State v. WrightState v. Wright
DECISION
Rendered on June 27, 2023
On brief: [Janet Grubb, First Assistant Prosecuting Attorney], and Seth L. Gilbert, for appellant. Argued: Seth L. Gilbert.
On brief: The Tyack Law Firm Co., LPA, Jonathan T. Tyack, and Holly B. Cline, for appellee. Argued: Jonathan T. Tyack.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} The State of Ohio, plaintiff-appellant, appeals from the decision of the Franklin County Court of Common Pleas granting defendant-appellee, Brooke M. Wright‘s, motion for exemption from community notification requirements. We reverse and remand.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 13, 2019, Wright was indicted on 2 counts of sexual battery, in violation of
{¶ 3} On September 16, 2020, Wright pled guilty to two counts of sexual battery in violation of
{¶ 4} On February 4, 2021, Wright was sentenced to a concurrent prison term of four years in the custody of the Ohio Department of Rehabilitation and Correction (“ODRC“). At the time of sentencing, Wright was advised she would be classified as a Tier III sex offender with community notification requirements under
{¶ 5} On February 5, 2021, the court issued the judgment entry sentencing Wright to a concurrent four-year term of imprisonment on both counts of sexual battery. The sentencing entry stated the court had informed Wright she would be a sexual offender and classified, pursuant to S.B. No. 10 (“S.B. 10“), as a Tier III “with registration duties to last a lifetime; in person verification is required every ninety (90) days and community notification will be sent.” (Feb. 5, 2021 Jgmt. Entry at 1.) Wright did not challenge the sentence.
{¶ 6} On October 4, 2021, Wright filed a motion for judicial release pursuant to
{¶ 7} Wright was granted judicial release and placed under a term of community control for three years. On February 19, 2022, Wright was released from the custody of ODRC.
{¶ 8} On March 2, 2022, Wright filed a motion for exemption from community notification pursuant to
{¶ 9} On April 5, 2022, the court issued a decision granting Wright‘s motion for exemption. The court concluded Wright timely sought exemption from community notification pursuant to
{¶ 10} On May 5, 2022, the state filed a motion in this court seeking leave to appeal. On May 31, 2022, Wright filed a memorandum contra the state‘s motion for leave to appeal (filed May 5, 2022) and motion to dismiss.
{¶ 11} On September 1, 2022, this court granted the state‘s motion for leave to appeal finding the state has demonstrated a probability that its first claimed error occurred. Further, this court dismissed Wright‘s motion to dismiss and found that this appeal shall proceed as an appeal as of right. State v. Wright, 10th Dist. No. 22AP-275, 2022-Ohio-3068.
{¶ 12} It is from the trial court‘s decision granting Wright‘s motion for exemption from community notification that the state appeals. We agree with the state.
II. ASSIGNMENT OF ERROR
{¶ 13} Appellant assigns the following sole assignment of error for our review:
The trial court erred in granting Wright‘s “Motion for Exemption from Community Notification Requirement,” as Wright did not seek relief from community notification at or before sentencing as required by
R.C. 2950.11(F)(2) , and the 20-year period had not expired as required byR.C. 2950.11(H)(2) .
III. STANDARD OF REVIEW
{¶ 14} Before we begin our analysis, we note that the record shows Wright did not object to the trial court‘s imposition of the requirement for community notification at sentencing. When a defendant fails to object at sentencing to the imposition of a punitive
{¶ 15} However, the plain-error doctrine has not been properly invoked, “and we will not sua sponte undertake a plain-error analysis” on a party‘s behalf. Cable Busters, L.L.C. v. Mosley, 1st Dist. No. C-190364, 2020-Ohio-3442, ¶ 8. Consequently, plain-error review has been forfeited. U.S. Bank Natl. Assn. v. Kasidonis, 1st Dist. No. C-190559, 2020-Ohio-6716, ¶ 18.
{¶ 16} An appellate court reviews an assignment of error presenting a question of law on a de novo basis with no deference given to the trial court‘s determination. State v. Linnen, 10th Dist. No. 04AP-1138, 2005-Ohio-6962, ¶ 9. Statutory interpretation is a matter of law, and an appellate court reviews such a matter on a de novo basis. State v. Ashcraft, __ Ohio St.3d __, 2022-Ohio-4611, ¶ 7. The primary goal of statutory interpretation is to determine and uphold “the General Assembly‘s intent in enacting the statute.” Knollman-Wade Holdings, L.L.C. v. Platinum Ridge Properties, L.L.C., 10th Dist. No. 14AP-595, 2015-Ohio-1619, ¶ 14. “In determining legislative intent, we must first look to the plain language of the statute.” Id.
{¶ 17} As a general rule, the words and phrases of a statute will be read in context and construed according to the rules of grammar and common usage.
IV. LEGAL ANALYSIS
{¶ 18} Ohio‘s law governing the classification and registration of sex offenders is codified at
{¶ 19} Under S.B. 10, sex offenders are classified as Tier I, II, or III offenders based solely on the offense committed. Each tier classification carries specific sex offender registration and notification (“SORN“) duties set forth by statute.
{¶ 20} At sentencing, the trial court has zero discretion regarding the tier classification, and merely informs the sex offender which classification and duties attach to his or her conviction.
{¶ 21} A Tier III sex offender is subject to several lifetime requirements and duties as default sanctions. In re R.M., 1st Dist. No. C-120166, 2014-Ohio-1200, ¶ 27. The sex offender must: (1) register in person and verify his or her address every 90 days; (2) abide by the residency requirements; and (3) submit to community notification by the appropriate sheriff, all of which are punitive sanctions. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374.
{¶ 22} For a Tier III sex offender, the corresponding duties are mandatory except for community notification. The only issue that a court can consider at sentencing for a Tier III offender is community notification. The presumption is that notification applies. State v. Bella, 1st Dist. No. C-210581, 2022-Ohio-2884.
{¶ 23} Tier III sex offender classification is mandatory under
{¶ 24} Sentence is defined as “the sanction or combination of sanctions imposed by the sentencing court on an offender who is convicted of or pleads guilty to an offense.”
{¶ 25} This court has held that the sex offender classification and its associated registration and notification requirements are part of the penalty for the sex offense conviction, and Crim.R. 11(C)(2) requires the trial court ensure the sex offender understands the requirements before it can accept a guilty plea. State v. Wallace, 10th Dist. No. 17AP-818, 2019-Ohio-1005, ¶ 18; see State v. Henson, 12th Dist. No. CA2013-12-221, 2014-Ohio-3994, ¶ 13 (Internal quotations and citation omitted.) (notification requirements set forth in
{¶ 26} Pursuant to Crim.R. 11(C)(2)(a), a trial court must inform a defendant of the penalty for the crime. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, ¶ 6. When sentencing a Tier III sex offender, “a trial court need only advise that a defendant will be subject to the registration requirements of the statutory scheme to comply with the Crim.R. 11(C)(2)(a) maximum penalty advisement requirement.” State v. Obhof, 11th Dist. No. 2021-A-0021, 2023-Ohio-408, ¶ 28. When the tier classification is placed in a sentencing entry, the court is, in effect, “includ[ing] in the sentence a summary of the offender‘s duties.”
{¶ 27}
{¶ 29} Wright‘s classification as a Tier III sex offender and the community notification and registration orders attending that classification are set upon the filing of the judgment entry on February 5, 2021. The entry reads:
In addition, at the time of the plea the Court notified the Defendant that by entering into this plea the Defendant will be a sexual offender and classified pursuant to S.B. 10 as a Tier III with registration duties to last a lifetime; in person verification is required every ninety (90) days and community notification will be sent.
(Emphasis sic.) (Feb. 5, 2021 Jgmt. Entry at 1.) Once the entry requiring community notification is filed, Wright is subject to community notification.
{¶ 30}
{¶ 31} It is undisputed that the trial court complied with
{¶ 32} The form reflects that Wright is a Tier III sex offender and explains her registration requirements in great detail. Of significance to this matter, the box indicating that Wright is not subject to community notification is not checked, which means she is subject to community notification. Quite simply, at sentencing, Wright‘s duties included lifetime community notification.
THE COURT: Also, by pleading guilty to this offense, you‘ll be registered as a Tier III sex offender. That requires in-person registration in the county in which you reside every 90 days for the remainder of your life. It also requires that you notify the community at the residence where you live and that you cannot occupy a residence within 1,000 feet of a school, preschool or childcare center. Do you understand that?
[MS. WRIGHT]: Yes.
(Sept. 16, 2020 Plea Hearing Tr. at 6.)
{¶ 34} It is noteworthy that Wright‘s counsel first inquired whether the community notification requirement is mandatory at the end of the plea hearing:
THE COURT: Okay. Anything else on behalf of the State?
[THE STATE]: No, thank you, your honor.
[DEFENSE COUNSEL]: No, thank you, Your Honor. The only other thing I would just note for the record, I told [the prosecuting attorney] this, I‘ve got to do a little more research. The plea form seems to indicate that community notification is mandatory. My understanding is you may have some discretion. You don‘t have discretion to - -
THE COURT: There‘s a process to go through which I‘m not versed in. It doesn‘t come up a whole lot, but I have - -
[DEFENSE COUNSEL]: Yeah, she‘s definitely going to be a Tier III sex offender and everything in the plea form is accurate. It‘s just with community notification there is a process where you can rule that community notification is not appropriate.
THE COURT: Okay.
[DEFENSE COUNSEL]: Whether those arguments apply to this case or not, I don‘t know yet, but I just want the record to be clear that might be something we have to discuss at sentencing.
(Sept. 16, 2020 Plea Hearing Tr. at 13.)
{¶ 35} At sentencing, the trial court engaged Wright in the following discussion regarding her Tier III sex offender duties:
THE COURT: Thank you. Ms. Wright, I have in front of me a form titled Notice of - - or Explanation of Duties to Register as a Sex Offender. It appears to be signed by you at the bottom. Did you sign this form?
[MS. WRIGHT]: Yes, sir.
THE COURT: Did you discuss it with your attorney prior to today before you signed it?
[MS. WRIGHT]: Yes. Sir.
THE COURT: Did he explain all the explanations of your - - of your obligations and your duties as a Tier III offender?
[MS. WRIGHT]: Yes, sir.
THE COURT: What this means is that you‘ll have to register your address at the place where you reside in the county where you reside. I believe it‘s every 90 days for the rest of your life. You‘ll also be subject to community notification requirements. If you fail to register, you could be subject to an additional criminal offense for not registering. Do you understand that?
[MS. WRIGHT]: Yes.
THE COURT: Do you have any question about those requirements?
[MS. WRIGHT]: No, sir.
THE COURT: I‘m going to authorize the form at this time.
(Feb. 4, 2021 Sentencing Tr. at 11–12.)
{¶ 36} Based on the record, Wright‘s counsel made no motion for hearing for the court to determine her requirements of community notification under SORN law. Wright‘s classification as a Tier III sex offender under the AWA and the corresponding community notification requirement was therefore a lawful part of her sentence. Williams, 2011-Ohio-3374, at ¶ 16.
{¶ 37} While community notification is at issue here, registration of sex offenders is the focal point of SORN law. Generally, a sex offender must register their address and other information with the local sheriff. Registration is tied to community notification because the
{¶ 38} The OAG is tasked with maintaining a state registry of sex offenders “regarding each person who is convicted of, pleads guilty to, has been convicted of, or has pleaded guilty to a sexually oriented offense.”
{¶ 39} “Registrant” is defined as “an adult offender or delinquent child who has been convicted of, pleaded guilty to, or been adjudicated delinquent for committing a sexually oriented or child-victim oriented offense that is not a registration-exempt offense, and who has a duty to register pursuant to section 2950.04 or 2950.041 of the Revised Code.” Ohio Adm.Code 109:5-2-01(A). Wright is a registrant.
{¶ 40}
{¶ 41}
{¶ 42}
{¶ 43} There are only two registration options available at sentencing. If an offender is sentenced to a period of confinement, the offender will be registered after sentencing but before the offender is conveyed by the sheriff to the confinement facility pursuant to
{¶ 44} A sex offender‘s duty to register in the conventional sense is not tolled during the period of incarceration for the underlying sexual offense. An incarcerated offender‘s registration under
{¶ 45}
{¶ 46} Wright was sentenced in court on February 4, 2021. On February 8, 2021, the clerk of court issued a warrant to convey Wright to ODRC for confinement. Wright was not going to be confined at the county jail, but rather held there until the time she was transported to a state institution. Indeed, Wright is eligible for a reduction in her prison term for confinement in the county jail “while awaiting transportation to the place where the prisoner is to serve the prisoner‘s prison term.”
{¶ 47} Wright offers a much narrower interpretation of the statute and asserts that because she entered the jail holding cell adjacent to the courtroom without first registering,
{¶ 48}
{¶ 49} “Community notification is undeniably the global purpose of sex offender classification.” State v. Johnson, 8th Dist. No. 106322, 2018-Ohio-5029, ¶ 18.
{¶ 50} Community notification is the release of information about a sex offender by a sheriff to various agencies and the general public and furthers the governmental interests of protecting public safety and public scrutiny of the criminal and mental health systems. Id. Community notification makes registration information available to the public to encourage community members to monitor registered sex offenders and take protective precautionary measures.
{¶ 51} A community notification registrant “means an adult offender or delinquent child who has been convicted of, pleaded guilty to, or been adjudicated delinquent for committing a sexually oriented or child-victim oriented offense that is not a registration-exempt offense, and who has a duty to register pursuant to section 2950.04 or 2950.041 of the Revised Code.” Ohio Adm.Code 109:5-2-01(A). A “[p]erson subject to community
{¶ 52} A community notification registrant has no affirmative duties under
{¶ 53} Community notification is a sanction unless exempted by
{¶ 54} The AWA provides two avenues for relief from the community notification requirements. Community notification duties apply at conviction unless an offender requests a hearing, and the sentencing court determines the offender is exempt from notification.
{¶ 55} Wright argues that
{¶ 56} The trial court construes a statute “to determine and give effect to the intent of the General Assembly as expressed in the language it enacted.” McConnell v. Dudley, 158 Ohio St.3d 388, 2019-Ohio-4740, ¶ 19. The Supreme Court of Ohio applied the rules of statutory interpretation and noted that
{¶ 58} Our sister court has examined the statute to determine when community notification requirement is initially imposed, and opined that the ”in futuro language very clearly contemplates a determination of exemption being made at or before sentencing.” Thomas at ¶ 12. We agree that the “appropriate time for a
{¶ 59} We find that the distinctions in the two sections are instructive in holding that
{¶ 60} There are no cases involving the application of
{¶ 61} In State v. Starks, 6th Dist. No. L-16-1013, 2017-Ohio-40, the defendant pled guilty to sex offenses and moved unsuccessfully at the sentencing hearing for relief. In State v. Morrin, 6th Dist. No. L-13-1200, 2014-Ohio-5594, the defendant pled guilty to sex offenses and the court held a community notification hearing prior to sentencing. The prosecutor presented information relative to each of the factors in
{¶ 62} We find that
{¶ 63} Wright is precluded by res judicata from raising any challenge to the community notification requirements, which arise by operation of law upon designation of a Tier III sex offender, because she could have raised it on direct appeal. State v. Reyes, 11th Dist. No. 2021-P-0014, 2021-Ohio-3478. However, “since it was never appealed, it cannot be corrected now.” State v. Schilling, 1st Dist. No. C-210363, 2022-Ohio-1773, ¶ 20.
V. CONCLUSION
{¶ 64} The trial court did not conduct a
{¶ 65} Based on the foregoing reasons, we sustain the state‘s sole assignment of error. Having sustained the state‘s sole assignment of error, we reverse the judgment of the Franklin
Judgment reversed and cause remanded.
BOGGS, J., concurs.
DORRIAN, J., concurs in judgment only.