[Cite as State v. Brown, 2019-Ohio-527.]




                     Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106410



                                           STATE OF OHIO


                                                      PLAINTIFF-APPELLEE

                                                vs.

                                           DORIAN BROWN


                                                      DEFENDANT-APPELLANT




                                           JUDGMENT:
                                       REVERSED; REMANDED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-16-611487-A

        BEFORE: E.A. Gallagher, P.J., Jones, J., and Keough, J.

        RELEASED AND JOURNALIZED: February 14, 2019
ATTORNEYS FOR APPELLANT

Eric M. Levy
55 Public Square, Suite 1600
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Andrew J. Santoli
Holly Welsh
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, P.J.:

       {¶1} Defendant-appellant Dorian Brown appeals his conspiracy conviction entered in

the Cuyahoga County Court of Common Pleas.           For the following reasons, we reverse and

remand.

       Facts and Procedural History

       {¶2} On November 15, 2016, Brown was indicted on charges of aggravated murder, two

counts of aggravated robbery, murder, three counts of felonious assault, two counts of

kidnapping, grand theft, conspiracy, trafficking in persons and promoting prostitution.       On

September 14, 2017, Brown pled guilty to the conspiracy charge and the remaining counts were

nolled. The trial court held a joint sentencing hearing on the present case and another case,

CR-15-600700, wherein Brown was convicted of trafficking in persons and compelling

prostitution following a jury trial.   The court imposed a prison term of five-years in this case
and ordered Brown to serve the sentence consecutively, and following, a 13-year prison term

imposed against him in CR-15-600700.         Finally, the trial court found Brown to be a Tier II sex

offender.

       Law and Analysis

       I. Sex Offender Classification

       {¶3} We begin by addressing Brown’s second assignment of error out of order because

we find it to be dispositive of the present appeal.   In this assignment of error, Brown argues that

the trial court erred in classifying him as a Tier II sex offender for his conspiracy conviction and

that his plea was invalid because the trial court failed to advise him during the plea colloquy that

he would be classified as a sex offender by operation of his plea.

       {¶4} The indictment set forth the following details regarding the conspiracy charge to

which Brown admitted by pleading guilty:

       [Brown], with purpose to commit or to promote or facilitate the commission of
       Trafficking in Persons in violation of [R.C.] 2905.32 did, agree with another
       person or persons that one or more of them will engage in conduct that facilitates
       the commission of Trafficking in Persons in violation of [R.C.] 2905.32 and in
       furtherance of the conspiracy did undertake substantive overt acts, to wit: 1)
       Brown and [Jason] Dowell did supervise the other person’s prostitutes when that
       person could not be present to ensure that the prostitutes were engaging in sexual
       activity for hire and would collect money for the other. 2) Brown introduced Jane
       Doe 2 to Dowell for the purpose of having her engage in prostitution. 3) Brown
       and Dowell would share prostitutes and/or profits earned by the prostitutes.

       ***

       Furthermore, and the object of the conspiracy was a felony of the first degree, to
       wit: Trafficking in Persons (2905.32(A)).

       {¶5} Pursuant to R.C. 2950.01(F)(1)(g) and (i), a defendant who pleads guilty to

conspiracy to commit trafficking in persons qualifies as a Tier II sex offender/child-victim
offender if the violation satisfies R.C. 2950.01(A)(11)(a), (b) or (c).        The parties dispute

whether R.C. 2950.01(A)(11)(a) was satisfied in this instance. That section provides:

       The violation is a violation of [R.C. 2905.32(A)(1)] and the offender knowingly
       recruited, lured, enticed, isolated, harbored, transported, provided, obtained, or
       maintained, or knowingly attempted to recruit, lure, entice, isolate, harbor,
       transport, provide, obtain, or maintain, another person knowing that the person
       would be compelled to engage in sexual activity for hire, engage in a performance
       that was obscene, sexually oriented, or nudity oriented, or be a model or
       participant in the production of material that was obscene, sexually oriented, or
       nudity oriented.

       {¶6} Brown concedes that the trafficking in persons offense underlying his conspiracy

conviction was a violation of R.C. 2905.32(A)(1).          We find that the facts stated in the

indictment and admitted to by Brown satisfy the definition set forth in R.C. 2905.01(A)(11)(a)

such that by reason of his guilty plea, Brown was required to be classified as a Tier II sex

offender.

       {¶7} However, this conclusion does not end our inquiry. The record reflects that the

trial court failed to address the fact that Brown’s conspiracy offense would require sexual

offender classification during his plea colloquy. Because sexual offender classification under

R.C. Chapter 2950 is punitive in nature, it must be addressed during a Crim.R. 11 plea colloquy.

State v. Allen, 8th Dist. Cuyahoga No. 97820. 2013-Ohio-258, ¶ 11; State v. Creed, 8th Dist.

Cuyahoga No. 97317, 2012-Ohio-2627, ¶ 16. A trial court only needs to substantially comply

with the nonconstitutional requirements of Crim.R. 11(C)(2)(a), which includes the maximum

penalties. Creed at ¶ 12, citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

“Substantial compliance means that under the totality of the circumstances the defendant

subjectively understands the implications of his plea and the rights he is waiving.” Nero at 108.

The trial court is not “required to review each of the numerous individual restrictions set forth in
R.C. Chapter 2950” in order to substantially comply with Crim.R. 11 in advising a defendant

regarding his sexual offender classification. Creed at ¶ 16.

       {¶8} When the trial court does not “substantially comply” with Crim.R. 11(C)(2)(a), a

reviewing court must then “determine whether the trial court partially complied or failed to

comply with this rule.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶

32. “If the trial judge partially complied, e.g., by mentioning mandatory postrelease control

without explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial

effect.” Id., citing Nero.    “The test for prejudicial effect is ‘whether the plea would have

otherwise been made.”’ Id. at ¶ 32, quoting Nero. “If the trial judge completely failed to comply

with the rule * * *, the plea must be vacated.” Id. at ¶ 32, citing State v. Sarkozy, 117 Ohio St.3d

86, 2008-Ohio-509, 881 N.E.2d 1224. A complete failure to comply with the rule does not

implicate an analysis of prejudice. Sarkozy at ¶ 22.

       {¶9} In Creed, the trial court informed the defendant during the plea colloquy that he

would be labeled a Tier III sex offender by operation of his plea and that he would be subject to

various reporting and notification requirements but failed to inform him that he would be

prohibited from living within 1,000 feet of a school. We found substantial compliance with

Crim.R. 11(C)(2)(a) in that instance because the totality of the circumstances indicated that the

defendant subjectively understood that by pleading guilty to a sexually oriented offense, he

would be subjected to certain restrictions as a Tier III sex offender.

       {¶10} Similarly, in Allen, 8th Dist. Cuyahoga No. 97820. 2013-Ohio-258, and State v.

Gonzalez, 8th Dist. Cuyahoga No. 100848, 2015-Ohio-673, we found substantial compliance

where the defendants were advised they would be classified as a sexual offender and informed

of some, but not all, of the penalties associated with the classification.
        {¶11} We note that the Ohio Supreme Court is presently considering a certified conflict

between our decision in Creed, 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627, and the Sixth

District’s decision in State v. Dangler, 6th Dist. Williams No. WM-16-010, 2017-Ohio-7981.

The court is considering whether a sentencing court’s failure to inform a defendant during a plea

hearing of all the penalties associated with sex offender classification under R.C. Chapter 2950

constitutes a complete failure to comply with Crim.R. 11 and thus renders the plea void without

regard to prejudice. Dangler.

        {¶12} The present case differs from Creed, Allen and Gonzalez in that not only did the

trial court fail to discuss any of the penalties associated with sex offender classification, the court

failed to even advise Brown that he would be classified as a sexual offender by reason of his

guilty plea to conspiracy.   In fact, the record reflects that as late as the sentencing hearing the

trial court did not believe that Brown’s conspiracy charge qualified for sexual offender

classification.

        {¶13} We find the trial court’s omission of any reference to sexual offender classification

at Brown’s plea hearing to constitute a complete failure to comply with Crim.R. 11. The

Seventh District reached the same conclusion in State v. Huff, 7th Dist. Belmont No. 13 BE 37,

2014-Ohio-5513, finding a complete failure to comply with Crim.R. 11 where the trial court

failed to mention during the plea colloquy that the defendant would be required to register as a

sex offender as a consequence of his plea. Id. at ¶ 2, 22. We find the present facts to be

analogous to Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, wherein the Ohio

Supreme Court found a complete failure to comply with Crim.R. 11 due to a trial court’s failure

to mention postrelease control at all during a plea colloquy.
       {¶14} Because the present facts constitute a complete failure to comply with Crim.R. 11,

Brown’s plea is void.   Sarkozy at ¶ 25.

       {¶15} Brown’s second assignment of error is sustained.

       {¶16} Because Brown’s plea is vacated on the ground that the trial court failed to advise

him of his sex offender registration status, his remaining assignments of error challenging the

postrelease control advisement during his plea, the imposition of consecutive sentences and the

failure to assess jail-time credit are moot. To the extent that any sentence is ordered to run

consecutive to CR-15-600700, the trial court is required to give jail-time credit on the total term

of the consecutive sentences as a whole that must be reflected in the journal entries of both cases.

       {¶17} This cause is reversed and remanded to the lower court for further proceedings

consistent with this opinion. We vacate Brown’s plea and remand for further proceedings

consistent with this opinion.

       It is ordered that appellant recover from appellee the 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 Cuyahoga County

Court of Common Pleas 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.



______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
