2022 Ohio 4741
Ohio Ct. App.2022Background:
- Ulm was indicted on multiple sex offenses against two child victims, including two forcible rapes of a child under 10, two rapes of a child under 10, and two gross sexual impositions; one victim was age three.
- Ulm entered negotiated guilty pleas; he signed plea and sex-offender registration/notification forms and waived a PSI at a combined plea/sentencing hearing.
- At the plea colloquy the court briefly asked whether Ulm understood he would have a registration requirement; Ulm answered yes. The court later explained Tier II/Tier III registration details at sentencing.
- The court imposed agreed sentences: two 25-years-to-life terms for forcible rape (consecutive to each other, concurrent with others), two 15-years-to-life rape terms, and two 5-year GSI terms; aggregate 50 years-to-life (concurrent with a federal 60-year term). Ulm was designated Tier III for rape and Tier II for GSI.
- On appeal the Second District affirmed in part, sustained only the post-release-control error for rape counts (life sentences), and remanded to amend the judgment to reflect lifetime parole supervision if Ulm is ever released (rather than imposing post-release control for offenses carrying life terms).
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Ulm) | Held |
|---|---|---|---|
| 1) Whether plea was knowing, intelligent, and voluntary under Crim.R. 11 given sex-offender advisement | State: Court adequately advised Ulm that registration would apply; he signed forms and acknowledged requirement. | Ulm: Court failed to personally advise him of specific registration/Tier requirements before accepting plea; plea involuntary. | Court: Overruled Ulm; partial Crim.R.11 compliance (notice of registration) sufficed under Dangler; no prejudice shown. |
| 2) Whether court properly advised/posted post-release control for rape convictions that carry life terms | State: Court notified defendant about supervision at sentencing. | Ulm: Court improperly imposed lifetime post-release control on life sentences; sentencing invalid. | Court: Sustained Ulm; R.C.2967.28 forbids post-release control for life terms—judgment must be amended to state lifetime parole supervision if released (no resentencing required). |
| 3) Whether certain rape counts should have merged under double jeopardy/allied-offense analysis | State: Counts were separate; parties agreed counts would not merge. | Ulm: Counts II and III are allied and should have merged because likely same act/victim. | Court: Overruled Ulm; record shows agreement that counts were separate and no support that offenses were allied. |
| 4) Whether Ulm received ineffective assistance of counsel | State: Counsel performed reasonably; plea agreement and record show no prejudicial errors. | Ulm: Counsel failed to move to dismiss on speedy-trial grounds, failed to raise merger, and failed to ensure a complete record. | Court: Overruled Ulm; no basis for deficient performance or prejudice under Strickland. |
Key Cases Cited
- State v. Dangler, 164 N.E.3d 286 (Ohio 2020) (partial Crim.R.11 compliance about sex-offender registration requires prejudice showing to vacate plea)
- State v. Williams, 952 N.E.2d 1108 (Ohio 2011) (Adam Walsh Act registration scheme is punitive and part of maximum penalty)
- State v. Ruff, 34 N.E.3d 892 (Ohio 2015) (framework for allied-offenses merger analysis)
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969) (guilty plea must be knowing, intelligent, and voluntary)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance of counsel)