State v. Giovanni, 07 Ma 60 (6-9-2008)State v. Giovanni, 07 Ma 60 (6-9-2008)
{¶ 2} On July 30, 2006, Appellant engaged in sexual conduct with a fifteen-year-old girl. Appellant was nineteen years old at the time. The victim's mother learned about the encounter and pressed charges. As a result, Appellant was charged with unlawful sexual contact with a minor (previously called "corruption of a minor"), a violation of
{¶ 3} A review of the plea and sentencing hearing transcript reveals the following dialogue:
{¶ 4} "THE COURT: * * * It's my understanding you're represented by cоunsel and at this point in time there's going to be a plea of guilty to the charge of corruption of a minor. It's my understanding you've had an opportunity to speak to your lawyer about this and you understand that by changing your plea to a plea of *2 guilty you will not have a trial to this court or a trial to the jury. Do you understand that?
{¶ 5} "THE DEFENDANT: Yes, sir.
{¶ 6} "THE COURT: Okay. You also understand that by pleading guilty you're not going to be able to call any witnesses on your behalf, cross-examine any state witnesses, and you're not requiring the state to prove its case beyond a reasonable doubt. Do you understand that? We're not going to have a trial, so we won't be listening to any witnesses. Do you understand that?
{¶ 7} "THE DEFENDANT: Yes, Your Honor.
{¶ 8} "THE COURT: Okay. Do you also understand that by entering a plea of guilty on this offense that you're admitting that you were involved with corruption of a minor, a misdemeanor of the first degree, and you can get up tо $1,000 fine, up to a six-month jail sentence. Do you understand that?
{¶ 9} "THE DEFENDANT: Yes, Your Honor.
{¶ 10} "THE COURT: You've had an opportunity to speak to your lawyer about this matter; is that correct?
{¶ 11} "THE DEFENDANT: Yes, Your Honor.
{¶ 12} "THE COURT: Do you have any questions regarding the rights as I've explained them to you?
{¶ 13} "THE DEFENDANT: No. *3
{¶ 14} "THE COURT: Okay. I don't know if you had an opportunity to review this, but I need you tо read these eight items. If you understand them, I need your signature there.
{¶ 15} [Defendant signs]
{¶ 16} "THE COURT: Do you understand all those rights as you've read them?
{¶ 17} "THE DEFENDANT: Yes, Your Honor.
{¶ 18} "THE COURT: Do you have any questions regarding any of these rights?
{¶ 19} "THE DEFENDANT: No, Your Honor.
{¶ 20} "THE COURT: Okay. And at this time you wish to enter a plea of guilty to the charge; do you understand that?
{¶ 21} "THE DEFENDANT: Yes, Your Honor.
{¶ 22} "THE COURT: Okay. The court will accept the рlea of guilty to the charge of corruption of a minor. * * *" (Feb. 7, 2007 Plea and Sentencing Tr., pp. 2-4.)
{¶ 23} Appellant was ordered to refrain from having any contact with the victim. He was sentenced to 180 days in jail, which was suspended, and six months reporting probation. He was also ordered to pay a $500 fine and ordered to register as a sexually oriented offender.
{¶ 24} On March 15, 2007, Appellant filed his notice of appeal with this Court.
{¶ 25} Appellant's assignments of error are addressed collectively and assert: *4
{¶ 26} "The Trial Court erred in finding the Appellant guilty and sentencing the аppellant, including the requirement to register as a sexually oriented offender without complying with Criminal Rule 11(E).
{¶ 27} "The Trial Court erred in finding the Appellant guilty and sentencing the appellant, including the requirement to register as a sexually oriented offender without the Defendant ever actuаlly entering a plea of guilt. [sic]"
{¶ 28} Appellant argues that the trial court failed to comply with
{¶ 29}
{¶ 30} "(A) No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the оffender is reckless in that regard.
{¶ 31} "(B) Whoever violates this section is guilty of unlawful sexual conduct with a minor.
{¶ 32} "(1) Except as otherwise provided in divisions (B)(2), (3), and (4) of this section, unlawful sexual conduct with a minor is a felony of the fourth degree. *5
{¶ 33} "(2) Except as otherwise provided in division (B)(4) of this section, if the оffender is less than four years older than the other person, unlawful sexual conduct with a minor is a misdemeanor of the first degree."
{¶ 34}
{¶ 35} Appellant pleaded guilty to a first degree misdemeanor and was subject to a maximum sentence of 180 days in jail.
{¶ 36} "With reference to the offense or offenses to which the plea is entered:
{¶ 37} "(1) The plea of guilty is a complete admission of the defendant's guilt.
{¶ 38} "(2) The plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.
{¶ 39} "(3) When a plea of guilty or no contest is accepted pursuant to this rule, the court, except as provided in divisions (C)(3) and (4) of this rule, shall proceed with sentencing under
{¶ 40} Appellant directs our attention to State v. Watkins,
{¶ 41} In State v. Jones, supra, this Court examined each of the cases cited by the present Appellant. In Jones, the dеfendant pleaded guilty to one count of domestic violence. He subsequently appealed his guilty plea and sentence alleging on appeal that the trial court failed to advise him of the effect of both a guilty plea and a no contest plea pursuаnt to
{¶ 42} We concluded that since the Supreme Court's decision inState v. Watkins, supra, "we must simply determine whether [the trial court] informed the defendant of the information in
{¶ 43} Following Jones, however, we certified a conflict to the Ohio Supreme Court, which accepted the case for review. It specifically addressed the issue of how a court should fulfill its duty to inform a defendant of the "effeсt of a plea" in compliance with
{¶ 44} The Supreme Court disagreed, however, with our literal applicаtion of the language in
{¶ 45} Further, the Supreme Court rejected the argument that a trial judge who advises a defendant of the maximum possible sentence and the right to a jury trial has sаtisfied the "effect of the plea" requirement. Id. at ¶ 22. Instead, Jones held that, "to satisfy the requirement of informing a defendant of the effect of a plea, a trial court must inform the defendant of the appropriate language under
{¶ 46} Upon reviewing the sentencing record in Jones, the Ohio Supreme Court acknowledged that the defendant was advised of the constitutional rights that he was waiving, the maximum penalty that he faced, and whether he understood that he was pleading guilty. This notice, however, was not a substitute for the requirement that the court must explain the effect of the plea, which means an explanation that a guilty plea is a complete admission of guilt pursuant to
{¶ 47} Although the Jones Court acknowledged that the trial court committed clear error, the Court also concluded the error did not involve a constitutional right. For that reason, the error was not reversible without a showing of prejudice. Prejudice, in this context, means that the plea would not otherwise have been made but for the trial court error. Id. at ¶ 52. Also, a defendant who has entered a guilty plea without asserting his actual innocence is presumed to understand that he has completely admitted his guilt, and, "a court's failure to inform the defendant of the *9
effect of his guilty plea as required by
{¶ 48} A review of the record in this case does not clearly establish that Appellant was advised that a plea of guilty was a complete admission of his guilt. As earlier discussed and cited, the transcript at his plea hearing indicates the judge told Appellant that by entering his guilty plea he was "admitting" he was "involved with" corruption of a minor, not necessarily a straightforward admission of guilt. As such, the trial court may have erred in failing to clearly advise him of the applicablе section of
{¶ 49} The foregoing analysis is equally applicable to Appellant's second assignment of error in which he claims that he never actually entered a plea. He alleges that the trial court never specifically and expressly asked him to enter his guilty plea. Instead, the trial judge asked him whether he understood that he wished to enter a plea of guilty to the charged offense. Appellant responded in the affirmative. (Feb. 7, 2007, Plea and Sentencing Tr., p. 4.)
{¶ 50} Although it would certainly have been clearer if the trial court had asked a more direct question about whether Appellant was entering a guilty plea, a review of the record shows that he completely understood the crime he was charged with, the potential penalties, and that he was, in fact, pleading guilty. He acknowledged reviewing the matter with his lawyer, and he agreed on the record that he understood that he wanted to plead guilty to the charge. (Feb. 7, 2007, Plea and Sentencing Tr., pp. 2-4.) He also signed a written waiver of rights upon plea, in which he acknowledged that he was entering a plea. Based on the foregoing, Appellant's second assignment of error lacks merit and is overrulеd.
{¶ 51} Appellant has raised a further question about his classification as a sexually-oriented offender. Although Appellant did not stipulate to that classification, it was discussed during the plea hearing and no objections or concerns were raised at that time. Appellant's counsel clearly acknowledged that registration as a sexual offender was one of the consequences of entering into the plea agreement. (Tr., p. 5.) Furthermore, we have found no rule or caselaw that requires the trial judge to have an express discussion with Apрellant about the registration requirement. As *11
noted above, the only requirement that
{¶ 52} In conclusion, Appellant may be correct that the trial court failed to completely satisfy
Vukovich, J., concurs.
*1DeGenaro, P.J., concurs.