State v. Perdue

2022 Ohio 722, 185 N.E.3d 683

• Court: Ohio Court of Appeals
• Decided: March 11, 2022
• Docket: 2021-CA-6
• Status: Published

Opinion

[Cite as State v. Perdue, 2022-Ohio-722.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-6 : v. : Trial Court Case No. 2020-CR-21 : CHRISTOPHER RAY PERDUE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 11th day of March, 2022.

IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio 45429 Attorney for Defendant-Appellant

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TUCKER, P.J. -2-

{¶ 1} Defendant-appellant Christopher Ray Perdue appeals from his conviction,

following a plea of guilty, for aggravated arson, burglary, and disrupting a public service.

Perdue claims the trial court erred in accepting his guilty plea after failing to advise him

during the plea hearing of the requirement to register as an arson offender. For the

reasons that follow, we affirm.

I. Facts and Procedural History

{¶ 2} On January 11, 2020, Perdue trespassed into an unoccupied residence and

started a fire therein. The fire destroyed the entire structure and eventually spread to an

adjacent, occupied residence, causing significant damage to this structure. Thereafter,

Perdue broke a window and entered a different residence. However, he left after

encountering the homeowner. He then used a saw to cut through a power line to yet

another residence.

{¶ 3} On January 21, 2020, Perdue was indicted on three counts of burglary, three

counts of aggravated arson, one count of disrupting public services, and one count of

possessing criminal tools. Following plea negotiations, Perdue agreed to enter guilty

pleas to one count of aggravated arson, one count of burglary, and one count of disrupting

public services. In exchange, the State agreed to dismiss the remaining counts. There

was no agreement as to the length of each sentence, but the State agreed the sentences

would be served concurrently.

{¶ 4} A plea hearing was conducted on September 22, 2020. On that date, -3-

Perdue signed a plea form and an arson registration notification form.1 The trial court

did not mention the arson registration notification form during the plea hearing. However,

the court otherwise conducted a proper Crim.R. 11(C) plea colloquy with Perdue and

thereafter accepted his plea of guilty.2

{¶ 5} A sentencing hearing was conducted on October 15, 2020. Prior to

sentencing, the following colloquy took place:

THE COURT: What was not placed on the record at the time of the plea -

- at least I don’t recall it being placed on the record - - is the fact that the

defendant completed a form that is a notice of duty to register as an arson

offender which indicated to him that he would be required to register in

person with the sheriff of the county in which he establishes residency within

ten days of coming into that county or if occupying a dwelling for more than

three days of coming into the county

He is required to provide the sheriff certain information including

Social Security number; full name and any alias; his residence address;

information regarding the offense for which he was convicted or pled guilty;

a description of any scars, tattoos, or other distinguishing marks on his

person; the name and address of any places where he is employed or

attends school; any driver’s license number, commercial driver’s license

number, or state identification card number issued to him; the license plate

1 The arson registration notification form was not filed of record until October 19, 2019.

2 As noted below, Perdue does not challenge the trial court’s plea colloquy regarding anything other than the failure to mention the arson registration requirements. -4-

number of any vehicle or each vehicle owned or operated by the defendant

or registered in his name. The vehicle identification number and

description of the vehicle must also be provided to the sheriff.

He will [be] required to provide the sheriff fingerprints and palm

prints. The sheriff will also obtain a photograph at the time of registration.

The Defendant will be required to remit the registration fee of $50 to the

sheriff, unless the fee is waived; and after the date of the initial registration,

he will be required to register annually. He must update or amend any of

the information described in this form that has changed and provide any

additional information requested at the county sheriff’s office within ten days

of the anniversary of the calendar date on which he initially registered.

He’s required to pay a registration fee of $25 to the sheriff.

If he changes his residence address, he shall provide written notice

of that change to the sheriff with whom he most recently registered and to

the sheriff of the county in which he intends to reside.

For the record now, Mr. Perdue, do you remember going over this

form and signing it?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You understood the requirements of registration?

THE DEFENDANT: Yes, Your Honor, I do.

Sentencing Tr. p. 4-6.

{¶ 6} The trial court then imposed a minimum prison term of eight years and -5-

maximum term of 12 years for the aggravated arson conviction; a prison term of 24

months for the burglary conviction; and a 12-month sentence for the disrupting public

services conviction.3 As agreed by the parties, the court ordered the sentences to be

served concurrently.

{¶ 7} Perdue appeals.

II. Guilty Plea

{¶ 8} Perdue assigns the following as his sole assignment of error:

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

BY ACCEPTING A GUILTY PLEA WHICH WAS NOT KNOWING,

INTELLIGENT, AND VOLUNTARY IN VIOLATION OF APPELLANT’S DUE

PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATE [SIC] CONSITUTION [SIC] AND

ARTICLE I, SECTION 18, OF THE OHIO CONSTITUTION.

{¶ 9} Perdue asserts that his guilty plea was not knowingly, intelligently, and

voluntarily made because the trial court failed to advise him that by pleading guilty to the

arson count he became subject to the arson offender registration requirements of R.C.

2909.13, 2909.14, and 2909.15.

{¶ 10} Due process requires that a defendant’s guilty plea be knowing, intelligent,

and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969);

see also State v. Inskeep, 2d Dist. Champaign No. 2016-CA-2, 2016-Ohio-7098, ¶ 12.

3 The record demonstrates that Perdue had a significant criminal history and had not responded favorably to prior sanctions. -6-

A trial court’s compliance with Crim.R. 11(C) ensures that a plea comports with due

process. State v. McElroy, 2d Dist. Montgomery No. 28974, 2021-Ohio-4026, ¶ 14;

State v. Russell, 2d Dist. Clark No. 10-CA-54, 2011-Ohio-1738, ¶ 6.

{¶ 11} Crim.R. 11(C)(2)(c) requires the trial court to inform the defendant of the

constitutional rights he is waiving by entering a plea. These rights are the right to a jury

trial, the right to confront witnesses, the right to compulsory process, the right against self-

incrimination, and the right to require the State to establish guilt beyond a reasonable

doubt. Since constitutional rights are involved, strict compliance with this portion of the

rule is required. State v. Jones, 2d Dist. Greene No. 2019-CA-811, 2020-Ohio-4667,

¶ 10, citing State v. Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211, ¶ 5. A

failure of strict compliance requires a finding that the plea is not consistent with due

process; prejudice, under this circumstance, is presumed, and the plea must be

invalidated. Id., citing State v. Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d

617, ¶ 16, State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31-

32.

{¶ 12} Crim.R. 11(C)(2)(a) requires the trial court to determine that the plea is

being made voluntarily, that the defendant understands the nature of the charge, the

maximum penalty involved, and, if applicable, that the defendant is not eligible to be

sentenced to a term of community control sanctions. Crim.R. 11(C)(2)(b) requires the

trial court to determine that the defendant understands the effect of the plea and that the

trial court, upon acceptance of the plea, may proceed to sentencing. Since Crim.R.

11(C)(2)(a) and (b) do not implicate constitutional rights, a trial court’s partial compliance -7-

with these portions of the rule, as opposed to strict compliance, does not necessarily

require that the plea be vacated. Instead, the defendant must establish that the failure

of strict compliance has caused prejudice. State v. Dangler, 162 Ohio St.3d 1, 2020-

Ohio-2765, 164 N.E.3d 286, ¶ 16. In this context, prejudice is measured by whether the

defendant would have entered the plea if there had been full compliance with, as

applicable, Crim.R. 11(C)(2)(a) or (b). Id. at ¶ 23. But, a trial court’s complete failure to

comply with either Crim.R. 11(C)(2)(a) or (b) eliminates the defendant’s burden to

establish prejudice.4 Id. at ¶ 15.

{¶ 13} Perdue argues that the arson registration requirements are punitive and

thus are part of the maximum penalty for an arson offense. Based on this view, Perdue

argues that the trial court completely failed to address the arson registration requirements

at the plea hearing, that this complete failure eliminated his burden to establish prejudice,

and that, as such, his plea must be vacated. We disagree.

{¶ 14} An arson offender must register annually, in person, with the sheriff of the

county in which he resides. R.C. 2909.15. This is a lifetime requirement unless

modified by the trial court. R.C. 2909.15(D)(2). Registration is mandatory for all arson

offenders; an arson offender is any person convicted of arson or aggravated arson, or

4 As noted, Perdue signed an arson registration notification form on the date of the sentencing hearing. But the record is not clear if the form was signed before, during, or after the plea hearing. If signed before or at the plea hearing, and assuming that the registration requirements are part of the maximum penalty, it would seem that this constituted at least partial compliance with the trial court’s obligation to inform Perdue of the maximum penalty. And, based upon what occurred at the sentencing hearing, Perdue could not demonstrate prejudice. Of course, given our conclusion that the registration requirements are not part of the maximum sentence, this issue does not require resolution. -8-

any person convicted of an attempt, conspiracy, or complicity in committing these crimes.

R.C. 2909.14(A), R.C. 2909.13(B)(1), and R.C. 2909.13(A). A failure to register is a fifth-

degree felony. R.C. 2909.15(H).

{¶ 15} Whether a consequence of a guilty plea is part of a defendant’s maximum

sentence turns on whether the consequence is part of the defendant’s punishment or,

instead, is a remedial, collateral consequence of the plea. The appellate districts that

have considered the issue have concluded that the arson registration requirements are a

remedial, collateral consequence and that a trial court’s failure at the plea hearing to

advise a defendant of the arson registration requirements does not violate Crim.R.

11(C)(a) or affect the knowing, intelligent, and voluntary nature of a defendant’s plea.

State v. Rogers, 8th Dist. Cuyahoga Nos. 105335, 105518, 2017-Ohio-9161, ¶ 25; State

v. Magby, 7th Dist. Mahoning No. 17MA6, 2019-Ohio-877, ¶ 33.

{¶ 16} In State v. Caldwell, 2014-Ohio-3566, 18 N.E.3d 467 (1st Dist.), the First

District Court of Appeals concluded that the retroactive application of the arson

registration requirements did not violate the retroactivity clause of the Ohio Constitution,

Article II, Section 28. This is germane to the present discussion because a remedial

statute – as opposed to substantive one –may be applied retroactively without violating

the Ohio Constitution. Caldwell concluded that the registration requirements are

remedial. Id. at ¶ 21, ¶ 35.

{¶ 17} In reaching this conclusion, Caldwell discussed and distinguished State v.

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, which determined that

the changes to Ohio’s sex offender registration scheme made by S.B. 10 (the Adam -9-

Walsh Act) were, in the aggregate, punitive, and thus the retroactive application of S.B.

10 violated the Retroactivity Clause of the Ohio Constitution. Id. at ¶ 21-22. Caldwell

first noted the similarities between the arson registration and sex offender registration

requirements as follows:

* * * Both the sex-offender and arson-offender registration schemes

have been placed within R.C. Title 29 - Ohio's criminal code. The failure

to register under either scheme subjects offenders to criminal prosecution.

Arson offenders are automatically subject to registration requirements upon

conviction for any arson-related offense, “without regard to the

circumstances of the crime or [their] likelihood to reoffend.” They are not

entitled to a hearing prior to classification, nor is there any opportunity for

the court to review the appropriateness of the classification. Further, arson

offenders are automatically subject to a lifetime reporting requirement—with

a limited exception that permits the trial court to reduce their reporting

requirement to no less than ten years, upon the request of the prosecutor

and investigating officer.

(Citations omitted.) Caldwell at ¶ 33. But then the opinion outlined the differences

between the two schemes as follows:

Sex offenders must register in potentially three different counties—those in

which they reside, work, and attend school—and some must register as

frequently as 90 days. In contrast, arson offenders need only register

annually in the county in which they reside. [There is a] stigma that follows -10-

from an offender's placement on the public sex-offender registry.

Conversely, the arson-offender registry is visible only to certain law-

enforcement personnel. The sex-offender statutes impose stringent

restrictions on where the offender is permitted to reside, whereas arson

offenders are not subject to any residential restrictions. And while arson-

registry violations may subject the offender to later prosecution, we think it

notable that the failure to register is a low-level felony that carries a

presumption of probation. R.C. 2909.15(H). This is markedly different

from the failure of a sex offender to register, which constitutes a felony of

the same degree as that of the underlying conviction. See R.C. 2950.99.

(Citations omitted.) Id. at ¶ 34.

{¶ 18} As noted, Caldwell concluded that the arson registration requirements are

remedial and thus subject to retroactive application. Id. at ¶ 35. The other appellate

districts that have considered the issue have all concluded that the arson registration

scheme is remedial and, as a result, does not violate the Retroactivity Clause of the Ohio

Constitution. State v. Jones, 6th Dist. Lucas No. L-16-1014, 2017-Ohio-413, ¶ 25; State

v. Reed, 2014-Ohio-5463, 25 N.E.3d 480, ¶ 85 (11th Dist.); State v. Galloway, 2015-Ohio-

4949, 50 N.E.3d 1001, ¶ 36 (5th Dist.).

{¶ 19} Consistent with the State v. Caldwell analysis and the conclusion reached

by our sister appellate districts, we conclude that the arson registration requirements are

remedial, and thus they were not part of Perdue’s maximum sentence. Therefore, the

trial court was not required to inform Perdue of the arson registration requirements at the -11-

plea hearing, though the better practice would be to have the discussion. Perdue’s sole

assignment of error is overruled.

Conclusion

{¶ 20} The trial court’s judgment is affirmed.

WELBAUM, J. and LEWIS, J., concur.

Copies sent to:

Ian A. Richardson Charles M. Blue Hon. Richard J. O’Neill