State v. VeiteState v. Veite
Case Information
*1
[Cite as
State v. Veite
,
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO, : APPEAL NO. C-190339
TRIAL NO. 19CRB-9258 Plaintiff-Appellant/ :
Cross-Appellee,
: O P I N I O N.
vs.
:
JONATHAN VEITE,
:
Defendant-Appellee/
Cross-Appellant.
Criminal Appeal From: Hamilton County Municipal Court Judgment Appealed From Is: Pleas Vacated and Cause Remanded Date of Judgment Entry on Appeal: February 3, 2021
Andew W. Garth , Interim City Solicitor, William T. Horsley , Chief Prosecuting Attorney, and Jon Vogt , Assistant Prosecuting Attorney, for Plaintiff- Appellant/Cross-Appellee,
Raymond T. Faller , Hamilton County Public Defender, and Lora Peters , Assistant Public Defender, for Defendant-Appellee/Cross-Appellant.
M YERS , Judge.
{¶1} Following Jonathan Veite’s guilty pleas to voyeurism and public indecency, the Hamilton County Municipal Court imposed jail sentences on each charge but did not include a sex-offender classification in its sentencing entries or inform him of his duties to register. Two days later, the court denied the state’s motion to classify Veite a Tier I sex offender as to each of the charges. We granted the state’s motion for leave to appeal Veite’s sentence for voyeurism, and Veite filed a cross-appeal.
The State’s Appeal .
{¶2} In a single assignment of error, the state argues that the trial court erred when it failed to impose Tier I sex-offender classification and registration requirements where Veite pleaded guilty to voyeurism, an offense that automatically rendered him a Tier I sex offender. Veite was convicted of voyeurism in violation of R.C. 2907.08. R.C.
2950.01(E)(1)(a) defines a “Tier I sex offender” as “[a] sex offender who is convicted
of, pleads guilty to, has been convicted of, or has pleaded guilty to * * * [a] violation
of section * * * 2907.08 * * * of the Revised Code.” The tier classification is based
solely on the sex offense committed and is automatic.
State v. Lewis
, 2018-Ohio-
1380, 110 N.E.3d 919, ¶ 8 (1st Dist.), citing
State v. Williams
, 129 Ohio St.3d 344,
defendant to the registration and notification requirements of Ohio’s version of the
Adam Walsh Act (“AWA”) must accurately reflect the defendant’s tier classification.
State v. Rucker
, 1st Dist. Hamilton No. C-110082,
The registration and verification requirements of the AWA are punitive. State v. Williams ,129 Ohio St.3d 344 ,2011-Ohio-3374 , 952 N.E.2d 1108, ¶ 16. They are part of the penalty imposed for the offense. State v. Thomas ,2016-Ohio-501 , 56 N.E.3d 432, ¶ 7 (1st Dist.); State v. Lawson , 1st Dist. Hamilton Nos. C-120067 and C- 120077,2012-Ohio-5281 , ¶ 21; State v. Jackson , 1st Dist. Hamilton No. C-100645,2012-Ohio-3348 , ¶ 6. “[A] sentence is a sanction or combination of sanctions imposed for an individual offense, and incarceration and postrelease control are types of sanctions that may be imposed and combined to form a sentence.” State v. Holdcroft , 137 Ohio St.3d 526,2013-Ohio-5014 ,1 N.E.3d 382 , ¶ 6. Tier classification under the AWA is a type of sanction that may be imposed for an offense. See Williams. Veite’s tier classification is part of the sentence for his voyeurism
offense, and therefore, it must be included in the entry of conviction and sentence.
See State v. Merritt
, 1st Dist. Hamilton No. C-170649,
resentencing, asserting that the trial court lost its jurisdiction to classify him as a sex offender because he served the imposed period of incarceration for the voyeurism offense. He contends that he had a legitimate expectation of finality in his sentence and that resentencing him to impose the sanction of the tier classification is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. He asserts that once the entirety of the period of incarceration has been served, “the defendant’s expectation of finality becomes paramount, and his
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sentence for that crime may no longer be modified,” citing
State v. Holdcroft
, 137
Ohio St.3d 526,
Holdcroft
that on a direct appeal of a criminal conviction, any aspect of a defendant’s
sentence may be challenged and any part of that sentence that has been successfully
challenged may be corrected.”
State v. Christian
,
The United States Supreme Court has made it clear that a defendant “has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired.” United States v. DiFrancesco ,449 U.S. 117 , 136,101 S.Ct. 426 ,66 L.Ed.2d 328 (1980). In applying DiFrancesco , this court has stated that “when the legislature has provided the government with a statutory right of appeal, ‘[t]he defendant * * * is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired.’ ” (Brackets and ellipsis sic.) State v. Roberts , 119 Ohio St.3d 294,2008-Ohio-3835 , 893 N.E.2d 818, ¶ 16, quoting DiFrancesco at 136,101 S.Ct. 426 .
Id.
at ¶ 17. Therefore, because Veite’s sentence is subject to correction on appeal, he
had no expectation of finality in the sentence.
Id
. at ¶ 18. “[J]eopardy does not
attach to a sentence that has been invalidated and, therefore, a trial court’s
imposition of a new sentence does not violate double jeopardy.”
Id.
at ¶ 21. This is
true even where the state did not seek and the trial court did not impose a stay of the
execution of the sentence.
See State v. Roberts
, 119 Ohio St.3d 294, 2008-Ohio-
3835,
{¶8} Consequently, we hold that the trial court erred by failing to impose the statutorily mandated tier classification as part of Veite’s sentence for his voyeurism offense. Therefore, we sustain the state’s assignment of error.
Veite’s Cross-Appeal
{¶9} In a single assignment of error, Veite argues that the trial court erred by accepting his guilty pleas because they were not knowingly, intelligently, and voluntarily entered. Veite contends that his pleas must be vacated because the trial court failed to inform him (1) of the effect of his guilty pleas and (2) that he would be classified and required to register as a Tier I sex offender. The state does not address Veite’s argument about the trial court’s
failure to inform him of the effect of his guilty pleas. The state addresses only the second part of Veite’s argument concerning the trial court’s failure to inform him of the classification and registration requirements for the voyeurism offense. The state asserts that this argument is not ripe for review because Veite’s tier classification was not included in the judgment of conviction and sentence. However, we do not reach the state’s argument on this point because we hold that the trial court erred by failing to inform Veite of the effect of his guilty pleas. Before accepting a plea to a misdemeanor involving a petty offense,
offense.”
THE COURT: All right. Mr. Veite, do you understand that on the B charge, which is the public indecency, the maximum possible penalty is 30 days in jail and/or a $250 fine? Yes?
THE DEFENDANT: Yeah.
THE COURT: And on the C charge (voyeurism), the maximum penalty is 90 days in jail and/or a $700 - - No. I’m sorry. 60 days in jail, M3, and a $500 fine. Do you understand?
THE DEFENDANT: Yes.
THE COURT: All right. Do you have any questions before I accept your plea?
THE DEFENDANT: No. THE COURT: No? I’ll accept the pleas of guilty. Facts.
{¶14} After the prosecutor’s statement of facts, the court asked defense counsel, “Anything on those facts?” When counsel said no, the court stated, “The finding is guilty.”
{¶15}
Before the trial court accepted Veite’s guilty pleas, the court did not
inform him that a guilty plea is a complete admission of guilt, as set forth in
guilt is a nonconstitutional right and subject to review for substantial compliance.
State v. Griggs
, 103 Ohio St.3d 85,
language in
Conclusion Because the trial court failed to include the Tier I classification in
Veite’s sentence, the state’s assignment of error is sustained. However, because we
have determined that Veite’s pleas were entered involuntarily under
Judgment accordingly.
Z AYAS , P.J., and B ERGERON , J., concur.
Please note:
The court has recorded its own entry this date.
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Notes
[1] We note that
Holdcroft
was abrogated on other grounds by
State v. Hudson
, Slip Opinion No.