STATE OF OHIO, BELMONT COUNTY v. DRU EDWARD HUFF
CASE NO. 13 BE 37
IN THE COURT OF APPEALS SEVENTH DISTRICT
December 11, 2014
2014-Ohio-5513
Hon. Mary DeGenaro, Hon. Gene Donofrio, Hon. Cheryl L. Waite
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 13 CR 129. JUDGMENT: Reversed, Plea Vacated; and Remanded.
For Plaintiff-Appellee: Attorney Daniel Fry, Prosecuting Attorney; Attоrney Helen Yonak, Asst. Prosecuting Attorney, 147 West Main Street, St. Clairsville, OH 43950. No Brief Filed
For Defendant-Appellant: Attorney Michelle Miller, 802 Third Street, P.O. Box 217, Brilliant, OH 43913
{¶1} Defendant-Appellant, Dru Edward Huff, appeals the October 16, 2013 judgment of the Belmont County Court of Common Pleas convicting him of one count of gross sexual imposition and sentencing him accordingly, following a no contest plea. Huff asserts that his plea was not knowing, voluntary and intelligent because the trial court failed to advise him about post-release control during the plea hearing. He also asserts the trial court erred by imposing the maximum prison sentence and by failing to properly advise him about pоst-release control during the sentencing hearing and in the judgment entry of sentence.
{¶2} Huff‘s appeal is meritorious. First, the trial court completely failed to notify him about post-release control during the plea colloquy. Second, while not specifically raised by Huff, the trial court‘s complete failure to notify Huff about sex offender registration requirements during the plea colloquy is also an error requiring that the plea be vacated. Accordingly, the judgment of the trial court is reversed, Huff‘s plea is vacated, and the matter is remanded for further proceedings.
Facts and Procedural History
{¶3} On March 19, 2013, Huff was charged by complaint with one count of kidnapping,
{¶4} On September 3, 2013, Huff appeared in court, waived prosecution by indictment, and agreed to plead no contest to a bill of information charging him with onе count of gross sexual imposition,
{¶5} During the plea colloquy, the trial court failed to advise Huff that he would be subject to a mandatory five-year term of post-release control upon his release if he pled guilty. The written no contest plea agreement did mention post-release control, however, this information was erroneous, stating he would be subject to a 5 year optional term.
{¶6} The trial court also failed to inform Huff about the sex offender registration requirements he would be subjected to as a result of pleading no contest to a sex offense. The trial court did advise Huff about the remaining constitutional and nonconstitutional rights he would be giving up by pleading guilty. At the close of the hearing, the trial court accepted Huff‘s plea as knowing, voluntary and intelligent. The trial court ordered a presentence investigation, victim impact statement and EOCC evaluation.
{¶7} On October 15, 2013, a sentencing hearing was held. Defense counsel noted that the State was amenable to community control and argued that community control was the appropriate sentence. Defense counsel contended that Huff would be sufficiently punished by having to register as а sex offender; he noted that this would have devastating consequences for Huff‘s career. After being addressed by the trial court, Huff declined to make a statement in mitigation of punishment, in light of the fact that he had a pending civil suit against him. The victim made a statement stressing how the offense had caused her great fear and the inability to trust others, especially teachers.
{¶8} After considering all of the information presented to it, along with the principles and purposes of sentencing in
Plea
{¶10} In his first of three assignments of error, Huff asserts:
{¶11} “The Trial Court erred by failing to substantially comply with
{¶12} A plea must be made knowingly, voluntarily and intelligently. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶7; State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). If it is not, it has been obtained in violation of due process and is void. State v. Martinez, 7th Dist. No. 03 MA 196, 2004-Ohio-6806, ¶11, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness of a plea, an appellate court must consider all of thе surrounding relevant circumstances. State v. Johnson, 7th Dist. No. 07 MA 8, 2008-Ohio-1065, ¶8, citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
{¶13} In order for a trial court to ensure that a felony defendant‘s plea is knowing, voluntary and intelligent, it must engage the defendant in a colloquy pursuant to
{¶14} When the trial court does not substantially comply with
{¶15} However, in Sarkozy, the Ohio Supreme Court held that when a trial court fails to mention post-release control at all during the plea colloquy, the court fails to comply with
{¶16} Huff was convicted of one count of gross sexual imposition, a violation of
{¶17} During the plea colloquy, the trial court completely failed to make any mention of post-release control to Huff. This is the same situation presented by Sarkozy. Further, it is distinguishable from State v. Berch, 7th Dist. No. 08-MA-52, 2009-Ohio-2895, whеre the trial court at least attempted to explain post-release control during the plea hearing, but misstated the requirements; thus, there was partial compliance, which triggered an analysis of prejudiсe; but Berch ultimately found no prejudice. Id. at ¶10, 34-35.
{¶18} In Sarkozy, like here, there was no compliance during the plea hearing and there was no need for an analysis of prejudice. Sarkozy at ¶22. Concededly, there was some mention of post-release control in Huff‘s written рlea agreement, however, even this information was erroneous, stating that Huff would be subject to an optional 5 year term.
{¶20} In addition, although not raised specifically by Huff, the trial court made no mention of Huff‘s sex offender classification rеquirements during the plea hearing. In the past, this was not a required part of the plea colloquy, because “prior to the Adam Walsh Act version of
{¶21} However, in State v. Williams, 129 Ohio St.3d 324, 2011-Ohio-3374, 952 N.E.2d 1108, ¶16, the Supreme Court of Ohio held that the Adam Walsh Act is punitive, not remedial and accordingly, many aрpellate districts now hold that ”
Sentencing
{¶23} Huff‘s second and third assignments of error concern his sentencing and they assert, respectively:
{¶24} “The Trial Court erred by failing to properly advise the Defendant of post release control regarding the mandatory requirement and the length of post release control during sentencing and in its Judgment entry in contravention of
{¶25} “The Trial Court erred by imposing the maximum prison sentence where there lackеd clear and convincing evidence that the sentence was supported by the record.”
{¶26} Because we have vacated Huff‘s no contest plea, these assignments of error are moot.
{¶27} In sum, becausе the trial court completely failed to notify Huff about post-release control and about sex offender registration requirements during the plea colloquy, Huff‘s appeal is meritorious. Accordingly, the judgment of the trial court is reversed, Huff‘s plea vacated, and the matter is remanded for further proceedings.
Donofrio, J., concurs.
Waite, J., concurs.