[Cite as State v. Hindman , 2023
- Ohio
- 1974.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO , :

Plaintiff

- Appell ee , : No. 112026 v. : ROBERT HINDMAN , :

Defendant

- Appell ant

. :

JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED RELEASED AND JOURNALIZED: June 15 , 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR

- 22
- 670360

- A
Appearances: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione , As sistant Prosecuting Attorney, for appell ee . Maxwell Martin , for a

ppellant

.

MICHAEL J OHN RYAN , J.:

Defendant

- appellant Robert Hindman appeals from his judgment of conviction, which was rendered after a plea by way of information. After a careful review of the record and pertinent law, we vacate the plea.After negotiations with the state, i n May 2022, Hindman executed a

waiver of indictment and presentment to the g rand j ury pursuant to R.C. 2941.021. The assistant prosecuting attorney placed the parties’ agreement on the record

. Under the agreement, Hindman pled guilty to a bill of information consis ting of two counts of s exual b attery, felonies of the second degree, and one count of e ndangering

c hildren, a misdemeanor of the first degree.

In his first assignment of error, Hindman contends that his plea is invalid because the trial court failed to inform him at the plea hearing of the maximum penalty. Specifically, the trial court failed to inform Hindman that if he pled guilty to sexual ba ttery he would be classified as a sex offender and be subject to certain registration requirements.

“ When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. ” State v. Engle , 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996)

. Guilty pleas are governed by Crim.R. 11. The rule requires the court to advise the defendant of certain constitutional and statutory rights, among those the maximum penalty involved. See Crim.R. 11(C)(2)(a).

T he record her e demonstrates that t he trial court complied with Crim.R. 11(C)(2)(c) and orally advised Hindman before accepting his felony plea that the plea waived his constitutional right s to a jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial.The record further demonstrates that t he trial court complied with

Crim.R. 11(C)(2)(a) and orally advised Hindman of his nonconstituti onal rights. Specifically, the court advised him of the nature of the charges, eligibility for community

- control sanctions , and the effect of his plea

. The trial court also advised Hindman as to the prison time he faced for each of the three counts, as well as the prison time he was subject to on the sexual battery counts under the Reagan Tokes
Law. At issue in this appeal is whether the trial court failed to fully advise Hindman of the max imum penalty involved given that it failed to advise him that his plea would result in him being a Tier III sex offender and of the accompanying registration requirements.

In State v. Brown , 2019
- Ohio

- 527 , 132 N.E.3d 176 ( 8th Dist.), this court considere d a situation where the trial court failed to mention that the defendant would be labeled a sex offender by virtue of his plea and the consequences of being labeled a sex offender. This court found that the omissions “ constitute a complete failure to comp ly with Crim.R. 11 ” and vacated the plea. Id. at ¶ 13, 16.

T he state acknowledges Brown and concedes the error. Notwithstanding its concession, the state notes a subsequent decision from this court, State v. Fisher , 8th Dist. Cuyahoga No. 109276 , 2021
- Oh io

- 1592 , in which

two judge s on this court call ed into question Brown’s holding ( see Sean C. Gallagher,
P.J

. , concurring ; and Kathleen Ann Keough, J., concurring with majority and Judge Sean C. Gallagher’s separate concurring opinion )

.In Fisher , the defendant pled guilty to burglary and sexual battery, a

crime for which a conviction of mandates a sex

- offender classification. At the defendant’s plea hearing, the trial court informed the defendant that “ any plea to this case would render you as a Tier III sex offender which the Court will review with you at your sentencing. ” Id. at ¶ 4. The defendant indicated he understood. Id.

On appeal, the defendant c ontended that the trial court “ failed completely ” to advise him of the maximum penalty he f aced as required by
Crim.R. 11(C)(2)(a) when he entered a guilty plea to a charge of sexual battery. Id. at ¶ 10. This court disagreed, noting that at the plea hearing the trial court advised him of the possible prison sentence , the fine he faced, and th at he would be classified as a Tier III sex offender. Id.

This court noted that “[b] eing labeled a Tier III sex offender and the implications of that classification are punitive in nature. ” Id. at ¶ 11, citing State v. Williams , 129 Ohio St.3d 344, 2011
- Ohio

- 3374, 952 N.E.2d 1108, ¶ 16. This court reasoned, h owever, that while Williams found that the entire statutory scheme of the sex offender laws, found in R.C. Chapter 2950 , as a whole are punitive, no single provision taken alone is punitive. Fi sher at id. , citing Williams . This court therefore found that “ failing to advise the defendant of any individual ramification of his [or her] plea does not rise to the level of a complete failure. ” Fisher at id. , citing State v. Dornoff

, 6th Dist. Wood N o. WD

- 16

- 072, 2020
- Ohio

- 3909, ¶ 17

. Under the “totality of the circumstances,” this court found that the defendant knowingly, voluntarily, and intelligently entered his plea and that the trialcourt did not “completely fail” to inform him of the maximum pe nalty he faced.

Fisher at ¶ 12. The Fisher C ourt found that prior to accepting the defendant’s plea, the trial court specifically informed the defendant that “ he would be classified as a Tier III sex offender, which would be further discussed with him at sentencing. ” Id.

This court reasoned that, “[b] y explaining that being classified a
Tier III sex offender would be further discussed at sentencing, the trial court indicated that the classification was part of his punishment , even though it did not inform him of his specific obligations flowing from that classification .” (Citations omitted.) Id. Further, at the plea hearing, prior to the court’s colloquy with the defendant, the prosecutor explained that the punishment for the sexual battery

count includes “ a Tier III sex offender registration which is every 90 days for life registration. There are community residential requirements as well. ” Id.

The Fisher panel distinguished Fisher from another Eighth District

case, State v. Baker , 8th Dist. Cuy ahoga No. 108301, 2020

- Ohio

- 107 . In Baker , the trial court merely advised the defendant that the count to which he was pleading guilty was “‘ a Tier 3 sex offense, and we ’ ll go into that later .’” Fisher at ¶ 13, quoting Baker at ¶ 22. This court found t hat t he trial court “ did nothing to indicate that ‘ the fact that Baker would be pleading guilty to a Tier 3 sex offense had any additional penalties or consequences. ’” Fisher at id. , quoting Baker at id. Further, there was no indication in Baker that “‘ anyone else ’” informed the defendant th at his guilty plea would result in him be ing classified as a Tier III sex offender or that he would face penalties as a result. Fisher at id. , quoting Baker at id.Moreover, in Fisher , this court, citing State v. Dangler , 162 Ohio St.3d

1, 2020
- Ohio

- 2765, 164 N.E.3d 286, found that Baker “is no longer valid law .” Fisher at ¶ 14

. In Dangler , prior to accepting the defendant’s guilty plea to sexual battery, the trial court adv ised him, “[y] ou would also be obligated to register as a Tier III sex offender which means you would have an obligation to register for your lifetime. ” Id. at ¶ 4. The defendant indicated that he understood. Id. The defendant was sentenced and labeled a sex offender.

On appeal, the defendant sought to vacate his plea on the ground that
it was invalid because the trial court failed to fully explain the obligations and requirements associated with being a sex offender. The Supreme Court noted that, traditionally, w

hen a defendant seeks to have his or her conviction reversed on appeal, he or she must establish that an error occurred in the trial

- court proceedings and that he or she was prejudiced by that error. Id. at ¶ 13, citing State v. Perry , 101 Ohio St.3d 118, 2004

- Ohio

- 297, 802 N.E.2d 643, ¶ 14

- 15; State v. Stewart , 51 Ohio St.2d 86, 9 3 , 364 N.E.2d 1163 (1977) ; Crim.R. 52.

The c ourt noted that it has made an exception to the prejudice requirement, that being , a trial court’s failure to explain the constitutional rights a defendant would be waiving by a guilty plea. Dangler at ¶ 14. However, w hen a trial court fails to fully cover the nonconstitutional rights a defendant would be waiving by pleading guilty , a d efendant must affirmatively show prejudice to invalidate a plea. Id.But the Supreme Court noted there is “one additional exception to the

prejudice requirement: a trial court’s complete failure to comply with a portion of Crim.R. 11(C) eliminates the defendant ’ s burden to show prejudice. ” (Emphasis sic.) Id. , citing State v. Sarkozy , 117 Ohio St.3d 86, 2008

- Ohio

- 509, 881 N.E.2d 1224, ¶ 22 (holding that the trial court completely failed to comply with
Crim.R. 11(C)(2)(a) ’ s requirement that it explain the maximum penalty when the court made no mention of postrelease control in the plea colloquy, despite the fact the defendant was subject to a mandatory five years of postrelease control ).

The Dangler Court went on to consider whet her a sex

- offend er classification and its accompanying obligations constitute a “penalty” imposed on a defendant. Id. at ¶ 18. The c ourt noted its prior decision in Williams , 129 Ohio St.3d
344, 2011
- Ohio

- 3374, 952 N.E.2d 1108 , wherein it considered whether the sex

offe nder statutes could be applied retroactively without violating the prohibition on retroactive laws contained in the Ohio Constitution. To answer that question, the

c ourt had to consider whether the statutory scheme is remedial or punitive. The Williams C ourt concluded that the scheme is “‘so punitive that its retroactive application is unconstitutional.’” Dangler at ¶ 19, quoting Williams at ¶ 21.

Dangler noted that Williams did not address whether the sex

offender

- registration scheme constitutes a penalty for purposes of Crim.R. 11. In Dangler , the state urged the c ourt to reconsider Williams , but the c ourt declined because “ to do so would be beyond the scope of the certifi ed question and is unnecessary for purposes of deciding this case. Instead, based on the rationale ofWilliams , we proceed with the assumption that the scheme as a whole constitutes a

penalty for purposes of Crim.R. 11. ” Dangler at ¶ 20.

We note, as the state also notes in this case, the Supreme Court’s choice of the word “assumption” in Dangler . While it does not connote a ringing endorsement that the sex

- offender classification scheme is a penalty for purposes of
Crim.R. 11 , it also is not a flat

- out r ejection of th at notion . Thus, the prevailing law at this time is that Ohio’s sex

- offender classification scheme is a penalty for purposes of Crim.R. 11 . The trial court therefore was required to provide some advisement about the classification prior to accepting Hindman’s plea.

Brown , 2019
- Ohio

- 527 , 132 N.E.3d 176 , Baker , 8th Dist. Cuyahoga No. 108301, 2020

- Ohio

- 107 , and Dangler mandate that Hindman’s plea be vacated, specifically because no advisement whatsoever as to the sex

- offender classification was given to him prior to his plea

. See Dangler at ¶ 15. Further, Fisher is distinguishable from this case because in Fisher , some advisement was given to the defendant, causing this court to consider the prejudice requirement, which the court found the defendant failed to demonstrate.

The first assignment of error is sustaine d. The remaining assignments of error , which are relative to sentencing, are moot , and we decline to address them.
See App.R. 12 (A)(1)(c).

Plea vacated. It is ordered that appell ant recover from appell ee costs herein taxed. The court finds there were rea sonable grounds for this appeal.It is ordered that a special mand ate issue out of this court directing the

common pleas court to carry this judgment into execution. A certified copy of this e n try shall constitute the mandate pursuant to Rule 27 of the R ules of Appellate Procedure.

________________________ MICHAEL J OHN RYAN , JUDGE
MARY EILEEN KILBANE , P. J., and MARY J. BOYLE , J.,