State v. Tupuola

[Cite as State v. Tupuola, 2021-Ohio-2577.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. CT2020-0056
:
CASSANDRA A. TUPUOLA :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No,
CR2020-0195
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 27, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RONALD L. WELCH BRAIN W. BENBOW
MUSKINGUM COUNTY PROSECUTOR BENBOW LAW OFFICES LLC
265 Sunrise Center Dr.
TAYLOR P. BENNINGTON Zanesville, OH 43701
ASSISTANT PROSECUTOR
27 North 5th St., P.O. Box 189
Zanesville, OH 43702-0189
[Cite as State v. Tupuola, 2021-Ohio-2577.]
Delaney, J.
{¶1} Defendant-Appellant Cassandra A. Tupuola appeals the November 17,
2020 sentencing entry of the Muskingum County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
Indictment
{¶2} On May 6, 2020, the Muskingum County Grand Jury indicted Defendant-
Appellant Cassandra A. Tupuola on the following charges:
1. Attempted Murder, a first-degree felony in violation of R.C. 2923.02(A), with a
firearm specification and drive-by specification;
2. Felonious Assault, a second-degree felony in violation of R.C. 2903.11(A)(2),
with a firearm specification and drive-by specification;
3. Improper Handling of a Firearm in a Motor Vehicle, a fourth-degree felony in
violation of R.C. 2923.16(A);
4. Improper Handling of a Firearm in a Motor Vehicle (Loaded), a fourth-degree
felony in violation of R.C. 2923.16(B);
5. Discharging a Firearm at/over a Roadway, a third-degree felony in violation of
R.C. 2923.162(A)(3), with a firearm specification;
6. Endangering Children, a first-degree misdemeanor in violation of R.C.
2919.22(A);
7. Endangering Children, a first-degree misdemeanor in violation of R.C.
2919.22(A); and
8. Tampering with Evidence, a third-degree felony in violation of R.C.
2921.12(A)(1), with a firearm specification.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
{¶3} Tupuola was arraigned on May 13, 2020 and entered a not guilty plea to all
charges.
{¶4} Counsel for Tupuola filed a Suggestion of Incompetence to Stand Trial and
requested a mental evaluation. After the evaluation and competency hearing, the trial
court found Tupuola competent to stand trial. (Judgment Entry, July 31, 2020). Trial was
scheduled for September 17, 2020 but on September 9, 2020, the trial court issued a
judgment entry stating a change of plea hearing would be held on September 15, 2020.
Change of Plea Hearing
{¶5} At the change of plea hearing, Tupuola withdrew her not guilty plea and
entered a plea of guilty to three offenses:
1. Attempted Murder, a first-degree felony in violation of R.C. 2923.02(A), with a
firearm specification;
6. Endangering Children, a first-degree misdemeanor in violation of R.C.
2919.22(A); and
7. Endangering Children, a first-degree misdemeanor in violation of R.C.
2919.22(A).
The State agreed to nolle Counts 2, 3, 4, 5, 8, and the drive-by specification attached to
Count 1 of the indictment. The parties agreed the State would make no recommendation
as to the sentencing.
{¶6} The State provided the four-page plea form agreement to the trial court that
was signed by Tupuola, her counsel, and the State. (T. 4). In addition to the plea form
agreement, there were an additional four pages submitted, which included the notice of
a non-life felony indefinite prison term and a notice of violent offender database
[Cite as State v. Tupuola, 2021-Ohio-2577.]
provisions. (T. 5). Counsel for Tupuola told the trial court that she had an opportunity to
review the plea form with her client, including an explanation of the trial court’s application
of the Reagan Tokes Act and that Tupuola would be subject to the violent offender registry
and “the requirements of that registry including that she would need to register annually
for a period of ten years.” (T. 6).
{¶7} The trial court next conducted the plea colloquy. The trial court explained
the minimum and the maximum indefinite sentence, which Tupuola responded she
understood as “The Reagan Tokes.” (T. 7). The trial court next stated:
THE COURT: Additionally, because of Count 1, if you plead guilty and are
found guilty to Count 1, attempted murder, you’re also required to register
in the violent offender database. And Miss Kinney’s addressed that with you
also. Correct?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand that you will be classified a violent
offender. There’s a hearing determination. You may rebut that. It’s gone
over – did you go over that with her?
MS. KINNEY: Yes, Your Honor.
THE COURT: And that there’s factors considered to rebut it. Additionally,
there are – if you fail to register appropriately, there are consequences with
regard to failing to register. You understand that?
THE DEFENDANT: Yes.
THE COURT: That could lead to new and additional prison time?
THE DEFENDANT: Yes.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
THE COURT: Any questions about that?
THE DEFENDANT: No, sir.
(T. 10-11).
{¶8} The State provided the trial court with a recitation of the facts. (T. 16). On
May 3, 2020 at approximately 10:41 pm, the male victim called the police department to
report that Tupuola fired a pistol at him and his car while she was driving a green motor
vehicle. Two bullet holes were discovered in the victim’s car seat, one near the victim’s
back and one in the headrest. (T. 18). After she shot at him, Tupuola drove away. (T. 17).
The police reported to Tupuola’s residence and found a green motor vehicle registered in
her name parked at her residence. The car had a broken-out front passenger window with
glass on the front seat, and a spent shell casing on the front passenger seat. (T. 17).
{¶9} The police took Tupuola into custody. The police determined that Tupuola
had her two minor children in the car when she fired the gunshots at the victim in his car.
The police inspected Tupuola’s cell phone and discovered a video of her following the
victim in her car. “She was in her vehicle. You can hear her children in the back of the
vehicle. You can hear a loud bang like a gunshot being fired, and her children actually
have a discussion with her about that loud bang at one point saying I think my ear’s broken
out.” (T. 17).
{¶10} At the time of the shooting, Tupuola and the victim were in a relationship,
but the victim took his belongings and left. Tupuola was upset and followed him around
the streets as he was driving to get away from her before she shot at him. (T. 18).
{¶11} The trial court accepted Tupuola’s plea, found her guilty of the charges, and
the set the matter for sentencing hearing after a presentence investigation.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
Sentencing Hearing
{¶12} The matter came on for sentencing hearing on November 9, 2020. The trial
court first conducted the violent offender portion of the hearing:
THE COURT: * * * Ms. Tupuola, you understand that being found guilty,
having pled guilty and being found guilty of attempted murder, that you have
a duty to enroll as a violent offender –
THE DEFENDANT: Yes.
THE COURT: -- in the State of Ohio?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And I – I am certain Ms. Kinney went through that with you,
but did she?
THE DEFENDANT: Yes.
THE COURT: And do you understand the – the duties associated with the
necessity to enroll for 10 years?
THE DEFENDANT: Yes, sir.
THE COURT: And do you have any questions about that?
THE DEFENDANT: No.
THE COURT: You have to enroll every – after your initial enrollment you
have to enroll annually. You must update and amend any information within
10 days. Understand that?
THE DEFENDANT: Yes.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
THE COURT: You understand if you don’t follow all of these rules and
requirements, that could lead to new and additional jail or prison time not
even associated with this case?
THE DEFENDANT: Yes.
THE COURT: Any questions about any of that?
THE DEFENDANT: No, sir.
(T. 6-7).
{¶13} Via sentencing entry filed November 17, 2020, the trial court sentenced
Tupuola to the following: Count One -- a stated minimum prison term of seven years, an
indefinite prison term of 10.5 years, and a mandatory three-year prison term on the firearm
specification; Count Six -- six-months local incarceration; and Count Seven -- six-months
local incarceration. The sentencing entry further stated: “Provided however, the periods
of incarceration imposed herein shall be served concurrently with one another. The
mandatory prison term for the gun specification shall be served prior to the stated
minimum prison term of seven (7) years for an aggregate minimum prison term of ten (10)
years and an aggregate indefinite maximum prison term of thirteen and one-half (13½)
years.”
{¶14} It is from this sentencing entry that Tupuola now appeals.
ASSIGNMENTS OF ERROR
{¶15} Tupuola raises four Assignments of Error:
{¶16} “I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE’S
SENTENCES FOR THE FIRST AND SECOND DEGREE QUALIFYING FELONIES
VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF
[Cite as State v. Tupuola, 2021-Ohio-2577.]
OHIO. APPELLANT’S SENTENCE IS CONTRARY TO LAW BECAUSE SHE WAS
SENTENCED PURSUANT TO THE UNCONSTITUTIONAL REAGAN TOKES ACT.
THIS ACT VIOLATES THE SEPARATION OF POWERS DOCTRINE, AS IT PLACES
THE DECISION TO EXTEND A PRISON TERM UPON THE STATE – NOT THE TRIAL
COURT. IT FURTHER VIOLATES DUE PROCESS IN THAT THE DECISION TO
RESTRICT AN INDIVIDUAL’S FREEDOM IS MADE BY A JUDGE IN VIOLATION OF
HER RIGHT TO A JURY TRIAL TO DECIDE WHETHER HER MINIMUM SENTENCE
SHOULD BE INCREASED.
{¶17} “II. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.
{¶18} “III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT
PERSONALLY ADDRESSING APPELLANT TO NOTIFY HER BEFORE SENTENCING
OF THE PRESUMPTION OF THE DUTY TO ENROLL IN THE VIOLENT OFFENDER
DATABASE, APPELLANT’S RIGHT TO FILE A MOTION TO REBUT THE
PRESUMPTION, THE PROCEDURE AND CRITERIA FOR REBUTTING THE
PRESUMPTION, AND THE EFFECT OF A REBUTTAL AND THE POST-REBUTTAL
HEARING PROCEDURES AND POSSIBLE OUTCOMES.
{¶19} “IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
SENTENCING APPELLANT TO A DISPROPORTIONATE SENTENCE.”
[Cite as State v. Tupuola, 2021-Ohio-2577.]
ANALYSIS
I. Reagan Tokes Law and Ineffective Assistance of Counsel
{¶20} Senate Bill 201, known as the Reagan Tokes Law, became effective on
March 22, 2019. Under the Reagan Tokes Law, qualifying first- and second-degree
offenses committed on or after March 22, 2019 are subject to the imposition of an
indefinite prison term. The law states the prison terms will consist of a minimum term
selected by the sentencing judge from a range of terms described in R.C. 2929.14(A) and
a maximum term determined by formulas described in R.C. 2929.144.
{¶21} The Reagan Tokes Law establishes a presumptive release date at the end
of the minimum prison term. R.C. 2967.271(B). The Ohio Department of Rehabilitation
and Correction may rebut that presumption, however, and keep the offender in prison for
an additional period not to exceed the maximum term imposed by the sentencing judge.
R.C. 2967.271(C). To rebut the presumption, the ODRC must hold a hearing and
determine whether one or more of the factors set forth in R.C. 2967.271(C)(1), (2), and
(3) apply.
{¶22} In her first Assignment of Error, Tupuola contends the indefinite sentencing
scheme established by the Reagan Tokes Law, as applied in this case to Count One, is
unconstitutional because it violates the constitutional guarantee of the right to a jury trial
and the separation of powers doctrine. We decline to consider this Assignment of Error
for two reasons. First, we find the issue is not ripe for our review. Second, Tupuola
forfeited her appeal of the issue because she did not raise any constitutional challenge to
the Reagan Tokes Law in the trial court.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
Not Ripe for Review
{¶23} This Court has previously addressed whether a challenge to the
constitutionality of the Reagan Tokes Law is ripe for appellate review where the defendant
has yet to serve the minimum term and yet to be subjected to the application of the
Reagan Tokes Law. This Court has repeatedly held the issue is not ripe for review. See
State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-Ohio-5013; State v. Downard,
5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227; State v. Manion, 5th Dist.
Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-4230; State v. Kibler, 5th Dist. Muskingum
No. CT2020-0026, 2020-Ohio-4631, State v. Wolfe, 5th Dist. Licking No. 2020-CA-0021,
2020-Ohio-5501; State v. Buckner, 5th Dist. Muskingum CT2020-0023, 2020-0024, 2020-
Ohio-7017; and State v, King, 5th Dist. Stark No. 2020 CA 00064, 2021-Ohio-1636..
{¶24} The Sixth District has reached the same conclusion in State v. Maddox, 6th
Dist. Lucas No. CL-19-1253, 2020-Ohio-4702, and State v. Velliquette, 6th Dist. Lucas
No. L-19-1232, 2020-Ohio-4855. Likewise, the Fourth District found the issue not ripe for
review in State v. Ramey, 4th Dist. Washington Nos. CA 1 and 20 CA 2, 2020-Ohio-6733.
{¶25} We note the Ohio Supreme Court has accepted a certified conflict on the
issue of whether the constitutionally of the Reagan Tokes Law is ripe for review on direct
appeal or only after the defendant has served the minimum term and been subject to
extension by application of the law. See, State v. Maddox, 6th Dist. Lucas No. L-19-1253,
2020-Ohio-4702, order to certify conflict allowed, State v. Maddox, 160 Ohio St.3d 1505,
2020-Ohio-6913, 159 N.E.3d 1150 (Table). See also, State v. Downard, 5th Dist.
Muskingum No. CT2019-0079, 2020-Ohio-4227, appeal accepted on Appellant's
Proposition of Law No. II, State v. Downard, 160 Ohio St.3d 1507, 2020-Ohio-6835, 159
[Cite as State v. Tupuola, 2021-Ohio-2577.]
N.E.3d 1507 (Table) (Sua sponte, cause held for the decision in 2020-1266, State v.
Maddox).
{¶26} For the reasons set forth in this Court’s prior opinions, we find Tupuola’s
Reagan Tokes challenge is not ripe for review.
Failure to Raise the Argument
{¶27} The record in this case shows that Tupuola did not raise a constitutional
challenge to the Reagan Tokes Law at the trial court level. The Ohio Supreme Court has
held: “Failure to raise at the trial court level the issue of the constitutionality of a statute
or its application, which issue is apparent at the time of trial, constitutes a waiver of such
issue and a deviation from this state's orderly procedure, and therefore need not be heard
for the first time on appeal.” Canton v. Schuster, 5th Dist. Stark No. 2019 CA 00115, 2020-
Ohio-3060, 2020 WL 2616035, ¶ 29 quoting State v. Awan, 22 Ohio St.3d 120, 489
N.E.2d 277 (1986), syllabus. The Ohio Supreme Court explained that “the question of the
constitutionality of a statute must generally be raised at the first opportunity and, in a
criminal prosecution, this means in the trial court.” Id. By not raising the constitutionality
of the Reagan Tokes Law in the trial court, Tupuola waived her constitutional challenges
to the law, and we will not consider them for the first time on appeal.
{¶28} The Ohio Supreme Court subsequently clarified Awan, holding a court has
the right to consider constitutional challenges in its discretion even if the argument was
waived “in specific cases of plain error or where the rights and interests involved may
warrant it.” Id. citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. We
decline to exercise that discretion in this case based on our holding that a constitutional
challenge to the Reagan Tokes Law is not ripe for our review.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
{¶29} Tupuola’s first Assignment of Error is overruled.
Ineffective Assistance of Counsel
{¶30} For ease of discussion, we address Tupuola’s second Assignment of Error
that she received the ineffective assistance of counsel in relation to the Reagan Tokes
Law. Tupuola contends her trial counsel was ineffective for her failure to raise a
constitutional challenge to the Reagan Tokes Law before the trial court.
{¶31} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.
158 (1955).
{¶32} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690.
{¶33} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant 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, 466 U.S. at 694.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
{¶34} For the reasons stated in State v. Downard, 5th Dist. Muskingum No.
CT2019-0079, 2020-Ohio-4227, appeal allowed, 160 Ohio St.3d 1507, 2020-Ohio-6835,
159 N.E.3d 1152, Tupuola’s claim in her second Assignment of Error for ineffective
assistance of counsel as to the Reagan Tokes Law is overruled. State v. Hunter, 5th Dist.
Muskingum No. CT2020-0042, 2021-Ohio-1424, ¶ 5; State v. Mills, 5th Dist. Coshocton
No. 2020 CA 10, 2021-Ohio-1180, ¶ 14.
III. Violent Offender Database and Ineffective Assistance of Counsel
{¶35} In her third Assignment of Error, Tupuola contends the trial court did not
properly advise her at the plea hearing of the procedures related to enrollment in the
Violent Offender Database (“VOD”). Also, Tupuola raises the issue of ineffective
assistance of counsel as to her enrollment in the VOD in her second Assignment of Error.
We consider her second and third Assignments of Error together as they both relate to
the Violent Offender Database.
Sierah’s Law
{¶36} R.C. 2903.41 et seq., commonly known as Sierah’s Law, went into effect
on March 20, 2019. See 2018 S.B. No. 231. Sierah’s Law created the Violent Offender’s
Database and requires violent offenders convicted of specified offenses, including
attempted murder, to enroll in the database. Sierah’s Law creates a presumption that
violent offenders enroll in the database and provides enrollment for a minimum of ten
years. Re-enrollment in the database is required on an annual basis.
{¶37} R.C. 2903.42(A)(1) governs enrollment in the VOD. It states as follows:
(A)(1) For each person who is classified a violent offender, it is presumed
that the violent offender shall be required to enroll in the violent offender
[Cite as State v. Tupuola, 2021-Ohio-2577.]
database with respect to the offense that so classifies the person and shall
have all violent offender database duties with respect to that offense for ten
years after the offender initially enrolls in the database. The presumption is
a rebuttable presumption that the violent offender may rebut as provided in
division (A)(4) of this section, after filing a motion in accordance with division
(A)(2)(a) or (b) of this section, whichever is applicable. Each violent offender
shall be informed of the presumption established under this division, of the
offender's right to file a motion to rebut the presumption, of the procedure
and criteria for rebutting the presumption, and of the effect of a rebuttal and
the post-rebuttal hearing procedures and possible outcome, as follows:
(a) If the person is classified a violent offender under division (A)(1) of
section 2903.41 of the Revised Code, the court that is sentencing the
offender for the offense that so classifies the person shall inform the
offender before sentencing of the presumption, the right, and the procedure,
criteria, and possible outcome.
R.C. 2903.42.
{¶38} As stated above, the presumption that a person classified as a violent
offender must enroll in the VOD is rebuttable. R.C. 2903.42(A)(1). To rebut the
presumption, the defendant is required to file a motion with the trial court, prior to or at
sentencing, asserting that they are not the principal offender in the commission of the
offense and request that the court not require them to enroll in the VOD and not have all
VOD duties with respect to that offense. R.C. 2903.42(A)(2)(a). The defendant bears the
[Cite as State v. Tupuola, 2021-Ohio-2577.]
burden to establish by a preponderance of the evidence that they are not the principal
offender. R.C. 2903.42(A)(4).
{¶39} Tupuola contends the trial court failed to comply with the notification
requirements of R.C. 2903.42(A)(1)(a). In State v. Hall, 2021-Ohio-1894, -- N.E.3d – (2nd
Dist.), the Second District Court of Appeals addressed a similar argument. The appellant
in Hall took the position that his guilty pleas were not made in a knowing, intelligent, and
voluntary manner because the trial court did not properly advise him at the plea hearing
of his duties to enroll in the VOD or the procedures to overcome the presumption of violent
offender registration prior to sentencing. Id. at ¶ 25. In making its determination, the
appellate court recited the exchange between the trial court and the defendant at the plea
hearing:
TRIAL COURT: All right. I'm going to have you listen as the prosecution
reads a statement of the charges. But before they do, is the State satisfied
with the explanation so far?
THE STATE: Yes, Your Honor. However, I would note that by virtue of
pleading to Count IV, the kidnapping charge, Mr. Hall would have to register
as a violent offender.
TRIAL COURT: Yeah. I – I should've explain [sic] this to you, sir, and I'm
sure [Defense Counsel] went over this with you. But by virtue of the statute
because of the – is this for the kidnapping, too, or just the aggravated
robbery?
THE STATE: Just kidnapping.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
TRIAL COURT: Okay. On the kidnapping offense, the Court will have to
designate you as a violent offender. You'll have the duty to register as that
and I will explain all of that to you at the time of sentencing but you would
be required to register as a violent offender. Do you understand that?
HALL: I do.
TRIAL COURT: Okay. Does that change anything so far up to this point in
time?
HALL: No.
TRIAL COURT: Okay. Anything else that needs to be explained?
THE STATE: Yes, Your Honor. Your Honor, with regards to that violent
offender requirement, it's just a notification to the Defendant that if he does
need to challenge and rebut the presumption of it, then any kind of motion
should have to be filed prior to sentencing.
TRIAL COURT: Okay. [Defense Counsel], you can explain to him if he
wants to rebut that, at all, a motion has to be filed before sentencing on the
violent offender, if that is happening.
DEFENSE COUNSEL: I understand that.
TRIAL COURT: Anything further?
THE STATE: No, Your Honor.
TRIAL COURT: [Defense Counsel], are you satisfied with everything the
Court's gone over so far?
DEFENSE COUNSEL: Yes.
Id. at ¶ 30.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
{¶40} The appellant in Hall relied upon the Ohio Supreme Court’s opinion in State
v. Dangler, 162 St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, to argue the trial court’s
explanation was inadequate. In Dangler, the Supreme Court held the trial court’s failure
to separately go over the sex offender registration and in-person verification
requirements, community notification provisions, and residence restrictions imposed by
the sex offender registration scheme when accepting the defendant’s no contest plea did
not constitute a complete failure to comply with the criminal procedure rule governing
pleas of guilty and no contest in felony cases. Id. at ¶ 31 citing Dangler at syllabus. The
trial court was only required to substantially comply during the Crim.R. 11 colloquy
because while the sex offender duties were punitive in nature and part of the maximum
penalty imposed, the Court found the duty to enroll in the registry was a non-constitutional
aspect of the defendant’s plea and therefore the defendant was required to establish that
he was prejudiced. Id.{¶41} The Second District found the appellant’s reliance upon Dangler was
misplaced because the Twelfth District Court of Appeals held the requirement to register
with the VOD is remedial in nature, not punitive. Id. at ¶ 32 citing State v. Hubbard, 2020-
Ohio-856, 146 N.E.3d 593, ¶ 32 (12th Dist.):
“[C]lassification as a violent offender and enrollment into the violent offender
database “is a collateral consequence of the offender's criminal acts rather
than a form of punishment per se.” Id., citing State v. Ferguson, 120 Ohio
St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 34.
“To argue the trial court has to inform defendant-appellant of
all of the possible consequences of his plea is untenable. For
[Cite as State v. Tupuola, 2021-Ohio-2577.]
example, the trial court does not have to inform defendant-
appellant of all the ‘effects’ of his plea such as the potential
for losing his/her job, home, marriage, reputation or that
his/her plea to a felony will deprive him/her the right to vote
and/or possess a firearm.”
State v. Craver, 2d Dist. Montgomery No. 25804, 2014-Ohio-3635, 2014
WL 4176073, ¶ 14, citing State v. Rice, 8th Dist. Cuyahoga No. 72685, 1999
WL 125742, *4 (Feb. 18, 1999).
State v. Hall, 2nd Dist. Montgomery No. 28882, 2021-Ohio-1894, 2021 WL 2285305, ¶
32.
{¶42} The Second District concluded that because the VOD was a non-
constitutional aspect of the appellant’s guilty plea and a collateral consequence of his
actions, the trial court was not required to inform the appellant of all his duties about
registering as a violent offender. Id. at ¶ 33. The court further held that on the record
before it, the trial court substantially complied with Crim.R. 11 regarding informing the
appellant of his duty to register with the VOD:
Specifically, [the appellant] signed the plea form for the kidnapping charge
which indicated that by pleading guilty to that count, he would have to
register as a violent offender. Additionally, the trial court advised [the
appellant] that he would have a duty to register with the VOD, and at the
time of sentencing, it would review all of the duties with him with respect to
registration. Significantly, the trial court and the State put [the appellant] on
notice at the plea hearing that if he wanted to rebut the presumption of
[Cite as State v. Tupuola, 2021-Ohio-2577.]
having to register with the VOD, he would have to file a motion prior to
sentencing. As stated above, the trial court advised defense counsel to
discuss the VOD registration with [the appellant], and defense counsel
stated that he understood. The record establishes that neither [the
appellant] nor his counsel filed a motion prior to sentencing in order to rebut
the presumption of having to register as a violent offender. Finally, at
sentencing, [the appellant] was advised of all his duties to register as a
violent offender, and he signed a Notice of Duties to Enroll as a Violent
Offender (O.R.C. 2903.41 et seq.).
Id. at ¶ 33.
{¶43} The facts of this case are comparable to those in State v. Hall where the
Second District found the trial court substantially complied with Crim.R. 11 to advise the
appellant of his duties to register as a violent offender. While Tupuola has not argued in
her appeal that the trial court violated Crim.R. 11, the facts of this case are in alignment
with Hall to find that trial court made no error when it advised Tupuola of her duties
pursuant to the VOD. First, Tupuola signed a plea agreement form, which indicated that
she was a mandatory registrant as a violent offender. Tupuola acknowledged she
received “Notice of Violent Offender Database Provisions.” The “Notice of Violent
Offender Database Provisions” provided to Tupuola stated in pertinent part:
You have been convicted of or pleaded guilty to an offense under Ohio law
that triggers provisions related to a database for “violent offenders.” * * *
You are hereby informed of the following matters.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
Classification as Violent Offender. Because you have been convicted or
pleaded guilty to one or more such offenses, you are classified as a violent
offender under Ohio law.
Presumption of Ten-Year Duty. It is presumed that you shall be required
to enroll in the violent offender database with respect to the offense(s) that
classify you as a violent offender and shall have all violent offender
database duties with respect to such offense(s) for ten years after you
initially enroll in the database.
Filing Motion to Rebut Presumption. The presumption is rebuttable. If
you wish to rebut the presumption, you must file a motion to rebut with the
court and serve a copy on the prosecutor. The motion shall assert you were
not the principal offender * * * and shall request that the court not require
you to enroll in the violent offender database * * *. * * * If no motion to rebut
is filed, you shall be required to enroll in the violent offender database with
respect to the offense(s) that classify you as violent offender and shall have
all VOD duties with respect to that offense for ten years after you initially
enroll in the database.
Hearing and Determination. If you file a motion to rebut, you will have the
burden of proving to the court, by a preponderance of the evidence, that
you were not the principal offender in the commission of any of the
offense(s) that classify you as a violent offender. * * *
Factors Considered. Even if the presumption is rebutted and the court
finds you were not the principal offender, the court will still make a
[Cite as State v. Tupuola, 2021-Ohio-2577.]
determination whether you should have VOD duties. In making that
determination, the court shall consider all of the following factors: (i) whether
you have any convictions for any offense of violence, prior to the offense(s)
that classify you as a violent offender, and whether those prior convictions,
if any, indicate you have a propensity for violence; (ii) the results of a risk
assessment of you * * *; (iii) the degree of your culpability or involvement in
the offense at issue * * *; (iv) the public interest and safety.
(Notice of Violent-Offender Database Provisions, Sept. 15, 2020).
{¶44} Second, at the change of plea hearing, the trial court advised Tupuola
during the plea colloquy that if it found her guilty of attempted murder, she would be
required to register in the VOD and explained the procedures therein. The trial court
confirmed with Tupuola that her trial counsel had reviewed with her the procedures and
requirements of the VOD. Third, at the sentencing hearing, the trial court again confirmed
that Tupuola was aware of her duty to enroll in the VOD and the elements thereof.
Tupuola affirmed that her trial counsel had reviewed with her the requirements of the
violent offender database. Tupuola was advised of her duties as to the VOD both in written
and verbal format, at the change of plea hearing and sentencing hearing. We find the trial
court complied with the notification requirements of the VOD.
{¶45} In Hall, the Second District finally noted that assuming arguendo the trial
court did not comply with Crim.R. 11 when it failed to advise the appellant of all the duties
associated with the VOD, it found the appellant could not establish he was prejudiced and
would not have otherwise pleaded guilty. (Emphasis sic.) State v. Hall, 2021-Ohio-1894,
¶ 34. The only method for the appellant to rebut the presumption of having to register as
[Cite as State v. Tupuola, 2021-Ohio-2577.]
a violent offender was to file a motion with the trial court arguing that he was not the
principal offender. Id. The court stated the appellant could not advance that argument
because the record clearly showed that he was the sole perpetrator of the offenses,
thereby making it “nigh impossible” for him to rebut the presumption that he was not the
principal offender. Id.{¶46} In the present case, we find it is likewise “nigh impossible” for Tupuola to
rebut the presumption that she was not the principal offender of the offense of attempted
murder. Upon her change of plea, the State entered the recitation of the facts into the
record. The facts show that Tupuola fired multiple gunshots into the victim’s car while he
was in the car, striking his seat and headrest. Tupuola was the sole perpetrator of the
offense of attempted murder committed on May 3, 2020.
{¶47} Tupuola’s third Assignment of Error is overruled.
Ineffective Assistance of Counsel
{¶48} This analysis leads to Tupuola’s argument in her second Assignment of
Error where she contends her trial counsel erred when it failed to file a motion to rebut
the presumption that she was not the principal offender. Based on our analysis above
and consideration of the Strickland factors, we find that Tupuola received competent
representation and the proceeding would have been no different if the motion had been
filed. Tupuola’s second Assignment of Error is overruled as to the VOD.
IV. Ineffective Assistance of Counsel and Change of Plea
{¶49} In her second Assignment of Error, Tupuola contends she received the
ineffective assistance of counsel when she was advised to plead guilty to the charge of
attempted murder. We disagree.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
{¶50} We earlier reviewed the Strickland factors to determine if there was
ineffective assistance of counsel. As explained by our colleagues from the Eighth District
in State v. Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11:
A defendant who pleads guilty waives all appealable issues, including the
right to assert an ineffective assistance of counsel claim, except the
defendant may claim ineffective assistance of counsel on the basis that the
counsel's deficient performance caused the plea to be less than knowing,
intelligent, and voluntary. In such cases, a defendant can prevail only by
demonstrating that there is a reasonable probability that, but for counsel's
deficient performance, he would not have pleaded guilty and would have
insisted on going to trial. (Citations omitted.)
State v. Miller, 5th Dist. Stark No. 2019CA00046, 2019-Ohio-4275, 2019 WL 5268633, ¶
13
{¶51} Tupuola contends her trial counsel was ineffective for advising her to plead
guilty to attempted murder because the events on May 3, 2020 did not meet the elements
of attempted murder. She specifically argues that her actions did not meet the element of
“purposefully” as statutorily defined. R.C. 2923.02(A) states, “No person, purposely or
knowingly, and when purpose or knowledge is sufficient culpability for the commission of
an offense, shall engage in conduct that, if successful, would constitute or result in the
offense.” R.C. 2903.02(A) provides, “No person shall purposely cause the death of
another * * *.” A person acts purposely when he or she specifically intends to cause a
particular result. R.C. 2901.22(A). Tupuola contends there was no evidence presented
that she specifically intended to kill the victim when she shot at him from her moving
[Cite as State v. Tupuola, 2021-Ohio-2577.]
vehicle into his moving vehicle, striking his seat and headrest. Even if the victim was hit
by one of the bullets, Tupuola argues, there was no evidence that he would have died.
{¶52} We have insufficient facts in the record before us to evaluate the merits of
Tupuola’s underlying premise. Tupuola did not move to withdraw her guilty plea under
Crim.R. 32.1. The facts presented by the State at the change of plea hearing stated
Tupuola followed the victim in her car, she purposefully fired a gun into the car, the bullets
fired by Tupuola struck the seat in which the victim was sitting, and Tupuola fled the
scene. Based on the events on May 3, 2020, Tupuola was originally indicted on eight
charges and the plea agreement reduced the charges to three counts: attempted murder
and two counts of child endangering. She cannot establish her trial counsel was deficient.
{¶53} Tupuola’s second Assignment of Error arguing her trial counsel was
inefficient in relation to her guilty plea is overruled.
V. Sentencing
{¶54} In her final Assignment of Error, Tupuola argues her sentence was
disproportionate to the sentencing factors. We disagree.
{¶55} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court's findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
[Cite as State v. Tupuola, 2021-Ohio-2577.]
{¶56} Nothing in R.C. 2953.08(G)(2) permits this court to independently weigh the
evidence in the record and substitute its own judgment for that of the trial court to
determine a sentence that best reflects compliance with R.C. 2929.11 and R.C. 2929.12.
State v. Jones, 169 N.E.3d 649, 2020-Ohio-6729, ¶ 42.
{¶57} This Court is, therefore, without authority to disturb Tupuola’s sentence
absent a finding by clear and convincing evidence that the record does not support the
trial court's findings under R.C. 2929.11 and R.C. 2929.12. Instead, we may only
determine if the sentence is contrary to law.
{¶58} A sentence is not clearly and convincingly contrary to law where the trial
court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.” State v. Pettorini, 5th Dist. Licking No. 2020 CA
00057, 2021-Ohio-1512, 2021 WL 1714216, ¶¶ 14-16 quoting State v. Dinka, 12th Dist.
Warren Nos. CA2019-03-022 & CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶59} Tupuola does not argue her sentence is not within the permissible statutory
range. Rather, Tupuola argues the trial court did not consider the history of domestic
violence suffered by Tupuola during her relationship with the victim. The trial court
ordered a presentence investigation report, which showed Tupuola had a criminal history
including a conviction for having a firearm in a motor vehicle after a reported attempt to
run over a man with her car and aggravated menacing involving a knife. While she was
in jail pending trial, Tupuola had her privileges taken away due to her behavior.
{¶60} Based on the foregoing, we find the trial court did not err in sentencing
Tupuola to a stated minimum prison term of seven (7) years for an aggregate minimum
[Cite as State v. Tupuola, 2021-Ohio-2577.]
prison term of ten (10) years and an aggregate indefinite maximum prison term of thirteen
and one-half (13½) years.
{¶61} Tupuola’s fourth Assignment of Error is overruled.
CONCLUSION
{¶62} The judgment of the Muskingum County Court of Common Pleas is affirmed.
By: Delaney, J.,
Baldwin, P.J. and
Hoffman, J., concur.