State v. Gowdy

[This opinion has been published in Ohio Official Reports at 88 Ohio St.3d 387.]

THE STATE OF OHIO, APPELLEE, v. GOWDY, APPELLANT.

[Cite as State v. Gowdy, 2000-Ohio-355.]

Criminal procedure—Notice requirement for sexual offender classification

hearings under R.C. 2950.09(B)(1) is mandatory.

The notice requirement for sexual offender classification hearings under R.C.

2950.09(B)(1) is mandatory.

(No. 98-2301—Submitted November 30, 1999—Decided April 28, 2000.)

APPEAL from the Court of Appeals for Hamilton County, No. C-970359.

__________________

{¶ 1} Huey L. Gowdy, defendant-appellant, and Valerie Parks lived

together in Parks’s apartment from July 1996 to December 1996. After defendant

developed a relationship with another woman, he moved out. On January 21, 1997,

at around 11:15 p.m., Parks and her date, Montez Rhodes, were at Parks’s

apartment watching TV when Parks received a telephone call from defendant.

Defendant told Parks that he wanted to come over to talk, but Parks told him she

had company. Defendant told her he was coming over anyway.

{¶ 2} About ten to fifteen minutes later, there was a knock at the door. Parks

opened the door a crack to step outside to talk to defendant because she did not

want to wake her three children who were asleep in the apartment. Defendant

pushed the door open, came in, and began yelling and cussing at Parks. At

defendant’s urging, Rhodes left.

{¶ 3} As Rhodes was walking out, Parks tried to walk out with him to

apologize, but defendant jumped in front of her so she could not follow him.

Defendant pushed Parks down on the couch and locked the door. Defendant

questioned Parks about what she had been doing with Rhodes before he arrived and

accused her of having sex with Rhodes, which Parks denied.

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{¶ 4} According to Parks’s testimony, defendant grabbed her and forced his

fingers into her vagina. Parks testified that she struggled to resist defendant, but he

overpowered her and raped her. Parks further testified that defendant warned her

not to tell anyone because he would be watching and would come back and hurt

her.

{¶ 5} After defendant left, Parks called her eldest child’s father, Kevin

Taylor, and told him what had happened. Shortly thereafter, Rhodes came back to

the apartment. He testified that after he got home, he decided he should go back to

check on Parks, so he called his cousin, LaDon Woods, to go with him. When he

and Woods arrived at Parks’s apartment about forty-five minutes after Rhodes had

left, Parks came to the door crying. Rhodes asked her what was wrong, and she

told them that defendant had raped her.

{¶ 6} Both Rhodes and Taylor urged Parks to call the police and go to the

hospital, but Parks testified that she did not because she feared retribution from

defendant. The next morning after she got her children to school, Parks went to the

Justice Center, seeking a restraining order, but was told she had to go to Hamilton

County’s Private Complaint Program (“Private Complaint”). Parks testified that

Private Complaint informed her that in order to get a restraining order, defendant

would have to participate in the program. After Parks told the worker at Private

Complaint that defendant would not attend because he had outstanding warrants

against him, the worker suggested that Parks file domestic violence charges against

defendant.

{¶ 7} Later in the evening of January 22, 1997, Parks went to Bethesda

Hospital, where she told staff that she had been raped. The hospital notified the

police, and after Parks was examined, she related her story to Officer Shawn

George. After Officer George took her information, he collected, as evidence, the

clothing Parks had been wearing the previous night.

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{¶ 8} At trial, defendant testified that the incident was consensual.

Defendant testified that Parks was jealous about his relationship with his new

girlfriend, so Parks filed charges against him in retribution. On April 28, 1997, a

jury found defendant guilty of two counts of rape. The court set the sentencing

hearing for May 9, 1997. The court did not discuss the sexual offender

classification hearing at that time.

{¶ 9} At sentencing, the trial judge indicated that defendant had filed a pro

se motion that the court considered to be a motion for new trial. Defense counsel

noted that in that motion, defendant had made comments indicating that he was

unhappy with her representation. On that basis, defense counsel requested

permission to withdraw from the case. The trial judge denied her request and

proceeded immediately with the sexual offender classification hearing.1 Defense

counsel did not formally object to going forward with the sexual offender

classification hearing. Following a brief hearing, the trial judge adjudicated

defendant a sexual predator. After overruling a defense motion for an acquittal, the

judge sentenced defendant. The Hamilton County Court of Appeals affirmed

defendant’s convictions, sentence, and sexual predator classification.

{¶ 10} The cause is now before this court upon the allowance of a

discretionary appeal.

__________________

Michael K. Allen, Hamilton County Prosecuting Attorney, and Phillip R.

Cummings, Assistant Prosecuting Attorney; Betty D. Montgomery, Attorney

General, and David M. Gormley, Assistant Attorney General, for appellee.

David H. Bodiker, Ohio Public Defender, and Jane P. Perry, Assistant State

Public Defender, for appellant.

1. In State v. Cook (1998), 83 Ohio St.3d 404, 425, 700 N.E.2d 570, 587, this court referred to the

hearing described in R.C. 2950.09(B)(1) as a “sexual predator determination hearing.” However,

“sexual offender classification hearing” better describes what takes place at the hearing. As such,

that is the preferred term.

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Betty D. Montgomery, Attorney General, and David M. Gormley, Associate

Solicitor, urging affirmance for amicus curiae, Ohio Attorney General.

Jeffrey M. Gamso and Raymond Vasvari, urging reversal for amicus curiae,

American Civil Liberties Union of Ohio Foundation, Inc.

__________________

LUNDBERG STRATTON, J.

{¶ 11} As a threshold matter, the issues of facial due process and all issues

regarding the registration and notification provisions of R.C. Chapter 2950 are

resolved by State v. Williams, No. 99-286, State v. Worthy, No. 99-764, and State

v. Suffecool, No. 99-765, decided today. Today we address due process as it relates

to notice of the sexual offender classification hearing under R.C. 2950.09(B), as

well as the other non - R.C. Chapter 2950 issues raised in this appeal.

Batson-Related Peremptory Challenge

{¶ 12} In his first proposition of law, defendant claims that the state used a

pretextual reason for a peremptory challenge of an African-American prospective

juror in violation of the Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution. During jury selection, the prosecutor exercised a

peremptory challenge to excuse prospective juror Albert Smith (“Smith”). Because

of the fact-specific nature of this claim, the full transcript merits repeating:

“Mr. Tieger [prosecutor]: Good afternoon, Mr. Smith.

“Prospective Juror Albert Smith: Good afternoon.

“Mr. Tieger: Anything about the questions that anybody has asked that

you’d like to talk to us about?

“Prospective Juror Albert Smith: No.

“Mr. Tieger: As far as the religious beliefs, I notice that you’re wearing a

cross that’s hanging outside of your clothes. Do you have some strongly held

religious beliefs?

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“Prospective Juror Albert Smith: I’m a christian. My belief doesn’t cause

me not to be able to tell right from wrong.

“The Court: Would you keep your voice up a little bit, sir? I’m having a

hard time hearing. You said you were a christian?

“Prospective Juror Albert Smith: Yes, I’m a christian. I know right from

wrong, so I would be able to judge, you know.

“The Court: Thank you. Next question.

“Mr. Tieger: As far as your religion, you know, is that something you take

very, very seriously in terms of attending service and going to church, and all of

that, on a very regular basis?

“Prospective Juror Albert Smith: Yes.

“Mr. Tieger: How often would you go?

“Prospective Juror Albert Smith: Every Sunday.

“Mr. Tieger: Okay. Not during the week at all?

“Prospective Juror Albert Smith: No. My job doesn’t allow me to go

through the week.

“Mr. Tieger: And if you don’t mind me asking, what religion is that?

“Prospective Juror Albert Smith: Just a christian.

“Mr. Tieger: Okay.

“Prospective Juror Albert Smith: Non-denominational.

“Mr. Tieger: Is there a particular church you belong to?

“Prospective Juror Albert Smith: Yes, Faith Christian Center.

“Mr. Tieger: Where is that located?

“Prospective Juror Albert Smith: Waycross and Kenn Road in Forest Park.

“***

“[At this point Smith was asked a few questions about his family.]

“Mr. Tieger: Pass for cause.

“***

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“The Court: Peremptory challenges, ma’m, are with you—thank you, with

the State.

“Mr. Tieger: Judge, I will thank and excuse Mr. Smith.

“The Court: You two approach, please?

“(The following discussion took place at sidebar.)

“The Court: Batson—did you want to say any reason?

“Mr. Tieger: Judge, I don’t think that threshold has been made in any way,

shape or form. I don’t think the defense has raised it.

“Ms. Adams [defense counsel]: I would be happy to raise it at this time.

“The Court: Pardon?

“Ms. Adams: I would raise the Batson challenge at this point, Judge. I think

this is the only black male on this jury.

“The Court: Wait a minute. You’re right, male.

“Ms. Adams: Right.

“Mr. Tieger: Well, Judge. If the record can reflect, if the Court wants me

to respond, there is a black female on the jury, which I did not exercise any type of

challenge on, and I’m not going to exercise a challenge on. There is another black

male that was excused for cause because he said that he felt he wouldn’t be fair in

this case because his son was the victim of a crime.

“And I certainly think I have very valid reasons. He comes in wearing a

very large cross around his neck that’s very visible.

“He stated his religious beliefs are very strongly held. He attends church.

That, I thought he was evasive in answering which one. He said he was simply a

christian. I mean, there is a lot.

“The Court: I was just inquiring as to your reasoning.

“Mr. Tieger: I asked where his church was. There was a lot of reasons.

“The Court: Thank you. So noted.

“Ms. Adams: Judge, our objection still stands.”

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{¶ 13} Smith was excused and the court of appeals affirmed the trial court

on this issue. Defendant contends that Smith’s peremptory removal was

discriminatory. Because we find that the trial court did not abuse its discretion in

allowing Smith to be excused, we affirm the court of appeals on this issue.

{¶ 14} In 1875, the United States Congress prohibited the race-based

exclusion of any qualified citizen from jury service. See Act of Mar. 1, 1875, ch.

114, Section 4, 18 Stat. 336 (codified as amended at Section 243, Title 18, U.S.Code

[1948]). Later in 1879, the United States Supreme Court followed suit, holding that

a state statute excluding African-Americans from jury service violated a

defendant’s right to equal protection. Strauder v. West Virginia (1879), 100 U.S.

(10 Otto) 303, 25 L.Ed. 664. Despite these noble principles, prospective African-

American jurors continued to be excluded from jury panels through the use of

peremptory challenges. See Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824,

13 L.Ed.2d 759.

{¶ 15} In Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69, the court overruled its opinion in Swain and held that a prosecutor’s

racially motivated exercise of peremptory challenges violated the Equal Protection

Clause of the Fourteenth Amendment.2 The court established a three-step, burden-

shifting procedure to determine whether a peremptory challenge is race-based.

First, the opponent of the strike must establish a prima facie showing that the

attorney purposefully discriminated in exercising a peremptory challenge to

dismiss a potential juror. The challenging party “initially must show that he is a

member of a racial group capable of being singled out for differential treatment.”

Id., 476 U.S. at 94, 106 S.Ct. at 1722, 90 L.Ed.2d at 86. In determining whether

defendant established a prima facie case of discrimination, we observe that the trial

court raised the Batson issue, sua sponte. The court of appeals noted that both

2. Batson has since been extended to prohibit peremptory strikes based on gender in J.E.B. v.

Alabama ex rel. T.B. (1994), 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89.

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defendant and Smith are African-Americans and Smith was not challenged for

cause but was excused pursuant to a peremptory challenge. We agree with the court

of appeals that we must presume that the trial court believed that a prima facie case

under Batson was established.

{¶ 16} Once the opponent of the strike makes a prima facie showing of

purposeful discrimination, the burden shifts to the proponent of the strike to “come

forward with a neutral explanation for challenging black jurors.” Id., 476 U.S. at

97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Since the trial court found that a prima

facie case of discrimination had been established, the burden shifted to the state to

rebut the claim.

{¶ 17} In the second step of the Batson inquiry, the neutral explanation

“need not rise to the level justifying exercise of a challenge for cause.” Id. In fact,

the United States Supreme Court has subsequently held that the “second step of this

process does not demand an explanation that is persuasive, or even plausible. ‘At

this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s

explanation. Unless a discriminatory intent is inherent in the prosecutor’s

explanation, the reason offered will be deemed race neutral.’ ” Purkett v. Elem

(1995), 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834, 839, quoting

Hernandez v. New York (1991), 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114

L.Ed.2d 395, 406.

{¶ 18} In determining whether the state advanced a race-neutral explanation

for the peremptory challenge, we examine the four reasons proferred by the state.

First, the prosecutor pointed out that he had not challenged an African-American

female who was ultimately seated on the jury. Second, the prosecutor noted that

Smith was wearing a large cross around his neck that was very visible. Third, the

prosecutor claimed that in his opinion, Smith’s religious beliefs were very strongly

held. Fourth, the prosecutor stated that he thought that Smith was evasive in

answering which church he attended.

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{¶ 19} We first observe, as the court of appeals pointed out, that the

Fourteenth Amendment protects the rights of a prospective juror from the use of

discriminatory challenges, and the fact that another juror of the same race remained

on the jury does not preclude a holding that the state unlawfully removed Smith

from the jury. The exercise of even one peremptory challenge in a purposefully

discriminatory manner would violate equal protection. See State v. White (1999),

85 Ohio St.3d 433, 436, 709 N.E.2d 140, 147. Therefore, the prosecutor’s first

statement was in error.

{¶ 20} Turning to the other reasons advanced by the prosecutor, the trial

court and the court of appeals both acknowledged that Smith’s wearing of a

religious symbol, his strongly held religious beliefs, and his alleged vagueness in

answering the prosecutor’s questions were reasons based on something other than

race. We agree that these were all reasons that did not, on their face, deny defendant

equal protection. Thus, we proceed to step three of the Batson inquiry.

{¶ 21} In step three, the trial judge must determine if the defendant has

established purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. at 1724,

90 L.Ed.2d at 88-89. The ultimate burden of persuasion regarding racial motivation

rests with, and never shifts from, the opponent of the strike. Purkett, 514 U.S. at

768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839.

{¶ 22} Defendant claims that although the reasons advanced by the

prosecutor to support his peremptory strike may have been race-neutral on their

face, they were merely a pretext to mask the prosecutor’s intent to remove Smith

on the basis of race in violation of equal protection. Moreover, defendant claims

that the trial court did not proceed to step three of the inquiry and instead stopped

after determining that the reasons advanced by the prosecutor were race-neutral.

We disagree with both assertions.

{¶ 23} In the third part of the Batson analysis, the court must decide whether

the neutral explanation offered by the proponent of the strike is credible or instead

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is a “pretext” for unconstitutional discrimination. Hernandez, 500 U.S. at 363, 111

S.Ct. at 1868, 114 L.Ed.2d at 408. This part of the analysis essentially boils down

to the credibility of the proponent of the peremptory challenge’s race-neutral

explanation. Id. at 365, 111 S.Ct. at 1869, 114 L.Ed.2d at 409. In this case, the

trial court chose to believe the prosecutor’s race-neutral explanations for striking

prospective juror Smith.

{¶ 24} “In the typical peremptory challenge inquiry, the decisive question

will be whether counsel’s race-neutral explanation for a peremptory challenge

should be believed. There will seldom be much evidence bearing on that issue, and

the best evidence often will be the demeanor of the attorney who exercises the

challenge.” Id. Because the trial judge’s findings in this step “ ‘largely turn on

evaluation of credibility, a reviewing court ordinarily should give those findings

great deference.’ ” Hernandez, 500 U.S. at 364, 111 S.Ct. at 1869, 114 L.Ed.2d at

409, quoting Batson at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 89, fn. 21. Thus, we

cannot overturn the trial court’s finding on the issue of discriminatory intent “unless

convinced that its determination was clearly erroneous.” Id. at 369, 111 S.Ct. at

1871, 114 L.Ed.2d at 412.

{¶ 25} With regard to the cross worn by Smith, personal appearance is

frequently upheld as a race-neutral and non-pretextual basis for peremptory strikes.

In fact, one court has upheld striking a prospective juror who was wearing a

crucifix. See James v. Commonwealth (1994), 247 Va. 459, 460-463, 442 S.E.2d

396, 397-398. Other personal-appearance characteristics that have been upheld as

race-neutral and non-pretextual have included facial hair (Purkett v. Elem, supra),

having a muscular build (Maxey v. State, [Mar. 19, 1992], Tex. App. No. A14-90-

00793-CR, unreported, 1992 WL 49905), wearing flashy clothes (Stanford v.

Commonwealth [Ky.1990], 793 S.W.2d 112, 114), and chewing gum (Webb v. State

[Tex.App.1992], 840 S.W.2d 543). In deference to the trial court, who was able to

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view the cross in question and observe Smith’s demeanor, we find no abuse of

discretion.

{¶ 26} The second reason advanced by the prosecutor was that Smith had

strongly held religious beliefs. Again, we find no abuse of discretion in finding this

to be a race-neutral and non-pretextual basis for the prosecutor’s peremptory

challenge. Religion is often the foundation for an individual’s moral values, so

religious beliefs can be an important consideration for both sides in seating an

impartial jury. Defendant points out that Smith indicated that he would be able to

sit in judgment of others and that he knew right from wrong. But only the trial

court was able to determine the sincerity of the effect of these words and whether

it was reasonable for the prosecutor to believe otherwise. Even Smith’s quickness

in pointing out his ability to judge others may have played into the prosecutor’s

decision to exercise a peremptory challenge to strike him. Again, in deference to

the trial court who was able to determine the credibility of the words that we can

only see on paper, we find no abuse of discretion in the trial court’s finding that this

reason was both race-neutral and non-pretextual.

{¶ 27} The third and final reason advanced by the prosecutor as a basis for

challenging Smith was his alleged vagueness in answering questions about his

religion. Again, the defendant points to Smith’s final answer where he identified

his church and even pinpointed an address. However, the record shows that before

he ultimately volunteered the information, he generically identified himself as “just

a christian,” and “nondenominational.”

{¶ 28} Again, only the trial court was able to listen to Smith’s tone of voice,

and his inflection, and to observe his mannerisms and overall demeanor and that of

the prosecutor. From our vantage point, far removed from the trial and with only a

transcript to review, we give great deference to the trial court who was in the best

position to make the determination of whether the defendant met his burden of

proving purposeful discrimination. While the trial judge could have made more

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explicit findings on the record regarding the challenges, we find no abuse of

discretion in allowing the state to exercise a peremptory challenge against Smith.

Accordingly, we find that defendant’s first proposition of law is without merit.

Other Acts Evidence

{¶ 29} In his fifth proposition of law, defendant alleges that the repeated

introduction of bad character evidence to show his propensity to commit the crime

charged was so prejudicial as to deny the presumption of innocence and the

fundamental fairness of his trial in violation of the Due Process Clause of the

Fourteenth Amendment. Defendant claims that the trial court erred in allowing the

state to introduce evidence from a prior criminal trial, which resulted in acquittal,

as well as evidence of other acts that he allegedly committed. In particular,

defendant objects to admission of details about his prior rape charge and other

offenses.

{¶ 30} The premise of the defense was that Valerie Parks had a motive to

bring false rape charges against defendant. Therefore, at trial, defense counsel

brought out details about Parks’s knowledge of the prior rape charge brought by his

ex-wife. In addition, defense counsel elicited details about defendant’s prior

conviction for domestic violence.

{¶ 31} Because defense counsel did not object to any of these alleged errors,

they are waived absent plain error. Crim.R. 52(B). Defendant acknowledges that

defense counsel was the proponent of much of this alleged other acts evidence, but

claims that the state went too far in eliciting the details and misused the prior rape

charge to show defendant’s propensity to commit rape. However, once defendant

brought this evidence in and attempted to use it to undermine Parks’s credibility,

defendant opened the door for the state to refer to it as well. Crim.R. 52(B). The

court of appeals described the above evidence as the “crux of Gowdy’s defense and

had to be offered to support his claim.” We agree. Accordingly, defendant’s fifth

proposition of law is without merit.

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Ineffective Assistance of Counsel

{¶ 32} In his sixth proposition of law, defendant claims that he was denied

the effective assistance of counsel at trial. “Counsel’s performance will not be

deemed ineffective unless and until counsel’s performance is proved to have fallen

below an objective standard of reasonable representation and, in addition, prejudice

arises from counsel’s performance.” State v. Bradley (1989), 42 Ohio St.3d 136,

538 N.E.2d 373, paragraph two of the syllabus. In addition, to show defendant has

been prejudiced by counsel’s deficient performance, “the defendant must prove that

there exists a reasonable probability that, were it not for counsel’s errors, the result

of the trial would have been different.” Id., paragraph three of the syllabus.

{¶ 33} First, defendant claims that he was denied the effective assistance of

counsel when trial counsel allowed a juror who had been the victim of an attempted

date rape to remain on the panel. However, as the court of appeals noted, the record

reflects that counsel successfully removed from the jury panel a prospective juror

who had been the victim of an attempted date rape and who informed counsel that

she would not be able to be objective. In addition, counsel exercised a peremptory

to excuse another juror whose aunt had been the victim of an attempted rape and

who was closely related to a police officer. Trial counsel used her remaining

peremptory challenges to excuse a prospective juror who was caring for an elderly

relative, and a prospective juror who needed to care for his son.

{¶ 34} As for the prospective juror in question, juror Pearson, when she

indicated that she had been the victim of an attempted date rape in 1985, counsel

followed up with questions. Juror Pearson acknowledged that no physical contact

was made and she informed counsel that she could set aside her personal feelings

and could judge the facts in this case fairly. Moreover, the other jurors who

remained on the panel all stated that they would be able to set aside their personal

feelings and be objective. Based on all of the above, we find that defendant failed

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to show that the outcome of the trial would have been different had prospective

juror Pearson been excused.

{¶ 35} Second, defendant alleges that defense counsel’s strategy of

introducing evidence of defendant’s prior rape charge at trial amounted to

ineffective assistance of counsel. As noted previously, the crux of defendant’s

defense was that the sexual intercourse was consensual and that Parks, motivated

by jealously, was lying. Thus, the evidence that Parks had knowledge of the prior

rape charge and used it as retaliation for defendant’s breakup was central to

defendant’s attack on her credibility. We further note that defense counsel’s failure

to object when the state elicited testimony about the details of the prior charge did

not prejudice the defendant. Taken in context with all of the circumstances of this

case, we conclude that this did not amount to ineffective assistance of counsel.

{¶ 36} Third, defendant claims that defense counsel was ineffective for

failing to object when the state cross-examined defendant about prior charges for

domestic violence, no driver’s license, and failure to pay child support.

{¶ 37} Defendant, himself, on direct examination, brought up the fact that

he had warrants against him. He mentioned both failure to pay child support and

domestic violence. On cross-examination, the prosecutor simply asked defendant

the basis of the warrants to which he had earlier referred on direct exam. Defendant

then explained that one was for failure to pay child support and one was for a

probation violation related to his prior domestic violence conviction against his ex-

wife. Therefore, the defense had already opened the door to cross-examination on

these subjects by bringing them up on direct examination as part of the theory of

their defense—that Parks knew about the prior conviction for domestic violence

and the prior rape charge, and knew that she could intimidate the defendant into

staying with her by threatening to call police regarding the warrants or fabricate her

own rape charges against defendant. Therefore, this information was related to the

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crux of the defense’s case. We find that it was a reasonable tactical decision for

defense counsel not to object to cross-examination on these issues.

{¶ 38} As for the driver’s license, while counsel should have objected to the

admission of this evidence, defendant has not demonstrated “a reasonable

probability that, were it not for counsel’s errors, the result of the trial would have

been different.” Bradley, supra, at paragraph three of the syllabus. Thus, we

conclude that the failure to object to the issues above did not rise to the level of

ineffective assistance of counsel.

{¶ 39} Finally, defendant alleges that trial counsel was unprepared to go

forward with the sexual offender classification hearing. Indeed, counsel was

unprepared to conduct the sexual offender classification hearing. But that was

through no fault of her own. Neither counsel nor defendant received notice of the

hearing. Our resolution of the notice issue follows and makes this particular claim

moot.

{¶ 40} Based on our prior review of the other three claims, we find that

defendant’s claims did not rise to the level of ineffective assistance of counsel.

Accordingly, we find that defendant’s sixth proposition of law is without merit.

Sexual Offender Classification Hearing

{¶ 41} R.C. 2950.09(B)(1) provides that “the judge who is to impose

sentence upon the offender shall conduct a hearing to determine whether the

offender is a sexual predator. The judge shall conduct the hearing prior to

sentencing and, if the sexually oriented offense is a felony, may conduct it as part

of the sentencing hearing required by section 2929.19 of the Revised Code. The

court shall give the offender and the prosecutor who prosecuted the offender for the

sexually oriented offense notice of the date, time, and location of the hearing.” R.C.

2950.09(B)(1).

{¶ 42} When defendant was convicted on April 28, 1997, the trial judge set

the sentencing hearing for May 9, 1997, without any mention of a sexual offender

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classification hearing. On May 9, 1997, defendant and his counsel and the

prosecutor were present for sentencing when trial counsel made a motion to

withdraw from further representation because defendant had written a letter to the

trial judge after his conviction, accusing trial counsel of ineffectiveness. The trial

court denied her motion, and she was forced to proceed with both sentencing and

then the sexual offender classification hearing.

{¶ 43} The court of appeals determined that the trial court erred in failing

to give the notice required by R.C. 2950.09(B)(1), but concluded that there was no

prejudice to defendant from the lack of notice. We strongly disagree and reverse

the judgment of the court of appeals on this issue.

{¶ 44} Defendant received no notice of the hearing, either orally or in

writing. Clearly, defendant did not receive that which was due to him under the

statute. Trial counsel did her best to represent defendant at the sexual offender

classification hearing within the constraints upon her; however, we find that it is

imperative that counsel have time to adequately prepare for the hearing. At the

hearing, the defendant is entitled to “testify, present evidence, call and examine

witnesses and expert witnesses, and cross-examine witnesses and expert witnesses

regarding the determination as to whether the offender is a sexual predator.” R.C.

2950.09(B)(1).

{¶ 45} At a sexual offender classification hearing, decisions are made

regarding classification, registration, and notification that will have a profound

impact on a defendant’s life. Defendants must have notice of the hearing in order

to “have an opportunity to testify, present evidence, call and examine witnesses and

expert witnesses, and cross-examine witnesses and expert witnesses regarding the

determination as to whether the offender is a sexual predator.” R.C. 2950.09(B)(1).

{¶ 46} R.C. 2950.09(B)(1) further provides that “[t]he court shall give the

offender and the prosecutor who prosecuted the offender for the sexually oriented

offense notice of the date, time, and location of the hearing.” Giving effect to the

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plain language of the statute, we conclude that the notice provision of R.C.

2950.09(B)(1) demands strict compliance. To hold otherwise would make the

hearing perfunctory in nature and would deny defendant the rights guaranteed him

under the statute.

{¶ 47} Defense counsel did not formally object to the judge’s proceeding

with the hearing without notice to the defendant. We are mindful that we have held

that sexual offender classification hearings under R.C. 2950.09(B) are civil in

nature, State v. Cook (1998), 83 Ohio St.3d 404, 423, 700 N.E.2d 570, 585. “In

appeals of civil cases, the plain error doctrine is not favored and may be applied

only in the extremely rare case involving exceptional circumstances where error, to

which no objection was made at the trial court, seriously affects the basic fairness,

integrity, or public reputation of the judicial process, thereby challenging the

legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson (1997),

79 Ohio St.3d 116, 679 N.E.2d 1099, syllabus. We find that this case involves such

exceptional circumstances and therefore hold that this lack of notice to the

defendant constituted plain error.

{¶ 48} Accordingly, we hold that the notice requirement for sexual offender

classification hearings under R.C. 2950.09(B)(1) is mandatory. Notice of the

sentencing hearing is not sufficient notice of the sexual offender classification

hearing. Absent compliance with the mandatory notice provision, defendant’s

classification as a sexual predator must be vacated and the matter remanded to the

trial court for a sexual offender classification hearing with proper advance notice

of the hearing issued to the parties. The remainder of the judgment of the court of

appeals is affirmed.

Judgment affirmed in part,

reversed in part

and cause remanded.

MOYER, C.J., RESNICK, F.E. SWEENEY AND PFEIFER, JJ., concur.

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DOUGLAS, J., concurs in judgment.

COOK, J., dissents.

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COOK, J., dissenting.

{¶ 49} I agree with the majority that the trial court’s failure to satisfy the

notice requirement for the sexual offender classification hearing was error. Gowdy,

however, did not object to this error. The majority decides, without elaboration,

that this case involves “exceptional circumstances” and reverses on the basis of

plain error. I respectfully dissent, because I would find no plain error here.

{¶ 50} At least two appellate districts in this state have determined that plain

error does not necessarily occur whenever a trial court fails to provide proper notice

of the classification hearing under R.C. 2950.09. See, e.g., State v. Meade (Apr.

30, 1999), Scioto App. No. 98CA2566, unreported, 1999 WL 299890; State v.

Martell (Nov. 29, 1999), Clermont App. Nos. CA99-01-009 and CA99-05-054,

unreported, 1999 WL 1087025. Both courts adhered to the well-established

prudential rule that “[n]otice of plain error * * * is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372

N.E.2d 804, paragraph three of the syllabus.

{¶ 51} In Meade, the offender pleaded guilty to rape, and the trial court held

the sexual predator classification hearing just before the sentencing hearing without

objection from either party. On appeal, Meade argued that the trial court deprived

him of due process by failing to notify him that the classification hearing would

occur at sentencing. The court of appeals found no plain error, noting that Meade

expressed no surprise or confusion when the court began the classification hearing,

and that Meade’s counsel presented evidence on Meade’s behalf that dovetailed the

factors enumerated in R.C. 2950.09(B)(2). Accordingly, the court of appeals

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concluded that the failure to provide specific notice of the classification hearing did

not prejudice Meade.

{¶ 52} In Martell, the offender pleaded guilty to rape and gross sexual

imposition. At the conclusion of the sentencing hearing, the prosecutor said to the

judge, “Wait, Your Honor, there is the issue of classification, I guess, before—if

we can do that at this time. * * * My understanding from [defense counsel] is that

there is not going to be an argument on that.” Defense counsel then said to the

judge, “We are not going to stipulate to it. We think all the information necessary

* * * is before the Court. We concede ‘sexually oriented offender’ would not be

appropriate. We think the middle classification would be appropriate.” The state

urged the court to classify Martell as a sexual predator, and defense counsel

discussed Martell’s remorse. The court classified Martell as a sexual predator.

{¶ 53} On appeal, Martell argued that the trial court’s failure to notify him

that the sexual predator classification would occur at sentencing denied him due

process. Like the Meade court, the Twelfth Appellate District determined that the

notice error did not prejudice Martell. The court reasoned that Martell’s counsel

knew the classification hearing would occur at sentencing, since he had previously

discussed the classification issue with the prosecutor. And Martell’s counsel

advocated the interests of his client by noting Martell’s remorse and suggesting the

appropriateness of the “middle” classification. For these reasons, the court of

appeals concluded that the notice failure did not amount to plain error.

{¶ 54} Both the Meade and Martell courts applied the definition of “plain

error” from Crim.R. 52(B). Today, the majority applies the civil definition of “plain

error” from Goldfuss v. Davidson, noting that our decision in State v. Cook held

that sexual predator classification hearings are “civil in nature.” Regardless,

Goldfuss expressly found that the plain error doctrine “originated as a criminal law

concept,” Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 121, 679 N.E.2d 1099,

1103. And Goldfuss’s definition of the plain error standard to be applied in civil

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contexts tracks the standard in our criminal cases interpreting Crim.R. 52(B).

Compare State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804,

paragraph three of the syllabus (“Notice of plain error under Crim.R. 52[B] is to be

taken with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice.”), and Goldfuss, supra, 79 Ohio St.3d at 121, 679

N.E.2d at 1103 (“In applying the doctrine of plain error in a civil case, reviewing

courts must proceed with the utmost caution, limiting the doctrine strictly to those

extremely rare cases where exceptional circumstances require its application to

prevent a manifest miscarriage of justice, and where the error complained of, if left

uncorrected, would have a material adverse effect on the character of, and public

confidence in, judicial proceedings.”). Finally, even in Cook, we cited criminal

cases to support our conclusion that the trial judge’s reliance on a presentence report

during the classification hearing did not amount to plain error. State v. Cook (1998),

83 Ohio St.3d 404, 426, 700 N.E.2d 570, 587, citing State v. Nicholas (1993), 66

Ohio St.3d 431, 435-436, 613 N.E.2d 225, 229, and State v. Martin (1955), 164

Ohio St. 54, 59, 57 O.O. 84, 87, 128 N.E.2d 7, 12. All of this persuades me that

the Meade and Martell courts properly employed the Rule 52(B) standard for plain

error.

{¶ 55} The record of the sentencing proceeding in this case reveals that

Gowdy did not suffer prejudice as a result of the trial court’s failure to comply with

the notice requirement of R.C. 2950.09. Gowdy’s trial counsel appeared with

Gowdy at his sentencing hearing, and they expressed no surprise that the

classification hearing would occur before sentencing. When Gowdy’s attorney

requested to withdraw as Gowdy’s counsel, she did so on the basis of her client’s

pro se motion alleging ineffective assistance of counsel—not because she felt

unprepared to represent Gowdy during the classification hearing. When the trial

court denied defense counsel’s request to withdraw, based on her demonstrated

history of effective representation, the parties—like the parties in Meade and

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Martell—presented arguments that dovetailed appropriate factors for consideration

under R.C. 2950.09(B)(2). Defense counsel urged the court to consider Gowdy’s

lack of prior felony convictions. See R.C. 2950.09(B)(2)(b) and (f). And the state

noted Gowdy’s prior criminal record, the nature of the offense, Gowdy’s

demonstrated pattern of abuse, and evidence of cruelty. See R.C. 2950.09(B)(2)(b),

(f), (h), and (i). Only after considering these statutorily permissible factors did the

trial court classify Gowdy as a sexual predator.

{¶ 56} Because I do not believe that the trial court’s improper notice

prejudiced Gowdy, I would not vacate his classification as a sexual predator on the

basis of plain error. This is not “the extremely rare case involving exceptional

circumstances” where the trial court’s error challenges the legitimacy of the judicial

process. Goldfuss, supra, 79 Ohio St.3d 116, 679 N.E.2d 1099, syllabus. And

because I concur with the majority’s disposition of Gowdy’s other claims, I would

affirm the judgment of the court of appeals.

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