STATE OF OHIO, Plaintiff-Appellee, v. DEMETRIUS STENNETT, Defendant-Appellant.
No. 111424
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
December 22, 2022
[Cite as State v. Stennett, 2022-Ohio-4645.]
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 22, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-653646-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Lisa J. Turoso, Assistant Prosecuting Attorney, for appellee.
Law Office of Jaye M. Schlachet and Eric M. Levy, for appellant.
SEAN C. GALLAGHER, A.J.:
{¶ 1} Demetrius Jovan Stennett appeals his conviction for sexual battery, a violation of
{¶ 3} Stennett accepted the plea offer and entered a guilty plea following the colloquy. Stennett was sentenced to a four-year term of imprisonment along with the attendant Tier III reporting requirements under
{¶ 4} In the third assignment of error, Stennett claims that the four-year term of imprisonment imposed upon the violation of
{¶ 5} Although the state‘s appellate briefing is largely unresponsive to Stennett‘s argument, it must be recognized that the Ohio Supreme Court recently addressed the question of whether a sentencing entry must precisely track the language of the applicable sentencing statute. State v. Leegrand, Slip Opinion No. 2022-Ohio-3623, ¶ 1. In answering that question in the negative, the Ohio Supreme Court concluded that a de minimis or indistinguishable difference between the sentencing entry and the statutory language does not necessarily amount to reversible error. Id. at ¶ 9. In Leegrand, the offender was sentenced to a term of “life in prison with eligibility of parole after 15 years.” Id. at ¶ 8. The applicable statutory section,
{¶ 7} In support of his argument challenging that sentence, Stennett cites State v. Hariston, 8th Dist. Cuyahoga No. 102606, 2015-Ohio-4500, ¶ 37, for the proposition that a sentence imposed in terms of months is not the same as a sentencing provision authorizing a term of imprisonment expressed in terms of days. In Hariston, the offender was sentenced to a term of six months under
{¶ 8} Unlike the difference in expressing a 180-day jail sentence in terms of months, imposing a 48-month prison sentence in terms of years describes an equal time frame. Under a general understanding of the computation of time, a one-year
{¶ 9} Further, we note that in practical terms, and irrespective of the above legal analysis, there is no difference to the length of Stennett‘s prison sentence whether described in terms of 48 months or four years. According to the “notice of commitment and calculation of sentence” made part of the record in this case, Stennett‘s date of admission to prison was March 24, 2022. When applying the 18-
{¶ 10} In the first two assignments of error, Stennett claims that the four-year term of imprisonment is clearly and convincingly contrary to law because the factual underpinnings of the relevant principles and purposes of felony sentencing under
{¶ 11} Under a more recent pronouncement, the Ohio Supreme Court‘s conclusion in Marcum at paragraph 23 was deemed dicta that cannot form the basis for expansion of the relevant sentencing review law. Although, generally speaking, obiter dictum may be relied upon as persuasive authority, see Browne v. Artex Oil Co., 158 Ohio St. 3d 398, 2019-Ohio-4809, 144 N.E.3d 378, ¶ 27, the Ohio Supreme Court deemed it reversible error to rely on Marcum for the proposition that an appellate court may review whether the record clearly and convincingly supports the sentencing factors and consideration under
{¶ 13} A defendant‘s right to appeal a sentence is derived from
{¶ 14} In the fourth and final assignment of error, Stennett claims his plea was not knowingly, voluntarily, or intelligently entered because although the trial court advised him that he would be classified as a Tier III sex offender for life, he was not advised of all collateral consequences attendant thereto.
{¶ 16} In State v. Dangler, 162 Ohio St. 3d 1, 2020-Ohio-2765, 164 N.E.3d 286, the Ohio Supreme Court indicated that its prior caselaw suggesting different tiers of compliance with Crim.R. 11(C) had “muddled the analysis” and unduly complicated what should be a straightforward inquiry. Id. at ¶ 17. The court determined that when reviewing a plea challenge under Crim.R. 11, aside from two limited exceptions, the “traditional rule” applies under which “a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of Crim.R. 11(C).” Id. at ¶ 16, citing State v. Nero, 56 Ohio St. 3d 106, 108, 564 N.E.2d 474 (1990). “The test for prejudice is ‘whether the plea would have otherwise been made.‘” Id., quoting Nero at 108. Prejudice is required to be established on the face of the record. Id. at ¶ 24, citing Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St. 3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 26.
{¶ 17} One exception where no showing of prejudice is required occurs when a trial court fails to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c).
{¶ 18} Properly understood, in reviewing a Crim.R. 11 challenge, the questions to be answered are simply: “(1) has the trial court complied with the relevant provision of the rule? (2) if the court has not complied fully with the rule, is the purported failure of a type that excuses a defendant from the burden of demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant met that burden?” Dangler at ¶ 17.
{¶ 19} The Ohio Supreme Court has overruled arguments similar to the ones Stennett raises herein, declining to impose a specific requirement that a trial court notify an offender of every collateral consequence of a sex offender registration requirement. “When a trial court has told a defendant that he is subject to the sex-offender-registration scheme, that defendant is entitled to have his conviction vacated for lack of a more complete explanation only if he demonstrates prejudice.” Dangler, 162 Ohio St. 3d 1, 2020-Ohio-2765, 164 N.E.3d 286, at ¶ 2. In Dangler, the trial court had simply advised the offender that “he would be classified as a Tier III sex offender and would be required to register for the rest of his life.” Id. at ¶ 7. Based on that advisement, the Ohio Supreme Court determined that the trial court
{¶ 20} Stennett acknowledges that he must demonstrate prejudice from the face of the record, and in this context, Stennett claims that although the trial court advised that pleading guilty included him being designated as a Tier III sex offender with a lifetime registration requirement,
[h]e was unaware that that meant he would be placed on a community notification list and the public and his immediate neighbors would be advised he was a sex offender; that he would be unable to be located near a school or that he would be subject to verification requirements and could face serious additional felony charges for not strictly complying therewith.
Stennett‘s supposed lack of knowledge solely rests on his appellate argument. Nothing from the face of the record demonstrates that Stennett was unaware of the full extent of the reporting requirements or that those requirements were material to his decision to plead guilty.
THE COURT: Now I‘m going to go over your duties to register as a sex offender once you‘ve entered your plea but I‘m going to tell you before you enter your plea that the sexual battery carries with it a tier 3 registration which is for your lifetime with in-person verification every 90 days. Okay?
THE DEFENDANT: Okay.
THE COURT: I just want to make sure that you know everything before you enter your plea. And then I‘ll go through the details of it later, okay?
THE DEFENDANT: Yes, your Honor.
If Stennett‘s guilty plea was based on more thorough knowledge of the reporting requirements, and not the fact that his guilty plea reduced the severity of his crime from a first-degree felony rape to a third-degree felony sexual battery, the importance of the reporting requirements could have been made part of the record at that time. Instead, nothing demonstrates that more information regarding the reporting requirement, beyond knowledge of the lifetime duration, affected his decision to plead guilty. In fact, after the more thorough discussion of all the reporting requirements was had before the sentence was imposed, tr. 43:23-46:13, Stennett never questioned the trial court about the extent of the reporting requirements, or how the full impact of the requirements affected his earlier decision to plead guilty.
{¶ 22} Although the best-practices approach would include a more thorough advisement in all cases during the plea colloquy, the record does not demonstrate
{¶ 23} Because the face of the record does not demonstrate that Stennett would not have pleaded guilty to the sexual battery had he known of all the collateral consequences arising from the lifetime sex offender reporting requirement before entering the guilty plea, he has not demonstrated the existence of prejudice for the purposes of vacating the guilty plea. The fourth and final assignment of error is overruled.
{¶ 24} Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY;
LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY
Notes
As could be pertinent to this case, the lingering question from Bryant remains: how does an appellate court review to determine whether a trial court considered a factor not expressly included within
And, for the sake of clarity, it is not a mere “assumption” that