STATE OF OHIO, Plaintiff-Appellee, v. ALFRED WAYNE HENSON, Defendant-Appellant.
CASE NO. CA2013-12-221
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
9/15/2014
[Cite as State v. Henson, 2014-Ohio-3994.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-07-1147
Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendаnt-appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Alfred Wayne Henson, appeals his conviction in the Butler County Court of Common Pleas for sexual battery, arguing that his guilty plea was not knowingly, intelligently, and voluntarily entered because the trial court misinformеd him of the community notification requirements for a Tier III sex offender. For the reasons discussed below, appellant‘s plea is vacated and the matter is remanded to the trial court for further proceedings.
{¶ 2} In September 2013, appellant was indicted on one count of sexual battery in violation of
THE COURT: Okay. Mr. Henson, it‘s the Court‘s understanding this morning that you will enter a plea of guilty to sexual battery. Sexual battery is a felony in the third degree. Under Ohio law, the maximum possible sentence the court would impose would be five years in prison and a $7,500 fine. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Now, in addition to that, he would be considered to be a Tier II offender?
[THE PROSECUTOR]: Tier III, Your Honor.
THE COURT: Tier III offender. What that means under Ohio law is that there will be a requirement that you must register for you - - the rest of your life, every three months, in the community in which you live, the county in which you live, and I believe that this does not carry a mandatory public notification or does it?
[THE PROSECUTOR]: I don‘t believe it does, Your Honor.
THE COURT: I don‘t believe it does.
[THE PROSECUTOR]: Just has sexual offender, - -
THE COURT: Yeah.
[THE PROSECUTOR]: - - or excuse me, sexual battery.
THE COURT: Yeah. So, do you understand that? THE DEFENDANT: Yes.
(Emphasis added.) Appellant indicated he understood the consequencеs of pleading guilty and executed a “Plea of Guilty and Jury Waiver” form (hereafter, “plea form“). The plea form did not mention appellant‘s sex offender status or sex offender reporting and notification requirements.
{¶ 3} Appellant was sentenced on October 23, 2013. At this time, the trial court provided appellant with an “Explanation of Duties to Register as a Sex Offender or Child Victim Offender” form (hereafter “explanation of duties form“) and advised appellant as follows about his sex offender reporting and notification requirements:
THE COURT: Okay. Mr. Henson has previously been found guilty of sexual battery. I believe that‘s a Tier II offender?
[THE PROSECUTOR]: Tier III.
THE COURT: Tier III offender. So what that means, Mr. Henson, the Court has previously indicated to you that you are required to register for your lifetime, every 90 days in the county in which you live. I believe he is not subject to community notification. Is that correct?
[THE PROSECUTOR]: I believe that‘s correct.
THE COURT: Okay. Do you understand all that?
THE DEFENDANT: I mean, what‘s community notification means.
[DEFENSE COUNSEL]: It doesn‘t get published.
THE COURT: Means it doesn‘t get published. Okay?
THE DEFENDANT: Okay.
THE COURT: Here is a - - [defense counsel], why don‘t you have him study that notification. We‘ll give him a copy of that.
* * *
[DEFENSE COUNSEL]: He signed the notification, Your Honor.
THE COURT: Okay. He signed it and I‘ll give him a copy back.
* * *
THE COURT: He has signed it; part of the record. We‘ll file that, unless you want to.
[THE PROSECUTOR]: No, Judge. Thank you.
(Emphasis added.)1 The explanation of duties form contained a check-marked box indicating appellant was classified as a Tier III sex offender. The box immediately following the Tier III sex offender classification box was also check-marked. This box spеcifically provided “Not Subject to Community Notification pursuant to
{¶ 4} Appellant timely appealed his conviction, raising as his sole assignment of error the following:
{¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN ITS ACCEPTANCE OF A GUILTY PLEA WHICH WAS NOT KNOWING,
{¶ 6} Appellant argues his guilty plea to sexual battery was not knowingly, intelligently, and voluntarily made as he was not advised of the maximum penalty he faced during the plea colloquy. Appellant contends that because the sex offender tier level classification and corresponding requirements of the Adam Walsh Child Prоtection and
Safety Act,
{¶ 7} Before addressing whether appellant‘s plea was knowingly, intelligently, and voluntarily entеred, we must first determine whether appellant, as a Tier III sex offender, was subject to community notification.
and whether the offender suffers from a mental illness or disability.
{¶ 8} Having examined the record in the present case, it is apparent that the trial court did not comply with the requirements of
{¶ 9} We must therefore determine what affect, if any, the trial court‘s incorrect statements regarding community notification has on the validity of appellant‘s plea.
{¶ 10} “When a defendant enters a guilty plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily, and the failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Butcher, 12th Dist. Butler No. CA2012-10-206, 2013-Ohio-3081, ¶ 8, citing State v. Douglass, 12th Dist. Butler Nos. CA2008-07-168 and CA2008-08-199, 2009-Ohio-3826, ¶ 9. To ensure that a defendant‘s plea is knowing, voluntary, and intelligent, the trial court must engage the defendant in a colloquy pursuant to
(a) Determining that the defendant is making the plea voluntarily,
with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea оf guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, tо confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannоt be compelled to testify against himself or herself.
{¶ 11} The rights found in
{¶ 12} When the trial court does not substantially comply with
where “the trial judge completely failed to comply with the rule * * * the plea must be vacаted.” Id. Further, “[a] complete failure to comply with the rule does not implicate an analysis of prejudice.” Id., citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶ 22.
{¶ 13} We have previously found that the registration and notification requirements set forth in
{¶ 14} Here, the record reflects that the trial court failed to comply with
both the plea hearing and the sentencing hearing, the trial court incorrectly informed appellant that he would not be subject to community notification. Further, the explanation of duties form executed by appellant at the sentencing hearing also incorrectly advised appellant that he was not subject to community notification. Based on the trial court‘s inaccurate information, we find that appellant could not have subjectively understood the community nоtification requirements set forth in
{¶ 15} Accordingly, for the reasons discussed above, appellant‘s sole assignment of error is sustained.
{¶ 16} Appellant‘s plea is vacated and this matter is reversed and remanded to the trial court for further procеedings consistent with the law and in accordance with this Opinion.
PIPER and M. POWELL, JJ., concur.