[Cite as State v. Thomas, 2018-Ohio-2815.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  BELMONT COUNTY

                                         STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                  SHAWN MARTIN THOMAS,

                                       Defendant-Appellant.


                       OPINION AND JUDGMENT ENTRY
                                        Case No. 17 BE 0014


                                   Criminal Appeal from the
                        Court of Common Pleas of Belmont County, Ohio
                                    Case No. 16 CR 210

                                        BEFORE:
                 Carol Ann Robb, Cheryl L. Waite, Kathleen Bartlett, Judges.


                                           JUDGMENT:
                                      Reversed and Remanded


Atty. J. Flanagan, Chief Assistant Prosecutor, Courthouse Annex 1, 147-A West Main
Street, St. Clairsville, Ohio 43950 No Brief Filed for Plaintiff-Appellee and

Atty. Edward Czopur, DeGenova & Yarwood, Ltd., 42 North Phelps St., Youngstown,
Ohio 44503, for Appellant-Defendant.

                                             Dated: July 2, 2018
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Robb, P.J.

       {¶1}   Defendant-Appellant Shawn Martin Thomas appeals the judgment of the
Belmont County Common Pleas Court upon his guilty plea to three counts of unlawful
sexual conduct with a minor. Appellant argues the plea was not knowing, intelligent, or
voluntary because the trial court failed to explain that he was waiving the right to a jury
trial where the court merely stated he was waiving the right to a “speedy and public trial”
without mentioning a jury at any point in the colloquy. As strict compliance with the plea
advisements on constitutional rights is required, Appellant’s argument has merit. In
accordance, this court concludes the trial court’s judgment is reversed, and the case is
remanded for further proceedings.
                                 STATEMENT OF THE CASE
       {¶2}   On August 3, 2016, Appellant was indicted for attempted rape with the
allegation he purposely compelled A.M. to submit to sexual conduct by force or threat of
force. See R.C. 2907.02(A)(2); R.C. 2923.02(A). This offense would have been subject
to Tier III classification, the highest sex offender label.   See R.C. 2950.01(G)(a)(i).
Appellant appeared for a plea hearing on November 21, 2016, at which time the parties
advised the court a resolution had not been reached. A motion to suppress was filed on
November 30, 2016, with regard to statements Appellant made during his August 30,
2016 interview at the Belmont County jail.      The suppression motion was thereafter
supplemented with a memorandum in support. Continuances were granted. When the
case was called for the suppression hearing on January 31, 2017, the parties jointly
requested a continuance to allow Appellant to consider the latest plea offer. The case
was reset for February 13, 2017, at which time Appellant signed the plea agreement.
       {¶3}   Pursuant to the agreement, the state amended the second-degree felony
attempted rape count in the indictment to fourth-degree felony unlawful sexual conduct
with a minor. The agreement called for Appellant to plead guilty to this amended count
plus two other fourth-degree felony counts of unlawful sexual conduct with a minor as




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set forth in a newly-filed bill of information. See R.C. 2907.04(A),(B)(1).1 Both the
original indictment for the first offense and the bill of information for the two additional
offenses stated the conduct occurred “on or about April 2011 through July 17, 2011”
against A.M. whose date of birth was specified as “03-11-95” which means she turned
16 before the start of the approximate date range for the offense.2 Appellant waived his
right to have the charges presented to a grand jury and signed a waiver of indictment.
Defense counsel withdrew the motion to suppress.                      The court conducted a plea
colloquy, and Appellant pled guilty to the three fourth-degree felony counts of unlawful
sexual conduct with a minor in violation of R.C. 2907.04(A),(B)(1).                           The court
memorialized the plea in a February 14, 2017 judgment entry.                            A presentence
investigation and victim impact statement were ordered.
        {¶4}    At the February 27, 2017 sentencing, Appellant was offered his right to
allocution, but he declined to speak.             In accordance with the plea agreement, the
prosecution took no position on sentencing, and the defense asked for concurrent
sentences. The court reviewed information about the offense from the presentence
investigation report and the victim impact statement. The court spoke of the purposes
and principles of sentencing under R.C. 2929.11 and the seriousness and recidivism
factors under R.C. 2929.12. The court reviewed Appellant’s criminal history and made
consecutive sentence findings under R.C. 2929.14.
        {¶5}    Appellant was sentenced to the maximum of eighteen months on each
count to run consecutively. The court imposed a mandatory term of five years of post-
release control as required by R.C. 2967.28(B)(1) and notified him if he violated the


1 Unlawful sexual conduct with a minor is a fourth-degree felony unless the offender is charged with:
being less than four years older than the victim, in which case it is a first-degree misdemeanor; being ten
or more years older than the victim, in which case it is a third-degree felony; or having certain prior
convictions, in which case it is a second-degree felony. See R.C. 2907.04(B)(1)-(4). Although Appellant
was more than ten years older than the victim, he negotiated the ability to plead to fourth-degree felonies
under R.C. 2907.04(B)(1).

2 We note the offense of unlawful sexual conduct with a minor deals with a victim who is under 16 years
old (and at least 13). See R.C. 2907.04(A) (“No person who is eighteen years of age or older shall
engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows
the other person is thirteen years of age or older but less than sixteen years of age, or the offender is
reckless in that regard.”).



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terms, then the parole board could return him to prison for a maximum of nine months
for each violation for a total not to exceed one-half of his minimum stated prison term.
See State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 9, citing
R.C. 2929.19(B)(2)(c)-(e). The court also explained the parole authority can increase or
reduce the restrictions imposed and, if Appellant is convicted of a felony while under
post-release control, the court sentencing on the new felony could return him to prison
in the current case and consecutively sentence him to prison for the new felony.
       {¶6}   The court labeled Appellant a Tier I sex offender and ordered him to
register with the sheriff annually for fifteen years. The statutory sex offender registration
notice was signed at hearing. Appellant’s status was marked as a Tier I sex offender,
and the notice explained a Tier I sex offender was required to register for 15 years with
annual in-person verification. Appellant was given 89 days of jail time credit. The
February 27, 2017 sentencing entry reiterated the court’s findings.
       {¶7}   A timely notice of appeal was filed, and a new attorney was appointed for
the appeal. On September 28, 2017, counsel filed a motion to withdraw and an Anders
brief setting forth a proposed assignment of error on consecutive sentencing but
concluding the trial court’s findings were sufficient. See State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29 (“a word-for-word recitation of the
language of the statute is not required, and as long as the reviewing court can discern
that the trial court engaged in the correct analysis and can determine that the record
contains evidence to support the findings, consecutive sentences should be upheld”).
This court appointed new counsel under Anders v. California, 386 U.S. 738, 744, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967). On April 4, 2018, Appellant’s new counsel filed a
brief challenging the guilty plea.
              ASSIGNMENT OF ERROR: PLEA COLLOQUY ON JURY TRIAL
       {¶8}   Appellant’s sole assignment of error provides:
       “The trial court did not comply with Crim.R. 11(C)(2)(c) in that it did not inform
Appellant of his right to a jury trial, therefore the plea was not made knowingly,
intelligently, and voluntarily requiring reversal.”
       {¶9}   A guilty plea is governed by Crim.R. 11. The non-constitutional rights
contained in this rule are subject to a substantial compliance analysis, which looks at



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the totality of the circumstances to ascertain whether the defendant subjectively
understood the implications of his plea and the rights he waived. See, e.g., State v.
Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990); State v. Stewart, 51 Ohio St.2d
86, 93, 364 N.E.2d 1163 (1977).          However, strict compliance is required when
addressing the constitutional rights contained in Crim.R. 11. State v. Barker, 129 Ohio
St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 15, citing State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Regarding the constitutional rights, the
trial court had the duty of:

       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.

Crim.R. 11(C)(2)(c).     Where there is not strict compliance with these constitutional
rights, the plea is invalid, without a requirement of showing prejudice. Veney, 120 Ohio
St.3d 176 at ¶ 30.
       {¶10} Although the trial court must strictly comply with this portion of the rule, the
failure to recite the exact language of the rule will not invalidate a plea if the record
demonstrates the court actually explained each constitutional right in a reasonably
intelligible manner. Barker, 129 Ohio St.3d 472 at ¶ 14-15, 20. Based on this premise,
the Barker Court held the trial court reasonably conveyed to the defendant that he was
waiving the right to have compulsory process for obtaining witnesses in his favor where
the court advised him of the right to “call witnesses to speak on your behalf” (and the
plea agreement spoke of the defendant’s ability to use the power of the court to call
witnesses to testify).
       {¶11} As for reviewing a plea agreement, the trial court has the duty to impart
knowledge of the constitutional rights and “cannot simply rely on other sources to
convey these rights to the defendant.” Veney, 120 Ohio St.3d 176 at ¶ 29 (invalidating
plea where court failed to orally inform defendant of his constitutional right to require the



Case No. 17 BE 0014
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state to prove his guilt beyond a reasonable doubt). Only where there is ambiguity in
the court’s references to the right, can the appellate court use the plea agreement to
reconcile the ambiguity. Barker, 129 Ohio St.3d 472 at ¶ 23-27 (limiting Veney to the
situation where a trial court omits any discussion of a constitutional right in the oral
colloquy). Therefore, if the trial court makes no reference to one of the constitutional
rights in any manner, the written plea agreement cannot cure the court’s failure as to
one of the rights. See id.
       {¶12} Here, the court asked if Appellant understood he was waiving the following
rights: “to a speedy and public” trial; to confront witnesses against him; to compulsory
service of witnesses in his favor; to require the state to prove his guilt beyond a
reasonable doubt; and to not be compelled to testify against himself. (Plea Tr. 6). As
Appellant points out, the trial court did not refer to a “jury” trial.
       {¶13} In some cases when a reviewing court is faced with this situation, the
court can conclude there was a valid waiver by finding the reference to a jury was orally
made when explaining some other aspect of the plea. See, e.g., State v. Ballard, 66
Ohio St.2d 473, 481, 423 N.E.2d 115 (1981); State v. Hayward, 6th Dist. No. WD-17-
010, 2017-Ohio-8611, ¶ 8, 12; State v. Smiddy, 2d Dist. No. 2014-CA-148, 2015-Ohio-
4200, ¶ 6, 15; State v. Young, 11th Dist. No. 2009-T-0130, 2011-Ohio-4018, ¶ 39-40.
As in this case, the trial court in Hayward orally advised the defendant of the right “to a
speedy and public trial” but later explained that if he chose not to testify, the court would
“instruct the jury” it could not consider this decision. The Sixth District relied on the later
reference to a jury in the plea colloquy and the plea agreement in order to uphold the
plea. Hayward, 6th Dist. No. WD-17-010.
       {¶14} In Ballard, the trial court advised the pleading defendant of his right to a
“fair and impartial” trial. This was an insufficient reference to the right to a jury trial.
However, in discussing the right against self-incrimination, the trial court informed the
defendant that “neither judge nor jury” could draw any inference if he refused to testify.
The defendant said he understood the rights explained to him. The Supreme Court
concluded: “These statements and answers, taken together, lead us to the conclusion
that the appellant was informed of his right to a trial by jury.” Ballard, 66 Ohio St.2d at
481.



Case No. 17 BE 0014
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       {¶15} Here, there is no reference to a jury in any other part of the plea transcript.
As Appellant concedes, the written plea clearly and boldly states the guilty plea waives
the right to a jury trial. Yet, as Appellant further contends, the plea agreement cannot
be used where the right was not touched upon in any manner by the trial court at the
time the plea was entered.
       {¶16} In sum, the trial court failed to advise Appellant of his constitutional right to
a jury trial by informing him of “the right to a speedy and public trial” where no reference
to a jury was made elsewhere at the plea hearing. Appellant’s assignment of error is
sustained. The judgment of the trial court is reversed, and the case is remanded for
further proceedings.
                                SEXUAL OFFENDER TIERS
       {¶17} Although not raised on appeal, this court is compelled to discuss the
following issue with the sex offender tier label: Appellant was told he would be subject
to Tier I registration of 10 years; registration for a Tier I sex offender is actually 15
years; but a sex offender convicted of fourth-degree felony unlawful sexual conduct with
a minor is subject to a Tier II sex offender label which involves 25 years of registration.
At the plea hearing, the trial court asked if Appellant understood he would be “registered
as a sex offender, with the appropriate reporting requirements.” (Plea Tr. 9). Appellant
said he did and knew he would be required to sign a form in acknowledgement of the
requirements. The court did not mention the tier or the duration of registration, but
defense counsel voiced, “the prosecutor and I have determined this would be a Tier I
Registration, which is once every 180 days for ten years.” (Plea Tr. 10). The written
plea agreement likewise stated in the section explaining the potential sentence: “Tier I
Registration – every 6 mos. for 10 years.”
       {¶18} Contrary to this statement on the record and in the plea agreement, a
person who is a Tier I sex offender is subject to 15 years of registration, and the
verification of registration is annual. R.C. 2950.07(B)(3). The reference to 10 years in
this division only relates to an offender who is a delinquent child. Id. This has been the
case since 2008, when the Adam Walsh Act went into effect and created these tiers. At
sentencing, the trial court designated Appellant as a Tier I sex offender with registration
for 15 years, which is the proper duration for Tier I. See id. The statutory sex offender



Case No. 17 BE 0014
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registration notice signed at the hearing was marked for Tier I sex offender status and
explained a Tier I sex offender was subject to annual in-person verification for 15 years.
The sentencing entry reiterated Appellant’s designation as a Tier I sex offender with 15
years of annual verification.
        {¶19} Nevertheless, unlawful sexual conduct with a minor in violation of R.C.
2907.04 requires a Tier II sex offender label under R.C. 2950.01(F)(1)(b). The only
exception can occur in certain cases where the defendant was less than four years
older than the minor subjected to the sexual conduct.3 Appellant was not less than four
years older than the victim; nor did he negotiate a plea to such a lower degree of
offense involving the lesser age difference. Compare State v. Grigsby, 2d Dist. No.
27443, 2017-Ohio-8760, ¶ 27-28.                 Appellant pled to fourth-degree felony unlawful
sexual conduct with a minor in violation of R.C. 2907.04(A) and (B)(1).
        {¶20} The only reference to R.C. 2907.04 in the definition of a Tier I sex offender
is as follows: “A violation of section 2907.04 of the Revised Code when the offender is
less than four years older than the other person with whom the offender engaged in
sexual conduct, the other person did not consent to the sexual conduct, and the
offender previously has not been convicted of or pleaded guilty to [certain sections].”
(Emphasis added).           R.C. 2950.01(E)(1)(b).           This division has no relevance to the
offenses to which Appellant pled guilty.
        {¶21} Rather, a violation of R.C. 2907.04 when the offender is more than four
years older than the person with whom the offender engaged in sexual conduct is
contained in the definition of a Tier II sex offender. R.C. 2950.01(F)(1)(b). This division
defines a Tier II sex offender as applying to a conviction for:
        A violation of section 2907.04 of the Revised Code when the offender is at
        least four years older than the other person with whom the offender
        engaged in sexual conduct, or when the offender is less than four years
        older than the other person with whom the offender engaged in sexual
        conduct and the offender previously has been convicted of or pleaded

3 See R.C. 2950.01(E)(1)(b) (the label can be Tier I if there is less than four years in age difference, a lack
of consent, and no prior specified convictions); R.C. 2950.01(B)(2)(b) (and there is no sex offender label if
the age difference is less than four years and the sexual conduct was consensual). Compare R.C.
2950.01(F)(1)(b) (the label is Tier II if the defendant has certain prior convictions, even if there is less than
four years in age difference).


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       guilty to a violation of section 2907.02, 2907.03, or 2907.04 of the Revised
       Code or former section 2907.12 of the Revised Code * * *.

R.C. 2950.01(F)(1)(b). In accordance, the offenses to which Appellant pled guilty made
him subject to classification as a Tier II sex offender. See R.C. 2950.01(F)(1)(b). Tier II
is a higher level than Tier I and is subject to a longer period of reporting and more
frequent verification: every 180 days for 25 years. R.C. 2950.07(B)(2). This should be
considered on remand during any new plea hearing.
       {¶22} For the reasons set forth under Appellant’s sole assignment of error, the
trial court’s judgment is reversed, and the case is remanded for further proceedings.

Waite, J., concurs.

Bartlett, J.,concurs.




Case No. 17 BE 0014
[Cite as State v. Thomas, 2018-Ohio-2815.]




        For the reasons stated in the Opinion rendered herein, the assignment of error is
sustained and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is reversed. We hereby remand this
matter to the trial court for further proceedings according to law and consistent with this
Court’s Opinion. Costs to be taxed against the Appellee.
        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                       NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
