[Cite as State v. White, 2013-Ohio-2135.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
DUSTIN J. WHITE                              :       Case No. CT2012-0046
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. CR2012-0167



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    May 22, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ROBERT L. SMITH                                      DAVID A. SAMS
27 North Fifth Street                                P.O. Box 40
Zanesville, OH 43701                                 West Jefferson, OH 43162
Muskingum County, Case No. CT2012-0046                                                  2

Farmer, J.

       {¶1}   On July 25, 2012, a bill of information was filed charging appellant, Dustin

White, with two counts of unlawful sexual conduct with a minor in violation of R.C.

2907.04. At the time of the offenses, the victim was 15 years old and appellant was 18

years of age or older.

       {¶2}   Appellant pled guilty to the counts on July 25, 2012. By sentencing entry

filed August 29, 2012, the trial court sentenced appellant to three years of community

control, ninety days of local incarceration included therein, and classified him as a Tier II

sexual offender.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶4}   "THE BILL OF INFORMATION WAS STRUCTURALLY INSUFFICIENT

UNDER OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS AS IT

FAILED TO CONTAIN A NECESSARY ALLEGATION THAT THE OFFENSE IN

QUESTION WAS A SEXUALLY ORIENTED OFFENSE FOR PURPOSES OF OHIO

REVISED CODE CHAPTER 2950."

                                             II

       {¶5}   "THE DEFENDANT-APPELLANT'S CONVICTION AND SENTENCE FOR

HAVING UNLAWFUL SEXUAL RELATIONS WITH A MINOR AS A FELONY OF THE

FOURTH DEGREE AND HIS RESULTING CLASSIFICATION AS A TIER II SEX

OFFENDER ARE VOID AS THE INFORMATION FAILED TO ALLEGE THAT
Muskingum County, Case No. CT2012-0046                                               3


APPELLANT WAS FOUR OR MORE YEARS OLDER THAN THE MINOR VICTIM AS

REQUIRED BY OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS."

                                            III

      {¶6}   "THE     DEFENDANT-APPELLANT'S             PLEA     WAS      UNKNOWING,

UNINTELLIGENT AND INVOLUNTARY CONTRARY TO OHIO LAW AND THE STATE

AND FEDERAL CONSTITUTIONS."

                                           I, II

      {¶7}   Appellant claims the bill of information was deficient as it failed to allege

that the offense in question was a "sexually oriented offense" for purposes of R.C.

Chapter 2950, and failed to allege that appellant was four or more years older than the

minor victim. We disagree.

      {¶8}   The bill of information filed July 25, 2012 contained two counts. Both

counts were identical and stated the following:



             The undersigned, the duly elected and qualified Prosecuting

      Attorney of said County in the name and by the authority of the State of

      Ohio, says that prior to this information DUSTIN J. WHITE was duly

      advised by the Common Pleas Court of the nature of the charge against

      him and of his rights under the Constitution, and being then represented

      by Attorney Frederick Sealover waived, in writing and in open court,

      prosecution of the offense by indictment, and by way of information

      DUSTIN J. WHITE between the dates of 01/02/2012 and 01/30/2012, in

      the County of Muskingum, did being eighteen (18) years of age or older,
Muskingum County, Case No. CT2012-0046                                                   4


         knowingly engage in sexual conduct, to-wit: vaginal intercourse, with

         another, to-wit, A.E.S. dob 12/14/1996, who is not the spouse of the said

         DUSTIN J. WHITE, the said DUSTIN J. WHITE knowing the said A.E.S.

         dob 12/14/1996, is thirteen (13) years of age or older, but less than

         sixteen (16) years of age, or being reckless in that regard; in violation of

         Ohio Revised Code, Title 29, Section 2907.04(A), and against the peace

         and dignity of the State of Ohio.



         {¶9}     During appellant's plea hearing, the trial court explained to appellant that

he would be classified as a Tier II sex offender which appellant acknowledged he

understood. July 25, 2012 T. at 6. The trial court repeated this information to appellant

during the sentencing hearing, and again appellant acknowledged he understood.

August 27, 2012 T. at 4-5.

         {¶10} We note an objection to the classification was not made during the

sentencing hearing. Id. at 6. An error not raised in the trial court must be plain error for

an appellate court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). In

order to prevail under a plain error analysis, appellant bears the burden of

demonstrating that the outcome of the trial clearly would have been different but for the

error.    Long.     Notice of plain error "is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at

paragraph three of the syllabus.

         {¶11} Pertinent to this appeal, a "sexually oriented offense" is defined by R.C.

2950.01(A)(3) as follows:
Muskingum County, Case No. CT2012-0046                                                 5




               (A) "Sexually oriented offense" means any of the following

       violations or offenses committed by a person, regardless of the person's

       age:

               (3) 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 guilty to a violation of section 2907.02, 2907.03, or 2907.04 of the

       Revised Code or a violation of former section 2907.12 of the Revised

       Code.



       {¶12} Both counts in the bill of information specify a violation of R.C. 2907.04,

the birth date of the victim making the victim 15 years old at the time of the offenses,

and the age of appellant, 18 years of age or older. Appellant was 19 years old at the

time of the filing of the bill of information. July 25, 2012 T. at 13. Appellant was 4 years

and 35 days older than the victim. August 27, 2012 T. at 6.

       {¶13} We do not find it to be necessary for the bill of information to further allege

the penalty for the offenses pursuant to R.C. Chapter 2950. The bill of information set

forth all of the elements of the offenses, specifically referenced R.C. 2907.04, and

included sufficient information to determine the ages of the parties involved.
Muskingum County, Case No. CT2012-0046                                                     6


       {¶14} In addition, the plea form that appellant signed on July 25, 2012 included

the following:



                 Registration: In person verification. If you have entered a plea of

       guilty to a sexually oriented offense, as defined in Chapter 2950.01 of the

       Ohio Revised Code, you have been classified as one of the following: a

       Tier I, a Tier II, or a Tier III offender.    Inasmuch as you have been

       classified as a sex offender, you have a duty to register with law

       enforcement as follows:

                 TIER II: registration every 180 days for a period of twenty-five

       (25) years.



       {¶15} Although appellant argues the Tier II classification is punitive, it does not

enhance the degree of the offense. In support of his argument, appellant cites this court

to the case of State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908. We find this case

not to be controlling as it spoke only to what was required to be in a sentencing entry

and not an indictment: "[w]hen a trial court fails to include a mandatory driver's license

suspension as part of an offender's sentence, that part of the sentence [is] void.

Resentencing of the offender is limited to the imposition of the mandatory driver's

license suspension." Harris, at paragraph one of the syllabus.

       {¶16} Upon review, we find the bill of information in this case to be sufficient.

       {¶17} Assignments of Error I and II are denied.
Muskingum County, Case No. CT2012-0046                                                7


                                           III

      {¶18} Appellant claims his plea was unknowing, unintelligent, and involuntary

because he was not explained jury unanimity. We disagree.

      {¶19} Crim.R. 11 governs pleas. Subsection (C)(2) states the following:



             (2) In felony cases the court may refuse to accept a plea of guilty or

      a plea of no contest, and shall not accept a plea of guilty or no contest

      without first addressing the defendant personally and doing all of the

      following:

             (a) Determining that the defendant is making the plea voluntarily,

      with understanding of the nature of the charges and of the maximum

      penalty involved, and if applicable, that the defendant is not eligible for

      probation or for the imposition of community control sanctions at the

      sentencing hearing.

             (b) Informing the defendant of and determining that the defendant

      understands the effect of the plea of guilty or no contest, and that the

      court, upon acceptance of the plea, may proceed with judgment and

      sentence.

             (c) 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
Muskingum County, Case No. CT2012-0046                                                8


      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.



      {¶20} We find the plea colloquy sub judice conforms to the mandates of Crim.R.

11. Further, as this court stated in State v. Rogers, 5th Dist. No. CT2008-0066, 2009-

Ohio-4899, ¶ 11:



             This Court, along with several courts, including the Ohio Supreme

      Court, has held there is no requirement that a trial court inform a

      defendant of his right to a unanimous verdict. State v. Dooley, Muskingum

      App. No. CT2008-0055, 2009-Ohio-2095; State v. Hamilton, Muskingum

      App. No. CT2008-0011, 2008-Ohio-6328; State v. Fitzpatrick, 102 Ohio

      St.3d 321, 2004-Ohio-3167, at ¶ 44-46 (accused need not be told that jury

      unanimity is necessary to convict and to impose sentence); State v. Smith,

      Muskingum App. No. CT2008-0001, 2008-Ohio-3306 at ¶ 27 (there is no

      explicit requirement in Crim.R. 11(C)(2)(a) that a defendant be informed of

      his right to a unanimous verdict; State v. Williams, Muskingum App. No.

      CT2007-0073, 2008-Ohio-3903 at ¶ 9 (the Supreme Court held an

      accused need not be told the jury verdict must be unanimous in order to

      convict); State v. Barnett, Hamilton App. No. C-060950, 2007-Ohio-4599,

      at ¶ 6 (trial court is not required to specifically inform defendant that she

      had right to unanimous verdict; defendant's execution of a written jury trial

      waiver and guilty plea form, as well as her on-the-record colloquy with the
Muskingum County, Case No. CT2012-0046                                             9


      trial court about these documents, was sufficient to notify her about the

      jury trial right she was foregoing); State v. Goens, Montgomery App. No.

      19585, 2003-Ohio-5402, at ¶ 19; State v. Pons (June 1, 1983),

      Montgomery App. No. 7817 (defendant's argument that he be told that

      there must be a unanimous verdict by the jury is an attempted super

      technical expansion of Crim.R. 11); State v. Small (July 22, 1981), Summit

      App. No. 10105 (Crim.R. 11 does not require the court to inform the

      defendant that the verdict in a jury trial must be by unanimous vote).



      {¶21} Assignment of Error III is denied.

      {¶22} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




                                            s/ Sheila G. Farmer______________



                                            s/ W. Scott Gwin     _____________



                                            s/ John W. Wise_________________

                                                          JUDGES

SGF/sg
[Cite as State v. White, 2013-Ohio-2135.]


                 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
DUSTIN J. WHITE                                :
                                               :
        Defendant-Appellant                    :        CASE NO. CT2012-0046




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed. Costs

to appellant.




                                               s/ Sheila G. Farmer______________



                                               s/ W. Scott Gwin   _____________



                                               s/ John W. Wise_________________

                                                            JUDGES
