State of Ohio v. Steven H. Dornoff, Jr.
Court of Appeals No. WD-16-072; Trial Court No. 2015-CR-0367
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
Decided: August 3, 2018
[Cite as State v. Dornoff, 2018-Ohio-3084.]
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.
SINGER, J.
{¶ 1} Appellant, Steven H. Dornoff, Jr., aрpeals the September 14, 2016 judgment of the Wood County Court of Common Pleas, where he was sentenced to 15 years of incarceration, following acceptance of his negotiated guilty plea agreement. For the reasons which follow, we vacate and remand.
{¶ 2} Appellant sets forth the following assignments of error:
- The trial court erred to the prejudice of appellant in accepting a guilty plea, which was not made knowingly, in violation of appellant‘s due process
rights under the Fifth andFourteenth Amendments of the United States Constitution andArticle I, Section 16 of the Ohio Constitution . - The trial court erred to the prejudice of appellant by denying his motion to withdraw his plea.
Background
{¶ 3} On September 3, 2015, appellant was сharged in a six-count indictment with three counts of rape with firearm specifications, one count of felonious assault with a sexual motivation specification, one count of felonious assault with firearm аnd sexual motivation specifications and one count of kidnapping with a sexual motivation specification. Appellant entered a plea of not guilty. The charges stem from an incident which ocсurred on August 29, 2015, when appellant drove a woman to a cemetery, allegedly threatened her and struck her on the head with a rifle, then raped her.
{¶ 4} On September 7, 2016, a jury trial commenced. The trial concluded on September 8, 2016, when the court became aware that appellant agreed to enter a plea. On September 12, 2016, appellant entered a guilty plea to one count of rape with а firearm specification, one count of felonious assault with a sexual motivation specification and one count of kidnapping with a sexual motivation specification. On the document entitled “Plea of Guilty to Amended Indictment and Waiver of Trial by Jury,” it provided in relevant part that “[t]he defendant is also aware that he will be required to register as a Tier 2 and Tier 3 Sexual Offender.”
{¶ 5} Sentencing proceeded immediately after the plea was accepted. Appellant was sentenced to 11 years in prison on the rape count, 4 years in prison on the felonious assault count and 11 years in prison on the kidnapрing count. The rape and the kidnapping counts were ordered to be served concurrently, for an aggregate sentence of 15 years of incarceration. The remaining counts of the indictment were dismissed. The court filed its judgment entry on September 14, 2016.
{¶ 6} On September 30, 2016, appellant filed with the trial court a pro se motion to withdraw his plea. The court denied the motion on October 3, 2016. Appellant filed another motiоn to withdraw his plea with the trial court, on November 3, 2016. This second motion was also denied by the court.
{¶ 7} On December 28, 2016, appellant filed with this court a motion for leave to file a delayed appeal; we fоund appellant‘s motion well-taken. Appellant then filed his appeal.
Assignment of Error No. 1
{¶ 8} Appellant argues his plea was not knowingly or voluntarily offered as the trial court did not discuss registration duties, community notification requirеments, duration or penalties associated with being classified as a Tier III sexual offender prior to accepting his guilty plea. In addition, appellant contends his plea document did not provide spеcific information pertaining to Tier III registration requirements. Appellant submits the court‘s failure to inform him of Tier III registration requirements should be viewed as a complete failure to comply and his plea must be vаcated without a showing of prejudice.
Law
Crim.R. 11
{¶ 9}
{¶ 10} “If a trial court fails to literally comply with
{¶ 11} If the trial court fails to strictly comply with
{¶ 12} A less stringent, substantial-compliance rule applies if the trial judge imperfeсtly explains a defendant‘s nonconstitutional rights, such as the maximum possible penalty and the effect of the plea. Clark at ¶ 31. “Under this standard, a slight deviation from the text of the rule is permissible; so long as the totality of the circumstances indicates that ‘the defendant subjectively understands the implications of his plea and the rights he is waiving,’ the plea may be upheld.” Id., quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶ 13} Where the trial judge does not substantially comply with
R.C. Chapter 2950
{¶ 14}
{¶ 15} Before a defendant enters a plea which results in the defendant being classified as a sexual offender under
Analysis
{¶ 16} Here, a review of the record shows that appellant signed a written plea of guilty document, prior to the plea hearing, which stated appellant would be required to register as a Tier II and Tier III sexual offender. However, the plea document lacked any specificity as tо the punitive consequences associated with being classified as a Tier II and Tier III sexual offender.
{¶ 17} At the plea hearing, the prosecutor indicated to the trial court that appellant was entering а guilty plea to three counts and “will be registered as a Tier III sex offender.” However, during the plea hearing, the trial judge did not advise appellant that he would have to register as a sexual offender, nor was appellant informed of any of the punitive consequences of entering a guilty plea and having a sexual offender classification.
{¶ 18} During the sentencing hearing, which occurred immediately after appellant‘s guilty plea was accepted, the judge informed appellant that he would be required to register as a Tier II sexual offender, which requires in-person registration for a period of 25 years, every 180 days, аnd a Tier III sexual offender, which requires registration, in person, every 90 days, for the rest of his life. Appellant acknowledged he understood.
{¶ 18} We conclude the trial court failed to comply with
{¶ 19} In light of the foregoing, the trial court‘s September 14, 2016 judgment is hereby vacated, and the case is remandеd to the trial court for further proceedings consistent with this decision. As a result of this determination, appellant‘s second assignment of error is rendered moot. The state is ordered to pay the costs of this appeal pursuant to
Certification of Conflict
{¶ 20}
{¶ 21} In order to qualify for certification to the Supreme Court of Ohio pursuant to
First, the cеrtifying court must find that its judgment is in conflict with the judgment of a court of appeals of another district and the asserted conflict must be “upon the same question.” Second, the alleged conflict must be on a rule of law-not facts. Third, the journal entry or opinion of the certifying court must clearly set forth the rule of law which the certifying court contends is in conflict with the judgment on the same question by other district courts of appeals. Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).
{¶ 22} As we recently determined in State v. Dangler, 6th Dist. Williams No. WM-16-010, 2017-Ohio-7981, the judgment in this case conflicts with State v. Creed, 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627, ¶ 17, in which the court found “[t]he fact that appellant was not specifically informed that he would be prohibited from living within 1,000 feet of a school does not invalidate his plea.”
{¶ 23} We therefore certify the record in this casе for review and final determination to the Supreme Court of Ohio on the following issue:
During a plea proceeding, does a trial court‘s failure to inform a defendant about the residential restrictions imposed оn sexual offenders under
R.C. Chapter 2950 render the plea invalid?
{¶ 24} The parties are directed to
{¶ 25} It is so ordered.
Judgment vacated and remanded.
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
James D. Jensen, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.