial instead of pleading guilty, and that
the trial court removed her first counsel without her consent and appointed second
counsel, who negotiated the plea agreement with the state against Embry’s true
wishes.
{¶15} To establish ineffective assistance of counsel, Embry must show that
her counsel’s performance was deficient and that the deficient performance
prejudiced her. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989). To
demonstrate prejudice, Embry must show that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. Our review of counsel’s
performance must be “highly deferential.” Id. at 689. Because there are many ways
to provide effective assistance of counsel, there is a strong presumption that an
attorney’s representation fell within the “wide range of reasonable professional
assistance.” Id.; see Bradley at 142.
{¶16} The record reveals that the trial court removed Embry’s first counsel,
because counsel had repeatedly requested continuances on the basis that she was not
prepared to go to trial. As the court noted, counsel had “not been prepared” and
“continues to be unprepared. * * * Has not given me a reason why she’s not prepared,
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OHIO FIRST DISTRICT COURT OF APPEALS
how much time she needs to get ready. * * * This is the fourth time she’s not been
ready for trial. And I’m concerned about her ability to see this case through.” The
court removed Embry’s first counsel and appointed second counsel, who negotiated
the plea Embry entered.
{¶17} Embry initially had been charged with first-, second-, and third-degree
felonies. Pursuant to the plea agreement, Embry pleaded guilty to one second-
degree felony, and all other charges and specifications were dismissed. In pleading
guilty, Embry agreed on the record that the statement of facts, which indicated that
Embry “did knowingly attempt to recruit, harbor, maintain [the victim] who was a
developmentally disabled person, to engage in sexual activity for hire,” was true and
accurate. Before accepting Embry’s plea, the trial court asked whether Embry’s
attorney had “explained everything” to her and “answered all [her] questions.”
Embry answered, “Yes.” The court then asked Embry if she was satisfied with her
attorney, and she answered, “Yes, ma’am.”
{¶18} Embry’s second counsel negotiated a favorable plea bargain for her in
the face of very bad facts. The record shows that counsel at all times acted
competently and professionally. This appears to be a case of buyer’s remorse and not
an instance where counsel proceeded against the client’s wishes. While Embry may
ultimately be unhappy that she has to go to prison, she has not shown that counsel
was ineffective. The second assignment of error is overruled.
{¶19} The judgment of the trial court convicting Embry of attempted
trafficking in persons and classifying her as a Tier II sex offender is affirmed, and
this cause is remanded for the trial court to correctly notify Embry of her Tier II
registration and verification duties and their duration.
Judgment affirmed and cause remanded.
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OHIO FIRST DISTRICT COURT OF APPEALS
MOCK, P.J., concurs.
MYERS, J., concurs separately.
MYERS, J., concurring separately.
{¶20} I concur, but write separately to make clear that the only error that I
would find is the error of the trial court in not checking the appropriate boxes on the
preprinted notification form. The sentencing entry correctly stated the tier, and the
trial court correctly orally notified Embry of the duration of her duties and their
frequency. The form contained all the statutory notification requirements. What
was missing was a check in the box to correspond to what the trial court had orally
notified Embry of. I agree that a remand is necessary for the trial court to properly
serve Embry with the required written notification.
Please note:
The court has recorded its own entry this date.
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