State of Ohio v. Terry L. Sanders
Court of Appeals No. L-15-1068
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: March 31, 2016
2016-Ohio-1397
Trial Court No. CR0201402448
Lawrence A. Gold, for appellant.
DECISION AND JUDGMENT
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Terry Sanders, appeals the February 13, 2015 judgment of the Lucas County Court of Common Pleas which after accepting appellant’s guilty-plea, sentenced him to six years of imprisonment, ordered him to serve five years
{¶ 2} On June 3, 2012, at approximately 4:30 a.m., appellant and co-defendant, Christian Cook, encountered the victim in Toledo, Lucas County, Ohio, as she was walking home. The men forced the victim to an abandoned house, removed her clothing, and forced themselves on her. Appellant engaged in both oral and vaginal sex with the victim. After hearing a noise in a nearby alley, appellant and his co-defendant fled taking the victim’s purse and cellphone. The victim took refuge at a nearby Taco Bell where employees called 911. The police arrived, took a report, and then transported the victim to a hospital where a rape kit was prepared and swabs were sent to the Bureau of Criminal Investigation and Identification. Appellant was identified by the DNA evidence from the kit and a condom found at the scene also contained appellant’s DNA.
{¶ 3} On September 9, 2014, the state filed an indictment charging appellant with one count of rape, a felony of the first degree, and his co-defendant, Christian Cook, with two counts of rape. On January 26, 2015, after rescheduling the trial multiple times, appellant entered a guilty plea to a lesser offense of attempted rape, a felony of the second degree. Although the court informed appellant that because of his plea he would be classified as a Tier III sex offender, the court provided no further explanation as to the accompanying registration obligations. On February 12, 2015, the court sentenced appellant to six years of imprisonment and ordered him to serve five years of post-release control. As in the plea hearings, the court informed appellant that he would be classified
I. The trial court erred to the prejudice of appellant in accepting a guilty plea, pursuant to North Carolina v. Alford, 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 committed plain error to the prejudice of appellant at sentencing by imposing court costs and financial sanctions without consideration of Appellant’s present or future ability to pay.
III. Appellant received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §10 of the Constitution of the State of Ohio.
{¶ 4} Appellant’s first assignment of error contends that because the trial court did not fully inform him of the consequences of his guilty plea (the mandatory registration obligations as a sex offender) his due process rights were violated. The Supreme Court of Ohio has found that
{¶ 5} While it is preferred that courts strictly adhere to the language in
{¶ 6} When the court fails to inform the defendant of a nonconstitutional right, the court must then consider whether there was substantial compliance. Clark at ¶ 31-32, quoting State v. Nero 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). The Supreme Court of Ohio has defined “substantial compliance” as “under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” Nero at 108. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show
{¶ 7} This court has recently considered whether a failure to inform a defendant of registration requirements of a Tier III sex offender should be considered partial compliance or non-compliance. McMahon at ¶ 8, 12-13. The court recognized that the registration requirements for those classified as a Tier III sex offender were “punitive” in nature, and therefore the court’s failure to inform the defendant of them was non-compliance with
{¶ 8} In this case, the trial court did not inform appellant of the registration requirements of a Tier III sex offender. This failure constitutes non-compliance on the part of the trial court, leaving appellant unaware of the extent of the punishment imposed upon him. This renders appellant’s plea void as it cannot be considered as being given
{¶ 9} Because we have determined that appellant‘s guilty plea was not knowing and voluntary, the issues raised in appellant’s second and third assignments of error are therefore moot and we decline to address them. See
{¶ 10} On consideration whereof, we find that appellant was prejudiced and prevented from having a fair proceeding. Accordingly, the judgment of the Lucas County Court of Common Pleas is reversed. Appellant’s plea and sentence are hereby vacated, and the matter is remanded for further proceedings consistent with this decision. Appellee is ordered to pay the costs of this appeal pursuant to
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
James D. Jensen, P.J.
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.