State v. Bush
2011 Ohio 5954
Ohio Ct. App.2011Background
- Defendant Enoch Bush, Jr. pleaded guilty to a misdemeanor sexual imposition (victim aged 13–16) in Fairborn Municipal Court and was sentenced to 60 days in jail and a $250 fine.
- At sentencing, the State indicated Bush had a duty to register as a sexually oriented offender; the trial court reserved a ruling and later issued a written decision.
- On June 4, 2007, the court ordered a 10-year registration as a sexually oriented offender under R.C. 2950.04; notice was sent to Bush and his counsel.
- Bush completed his sentence before the registration order was issued; on August 2, 2010, he sought to withdraw his guilty plea and sought relief from the registration requirement.
- Bush, with new counsel, moved on August 24, 2010 to withdraw the plea alleging he was never advised at plea that registration would be mandatory; a hearing was held and the motion was denied on November 12, 2010, as not showing manifest injustice.
- He appealed to the Greene County Court of Appeals challenging the post-sentencing withdrawal denial, arguing due process/equal protection and ineffective assistance for not informing him of rights and consequences of the plea, including registration requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to warn about registration constitutes manifest injustice for Crim.R. 32.1 relief | Bush argues lack of advisement about sex offender duties taints validity of plea | Bush asserts error and manifest injustice from lack of advisement | No manifest injustice; court affirms denial |
| Whether trial court should have informed about Megan’s Law registration before plea | State argues no duty to inform before plea for registration | Bush insists advisement was necessary | Trial court not required to inform before plea under prior Megan’s Law regime |
| Whether Powell distinction applies to this case | State distinguishes Powell to uphold plea withdrawal denial | Bush relies on Powell to vacate plea | Powell distinguished; not controlling here; not vacating plea |
| Whether Adam Walsh Act amendments change the rule for advisement | State/Defendant discuss act; not applicable to this case's regime | Amendments could render advisement punitive | Not applicable; regime here remedial under pre-Adam Walsh Act |
Key Cases Cited
- State v. Minkner, 2009-Ohio-5625 (Ohio Ct. App. (Montgomery) 2009) (Crim.R. 32.1 standard and lack of advisement on registration not manifest injustices)
- State v. Powell, 2010-Ohio-3247 (Ohio Ct. App. (Montgomery) 2010) (Presumptive registration exemption issues; Powell distinguished)
- In re C.A., 2009-Ohio-3303 (Ohio Ct. App. (Montgomery) 2009) (Court held trial court need not inform about Chapter 2950 before plea)
- State v. Cupp, 2006-Ohio-1808 (Ohio Ct. App. (Montgomery) 2006) (Failure to inform about Megan's Law registration not invalidating plea)
- Whitmore v. State, 2008-Ohio-2226 (Ohio Ct. App. (Greene) 2008) (Abuse of discretion standard for postsentence withdrawal)
- State v. Boswell, 2009-Ohio-1577 (Ohio Sup. Ct. 2009) (Articulates manifest injustice standard under Crim.R. 32.1)
- State v. Caraballo, 17 Ohio St.3d 66 (1985) (Origins of manifest injustice standard for post-sentence relief)
- State v. Hartzell, 1999-Ohio-17499 (Ohio Ct. App. 1999) (Discusses limits of Crim.R. 32.1 relief and related standards)