[Cite as State v. McGinnis, 2014-Ohio-2385.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99918



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                   JOSHUA McGINNIS
                                                       DEFENDANT-APPELLANT




                       JUDGMENT:
   AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-560516-A

             BEFORE:           Blackmon, J., Kilbane, P.J., and Stewart, J.

             RELEASED AND JOURNALIZED:                     June 5, 2014
                              -i-




ATTORNEY FOR APPELLANT

Edward M. Graham
13363 Madison Avenue
Lakewood, Ohio 44107

Joshua McGinnis
#641-433
BE.C.I.
P.O. Box 540
St. Clairsville, Ohio 43950


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary H. McGrath
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Joshua McGinnis appeals the trial court’s denial of his

postsentence motion to withdraw his guilty plea and assigns the following error for our

review:

       I. The trial court committed plain error in accepting appellant’s plea that
       was not made knowingly, intelligently, and voluntarily.

       {¶2} Having reviewed the record and pertinent law, we affirm McGinnis’s

conviction, but vacate his classification as a Tier III sex offender, and remand this case to

the common pleas court to conduct a reclassification hearing. The apposite facts follow.

       {¶3} On April 25, 2012, the Cuyahoga County Grand Jury indicted McGinnis on

three counts of rape with a furthermore specification that the victim was less than ten

years of age. The grand jury also indicted McGinnis on one count each of gross sexual

imposition and kidnapping with a sexual motivation specification attached.

       {¶4} On March 26, 2013, pursuant to a plea agreement with the state, McGinnis

pleaded guilty to one count of rape that was amended to delete the furthermore

specification. McGinnis also pleaded guilty to the gross sexual imposition charge, and

the state dismissed the remaining counts.

       {¶5} On April 24, 2013, the trial court sentenced McGinnis to an aggregate prison

term of ten years, with five years of mandatory postrelease control, and classified him as a

Tier III sex offender.

                                        Guilty Plea

       {¶6} In the sole assigned error, McGinnis argues his guilty plea was not
knowingly, intelligently, and voluntarily made.

       {¶7} When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.        Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.         State v. Hanson, 8th Dist. Cuyahoga No. 99362,

2013-Ohio-3916, citing State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660

N.E.2d 450.

       {¶8} To ensure that a plea to a felony charge is knowingly, intelligently, and

voluntarily entered into, a trial court must follow the dictates of Crim.R. 11(C)(2). This

provision provides that the court must address defendants personally and (1) determine

that they understand the nature of the charges against them and of the maximum penalty

involved, (2) inform them of and determine that they understand the effect of a plea of

guilty or no contest and that the court may proceed with judgment and sentence, and (3)

inform them of and determine that they understand the constitutional rights that they are

giving up by entering into their plea. Crim.R. 11(C)(2)(a) - (c). The United States

Supreme Court specified a defendant’s constitutional rights as (1) the Fifth Amendment

privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the

right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709,

23 L.Ed.2d 274 (1969).

       {¶9} Crim.R. 11(C)(2)(c) sets forth a defendant’s constitutional rights as follows:

       Informing 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} In differentiating between constitutional rights and nonconstitutional rights

under Crim.R. 11(C), courts have held that strict compliance with the rule is required if

the appellant raises a constitutional right delineated in Crim.R. 11(C)(2)(c). State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Substantial

compliance, however, is the standard when the appellant raises a violation of a

nonconstitutional right outlined in Crim.R. 11(C)(2)(a) and (b). State v. Drake, 8th Dist.

Cuyahoga No. 98640, 2013-Ohio-1984, ¶ 5, citing State v. Stewart, 51 Ohio St.2d 86, 364

N.E.2d 1163 (1977).

       {¶11} This court conducts a de novo review to determine whether the trial court

accepted a plea in compliance with Crim.R. 11(C).            State v. Cardwell, 8th Dist.

Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing Stewart, supra. “We are required to

review the totality of the circumstances and determine whether the plea hearing was in

compliance with Crim.R. 11(C).” State v. Schmick, 8th Dist. Cuyahoga No. 95210,

2011-Ohio-2263, ¶ 6.

       {¶12} In the instant case, McGinnis only raises one issue with respect to the trial

court’s lack of compliance with Crim.R. 11. He contends that the trial court erred

because it failed to review the notice requirements concerning sexual offender

classification obligations and the penalty for failure to comply.

       {¶13} Our review of the record herein shows that the trial court explained the
constitutional rights McGinnis would be waiving by entering a plea of guilty, and

McGinnis expressed his understanding of those rights. The trial court also reviewed with

McGinnis the nature of the offenses and the potential penalties involved. In addition,

defense counsel indicated, and McGinnis conceded, that they had discussed the matter

numerous times, that McGinnis was aware of his constitutional rights, and that his plea

was being entered knowingly, intelligently, and voluntarily.        As such, the trial court

strictly complied with the constitutional requirements of Crim.R. 11(C).

       {¶14} Turning our attention to the nonconstitutional issue raised regarding the trial

court’s alleged failure to review the notice requirement of the sex offender classification,

the following discussion took place:

       Prosecutor:          * * * In addition, your Honor, by pleading guilty to those two
                            counts of the indictment, this defendant will automatically be
                            labeled a Tier III sex offender which will require him to
                            register every 90 days for the rest of his life, and cannot live
                            within 1,000 feet of a school, or religious facility, or any place
                            where there are children. Tr. 17.
       ***

       The Court:           The government has indicated, and as part and parcel of the
                            plea agreement with you, that you would be classified as a
                            Tier III sex offender for which we will review in a few
                            minutes. Do you understand?

       The Defendant:       Yes.

       ***

       The Court:           * * * And what has been spread on the record is that the
                            government would make an amendment on count one to
                            simple rape for a felony of the first degree, and that you
                            would plead guilty to count 4, which is gross sexual
                            imposition, a felony of the third degree. You would be
                            classified as a Tier III sexual offender, and they would delete
                            the age and furthermore specification in each indictment. Tr.
                            26-27.

       {¶15} After McGinnis pleaded guilty, the following exchange took place:

       The Court:           Does the government want his rights — sexual classification
                            rights done now, or at the time of sentencing?

       Prosecutor:          It’s up to the Court, your Honor. He has been made aware
                            that he’s a sexual Tier III offender, and what his requirements
                            are will have to be read at sentencing, as well.

       The Court:           Okay. I’ll do it at sentencing. Tr. 29.

       {¶16} Here, there is no dispute that the trial court elected not to review the notice

requirement of the sex offender classification at the time McGinnis entered his plea.

However, after reviewing the excerpt above, and elsewhere in the record, we have

determined that the trial court substantially complied with the nonconstitutional mandates

of Crim.R. 11(C).

       {¶17} The excerpt above reveals that the prosecutor, in outlining the plea

agreement, indicated that McGinnis would automatically be labeled a Tier III sex

offender, that he was required to register every 90 days for life, that he was prohibited

from living within 1,000 feet of a school, religious facility, or any place where there were

children. The above excerpt also reveals that the trial court indicated three times that

McGinnis would be classified as a Tier III sex offender. Thus, when viewed under the

totality of the circumstances, one could easily conclude that McGinnis understood that he

would be classified as a sex offender and was subject to the attendant reporting

requirements, despite the trial court’s decision to review the requirements at sentencing.
          {¶18} Furthermore, a defendant must show prejudice before a plea will be vacated

for a trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects

of the colloquy are at issue. Veney at ¶ 14-17. The test for prejudice is whether the plea

would have otherwise been made. Id. at ¶ 15.

There is nothing in the record to suggest that McGinnis would not have pleaded guilty if

the trial court had reviewed the sex offender classification notice requirement.

          {¶19} On the contrary, the record supports that McGinnis was motivated to accept

the plea agreement. In this regard, defense counsel stated:

          The only reason that he’s standing here is because the exposure is so
          astronomical in the event that 12 people believe that he sexually assaulted
          or raped a girl under ten years old, its life, and the risk was just too
          great for Mr. McGinnis to withstand. Tr. 46.

As such, we conclude that McGinnis knowingly, intelligently, and voluntarily pleaded

guilty. Consequently, we affirm McGinnis’s convictions.

                                 Sex Offender Registration

          {¶20} As discussed above, we concluded that McGinnis entered his plea

knowingly, intelligently, and voluntarily. We also underscore that McGinnis was very

motivated to enter the plea because of the risk of a life sentence in the event that the jury

found him guilty with the furthermore specification that the victim was less than ten years

of age.     Thus, at this juncture, our only question is whether McGinnis was prejudiced by

the trial court classifying him as a Tier III offender. For the reasons that follow, we

conclude McGinnis was not prejudiced.

          {¶21} In 1996, the General Assembly enacted Am.Sub.H.B. 180 (“Megan’s
Law”), which amended the state’s sex offender registration process. State v. Cook, 83

Ohio St.3d 404, 406, 1998-Ohio-291, 700 N.E.2d 570. Portions of Megan’s Law became

effective January 1, 1997, and other portions of the law became effective July 1, 1997.

Id.

       {¶22} Effective January 1, 2008, the General Assembly repealed Megan’s Law and

replaced it with the Adam Walsh Act (“S.B. 10”). State v. Bodyke, 126 Ohio St.3d 266,

2010-Ohio-2424, 933 N.E.2d 753, ¶ 20. S.B. 10 eliminated the categories of “sexually

oriented offender,” “habitual sex offender,” and “sexual predator” under Megan’s Law

and replaced them with a three-tiered classification system. Id. at ¶ 21.

       {¶23} Under the new classification system adopted by S.B. 10, a trial court must

designate the offender as either a Tier I, II, or III sex offender. R.C. 2950.01. “The new

classification system places a much greater limit on the discretion of the trial court to

categorize the offender, as S.B. 10 requires the trial court to simply place the offender

into one of the three tiers based on their offense.” In re Copeland, 3d Dist. Allen No.

1-08-40, 2009-Ohio-190, ¶ 10.

       {¶24} At the plea hearing, the state of Ohio and McGinnis agreed that the sex

offenses occurred from January 2, 2007 through August 31, 2007. The state of Ohio

concedes that although the prosecutor told the court and defense counsel agreed that,

pursuant to the plea agreement, McGinnis would automatically be labeled a Tier III

offender, he should have been classified under Megan’s Law based on the dates of the

offenses.   The state of Ohio asks that we remand the matter to the trial court for the
limited purpose of conducting an H.B. 180 hearing under Megan’s Law.

       {¶25} McGinnis argues his plea was not knowingly, intelligently, and voluntarily

made because of the trial court’s incorrect pronouncements and subsequent classification.

 As such, McGinnis contends his plea must be vacated. In support of his argument,

McGinnis urges that we follow State v. Hawkins, 2d Dist. Greene No. 2012-CA-49,

2013-Ohio-2572.

       {¶26} In Hawkins, the defendant pled guilty to two counts of sexual battery, in

violation of R.C. 2907.03(A)(2). The trial court accepted the plea, sentenced him to six

years in prison, and classified him as a Tier III sex offender. Defendant appealed and

argued that his plea was not made knowingly, intelligently, and voluntarily. Id.

       {¶27} The appellate court held that the trial court erred by failing to address the

basic obligation imposed on the defendant by the Adam Walsh Act, R.C. Chapter 2950,

which was punitive, before accepting defendant’s guilty plea.            The duty was a

nonconstitutional requirement of Crim.R. 11. The trial court did not substantially comply

with Crim.R. 11 when it allowed the prosecutor’s misstatement about the applicable sex

offender tier level to stand uncorrected and failed to inform defendant about his

address-verification obligation every 90 days for life and about the fact that a Tier III

conviction included community notification. Id.

       {¶28} The appellate court found that the trial court’s bare observation that there

would be a registration requirement was not enough, even under a substantial-compliance

standard. The trial court’s statement fell short of satisfying the trial court’s obligation
under Crim.R. 11 to advise the defendant of the basic consequences he faced under R.C.

Chapter 2950. Id.

       {¶29} Hawkins, is distinguishable from the instant case.            In Hawkins, the

defendant was incorrectly classified as a Tier III sex offender, when he should have been

classified as a Tier II sex offender. In addition, the trial court had an obligation to fully

apprise the defendant of the applicable registration, verification, and notification

requirements before accepting the plea.       In Hawkins, the defendant was incorrectly

classified under the right law. As opposed to the instant case, where the trial court

classified the defendant under the wrong law — Adam Walsh Act instead of Megan’s

Law.

       {¶30} Here, had McGinnis been properly classified under Megan’s Law, the trial

court would have had no obligation to inform him of the applicable registration,

verification, and notification requirements before accepting his guilty plea. Hawkins,

citing 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.

       {¶31} Because the notification obligation under Megan’s Law were considered

remedial, collateral consequences of the underlying sex offense, McGinnis was not

prejudiced when the trial court incorrectly stated at the plea hearing that he would be

classified as a Tier III sex offender and then opted to defer review of the basic registration

requirements until the sentencing hearing.
         {¶32} We conclude McGinnis’s plea was not rendered less knowingly,

intelligently, and voluntarily because of the trial court’s incorrect pronouncement and

subsequent Tier III classification. However, he must be re-classified under Megan’s

Law. Accordingly, we overrule in part and sustain in part, McGinnis’s sole assigned

error.

         {¶33} Judgment affirmed in part, reversed in part, and the matter is remanded for

the trial court to conduct an H.B. 180 hearing with the limited purpose of reclassifying

McGinnis in accordance with Megan’s Law.

         It is ordered that appellee and appellant share the 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 EILEEN KILBANE, P.J., and
MELODY J. STEWART, J., CONCUR
