[Cite as State v. Hagan, 2019-Ohio-1047.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-07-136
: OPINION
- vs - 3/25/2019
:
JESSE LEE HAGAN, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2018-02-0357
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Scott N. Blauvelt, 315 South Monument, Hamilton, Ohio 45011, for appellant
S. POWELL, J.
{¶ 1} Appellant, Jesse Lee Hagan, appeals from his conviction and sentence in the
Butler County Court of Common Pleas after he pled guilty to one count of third-degree
felony sexual battery. For the reasons outlined below, we affirm.
Facts and Procedural History
{¶ 2} On March 28, 2018, the Butler County Grand Jury returned a three-count
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indictment charging Hagan with single counts of gross sexual imposition, rape, and sexual
battery. According to the bill of particulars, the charges arose after Hagan, an adoptive
parent, stepparent, guardian, custodian, or person in loco parentis to the 14-year-old victim,
was alleged to have touched the victim’s vagina or breasts or both for purposes of sexual
gratification or arousal. The bill of particulars also alleged Hagan had digitally penetrated
the victim.
{¶ 3} On May 10, 2018, Hagan entered into a plea agreement and agreed to plead
guilty to one count of third-degree felony sexual battery in exchange for the remaining
charges against him being dismissed. As part of his plea agreement, Hagan executed a
plea form noting his intent to plead guilty to the sexual battery offense. As relevant here,
the plea form stated:
Upon conviction Defendant will be designated a Tier III sex
offender requiring in-person verification every 90 days for life
among other restrictions including a prohibition from living within
1000 feet of a school.
{¶ 4} After Hagan executed the plea form, a plea hearing was held before the trial
court. During this hearing, Hagan acknowledged that he had read and signed the plea form
with a full understanding of its contents after conferring with his trial counsel. This included
the fact that he would be subject to various requirements and restrictions as a Tier III sex
offender.
{¶ 5} After confirming Hagan had read and signed the plea form, the trial court
addressed Hagan and stated the following:
THE COURT: The Court understands that you are entering a
guilty plea to Count III. That is sexual battery, a felony of the
third degree. Please understand that as a result of this plea this
Court could sentence you to 60 months in prison and impose a
fine in the amount of $10,000.
Also you will be designated a tier 3 sex offender and that will
require that you register in person for verification every 90 days
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for the rest of your life. There will be other restrictions which will
include a prohibition from moving within a thousand feet of a
school. Do you understand that?
THE DEFENDANT: Yes.
{¶ 6} Further into the proceedings, the trial court again addressed Hagan and
stated the following:
THE COURT: Do you have any questions about anything that
we discussed?
THE DEFENDANT: No.
THE COURT: Do you have any questions about anything that
we have not discussed?
THE DEFENDANT: No.
THE COURT: Do you have any questions about anything that's
on this plea form that you told me you signed?
THE DEFENDANT: No.
{¶ 7} Hagan then entered his plea of guilty, which the trial court accepted. Upon
accepting Hagan's guilty plea, the trial court ordered a presentence-investigative report and
scheduled the matter for sentencing.
{¶ 8} On June 14, 2018, the parties reconvened for purposes of sentencing. During
this hearing, but prior to issuing its sentencing decision, the trial court noted that it had
considered the necessary sentencing statutes, R.C. 2929.11 and 2929.12, as well as "the
record, the charge, the statements made at this hearing, the letter that I received from Mr.
Hagan, the victim impact statements and the pre-sentence investigation report."
{¶ 9} The trial court also noted that Hagan had previously served time in prison after
he was convicted of trafficking in heroin. The trial court further noted that following Hagan's
release from prison that "[w]hile he was under supervision to the parole authority he violated
his post-release control and completed the River City program."
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{¶ 10} Continuing, the trial court stated:
The Court notes within the specifics to the facts of this case, that
the Defendant did hold a special – had a relationship of trust
with the victim in this case. The victim perceived him to be a
father figure and he likewise perceived to be her (sic) a
daughter-like figure. And the Court finds he used that position
of trust in facilitating this offense.
{¶ 11} Concluding, the trial court noted the "serious nature of this offense and the
age of this victim. The victim was 14 years old when this offense occurred." The trial court
then issued its sentencing decision and sentenced Hagan to serve 42 months in prison.
The trial court also ordered Hagan to pay court costs and notified Hagan that he would be
subject to a mandatory five-year postrelease control term.
Appeal
{¶ 12} Hagan now appeals from his conviction and sentence, raising two
assignments of error for review.
{¶ 13} Assignment of Error No. 1:
{¶ 14} THE TRIAL COURT ERRED IN ACCEPTING A GUILTY PLEA WHICH WAS
NOT KNOWING, INTELLIGENT AND VOLUNTARY.
{¶ 15} In his first assignment of error, Hagan argues his guilty plea was not entered
knowingly, intelligently, and voluntarily since the trial court failed to explicitly advise him, as
a Tier III sex offender, that he would be subject to a mandatory community notification
requirement as provided for by R.C. 2950.11(F)(1)(a) as part of its Crim.R. 11(C) plea
colloquy. According to Hagan, this constitutes a complete failure on behalf of trial court to
comply with Crim.R. 11(C)(2)(a), thereby necessitating his guilty plea be vacated without
the need to show prejudice. We disagree.
Standard of Review: Knowing, Intelligent, and Voluntary Guilty Plea
{¶ 16} When a defendant enters a guilty plea in a criminal case, the plea must be
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knowingly, intelligently, and voluntarily made. State v. Mosley, 12th Dist. Warren No.
CA2014-12-142, 2015-Ohio-3108, ¶ 6. "Failure on any of those points 'renders
enforcement of the plea unconstitutional under both the United States Constitution and the
Ohio Constitution.'" State v. McQueeney, 148 Ohio App.3d 606, 2002-Ohio-3731, ¶ 18
(12th Dist.), quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). To ensure that a
defendant's guilty plea is knowingly, intelligently and voluntarily made, the trial court must
engage the defendant in a plea colloquy pursuant to Crim.R. 11(C). State v. Reynolds, 12th
Dist. Madison No. CA2018-02-005, 2018-Ohio-4942, ¶ 9.
{¶ 17} As relevant here, pursuant to Crim.R. 11(C)(2), the trial court may not accept
a defendant's guilty plea without first addressing the defendant personally and:
(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 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.
{¶ 18} A guilty plea is invalid if the trial court does not strictly comply with Crim.R.
11(C)(2)(c), which requires the trial court to verify the defendant understands the
constitutional rights he is waiving. State v. Shavers, 12th Dist. Butler No. CA2014-05-119,
2015-Ohio-1485, ¶ 9. On the other hand, the trial court need only substantially comply with
the nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and (b). State v. Floyd,
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12th Dist. Warren No. CA2016-09-077, 2017-Ohio-687, ¶ 14. Under the substantial
compliance standard, the appellate court must review the totality of the circumstances
surrounding the defendant's plea and determine whether the defendant subjectively
understood the effects of his plea. State v. Givens, 12th Dist. Butler No. CA2014-02-047,
2015-Ohio-361, ¶ 12.
Analysis
{¶ 19} As noted above, Hagan does not dispute that the trial court strictly complied
with Crim.R. 11(C)(2)(c), which requires the trial court to verify the defendant understands
the constitutional rights that he is waiving upon entering a guilty plea. Hagan also does not
dispute that he was notified of the nonconstitutional requirements of Crim.R. 11(C)(2)(b).
Hagan instead argues the trial court completely failed to comply with Crim.R. 11(C)(2)(a)
by failing to notifying him of the maximum penalty he faced since the trial court did not
explicitly advise him, as a Tier III sex offender, that he would be subject to a mandatory
community notification requirement as provided for by R.C. 2950.11(F)(1)(a) as part of its
Crim.R. 11(C) plea colloquy. We find no merit to Hagan's claim.
{¶ 20} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, the Ohio Supreme
Court found that R.C. Chapter 2950 is punitive and therefore part of the penalty imposed
upon a defendant. Id. at ¶ 16. Two years later, with full knowledge of the Ohio Supreme
Court's decision in Williams, this court found "Crim.R. 11 obligates a trial court to advise a
defendant of the basic registration requirements under R.C. Chapter 2950 before accepting
a guilty plea." State v. Butcher, 12th Dist. Butler No. CA2012-10-206, 2013-Ohio-3081, ¶
11. However, although these advisements are part of the nonconstitutional notifications
found in Crim.R. 11(C)(2)(a) and (b), we nevertheless held that "a trial court is not required
to review each of the numerous individual restrictions and requirements set forth in R.C.
Chapter 2950 to substantially comply with Crim.R. 11." Id. These requirements and
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restrictions include registration, verification, and community notification requirements, as
well as residential restrictions.
{¶ 21} Upon outlining these principles in Butcher, this court thereafter upheld
appellant's guilty plea upon finding:
In the present case, the record indicates that Butcher
subjectively understood the maximum penalty resulting from his
guilty plea, including his classification as a Tier III sex offender
and the resulting registration requirements. During the plea
hearing, the trial court correctly advised Butcher that he would
be labeled a Tier III sex offender. The trial court also notified
Butcher that he would be subject to certain registration
requirements as a result of this classification. The trial court
specifically informed Butcher that every 90 days, for the rest of
his life, he would be required to register with the sheriff of the
county where he resides. Importantly, after informing Butcher
of his Tier III classification and the lifetime reporting
requirements, the trial court specifically asked Butcher if this "in
any way change[d] what you wish to do here as far as plea," and
Butcher respond, "no."
The trial court's failure to specify that Butcher would also be
required to register with the sheriff of the county in which he
works, attends school, or "temporarily resides" does not
invalidate his plea. Rather, the totality of the circumstances
indicate that Butcher subjectively understood that by pleading
guilty to rape, he would be subjected to certain restrictions as a
Tier III sex offender. Accordingly, we find that the statements
made by the trial court with regard to Butcher's registration
requirements under R.C. Chapter 2950 were such that the trial
court substantially complied with the nonconstitutional
provisions of Crim.R.11.
(Emphasis added.) Id. at ¶ 12-13.
{¶ 22} Relying on this court's decision in Butcher, we find the statements made by
the trial court regarding the various requirements and restrictions Hagan faced as a Tier III
sex offender in this case were such that the trial court, at worst, substantially complied with
the nonconstitutional provisions of Crim.R. 11(C)(2)(a). This is true despite the fact that the
trial court failed to explicitly notify Hagan that he would be subject to a mandatory
community notification requirement. This is because, as noted above, "a trial court is not
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required to review each of the numerous individual restrictions and requirements set forth
in R.C. Chapter 2950 to substantially comply with Crim.R. 11." (Emphasis added.) Id. at ¶
11; see State v. Reeder, 12th Dist. Butler Nos. CA2013-05-075 and CA2013-07-126, 2014-
Ohio-2233, ¶ 16-19 (upholding appellant's plea upon finding "the totality of the
circumstances indicates appellant subjectively understood that by pleading guilty to rape,
he would be subjected to certain restrictions as a Tier III sex offender"); see also State v.
Creed, 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627, ¶ 17 ("[t]he fact that appellant was
not specifically informed that he would be prohibited from living within 1,000 feet of a school
does not invalidate his plea").
{¶ 23} Although not explicit, this court has already found as much in State v. Henson,
12th Dist. Butler Case No. CA2013-12-221, 2014-Ohio-3994, ¶ 13. As this court stated in
Henson:
[A] trial court is not required to review each of the numerous
individual restrictions and requirements set forth in R.C. Chapter
2950 to substantially comply with See Crim.R. 11. However,
where a trial court reviews a specific requirement set forth in
Chapter R.C. 2950, such as the requirement for community
notification, the trial court is under an obligation to provide
accurate information to the defendant. Where a trial court
affirmatively misadvises a defendant about his reporting and
notification requirements under R.C. Chapter 2950, the trial
court has failed to comply with the requirements of Crim.R.
11(C), and the defendant need not show prejudice to have his
plea vacated.
(Emphasis added. Internal citation omitted.)
{¶ 24} This court's holding in Henson demonstrates that a trial court may, but is not
required to, specifically notify a defendant of the community notification requirement when
the defendant enters a guilty plea to an offense that includes a Tier III sex offender
classification. But, although not required to do so, where the trial court does advise a
defendant of the community notification requirement, the trial court must provide the
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defendant with accurate information as it relates to that specific requirement. This includes,
as noted by Henson, the community notification requirement as provided by R.C.
2950.11(F)(1)(a). See id. at ¶ 14 (invalidating appellant's guilty plea where the trial court
incorrectly informed appellant, as a Tier III sex offender, that he would not be subject to the
community notification requirement).
{¶ 25} Our holding is further supported by the Second District Court of Appeals in
State v. Mayes, 2nd Dist. Montgomery No. 27194, 2017-Ohio-9313. In that case, just as in
the case at bar, appellant argued his guilty plea was not knowingly, intelligently, and
voluntarily entered where the trial court advised appellant, as a Tier III sex offender, that he
would be required to register every 90 days for the rest of his life as part of its Crim.R. 11(C)
plea colloquy but failed to explicitly advise appellant that he would also be subject to a
mandatory community notification requirement. Id. at ¶ 17.
{¶ 26} Finding the trial court "at least partially complied" with the requirements of
Crim.R. 11(C)(2)(a) by advising appellant of some of the requirements and restrictions
found in R.C. Chapter 2950, the Second District rejected appellant's claim that his guilty
plea was not knowingly, intelligently, and voluntarily entered. In so holding, the Second
District stated, in pertinent part, the following:
The court advised Mayes that he would be "required to register
as a Tier [III] offender every 90 days for the rest of [his] life."
Although the court does not appear to have complied completely
with Crim.R. 11, inasmuch as it did not inform Mayes "about the
fact that a Tier III conviction includes [a] community notification
[requirement]," the court at least partially complied with the rule.
Mayes says that the omission rendered his plea unknowing and
involuntary, but the mere recitation of these words falls far short
of the demonstration of prejudice that would entitle Mayes to
have his plea vacated.
(Brackets sic. Internal citations omitted.) Id. at ¶ 17; see also State v. Young, 2d Dist.
Greene No. 2013-CA-22, 2014-Ohio-2213, ¶ 20 (trial court failed to substantially comply
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with Crim.R. 11[C] by accepting appellant's guilty plea where the trial court "failed to discuss
any of the registration requirements").
{¶ 27} Mayes appealed from the Second District's decision to the Ohio Supreme
Court. The Ohio Supreme Court nevertheless declined Mayes' motion to file a delayed
appeal in 6/27/2018 Case Announcements, 2018-Ohio-2418, and thereafter denied review
in both 8/15/2018 Case Announcements, 2018-Ohio-3257, and 9/26/2018 Case
Announcements #2, 2018-Ohio-3868.
{¶ 28} Although our holding in Butcher and the Second District's holding in Mayes
are not currently under review, the Ohio Supreme Court is currently reviewing the Sixth
District Court of Appeals' holding originally pronounced in State v. Ragusa, 6th Dist. Lucas
No. L-15-1244, 2016-Ohio-3373; specifically, that before a defendant enters a plea that
results in the defendant being classified as a sex offender under R.C. Chapter 2950, "the
trial court must inform the defendant of all of the punitive consequences of entering a guilty
plea and having a * * * sex offender classification in order to substantially comply with non-
constitutional provisions of Crim.R. 11." Id. at ¶ 5.
{¶ 29} The Sixth District's holding in Ragusa has resulted in that district invalidating
several pleas upon finding the trial court failed to notify the defendant of all of the various
requirements and restrictions set forth in R.C. Chapter 2950. See, e.g., State v. Dornoff,
6th Dist. Wood No. WD-16-072, 2018-Ohio-3084 (plea invalid where trial court failed to
inform appellant of the registration requirements, community notifications, and residential
restrictions associated with being classified as a Tier II and III sexual offender prior to
accepting appellant's guilty plea); State v. Gilbert, 6th Dist. Sandusky No. S-16-047, 2018-
Ohio-879, ¶ 16 (guilty plea invalid where "the trial court's complete failure to mention the
residential restrictions outlined in R.C. 2950.034 renders [appellant's] plea involuntary and
thus invalid under Crim.R. 11[C][2]"); State v. Dangler, 6th Dist. Williams No. WM-16-010,
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2017-Ohio- 7981 (plea invalid because trial court informed defendant of Tier III classification
but not registration or notification requirements); State v. Sanders, 6th Dist. Lucas No. L-
15-1068, 2016-Ohio-1397, ¶ 8 (plea invalid because trial court informed defendant of Tier
III classification but not registration requirements); State v. McMahon, 6th Dist. Sandusky
No. S-14-036, 2015-Ohio-3300, ¶ 15 (plea invalid where trial court did not inform defendant
of classification level or its implications, including registration and community notification
requirements of R.C. Chapter 2950); see also State v. Tebary, 6th Dist. Lucas No. L-15-
1235, 2016-Ohio-3095, ¶ 7-10 (upholding appellant's guilty plea where trial court notified
appellant he would be subject to registration, verification, and community notification
requirements, as well as residential restrictions, even though trial court "did not inform him
that the registration requirement was for every 90 days, for the rest of his life").
{¶ 30} Although informative, unless and until the Ohio Supreme Court affirms this
proposition of law as initially set forth by the Sixth District in Ragusa, we decline to accept
the Sixth District's holding in Ragusa and its progeny as the law of this district and adhere
to our decisions in Butcher and Henson, as well as the Second District's decision in Mayes.
{¶ 31} In light of the foregoing, we find no merit to Hagan's claim that his guilty plea
was not knowingly, intelligently, and voluntarily entered since the trial court failed to explicitly
advise him, as a Tier III sex offender, that he would be subject to a mandatory community
notification requirement as provided for by R.C. 2950.11(F)(1)(a) as part of its Crim.R. 11(C)
plea colloquy. In reaching this decision, we find it significant that the plea form read and
signed by Hagan specifically stated that upon his conviction he would be designated a Tier
III sex offender "requiring in-person verification every 90 days for life among other
restrictions including a prohibition from living within 1000 feet of a school." (Emphasis
added.)
{¶ 32} We also find significant the fact that the trial court specifically addressed
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Hagan at the plea hearing and stated:
THE COURT: The Court understands that you are entering a
guilty plea to Count III. That is sexual battery, a felony of the
third degree. Please understand that as a result of this plea this
Court could sentence you to 60 months in prison and impose a
fine in the amount of $10,000.
Also you will be designated a tier 3 sex offender and that will
require that you register in person for verification every 90 days
for the rest of your life. There will be other restrictions which will
include a prohibition from moving with a thousand feet of a
school. Do you understand that?
THE DEFENDANT: Yes.
(Emphasis added.)
{¶ 33} Further into the proceedings, the trial court again addressed Hagan and
stated:
THE COURT: Do you have any questions about anything that
we discussed?
THE DEFENDANT: No.
THE COURT: Do you have any questions about anything that
we have not discussed?
THE DEFENDANT: No.
THE COURT: Do you have any questions about anything that's
on this plea form that you told me you signed?
THE DEFENDANT: No.
{¶ 34} When reviewing the totality of the circumstances surrounding Hagan's guilty
plea, including the plea form read and signed by Hagan, we find the record supports the
trial court's finding Hagan subjectively understood the effects of his guilty plea. This
includes the fact that Hagan would be subject to certain requirements and restrictions as a
Tier III sex offender. See Butcher, 2013-Ohio-3081 at ¶ 13 ("the totality of the
circumstances indicate that Butcher subjectively understood that by pleading guilty to rape,
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he would be subjected to certain restrictions as a Tier III sex offender"); see also Reeder,
2014-Ohio-2233 at ¶ 16-19 (upholding appellant's plea upon finding "the totality of the
circumstances indicates appellant subjectively understood that by pleading guilty to rape,
he would be subjected to certain restrictions as a Tier III sex offender").
{¶ 35} Due to the generous plea agreement offered by the state, there is also nothing
in the record to indicate Hagan would not have pled guilty had the trial court explicitly
advised him of the community notification requirement. Therefore, in light of our holdings
in Butcher, Henson, and the Second District's holding in Mayes, we find that the statements
made by the trial court with regard to the various requirements and restrictions Hagan faced
as a Tier III sex offender under R.C. Chapter 2950 were such that the trial court substantially
complied with the nonconstitutional provisions of Crim.R.11(C)(2)(a). Accordingly, finding
no merit to the arguments raised herein, Hagan's first assignment of error lacks merit and
is overruled.
{¶ 36} Affirming Hagan's guilty plea in this matter, we would be remiss not to address
several issues we discovered in researching the law applicable to this case. In Henson this
court stated at ¶ 13:
We have previously found that the registration and notification
requirements set forth in R.C. Chapter 2950 are part of the
penalty imposed upon a defendant, and that "Crim.R. 11
obligates a trial court to advise a defendant of the basic
requirements under R.C. Chapter 2950 before accepting a guilty
plea."
(Emphasis added.)
{¶ 37} This court quoted this same passage in our subsequent decision in State v.
Swinson, 12th Dist. Clermont No. CA2016-05-024, 2017-Ohio-150. Specifically, this court
in Swinson stated at ¶ 16:
This court has previously found that "the registration and
notification requirements set forth in R.C. Chapter 2950 are part
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of the penalty imposed upon a defendant, and that 'Crim.R. 11
obligates a trial court to advise a defendant of the basic
requirements under R.C. Chapter 2950 before accepting a guilty
plea.'"
(Emphasis added.)
{¶ 38} This court in Henson (and by extension Swinson) extrapolated this statement
of law by quoting from this court's prior decision in Butcher. The quote in Henson, however,
excluded the word "registration" from the phrase "basic registration requirements" as
originally pronounced in Butcher. Specifically, as this court stated in Butcher at ¶ 11:
As the requirements under R.C. Chapter 2950 are now part of
penalty for the offense, we find that Crim.R. 11 obligates a trial
court to advise a defendant of the basic registration
requirements under R.C. Chapter 2950 before accepting a guilty
plea.
(Emphasis added.)
{¶ 39} These misstatements in Henson and Swinson, by misquoting our prior
decision in Butcher, implies that there is a distinction between the registration and
community notification requirements to that of the verification requirement and residential
restrictions as it relates to a Crim.R. 11(C) plea colloquy. But, when reviewing our decision
in Butcher, we do not believe that this was the intent behind this court's holding. This
becomes clear when considering the final sentence of ¶ 11 in Butcher, a sentence that both
Henson and Swinson also cited as authority, wherein this court held "a trial court is not
required to review each of the numerous individual restrictions and requirements set forth
in R.C. Chapter 2950 to substantially comply with Crim.R. 11." (Emphasis added.)
{¶ 40} When taken in context, we find that our initial use of the phrase "basic
registration requirements" in Butcher was referring to that requirement as it related to the
specific facts of that case and the arguments raised therein. Our holding in Butcher,
however, should not be so limited. This becomes apparent based on the plain language
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found in the final sentence of ¶ 11 in Butcher, which, as noted above, refers generally to
"the numerous individual restrictions and requirements set forth in R.C. 2950[.]" (Emphasis
added.) These restrictions and requirements include registration, verification, and
community notification requirements, as well as residential restrictions.
{¶ 41} We also find it necessary to note our decision in State v. Johnson, 12th Dist.
Butler No. CA2015-02-016, 2015-Ohio-4650. In that case, appellant pled guilty to rape and
was classified as a Tier III sex offender. On appeal, appellant argued his guilty plea was
not knowingly, intelligently, and voluntarily entered. Id. at ¶ 18. In support, appellant argued
his plea should be vacated since the trial court misstated the repercussions of his Tier III
sex offender classification by notifying him as part of its Crim.R. 11(C) plea colloquy that
the community notification requirement was a mere possibility rather than a mandatory
aspect of his sex offender classification. Id. at ¶ 20. This court overruled appellant's
argument upon finding the totality of the circumstances surrounding appellant's plea
indicated appellant "subjectively understood the effects of his plea, including the notification
requirement associated with his rape conviction and Tier III classification." Id. ¶ 23.
{¶ 42} Of significance to this case, however, was this court's statement that "[t]he
trial court's colloquy should have informed [appellant] that community notification was a
mandatory aspect of his Tier III classification." Id. at ¶ 20. At first glance, this court's
pronouncement could certainly be read to mean a trial court is required to explicitly notify a
defendant, as a Tier III sex offender, that he or she would be subject to a community
notification requirement as part of its Crim.R. 11(C) plea colloquy. But, when read in
context, it becomes clear that this court was merely commenting on the fact that the trial
court mistakenly informed appellant that he "could" be subject to the community notification
requirement rather than that he "would" be subject to that requirement. This court stated
as much when noting later on in the opinion that "the trial court should have used the word
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'must' instead of 'could.'" Id. at ¶ 21. This, as our decision in Johnson noted, is different
than "a case where the trial court incorrectly stated that [appellant] would not be subject to
notification," a scenario this court previously addressed in Henson.
{¶ 43} Our interpretation of Johnson becomes even more apparent when
considering that decision has not been cited as authority by this court or any other court for
the proposition that a trial court must explicitly advise a defendant, as a Tier III sex offender,
that he or she would be subject to a community notification requirement as part of its Crim.R.
11(C) plea colloquy. This includes the Sixth District Court of Appeals decision in Ragusa
and its progeny. Of further significance is the fact that our decision in Johnson did not cite
to either of this court's prior decisions in Butcher or Henson as authority. This court's
decision in Johnson is therefore limited to its facts and, as noted below, should not be read
as an expansion of our prior holdings in Butcher or Henson.
{¶ 44} Due to the confusion that may arise between Butcher, Henson, Swinson, and
Johnson, we find it necessary to reiterate and explicitly hold that "a trial court is not required
to review each of the numerous individual restrictions and requirements set forth in R.C.
Chapter 2950 to substantially comply with Crim.R. 11." (Emphasis added.) See, e.g.,
Butcher at ¶ 11-13; see also Henson at ¶ 13; Swinson at ¶ 16. Therefore, as discussed
more fully above, because the trial court substantially complied with Crim.R. 11(C)(2)(a) by
notifying Hagan he would be subject to, among others, a registration requirement and
residential restrictions as a Tier III sex offender, the totality of the circumstances indicate
Hagan's guilty plea was knowingly, intelligently, and voluntarily entered. This is true despite
the fact the trial court failed to explicitly advise Hagan, as a Tier III sex offender, that he
would be subject to a mandatory community notification requirement as provided for by R.C.
2950.11(F)(1)(a) as part of its Crim.R. 11(C) plea colloquy.
{¶ 45} Assignment of Error No. 2:
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{¶ 46} THE TRIAL COURT ERRED IN IMPOSING A PRISON TERM WHERE THE
FINDING THAT APPELLANT HELD A POSITION OF TRUST IN RELATION TO THE
VICTIM WAS CONTRARY TO LAW AND UNSUPPORTED BY THE RECORD.
{¶ 47} In his second assignment of error, Hagan argues the trial court erred by
sentencing him to serve 42 months in prison upon finding he held a position of trust in
relation to his 14-year-old victim as provided by R.C. 2929.12(B)(3). We disagree.
Standard of Review: Felony Sentencing
{¶ 48} As with all felony sentences, we review the trial court's sentencing decision
under the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, this court may modify or vacate
a sentence only if, by clear and convincing evidence, "the record does not support the trial
court's findings under relevant statutes or that the sentence is otherwise contrary to law."
State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. 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 postrelease control, and sentences the defendant within the permissible statutory
range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8. This
court may therefore "increase, reduce, or otherwise modify a sentence only when it clearly
and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the
record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at
¶ 7.
Analysis
{¶ 49} Hagan challenges the following statement made by the trial court at the
sentencing hearing:
The Court notes within the specifics to the facts of this case, that
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the Defendant did hold a special – had a relationship of trust
with the victim in this case. The victim perceived him to be a
father figure and he likewise perceived to be her (sic) a
daughter-like figure. And the Court finds he used that position
of trust in facilitating this offense.
{¶ 50} Based on this statement, Hagan argues the trial court mistakenly found that
he had used a "position of trust" in facilitating the offenses as provided by R.C.
2929.12(B)(3). Pursuant to that statute:
(B) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any
other relevant factors, as indicating that the offender's conduct
is more serious than conduct normally constituting the offense:
***
(3) The offender held a public office or position of trust in the
community, and the offenses related to that office or position.
As noted by the Ohio Supreme Court, "[b]y including the phrase 'position of trust in the
community,' the legislature reveals its intent that R.C. 2929.12(B)(3) apply only to public
officials and other community leaders." State v. Massien, 125 Ohio St.3d 204, 2010-Ohio-
1864, ¶ 20.
{¶ 51} There is no dispute that Hagan is neither a public official nor a community
leader. There is also no dispute the sexual battery offense Hagan pled guilty to was in no
way related to any office or position held by Hagan. Hagan is therefore correct in his
assertion that R.C. 2929.12(B)(3) does not apply to this case. The trial court, however,
never cited to or referenced that statute when issuing its sentencing decision. Hagan
merely presumes that the trial court was applying R.C. 2929.12(B)(3) to the case at bar
when it found "[Hagan] used that position of trust in facilitating this offense." We find no
merit to Hagan's claim.
{¶ 52} When taken in context, it is clear that the trial court was referring generally to
Hagan's relationship with the victim, a permissible factor under R.C. 2929.12(B)(6), rather
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than any "position of trust" as that phrase is used in R.C. 2929.12(B)(3). Pursuant to R.C.
2929.12(B)(6):
(B) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any
other relevant factors, as indicating that the offender's conduct
is more serious than conduct normally constituting the offense:
***
(6) The offender’s relationship with the victim facilitated the
offense.
{¶ 53} That is exactly what the trial court did here by finding "[Hagan] did hold a
special – had a relationship of trust with the victim in this case." The trial court's subsequent
statement finding "[Hagan] used that position of trust in facilitating this offense," rather than
referring back to its previous finding that "[Hagan] did hold a special – had a relationship of
trust with the victim in this case," was nothing more than a slip of the tongue that in no way
impacts the trial court's sentencing decision. This is certainly the case here when
considering the trial court in the immediately preceding sentence found "[t]he victim
perceived [Hagan] to be a father figure and he likewise perceived to be her (sic) a daughter-
like figure."
{¶ 54} Although somewhat factually distinguishable, we find this case is nevertheless
analogous to the Seventh District Court of Appeals' decision in State v. Gant, 7th Dist.
Mahoning No. 04 MA 252, 2006-Ohio-1469. As the Seventh District stated in that case
when addressing a substantially similar argument raised by Hagan herein:
Appellant argues that the trial court mistakenly found that
Appellant had abused a position of trust. Appellant presumes
that the trial court misread R.C. § 2929.12(B)(3), which states:
"The offender held a public office or position of trust in the
community, and the offense related to that office or position."
The trial court, though, was referring generally to a relationship
based on trust between Appellant and the victim. This is more
related to the factor listed in R.C. § 2929.12(B)(6): "The
offender's relationship with the victim facilitated the offense."
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Based on this sentencing factor, rather than the one Appellant
has referred to, the trial court did not err in considering the
personal relationship between the defendant and the victim.
Id. at ¶ 61.
{¶ 55} In light of the foregoing, including the Seventh District's decision in Gant, we
find no merit to Hagan's claim the trial court erred by sentencing Hagan to 42 months in
prison upon finding that he held a position of trust in relation to the victim pursuant to R.C.
2929.12(B)(3).
{¶ 56} Regardless, even if we did find merit to Hagan's claim, any such error would
be harmless given the significant other factors supporting the trial court's sentencing
decision. This includes, but is not limited to, the serious nature of the offense and the young
age of the victim. This also includes the fact that Hagan had previously served time in
prison after he was convicted of trafficking in heroin, as well as the fact Hagan violated his
postrelease control shortly after he was released from prison on that charge. These factors,
standing alone, justify the trial court's decision to sentence Hagan to serve 42 months in
prison.
{¶ 57} In reaching this decision, we note that the trial court had the option of
sentencing Hagan to a maximum 60-month prison term – 18 months more than the
sentence the trial court actually imposed in this case. See R.C. 2929.14(A)(3)(a) (third-
degree felony sexual battery carries a prison term of "twelve, eighteen, twenty-four, thirty,
thirty-six, forty-two, forty-eight, fifty-four, or sixty months"). The trial court properly exercised
its discretion in sentencing Hagan to a sentence that was less than the maximum sentence
allowable for a third-degree felony sexual battery offense. Therefore, finding no merit to the
arguments raised herein, Hagan's second assignment of error lacks merit and is overruled.
{¶ 58} Judgment affirmed.
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RINGLAND, P.J., concurs.
M. POWELL, J., dissents.
M. POWELL, J., dissenting.
{¶ 59} In R.C. Chapter 2950, the General Assembly enacted a sex offender
registration and notification ("SORN") scheme. A person convicted of a sexually oriented
offense requiring a Tier III sex offender classification is subject to three separate and distinct
basic SORN requirements: address registration and verification (the "registration
requirement;" R.C. 2950.04 and 2950.06), residential restrictions (R.C. 2950.034), and
community notification (R.C. 2950.11). The registration, community notification and
residential restriction requirements shall hereinafter be referred to collectively as the basic
SORN requirements.
{¶ 60} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, the Ohio Supreme
Court ruled that R.C. Chapter 2950 is punitive. Crim. R. 11(C)(2)(a) provides that a trial
court personally address the defendant in a plea colloquy and insure that a plea of guilty or
no contest is made "with an understanding * * * of the maximum penalty involved." The
sole issue presented by this appeal is whether Crim. R. 11(C)(2)(a) mandates a trial court's
plea colloquy to include advice that a Tier III sex offender classification will subject the
defendant to community notification. Because community notification is a significant aspect
of the punitive scheme established by R.C. Chapter 2950, it must be included in the plea
colloquy for a sexually oriented offense as part of the maximum penalty. Furthermore,
omission from the plea colloquy of advice concerning the community notification
requirement is a complete failure to comply with Crim. R. 11(C) and does not implicate an
analysis of whether Hagan was prejudiced by the omission.
{¶ 61} Since Williams, Ohio courts have routinely included in the plea colloquy
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advice as to the SORN consequences of entering a guilty or no contest plea to a sexually
oriented offense. While there is broad agreement on this general practice, appellate
districts have differed as to the necessary detail trial courts must provide for substantial
compliance with Crim. R. 11(C).
{¶ 62} In State v. Creed, 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627, the Eighth
Appellate District considered a trial court's plea colloquy that included advice as to the
registration and community notification requirements but omitted mention of the residential
restriction. The appellate court held that advice as to each of the three basic SORN
requirements of Tier III sex offender classification was unnecessary because, under the
totality of the circumstances, Creed "subjectively understood that * * * he would be
subjected to certain restrictions as a Tier III sex offender." Id. at ¶ 17.
{¶ 63} The Second Appellate District has also ruled that advice as to some, but not
all, of the basic requirements of Tier III sex offender classification is partial compliance with
Crim. R. 11 and does not invalidate a plea absent a demonstration of prejudice. See State
v. Mayes, 2d Dist. Montgomery No. 27194, 2017-Ohio-9313 (where the trial court advised
the defendant of the registration requirement but not the community notification
requirement); but see State v. Hawkins, 2d Dist. Greene No. 2012-CA-49, 2013-Ohio-2572
(failure to advise that a Tier III sex offender classification involves community notification
does not satisfy substantial compliance with Crim. R. 11).
{¶ 64} The Sixth Appellate District, in a series of cases, has approached the issue
differently and held that failure to include advice as to all three basic SORN requirements
in the plea colloquy is a complete failure to comply with Crim. R. 11(C):
Because the requirements imposed upon a defendant classified
as a child victim or sex offender pursuant to R.C. Chapter 2950
[which includes registration, community notifications, and
residential restrictions] are now considered punitive sanctions,
the trial court must inform the defendant of all of the punitive
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consequences of entering a guilty plea and having a child victim
or sex offender classification in order to substantially comply
with non-constitutional provisions of Crim.R. 11. The trial court
is not required to address each specific restriction or
requirement, but it must substantially notify the defendant of the
restriction and registration requirements.
(Citations omitted.) State v. Ragusa, 6th Dist. Lucas No. L-15-1244, 2016-Ohio-3373, ¶ 5.
See also State v. Kouts, 6th Dist. Sandusky No. S-16-012, 2017-Ohio-2905 (finding that
when a guilty plea results in a defendant being classified as a child victim offender or sex
offender under R.C. Chapter 2950, substantial compliance requires the trial court to inform
the defendant of all three basic SORN requirements, to wit, the registration requirements in
R.C. 2950.03, the community notification requirements in R.C. 2950.11, and the residential
restrictions in R.C. 2950.034 during the sexually oriented offense plea colloquy).
{¶ 65} The First Appellate District has also held that the "registration, community-
notification, and verification requirements of the Adam Walsh Act * * * are punitive in nature
[and] a defendant must be informed of them before his plea of guilty may be accepted."
State v. Jackson, 1st Dist. Hamilton No. C-110645, 2012-Ohio-3348, ¶ 6.
{¶ 66} This court has addressed the intersection of Crim. R. 11(C) and R.C. Chapter
2950 in various iterations. Our cases have concerned the necessary specificity of advice
regarding the registration requirement and the import of misadvice regarding the community
notification requirement. However, this is the first time that we have been called upon to
specifically address the issue of whether Crim.R. 11(C) obligates a trial court to include
advice concerning the community notification requirement in its plea colloquy for a sexually
oriented offense.
{¶ 67} Our seminal case on the issue is State v. Butcher, 12th Dist. Butler No.
CA2012-10-206, 2013-Ohio-3081, where we considered the validity of a guilty plea based
upon claimed deficiencies in the plea colloquy relating to the registration requirement.
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Citing Hawkins, Creed, and Jackson, we held that "as the requirements under R.C. Chapter
2950 are now part of the penalty for the offense, we find that Crim.R. 11 obligates a trial
court to advise a defendant of the basic registration requirements under R.C. Chapter 2950
before accepting a guilty plea." Butcher at ¶ 11. We continued by explaining that Crim.R.
11 did not require a trial court's plea colloquy to include "each of the numerous individual
restrictions and requirements set forth in R.C. Chapter 2950." Id. We then found that the
trial court substantially complied with Crim.R. 11 because "the totality of the circumstances
indicate that Butcher subjectively understood that by pleading guilty to rape, he would be
subjected to certain restrictions as a Tier III sex offender." Id. at ¶ 13.
{¶ 68} Butcher' s holding that "Crim.R. 11 obligates a trial court to advise a defendant
of the basic registration requirements under R.C. Chapter 2950" is indisputably a correct
statement of the law. However, Butcher did not involve a challenge based upon any aspect
of the maximum penalty involved except the registration requirement. Thus, Butcher did
not address a trial court's responsibility regarding the other basic SORN requirements.
Butcher simply holds that general advice that a classified sex offender would be subject to
the registration requirement substantially complies with the Crim.R. 11 obligation to advise
about that requirement, without the necessity of detailing the manner of compliance.
{¶ 69} Since Butcher, we have considered the requisites of compliance with Crim.R.
11 in a sexually oriented offense plea colloquy in State v. Reeder, 12th Dist. Butler Nos.
CA2013-05-075 and CA2013-07-126, 2014-Ohio-2233; State v. Henson, 12th Dist. Butler
No. CA2013-12-221, 2014-Ohio-3994; State v. Johnson, 12th Dist. Butler No. CA2015-02-
016, 2015-Ohio-4650; and State v. Swinson, 12th Dist. Clermont No. CA2016-05-024,
2017-Ohio-150. The majority's interpretation of the collective import of these opinions is
that advice about the community notification requirement need not be included in a sexually
oriented offense plea colloquy. I disagree. I find that our collective opinions are ambiguous
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and subject to contradictory interpretations.1 However, regardless of how our cases may
be understood, Crim.R. 11 ought to be construed as requiring a sexually oriented offense
plea colloquy to include advice about all applicable basic SORN requirements.
{¶ 70} It is indisputable that all basic SORN requirements are part of the maximum
penalty referred to in Crim.R. 11(C)(2)(a) for a sexually oriented offense involving a Tier III
sex offender classification. We said as much in Butcher ("the requirements under R.C.
Chapter 2950 are now part of the penalty for the offense"). Butcher, 2013-Ohio-3081 at ¶
11; see also Creed, 2012-Ohio-2627 at ¶ 16; Hawkins, 2013-Ohio-2572 at ¶ 10-11; and
Ragusa, 2016-Ohio-3373 at ¶ 10. When the Ohio Supreme Court first recognized that the
amendments to R.C. Chapter 2950 were punitive, it did so for all three basic SORN
requirements. Williams, 2011-Ohio-3374 at ¶ 14-15. Referencing the punitive effect of the
various amendments to R.C. Chapter 2950, the supreme court noted that "[n]o one change
compels our conclusion that S.B. 10 is punitive." Id. at ¶ 21. As all the basic SORN
requirements are part of the maximum penalty for a sexually oriented offense, there is no
justification consistent with the mandate of Crim.R. 11(C)(2)(a) that a defendant not be
advised in a plea colloquy of all three basic SORN requirements.
{¶ 71} A trial court must substantially comply with Crim.R. 11 in advising a defendant
concerning the nonconstitutional provisions of the rule, including the maximum penalty
involved for the offense. "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 (1990). The basic SORN
1. That our cases provide no succinct resolution of the issue is apparent from the majority's involved dissection
of our cases, including its analysis of why the language in Henson and Swinson that "the registration and
notification requirements set forth in R.C. Chapter 2950 are part of the penalty imposed upon a defendant,
and that Crim.R. 11 obligates a trial court to advise a defendant of the basic requirements under R.C. Chapter
2950 before accepting a guilty plea," does not mean what it says.
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requirements are separate and distinct. For instance, the registration requirement includes
the obligation for a sex offender to register the addresses where he lives, works, and attends
school and to periodically verify those addresses for a certain duration of time. The
community notification requirement includes notification of certain members of the
community about a sex offender's name and address. The residential restriction prohibits
a sex offender from residing within a certain distance of particular institutions frequented by
children. Advice about any one of the basic SORN requirements does not suggest that the
offender is subject to the others. Likewise, advice about any one of the basic SORN
requirements implies nothing about the burdens and responsibilities associated with the
others. Substantial compliance with the Crim.R. 11 obligation to advise about a basic
SORN requirement does not substantially comply with advising about the other SORN
requirements because it does not inform the defendant about the implications of his plea
regarding the basic SORN requirements of which he is not advised.
{¶ 72} The cases that have found that advice about fewer than all the basic SORN
requirements does not invalidate a plea have not applied the substantial compliance
standard recognized by the supreme court in Nero. Instead of reviewing whether a
defendant "subjectively understands the implications of his plea," these cases review
whether a defendant subjectively understands that by pleading he would be subjected to
certain restrictions as a sex offender. See Butcher, 2013-Ohio-3081 at ¶ 13. This latter
standard fails to treat all the basic SORN requirements as part of the maximum penalty as
it permits omission of some of those requirements from the plea colloquy. See State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶ 22 (finding a complete failure of compliance
with Crim.R. 11[C], "because the trial court failed, before it accepted the guilty plea, to inform
the defendant of the mandatory term of postrelease control, which was part of the maximum
penalty").
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{¶ 73} This standard also dilutes the Nero substantial compliance standard because
it engages in the fiction of assuming information about any of the basic SORN requirements
suggests to the defendant that he is subject to the other distinct and undisclosed
restrictions. A defendant cannot subjectively understand the implications of his plea if he is
not provided any information concerning a particular implication. Id. ¶ 23 (concluding that
no reasonable person in Sarkozy's position would have been put on notice of [the
postrelease control] restraint on his liberty, because the trial court failed to inform him of the
consequences of his plea).
{¶ 74} The community notification requirement, with which this case is concerned,
is significantly punitive and merits inclusion in a plea colloquy for a sexually oriented offense
involving a Tier III sex offender classification. The community notification requirement
obligates the county sheriff to provide a Tier III sex offender's name, residence, school and
employment addresses, photograph, and offense of conviction to persons living within
1,000 feet of the sex offender, all persons sharing a common hallway with the sex offender
in a multi-unit building, the building manager of a multi-unit building, and local school
superintendents, school principals, and police chiefs. The sheriff must also post a flyer with
the sex offender's name, address, photograph, and offense of conviction in each common
entryway of a multi-unit building in which the sex offender resides. As the Ohio Supreme
Court observed, "[t]he stigma attached to sex offenders is significant, and the potential
exists for ostracism and harassment." Williams, 2011-Ohio-3374 at ¶ 15. Community
notification gives a name, face, and address to that stigma. The punitive burdens
associated with the community notification require a plea colloquy to include advice
concerning that requirement.
{¶ 75} I agree with our holding in Butcher that substantial compliance with Crim.R.
11 does not require a plea colloquy to include "each of the numerous individual restrictions
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and requirements set forth in R.C. Chapter 2950," in that each of the basic SORN
requirements is subject to numerous other requirements. Butcher, 2013-Ohio-3081 at ¶ 11.
For instance, compliance with the registration requirement requires an offender to register
within a certain number of days after establishing residency, register multiple addresses,
give notice of change of addresses a certain number of days prior to the effective date of
the change, and verify addresses at periodic intervals for a particular duration of time
depending upon the offender's sex offender classification. The community notification
requirement requires that certain neighbors of the offender and public officials be given
notice of the offender's name, address, and offense of conviction and be provided with a
photograph of the offender. The residential restriction prohibits the offender from residing
with 1,000 feet of various institutions frequented by children. So long as the plea colloquy
includes advice as to all applicable basic SORN requirements, these other "numerous
individual restrictions and requirements" of R.C. Chapter 2950 need not be included to
satisfy substantial compliance with Crim.R. 11.
{¶ 76} A plea colloquy for a sexually oriented offense involving a Tier III sex offender
classification must include advice that the defendant will be subject to address registration
and periodic verification, that certain persons in the community will be notified of the
defendant's sex offender classification, that the defendant will be subject to restrictions on
where he may reside, and that failure to comply with certain of these duties may result in
the filing of additional criminal charges. If, after such advice, a defendant requires more
detail, he may so advise the trial court and such additional detail may be provided.
However, at a minimum, substantial compliance with Crim.R. 11(C)(2)(a) mandates that the
defendant be informed of the basic requirements inherent in being classified as a sex
offender.
{¶ 77} As the Sixth Appellate District held in Ragusa, "Each of the penalty
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notifications of R.C. Chapter 2950 must be viewed independently. The court in this case
informed appellant of one of the penalties, but not all three. Therefore, we must find that
there was a complete failure to comply with the notification duties and the plea is invalid."
Ragusa, 2016-Ohio-3373 at ¶ 10. Thus, a demonstration of prejudice is unnecessary.
Sarkozy, 2008-Ohio-509 at ¶ 22 ("A complete failure to comply with [Crim.R. 11] does not
implicate an analysis of prejudice").
{¶ 78} I would therefore reverse the trial court's decision, vacate appellant's guilty
plea, and remand to the trial court for further proceedings.
{¶ 79} With regard and respect for my colleagues in the majority, I dissent.
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