[Cite as State v. Boggan, 2014-Ohio-1428.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100096
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
STEVE BOGGAN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-566632
BEFORE: Keough, J., Boyle, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 3, 2014
ATTORNEY FOR APPELLANT
Rick Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Jennifer A. Driscoll
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Steve Boggan, appeals his conviction for rape and
gross sexual imposition. Finding no merit to the appeal, we affirm.
I. Background
{¶2} Boggan was charged in a 14-count indictment with six counts of rape with
sexually violent predator specifications; four counts of gross sexual imposition with
sexually violent predator specification; and four counts of kidnapping with sexual
motivation and sexually violent predator specifications. The indictment stemmed from
Boggan’s sexual abuse of three young children.
{¶3} At a plea hearing, Boggan pleaded guilty to three counts of gross sexual
imposition, as amended, in violation of R.C. 2907.04(A)(4), felonies of the third degree,
and three counts of rape, as amended, in violation of R.C. 2907.02(A)(2), felonies of the
first degree; the remaining counts were dismissed. The trial court sentenced him to an
aggregate term of 27 years incarceration. Boggan appeals from this judgment.
II. Analysis
{¶4} In his single assignment of error, Boggan contends that the trial court did
not comply with Crim.R. 11 when accepting his plea because it did not explain to him the
“total possible consequences” of his plea. Specifically, Boggan contends that as a Tier
III sexual predator, upon his release from prison, he must verify his address every 90 days
for life with the sheriff of the county in which he resides. R.C. 2950.06(B)(3) and
2950.07(B)(1). Boggan contends that his plea was not knowingly, voluntarily, or
intelligently made because the trial court did not advise him that the failure to verify is a
third-degree felony that would subject him to three to five years incarceration.1
{¶5} Under Crim.R. 11(C)(2), before accepting a guilty plea in a felony matter, a
trial court must personally address the defendant and (1) determine that the defendant is
making the plea voluntarily, with an understanding of the nature of the charges and the
maximum penalty; (2) inform the defendant of and determine that the defendant
understands the effect of the plea, and that the court may proceed with judgment after
accepting the plea; and (3) inform the defendant and determine that the defendant
understands that he is waiving his constitutional rights to a jury trial, to confront the
witnesses against him, to call witnesses in his favor, and to require the state to prove his
guilt beyond a reasonable doubt at a trial where the defendant cannot be forced to testify
against himself.
{¶6} A trial court must strictly comply with the mandates of Crim.R. 11(C)(2)(c)
regarding the waiver of constitutional rights, meaning the court must actually inform the
defendant of the constitutional rights he is waiving and make sure the defendant
understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d
621, ¶ 27. With respect to the other requirements of Crim.R. 11(C)(2)(a) and (b)
Boggan’s assertion about the degree of felony and possible punishment is incorrect. Under
1
Megan’s Law, failure to notify of a change of address was a felony of the third degree. Former R.C.
2950.99. Under the Adam Walsh Act, effective January 1, 2008, and under which Boggan was
sentenced, failure to notify of a change of address is a felony of the same degree as the offender’s
most serious underlying sexually oriented offense. Because Boggan pleaded guilty to rape, a felony
of the first degree, any failure to report is a first-degree felony that would subject him to a mandatory
prison term of three to eleven years. R.C. 2950.99(A)(1)(a)(ii) and 2929.14(A)(1).
regarding nonconstitutional rights, reviewing courts consider whether the trial court
substantially complied with the rule. State v. Ballard, 66 Ohio St.2d 473, 476 N.E.2d
115 (1981). “Substantial compliance means that under the totality of the circumstances,
the defendant subjectively understands the implications of his plea and the rights he is
waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “If it appears
from the record that the defendant appreciated the effect of his plea and his waiver of
rights in spite of the trial court’s error, there is still substantial compliance.” State v.
Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995), citing Nero at
108.
{¶7} 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, 120 Ohio St.3d at ¶ 17.
The test for prejudice is whether the plea would have otherwise been made. Nero at 108.
{¶8} Boggan contends that he did not understand the nature of the charges and the
maximum penalty involved because the trial court did not advise him that his plea
exposed him to a new felony for failure to verify and the potential penalties for that crime.
The rights contained in Crim.R. 11(C)(2)(a) regarding the defendant’s understanding of
the charges and the maximum penalty involved are nonconstitutional; thus, substantial
compliance is sufficient.
{¶9} The record reflects that the trial court extensively advised Boggan of the Tier
III reporting obligations required every 90 days for the rest of his life under the Adam
Walsh Act. The trial court further advised Boggan that if he failed to comply with the
law, he “would be subject to the additional crime of failure to verify [his] address” and
then asked him if he understood. Boggan responded affirmatively.
{¶10} In State v. McDuffie, 8th Dist. Cuyahoga No. 96721, 2011-Ohio-6436, this
court concluded that an advisement of the term of postrelease control, coupled with an
advisement that the defendant could face additional prison time if he violated postrelease
control, substantially complied with Crim.R. 11(C)(2)(a). Likewise, we find that the trial
court’s advisement to Boggan that he would be required to verify his address every 90
days for the rest of his life and would be subject to the “additional crime of failure to
verify” should he fail to comply substantially complied with the requirements of Crim.R.
11(C)(2)(a).
{¶11} The record reflects that under the totality of the circumstances, Boggan
subjectively understood the implications of his plea and the rights he was waiving.
Furthermore, he has failed to demonstrate or even allege any prejudicial effect of the trial
court’s alleged error; i.e., that he would not have pled guilty if the trial court had
informed him of the possible prison sentence for failing to verify his address. Simply
put, he has not presented any evidence that the trial court’s advisement regarding the
consequences of failing to verify his address affected his decision to plead guilty in any
way. Without any evidence that the plea would not have otherwise been made, Boggan
has not met his burden of showing prejudice that would necessitate vacating his plea.
See, e.g., State v. Soltis, 8th Dist. Cuyahoga No. 92574, 2009-Ohio-6636, ¶ 22 (plea not
vacated where defendant presented no evidence nor argued that he would not have
entered his plea if he had known of the consequences of violating postrelease control);
State v. Alfarano, 1st Dist. Hamilton No. C-061030, 2008-Ohio-3476 (no prejudice found
and plea not vacated where defendant made no allegation he would not have pled guilty if
he had known the mandatory term of postrelease control was five years, not three years as
advised by the trial court).
{¶12} The assignment of error is overruled.
{¶13} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR