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State v. Hawkins

Court of Appeals of Ohio, Second District

June 21, 2013

STATE OF OHIO Plaintiff-Appellee
v.
DAVID R. HAWKINS Defendant-Appellant

Criminal Appeal from (Common Pleas Court) Trial Court Case No. 2012-CR-08

STEPHEN K. HALLER, by NATHANIEL R. LUKEN, Attorney for Plaintiff-Appellee

TYLER D. STARLINE, Attorney for Defendant-Appellant

OPINION

HALL, J.,

{¶ 1} David R. Hawkins appeals from his conviction and sentence following a guilty plea to two counts of sexual battery in violation of R.C. 2907.03(A)(2).

{¶ 2} Hawkins advances two assignments of error on appeal. First, he contends the trial court erred in accepting his guilty plea without properly informing him of his classification under the Adam Walsh Act and the corresponding sex-offender reporting and notification (“SORN”) requirements. Second, he claims the trial court erred at sentencing by failing to advise him of his right to appeal.

{¶ 3} The record reflects that Hawkins originally was indicted on two counts of rape and one count of sexual battery for engaging in multiple sex acts with a twelve-year-old girl. The sexual-battery charge in the indictment is identified as a second-degree felony because the indictment specifies the victim's age. See R.C. 2907.03(B) (providing that sexual battery is a second-degree felony if the victim is less than thirteen years old). As part of a negotiated agreement, Hawkins later pled guilty to two counts of sexual battery in violation of R.C. 2907.03(A)(2), each a third-degree felony. (Doc. #34).

{¶ 4} During the plea hearing, the trial court conducted a Crim.R. 11 colloquy, advising Hawkins of the various rights he was waiving and informing him of the potential punishment. At one point, the trial court inquired whether sexual battery was a Tier III sex offense. The prosecutor incorrectly responded that it was a Tier II offense.[1] (Plea Tr. at 9-10). The trial court then asked Hawkins whether he understood that his guilty plea would result in sex-offender registration requirements and that he would have to follow them. Hawkins stated that he understood. (Id.). He also signed a plea form that mentioned "sexual registration" as one of his sanctions. (Doc. #34).

{¶ 5} At sentencing, the trial court correctly advised Hawkins that the sexual-battery charges were Tier III sex offenses. It proceeded to provide a more detailed explanation of Hawkins' sex-offender reporting requirements, including a requirement to verify his address every ninety days for life. (Sentencing Tr. at 4-8). Hawkins stated that he understood. (Id. at 8). The trial court then imposed an aggregate six-year prison sentence This appeal followed.

{¶ 6} In his first assignment of error, Hawkins challenges the validity of his guilty plea. He argues that his plea was not knowing, intelligent, and voluntary because (1) he was misinformed about the applicable sex-offense tier level and (2) he was uninformed about mandatory reporting requirements, including address verification every ninety days for life and potential criminal prosecution for failure to comply. Because the Adam Walsh Act version of Ohio's SORN law applicable to Hawkins has been held to be punitive, he asserts that the trial court was required to discuss the applicable requirements during the plea colloquy.

{¶ 7} In response, the State contends the trial court substantially complied with Crim.R. 11 during the plea hearing despite the prosecutor's misstatement about the applicable tier level and the lack of any specifics regarding SORN's requirements. Alternatively, absent substantial compliance, the State argues that the trial court partially complied with Crim.R. 11 by telling Hawkins he would be required to register as a sex offender. As a result of this alleged partial compliance, the State argues that Hawkins must demonstrate prejudice by establishing that he would not have pled guilty if he had been fully informed about his obligations.

{¶ 8} Prior to the Adam Walsh Act version of R.C. Chapter 2950, a trial court had no obligation to inform a sex offender of the applicable registration, verification, and notification requirements before accepting a guilty plea. See, e.g., State v. Stape, 2d Dist. Montgomery No. 22586, 2009-Ohio-420, ¶19. Those requirements were considered remedial, collateral consequences of the underlying sex offense. Therefore, Crim.R. 11 imposed no duty on a trial court to mention them. Id.

{¶ 9} In State v. Williams, 129 Ohio St.3d 324, 2011-Ohio-3374, 952 N.E.2d 1108, ¶16, the Ohio Supreme Court held that the Adam Walsh Act version of R.C. Chapter 2950 is punitive, not remedial. As a result, we agree with Hawkins that Crim.R. 11 obligates a trial court to advise a defendant who is being sentenced under the Adam Walsh Act at least of the basic registration requirement before accepting his plea. In a concurring opinion penned more than eighteen months ago, one member of the present panel foreshadowed this result, reasoning:

* * * [W]e have repeatedly held that a trial court need not inform a defendant about the registration and notification requirements in R.C Chapter 2950 before accepting a plea I write separately merely to note that this may change for defendants sentenced after the Adam Walsh Act amendments to RC Chapter 2950 (2007 AmSubSB No 10) As a result of State v Williams, 129 Ohio St.3d 324, 2011-Ohio-3374, the registration, notification and verification requirements for persons classified as sexual offenders under the Adam Walsh Act are not regarded as remedial; they are punitive Id., ΒΆ16, 21 If those requirements are now punitive under RC Chapter 2950, then they ...

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