[Cite as State v. Collier, 2014-Ohio-5683.]




                  Court of Appeals of Ohio
                                     EIGHTH APPELLATE DISTRICT
                                        COUNTY OF CUYAHOGA



                                    JOURNAL ENTRY AND OPINION
                                     Nos. 100906, 101235, and 101272

                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLANT,
                                                         and CROSS-APPELLEE

                                                   vs.

                                          JONATHAN COLLIER

                                                         DEFENDANT-APPELLEE,
                                                         and CROSS-APPELLANT



                                          JUDGMENT:
                              AFFIRMED IN PART, REVERSED IN PART,
                                   AND CONVICTION VACATED



                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                Case Nos. CR-03-446549-ZA, CR-08-519132-A and CR-12-564748-A

             BEFORE:          Blackmon, J., Boyle, A.J., and E.A. Gallagher, J.

             RELEASED AND JOURNALIZED:                    December 24, 2014
                                    -i-
ATTORNEYS FOR APPELLANT, CROSS-APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE, CROSS-APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

Paul Kuzmins
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1}     This is a consolidated appeal from three (3) separate lower court decisions,

presided over by three different judges. The appeal raises the singular question whether an

out-of-state sex offender, Jonathan Collier (“Collier”), who relocated to Ohio, was required to

register as a sex offender under Ohio R.C. Chapter 2950.1 Two of the three trial court judges

ruled that Collier was not required to register in Ohio, and the third ruled that he was required.

       {¶2}     Having reviewed the record and pertinent law, we affirm the decisions of the two

judges that ruled that Collier was not required to register, and reverse the decision of the third

judge that ruled he was required to register.         The apposite facts follow.

                                         Relevant Historical Facts

       {¶3}     On February 14, 2003, in the state of Illinois, Collier, then 29 years old, pleaded

guilty to aggravated criminal sexual abuse, a second-degree felony, for engaging in sexual

relationship with a 16-year-old girl. Collier was placed on three years probation and classified as

a habitual sexual offender. Under Illinois law, Collier was required to register as a sex offender

with the local law enforcement for a period of ten years.

       {¶4} Ten months later, Collier relocated to Ohio, but failed to register his address with the

Cuyahoga County Sheriff’s Department.                    On December 15, 2003, in Case Number

CR-03-446549-ZA, the Cuyahoga County Grand Jury indicted Collier for failure to register.

Collier’s Illinois conviction formed the basis for the indictment.

       {¶5} Collier subsequently pleaded guilty to an amended charge of attempted failure to

register, a fourth-degree felony.          The trial court sentenced Collier to community control


       1
        The state of Ohio’s and Jonathan Collier’s assigned errors are attached in the appendix.
sanctions.    Collier did not appeal, but thereafter properly registered his address with the

Cuyahoga County Sheriff’s Department.

       {¶6}    Five years later, on November 20, 2008, in Case Number CR-08-519132-A, the

grand jury indicted Collier for failure to provide notice of change of address, a second-degree

felony, with a furthermore specification that Collier was previously convicted of attempted failure

to register. The furthermore specification elevated the instant charge from a second-degree

felony to a first- degree felony, and included a mandatory minimum prison sentence of three years.

  As in Case Number CR-03-446549-ZA, Collier’s Illinois conviction formed the basis for the

second indictment.

       {¶7}    On June 26, 2009, pursuant to a plea agreement with the state of Ohio, Collier

pleaded guilty to failure to provide notice of change of address. In exchange for Collier’s plea,

the state of Ohio deleted the furthermore specification. The trial court sentenced Collier to two

years in prison.

       {¶8}    On August 2, 2012, almost four years after the second indictment, on August 2,

2012, the grand jury indicted Collier, in Case Number CR-12-564748-A, on one count each of

failure to verify his address and failure to provide notice of change of address. Attached to the

indictment were furthermore specifications that Collier was previously convicted of failure to

provide notice of change of address.             As in Case Numbers CR-03-446549-ZA and

CR-08-519132-A, Collier’s Illinois conviction formed the basis for the third indictment.

       {¶9}    On November 07, 2013, Collier pleaded not guilty at his arraignment.              On

November 20, 2013, Collier filed a motion to dismiss the indictment on the grounds that his

Illinois conviction was not substantially equivalent to an Ohio sexual offense, and thus he had no

duty to register in Ohio.   Simultaneously with that filing, Collier filed similar motions before the
other two judges, citing similar grounds, to dismiss the indictments in Case Numbers

CR-03-446549-ZA and CR-08-519132-A.

       {¶10} On December 17, 2013, in Case Number CR-12-564748-A, the judge held a hearing

on Collier’s motion to dismiss the indictment. The following day, the judge granted Collier’s

motion to dismiss and ordered the state to notify law enforcement that Collier is not a registered

sexual offender in Ohio.

       {¶11} On March 10, 2014, in Case Number CR-03-446549-ZA, the judge held a hearing

on Collier’s motion. On April 1, 2014, the judge issued a written decision granting Collier’s

motion to withdraw his guilty plea and to dismiss the indictment. These two decisions, in Case

Numbers CR-03-446549-ZA and CR-12-564748-A, form the basis of the state’s appeals. The

third judge, in Case Number CR-08-519132-A, denied Collier’s motion without a hearing, and

this decision forms the basis of Collier’s cross-appeal.

                                        Motion to Dismiss

       {¶12} In the state of Ohio’s sole assigned error, it argues that the two judges, in Case

Numbers CR-03-446549-ZA and CR-12-564748-A, erred when they granted Collier’s motions

to dismiss the indictments.

       {¶13} Crim.R. 48(B) governs a trial court’s dismissal of an indictment, and we review it

for an abuse of discretion. State v. Craig, 8th Dist. Cuyahoga No. 88313, 2008-Ohio-3978. An

abuse of discretion connotes more than an error of law or judgment; it entails a decision that is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).
        {¶14} We hold, as a matter of law, under the Ohio Supreme Court’s pronouncement in

State v. Lloyd, 132 Ohio St.3d 139, 2012-Ohio-2015, 970 N.E.2d 870, Collier was not required to

register.

                                   Substantial Equivalence Test

        {¶15} Lloyd provides a two-part analysis to be undertaken by a trial court in determining

whether an out-of-state conviction is a sexually oriented offense that triggers a duty to register in

Ohio. In the two-part analysis, the state must prove that (1) the defendant was convicted of a

sexually oriented offense that is “substantially equivalent” to a sex offense subject to registration

requirements in Ohio, and (2) the defendant was under a duty to register in the other jurisdiction at

the time he moved to Ohio. Lloyd, at ¶ 13 and 46; State v. McMullen, 8th Dist. Cuyahoga Nos.

97475 and 97476, 2012-Ohio-2620, ¶ 19.

        “An out-of-state conviction is a sexually oriented offense under Ohio law if it is or

        was substantially equivalent to any of the Ohio offenses listed in R.C.

        2950.01(A)(1) through (10). R.C. 2950.01(A)(11).” Lloyd at ¶ 13. Lloyd provided

        very specific guidelines as to how “substantial equivalence” should be analyzed:

        [I]n order to determine whether an out-of-state conviction is substantially
        equivalent to a listed Ohio offense, a court must initially look only to the fact of
        conviction and the elements of the relevant criminal statutes, without considering
        the particular facts disclosed by the record of conviction. If the out-of-state statute
        defines the offense in such a way that the court cannot discern from a comparison
        of the statutes whether the offenses are substantially equivalent, a court may go
        beyond the statutes and rely on a limited portion of the record in a narrow class of
        cases where the factfinder was required to find all the elements essential to a
        conviction under the listed Ohio statute. To do so, courts are permitted to consult a
        limited range of material contained in the record, including charging documents,
        plea agreements, transcripts of plea colloquies, presentence reports, findings of fact
        and conclusions of law from a bench trial, jury instructions and verdict forms, or
        some comparable part of the record.

Id. at ¶ 31.
       {¶16} In the instant case, it is undisputed that Collier was convicted of the offense of

aggravated criminal sexual abuse in the state of Illinois. That offense is defined by Section 72.

Ill. Comp. Stat. 5/12-16.(d) as follows:

       An act of sexual conduct with a victim at least 13 years of age but under 17, and
       the accused was at least five years older than the victim.

       {¶17} The state of Ohio argued that the Illinois statute was substantially similar to the

Ohio statute for Unlawful Sexual Conduct with a Minor as defined in R.C. 2907.04(A), as

follows:

       No person who is eighteen years of age or older shall engage in sexual conduct
       with another when the offender knows the person is thirteen years of age or older
       but less than sixteen years of age, or the offender is reckless in that regard.

       {¶18} As previously mentioned, one of the three judges issued a written decision outlining

its application of the Lloyd two-part analysis. That well-reasoned decision states in pertinent part

as follows:

       A comparison of the two statutes reveals both similarities and differences. Both
       statutes prohibit sexual conduct and both define the offender category as a person
       18 or older (Illinois uses different terminology in defining this class than Ohio
       does, but the persons affected are the same). However, R.C. 2907.04(A) prohibits
       sexual conduct with persons 13 to 15 years old, while the Illinois statute expands
       this protected class of victims to include 16 year olds. Therefore, it would be
       unlawful in Illinois for a 21 year old to engage in consensual sexual conduct with a
       16 year old (a five year age difference), whereas, the same conduct in Ohio is legal.

Journal Entry, ¶ 16.

       {¶19} Immediately, from the excerpt above, a comparison of the elements of these two

statutes, it is easily discernable that these two statutes do not align at all and the trial judge

properly concluded that the two statutes are not substantially equivalent. Here, based on the

difference in the age of the victim element of the respective statutes, Collier would not have been

convicted in Ohio for engaging in sexual conduct with a 16 year old.
       {¶20} The state of Ohio concedes that the age of the victim element set forth in respective

statutes is different, but nevertheless argues that difference is not fatal to the duty to register

because both statutes prohibit sex with a minor by an offender who is 18 years or older.

       {¶21} However, in addition to the difference in the age element, the trial judge’s written

decision, in Case Number CR-03-446549-ZA, pointed out that:

       The two statutes also differ in another significant manner — the mens rea for the
       offense. In Illinois, the crime of aggravated Criminal Sexual Abuse is a strict
       liability offense, requiring no proof of mens rea. On the other hand, the Ohio
       offense of Unlawful Sexual Conduct with a Minor requires proof that the sexual
       conduct was committed “knowingly” or at a minimum, “recklessly.”

Journal Entry, ¶ 17.

       {¶22} Underscored in the trial judge’s well-reasoned decision, as excerpted above, is that

the Illinois statute is one of strict liability and require no mens rea, while Ohio’s statute requires

proof that the conduct was done “knowingly” or at a minimum, “recklessly.”           Thus, there is a

distinct difference between the Illinois and the Ohio statutes regarding not only the age of consent,

but also the mens rea.

       {¶23} Further, after looking at the fact of Collier’s Illinois conviction, then making an

initial comparison of the elements without looking at any facts disclosed in the record of his

conviction, we conclude that it is easily discernible from a comparison of both statutes that the

offenses are not substantially similar. Consequently, applying the guidelines of Lloyd, because the

Illinois offense is not substantially similar to Ohio’s offense of Unlawful Sexual Conduct with a

Minor, Collier was not required to register as a sexual offender in the state of Ohio.

       {¶24} As such, we find no abuse of discretion in the decisions of the two judges who

granted Collier’s motion to dismiss the respective indictments. Accordingly, we overrule the

state’s sole assigned error.
                                 Motion to Withdraw Guilty Plea

        {¶25} In Collier’s cross-appeal, he argues that the third trial judge, in Case Number

CR-08-519132-A, erred when it denied his motion to withdraw his guilty plea and denied the

motion without a hearing. In resolving the state of Ohio’s sole assigned error above, we found

that the two trial judges properly dismissed the indictments because the Illinois offense was not

substantially similar to the Ohio offense of Unlawful Sexual Conduct with a Minor, thus Collier

was not required to register as a sexual offender in Ohio.

        {¶26} Because we concluded that Collier had no duty to register as a sexual offender in

Ohio, it must necessarily follow that the third trial judge in Case Number CR-08-519132-A

should have granted Collier’s motion to withdraw his guilty plea.             Accordingly, we sustain

Collier’s two assigned errors, reverse the third trial judge’s decision, and vacate Collier’s

conviction in Case Number CR-08-519132-A.

        {¶27} Judgment affirmed in part, reversed in part, and conviction vacated.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules

of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
                                             Appendix

Assignments of Error

The state of Ohio in its appeal assigns the following error for our review:

       I. The trial court erred when it dismissed the indictment because the defendant has
       a duty to register as a sex offender in Ohio.


Collier in his cross-appeal assigns the following errors for our review:

       I. The trial court erred in failing to hold a hearing on Collier’s motion to withdraw
       his guilty plea where Collier is actually innocent of the crime to which he pleaded.
II. The trial court erred when it denied Mr. Collier’s motion to withdraw his guilty
plea as Collier’s Illinois conviction could not be used to require Collier to register
as a sexual oriented offender in Ohio.
