State v. Obhof

[Cite as State v. Obhof, 2023-Ohio-408.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2021-A-0021
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
DANNAIL J. OBHOF,
Trial Court No. 2019 CR 00509
Defendant-Appellant.
OPINION
Decided: February 13, 2023
Judgment: Affirmed
Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor,
Columbus, OH 43215, and Andrea K. Boyd, Assistant Attorney General, 30 East Broad
Street, 23rd Floor, Columbus, OH 43215 (For Plaintiff-Appellee).
Gregory T. Stralka, 6509 Brecksville Road, P.O. Box 31776, Cleveland, OH 44131 (For
Defendant-Appellant).
JOHN J. EKLUND, P.J.
{¶1} Before accepting a criminal defendant’s guilty plea, a trial court must assure
that the plea is made knowingly, intelligently, and voluntarily. The need for doing so is,
perhaps, particularly acute when a defendant enters what is known as an “Alford plea”.
In doing so, the defendant indeed pleads guilty but at the same time maintains his or her
innocence. How and why, we ask, would a defendant who maintains innocence plead
guilty to the crime? Was the defendant enticed, duped, confused? On its face, it is a
situation that suggests a defendant who may not know what they are doing or may not
have thought through the consequences or is not acting voluntarily. To address this
apparent anomaly, the law calls upon the trial court to take extra precautions to assure
that the plea is made knowingly, intelligently, and voluntarily. It is within that framework
that the issues raised in this appeal must be considered.
{¶2} Appellant, Dannail Obhof, appeals his conviction and sentence from the
Ashtabula Court of Common Pleas. Appellant entered an Alford guilty plea to four counts
of Rape, felonies of the first degree, in violation of R.C. 2907.02(A)(2)(b).
{¶3} Appellant has raised two assignments of error. First, that the trial court failed
to obtain a sufficient factual basis to accept his Alford plea; second, that his plea was not
knowingly and intelligently made because the trial court failed to inform him of his sex
offender registration requirements at the time of his plea.
{¶4} After review of the record and the applicable caselaw, we find appellant’s
assignments of error are without merit. The State provided a sufficient factual basis to
support the trial court’s finding of guilt. Next, although the trial court did not fully inform
appellant regarding his sex offender registration requirements until appellant’s sentencing
hearing, the trial court did not completely fail to comply with the maximum sentencing
requirement of Crim.R. 11(C)(2)(a) and the record does not demonstrate appellant was
prejudiced.
{¶5} Therefore, we affirm the judgment of the Ashtabula County Court of
Common Pleas.
Substantive and Procedural History
{¶6} On August 21, 2019, appellant was indicted in a 29-count indictment with
16 counts of rape, felonies of the first degree, in violation of R.C. 2907.02, 11 counts of
gross sexual imposition, felonies of the third degree, in violation of R.C. 2907.05, and two
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counts of child endangering, felonies of the second and third degree, in violation of R.C.
2919.22. The sixteen rape counts in the indictment contained force specifications and
sexually violent predator specifications, which would require life imprisonment be
imposed on conviction.
{¶7} On October 7, 2020, appellant entered a guilty plea while maintaining his
innocence pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L.Ed.2d 162, 91 S.Ct.
160 (1971). As part of the Alford plea, appellant agreed to plead to four amended counts
of rape. Counts 1, 12, 20, and 21 were amended to violations of R.C. 2907.02(A)(2)(b)
with no specifications. The State agreed to dismiss the remaining counts. The parties
jointly recommended a mandatory prison sentence of 25 years.
{¶8} Appellant reviewed and signed the written Alford plea prior to the hearing.
At the plea hearing, the trial court engaged in a Crim.R. 11 plea colloquy and reviewed
the rights that appellant was waiving by entering his plea. Appellant said that he
understood the rights he was waiving and had no questions. The court then asked the
State if there was anything further to review with appellant. The prosecutor said, “Your
honor, perhaps just his sex offender registration requirements and when the Court would
like I can recite the facts giving rise to his Alford plea.” The court responded,
Alright, well, yeah, with regard to that, I think that that’s something
that I’m going to address in connection with the sentencing. But if we
covered his rights, and I’ve gone through the check list that I have,
so hopefully I haven’t missed anything that’s important.
Neither appellant nor his counsel asked any questions or made any comment about this
statement. At no point prior to this did the trial court reference appellant’s sex offender
registration requirements upon being convicted. The signed plea agreement similarly
does not reference appellant’s sex offender registration status.
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{¶9} The court turned to the factual basis of the Alford plea and asked the State
to “indicate a sufficient basis to support each of the four counts to which he’s entering his
plea today.” The State gave a brief factual statement for each count. As to count one, the
State said that on or between February 1, 2017, and June 26, 2017,
the evidence that would have been presented would have been that
Mr. Obhof did engage in sexual conduct with L.O., sexual conduct
being vaginal intercourse * * * and that he was not her spouse. And
for purposes of the plea agreement, the charged being amended that
there was force or threat of force and the child would have been
identified, she would have identified Mr. Obhof. And that it happened
on at least one occasion.
{¶10} For each of the remaining three counts, the State presented a similar
statement, providing the dates of the offense, venue, the initials of the victim, the type of
sexual conduct, and that the victim could identify appellant. The State supported the
threat of force element for all of the counts by saying appellant “was bigger, stronger, he
was an adult, he was older. [The victims] were under ten years of age. There is actual
physical force as well as being a parent or authority figure.”
{¶11} The court found there was a sufficient factual basis to support the four
counts. The court said it was satisfied that appellant understood the nature of the charges
and entered his plea knowingly, intelligently, and voluntarily. Appellant entered his plea,
the court found him guilty and immediately proceeded to sentencing.
{¶12} The court imposed the agreed upon 25-year sentence. The court turned to
the issue of appellant’s sex offender status.
Now there’s this issue with the sex offender registration which I’m
sure you also are aware of. But having been convicted of a sexually
oriented offense or a child victim offense, you’re gonna be subject to
registration requirements as what we call a tier three sex offender.
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The court explained the full requirements of appellant’s sex offender registration status at
that time and concluded sentencing. Neither appellant nor his attorney commented about
the sex offender registration requirements.
{¶13} On August 9, 2021, appellant filed a notice of appeal and motion for delayed
appeal. This Court granted leave to file a delayed appeal, however, no appellate brief was
filed, and the appeal was dismissed.
{¶14} On January 26, 2022, appellant filed an application for reopening where he
claimed that his counsel rendered ineffective assistance of counsel. We denied that
application because it appeared that appellant acted pro se in his appeal and believed
that appellant had failed to file his brief.
{¶15} On March 17, 2022, appellant filed a second, delayed application for
reopening. In that application, appellant asserted that the trial court had appointed
counsel to represent him, and that counsel failed to file an appellate brief. We granted
appellant’s delayed application for reopening and appointed new appellate counsel with
instructions to file an appellate brief. Appellant filed his brief and raises two assignments
of error.
Assignments of Error and Analysis
{¶16} For ease of discussion, we take appellant’s assignments of error out of
order. His second assignment of error states:
{¶17} “[2.] The Appellant’s guilty plea was not knowingly and intelligently made
because the trial court failed to inform him regarding the sex offender registration
requirements at the time of the plea.”
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{¶18} This assignment implicates the trial court’s duty to inform a defendant of the
non-constitutional maximum penalty involved in a plea. Appellant cites several cases
which stand for the proposition that a defendant must be fully informed of the maximum
penalties involved in a plea. E.g., State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295(1988); State v. Dye, 127 Ohio St. 3d 357, 2010-Ohio-5728, 939 N.E.2d 1217. However,
appellant has not cited any authority specifically addressing a defendant’s notice
regarding sex offender registration requirements.
{¶19} The State asserts that prior to entering his plea, appellant was aware that
he would have to register as a sex offender and the requirements were later fully
explained to him without objection or question. The State, citing State v. Dangler, 162
Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, at ¶ 22, argues that notification of sex
offender registration requirements is a non-constitutional aspect of a plea and that the
totality of the circumstances at the time of the plea indicated that appellant understood he
would be subjected to certain registration requirements upon conviction. The State
therefore maintains that appellant cannot establish – and indeed has not claimed – that
any prejudice resulted from the sex offender registration requirements being explained
during sentencing rather than during the plea colloquy.
{¶20} A guilty plea must be made knowingly, intelligently, and voluntarily. State v.
Wasilewski, 11th Dist. Portage No. 2020-P-0025, 2020-Ohio-5141, ¶ 20, quoting State v.
Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “Failure on any of those points
renders enforcement of the plea unconstitutional under both the United States
Constitution and the Ohio Constitution.” Id.6
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{¶21} In reviewing whether a guilty plea was entered knowingly, intelligently, and
voluntarily, an appellate court conducts a de novo review of the record to ensure
compliance with constitutional and procedural safeguards. State v. Siler, 11th Dist.
Ashtabula No. 2010-A-0025, 2011-Ohio 2326, ¶ 12, quoting State v. Eckler, 4th Dist.
Adams No. 09CA878, 2009-Ohio 7064, ¶ 48. Those constitutional and procedural
safeguards are designed to ensure that a trial court determine whether a plea is entered
knowingly, intelligently, and voluntarily by explaining the Constitutional and other rights
and the consequences of waiving them.
{¶22} Crim.R. 11(C)(2) requires the trial court to inform the defendant of these
constitutional rights before accepting a guilty or no contest plea, and to determine that the
defendant understands them as well as other aspects of the proceedings. The rule
provides in pertinent part:
(2) In felony cases the court may refuse to accept a plea of guilty or
a plea of no contest, and shall not accept a plea of guilty or no contest
without first addressing the defendant personally either in-person or
by remote contemporaneous video in conformity with
Crim.R. 43(A) and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved, and if applicable, that
the defendant is not eligible for probation or for the imposition
of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses against
him or her, to have compulsory process for obtaining
witnesses in the defendant's favor, and to require the state to
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prove the defendant's guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify
against himself or herself.
{¶23} Crim.R. 11(C)(2)(c) sets forth the constitutional rights a court must inform a
defendant of, and which are waived when entering a guilty or no contest plea. Dangler,
162 Ohio St.3d 1, 164 N.E.3d 286, at ¶ 14.
{¶24} Crim.R. 11(C)(2)(a) provides that a trial court must determine that a
defendant is pleading voluntarily and understands the maximum penalty involved before
accepting a plea of guilty or no contest. The issue appellant raises is whether a full
explication of the sex offender registration requirements are part of the “maximum penalty
involved,” which the court must determine the defendant understood when entering a
plea.
{¶25} However, the “maximum penalty involved” requirement in Crim.R.
11(C)(2)(a) is non-constitutional in nature. Id. at ¶ 23. When challenging a trial court’s
failure to address non-constitutional Crim.R. 11(C) requirements, a defendant must
demonstrate either prejudice or that the trial court completely failed to comply with the
applicable portion of Crim.R. 11(C). Id. at 14-15. To show prejudice under Crim.R.
11(C)(2)(a), a defendant must demonstrate that the plea would not have been entered
“but for the trial court’s failure to explain the sex-offender-classification scheme more
thoroughly.” Id. at ¶ 23.
{¶26} A “complete failure to comply” with a non-constitutional requirement of
Crim.R. 11 occurs when the court makes “no mention” of the requirement. Id., at ¶ 15,
citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22
(holding that a failure to mention postrelease control where the defendant was subject to
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a mandatory five years of postrelease control was a complete failure to comply with the
requirements of Crim.R. 11).
{¶27} In Dangler, supra, the Ohio Supreme Court recently resolved a conflict on
the question of whether the trial court’s failure to inform a defendant of all the penalties
associated with a sex offender classification imposed under R.C. Chapter 2950
constitutes a complete failure to comply with Crim.R. 11(C)(2)(a) and thereby renders the
plea void where the defendant fails to show prejudice resulted. Id. at ¶ 9.
{¶28} The Supreme Court concluded that the penalties set forth in R.C. Chapter
2950, while comprised of both punitive and remedial measures, “as a whole” constitute a
penalty for purposes of Crim.R. 11. Id. at ¶ 20-22, citing State v. Williams, 129 Ohio St.3d
344, 2011-Ohio-3374, 952 N.E.2d 1108. Thus, a trial court need only advise that a
defendant will be subject to the registration requirements of the statutory scheme to
comply with the Crim.R. 11(C)(2)(a) maximum penalty advisement requirement. Id. at ¶
22.
{¶29} The essential questions to be answered are simply: “(1) has the trial court
complied with the relevant provision of the rule? (2) if the court has not complied fully with
the rule, is the purported failure of a type that excuses a defendant from the burden of
demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant
met that burden?” Id. at ¶ 17.
{¶30} Applying the Dangler three-part test to the present case, we cannot
conclude that the trial court fully complied with the non-constitutional Crim.R. 11(C)(2)(a)
maximum penalty advisement. However, in this case the trial court did partially comply
and appellant has not demonstrated any prejudice. First, the trial court did not specifically
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advise appellant about the specific registration requirements he would be subjected to as
part of the potential maximum penalty of his plea. This failure, while not a complete failure
to inform appellant of the maximum penalties associated with his plea “as a whole,” did
fall short of fully complying with Crim.R. 11(C). See Id. at ¶ 22. However, in addition to
explaining other portions of the maximum penalty, the court did tell appellant that there
were sex offender registration requirements during the plea hearing. The court said that
it would fully explain the registration requirements during sentencing.
{¶31} Second, although the trial court partially complied with the requirement of
the rule, the requirement was non-constitutional. Therefore, appellant bears the burden
of showing prejudice – that he would not have otherwise entered his plea.
{¶32} Third, appellant has not asserted prejudice in his brief and no apparent
prejudice exists in the record. The State referenced the sex offender registration
penalties, and the trial court said it would address the sex offender registration
requirements during sentencing. This demonstrates that appellant was at least aware that
registration requirements were part of the maximum penalty involved prior to entering his
plea. Neither appellant nor trial counsel objected or sought further information about the
sex offender registration requirements at that time. Nothing in the record suggests that
appellant would not have entered his plea “but for the trial court’s failure to explain the
sex-offender-classification scheme more thoroughly.” Id. at ¶ 23.
{¶33} As in Dangler, we “encourage trial courts to be thorough in reviewing
consequences of a defendant's decision to enter a plea, including those stemming from
classification as a sex offender: the duty to register and provide in-person verification, the
community-notification provisions, and the residency restrictions.” Id. at ¶25. However,
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this case does not represent a complete failure to comply with the maximum penalty
advisement requirement of Crim.R. 11(C)(2)(a) and nothing in the record leads us to
conclude that appellant would not have entered his plea had the trial court been more
detailed in its explanation.
{¶34} Accordingly, appellant’s second assignment of error is without merit.
{¶35} Appellant’s first assignment of error states:
{¶36} “[1.] The Appellant’s Alford plea is not valid since the trial court failed to
obtain a sufficient factual basis for such plea.”
{¶37} Unlike the prior assignment of error addressing issues of general concern
regarding guilty pleas, this assignment deals with the special care that a trial court must
take to ensure a defendant has made a knowing and intelligent decision that the plea
bargain offered is in his or her best interest.
{¶38} As noted above, we conduct a de novo review of whether a plea is
knowingly, intelligently, and voluntarily made. Siler, 2011-Ohio 2326 at ¶ 12, quoting
Eckler, 2009-Ohio 7064 at ¶ 48.
{¶39} An Alford plea is a plea of guilty entered with a contemporaneous
protestation of innocence. State v. Karsikas, 11th Dist. Ashtabula No. 2014-A-0065, 2015-
Ohio-2595, ¶ 18. Although a plea may be entered knowingly and intelligently, the Alford
plea “involves a rational calculation that is significantly different from the calculation made
by a defendant who admits he is guilty * * *.” State v. Padgett, 67 Ohio app.3d 332, 338,
586 N.E.2d 1194 (2d Dist. 1990). The trial court must inquire into and seek to “resolve the
conflict between the waiver of trial and the claim of innocence.” Alford, 400 U.S. at 38,
fn.10.
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{¶40} Before accepting an Alford plea, a trial court “must ascertain that
notwithstanding the defendant’s protestations of innocence” the defendant has made a
rational calculation that the plea bargain offered is in his or her best interest by avoiding
the risks of a greater punishment if a jury returns a guilty verdict. Wasilewski, at ¶ 23,
quoting Padgett, at 338.
{¶41} In the context of Alford, the record must demonstrate the following:
(1) defendant’s guilty plea was not the result of coercion, deception
or intimidation; (2) counsel was present at the time of the plea; (3)
counsel’s advice was competent in light of the circumstances
surrounding the indictment (4) the plea was made with the
understanding of the nature of the charges; and, (5) defendant was
motivated either by a desire to seek a lesser penalty or a fear of the
consequences of a jury trial, or both, the guilty plea has been
voluntarily and intelligently made.
State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971), syllabus.
{¶42} In addition to the above, an Alford plea requires a factual basis for the
charges be provided to ensure that the defendant has made a rational calculation, based
on the strength of the State’s case, between the risk of trial and the consequences of
pleading guilty. See State v. Gil, 11th Dist. Lake No. 2018-L-077, 2019-Ohio-839, ¶ 11;
Alford, 400 U.S. at 38, fn.10.
{¶43} “[T]his court has accepted a brief description of the crimes committed as
adequate to justify the entry of an Alford plea.” Gil, at ¶ 11, citing State v. Prinkey, 11th
Dist. Ashtabula No. 2010-A-0029, 2011-Ohio-2583, ¶ 24-25 (setting forth that a search
warrant revealed evidence to substantiate recent and ongoing production of
methamphetamine at defendant’s property on the date and location indicated on the
indictment); and State v. Bilicic, 11th Dist. Ashtabula No. 2017-A-0066, 2018-Ohio-5377,
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¶ 14 (holding there is no requirement for the State to present “specific facts going to each
element of a charge where a defendant enters an Alford plea.”).
{¶44} Appellant’s brief extensively cites State v. Hughes, 4th Dist. Highland No.
20CA2, 2021-Ohio-111, which he claims supports his contention that the record did not
contain a sufficient factual basis to justify the acceptance of his Alford plea. In Hughes,
the trial court accepted an Alford plea after reviewing discovery materials and the
defendant’s criminal record. The Fourth District reversed because the record did not
“include a presentation of the basic facts or circumstances surrounding the indictment.”
On appeal, the “discovery itself was not made part of the record,” and the record did not
contain a “bill of particulars upon which the trial court might discern the strength of the
state’s charges.” Id. Therefore, the court of appeals could not “discern whether the state’s
discovery contained strong evidence of * * * actual guilt.” Id.{¶45} R.C. 2907.02(A)(1)(b) provides that:
(A)(1) No person shall engage in sexual conduct with another who is
not the spouse of the offender or who is the spouse of the offender
but is living separate and apart from the offender, when any of the
following applies:
(b) The other person is less than thirteen years of age, whether
or not the offender knows the age of the other person.
{¶46} Here, the State provided specific details of the four counts to establish a
factual basis for each element of the offense. The State provided the date ranges, details
of the nature of the sexual conduct that appellant engaged in with each victim, and
identified each victim separately by initials. The State said that the victims were not the
spouse of appellant and that each was under 10 years old at the time of the offenses. The
State said that it would prove that the victims knew appellant, could identify him, and that
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the offenses took place in Ashtabula County. The State provided strong evidence of
appellant’s guilt at the hearing.
{¶47} The record below also contains an amended bill of particulars the State filed
which asserts the date ranges of the offense, the particular nature of the sexual conduct
appellant engaged in with each victim, appellant’s relationship to each victim, the age of
each victim, and that the offenses took place in Ashtabula County. In Hughes, the
reviewing court could not establish strong evidence of actual guilt from the record.
Hughes, supra, at ¶ 12. Here, the record – in addition to the factual statement the State
provided at the plea hearing – does offer strong evidence of appellant’s guilt in reference
to each count and to each victim. This more than satisfies the requirements for the trial
court to accept and enter appellant’s Alford plea. See Gil, 2019-Ohio-839, at ¶ 11.
{¶48} Accordingly, appellant’s first assignment of error is without merit.
{¶49} For the foregoing reasons, the judgment of the Ashtabula Court of Common
Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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