State v. Fisher

[Cite as State v. Fisher, 2021-Ohio-1592.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 109276

v. :

TERRANCE FISHER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 6, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-19-635959-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Daniel Van, Assistant Prosecuting Attorney,

for appellee.

Valore & Gordillo, L.L.P., and Dean M. Valore, for

appellant.

LISA B. FORBES, J.:

Appellant, Terrance Fisher (“Fisher”) appeals his conviction and

sentence to 54 months in prison for sexual battery and attempted burglary. Fisher

argues that the trial court completely failed its Crim.R. 11 duties to inform him of the

implications of being classified as a Tier III sex offender. After reviewing the

pertinent law and facts of the case, we affirm the decision of the trial court.

I. Facts and Procedural History

Fisher entered guilty pleas to an amended indictment charging him

with one count of sexual battery, a felony of the third degree; and with one count of

attempted burglary, a felony of the third degree. He was sentenced to 54 months in

prison for the sexual battery charge and 30 months for the burglary charge, with the

terms to be served concurrently.

At the outset of Fisher’s change-of-plea hearing, the prosecution

explained that the state of Ohio sought to amend Count 2 of the indictment to sexual

battery, a felony of the third degree. In addition to describing the potential prison

term and mandatory postrelease control sanctions, the prosecution stated that the

penalty for sexual battery is “a Tier III sex offender registration which is every 90

days for life registration. There are community residential requirements as well.”

Fisher’s counsel assured the court that he had “spoken with [his] client, explained

to him his trial and constitutional rights * * * I believe he will * * * enter a plea of

guilty as outlined.” Moments later the court asked Fisher, “Are you able to

understand this proceeding as it is occurring?” to which he responded, “Yes,

ma’am.”

Shortly thereafter, the trial court reiterated that sexual battery is a

felony of the third degree, is possibly punishable from 12 to 60 months in six-month

increments, carries a maximum discretionary fine of $10,000, and requires

imposition of postrelease control for a period of five years. In addition, the trial

court made the following advisement regarding Fisher’s sex offender status and the

implications that follow from it:

THE COURT: Sir, any plea to this case would render you as a Tier III

sex offender which the Court will review with you at your sentencing.

Do you understand?

THE DEFENDANT: Yes, ma’am.

II. Law and Analysis

Fisher raises one assignment of error for our review, arguing that the

trial court completely failed to meet its duties under Crim.R. 11 because it did not

notify him during the plea colloquy that he would be subject to registration

requirements and residency restrictions under R.C. 2929.50 by pleading guilty to

sexual battery. As a result, Fisher argues that his plea was not entered knowingly,

intelligently, or voluntarily and must be vacated.

Crim.R. 11(C) prescribes the process the trial court must follow

before accepting a defendant’s plea of guilty or no contest to ensure it is made

knowingly, intelligently, and voluntarily. State v. Bishop, 156 Ohio St.3d 156,

2018-Ohio-5132, 124 N.E.3d 766, ¶ 11. We review de novo, whether under the

totality of the circumstances, the trial court’s plea colloquy complied with

Crim.R. 11. State v. Jackson, 8th Dist. Cuyahoga No. 99985, 2014-Ohio-706, ¶ 6.

Crim.R. 11(C) outlines the trial court’s duties to advise the defendant

of his or her constitutional and nonconstitutional rights before accepting a plea of

guilty or no contest. Crim.R. 11(C)(2)(c) identifies the constitutional rights a

defendant gives up by entering a guilty or no contest plea. A trial court is required

to strictly comply when advising a defendant of his or her constitutional rights.

State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.

Crim.R. 11(C)(2)(a) and (b) identify the nonconstitutional rights a

trial court must address with a defendant before accepting a plea of guilty or no

contest. A trial court must substantially comply with Crim.R. 11(C)(2)(a) and (b)

when advising the defendant of those rights. “A plea is in substantial compliance

* * * when it can be inferred from the totality of the circumstances that the

defendant understands the charges against him.” State v. Walker, 8th Dist.

Cuyahoga No. 65794, 1994 Ohio App. LEXIS 4450, 4-5 (Sept. 29, 1994),

citing State v. Rainey, 3 Ohio App.3d 441, 446 N.E.2d 188 (10th Dist.1982),

paragraph one of the syllabus. “Under this standard, a slight deviation from the text

of the rule is permissible: so long as the totality of the circumstances indicates that

‘the defendant subjectively understands the implications of his plea and the rights

he is waiving,’ the plea may be upheld.” State v. Clark, 119 Ohio St.3d 239, 2008-

Ohio-3748, 893 N.E.2d 462, ¶ 31, quoting State v. Nero, 56 Ohio St.3d 106, 108,

564 N.E.2d 474 (1990).

A defendant seeking to vacate a guilty plea must demonstrate

prejudice unless (1) the trial court failed to explain the constitutional rights the

defendant waived by pleading guilty or no contest, or (2) the trial court failed

completely to advise the defendant of his nonconstitutional rights. State v.

Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 14, 15; Nero at 108;

State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.

Prejudice is demonstrated by showing that but for the failings of the trial court, the

defendant would not have otherwise entered the plea. Nero at 108. In this appeal,

Fisher does not quarrel with the way the trial court advised him of his constitutional

rights.

Fisher claims the trial court failed completely to advise him of the

maximum penalty he faced as required by Crim.R. 11(C)(2)(a) when he entered a

guilty plea to a charge of sexual battery. We disagree. At the plea colloquy the judge

advised Fisher of the possible prison sentence and the fine he faced, and that he

would be classified as a Tier III sex offender.

Being labeled a Tier III sex offender and the implications of that

classification are punitive in nature. State v. Williams, 129 Ohio St.3d 344, 2011-

Ohio-3374, 952 N.E.2d 1108, ¶ 16. The Williams Court found that the entire

statutory scheme of R.C. Chapter 2950 taken as a whole was punitive, no single

provision taken alone was punitive. Thus, failing to advise the defendant of any

individual ramification of his plea does not rise to the level of a complete failure.

Accord State v. Dornoff, 6th Dist. Wood No. WD-16-072, 2020-Ohio-3909, ¶ 17

(finding that upon remand from the Supreme Court a trial court does not completely

fail when it does not separately advise defendant of the “sex-offender registration

and in-person verification requirements, community-notification provisions, and

residence restrictions imposed by the sex-offender registration scheme” prior to

accepting his or her plea).

Reviewing the totality of the circumstances, we conclude that Fisher’s

plea was entered knowingly, voluntarily, and intelligently and that the trial court did

not completely fail to advise Fisher of the maximum penalty he faced. Before

accepting Fisher’s guilty plea, the trial court explained that by pleading guilty to

sexual battery he faced a sentence of 12 to 60 months in prison, a fine of up to

$10,000, that he would be subject to mandatory postrelease control, and that he

would be classified as a Tier III sex offender, which would be further discussed with

him at sentencing. By explaining that being classified a Tier III sex offender would

be further discussed at sentencing, the trial court indicated that the classification

was part of his punishment, even though it did not inform him of his specific

obligations flowing from that classification. See State v. Jones, 8th Dist. Cuyahoga

No. 107275, 2019-Ohio-993, ¶ 14; State v. Brown, 2019-Ohio-527, 132 N.E.3d 176,

¶ 13 (8th Dist.). The judge asked whether Fisher understood each of the

advisements, to which he replied yes. At the hearing, shortly before the colloquy

between Fisher and the court, the prosecutor explained that the punishment for the

sexual battery count includes “a Tier III sex offender registration which is every 90

days for life registration. There are community residential requirements as well.”

The totality of the circumstances of this case are unlike those in State

v. Baker, where this court vacated the defendant’s guilty plea after finding a

complete failure to advise of the maximum penalty. State v. Baker, 8th Dist.

Cuyahoga No. 108301, 2020-Ohio-107. In Baker, the trial court simply advised the

defendant that Count 1 to which he was pleading guilty was “a Tier 3 sex offense, and

we’ll go into that later,” but did nothing to indicate that “the fact that Baker would

be pleading guilty to a ‘Tier 3 sex offense’ had any additional penalties or

consequences.” Id. at ¶ 22. The Baker Court pointed out that there was no

indication that “the trial court or anyone else” informed the defendant that by

entering his guilty plea to a “Tier 3 sex offense” he would be classified a Tier III sex

offender or that he would face penalties as a result. Id.

Moreover, and perhaps more importantly, the holding from Baker, is

no longer valid law. In Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, at ¶ 22, the Ohio

Supreme Court reviewed whether “the trial court was also required to separately go

over the registration and in-person-verification requirements, community-

notification provisions, and residency restrictions imposed by R.C. Chapter 2950”

in order to substantially comply with Crim.R. 11. Id. at ¶ 21. The trial court in that

case had advised the offender that he would have to register as a Tier III offender

based on the plea. Id. at ¶ 1. The Ohio Supreme Court concluded that when a trial

court advises the offender that he would be subject to the classification requirements

of that statutory scheme, the court has not completely omitted the necessary

advisements. Id. at ¶ 22. The analysis then turns to whether the offender was

prejudiced as a result of the advisements that were or were not given by the court.

The failure to provide a detailed breakdown of all registration

requirements does not constitute the complete failure to advise the offender;

consequently, in this setting, a defendant seeking to vacate a guilty plea must

demonstrate prejudice. See, e.g., State v. Duncan, 8th Dist. Cuyahoga No. 109310,

2020-Ohio-6740, ¶ 15. Advising the offender of the tier classification system suffices

to trigger the requirement that the defendant show prejudice. The sole purpose of

the prejudice requirement is to avoid the squandering of judicial and taxpayer

resources by overturning guilty pleas the offender has no desire to abandon.

Because the trial court did not fail completely to make the Crim.R. 11

advisement on the maximum penalty, Fisher was required to demonstrate prejudice

to be entitled to have his plea vacated. Fisher made no arguments whatsoever

regarding prejudice.

Accordingly, we find Fisher’s sole assignment of error is without

merit.

We note that compliance with Crim.R. 11 is of the utmost importance

to ensuring that any plea of guilty or no contest is knowing, voluntary, and

intelligent. We echo the Supreme Court in encouraging all trial courts to “be

thorough in reviewing consequences of a defendant’s decision to enter a plea,

including those stemming from classification as a sex offender: the duty to register

and provide in-person verification, the community-notification provisions, and the

residency restrictions.” Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d

286, at ¶ 25.

Judgment 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

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS WITH MAJORITY AND WITH

SEPARATE CONCURRING OPINION;

SEAN C. GALLAGHER, P.J., CONCURS (WITH SEPARATE CONCURRING

OPINION)

SEAN C. GALLAGHER, P.J., CONCURRING:

I fully concur with the majority’s conclusion, but write separately to

clarify that not only is the holding from Baker, 8th Dist. Cuyahoga No. 108301,

2020-Ohio-107, no longer valid law, but neither is its progeny, State v. Brown,

2020-Ohio-4474, 158 N.E.3d 972, ¶ 14 (8th Dist.), which was issued after Dangler.

In light of the fact that Dangler is controlling authority, Brown must be deemed to

be an aberrant decision, and not one that can pose as an intradistrict conflict under

App.R. 26.

In Brown, a divided panel concluded that the trial court’s advisement

of the penalty, which included the Tier III classification advisement, was a complete

failure to advise the offender of the maximum penalty. Id. at ¶ 13. In that case, the

trial court had inadvertently omitted the advisement notifying the offender of the

classification accompanying the plea, but acknowledged that deficiency immediately

after accepting the guilty plea before the conclusion of the hearing and notifying the

offender that the offense was subject to the Tier III classification. Id. at ¶ 14. That

advisement triggered the prejudice analysis under Dangler, 162 Ohio St.3d 1, 2020-

Ohio-2765, 164 N.E.3d 286, and the fact that the trial court provided the advisement

after the plea colloquy, but before dismissing the parties, does not alter the analysis.

Reversible error does not occur based on inadvertent omissions that are timely

corrected. According to the Brown panel, the defendant acknowledged the

classification advisement at the time he entered the plea after the trial court realized

the mistake. This triggered the prejudice analysis under Dangler. Brown concluded

otherwise citing Baker. Importantly, Brown did not base the error on the failure to

provide the advisement during the colloquy but instead based the error on the

content of the advisement. Brown at ¶ 29-30.

Although the panel in Baker did not have the benefit of Dangler, the

panel in Brown did. Baker was overruled by Dangler, and Brown conflicts with

binding Ohio Supreme Court precedent and should be treated accordingly. With

this clarification in mind, I fully concur with the majority opinion.