State v. Bush

[Cite as State v. Bush, 2011-Ohio-5954.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA82
vs. : T.C. CASE NO. 06CRB1895
ENOCH BUSH, JR. : (Criminal Appeal from
Municipal Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 18th day of November, 2011.
. . . . . . . . .
Betsy A. Deeds, Atty. Reg. No. 0076747, Asst. Fairborn Pros., 510
West Main Street, Fairborn, OH 45324
Attorney for Plaintiff-Appellee
Daniel J. O’Brien, Atty. Reg. No. 0031461, 1210 Talbott Tower,
131 N. Ludlow Street, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Enoch Bush, appeals from a final judgment
that denied his post-sentence motion to withdraw his guilty plea.
{¶ 2} On or about September 7, 2006, Defendant was charged
by complaint in Fairborn Municipal Court with one count of sexual
imposition, the victim between thirteen and sixteen years of age,
2
in violation of R.C. 2907.06(A)(4), which is a misdemeanor of the
third degree. On March 6, 2007, Defendant entered a plea of guilty
as charged and was sentenced to sixty days in jail and fined two
hundred and fifty dollars. At the time of sentencing, the State
took the position that Defendant had a duty to register as a sexually
oriented offender because the victim in this case was thirteen
years of age. The trial court took the matter of the registration
requirement under advisement and indicated that the court would
issue a written decision.
{¶ 3} On June 4, 2007, the trial court issued its written
decision requiring Defendant to register as a sexually oriented
offender for period of ten years pursuant to R.C. 2950.04. The
court sent copies of that decision to Defendant’s trial counsel
and to Defendant at his last known address. By that time, Defendant
had already completed his sentence, including serving the jail
term and paying the fine. Over three years later, August 2, 2010,
Defendant sent a letter to the trial court asking to withdraw his
guilty plea and requesting relief from the sex offender
registration requirement.
{¶ 4} After retaining new counsel, on August 24, 2010,
Defendant filed a motion to withdraw his guilty plea because he
was never advised at the time he entered his plea that as result
of his guilty plea he would be required to register as a sex
3
offender. A hearing was held on August 24, 2010. On November
12, 2010, the trial court overruled Defendant’s post-sentence
motion to withdraw his guilty plea. In concluding that Defendant
failed to demonstrate any manifest injustice, the trial court noted
that Defendant had some knowledge about a possible sex offender
reporting requirement because that matter was discussed in his
presence at the time he entered his guilty plea, that Defendant
waited over three years, without explanation, after the court
ordered him to register as a sex offender before seeking relief,
and that a trial court is not required to advise a defendant about
sex offender reporting requirements when accepting a guilty or
no contest plea. See: State v. Cupp, Montgomery App. Nos. 21176,
21348, 2006-Ohio-1808.
{¶ 5} Defendant appealed to this court.
ASSIGNMENT OF ERROR
{¶ 6} “THIS INDIGENT DEFENDANT WAS DENIED DUE PROCESS OF LAW
AND EQUAL PROTECTION OF THE LAW AND WAS INADEQUATELY REPRESENTED
BY APPOINTED DEFENSE COUNSEL, WHICH FAILURE WAS CONJOINED IN BY
THE TRIAL JUDGE, IN EACH OR BOTH FAILING TO WARN THE DEFENDANT
OF ANY OF HIS CONSTITUTIONAL RIGHTS UNDER RULE 11C (b), (c) AND
(D); IN FAILING TO FULLY INFORM THE DEFENDANT OF THE EFFECTS OF
HIS PLEA OF GUILTY, IN FAILING TO DETERMINE THAT THE DEFENDANT
WAS MAKING HIS PLEA KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY; IN
4
FAILING TO SET ASIDE AND VACATE THE PLEA AFTER THE DEFENDANT’S
STATEMENT, WITH 60 SECONDS OF THE PLEA, THAT HE (THE DEFENDANT)
DIDN’T DO ANYTHING, THE ALLEGED VICTIM TRIED TO KISS HIM AND HE
SENT HER HOME, AND APPOINTED DEFENSE COUNSEL NOT ONLY FAILING TO
TELL THE DEFENDANT THAT ONE OF THE EFFECTS OF HIS PLEA WAS MANDATORY
REPORTING REQUIREMENTS, WHICH ON THIS RECORD, DEFENSE COUNSEL
OBVIOUSLY DID NOT KNOW, AND WHICH OBVIOUSLY THE COURT ITSELF ALSO
DID NOT KNOW, LEADING TO EXTREME PREJUDICE AND MANIFEST INJUSTICE
VISITED UPON THIS DEFENDANT.”
{¶ 7} Defendant argues that the trial court abused its
discretion when it denied his post-sentence motion to withdraw
his guilty plea because the failure to advise Defendant at the
time he entered his plea about the effect of his plea, specifically
that he would be subject to sex offender registration and reporting
requirements, constitutes a manifest injustice.
{¶ 8} In State v. Minkner, Champaign App. No. 2009CA16,
2009-Ohio-5625, we stated:
{¶ 9} “{¶ 24} Crim.R. 32.1 provides that ‘[a] motion to
withdraw a plea of guilty or no contest may be made only before
sentence is imposed; but to correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit
the defendant to withdraw his or her plea.’
{¶ 10} “{¶ 25} A defendant who files a post-sentence motion
5
to withdraw his guilty plea thus bears the burden of establishing
a ‘manifest injustice.’ State v. Smith (1977), 49 Ohio St.2d 261,
paragraph one of the syllabus; State v. Milbrandt, Champaign App.
No.2007-CA-3, 2008-Ohio-61, at ¶8. A manifest injustice has been
defined as ‘a clear or openly unjust act’ that involves
‘extraordinary circumstances.’ State v. Stewart, Greene App. No.
2003-CA-28,2004-Ohio-574, at ¶6. ‘[A] “manifest injustice”
comprehends a fundamental flaw in the path of justice so
extraordinary that the defendant could not have sought redress
from the resulting prejudice through another form of application
reasonably available to him or her.’ State v. Hartzell (Aug. 20,
1999), Montgomery App. No. 17499. ‘Crim.R. 32.1 requires a
defendant making a postsentence motion to withdraw a plea to
demonstrate manifest injustice because it is designed “to
discourage a defendant from pleading guilty to test the weight
of potential reprisal, and later withdraw the plea if the sentence
was unexpectedly severe.”’ State v. Boswell, 121 Ohio St.3d 575,
2009-Ohio-1577, at ¶9, quoting State v. Caraballo (1985), 17 Ohio
St.3d 66, 67.
{¶ 11} “{¶ 26} We review a trial court’s decision on a motion
to withdraw a guilty plea for an abuse of discretion. State v.
Whitmore, Clark App. No. 06-CA-50, 2008-Ohio-2226, at ¶38.”
{¶ 12} “‘Abuse of discretion’ has been defined as an attitude
6
that is unreasonable, arbitrary or unconscionable. Huffman v.
Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. It is to be
expected that most instances of abuse of discretion will result
in decisions that are simply unreasonable, rather than decisions
that are unconscionable or arbitrary.
{¶ 13} “A decision is unreasonable if there is no sound
reasoning process that would support that decision. It is not
enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that would
support a contrary result.” AAAA Enterprises, Inc v. River Place
Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 14} Defendant argues that the failure of the court or his
counsel to advise him at the time he entered his guilty plea about
the effects of that plea, specifically that he would be subject
to sex offender registration and reporting requirements,
constitutes a manifest injustice and therefore he should be
permitted to withdraw his plea. We disagree.
{¶ 15} This court has repeatedly held that a trial court need
not inform a defendant about the registration and notification
requirements in Ohio Revised Code Chapter 2950 before accepting
a plea. In re C.A., Montgomery App. No. 23022, 2009-Ohio-3303,
at ¶56; State v. Cupp, Montgomery App. Nos. 21176, 21348,
7
2006-Ohio-1808; State v. Abrams (Aug. 20, 1999), Montgomery App.
No. 17459. A trial court’s failure to do so does not render the
plea invalid. Abrams. In addition, we have also held that a trial
court’s failure to comply with Crim.R. 11(C) when taking a plea
is not an extraordinary circumstance demonstrating a form of
manifest injustice required for Crim.R. 32.1 relief. Minker, at
¶29-31. Accordingly, no manifest injustice supporting withdrawal
of Defendant’s plea has been demonstrated. Thus, the trial court
did not abuse its discretion by denying Defendant’s motion to
withdraw his plea.
{¶ 16} Defendant relies upon our decision in State v. Powell,
188 Ohio App.3d 232, 2010-Ohio-3247. Defendant’s reliance is
misplaced, however, because that case is distinguishable.
{¶ 17} In Powell, the defendant pled guilty to voyeurism in
violation of R.C. 2907.08(A). The victim of that offense was not
a minor child under age eighteen. In accordance with the law in
effect at that time, that offense was a presumptively
registration-exempt sexually oriented offense, unless the trial
court issued a separate order specifically removing the presumptive
exemption pursuant to R.C. 2950.021. The trial court did not do
that in designating Powell a Tier I sex offender at the time sentence
was imposed. Under those circumstances, we found a manifest
injustice and ordered the plea vacated.
8
{¶ 18} Here, unlike in Powell, Defendant did not enter a guilty
plea to a presumptively registration-exempt sexually oriented
offense. The victim of this offense was not eighteen years of
age or older. R.C. 2950.01(D)(1)(e), (P)(1)(a). When the victim
is under the age of eighteen, no presumption arises that the offense
is exempt from registration. Under those circumstances, the trial
court is not required to issue an order specifically removing the
presumptive exemption before requiring Defendant to register as
a sexually oriented offender.
{¶ 19} Defendant’s assignment of error is overruled. The
judgment of the trial court will be affirmed.
HALL, J., concurs.
FAIN, J., concurring:
{¶ 20} I agree with everything stated in Judge Grady’s opinion
for the court. In that opinion, it is noted that we have repeatedly
held that a trial court need not inform a defendant about the
registration and notification requirements in R.C. Chapter 2950
before accepting a plea. I write separately merely to note that
this may change for defendants sentenced after the Adam Walsh Act
amendments to R.C. Chapter 2950 (2007 Am.Sub.S.B. No. 10). As
a result of State v. Williams, 129 Ohio St.3d 324, 2011-Ohio-3374,
the registration, notification and verification requirements for
9
persons classified as sexual offenders under the Adam Walsh Act
are not regarded as remedial; they are punitive. Id., ¶ 16, 21.
If those requirements are now punitive under R.C. Chapter 2950,
then they are part of the penalty for the offense. Consequently,
the defendant must be informed of them before his plea of guilty
or no contest may be accepted. Crim. R. 11(C)(2)(a).
{¶ 21} But Bush is not subject to the Adam Walsh Act amendments.
His registration and notification requirements arise from the
previous version of R.C. Chapter 2950 (Megan’s Law), and those
requirements, being merely remedial, are not part of the penalty
for his offense. Accordingly, as a long line of our cases have
held, the trial court was not required to inform him of them before
accepting his plea.