[Cite as State v. Reaper , 2022-Ohio-555.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio Court of Appeals No. E-21-010 Appellee Trial Court No. CRB2000283

v. Shawn M. Reaper DECISION AND JUDGMENT Appellant Decided: February 25, 2022

* * * * * Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appelle e. Russell V. Leffler, for appellant.

. * * * * * OSOWIK, J.

{¶ 1} This is an appeal from an April 2, 2021 judgment of the Erie Co unty Municipal Court, Milan, Ohio, sentencing appellant to serve a p rison term of 180 days, with 60 days suspended, a five-year term of probation, and clas sifying him as a Tier 1 sex2. offender, following appellant’s no contest plea on one count of unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A), a misdemeanor of the first degree. {¶ 2} For the reasons set forth more fully below, this court vacates appellant’s plea and sentence, reverses the trial court judgment, and remands th e case to the trial court. {¶ 3} Appellant, Shawn M. Reaper, sets forth the following two assign ments of error on appeal:

“I. It was error for the trial court to take a plea without [ first] telling the appellant he could be facing [Tier 1] sex[ual] [offender] registration [r equirements].

“II. It was error for the court to find the sexual incident t hat was the basis of the charge was not consen[s]ual.”

{¶ 4} The following undisputed facts are relevant to this appeal. Th is case stems from a sexual encounter transpiring between appellant, who was 18-years-old at the time of the incident, and a 15-year-old female, who had been appella nt’s neighbor and friend for several years prior to the encounter. {¶ 5} Appellant later moved into the girl’s home, following the suici de of his sister. After moving in with the girl’s family, appellant aske d her father if he could date his daughter. Her parents responded that their daughter was to o young to date appellant and they did not approve.3. {¶ 6} Despite the disapproval, the girl and appellant subsequently be came intimate. They engaged in sexual intercourse on one occasion. This appeal stems from

that sexual encounter. {¶ 7} Approximately five months after the sexual encounter, the paren ts of the girl indirectly learned of it via social media postings and confront ed their daughter regarding

what had occurred. {¶ 8} At this juncture, the girl acknowledged to her parents that she and appellant had engaged in sex on that occasion and that it had not been co nsensual on her part. {¶ 9} Thereafter, a law enforcement investigation commenced. The inv estigators ultimately determined that the sexual encounter between the two did not constitute felony conduct. Thus, the matter was pursued at the misdemeanor level

. {¶ 10} On September 4, 2020, appellant was charged with one count of u nlawful sexual conduct with a minor, in violation of R.C. 2907.04, a mi sdemeanor of the first degree. {¶ 11} On September 9, 2020, appellant entered a plea of not guilty. On December 18, 2020, following voluntary negotiations, appellant entered a change of plea, to no contest, on the charge. A presentence investigation was ordered. The propriety of the change of plea underlies this appeal. {¶ 12} On March 12, 2021, prior to appellant’s sentencing, the trial c ourt conducted an R.C. 2950.01 evidentiary hearing for purposes of d etermining whether the sexual incident between the parties had been consensual.4. {¶ 13} In the course of the evidentiary hearing, opposing testimony wa s presented to the trial court by the two parties to the disputed occurrenc e. The girl testified that she was raped by appellant. She maintained that she said no and di d not engage in sex willingly. {¶ 14} Conversely, appellant testified that she invited him into her b edroom to watch television, she initiated the encounter, she did not say no, and she engaged in it voluntarily. {¶ 15} There were no other witnesses. There was no non-testimonial ev idence presented. The record is devoid of independent, objective evid ence regarding what

occurred. {¶ 16} Following the hearing, the trial court found that the sexual en counter had not been consensual, thereby triggering Tier 1 sex offender sta tus and requirements for appellant. {¶ 17} On April 2, 2021, appellant was sentenced to 180 days in prison , with 60 days suspended, a five-year term of probation, and was ordered to register as a Tier 1 sex offender, pursuant to R.C. 2950.01. {¶ 18} The record reflects that appellant was given no advance knowled ge by the trial court regarding the possibility of facing a sexual offend er classification prior to entering his change of plea. This appeal ensued.5. {¶ 19} In the first assignment of error, appellant maintains the trial court erred in the complete failure to inform appellant at any time prior to a ppellant’s change of plea of the possibility that appellant could be classified as a sex off ender. We concur. {¶ 20} Crim.R. 11(D) establishes, “ In misdemeanor cases involving serious offenses the court * * * shall not accept such plea without first addressing the defendant personally and informing the defendant of the effect of the pleas of guilty, no contest, and not guilty and determining that the defendant is making the plea voluntarily .” (Emphasis added). {¶ 21} In conjunction, the Ohio Supreme Court uniformly holds that, “D ue process requires the defendant’s plea be made knowingly, intell igently, and voluntarily; otherwise, the defendant’s plea is invalid .” State v. Bishop , 156 Ohio St.3d 156, 2018- Ohio-5132, 124 N.E.3d 766, ¶ 10. (Emphasis added). {¶ 22} Of particular relevance in our consideration of the merits of t his case, the Ohio Supreme Court decision in State v. Dangler , 162 Ohio St.3d 1, 2020-Ohio-2765,

164 N.E.3d 286 is illustrative. {¶ 23} Dangler discusses in detail the constitutional due process importance of the trial court alerting a defendant prior to the acceptance of a c hange of plea of the potential applicability of a sexual offender status and requirements as a result of the change of plea. {¶ 24} In Dangler , appellant’s change of plea resulted in a Tier III sex offende r classification. Although the trial court did notify appellant prior to the plea that it would6. result in appellant having to register as a Tier III sex offend er, unlike the complete failure to inform by the trial court in the instant case, appellant nev ertheless maintained that the trial court failed to completely explain all of the specific re quirements which would accompany appellant’s sexual offender classification. {¶ 25} The Dangler court emphasized, “Because a no contest or guilty plea involves a waiver of constitutional rights, a defendant’s decis ion to enter a plea must be knowing, intelligent, and voluntary * * * if the plea was not m ade knowingly, intelligently, and voluntarily, enforcement of that plea is unconstitutional .” Dangler at ¶ 10. (Emphasis added). {¶ 26} The Dangler court subsequently elaborated that the key consideration in resolving such change of plea cases is, “[W]hether the dialogue between the court and the defendant demonstrates that the defendant understood the conseq uences of his plea.” Id. at ¶ 12. {¶ 27} The Dangler court next determined that, “[W]e proceed with the assumption that the [sex offender registration] scheme as a who le constitutes a penalty for purposes of Crim.R. 11. Id. at ¶ 20. {¶ 28} Dangler ultimately concluded that, “[A]lthough R.C. Chapter 2950 contains a mixture of remedial and punitive elements * * * the statutory scheme as a whole * * * [is] punitive * * * Because the trial court in this case advised Dangler that he would be subject to the registration requirements of that statu tory scheme, the trial court7. did not completely fail to comply with Crim.R. 11’s maximum penalty advisement requirement .” Id. at ¶ 22. (Emphasis added). {¶ 29} Conversely, there was no advisement whatsoever given by the tri al court to appellant in the present case so that appellant even arguably u nderstood the consequences of the plea. The record shows that there was a complete failur e to inform appellant of a potential sex offender classification prior to his change of pl ea. {¶ 30} Of further significance to our resolution of this case, we look to an Eighth District Court of Appeals case that is substantively akin to th e factual scenario presented in this appeal. {¶ 31} This is another case in which the trial court completely failed to inform the defendant prior to the change of plea of the possibility of a s ex offender classification resulting from the change of plea. {¶ 32} In State v. Brown , 2020-Ohio-4474, 158 N.E.3d 972 (8th Dist.), the court concluded that, “[T]he record is clear that the trial court did not even mention sex offender classification until after it accepted Brown’s pleas * * * the trial court’s omission of any reference to sexual offender classification at the change of plea hearing constituted a complete failure to comply with Crim.R. 11 and the defendant’s guilty plea was, therefore, void .” Brown at ¶ 29-30. (Emphasis added). {¶ 33} Accordingly, in our consideration of the merits of this case, w e have scrutinized the transcripts of the December 18, 2020 change of plea hearing.8. {¶ 34} At the change of plea hearing, the trial court stated to appell ant, “If you plead no contest, you’re waiving certain constitutional rights * * * Those rights include your right to a trial on this charge.” {¶ 35} In addition, the trial court further advised appellant that, “T his court could sentence you to the maximum penalty provided in the law for thi s offense, which is up to six months in jail and a fine of $1000. Do you understand that ?” {¶ 36} Appellant replied, “Yes, Your Honor.” {¶ 37} No other references to other possible consequences resulting fr om the change of plea were relayed to appellant by the trial court pri or to his change of plea. {¶ 38} The record of evidence clearly reflects that the trial court om itted and completely failed to inform appellant of the possibility of a s exual offender classification resulting from appellant’s change of plea prior to accepting th e change of plea. {¶ 39} We find that the record in this case shows that the trial court erred in completely failing to advise appellant of the potential sex off ender classification resulting from his change of plea, as required by Crim.R. 11 and Dangler , and consistent with

Brown

. {¶ 40} This omission constituted a breach of Crim.R. 11. Accordingly, we find that appellant’s plea was not knowingly, intelligently, and vol untarily made. Thus, the plea is invalid and void. {¶ 41} In conjunction with the above, and as held by the Ohio Supreme Court in State v. Perry , 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, “ [S]tructural errors9. are constitutional defects that * * * affect the framework within which the trial proceeds, rather than simply being an error in the trial process itself * * * Such errors permeate the entire conduct of the trial * * * [S]o that the trial cannot reliably serve its function as a vehicle for determination of guilt or innocence .” Perry at ¶ 17-18. (Emphasis added). {¶ 42} We further find that the above-described Crim.R. 11 violation, and the constitutional infringement resulting from the violation, likew ise constituted structural error. It precluded a reliable determination of appellant’s gu ilt or innocence. {¶ 43} Wherefore, we find appellant’s first assignment of error well-t aken. {¶ 44} In appellant’s second assignment of error, appellant maintains that the trial court erred in the March 12, 2021 determination, subsequent to the December 18, 2020, change of plea hearing, that the sexual encounter occurring bet ween the parties was not

consensual. {¶ 45} Given our determination in response to the first assignment of error, finding that the trial court breached Crim.R. 11(D) during the change of plea hearing, thereby rendering the plea void, we consequently find that the trial court’s subsequent determination on the issue of consent, which would not have occ urred but for the void change of plea, is likewise void as a matter of law. {¶ 46} Thus, we find that appellant’s second assignment of error is mo ot based upon our determination in response to appellant’s first assignm ent of error.10. {¶ 47} On consideration whereof, we vacate the plea, vacate the senten cing judgment resulting from the void plea, and reverse and remand t his case to the trial court. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pu rsuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _________________________

___ JUDGE Christine E. Mayle, J.

____________________________ Gene A. Zmuda, J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.