[Cite as State v. Sanders, 2016-Ohio-1397.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-15-1068
Appellee Trial Court No. CR0201402448
v.
Terry L. Sanders DECISION AND JUDGMENT
Appellant Decided: March 31, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Terry Sanders, appeals the February 13, 2015
judgment of the Lucas County Court of Common Pleas which after accepting appellant’s
guilty-plea, sentenced him to six years of imprisonment, ordered him to serve five years of post-release control, and classified him as a Tier III sex offender. For the reasons set
forth herein, we vacate the sentence of the lower court.
{¶ 2} On June 3, 2012, at approximately 4:30 a.m., appellant and co-defendant,
Christian Cook, encountered the victim in Toledo, Lucas County, Ohio, as she was
walking home. The men forced the victim to an abandoned house, removed her clothing,
and forced themselves on her. Appellant engaged in both oral and vaginal sex with the
victim. After hearing a noise in a nearby alley, appellant and his co-defendant fled taking
the victim’s purse and cellphone. The victim took refuge at a nearby Taco Bell where
employees called 911. The police arrived, took a report, and then transported the victim
to a hospital where a rape kit was prepared and swabs were sent to the Bureau of
Criminal Investigation and Identification. Appellant was identified by the DNA evidence
from the kit and a condom found at the scene also contained appellant’s DNA.
{¶ 3} On September 9, 2014, the state filed an indictment charging appellant with
one count of rape, a felony of the first degree, and his co-defendant, Christian Cook, with
two counts of rape. On January 26, 2015, after rescheduling the trial multiple times,
appellant entered a guilty plea to a lesser offense of attempted rape, a felony of the
second degree. Although the court informed appellant that because of his plea he would
be classified as a Tier III sex offender, the court provided no further explanation as to the
accompanying registration obligations. On February 12, 2015, the court sentenced
appellant to six years of imprisonment and ordered him to serve five years of post-release
control. As in the plea hearings, the court informed appellant that he would be classified
2. as a Tier III sex offender but did not explain the registration requirements. Appellant
filed a notice of appeal on March 19, 2015, and raises three assignments of error:
I. The trial court erred to the prejudice of appellant in accepting a
guilty plea, pursuant to North Carolina v. Alford, which was not made
knowingly, in violation of appellant’s due process rights under the Fifth and
Fourteenth Amendments of the United States Constitution and Article I,
Section 16 of the Ohio Constitution.
II. The trial court committed plain error to the prejudice of appellant
at sentencing by imposing court costs and financial sanctions without
consideration of Appellant’s present or future ability to pay.
III. Appellant received ineffective assistance of counsel in violation
of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, §10 of the Constitution of the State of
Ohio.
{¶ 4} Appellant’s first assignment of error contends that because the trial court did
not fully inform him of the consequences of his guilty plea (the mandatory registration
obligations as a sex offender) his due process rights were violated. The Supreme Court
of Ohio has found that Crim.R. 11(C) establishes the process trial courts must use before
accepting a felony plea of guilty or no contest. State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621, ¶ 8; State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,
893 N.E.2d 462, ¶ 27.
3. {¶ 5} While it is preferred that courts strictly adhere to the language in Crim.R.
11(C) in the explanation of the defendant’s rights, should the trial court stray from the
exact wording then a multi-step analysis must be performed to determine whether the
plea should be considered void. Clark at ¶ 29-30. First, the court must determine
whether the trial court failed to explain a defendant’s constitutional right or a
nonconstitutional right. If it concerned a constitutional right, the guilty or no contest plea
must be considered void as though the defendant entered it “involuntarily and
unknowingly.” Id. at ¶ 30-31, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-
4415, 814 N.E.2d 51, ¶ 12. In the present case, the court failed to inform appellant of the
registration requirement attaching to the classification of a Tier III sex offender. Both
appellant and the state treat this omission as concerning a nonconstitutional right.
Crim.R. 11(C)(2)(c) lists the constitutional rights at issue, and since being informed of
the punishment attaching to the crime is not one, their assumption is correct and this
concerns a nonconstitutional right. Veney at ¶ 8-13; Crim.R. 11(C)(2)(c).
{¶ 6} When the court fails to inform the defendant of a nonconstitutional right, the
court must then consider whether there was substantial compliance. Clark at ¶ 31-32,
quoting State v. Nero 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). The Supreme
Court of Ohio has defined “substantial compliance” as “under the totality of the
circumstances the defendant subjectively understands the implications of his plea and the
rights he is waiving.” Nero at 108. Furthermore, a defendant who challenges his guilty
plea on the basis that it was not knowingly, intelligently, and voluntarily made must show
4. a prejudicial effect. State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977);
Crim.R. 52(A). However, if the trial court completely failed to comply with Crim.R.
11(C)(2)(a) (which includes the nonconstitutional right that the defendant be aware of the
maximum punishment), then the analysis for prejudice is not implicated. State v.
McMahon, 6th Dist. Sandusky No. S-14-036, 2015-Ohio-3300, ¶ 12, citing Clark at ¶ 32.
{¶ 7} This court has recently considered whether a failure to inform a defendant of
registration requirements of a Tier III sex offender should be considered partial
compliance or non-compliance. McMahon at ¶ 8, 12-13. The court recognized that the
registration requirements for those classified as a Tier III sex offender were “punitive” in
nature, and therefore the court’s failure to inform the defendant of them was non-
compliance with Crim.R. 11(C)(2)(a). Id. at ¶ 13-14, citing State v. Williams, 129 Ohio
St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16 (registration requirements are
punitive); see also State v. Hines, 6th Dist. Erie No. E-13-054, 2014-Ohio-1996, ¶ 12 (the
court found that failure to inform defendant of notification requirement for Tier III sex
offender constituted non-compliance).
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[Cite as State v. Sanders, 2016-Ohio-1397.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-15-1068
Appellee Trial Court No. CR0201402448
v.
Terry L. Sanders DECISION AND JUDGMENT
Appellant Decided: March 31, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Terry Sanders, appeals the February 13, 2015
judgment of the Lucas County Court of Common Pleas which after accepting appellant’s
guilty-plea, sentenced him to six years of imprisonment, ordered him to serve five years of post-release control, and classified him as a Tier III sex offender. For the reasons set
forth herein, we vacate the sentence of the lower court.
{¶ 2} On June 3, 2012, at approximately 4:30 a.m., appellant and co-defendant,
Christian Cook, encountered the victim in Toledo, Lucas County, Ohio, as she was
walking home. The men forced the victim to an abandoned house, removed her clothing,
and forced themselves on her. Appellant engaged in both oral and vaginal sex with the
victim. After hearing a noise in a nearby alley, appellant and his co-defendant fled taking
the victim’s purse and cellphone. The victim took refuge at a nearby Taco Bell where
employees called 911. The police arrived, took a report, and then transported the victim
to a hospital where a rape kit was prepared and swabs were sent to the Bureau of
Criminal Investigation and Identification. Appellant was identified by the DNA evidence
from the kit and a condom found at the scene also contained appellant’s DNA.
{¶ 3} On September 9, 2014, the state filed an indictment charging appellant with
one count of rape, a felony of the first degree, and his co-defendant, Christian Cook, with
two counts of rape. On January 26, 2015, after rescheduling the trial multiple times,
appellant entered a guilty plea to a lesser offense of attempted rape, a felony of the
second degree. Although the court informed appellant that because of his plea he would
be classified as a Tier III sex offender, the court provided no further explanation as to the
accompanying registration obligations. On February 12, 2015, the court sentenced
appellant to six years of imprisonment and ordered him to serve five years of post-release
control. As in the plea hearings, the court informed appellant that he would be classified
2. as a Tier III sex offender but did not explain the registration requirements. Appellant
filed a notice of appeal on March 19, 2015, and raises three assignments of error:
I. The trial court erred to the prejudice of appellant in accepting a
guilty plea, pursuant to North Carolina v. Alford, which was not made
knowingly, in violation of appellant’s due process rights under the Fifth and
Fourteenth Amendments of the United States Constitution and Article I,
Section 16 of the Ohio Constitution.
II. The trial court committed plain error to the prejudice of appellant
at sentencing by imposing court costs and financial sanctions without
consideration of Appellant’s present or future ability to pay.
III. Appellant received ineffective assistance of counsel in violation
of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, §10 of the Constitution of the State of
Ohio.
{¶ 4} Appellant’s first assignment of error contends that because the trial court did
not fully inform him of the consequences of his guilty plea (the mandatory registration
obligations as a sex offender) his due process rights were violated. The Supreme Court
of Ohio has found that Crim.R. 11(C) establishes the process trial courts must use before
accepting a felony plea of guilty or no contest. State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621, ¶ 8; State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,
893 N.E.2d 462, ¶ 27.
3. {¶ 5} While it is preferred that courts strictly adhere to the language in Crim.R.
11(C) in the explanation of the defendant’s rights, should the trial court stray from the
exact wording then a multi-step analysis must be performed to determine whether the
plea should be considered void. Clark at ¶ 29-30. First, the court must determine
whether the trial court failed to explain a defendant’s constitutional right or a
nonconstitutional right. If it concerned a constitutional right, the guilty or no contest plea
must be considered void as though the defendant entered it “involuntarily and
unknowingly.” Id. at ¶ 30-31, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-
4415, 814 N.E.2d 51, ¶ 12. In the present case, the court failed to inform appellant of the
registration requirement attaching to the classification of a Tier III sex offender. Both
appellant and the state treat this omission as concerning a nonconstitutional right.
Crim.R. 11(C)(2)(c) lists the constitutional rights at issue, and since being informed of
the punishment attaching to the crime is not one, their assumption is correct and this
concerns a nonconstitutional right. Veney at ¶ 8-13; Crim.R. 11(C)(2)(c).
{¶ 6} When the court fails to inform the defendant of a nonconstitutional right, the
court must then consider whether there was substantial compliance. Clark at ¶ 31-32,
quoting State v. Nero 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). The Supreme
Court of Ohio has defined “substantial compliance” as “under the totality of the
circumstances the defendant subjectively understands the implications of his plea and the
rights he is waiving.” Nero at 108. Furthermore, a defendant who challenges his guilty
plea on the basis that it was not knowingly, intelligently, and voluntarily made must show
4. a prejudicial effect. State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977);
Crim.R. 52(A). However, if the trial court completely failed to comply with Crim.R.
11(C)(2)(a) (which includes the nonconstitutional right that the defendant be aware of the
maximum punishment), then the analysis for prejudice is not implicated. State v.
McMahon, 6th Dist. Sandusky No. S-14-036, 2015-Ohio-3300, ¶ 12, citing Clark at ¶ 32.
{¶ 7} This court has recently considered whether a failure to inform a defendant of
registration requirements of a Tier III sex offender should be considered partial
compliance or non-compliance. McMahon at ¶ 8, 12-13. The court recognized that the
registration requirements for those classified as a Tier III sex offender were “punitive” in
nature, and therefore the court’s failure to inform the defendant of them was non-
compliance with Crim.R. 11(C)(2)(a). Id. at ¶ 13-14, citing State v. Williams, 129 Ohio
St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16 (registration requirements are
punitive); see also State v. Hines, 6th Dist. Erie No. E-13-054, 2014-Ohio-1996, ¶ 12 (the
court found that failure to inform defendant of notification requirement for Tier III sex
offender constituted non-compliance). In McMahon, this court also found that because
there was a complete lack of compliance with the statutory requirements, as a matter-of-
law, the plea was not knowingly and voluntarily given. McMahon at ¶ 19.
{¶ 8} In this case, the trial court did not inform appellant of the registration
requirements of a Tier III sex offender. This failure constitutes non-compliance on the
part of the trial court, leaving appellant unaware of the extent of the punishment imposed
upon him. This renders appellant’s plea void as it cannot be considered as being given
5. “knowingly and voluntarily.” Since, as a matter of law, appellant did not give his plea
knowingly or voluntarily, appellant need not show that the trial court’s omissions
prejudiced him. Appellant’s first assignment of error is well-taken.
{¶ 9} Because we have determined that appellant's guilty plea was not knowing
and voluntary, the issues raised in appellant’s second and third assignments of error are
therefore moot and we decline to address them. See App.R. 12(A)(1)(c).
{¶ 10} On consideration whereof, we find that appellant was prejudiced and
prevented from having a fair proceeding. Accordingly, the judgment of the Lucas
County Court of Common Pleas is reversed. Appellant’s plea and sentence are hereby
vacated, and the matter is remanded for further proceedings consistent with this decision.
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.
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.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.sconet.state.oh.us/rod/newpdf/?source=6.
6.