[Cite as State v. Cruea, 2012-Ohio-5209.]
IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 2
v. : T.C. NO. 11CR303
MICHAEL CRUEA : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 9th day of November , 2012.
ROBERT E. LONG III, Atty. Reg. No. 0066796, Assistant Prosecuting Attorney, 201 W. Main Street, Safety Building, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Michael S. Cruea appeals his conviction and sentence
for one count of rape, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and 2
two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4), both felonies of
the third degree. Cruea filed a timely notice of appeal with this Court on March 30, 2012.
{¶ 2} On October 20, 2011, Cruea was indicted in Case No. 2011CR303 for one
count of gross sexual imposition (G.S.I.). At his arraignment on October 24, 2011, Cruea
pled not guilty to the charge of G.S.I. The record establishes that during the arraignment,
defense counsel acknowledged receipt of the indictment and waived any defects in service.
Defense counsel, however, did not waive the reading of the indictment.
{¶ 3} Shortly thereafter on December 23, 2011, Cruea was indicted in Case No.
2011CR412 for one count of rape and one count of G.S.I. At his arraignment on January 3,
2012, Cruea pled not guilty to the charges against him. At the second arraignment, defense
counsel waived the reading of the indictment on defendant’s behalf.
{¶ 4} On February 22, 2012, Cruea pled no contest to one count of rape and two
counts of G.S.I. in Case Nos. 2011CR303 and 2011CR412. The trial court accepted
Cruea’s no contest pleas and found him guilty on all counts. At the sentencing hearing on
March 1, 2012, the trial court sentenced Cruea to eight years in prison for the rape count and
two years for the G.S.I. count in Case No. 2011CR412. With respect to the remaining
G.S.I. count in Case No. 2011CR303, the trial court sentenced Cruea to two years in prison.
The trial court ordered all of the sentences to run concurrently for an aggregate sentence of
eight years.
{¶ 5} It is from this judgment that Cruea now appeals.
{¶ 6} Cruea’s sole assignment of error is as follows:
{¶ 7} “APPELLANT’S PLEA OF NO CONTEST WAS NOT KNOWINGLY 3
AND FREELY ENTERED DUE TO A SERIES OF FAILINGS BY THE TRIAL COURT
TO PROPERLY ADVISE HIM.”
{¶ 8} In his sole assignment, Cruea contends that his no contest pleas were not
made in a knowing, intelligent, and voluntary fashion in light of the following three events:
1) the trial court did not read the indictment in Case No. 2011CR303 aloud to Cruea at his
arraignment on October 24, 2011, for one count of G.S.I. and Cruea did not waive the
reading of the indictment; 2) during the colloquy at Cruea’s plea hearing, the trial court
twice referred to his “no contest” plea as a “guilty” plea; and 3) the trial court failed to
properly advise Cruea with respect to how his no contest plea would affect his sexual
offender reporting requirements. Cruea asserts that the cumulative effect of these errors
resulted in a plea that was less than knowing, voluntary, and intelligent.
{¶ 9} 1) Failure to Read the Indictment
{¶ 10} On October 24, 2011, Cruea was arraigned on the indictment in Case No.
2011CR303 before the trial court. Defense counsel for Cruea noted on the record that he
had received a copy of the indictment, he waived any defects in service, and he pled not
guilty. We note, however, that defense counsel did not waive the reading of the indictment.
Cruea did not object to the trial court’s failure to read the indictment.
{¶ 11} Crim. R. 10(A) provides:
Arraignment shall be conducted in open court, and shall
consist of reading the indictment, information or complaint
to the defendant, or stating to the defendant the
substance of the charge, and calling on the 4
defendant to plead thereto. The defendant may in
open court waive the reading of the indictment, information or
complaint. The defendant shall be given a copy of the
indictment *** and shall acknowledge receipt thereof, before
being called upon to plead.
{¶ 12} A challenge regarding improper arraignment is waived if the defendant fails
to object to the defect prior to appeal. State v. Boone, 9th Dist. Summit No. 26104,
2012-Ohio-3142; see Garland v. Washington, 232 U.S. 642, 646, 32 S.Ct. 456, 58 L.Ed.2d
772 (1914) (“A waiver ought to be conclusively implied where the parties had proceeded as
if defendant had been duly arraigned and a formal plea of not guilty had been interposed, and
where there was no objection made on account of its absence until, as in this case, the record
was brought to this court for review.”); King v. United States, 25 F.2d 242, 243-44 (6th
Cir.1928) (“[E]ven though the defendant had not been formally arraigned, or had not pleaded
to the indictment, his proceeding to trial without raising this objection would imply a waiver,
or at least the formal defect would not be prejudicial.”)
{¶ 13} Cruea does not dispute that the record establishes that he appeared at the
October 24, 2011, arraignment with counsel and the he did not object at any point during
these initial proceedings. A defendant who is represented by counsel, pleads not guilty, and
proceeds to trial without objection forfeits objections to errors in his arraignment on appeal.
State v. Boone, 2012-Ohio-3142. At no point in the proceedings did Cruea raise an
objection to his arraignment on the basis that the indictment had not been read aloud. Upon
review, Cruea has waived the argument he now makes by failing to raise it before the trial 5
court. Accordingly, we conclude that Cruea has failed to demonstrate any reversible error
regarding his arraignment.
{¶ 14} 2) Trial Court Misstating “Guilty” for “No Contest” during Plea
Hearing
{¶ 15} In this portion of his first assignment, Cruea argues that his no contest plea
was less than knowing and voluntary because the trial court mistakenly referred to his no
contest plea as a “guilty” plea during the plea colloquy. We note that the record establishes
that the trial court did, in fact, ask Cruea on two occasions if he understood that he was
pleading “guilty” rather than “no contest” to the accompanying sex offender classification.
{¶ 16} We further note that during the hearing, Cruea acknowledged that he read
and signed a form entitled “Plea of No Contest.” The form stated “I withdraw my former
not guilty plea and enter a plea of no contest.” Cruea signed the form immediately prior to
the beginning of the plea hearing.
{¶ 17} Significantly, the record establishes that although the trial court
did incorrectly refer to Cruea’s “no contest” plea as a “guilty” plea on two occasions, the
trial court correctly referred to his plea as “no contest” the majority of the time during the
hearing. The trial court made the following statements to Cruea regarding his no contest
plea at the hearing:
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[Cite as State v. Cruea, 2012-Ohio-5209.]
IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 2
v. : T.C. NO. 11CR303
MICHAEL CRUEA : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 9th day of November , 2012.
ROBERT E. LONG III, Atty. Reg. No. 0066796, Assistant Prosecuting Attorney, 201 W. Main Street, Safety Building, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Michael S. Cruea appeals his conviction and sentence
for one count of rape, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and 2
two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4), both felonies of
the third degree. Cruea filed a timely notice of appeal with this Court on March 30, 2012.
{¶ 2} On October 20, 2011, Cruea was indicted in Case No. 2011CR303 for one
count of gross sexual imposition (G.S.I.). At his arraignment on October 24, 2011, Cruea
pled not guilty to the charge of G.S.I. The record establishes that during the arraignment,
defense counsel acknowledged receipt of the indictment and waived any defects in service.
Defense counsel, however, did not waive the reading of the indictment.
{¶ 3} Shortly thereafter on December 23, 2011, Cruea was indicted in Case No.
2011CR412 for one count of rape and one count of G.S.I. At his arraignment on January 3,
2012, Cruea pled not guilty to the charges against him. At the second arraignment, defense
counsel waived the reading of the indictment on defendant’s behalf.
{¶ 4} On February 22, 2012, Cruea pled no contest to one count of rape and two
counts of G.S.I. in Case Nos. 2011CR303 and 2011CR412. The trial court accepted
Cruea’s no contest pleas and found him guilty on all counts. At the sentencing hearing on
March 1, 2012, the trial court sentenced Cruea to eight years in prison for the rape count and
two years for the G.S.I. count in Case No. 2011CR412. With respect to the remaining
G.S.I. count in Case No. 2011CR303, the trial court sentenced Cruea to two years in prison.
The trial court ordered all of the sentences to run concurrently for an aggregate sentence of
eight years.
{¶ 5} It is from this judgment that Cruea now appeals.
{¶ 6} Cruea’s sole assignment of error is as follows:
{¶ 7} “APPELLANT’S PLEA OF NO CONTEST WAS NOT KNOWINGLY 3
AND FREELY ENTERED DUE TO A SERIES OF FAILINGS BY THE TRIAL COURT
TO PROPERLY ADVISE HIM.”
{¶ 8} In his sole assignment, Cruea contends that his no contest pleas were not
made in a knowing, intelligent, and voluntary fashion in light of the following three events:
1) the trial court did not read the indictment in Case No. 2011CR303 aloud to Cruea at his
arraignment on October 24, 2011, for one count of G.S.I. and Cruea did not waive the
reading of the indictment; 2) during the colloquy at Cruea’s plea hearing, the trial court
twice referred to his “no contest” plea as a “guilty” plea; and 3) the trial court failed to
properly advise Cruea with respect to how his no contest plea would affect his sexual
offender reporting requirements. Cruea asserts that the cumulative effect of these errors
resulted in a plea that was less than knowing, voluntary, and intelligent.
{¶ 9} 1) Failure to Read the Indictment
{¶ 10} On October 24, 2011, Cruea was arraigned on the indictment in Case No.
2011CR303 before the trial court. Defense counsel for Cruea noted on the record that he
had received a copy of the indictment, he waived any defects in service, and he pled not
guilty. We note, however, that defense counsel did not waive the reading of the indictment.
Cruea did not object to the trial court’s failure to read the indictment.
{¶ 11} Crim. R. 10(A) provides:
Arraignment shall be conducted in open court, and shall
consist of reading the indictment, information or complaint
to the defendant, or stating to the defendant the
substance of the charge, and calling on the 4
defendant to plead thereto. The defendant may in
open court waive the reading of the indictment, information or
complaint. The defendant shall be given a copy of the
indictment *** and shall acknowledge receipt thereof, before
being called upon to plead.
{¶ 12} A challenge regarding improper arraignment is waived if the defendant fails
to object to the defect prior to appeal. State v. Boone, 9th Dist. Summit No. 26104,
2012-Ohio-3142; see Garland v. Washington, 232 U.S. 642, 646, 32 S.Ct. 456, 58 L.Ed.2d
772 (1914) (“A waiver ought to be conclusively implied where the parties had proceeded as
if defendant had been duly arraigned and a formal plea of not guilty had been interposed, and
where there was no objection made on account of its absence until, as in this case, the record
was brought to this court for review.”); King v. United States, 25 F.2d 242, 243-44 (6th
Cir.1928) (“[E]ven though the defendant had not been formally arraigned, or had not pleaded
to the indictment, his proceeding to trial without raising this objection would imply a waiver,
or at least the formal defect would not be prejudicial.”)
{¶ 13} Cruea does not dispute that the record establishes that he appeared at the
October 24, 2011, arraignment with counsel and the he did not object at any point during
these initial proceedings. A defendant who is represented by counsel, pleads not guilty, and
proceeds to trial without objection forfeits objections to errors in his arraignment on appeal.
State v. Boone, 2012-Ohio-3142. At no point in the proceedings did Cruea raise an
objection to his arraignment on the basis that the indictment had not been read aloud. Upon
review, Cruea has waived the argument he now makes by failing to raise it before the trial 5
court. Accordingly, we conclude that Cruea has failed to demonstrate any reversible error
regarding his arraignment.
{¶ 14} 2) Trial Court Misstating “Guilty” for “No Contest” during Plea
Hearing
{¶ 15} In this portion of his first assignment, Cruea argues that his no contest plea
was less than knowing and voluntary because the trial court mistakenly referred to his no
contest plea as a “guilty” plea during the plea colloquy. We note that the record establishes
that the trial court did, in fact, ask Cruea on two occasions if he understood that he was
pleading “guilty” rather than “no contest” to the accompanying sex offender classification.
{¶ 16} We further note that during the hearing, Cruea acknowledged that he read
and signed a form entitled “Plea of No Contest.” The form stated “I withdraw my former
not guilty plea and enter a plea of no contest.” Cruea signed the form immediately prior to
the beginning of the plea hearing.
{¶ 17} Significantly, the record establishes that although the trial court
did incorrectly refer to Cruea’s “no contest” plea as a “guilty” plea on two occasions, the
trial court correctly referred to his plea as “no contest” the majority of the time during the
hearing. The trial court made the following statements to Cruea regarding his no contest
plea at the hearing:
The Court: You heard the discussion earlier in this hearing about
the plea agreement. Did you hear that discussion?
Cruea: Yes sir.
Q: And is that your understanding of the plea agreement? 6
A: Yes sir.
Q: And other than what’s in the plea agreement, has anyone promised
you anything in order to get you to enter a No Contest plea today?
A: No sir.
Q: Has anyone threatened you in any way in order to get you to enter
a No Contest plea?
A: No sir. (Tr. 6)
***
Q: Do you understand that by pleading no contest to these charges in
the indictment, including the amended charge, you’re not admitting
you’re guilty, but you are admitting the truth of the facts that are
contained in the indictment. Do you understand that?
Q: Do you understand that a no contest plea cannot be used against
you in any future civil or criminal proceeding, do you understand that?
Q: And do you also understand that if the allegations that are
contained in the indictment, including the amendment are sufficient
to state the felony offenses that you’re charged with then the
Court must find you guilty on your no contest plea? Do you
understand that?
A: Yes sir. [Cite as State v. Cruea, 2012-Ohio-5209.] Q: Do you also understand that you are pleading guilty to a
sexually oriented, child victim oriented offense? Do you understand
that?
A: And you understand that because of the offense to which you
are pleading guilty will determine whether you’ll be classified as a
one – Tier I, Tier II, or Tier III sex offender, do you understand that?
Q: Your attorney has given me this plea form, Plea of No Contest.
Did you sign it on the front and the back?
A: From what I can see from here, yes sir.
Q: Okay, and did you read it over and go over it with your attorney –
A: Yes I did.
Q: - before you signed it?
A: Yes.
Q: Do you have any questions about what’s on that form?
A: No.
Q: And at this time do you wish to enter a plea of No Contest
to Count One, the amended charge of rape, a felony of the first
degree, do you wish to enter a No Contest plea to that charge?
A: Yes sir. [Cite as State v. Cruea, 2012-Ohio-5209.] Q: And do you also wish to enter a No Contest plea to Count Two
of 11CR412, gross sexual imposition? Do you wish to enter a No
Contest plea to that charge?
Q: And in Case 11CR303, do you wish to enter a No Contest plea
to the charge of gross sexual imposition, a felony of the third degree?
Q: And are you entering a No Contest plea to each of these charges
voluntarily and of your own free will?
Q: The record should reflect, and the Court finds the Defendant
is making a knowing, intelligent, and voluntary decision to
tender a plea of No Contest to each of the charges, including
the amended indictment. The Court finds that the Defendant
has been informed of all of his constitutional rights, that he
understands that nature of the charges, the effects of a No
Contest plea, as well as the possible penalties which could be
imposed. The Court has reviewed the indictments and also
the amended indictment, and finds there is a sufficient
factual basis for the plea. Does either the State or counsel
for the Defendant have any objection to any aspect of the plea
hearing?
The State: No Your Honor. [Cite as State v. Cruea, 2012-Ohio-5209.] Defense Counsel: No Your Honor. (Tr. 15-19).
{¶ 18} At this point, the trial court went on to make a finding of guilty regarding
Cruea’s no contest plea.
{¶ 19} Accordingly, the record establishes that other than the two isolated instances
where the trial court incorrectly referred to Cruea’s plea as a “guilty” plea, the court correctly
advised Cruea regarding the nature of the no contest plea he was entering. The trial court
explained the effect of a no contest to plea to Cruea, and ensured that he was entering the no
contest plea in a knowing, voluntary, and intelligent fashion. Neither Cruea nor his counsel
expressed any confusion regarding the nature of the no contest plea. In fact, the record
supports the conclusion that Cruea completely understood the nature and effect of the plea
into which he was entering. Moreover, neither Cruea nor his attorney objected to trial
court’s mistaken references to the plea as “guilty” plea. Upon review, we find that the trial
court’s isolated, incorrect references to Cruea’s no contest plea as a “guilty” plea were
harmless, and therefore cannot form the basis upon which to vacate his no contest plea.
{¶ 20} 3) Sex Offender Reporting Requirements
{¶ 21} In his final argument, Cruea asserts that his plea should be vacated because
the trial court failed to properly advise him with respect to how his no contest plea would
affect his sexual offender reporting requirements. Specifically, Cruea argues that the trial
court failed to advise him of his specific reporting responsibilities once he was designated as
a sexual offender.
{¶ 22} Initially, we note that the trial court incorrectly designated Cruea as a Tier II
sexual offender under the Adam Walsh Act, despite the fact that Cruea’s rape offense in Cae
No. 2011CR412 occurred between 1987 and 1994, before the A.W.A. took effect. The fact 10
that the State allowed Cruea to choose what statute he wanted to be sentenced under did not
affect the law under which he was to be designated as a sexually oriented offender. In State
v. Williams, The Ohio Supreme Court held that the A.W.A. is unconstitutional as applied to
any sex offender who committed the underlying sex offense before the A.W.A.’s 2008
enactment. 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, at ¶ 22. The Court
concluded that applying the A.W.A. to such offenders violates the retroactivity clause of the
Ohio Constitution. Id. Simply put, Cruea should have been classified under Megan’s Law
which may be applied retroactively and would apply to Cruea’s sex offenses given the dates
of their commission. Accordingly, the trial court committed plain error when it designated
Cruea as a Tier II sex offender under the A.W.A.
{¶ 23} We further note that under Megan’s Law, whether or not a defendant
convicted of a sexually oriented offense has a community reporting responsibility depends
upon the classification he or she receives after a sex offender classification hearing has been
held. Thus, when the trial court in the instant case informed Cruea “that based upon your
classification status, the Sheriff may have to – may be required to notify victims, neighbors,
schools, churches and other institutions of your name, address and the offense” the trial court
was not misinforming Cruea regarding his future responsibilities. Under Megan’s Law,
were Cruea to be classified as a sexual predator, he would have community reporting
responsibilities. If Cruea were to be classified as a habitual sexual offender, it would be at
the trial court’s discretion whether to make him subject to community reporting
responsibilities. Conversely, if the trial court classified Cruea as sexually oriented offender,
he would not have any community reporting duties. Accordingly, the trial court did not err 11
when it advised Cruea of the “possible consequences” his no contest would have on his
sexual offender designation, and his plea will not be vacated.
{¶ 24} Accordingly, the trial court committed plain error when it designated Cruea
as a Tier II sex offender under the A.W.A. Pursuant to Megan’s Law, the trial court should
have held a sex offender classification hearing in order to determine whether Cruea should
be designated as a 1) sexually oriented offender; 2) habitual sex offender; or a 3) sexual
predator. R.C. 2950.09. (H.B. 180, January 1, 1997). Once that determination is made after
a classification hearing, the trial court can inform Cruea of his reporting responsibilities
based on his designation.
{¶ 25} Cruea’s sole assignment of error is sustained in part and overruled in part.
{¶ 26} Accordingly, Cruea’s classification as a Tier II sexual offender is reversed,
and this matter is remanded for a sex offender classification hearing in order to determine
whether he should be designated as a 1) sexually oriented offender; 2) habitual sex offender;
or a 3) sexual predator under Megan’s Law. R.C. 2950.09. In all other respects, the
judgment of the trial court is affirmed.
GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Robert E. Long, III J. Allen Wilmes Hon. Christopher Gee