[Cite as State v. Anderson, 2019-Ohio-1915.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1110
Appellee Trial Court No. CR0201801190
v.
Gregory D. Anderson DECISION AND JUDGMENT
Appellant Decided: May 17, 2019
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Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Dan M. Weiss, for appellant.
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PIETRYKOWSKI, J.
Appellant, Gregory Anderson, appeals from the April 25, 2018 judgment of the
Lucas County Court of Common Pleas convicting him of attempted rape, a violation of
R.C. 2923.02 and 2907.02(A)(1)(c) and (B), following acceptance of appellant’s guilty
plea entered pursuant to North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970). Appellant appeals and asserts the following single assignment of
error:
TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
IN ACCEPTING A GUILTY PLEA, WHICH WAS NOT MADE
KNOWINGLY, IN VIOLATION OF APPELLANT’S DUE PROCESS
RIGHTS.
A guilty or no contest plea must be made knowingly, intelligently, and voluntarily
to be valid under both the United States and Ohio Constitutions. Boykin v. Alabama, 395
U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Engle, 74 Ohio St.3d
525, 527, 660 N.E.2d 450 (1996). Ohio Crim.R. 11(C) sets forth a procedure which will
enable the trial court to accept only constitutionally-valid guilty pleas and provide a
record for review. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d
826, ¶ 9. Before accepting a plea of guilty or no contest to a felony offense, Crim.R.
11(C)(2) requires that a trial court conduct a hearing with a personal colloquy with the
defendant, make specific determinations and give specific warnings required by Crim.R.
11(C)(2)(a) and (b), and notify the defendant of the constitutional rights listed in Crim.R.
11(C)(2)(c). State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 13.
Failure to comply with Crim.R. 11 renders the plea void because the trial court could not
have concluded whether it was knowingly and voluntarily made, State v. Clark, 119 Ohio
St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31-32. In that case, the defendant does
2.
not need to demonstrate prejudice and the plea must be vacated. State v. Sanders, 6th
Dist. Lucas No. L-15-1068, 2016-Ohio-1397, ¶ 6-8.
Appellant argues that the trial court did not substantially comply with Crim.R. 11
because the court did not notify appellant of all of the punitive consequences of entering
a guilty plea and having a sex offender classification. More specifically, appellant argues
the trial court did not inform him of the two major penalty requirements related to his
Tier III classification: the ban against living within 1,000 feet of a school, preschool, or
child daycare, R.C. 2950.034(A), and the registration reporting requirements of R.C.
2950.041(2)(c) and (d) (regarding employment within a county or state).
The requirements imposed upon a defendant classified as a child-victim or sex-
offender pursuant to R.C. Chapter 2950 (registration, community notifications, and
residential restrictions) are now considered punitive sanctions. State v. Williams, 129
Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 15-16. Because the trial court is
required by Crim.R. 11 to inform the defendant of the punitive consequences of entering
a guilty plea, we have consistently held that the sentencing court must also inform the
defendant generally of the three above-mentioned penalty requirements imposed on
offenders who have a child-victim or sex-offender classification. State v. Dornoff, 2018-
Ohio-3084, 105 N.E.3d 1278, ¶ 15 (6th Dist.); State v. Dangler, 6th Dist. Williams No.
WM-16-010, 2017-Ohio-7981, ¶ 6; State v. Cook, 6th Dist. Lucas No. L-15-1066, 2016
Ohio App. LEXIS 2929 (Apr. 8, 2016). Compare State v. Hagan, 12th Dist. Butler No.
3.
CA2018-07-136, 2019-Ohio-1047, ¶ 29-30. However, the court is not required to review
the restrictions or requirements in detail. State v. Ragusa, 6th Dist. Lucas No.
L-15-1244, 2016-Ohio- 3373, ¶ 5.
At the plea hearing in the case before us, the trial court verified that appellant’s
counsel informed him of the Tier III registration requirements and appellant executed the
notification form. Furthermore, the court directly informed appellant that as a Tier III sex
offender he would have to register his residence, his place of employment, his automobile
information, e-mail addresses, internet identifiers, and telephone numbers. The court also
explained the details of registration if there were any changes in residency and that the
verification requirement would continue every 90 days for the rest of his life.
Appellant argues the court did not inform him that he would have to register in a
county where he was employed permanently or temporarily, R.C. 2950.041(2)(c) and (d).
We disagree. The court indicated appellant would have to register certain information
without discussing specifics. We find this was sufficient to give appellant notice of the
registration requirements. However, we agree with appellant that the court completely
failed to notify appellant of the residential restrictions, including that he was prohibited
from residing within 1,000 feet of a school, preschool, or child daycare, and that
appellant would be subject to the community notification requirements of R.C. 2950.11.
Therefore, we find the plea was constitutionally invalid. Appellant’s sole assignment of
error is found well-taken.
4.
Having found that the trial court did commit error prejudicial to appellant and that
substantial justice has not been done, the judgment of the Lucas County Court of
Common Pleas is hereby vacated. This case is remanded to the trial court for
proceedings consistent with this decision. Appellee is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Certification of Conflict
Pursuant to Ohio Constitution, Article IV, Section 3(B)(4) and App.R. 25, we
certify the record in this case to the Ohio Supreme Court for final review and
determination because our holding, which follows the precedent of our court, is in direct
conflict with the judgment pronounced by State v. Hagan, 12th Dist. Butler No. CA2018-
07-136, 2019-Ohio-1047, ¶ 29-30, and is currently before the Ohio Supreme Court in the
appeal of State v. Dangler, 6th Dist. Williams No. WM-16-010, 2017-Ohio-7981. State
v. Dangler, 2018-Ohio-723, 92 N.E.3d 876.
The parties are directed to S.Ct.Prac.R. 5.03 and 8.01 for guidance on how to
proceed.
Judgment vacated
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
5.
State v. Anderson
C.A. No. L-18-1110
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE
6.