[Cite as State v. Reaper, 2022-Ohio-555.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
State of Ohio Court of Appeals No. E-21-010
Appellee Trial Court No. CRB2000283
v.
Shawn M. Reaper DECISION AND JUDGMENT
Appellant Decided: February 25, 2022
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Russell V. Leffler, for appellant. .
OSOWIK, J.
{¶ 1} This is an appeal from an April 2, 2021 judgment of the Erie County
Municipal Court, Milan, Ohio, sentencing appellant to serve a prison term of 180 days,
with 60 days suspended, a five-year term of probation, and classifying him as a Tier 1 sex offender, following appellant’s no contest plea on one count of unlawful sexual conduct
with a minor, in violation of R.C. 2907.04(A), a misdemeanor of the first degree.
{¶ 2} For the reasons set forth more fully below, this court vacates appellant’s plea
and sentence, reverses the trial court judgment, and remands the case to the trial court.
{¶ 3} Appellant, Shawn M. Reaper, sets forth the following two assignments of
error on appeal:
“I. It was error for the trial court to take a plea without [first] telling the appellant
he could be facing [Tier 1] sex[ual] [offender] registration [requirements].
“II. It was error for the court to find the sexual incident that was the basis of the
charge was not consen[s]ual.”
{¶ 4} The following undisputed facts are relevant to this appeal. This case stems
from a sexual encounter transpiring between appellant, who was 18-years-old at the time
of the incident, and a 15-year-old female, who had been appellant’s neighbor and friend
for several years prior to the encounter.
{¶ 5} Appellant later moved into the girl’s home, following the suicide of his
sister. After moving in with the girl’s family, appellant asked her father if he could date
his daughter. Her parents responded that their daughter was too young to date appellant
and they did not approve.
2. {¶ 6} Despite the disapproval, the girl and appellant subsequently became
intimate. They engaged in sexual intercourse on one occasion. This appeal stems from
that sexual encounter.
{¶ 7} Approximately five months after the sexual encounter, the parents of the girl
indirectly learned of it via social media postings and confronted their daughter regarding
what had occurred.
{¶ 8} At this juncture, the girl acknowledged to her parents that she and appellant
had engaged in sex on that occasion and that it had not been consensual on her part.
{¶ 9} Thereafter, a law enforcement investigation commenced. The investigators
ultimately determined that the sexual encounter between the two did not constitute felony
conduct. Thus, the matter was pursued at the misdemeanor level.
{¶ 10} On September 4, 2020, appellant was charged with one count of unlawful
sexual conduct with a minor, in violation of R.C. 2907.04, a misdemeanor of the first
degree.
{¶ 11} On September 9, 2020, appellant entered a plea of not guilty. On
December 18, 2020, following voluntary negotiations, appellant entered a change of plea,
to no contest, on the charge. A presentence investigation was ordered. The propriety of
the change of plea underlies this appeal.
{¶ 12} On March 12, 2021, prior to appellant’s sentencing, the trial court
conducted an R.C. 2950.01 evidentiary hearing for purposes of determining whether the
sexual incident between the parties had been consensual.
3. {¶ 13} In the course of the evidentiary hearing, opposing testimony was presented
to the trial court by the two parties to the disputed occurrence. The girl testified that she
was raped by appellant. She maintained that she said no and did not engage in sex
willingly.
{¶ 14} Conversely, appellant testified that she invited him into her bedroom to
watch television, she initiated the encounter, she did not say no, and she engaged in it
voluntarily.
{¶ 15} There were no other witnesses. There was no non-testimonial evidence
presented. The record is devoid of independent, objective evidence regarding what
occurred.
{¶ 16} Following the hearing, the trial court found that the sexual encounter had
not been consensual, thereby triggering Tier 1 sex offender status and requirements for
appellant.
{¶ 17} On April 2, 2021, appellant was sentenced to 180 days in prison, with 60
days suspended, a five-year term of probation, and was ordered to register as a Tier 1 sex
offender, pursuant to R.C. 2950.01.
{¶ 18} The record reflects that appellant was given no advance knowledge by the
trial court regarding the possibility of facing a sexual offender classification prior to
entering his change of plea. This appeal ensued.
4. {¶ 19} In the first assignment of error, appellant maintains the trial court erred in
the complete failure to inform appellant at any time prior to appellant’s change of plea of
the possibility that appellant could be classified as a sex offender. We concur.
{¶ 20} Crim.R. 11(D) establishes, “In misdemeanor cases involving serious
offenses the court * * * shall not accept such plea without first addressing the defendant
personally and informing the defendant of the effect of the pleas of guilty, no contest, and
not guilty and determining that the defendant is making the plea voluntarily.” (Emphasis
added).
{¶ 21} In conjunction, the Ohio Supreme Court uniformly holds that, “Due
process requires the defendant’s plea be made knowingly, intelligently, and voluntarily;
otherwise, the defendant’s plea is invalid.” State v. Bishop, 156 Ohio St.3d 156, 2018-
Ohio-5132, 124 N.E.3d 766, ¶ 10. (Emphasis added).
{¶ 22} Of particular relevance in our consideration of the merits of this case, the
Ohio Supreme Court decision in State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765,
164 N.E.3d 286 is illustrative.
{¶ 23} Dangler discusses in detail the constitutional due process importance of the
trial court alerting a defendant prior to the acceptance of a change of plea of the potential
applicability of a sexual offender status and requirements as a result of the change of
plea.
{¶ 24} In Dangler, appellant’s change of plea resulted in a Tier III sex offender
classification. Although the trial court did notify appellant prior to the plea that it would
5. result in appellant having to register as a Tier III sex offender, unlike the complete failure
to inform by the trial court in the instant case, appellant nevertheless maintained that the
trial court failed to completely explain all of the specific requirements which would
accompany appellant’s sexual offender classification.
{¶ 25} The Dangler court emphasized, “Because a no contest or guilty plea
involves a waiver of constitutional rights, a defendant’s decision to enter a plea must be
knowing, intelligent, and voluntary * * * if the plea was not made knowingly,
intelligently, and voluntarily, enforcement of that plea is unconstitutional.” Dangler at ¶
10. (Emphasis added).
{¶ 26} The Dangler court subsequently elaborated that the key consideration in
resolving such change of plea cases is, “[W]hether the dialogue between the court and the
defendant demonstrates that the defendant understood the consequences of his plea.” Id.
at ¶ 12.
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[Cite as State v. Reaper, 2022-Ohio-555.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
State of Ohio Court of Appeals No. E-21-010
Appellee Trial Court No. CRB2000283
v.
Shawn M. Reaper DECISION AND JUDGMENT
Appellant Decided: February 25, 2022
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Russell V. Leffler, for appellant. .
OSOWIK, J.
{¶ 1} This is an appeal from an April 2, 2021 judgment of the Erie County
Municipal Court, Milan, Ohio, sentencing appellant to serve a prison term of 180 days,
with 60 days suspended, a five-year term of probation, and classifying him as a Tier 1 sex offender, following appellant’s no contest plea on one count of unlawful sexual conduct
with a minor, in violation of R.C. 2907.04(A), a misdemeanor of the first degree.
{¶ 2} For the reasons set forth more fully below, this court vacates appellant’s plea
and sentence, reverses the trial court judgment, and remands the case to the trial court.
{¶ 3} Appellant, Shawn M. Reaper, sets forth the following two assignments of
error on appeal:
“I. It was error for the trial court to take a plea without [first] telling the appellant
he could be facing [Tier 1] sex[ual] [offender] registration [requirements].
“II. It was error for the court to find the sexual incident that was the basis of the
charge was not consen[s]ual.”
{¶ 4} The following undisputed facts are relevant to this appeal. This case stems
from a sexual encounter transpiring between appellant, who was 18-years-old at the time
of the incident, and a 15-year-old female, who had been appellant’s neighbor and friend
for several years prior to the encounter.
{¶ 5} Appellant later moved into the girl’s home, following the suicide of his
sister. After moving in with the girl’s family, appellant asked her father if he could date
his daughter. Her parents responded that their daughter was too young to date appellant
and they did not approve.
2. {¶ 6} Despite the disapproval, the girl and appellant subsequently became
intimate. They engaged in sexual intercourse on one occasion. This appeal stems from
that sexual encounter.
{¶ 7} Approximately five months after the sexual encounter, the parents of the girl
indirectly learned of it via social media postings and confronted their daughter regarding
what had occurred.
{¶ 8} At this juncture, the girl acknowledged to her parents that she and appellant
had engaged in sex on that occasion and that it had not been consensual on her part.
{¶ 9} Thereafter, a law enforcement investigation commenced. The investigators
ultimately determined that the sexual encounter between the two did not constitute felony
conduct. Thus, the matter was pursued at the misdemeanor level.
{¶ 10} On September 4, 2020, appellant was charged with one count of unlawful
sexual conduct with a minor, in violation of R.C. 2907.04, a misdemeanor of the first
degree.
{¶ 11} On September 9, 2020, appellant entered a plea of not guilty. On
December 18, 2020, following voluntary negotiations, appellant entered a change of plea,
to no contest, on the charge. A presentence investigation was ordered. The propriety of
the change of plea underlies this appeal.
{¶ 12} On March 12, 2021, prior to appellant’s sentencing, the trial court
conducted an R.C. 2950.01 evidentiary hearing for purposes of determining whether the
sexual incident between the parties had been consensual.
3. {¶ 13} In the course of the evidentiary hearing, opposing testimony was presented
to the trial court by the two parties to the disputed occurrence. The girl testified that she
was raped by appellant. She maintained that she said no and did not engage in sex
willingly.
{¶ 14} Conversely, appellant testified that she invited him into her bedroom to
watch television, she initiated the encounter, she did not say no, and she engaged in it
voluntarily.
{¶ 15} There were no other witnesses. There was no non-testimonial evidence
presented. The record is devoid of independent, objective evidence regarding what
occurred.
{¶ 16} Following the hearing, the trial court found that the sexual encounter had
not been consensual, thereby triggering Tier 1 sex offender status and requirements for
appellant.
{¶ 17} On April 2, 2021, appellant was sentenced to 180 days in prison, with 60
days suspended, a five-year term of probation, and was ordered to register as a Tier 1 sex
offender, pursuant to R.C. 2950.01.
{¶ 18} The record reflects that appellant was given no advance knowledge by the
trial court regarding the possibility of facing a sexual offender classification prior to
entering his change of plea. This appeal ensued.
4. {¶ 19} In the first assignment of error, appellant maintains the trial court erred in
the complete failure to inform appellant at any time prior to appellant’s change of plea of
the possibility that appellant could be classified as a sex offender. We concur.
{¶ 20} Crim.R. 11(D) establishes, “In misdemeanor cases involving serious
offenses the court * * * shall not accept such plea without first addressing the defendant
personally and informing the defendant of the effect of the pleas of guilty, no contest, and
not guilty and determining that the defendant is making the plea voluntarily.” (Emphasis
added).
{¶ 21} In conjunction, the Ohio Supreme Court uniformly holds that, “Due
process requires the defendant’s plea be made knowingly, intelligently, and voluntarily;
otherwise, the defendant’s plea is invalid.” State v. Bishop, 156 Ohio St.3d 156, 2018-
Ohio-5132, 124 N.E.3d 766, ¶ 10. (Emphasis added).
{¶ 22} Of particular relevance in our consideration of the merits of this case, the
Ohio Supreme Court decision in State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765,
164 N.E.3d 286 is illustrative.
{¶ 23} Dangler discusses in detail the constitutional due process importance of the
trial court alerting a defendant prior to the acceptance of a change of plea of the potential
applicability of a sexual offender status and requirements as a result of the change of
plea.
{¶ 24} In Dangler, appellant’s change of plea resulted in a Tier III sex offender
classification. Although the trial court did notify appellant prior to the plea that it would
5. result in appellant having to register as a Tier III sex offender, unlike the complete failure
to inform by the trial court in the instant case, appellant nevertheless maintained that the
trial court failed to completely explain all of the specific requirements which would
accompany appellant’s sexual offender classification.
{¶ 25} The Dangler court emphasized, “Because a no contest or guilty plea
involves a waiver of constitutional rights, a defendant’s decision to enter a plea must be
knowing, intelligent, and voluntary * * * if the plea was not made knowingly,
intelligently, and voluntarily, enforcement of that plea is unconstitutional.” Dangler at ¶
10. (Emphasis added).
{¶ 26} The Dangler court subsequently elaborated that the key consideration in
resolving such change of plea cases is, “[W]hether the dialogue between the court and the
defendant demonstrates that the defendant understood the consequences of his plea.” Id.
at ¶ 12.
{¶ 27} The Dangler court next determined that, “[W]e proceed with the
assumption that the [sex offender registration] scheme as a whole constitutes a penalty
for purposes of Crim.R. 11. Id. at ¶ 20.
{¶ 28} Dangler ultimately concluded that, “[A]lthough R.C. Chapter 2950
contains a mixture of remedial and punitive elements * * * the statutory scheme as a
whole * * * [is] punitive * * * Because the trial court in this case advised Dangler that he
would be subject to the registration requirements of that statutory scheme, the trial court
6. did not completely fail to comply with Crim.R. 11’s maximum penalty advisement
requirement.” Id. at ¶ 22. (Emphasis added).
{¶ 29} Conversely, there was no advisement whatsoever given by the trial court to
appellant in the present case so that appellant even arguably understood the consequences
of the plea. The record shows that there was a complete failure to inform appellant of a
potential sex offender classification prior to his change of plea.
{¶ 30} Of further significance to our resolution of this case, we look to an Eighth
District Court of Appeals case that is substantively akin to the factual scenario presented
in this appeal.
{¶ 31} This is another case in which the trial court completely failed to inform the
defendant prior to the change of plea of the possibility of a sex offender classification
resulting from the change of plea.
{¶ 32} In State v. Brown, 2020-Ohio-4474, 158 N.E.3d 972 (8th Dist.), the court
concluded that, “[T]he record is clear that the trial court did not even mention sex
offender classification until after it accepted Brown’s pleas * * * the trial court’s
omission of any reference to sexual offender classification at the change of plea hearing
constituted a complete failure to comply with Crim.R. 11 and the defendant’s guilty plea
was, therefore, void.” Brown at ¶ 29-30. (Emphasis added).
{¶ 33} Accordingly, in our consideration of the merits of this case, we have
scrutinized the transcripts of the December 18, 2020 change of plea hearing.
7. {¶ 34} At the change of plea hearing, the trial court stated to appellant, “If you
plead no contest, you’re waiving certain constitutional rights * * * Those rights include
your right to a trial on this charge.”
{¶ 35} In addition, the trial court further advised appellant that, “This court could
sentence you to the maximum penalty provided in the law for this offense, which is up to
six months in jail and a fine of $1000. Do you understand that?”
{¶ 36} Appellant replied, “Yes, Your Honor.”
{¶ 37} No other references to other possible consequences resulting from the
change of plea were relayed to appellant by the trial court prior to his change of plea.
{¶ 38} The record of evidence clearly reflects that the trial court omitted and
completely failed to inform appellant of the possibility of a sexual offender classification
resulting from appellant’s change of plea prior to accepting the change of plea.
{¶ 39} We find that the record in this case shows that the trial court erred in
completely failing to advise appellant of the potential sex offender classification resulting
from his change of plea, as required by Crim.R. 11 and Dangler, and consistent with
Brown.
{¶ 40} This omission constituted a breach of Crim.R. 11. Accordingly, we find
that appellant’s plea was not knowingly, intelligently, and voluntarily made. Thus, the
plea is invalid and void.
{¶ 41} In conjunction with the above, and as held by the Ohio Supreme Court in
State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, “[S]tructural errors
8. are constitutional defects that * * * affect the framework within which the trial proceeds,
rather than simply being an error in the trial process itself * * * Such errors permeate the
entire conduct of the trial * * * [S]o that the trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence.” Perry at ¶ 17-18. (Emphasis added).
{¶ 42} We further find that the above-described Crim.R. 11 violation, and the
constitutional infringement resulting from the violation, likewise constituted structural
error. It precluded a reliable determination of appellant’s guilt or innocence.
{¶ 43} Wherefore, we find appellant’s first assignment of error well-taken.
{¶ 44} In appellant’s second assignment of error, appellant maintains that the trial
court erred in the March 12, 2021 determination, subsequent to the December 18, 2020,
change of plea hearing, that the sexual encounter occurring between the parties was not
consensual.
{¶ 45} Given our determination in response to the first assignment of error,
finding that the trial court breached Crim.R. 11(D) during the change of plea hearing,
thereby rendering the plea void, we consequently find that the trial court’s subsequent
determination on the issue of consent, which would not have occurred but for the void
change of plea, is likewise void as a matter of law.
{¶ 46} Thus, we find that appellant’s second assignment of error is moot based
upon our determination in response to appellant’s first assignment of error.
9. {¶ 47} On consideration whereof, we vacate the plea, vacate the sentencing
judgment resulting from the void plea, and reverse and remand this case to the trial court.
Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
10.