STATE OF OHIO v. DEMETRIUS BEARD
No. 109630
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
July 22, 2021
[Cite as State v. Beard, 2021-Ohio-2512.]
EILEEN T. GALLAGHER, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-637588-C
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: July 22, 2021
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Caroline Nelson, Assistant Prosecuting Attorney, for appellee.
Paul W. Flowers Co., L.P.A., and Louis E. Grube, for appellant.
{¶ 1} Defendant-appellant, Demetrius Beard (“Beard”), appeals his sentence and claims the following errors:
- The trial court committed plain error by failing to merge all of defendant‘s convictions at sentencing.
- The trial court committed plain error by imposing a violent offender database registration requirement, which is an unconstitutionally retroactive penalty.
- The trial court committed plain error by failing to provide the notices mandated by
R.C. 2903.42(A)(1) . - Defendant‘s counsel was constitutionally ineffective by failing to argue that his conviction for kidnapping should have merged into his other conviction.
- Defendant‘s counsel was constitutionally ineffective by failing to object to the
violent offender database registration requirement.
{¶ 2} We find some merit to the appeal, affirm the trial court‘s judgment in part, reverse it in part, and remand the case to the trial court to advise Beard of the presumption of enrollment in the violent offender database (“VOD”) under
I. Facts and Procedural History
{¶ 3} In Cuyahoga C.P. No. CR-19-637588-C, Beard was charged with one count of aggravated robbery in violation of
{¶ 4} The indictment alleged that Beard, together with codefendants Garland V. Taylor, Anthony Hicks-Stevens, and Corraune D. Paige, entered a convenience store on Noble Road in East Cleveland and committed, or attempted to commit, a theft offense. All the defendants were wearing masks and carrying firearms. Count 3 of the indictment further alleged that the defendants removed or restrained the liberty of the victim/storekeeper for the purpose of committing the aggravated robbery and aggravated burglary in the store.
{¶ 5} Beard pleaded guilty to one count of robbery, one count of burglary, and one count of kidnapping. The one-year firearm specification attendant to the aggravated robbery charge was deleted from the robbery charge in Count 1, and the one- and three-year firearm specifications were deleted from the burglary charge in Count 2. The kidnapping charge alleged in Count 3 was amended to include a notation that the victim was released to a safe place unharmed. The parties agreed that amended Counts 1 and 2 were allied offenses that should be merged for sentencing, but there was no agreement as to whether the kidnapping charge merged with the other two offenses. (Tr. 30.) Beard also agreed to forfeit certain property, including weapons. (Tr. 10, 22-23.) The remaining counts were nolled.
{¶ 6} Prior to sentencing, while Beard was out on bond, Beard‘s trial counsel filed a motion to withdraw, which was granted. Beard was later stopped in his vehicle and arrested pursuant to a capias that was issued after he failed to appear for sentencing in Cuyahoga C.P. No. CR-19-637588-C. Following a search of his vehicle, Beard was charged with two new counts of having weapons while under
disability and one count of improper handling of a firearm in a motor vehicle in Cuyahoga C.P. No. CR-19-644312-A. At a hearing on both of Beard‘s criminal cases, the court notified Beard that because of “the nature of the offense” in C.P. No. CR-19-637588-C, he will have to register as a violent offender after his release from prison. (Tr. 41.) Thereafter, Beard pleaded guilty to one count of having weapons while under disability and one count of improper handling of a firearm in a motor vehicle as alleged in Counts 1 and 3 of the indictment in C.P. No. CR-19-644312-A.
{¶ 7} In C.P. No. CR-19-637588-C, the trial court sentenced Beard to four years on the amended robbery charge alleged in Count 1, plus three years on the attendant gun specification for a total of seven years on Count 1. The court sentenced Beard to four years on the burglary charge alleged
{¶ 8} In C.P. No. CR-19-644312-A the court sentenced Beard to one year in prison on his having weapons while under disability conviction and one year in prison on the improper handling of a firearm in a motor vehicle conviction to be served concurrently with each other and with the aggregate sentence imposed in C.P. No. CR-19-637588-C. This appeal followed.
II. Law and Analysis
A. Allied Offenses
{¶ 9} In the first assignment of error, Beard argues the trial court committed plain error by failing to merge his robbery, burglary, and kidnapping convictions in C.P. No. CR-19-637588-C.
{¶ 10} Beard‘s trial counsel failed to object to the trial court‘s failure to merge these offenses and, therefore, forfeited all but plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21 (“An accused‘s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error[.]”). In the fourth assignment of error, Beard argues his trial counsel was constitutionally ineffective because he failed to argue that Beard‘s kidnapping conviction should merge with his other convictions. We discuss Beard‘s first and fourth assignments of error together because they are closely related.
{¶ 11} Under
{¶ 12} To establish ineffective assistance of counsel, the defendant must demonstrate that counsel‘s performance fell below an objective standard of reasonable representation and that he or she was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
{¶ 13} The state and Beard agreed as part of their plea agreement that Beard‘s burglary and robbery convictions were allied offenses that would merge at sentencing. (Tr. 30.) After accepting Beard‘s guilty pleas, the court asked on the record: “Counsel have agreed that Counts 1 and 2 will merge for sentencing purposes, correct, [Defense Counsel]?” Counsel replied, “Yes, ma‘am.” (Tr. 30.) The trial court never indicated an intent to deviate from the parties’ agreement or warned Beard that it was not bound to follow the terms of the parties’ plea agreement before accepting his guilty pleas. Yet, the court failed to merge these convictions. The state now asserts the offenses are not allied and that, in any case, Beard was not prejudiced by the failure to merge the convictions because the court ordered them to be served concurrently.
{¶ 14} However, in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, the Ohio Supreme Court explained that “even when the sentences are to be served concurrently, a defendant is prejudiced by having more convictions than are authorized by law.” Id. at ¶ 31. Moreover, the Underwood court found
{¶ 15} The parties’ plea agreement is silent as to whether Beard‘s kidnapping convictions should have merged with his burglary and robbery convictions. “When the plea agreement is silent on the issue of allied offenses of similar import * * *, the trial court is obligated under
{¶ 16}
[w]here the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 17} Beard argues his burglary, robbery, and kidnapping convictions should have merged for sentencing because they were committed as part of the same conduct with the same animus.
{¶ 18} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Ohio Supreme Court explained that an allied offenses analysis is not limited to
consideration of the defendant‘s conduct. The Ruff Court held that while an allied offenses analysis begins with an examination of the defendant‘s conduct, courts must also consider whether (1) the offenses are dissimilar in import or significance, (2) the offenses were committed separately, or (3) the offenses were committed with a separate animus or motivation. Id. at paragraph three of the syllabus, citing
{¶ 19} Kidnapping and aggravated robbery may be allied offenses depending on the circumstances. State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154. Indeed, “[a] brief restraint of the victim is present in every aggravated robbery.” State v. Jackson, 1st Dist. Hamilton No. C-180341, 2019-Ohio-2027, ¶ 10, citing State v. Morris, 1st Dist. Hamilton No. C-150421, 2016-Ohio-5490, ¶ 17.
{¶ 20} The test for determining whether kidnapping and robbery should merge is “whether the restraint or movement of the victim is merely incidental to a separate underlying crime or, instead, whether it has a significance independent of the other offense.” State v. Logan, 60 Ohio St.2d 126, 135, 397 N.E.2d 1345 (1979); see also State v. Lundy, 8th Dist. Cuyahoga No. 105117, 2017-Ohio-9155, ¶
asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime.” Id.
{¶ 21} At the sentencing hearing, the state described the conduct of Beard and his codefendants as follows:
Mr. Beard and three co-defendants planned and carried out an aggravated robbery of a convenience store * * *.
Two of the males went into the convenience store, walked around and the other two then entered. All four had firearms. It was reported by the victim they took the victim at gunpoint from behind the counter to the basement of the store searching for a safe, having the victim get on the ground in the basement. When they didn‘t find the safe, they, at gunpoint, brought him back upstairs, again looking for the safe.
(Tr. 70-71.)
{¶ 22} Beard and his codefendants moved the victim to the basement and back upstairs, which suggests the movement was prolonged. Beard and his codefendants were also carrying firearms, which subjected the victim to the threat of serious physical harm. Therefore, the kidnapping charge alleged in Count 3 was more than merely incidental to the robbery charge alleged in Count 2 and is not subject to merger as allied offenses.
{¶ 23} Therefore, the first and fourth assignments of error are overruled.
B. Violent Offender Registration
{¶ 24} In the second assignment of error, Beard argues the trial court committed plain error by imposing a VOD registration requirement pursuant to Am.Sub.S.B. No. 231, also known as “Sierah‘s Law.” See
unconstitutionally retroactive law prohibited by
{¶ 25} Sierah‘s Law, which became effective on March 20, 2019, created a statewide violent offender database, which requires those convicted of certain specified offenses to enroll in a registry that will allow law enforcement to track their whereabouts for ten years following release from prison. Violent offenders with VOD duties must appear in person at the local county sheriff‘s office within ten days following release from prison, or after receiving notice at the sentencing hearing if the offender is not sentenced to prison, to enroll in the database.
{¶ 26} To enroll in the VOD, the offender must complete and sign an enrollment form that sets forth (1) the offender‘s full name and any alias the offender may have used; (2) the offender‘s residential address; (3) the offender‘s social security number; (4) the offender‘s driver‘s license number or state identification card number; (5) the offense for which the offender was convicted; (6) the name and address of the offender‘s employer; (7) the name and address of any school or institution of higher education the violent offender attends; (8) the vehicle identification number and license plate number for each vehicle owned or operated by the offender; and (9) a description
finger and palm prints and annually allow his or her photograph to be taken.
1. Constitutionality of Sierah‘s Law
{¶ 27}
{¶ 28} Whether a statute is unconstitutional is a question of law subject to de novo review. Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d 466, ¶ 15, citing Crutchfield Corp. v. Testa, 151 Ohio St.3d 278, 2016-Ohio-7760, 88 N.E.3d 900, ¶ 16; Toledo, Columbus & Ohio River RR. Co. v. Miller, 108 Ohio St. 388, 140 N.E. 617 (1923), paragraph two of the syllabus.
{¶ 29} A regularly enacted statute in Ohio “is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its
constitutionality.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. The presumption of constitutionality cannot be overcome “unless it appear[s] that there is a clear conflict between the legislation in question and some particular provision or provisions of the Constitution.” Xenia v. Schmidt, 101 Ohio St. 437, 130 N.E. 24 (1920), paragraph two of the syllabus; Dickman at 147. The party challenging the statute bears the burden of proving it is unconstitutional beyond a reasonable doubt. State v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991).
{¶ 30} Despite the Ohio Constitution‘s prohibition against retroactive laws, the Ohio Supreme Court has held that “retroactivity itself is not always forbidden by Ohio law.” State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, ¶ 31. “Ohio courts have long recognized that there is a crucial distinction between statutes that merely apply retroactively * * * and those that do so in a manner that offends our Constitution.” Bielat v. Bielat, 87 Ohio St.3d 350, 353, 721 N.E.2d 28 (2000).
{¶ 31} Determining whether a statute is unconstitutionally retroactive involves a two-step process. Id. at ¶ 27. A court must first determine whether the General Assembly “expressly made the statute retroactive.” Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶ 8. Statutes are presumed to apply prospectively unless the General Assembly expressly indicates that a statute applies retrospectively.
to be applied retroactively, the analysis ends and the statute may not be applied retroactively. White at ¶ 27, citing
{¶ 32}
- A person who on or after the effective date of this section is convicted of or pleads guilty to any of the following:
- A violation of section
2903.01 [aggravated murder],2903.02 [murder],2903.03 [voluntary manslaughter],2905.01 [kidnapping] of the Revised Code or a violation of section2905.02 [abduction] of the Revised Code that is a felony of the second degree; - Any attempt to commit, conspiracy to commit, or complicity in committing any offense listed in division (A)(1)(a) of this section.
- A violation of section
- A person who on the effective date of this section has been convicted of or pleaded guilty to an offense listed in division (A)(1) of this section and is confined in a jail, workhouse, state correctional institution, or other institution, serving a prison term, term of imprisonment, or other term of confinement for the offense.
{¶ 33} The VOD registration requirements expressly apply to any violent offender who “on the effective date * * * has been convicted or pleaded guilty” to a specified violent offense and is confined for that offense.
registration requirements also apply to any person who “on or after the effective date * * * is convicted or pleads guilty” to a specified violent offense.
{¶ 34} Having determined that the violent offender registration requirements of Sierah‘s Law apply retroactively, we must next determine whether the statutory provisions are substantive or remedial. “A purely remedial statute does not violate Section 28, Article II of the Ohio Constitution, even if applied retroactively.” Cook, 83 Ohio St.3d at 411, 700 N.E.2d 570. However, “[i]f a statute affects a substantial right, then it offends the constitution.” State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 13, citing Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 107, 522 N.E.2d 489 (1988).
{¶ 35} “A statute is ‘substantive’ if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction, or creates a new right.” Id., citing Van Fossen at 107. “[R]emedial laws are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right.” Id., citing Van Fossen at 107.
{¶
{¶ 37} The Ohio Supreme Court previously held that certain sex-offender-registration statutes in effect in the 1990s and early 2000s were remedial even though they imposed new duties on sex offenders retroactively. See Cook at 409 (upholding the constitutionality of the 1997 version of
{¶ 38} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, the Ohio Supreme Court later found that the amendments contained in the Adam Walsh Act (“AWA”) were punitive and, therefore, could not constitutionally be applied retroactively. In Williams, the court did not consider whether offenders affected by the new registration requirements had a vested right or “reasonable
expectation of finality” in their registration status. Instead, the court described the onerous nature of the registration requirements and found that the newly imposed duties were so burdensome that they were punitive in nature and, therefore, violated the Retroactivity Clause of the Ohio Constitution. Id. at ¶ 19-21.
{¶ 39} Thereafter, in White, 132 Ohio St.3d 344, 972 N.E.2d 534, the Ohio Supreme Court considered the constitutionality of
{¶ 40} The court rejected the defendant‘s argument and found that the retroactive statute was remedial rather than substantive in nature and, therefore, could be applied retroactively. In reaching this conclusion, the court noted that
vested or accrued right to be sentenced in accordance with the law articulated in Penix. Id. at ¶ 34-35. The court defined “accrued right” as a “right that is ripe for enforcement.” Id. at ¶ 35, quoting Garner,
{¶ 41} Finally, the court found that
{¶ 42} A violent offender will only be subjected to punishment under Sierah‘s Law if he or she fails to enroll in the database, re-enroll in the database, or notify the sheriff of a change of address.
{¶ 43} Moreover, the registration requirements under Sierah‘s Law are not so burdensome as to amount to a form of punishment that may not be imposed retroactively. The VOD duties are less onerous than those of the AWA. In contrast to the automatic sex offender classifications under the AWA, there is a presumption that an individual who qualifies as a “violent offender” must register with the database, but the presumption may be rebutted with proof, by a preponderance of the evidence, that “the offender was not the principal offender in the commission of the offense.”
{¶ 44} Sex offenders, depending on the tier of registration, may be required to register, in person, every 90 days for life, or every 180 days for 25 years.
required to register with the local sheriff‘s office once per year for ten years.
{¶ 45} Sex offenders under the AWA are subject to certain residency restrictions while violent offenders under Sierah‘s Law are not. See
{¶ 46} Based on these differences, courts have concluded the registration provisions of Sierah‘s Law are “not so punitive that they impose a new burden in
the constitutional sense, as contemplated by Williams[,]’ and, instead, are remedial in nature.” State v. Rike, 1st Dist. Hamilton No. C-190401, 2020-Ohio-4690, ¶ 62, quoting Hubbard, 2020-Ohio-856, 146 N.E.3d 593, ¶ 37 (12th Dist.). See also State v. Morgan, 2020-Ohio-3955, 156 N.E.3d 989 (9th Dist.)(finding no retroactivity-clause violation). But see State v. Jarvis, 5th Dist. Muskingham No. CT 2019-0029, 2020-Ohio-1127 (holding that the violent offender registration requirements of Sierah‘s Law violate Section 28, Article II of the Ohio Constitution).3
{¶ 47} In Hubbard, the Twelfth District observed that the VOD statutes are more akin to the arson offender registration requirements set forth in
attends; (8) the vehicle identification number and license plate number for each vehicle owned or operated by the offender; (9) a description of any scars, tattoos, or other distinguishing marks on the offender; and (10) any other information required by the Attorney General.
{¶ 48} The arson registry is maintained by the Bureau of Criminal Identification and Investigation and is only accessible to the fire marshal‘s office, state and local law
{¶ 49} We agree the VOD established by Sierah‘s Law is similar to the arson offender registry, which has been constitutionally upheld as a remedial statute. See State v. Caldwell, 1st Dist. Hamilton No. C-130812, 2014-Ohio-3566; State v. Reed, 11th Dist. Lake No. 2013-L-130, 2014-Ohio-5463. Accordingly, we find the statutory provisions set forth in
2. Guilty Pleas
{¶ 50} Beard nevertheless contends that his guilty pleas were not knowingly, intelligently, and voluntarily made because the court failed to advise him that he
would be subject to VOD enrollment before he pleaded guilty to violent offenses that would subject him to the VOD.
{¶ 51} Pursuant to
{¶ 52} As previously stated, the VOD requirements are not punitive; they are remedial, collateral consequences of the underlying violent offenses. Hubbard, 2020-Ohio-856, 146 N.E.3d 593, ¶ 32 (12th Dist.), quoting Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, N.E.2d 110, at ¶ 34. (“classification as a violent offender and enrollment into the violent offender database ‘is a collateral consequence of the offender‘s criminal acts rather than a form of punishment per se.‘”).
{¶ 53} This court has held that because registration requirements are collateral consequences rather than punishment,
were collateral consequences of conviction rather than punishment); See also State v. Rice, 8th Dist. Cuyahoga No. 72685, 1999 Ohio App. LEXIS 535 (Feb. 18, 1999) (holding that trial court was not required to inform defendant of sex offender registration requirements under Megan‘s Law since the notification and registration requirements “merely collateral consequences to defendant‘s decision to plead guilty to the sexually oriented offenses.”). Therefore, the trial court was not required to inform Beard of the applicable registration requirements before accepting his guilty pleas.
{¶ 54} The second assignment of error is overruled.
C. Notices Mandated by R.C. 2903.42(A)(1)
{¶ 55} In the third assignment of error, Beard argues the trial court committed plain error by failing to provide the notices required by
{¶ 56} As previously stated, in a plain-error analysis, the appellant bears the burden on demonstrating that, but for the error, the outcome of the proceeding would clearly have been different. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶ 17. To establish a claim for ineffective assistance of counsel, the appellant must show that counsel‘s performance fell below an objective standard of
reasonable representation and that he or she was prejudiced by that deficient performance. Strickland, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674. Prejudice is established when the defendant demonstrates “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
{¶ 57}
- For each person who is classified a violent offender, it is presumed that the violent offender shall be required to enroll in the violent offender database with respect to the offense that so classifies the person and shall have all violent offender database duties with respect to that offense for ten years after the offender initially enrolls in the database. The presumption is a rebuttable presumption that the violent offender may rebut as provided in division (A)(4) of this section, after filing a motion in accordance with division (A)(2)(a) or (b) of this section, whichever is applicable. Each violent offender shall be informed of the presumption established under this division, of the offender‘s right to file a motion to rebut the presumption, of the procedure and criteria for rebutting the presumption, and of the effect of a rebuttal and the post-rebuttal hearing procedures and possible outcome, as follows:
- If the person is classified a violent offender under division (A)(1) of section
2903.41 of the Revised Code, the court that is sentencing the offender for the offense that so classifies the person shall inform the offender before sentencing of the presumption, the right, and the procedure, criteria, and possible outcome.
- If the person is classified a violent offender under division (A)(1) of section
{¶ 58}
erred in failing to advise Beard of his right to rebut the presumption. (Appellees’ brief, p. 17.)
{¶ 59} In State v. Walker, 8th Dist. Cuyahoga No. 109142, 2021-Ohio-580, this court recently held that a trial court commits reversible error when it fails to properly advise a violent offender of the presumption established under
{¶ 61} We, therefore, sustain the third and fifth assignments of error.
{¶ 62} The trial court‘s judgment is affirmed in part and reversed in part. The case is remanded to the trial court to advise Beard of the presumption of enrollment in the VOD under
It is ordered that appellee and appellant share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
ANITA LASTER MAYS, P.J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS WITH SEPARATE ATTACHED OPINION
MARY EILEEN KILBANE, J., DISSENTING:
{¶ 63} I respectfully dissent. I would find that the violent offender database requirements of Sierah‘s Law,