[Cite as State v. Clemmons, 2012-Ohio-1536.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 96938


                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                               DWAYNE CLEMMONS
                                                     DEFENDANT-APPELLANT



                                  JUDGMENT:
                            REVERSED AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-541837

        BEFORE: Rocco, J., Sweeney, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: April 5, 2012
                                  -i-

ATTORNEY FOR APPELLANT

Terrence K. Scott
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215-2998

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:
         {¶1} After entering guilty pleas to two counts of gross sexual imposition and one

count of abduction, defendant-appellant Dwayne Clemmons appeals from the sexual

offender classification into which the trial court placed him.

         {¶2} In accepting the guilty pleas, the trial court classified Clemmons as a Tier II

sexual offender, and in its final journal entry, the trial court indicated Clemmons was a

“Tier III” offender.      Clemmons presents this court with one assignment of error,

asserting that neither classification is permitted for his convictions. This court must

agree.

         {¶3} Because Clemmons’s convictions require his classification as a Tier I sexual

offender, the classifications made by the trial court are reversed, and this case is

remanded to the trial court for a new sexual offender classification hearing and a

correction of the relevant journal entries.

         {¶4} Clemmons originally was indicted in this case on ten counts, charged with

four counts of rape with sexually violent predator specifications, four counts of gross

sexual imposition, and two counts of kidnapping with sexual motivation specifications.

After a lengthy discovery period, and on the date set for trial, Clemmons accepted a plea

offer from the state.

         {¶5} The prosecutor outlined the plea offer as follows: in exchange for

Clemmons’s guilty pleas, the state would dismiss Counts 1 through 4, Counts 7, 8 and

10, and amend Count 9 to a charge of abduction in violation of “R.C. 2905.02(A)(2),”

with a “sexual motivation specification.” Thus, in addition to the amended Count 9,
Clemmons would plead guilty to Counts 5 and 6, i.e., two counts of gross sexual

imposition in violation of R.C. 2907.05(A)(5). The prosecutor indicated Clemmons

“automatically” would be classified as a “Tier II” sexual offender as a result of his pleas.

       {¶6} After explaining to Clemmons the constitutional rights he was waiving by

entering his pleas, and the nature of the charges and the potential penalties involved,

including his classification as a “Tier II” sexual offender, the trial court accepted

Clemmons’s guilty pleas to the amended indictment and dismissed the remaining counts.

The journal entry of Clemmons’s guilty pleas states, in relevant part, that he pleaded

guilty to “abduction R.C. 2905.02(A)(2) with sexual motivation specification(s)

2941.147” and would “be classified as a Tier II offender.” (Emphasis added.)

       {¶7} The trial court eventually sentenced Clemmons to concurrent terms of 12

months on Counts 5 and 6, and five years on the amended Count 9. The trial court also

informed Clemmons that he was “a Tier II sexual offender,” and explained the

registration duties required by that classification.

       {¶8} However, in its journal entry of sentence, the trial court indicated Clemmons

was “classified as a Tier III sex offender.” Clemmons later sought to withdraw his guilty

pleas but was unsuccessful. Subsequently, he requested of this court to file a delayed

appeal, a request this court granted.

       {¶9} Clemmons presents one assignment of error, which states:

       “I. The trial court committed plain error and deprived Dwayne Clemmons

of his right to due process under the Fourteenth Amendment to the United States
      Constitution and Section 16, Article I of the Ohio Constitution when the trial court

      attached a sexual motivation specification to an offense which is not authorized by

      law and failed to classify Mr. Clemmons as a Tier I offender, as required by law.”

             {¶10} Clemmons asserts that his guilty pleas required his sexual offender

      classification to be as a Tier I offender rather than as a Tier II offender. He further

      argues that, even if he is wrong in his assertion, the trial court’s journal entry of sentence

      nevertheless requires correction. Upon a review of the record, this court must agree with

      Clemmons’s assertion as well as his argument.

             {¶11} Clemmons entered guilty pleas to Counts 5, 6, and an amended Count 9.

      Counts 5 and 6 charged him with gross sexual imposition in violation of R.C.

      2907.05(A)(5). In pertinent part, R.C. 2907.05 provides:

             (A) No person shall have sexual contact with another, not the spouse of             the
      offender; cause another, not the spouse of the offender, to have sexual contact with       the
      offender; or cause two or more other persons to have sexual contact when any of            the
      following applies:
             ***
             (5) The ability of the other person to resist or consent or the ability of one of   the

      other persons to resist or consent is substantially impaired because of a mental or physical

      condition or because of advanced age, and the offender knows or has reasonable cause to

      believe that the ability to resist or consent of the other person or of one of the other

      persons is substantially impaired because of a mental or physical condition or because of

      advanced age.

      {¶12} R.C. 2950.01(E)(1)(c) provides that an individual who violates R.C. 2907.05(A)(5)

“should [be] labeled a Tier I offender.” State v. Jackson, 8th Dist. No. 94460, 2010-Ohio-5844, ¶ 7.
      {¶13} On amended Count 9, Clemmons also pleaded guilty to violating R.C.

2905.02(A)(2), abduction, with a “sexual motivation specification.”     The trial court

classified Clemmons as a Tier II sexual offender based upon his plea to this charge.

However, R.C. 2941.1471 “makes no mention of R.C. 2905.02 as a crime to which a

sexual motivation specification may attach.” Jackson, ¶ 6.

      {¶14} The record reflects Clemmons did not plead guilty on amended Count 9 to

violating R.C. 2905.02(B), abduction with sexual motivation.         Pursuant to R.C.

2950.01(A)(10), that offense is defined as a sexually oriented offense, and pursuant to

R.C. 2950.01(F)(1)(f), 2 qualifies a defendant for classification as a Tier II offender.

Clemmons’s guilty plea and conviction for abduction under R.C. 2905.02(A)(2) on the




      1R.C.  2941.147 states in pertinent part:
       (A) Whenever a person is charged with an offense that is a violation of section
2903.01, 2903.02, 2903.11, or 2905.01 of the Revised Code, a violation of division (A)
of section 2903.04 of the Revised Code, an attempt to violate or complicity in
violating section 2903.01, 2903.02, 2903.11, or 2905.01 of the Revised Code when
the attempt or complicity is a felony, or an attempt to violate or complicity in
violating division (A) of section 2903.04 of the Revised Code when the attempt or
complicity is a felony, the indictment, count in the indictment, information, or
complaint charging the offense may include a specification that the person
committed the offense with a sexual motivation. * * *
      2R.C.   2950.01 provides in pertinent part:
       (F) “Tier II sex offender/child-victim offender” means any of the following:
       ***
       (1) A sex offender who is convicted of, pleads guilty to, has been convicted of,
or has pleaded guilty to any of the following sexually oriented offenses:
       ***
       (c) A violation of division (A)(4) of section 2907.05 * * * of the Revised Code;
       ***
       (f) A violation of division (B) of section 2905.02 * * *; * * *.
amended Count 9, on the other hand, could not serve as a basis for a Tier II sexual

offender classification.

       {¶15} In State v. Cadiou, 8th Dist. No. 91696, 2009-Ohio-1789, this court faced a

different situation: the defendant not only pleaded guilty to abduction committed with a

sexual motivation, but also to violating R.C. 2907.05(A)(4), gross sexual imposition upon

a minor. On the facts of that case, Cadiou was a Tier II offender pursuant to both R.C.

2950.01(F)(1)(c) and (f).

       {¶16} Because Clemmons did not enter a guilty plea on amended Count 9 to R.C.

2905.02(B), the offense that falls within the definition of a “sexually oriented offense,”

but instead entered a guilty plea to R.C. 2905.02(A)(2), a charge to which a sexual

motivation specification cannot be attached, Clemmons should have been classified as a

Tier I offender for his gross sexual imposition convictions on Counts 5 and 6.

       {¶17} Accordingly, Clemmons’s assignment of error is sustained.

       {¶18} The trial court erred when it classified Clemmons as a Tier II sexual

offender, so it follows that the trial court’s journal entry of sentence, which states

Clemmons is a “Tier III sex offender” also is incorrect. The trial court’s orders of sexual

offender classification are reversed, and this case is remanded for the trial court to

conduct a reclassification hearing, at which the court shall inform Clemmons of his

registration duties as a Tier I sexual offender, and after which the court shall correct its

journal entries to reflect Clemmons’s classification as a Tier I sexual offender.

       It is ordered that appellant recover from appellee costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

further proceedings.

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

Rule 27 of the Rules of Appellate Procedure.



_______________________________________
KENNETH A. ROCCO, JUDGE

JAMES J. SWEENEY, P.J., and
MARY EILEEN KILBANE, J., CONCUR
