Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-15-597092-A.
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Daniel Van, Assistant Prosecuting Attorney, for
Jonathan N. Garver, for appellant.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, ADMINISTRATIVE JUDGE.
1} In this consolidated appeal, defendant-appellant,
Jose A. Cruz ("Cruz"), challenges the validity of
his guilty plea and the trial court's denial of his pro
se, postsentence motions to withdraw his guilty plea and
terminate his sex offender status. For the reasons set forth
below, we affirm.
2} In July 2015, Cruz was charged in a six-count
indictment. Counts 1-3 charged him with rape. Counts 4 and 5
charged him with gross sexual imposition. Count 6 charged him
with kidnapping and carried a sexual motivation
specification. The indictment listed the victim as Jane Doe
(D.O.B. 4/13/01). In February 2016, Cruz entered into a plea
agreement with the state. Cruz pled guilty to amended counts
of sexual battery (Counts 1 and 3) and an amended count of
abduction with the sexual motivation specification (Count 6).
The remaining counts were nolled.
3} The trial court conducted its sentencing hearing
in March 2016. The trial court sentenced Cruz to three years
in prison on each count, to be served concurrently, for a
total of three years in prison. The court classified Cruz as
a Tier III sex offender and informed Cruz of his registration
4} In October 2016, Cruz filed a motion for judicial
release, which the state opposed. The trial court denied the
motion in November 2016. Two years later, in December 2018,
Cruz filed two pro se motions - a motion to withdraw his
guilty plea and vacate his conviction and a motion to
terminate and/or modify his sex offender classification
status. In his motion to withdraw his guilty plea, Cruz
argued that defense counsel had promised him judicial release
after serving six months in prison. In his motion to
terminate his sex offender classification, Cruz argued that
the Tier III reporting requirements are excessive punishment
in violation of both the U.S. and Ohio Constitutions. The
state opposed both motions. The trial court denied both
motions in January 2019.
5} Cruz now appeals, raising the following four
assignments of error for review:
Assignment of Error No. 1
[Cruz's] guilty plea must be vacated because the trial
court erred in failing to adequately inform [Cruz], prior to
accepting his guilty pleas, that he had a constitutional
right to a trial by jury.
Assignment of Error No. 2
[Cruz's] guilty plea must be vacated because the trial
court erred by failing to ascertain, prior to accepting his
guilty plea, that he understood the constitutional rights
recited by the trial court and that he further understood
that by entering guilty pleas he was waiving those
Assignment of Error No. 3
The trial court erred in denying [Cruz's postsentencing]
motion to withdraw guilty plea and vacate conviction.
Assignment of Error No. 4
The trial court erred in denying [Cruz's posttrial]
motion to terminate and/or modify his Tier III sex
offender/child offender classification status because [R.C.]
295o.1(G)(1)(A) violates the ban on cruel and unusual
punishment contained in the Eighth Amendment of the
Constitution of the United States.
6} In the first and second assignments of error,
Cruz challenges his guilty plea. Cruz argues that his plea
must be vacated because the trial court did not adequately
inform him of his constitutional right to a jury trial. Cruz
also argues that his guilty plea must be vacated because the
trial court failed to ascertain, prior to accepting his
guilty plea, that he understood his constitutional rights and
that he waived those constitutional rights by entering a
7} Crim.R. 11(C) sets forth the procedure the trial
court must follow before accepting defendant's guilty
plea. "When a defendant enters a plea in a criminal
case, the plea must be made knowingly, intelligently, and
voluntarily." State v. Engle, 74 Ohio St.3d
525, 527, 660 N.E.2d 450 (1996).
8} We review the trial court's compliance with
the requirements of Crim.R. 11(C) de novo. State v.
Roberts, 8th Dist. Cuyahoga No. 89453, 2010-Ohio-3302,
¶ 19, citing State v. Stewart, 51 Ohio St.2d
86, 364 N.E.2d 1163 (1977).
9} Crim.R. 11(C)(2)(c) provides in relevant part:
In felony cases the court may refuse to accept a plea of
guilty * * * and shall not accept a plea of guilty * * *
without first addressing the defendant personally and doing
all of the following: * * * [i]nforming the defendant and
determining that the defendant understands that by the plea[,
] the defendant is waiving the rights to jury trial, to
confront witnesses against him or her, to have compulsory
process for obtaining witnesses in the defendant's favor,
and to require the state to prove the defendant's guilt
beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.
10} Strict compliance by the trial court is required
for the waiver of the constitutional rights (right to a jury
trial) set forth under Crim.R. 11(C)(2)(c). State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d
621, ¶ 18, citing State v. Ballard, 66 Ohio
St.2d 473, 423 N.E.2d 115 (1981). In explaining strict
compliance, the Ohio Supreme Court has held that "the
preferred procedure is for the trial court to use the
language in Crim.R. 11(C), * * * [but the] 'failure to
[literally comply] will not necessarily invalidate a plea.
The underlying purpose, from the defendant's perspective,
of Crim.R. 11(C) is to convey to the defendant certain
information so that he can make a voluntary and intelligent
decision whether to plead guilty.'" Id. at
¶ 18, quoting Ballard at 479-480.
11} Cruz argues that the trial court failed to
adequately inform him of his constitutional right to a jury
trial. We note that while the advisement on constitutional
rights necessitates strict compliance, "[a] rote
recitation of the rule is not required."
Ballard. Indeed, the failure to use the exact
language of the rule will not be fatal to the plea as long as
the record demonstrates that the trial court explained the
rights set forth in Crim.R. 11(C) in a manner reasonably
intelligible to that defendant. Id. at paragraph two
of the syllabus, citing State v. Caudill, 48 Ohio
St.2d 342, 358 N.E.2d 601 (1976). In reaching this
conclusion, the Supreme Court reasoned that "[t]o hold
otherwise would be to elevate formalistic litany of
constitutional rights over the substance of the dialogue
between the trial court and the accused. This is something we
are unwilling to do." Id.
12} A review of the record in the instant case
reveals that the trial court did advise Cruz of his
constitutional right to a jury trial. During the plea
colloquy, Cruz provided his name, his age (62 years old), the
fact that he had an associate's degree, that he was not
under the influence of any drugs or alcohol, and that he
understood the proceedings. Other than the plea offer, Cruz
agreed that no threats or promises had been made. Cruz
indicated that he ...