STATE OF OHIO v. DEMARCO WRIGHT
Appellate Case No. 28368
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
November 19, 2021
[Cite as State v. Wright, 2021-Ohio-4107.]
Trial Court Case No. 2018-CR-1554 (Criminal Appeal from Common Pleas Court)
Rendered on the 19th day of November, 2021.
MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
SCOTT S. DAVIES, Atty. Reg. No. 0077080, 7416 Waterway Drive, Waynesville, Ohio 45068 Attorney for Defendant-Appellant
{1} Demarco Wright pled guilty in the Montgomery County Court of Common Pleas to aggravated burglary (physical harm), aggravated robbery (deadly weapon), kidnapping (terrorize), felonious assault (serious physical harm), grand theft (motor vehicle), theft (
{2} Wright appeals from his convictions, challenging the trial court‘s application of the Violent Offender Database duties in Sierah‘s Law to his case. For the following reasons, the portion of the trial court‘s judgment imposing Wright‘s Violent Offender Database duties in accordance with Sierah‘s Law will be reversed, and the matter will be remanded for the trial court to provide him the notifications under
I. Facts and Procedural History
{3} In May 2018, Wright was charged in a 14-count indictment with two counts of aggravated burglary, two counts of aggravated robbery, three counts of kidnapping, two counts of rape, two counts of felonious assault, and one count each of robbery, grand theft, and theft. Wright subsequent reached a plea agreement with the State in which he agreed to plead guilty to seven charges: aggravated burglary (Count 1), aggravated robbery (Count 3), kidnapping (Count 7), felonious assault (Count 11), grand theft (motor
{4} During the March 27, 2019 plea hearing, the prosecutor informed the trial court in a sidebar discussion that “[t]here‘s been a change in the law,” namely the creation of a violent offender registry, effective March 20, 2019. The prosecutor indicated that the requirement to enroll as a violent offender would apply to the kidnapping count. The parties discussed with the court whether the new enrollment requirement applied to Wright and what advisements needed to be made at the plea hearing, with the court commenting that it had not been informed that it “had to do this.” Neither the court, the prosecutor, nor defense counsel knew the details of Sierah‘s Law‘s requirements.
{5} Following the discussion and with defense counsel‘s agreement, the court informed Wright:
THE COURT: Mr. Wright, I need to tell you due to a very recent change, which may have an effect on you and I‘m not sure if it does, but I think I need to inform you of this, that you may be placed on what we call a violent offender registry for the charge of kidnapping. It would only apply to that offense. We would make that determination, and I would so advise you at the sentencing of this matter, but I do need to tell you now that there‘s a very good likelihood that you would be placed on that registry, and I want to inform you of that so you can factor that into your decision here today to enter pleas. Okay, do you understand that?
THE DEFENDANT: Yes, sir.
{6} After a presentence investigation, the trial court sentenced Wright to 15 years in prison and designated him a Tier I sex offender and a violent offender. The trial court reviewed with Wright the forms that notified him of his duties as a Tier I sex offender and his duties to enroll, re-enroll and provide notice of a change of address under the violent offender statute. The court ordered Wright to pay restitution and court costs, including extradition costs.
{7} Wrights appeals from his convictions. His original appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon our Anders review, we found that non-frivolous issues existed as to whether the trial court provided adequate notice of the violent offender registration requirements under
{8} Wright, with new counsel, now raises three assignments of error.
II. Retroactive Application of Sierah‘s Law
{9} In his first assignment of error, Wright claims that “[t]he Trial Court‘s application of Ohio‘s Violent Offender Registry provisions of
{10} In 2018, the 132nd General Assembly enacted S.B. 231, commonly known as Sierah‘s Law. Sierah‘s Law established the Violent Offender Database and requires violent offenders convicted of specified offenses, including kidnapping, to enroll in the
{11} Wright first argues that the Violent Offender Database duties do not apply to him, because his offenses occurred prior to March 20, 2019, the effective date of Sierah‘s Law. Of relevance here,
{12} Wright asserts that application of Sierah‘s Law to him violates the Retroactivity Clause of Article II, Section 28 of the Ohio Constitution. “The Retroactivity Clause of the Ohio Constitution prohibits the General Assembly from passing retroactive laws and protects vested rights from new legislative encroachments.” Garst at ¶ 17, citing Bielat v. Bielat, 87 Ohio St.3d 350, 352, 721 N.E.2d 28 (2000). “The retroactivity clause nullifies those new laws that ‘reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective].’ ” Bielat at 352-353, quoting Miller v. Hixson, 64 Ohio St. 39, 51, 59 N.E. 749 (1901). However, not all retroactive laws are forbidden. Id. at 353; In re Forfeiture of Property of Astin, 2018-Ohio-1723, 111 N.E.3d 894, ¶ 14 (2d Dist.).
{¶ 14} We have previously concluded that the Ohio legislature expressly intended for Sierah‘s Law to apply retroactively. State v. Williams, 2d Dist. Montgomery No. 28648, 2021-Ohio-1340, ¶ 141; Garst at ¶ 19. Moreover, upon review of the requirements imposed by Sierah‘s Law, we have concluded that those requirements are remedial in nature and are not unconstitutionally retroactive. Williams at ¶ 144; see also Garst at ¶ 23.
{¶ 15} The Supreme Court of Ohio recently reached the same conclusions. Addressing a conflict between the Fifth and Twelfth District Courts of Appeals, the supreme court considered whether the retroactive application of Sierah‘s Law to offenders who committed their offenses prior to March 20, 2019, the effective date, violated the
We have recognized that registration schemes such as Sierah‘s Law apply retroactively when the duty to register attaches to conduct committed prior to the effective date of the statute. See, e.g., Williams at ¶¶ 8, 21. A review of our caselaw considering registration schemes imposing duties on par with the duties established by Sierah‘s Law shows that Sierah‘s Law does not impair a vested, substantial right or impose new burdens, duties, obligations, or liabilities as to a past transaction. In fact, a comparison of the requirements of Sierah‘s Law to other registration schemes that we have upheld against retroactivity challenges demonstrates that it is less burdensome and less invasive than those other schemes. See, e.g., State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998), superseded by statute on other grounds as stated in Williams at ¶ 11; State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, superseded by statute on other grounds as stated in Williams at ¶ 16. And unlike the registration scheme that this court held to be punitive and therefore unconstitutionally retroactive in Williams, Sierah‘s Law does not retroactively increase the punishment for an offense committed prior to its enactment.
For these reasons, we determine that the application of Sierah‘s Law to conduct that occurred prior to its effective date does not violate the
State v. Hubbard, Ohio Slip Opinion No. 2021-Ohio-3710, __ N.E.3d __, ¶ 4-5. See also Jarvis. Accordingly, Wright‘s claim that the trial court‘s application of Sierah‘s Law to him was unconstitutional because his offense occurred prior to March 20, 2019 lacks merit.
{16} Wright‘s first assignment of error is overruled.
II. Validity of Wright‘s Plea
{17} In his second assignment of error, Wright claims that, “[e]ven if the Ohio Violent Offender Registry requirements were applicable in the instant matter, [he] did not have sufficient notice of the requirements of
{18} “An appellate court must determine whether the record affirmatively demonstrates that a defendant‘s plea was knowing, intelligent, and voluntary[.]” State v. Russell, 2d Dist. Montgomery No. 25132, 2012-Ohio-6051, ¶ 7, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). If a defendant‘s plea is not knowing, intelligent, and voluntary, it “has been obtained in violation of due process and is void.” Id.
{19} “In order for a plea to be given knowingly and voluntarily, the trial court must follow the mandates of
{|| 20}
{21} In general, a defendant is not entitled to have his or her plea vacated unless the defendant demonstrates he or she was prejudiced by a failure of the trial court to comply with the provisions of
{22} This general rule is subject to two exceptions. Boucher at ¶ 18. First, the trial court must comply strictly with
{23} Second, “a trial court‘s complete failure to comply with a portion of
{|| 24} Wright claims that the trial court failed to adequately notify him regarding Sierah‘s Law.
(A)(1) For each person who is classified a violent offender, it is presumed that the violent offender shall be required to enroll in the violent offender database with respect to the offense that so classifies the person and shall have all violent offender database duties with respect to that offense for ten years after the offender initially enrolls in the database. The presumption is a rebuttable presumption that the violent offender may rebut as provided in division (A)(4) of this section, after filing a motion in accordance with division (A)(2)(a) or (b) of this section, whichever is applicable. Each violent offender shall be informed of the presumption established under this division, of the offender‘s right to file a motion to rebut the presumption, of
the procedure and criteria for rebutting the presumption, and of the effect of a rebuttal and the post-rebuttal hearing procedures and possible outcome, as follows:
(a) If the person is classified a violent offender under division (A)(1) of section 2903.41 of the Revised Code,2 the court that is sentencing the offender for the offense that so classifies the person shall inform the offender before sentencing of the presumption, the right, and the procedure, criteria, and possible outcome.
(Emphasis and footnote added.)
{25} In this case, the trial court told Wright that, due to a “very recent change” in the law, which “may have an effect on you and I‘m not sure if it does,” he “may be placed on what we call a violent offender registry for the charge of kidnapping.” The court indicated that it would make a determination regarding the violent offender registry at sentencing, but “there‘s a very good likelihood that you would be placed on that registry.”
{26} The Violent Offender Database duties are a non-constitutional aspect of Wright‘s guilty plea and a collateral consequence of his actions. In general, a trial court is not obligated to inform a defendant about collateral consequences before accepting a plea, and its failure to do so does not render the plea invalid. See, e.g., State v. Stape, 2d Dist. Montgomery No. 22586, 2009-Ohio-420, ¶ 19 (because the obligations under
{27} Upon review of the plea hearing transcript, the trial court did not substantially comply with its obligations under
{28} Nevertheless, we cannot conclude that the trial court completely failed to comply with its obligations under
{29} The only manner by which Wright could have rebutted the presumption of having to enroll as a violent offender was to a file a motion with the trial court arguing that he was not the principal offender. Wright has not argued that he was not the principal offender, and the record before us indicates that he was the sole perpetrator of the
{30} On this record, Wright has not established that he could have rebutted the statutory presumption even if he had he been informed of the procedures for doing so. Moreover, he was aware that he was likely to be placed on the violent offender database and nevertheless pled guilty. Wright has not demonstrated that he was prejudiced by the trial court‘s incomplete advisement.
{31} Wright‘s second assignment of error is overruled.
III. Sentencing under Sierah‘s Law
{32} Wright‘s third assignment of error states that the trial court “failed to comply with the procedural requirements of
{33} At the outset, we disagree that the trial court should have provided notifications under
{34} When an offender, such as Wright, has not filed a motion to rebut the presumption, the trial court must provide to the offender, at sentencing, notice of his or her duties under Sierah‘s Law.
require the violent offender to read and sign a form stating that the violent offender has received and understands the notice. If the violent offender is unable to read, the judge * * * shall inform the violent offender of the violent offender‘s duties as set forth in the notice and shall certify on the form that the judge * * * informed the violent offender of the violent offender‘s duties and that the violent offender indicated an understanding of those duties.
The attorney general shall prescribe the notice and the form provided under this division. The notice shall inform the offender that, to satisfy the duty
to enroll, the violent offender must enroll personally with the sheriff of the county in which the offender resides or that sheriff‘s designee and include notice of the offender‘s duties to re-enroll annually and when the offender has a change of address.
The person providing the notice under this division shall provide a copy of the notice and signed form to the violent offender. The person providing the notice also shall determine the county in which the violent offender intends to reside and shall provide a copy of the signed form to the sheriff of that county * * * and to the bureau of criminal identification and investigation.
{35} In this case, Wright appeared for sentencing on April 17, 2019. After stating that “[w]e are here for sentencing” and reiterating the charges to which Wright had pled guilty, the court stated that it was going to begin with the sex offender designation and his duties to enroll as a violent offender. The transcript of the sentencing hearing reflects that the trial court read to Wright, verbatim, from a “Notice of Duties to Enroll as a Violent Offender (
{36} Nevertheless, the record reflects, and the parties agree, that the trial court never provided the notifications required by
IV. Conclusion
{[ 37} Wright‘s Violent Offender Database duties in accordance with Sierah‘s Law will be reversed, and the matter will be remanded for the trial court to provide him the notifications under
TUCKER, P. J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Scott S. Davies
Hon. Dennis J. Adkins