[Cite as State v. McGinnis, 2014-Ohio-2385.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99918
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSHUA McGINNIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-560516-A
BEFORE: Blackmon, J., Kilbane, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: June 5, 2014
-i-
ATTORNEY FOR APPELLANT
Edward M. Graham
13363 Madison Avenue
Lakewood, Ohio 44107
Joshua McGinnis
#641-433
BE.C.I.
P.O. Box 540
St. Clairsville, Ohio 43950
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Joshua McGinnis appeals the trial court’s denial of his
postsentence motion to withdraw his guilty plea and assigns the following error for our
review:
I. The trial court committed plain error in accepting appellant’s plea that
was not made knowingly, intelligently, and voluntarily.
{¶2} Having reviewed the record and pertinent law, we affirm McGinnis’s
conviction, but vacate his classification as a Tier III sex offender, and remand this case to
the common pleas court to conduct a reclassification hearing. The apposite facts follow.
{¶3} On April 25, 2012, the Cuyahoga County Grand Jury indicted McGinnis on
three counts of rape with a furthermore specification that the victim was less than ten
years of age. The grand jury also indicted McGinnis on one count each of gross sexual
imposition and kidnapping with a sexual motivation specification attached.
{¶4} On March 26, 2013, pursuant to a plea agreement with the state, McGinnis
pleaded guilty to one count of rape that was amended to delete the furthermore
specification. McGinnis also pleaded guilty to the gross sexual imposition charge, and
the state dismissed the remaining counts.
{¶5} On April 24, 2013, the trial court sentenced McGinnis to an aggregate prison
term of ten years, with five years of mandatory postrelease control, and classified him as a
Tier III sex offender.
Guilty Plea
{¶6} In the sole assigned error, McGinnis argues his guilty plea was not
knowingly, intelligently, and voluntarily made.
{¶7} When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution. State v. Hanson, 8th Dist. Cuyahoga No. 99362,
2013-Ohio-3916, citing State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660
N.E.2d 450.
{¶8} To ensure that a plea to a felony charge is knowingly, intelligently, and
voluntarily entered into, a trial court must follow the dictates of Crim.R. 11(C)(2). This
provision provides that the court must address defendants personally and (1) determine
that they understand the nature of the charges against them and of the maximum penalty
involved, (2) inform them of and determine that they understand the effect of a plea of
guilty or no contest and that the court may proceed with judgment and sentence, and (3)
inform them of and determine that they understand the constitutional rights that they are
giving up by entering into their plea. Crim.R. 11(C)(2)(a) - (c). The United States
Supreme Court specified a defendant’s constitutional rights as (1) the Fifth Amendment
privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the
right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709,
23 L.Ed.2d 274 (1969).
{¶9} Crim.R. 11(C)(2)(c) sets forth a defendant’s constitutional rights as follows:
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 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.
{¶10} In differentiating between constitutional rights and nonconstitutional rights
under Crim.R. 11(C), courts have held that strict compliance with the rule is required if
the appellant raises a constitutional right delineated in Crim.R. 11(C)(2)(c). State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Substantial
compliance, however, is the standard when the appellant raises a violation of a
nonconstitutional right outlined in Crim.R. 11(C)(2)(a) and (b). State v. Drake, 8th Dist.
Cuyahoga No. 98640, 2013-Ohio-1984, ¶ 5, citing State v. Stewart, 51 Ohio St.2d 86, 364
N.E.2d 1163 (1977).
{¶11} This court conducts a de novo review to determine whether the trial court
accepted a plea in compliance with Crim.R. 11(C). State v. Cardwell, 8th Dist.
Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing Stewart, supra. “We are required to
review the totality of the circumstances and determine whether the plea hearing was in
compliance with Crim.R. 11(C).” State v. Schmick, 8th Dist. Cuyahoga No. 95210,
2011-Ohio-2263, ¶ 6.
{¶12} In the instant case, McGinnis only raises one issue with respect to the trial
court’s lack of compliance with Crim.R. 11. He contends that the trial court erred
because it failed to review the notice requirements concerning sexual offender
classification obligations and the penalty for failure to comply.
{¶13} Our review of the record herein shows that the trial court explained the
constitutional rights McGinnis would be waiving by entering a plea of guilty, and
McGinnis expressed his understanding of those rights. The trial court also reviewed with
McGinnis the nature of the offenses and the potential penalties involved. In addition,
defense counsel indicated, and McGinnis conceded, that they had discussed the matter
numerous times, that McGinnis was aware of his constitutional rights, and that his plea
was being entered knowingly, intelligently, and voluntarily. As such, the trial court
strictly complied with the constitutional requirements of Crim.R. 11(C).
{¶14} Turning our attention to the nonconstitutional issue raised regarding the trial
court’s alleged failure to review the notice requirement of the sex offender classification,
the following discussion took place:
Prosecutor: * * * In addition, your Honor, by pleading guilty to those two
counts of the indictment, this defendant will automatically be
labeled a Tier III sex offender which will require him to
register every 90 days for the rest of his life, and cannot live
within 1,000 feet of a school, or religious facility, or any place
where there are children. Tr. 17.
***
The Court: The government has indicated, and as part and parcel of the
plea agreement with you, that you would be classified as a
Tier III sex offender for which we will review in a few
minutes. Do you understand?
The Defendant: Yes.
***
The Court: * * * And what has been spread on the record is that the
government would make an amendment on count one to
simple rape for a felony of the first degree, and that you
would plead guilty to count 4, which is gross sexual
imposition, a felony of the third degree. You would be
classified as a Tier III sexual offender, and they would delete
the age and furthermore specification in each indictment. Tr.
26-27.
{¶15} After McGinnis pleaded guilty, the following exchange took place:
The Court: Does the government want his rights — sexual classification
rights done now, or at the time of sentencing?
Prosecutor: It’s up to the Court, your Honor. He has been made aware
that he’s a sexual Tier III offender, and what his requirements
are will have to be read at sentencing, as well.
The Court: Okay. I’ll do it at sentencing. Tr. 29.
{¶16} Here, there is no dispute that the trial court elected not to review the notice
requirement of the sex offender classification at the time McGinnis entered his plea.
However, after reviewing the excerpt above, and elsewhere in the record, we have
determined that the trial court substantially complied with the nonconstitutional mandates
of Crim.R. 11(C).
{¶17} The excerpt above reveals that the prosecutor, in outlining the plea
agreement, indicated that McGinnis would automatically be labeled a Tier III sex
offender, that he was required to register every 90 days for life, that he was prohibited
from living within 1,000 feet of a school, religious facility, or any place where there were
children. The above excerpt also reveals that the trial court indicated three times that
McGinnis would be classified as a Tier III sex offender. Thus, when viewed under the
totality of the circumstances, one could easily conclude that McGinnis understood that he
would be classified as a sex offender and was subject to the attendant reporting
requirements, despite the trial court’s decision to review the requirements at sentencing.
{¶18} Furthermore, a defendant must show prejudice before a plea will be vacated
for a trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects
of the colloquy are at issue. Veney at ¶ 14-17. The test for prejudice is whether the plea
would have otherwise been made. Id. at ¶ 15.
There is nothing in the record to suggest that McGinnis would not have pleaded guilty if
the trial court had reviewed the sex offender classification notice requirement.
{¶19} On the contrary, the record supports that McGinnis was motivated to accept
the plea agreement. In this regard, defense counsel stated:
The only reason that he’s standing here is because the exposure is so
astronomical in the event that 12 people believe that he sexually assaulted
or raped a girl under ten years old, its life, and the risk was just too
great for Mr. McGinnis to withstand. Tr. 46.
As such, we conclude that McGinnis knowingly, intelligently, and voluntarily pleaded
guilty. Consequently, we affirm McGinnis’s convictions.
Sex Offender Registration
{¶20} As discussed above, we concluded that McGinnis entered his plea
knowingly, intelligently, and voluntarily. We also underscore that McGinnis was very
motivated to enter the plea because of the risk of a life sentence in the event that the jury
found him guilty with the furthermore specification that the victim was less than ten years
of age. Thus, at this juncture, our only question is whether McGinnis was prejudiced by
the trial court classifying him as a Tier III offender. For the reasons that follow, we
conclude McGinnis was not prejudiced.
{¶21} In 1996, the General Assembly enacted Am.Sub.H.B. 180 (“Megan’s
Law”), which amended the state’s sex offender registration process. State v. Cook, 83
Ohio St.3d 404, 406, 1998-Ohio-291, 700 N.E.2d 570. Portions of Megan’s Law became
effective January 1, 1997, and other portions of the law became effective July 1, 1997.
Id.
{¶22} Effective January 1, 2008, the General Assembly repealed Megan’s Law and
replaced it with the Adam Walsh Act (“S.B. 10”). State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753, ¶ 20. S.B. 10 eliminated the categories of “sexually
oriented offender,” “habitual sex offender,” and “sexual predator” under Megan’s Law
and replaced them with a three-tiered classification system. Id. at ¶ 21.
{¶23} Under the new classification system adopted by S.B. 10, a trial court must
designate the offender as either a Tier I, II, or III sex offender. R.C. 2950.01. “The new
classification system places a much greater limit on the discretion of the trial court to
categorize the offender, as S.B. 10 requires the trial court to simply place the offender
into one of the three tiers based on their offense.” In re Copeland, 3d Dist. Allen No.
1-08-40, 2009-Ohio-190, ¶ 10.
{¶24} At the plea hearing, the state of Ohio and McGinnis agreed that the sex
offenses occurred from January 2, 2007 through August 31, 2007. The state of Ohio
concedes that although the prosecutor told the court and defense counsel agreed that,
pursuant to the plea agreement, McGinnis would automatically be labeled a Tier III
offender, he should have been classified under Megan’s Law based on the dates of the
offenses. The state of Ohio asks that we remand the matter to the trial court for the
limited purpose of conducting an H.B. 180 hearing under Megan’s Law.
{¶25} McGinnis argues his plea was not knowingly, intelligently, and voluntarily
made because of the trial court’s incorrect pronouncements and subsequent classification.
As such, McGinnis contends his plea must be vacated. In support of his argument,
McGinnis urges that we follow State v. Hawkins, 2d Dist. Greene No. 2012-CA-49,
2013-Ohio-2572.
{¶26} In Hawkins, the defendant pled guilty to two counts of sexual battery, in
violation of R.C. 2907.03(A)(2). The trial court accepted the plea, sentenced him to six
years in prison, and classified him as a Tier III sex offender. Defendant appealed and
argued that his plea was not made knowingly, intelligently, and voluntarily. Id.
{¶27} The appellate court held that the trial court erred by failing to address the
basic obligation imposed on the defendant by the Adam Walsh Act, R.C. Chapter 2950,
which was punitive, before accepting defendant’s guilty plea. The duty was a
nonconstitutional requirement of Crim.R. 11. The trial court did not substantially comply
with Crim.R. 11 when it allowed the prosecutor’s misstatement about the applicable sex
offender tier level to stand uncorrected and failed to inform defendant about his
address-verification obligation every 90 days for life and about the fact that a Tier III
conviction included community notification. Id.
{¶28} The appellate court found that the trial court’s bare observation that there
would be a registration requirement was not enough, even under a substantial-compliance
standard. The trial court’s statement fell short of satisfying the trial court’s obligation
under Crim.R. 11 to advise the defendant of the basic consequences he faced under R.C.
Chapter 2950. Id.
{¶29} Hawkins, is distinguishable from the instant case. In Hawkins, the
defendant was incorrectly classified as a Tier III sex offender, when he should have been
classified as a Tier II sex offender. In addition, the trial court had an obligation to fully
apprise the defendant of the applicable registration, verification, and notification
requirements before accepting the plea. In Hawkins, the defendant was incorrectly
classified under the right law. As opposed to the instant case, where the trial court
classified the defendant under the wrong law — Adam Walsh Act instead of Megan’s
Law.
{¶30} Here, had McGinnis been properly classified under Megan’s Law, the trial
court would have had no obligation to inform him of the applicable registration,
verification, and notification requirements before accepting his guilty plea. Hawkins,
citing State v. Stape, 2d Dist. Montgomery No. 22586, 2009-Ohio-420, ¶19. Those
requirements were considered remedial, collateral consequences of the underlying sex
offense. Therefore, Crim.R. 11 imposed no duty on a trial court to mention them. Id.
{¶31} Because the notification obligation under Megan’s Law were considered
remedial, collateral consequences of the underlying sex offense, McGinnis was not
prejudiced when the trial court incorrectly stated at the plea hearing that he would be
classified as a Tier III sex offender and then opted to defer review of the basic registration
requirements until the sentencing hearing.
{¶32} We conclude McGinnis’s plea was not rendered less knowingly,
intelligently, and voluntarily because of the trial court’s incorrect pronouncement and
subsequent Tier III classification. However, he must be re-classified under Megan’s
Law. Accordingly, we overrule in part and sustain in part, McGinnis’s sole assigned
error.
{¶33} Judgment affirmed in part, reversed in part, and the matter is remanded for
the trial court to conduct an H.B. 180 hearing with the limited purpose of reclassifying
McGinnis in accordance with Megan’s Law.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, P.J., and
MELODY J. STEWART, J., CONCUR