State v. MillerState v. Miller
Lawrence A. Gold, for appellant.
DECISION AND JUDGMENT
OSOWIK, J.
{¶ 1} This is an appeal from an April 29, 2016 judgment of the Fulton County Court of Common Pleas, denying appellant’s
{¶ 2} Appellant, Michael Miller, sets forth the following two assignments of error:
I. 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 AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING HIS MOTION TO WITHDRAW HIS PLEA.
{¶ 3} The following undisputed facts are relevant to this appeal. In August 2014, appellant engaged in sexual intercourse with a 13 year-old girl at a Fulton County public park. Pursuant to a negotiated plea, appellant pled guilty to one count of menacing by stalking.
{¶ 4} Shortly thereafter, in September 2014, appellant engaged in a variety of unlawful sexual activities with a different victim, a 15 year-old girl, in addition to furnishing the girl with unlawful drugs.
{¶ 5} On January 13, 2015, as a result of appellant’s array of unlawful sexual acts with the second victim, appellant was indicted on two counts of corrupting another with drugs, in violation of
{¶ 6} On March 8, 2016, pursuant to a negotiated plea agreement, appellant pled guilty to one count of sexual battery, in violation of
{¶ 7} On September 19, 2015, shortly after being released on bond in connection to the January 13, 2015 nine-count criminal indictment against him, appellant engaged in another forcible sexual liaison with a third victim, resulting in a third set of sexual
{¶ 8} On April 20, 2016, appellant proceeded to trial on the charges involving this third victim. On April 22, 2016, appellant was acquitted of the charges involving the adult victim.
{¶ 9} On April 29, 2016, one week following appellant’s acquittal of the charges in the sole case involving an age of majority victim, appellant was scheduled to be sentenced on the three counts that appellant voluntarily pled guilty to one month earlier, on March 8, 2016, in connection to the second, 15 year-old victim.
{¶ 10} Following the acquittal in the separate case with an adult victim, appellant sought to withdraw his March 8, 2016 pleas involving the 15-year-old victim. In support, appellant stated, “I have faith that the jurors will be able to see the truth.”
{¶ 11} Appellant’s motion to withdraw was denied. On May 6, 2016, appellant was sentenced to a total term of incarceration of 68 months. This appeal ensued.
{¶ 12} Appellant’s assignments of error both stand for the proposition that the trial court erred in failing to grant appellant’s motion to withdraw and they will be addressed simultaneously.
{¶ 13} It is well-established that the underlying purpose of
{¶ 14} In a recent case we similarly considered the adequacy of Tier III sex offender notification furnished by the trial court. In that case, highly pertinent to our consideration of the instant appeal, we found the trial court’s Tier III notification to be inadequate, thereby compromising
{¶ 15} The record in this case reflects that the trial court conveyed to appellant, “Do you understand * * * Count IV, sexual battery, carries a potential penalty of incarceration for a definite term of anywhere from twelve to sixty months, possible fine of up to $10,000.00, and a SORN registration requirement of a TIER III, which would be a lifetime requirement that you register with the Sheriff of any county in which you reside?”
{¶ 16} Accordingly, the record shows that although trial court informed appellant of his Tier III sex offender registration requirements, it failed to further inform appellant of the additional Tier III components of community notification and residential restrictions. As such, consistent with our holding in Mahler, we find that the trial court did not satisfy
{¶ 17} Wherefore, we find appellant’s assignments of error to be well-taken.
{¶ 18} On consideration whereof, the judgment of the Fulton County Court of Common Pleas is hereby reversed and remanded to the trial court for further proceedings consistent with this opinion. Appellee is ordered to pay the cost of this appeal pursuant to
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
JUDGE
CONCUR.