STATE OF OHIO, Plaintiff-Appellant, vs. DARRYL KING, Defendant-Appellee.
APPEAL NOS. C-140534, C-140535; TRIAL NOS. B-0808064, B-1205210
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 2, 2015
[Cite as State v. King, 2015-Ohio-3565.]
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 2, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle, Assistant Public Defender, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} Plaintiff-appellant Darryl King has appealed the trial court‘s judgments overruling his motions to withdraw his guilty pleas to two separate counts of failing to verify his address. We reverse the trial court‘s judgments.
Facts and Procedure
{¶2} On March 8, 2004, in a Lapeer County, Michigan family court, King, who was 14 years old and a resident of Ohio, was charged with two counts of criminal sexual conduct in the first degree with a juvenile younger than 13. The conduct had occurred while King had been on vacation for two days in Michigan. On May 5, 2004, King accepted a pretrial settlement agreement to a reduced charge of a single count of criminal sexual conduct in the third degree. The agreement noted that King had to register “under SORA.” The judgment of conviction did not require King to register as a sex offender.
{¶3} Five months later, someone from the Lapeer County, Michigan prosecutor‘s office faxed to the Hamilton County sheriff a copy of the settlement agreement, along with a note stating that King had not yet been sentenced, but had been required by the Michigan judge to register as a sex offender. The express purpose of the fax was to “get him registered as a sex offender.”
{¶4} On July 14, 2005, the sentencing hearing was held. King was sentenced to 337 days’ incarceration, with credit for 337 days served. The sentencing entry noted that King “shall be registered as a sexual offender in the state of Ohio,” but the box indicating that registration was complete was not checked.
{¶5} On October 14, 2008, in the case numbered B-0808064, King was indicted for failing to provide periodic address verification. He pleaded guilty to a fourth-degree felony and was sentenced to two years of community control. A
Analysis
{¶6} King‘s sole assignment of error alleges that the trial court erred in overruling his motions to withdraw his pleas where they were not knowing, voluntary or intelligent, because counsel had been ineffective in wrongly advising King about his duty to register in Ohio. King argues that because he had no legal duty to register as a sex offender in Michigan, he has no duty to register in Ohio.
{¶7} In State v. Ferguson, 1st Dist. Hamilton No. C-140368, 2015-Ohio-1463, ¶ 7, quoting State v. Shirley, 1st Dist. Hamilton No. C-130121, 2013-Ohio-5216, ¶ 8, we stated,
Crim.R. 32.1 provides that a trial court may permit a defendant to withdraw a guilty plea after sentence “to correct manifest injustice.”Crim.R. 32.1 ; State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus; State v. Akemon, 173 Ohio App.3d 709, 2007-Ohio-6217, 880 N.E.2d 143, ¶ 8 (1st Dist.). “A manifest injustice has been defined as a ‘clear or openly unjust act,’ evidenced by an extraordinary and fundamental flaw in a plea proceeding.” State v. Tekulve, 188 Ohio App.3d 792, 2010-Ohio-3604, 936 N.E.2d 1030, ¶ 7 (1st Dist.), citing State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), and Smith at 264.
{¶8} Under Megan‘s Law, Ohio‘s sex-offender-registration statutes were applicable to out-of-state offenders by operation of
{¶9} In State v. Lloyd, the Ohio Supreme Court set aside Lloyd‘s convictions for failing to register and failing to provide written notice of intent to reside. Lloyd, who had been born in Ohio and had moved to Texas “because of military duties,” was convicted in Texas of aggravated sexual assault, which was substantially equivalent to rape in Ohio, and was sentenced to seven years in prison. He moved to Ohio in 2005 and began to register as a sexually oriented offender. He was subsequently convicted of failing to register and failing to provide notice of intent to move. The Supreme Court set aside his convictions because the state had failed to prove that, when Lloyd moved to Ohio, he was under a duty to register in Texas as a result of his conviction there for aggravated sexual assault. Lloyd at ¶ 58. The court stated, “This case highlights the reasons why a court cannot assume that a
{¶10} At the time King committed his offense, Michigan‘s sex-offender-registration statute applied only to sex offenders “who [were] domiciled or temporarily reside[d] in this state for 14 or more consecutive days, who work[ed] * * * or [were] students in this state for 14 or more consecutive days, or who [were] domiciled, reside[d], or work[ed] * * * or [were] students in this state for 30 or more total days in a calendar year[.]”
{¶11} The record does not reveal what advice counsel gave King or what conversations took place between King and his counsel at the time he entered his pleas. But it is clear from the record that King does not have a duty to register in Ohio as a sex offender and thus could not have been convicted of violating that duty.
{¶12} Based on the record before us, we hold that King has demonstrated a manifest injustice, and therefore, the trial court abused its discretion in overruling his motions to withdraw his pleas.
Conclusion
{¶13} The assignment of error is sustained. The judgments of the trial court overruling King‘s motions to withdraw his pleas are reversed. We remand with instructions to the trial court to permit King to withdraw his pleas and for further proceedings consistent with law and this opinion.
Judgments reversed and cause remanded.
HENDON, P.J., and MOCK, J., concur.
Please note:
The court has recorded its own entry this date.