[Cite as State v. Dornoff, 2020-Ohio-3909.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                     Court of Appeals No. WD-16-072

        Appellee                                  Trial Court No. 2015-CR-0367

v.

Steven H. Dornoff, Jr.                            DECISION AND JUDGMENT

        Appellant                                 Decided: July 31, 2020

                                              *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                              *****

        SINGER, J.

        {¶ 1} This case is before us based on a remand issued by the Supreme Court of

Ohio in State v. Dornoff, –– Ohio St.3d ––, 2020-Ohio-3022, –– N.E.3d –– (“Dornoff

II”), in which the court reversed our decision in State v. Dornoff, 6th Dist. No.
WD-16-072, 2018-Ohio-3084, 105 N.E.3d 1278 (“Dornoff I”), on the authority of State

v. Dangler, –– Ohio St.3d –––, 2020-Ohio-2765, –– N.E.3d ––– (“Dangler II”). For the

reasons that follow, we affirm the September 14, 2016 judgment of the Wood County

Court of Common Pleas.

       {¶ 2} Appellant, Steven Dornoff, Jr., sets forth two assignments of error:

              1. The trial court erred to the prejudice of appellant in accepting a

       guilty plea, which was not made knowingly, in violation of appellant’s due

       process rights under the Fifth and Fourteenth Amendments of the United

       States Constitution and Article I, Section 16 of the Ohio Constitution.

              2. The trial court erred to the prejudice of appellant by denying his

       motion to withdraw his plea.

                                           Facts

                                         Dornoff I

       {¶ 3} As we set forth in Dornoff I, on September 3, 2015, appellant was charged in

a six-count indictment with three counts of rape with firearm specifications, one count of

felonious assault with a sexual motivation specification, one count of felonious assault

with firearm and sexual motivation specifications and one count of kidnapping with a

sexual motivation specification. Id. at ¶ 3.

       {¶ 4} On September 12, 2016, a plea hearing was held where appellant entered a

guilty plea to one count of rape with a firearm specification, one count of felonious

assault with a sexual motivation specification and one count of kidnapping with a sexual




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motivation specification. Id. at ¶ 4. Prior to the plea hearing, appellant had signed a

written plea of guilty document (“plea form”), which stated he would be required to

register as a Tier II and Tier III sexual offender. Id. at ¶ 16. The plea form did not

specify the punitive consequences related to being classified as a Tier II and Tier III

sexual offender. Id.

       {¶ 5} At the plea hearing, the prosecutor mentioned that appellant was entering a

guilty plea and “will be registered as a Tier III sex offender.” Id. at ¶ 17. The trial judge

did not advise appellant that he would have to register as a sexual offender, nor did the

judge inform appellant of any of the punitive consequences of entering a guilty plea or

having a sexual offender classification. Id. Appellant was sentenced to 11 years in

prison on the rape count, 4 years on the felonious assault count and 11 years on the

kidnapping count. Id. at ¶ 5. The rape and the kidnapping counts were ordered to be

served concurrently, for a total of 15 years of incarceration. Id. The remaining counts of

the indictment were dismissed. The court’s judgment entry was filed on September 14,

2016. Id.

       {¶ 6} On September 30, 2016, appellant filed a pro se motion with the trial court

to withdraw his plea; the motion was denied. Id. at ¶ 6. On November 3, 2016, appellant

filed a second motion to withdraw his plea; this motion was also denied. Id.

       {¶ 7} On December 28, 2016, appellant filed a motion for leave to file a delayed

appeal; we granted the motion. Id. at ¶ 7. Appellant filed his appeal. Id.




3.
       {¶ 8} In his first assignment of error, appellant argued his guilty plea was not

knowingly or voluntarily made, as the trial court failed to inform him of Tier III

registration requirements prior to accepting the plea. Id. at ¶ 8. Appellant asserted this

should be viewed as a complete failure to comply with Crim.R. 11, and his plea must be

vacated without a showing of prejudice. Id.

       {¶ 9} In ruling on appellant’s first assignment of error, we noted Crim.R. 11(C)

governs guilty and no contest pleas in felony cases. Id. at ¶ 8. We relied on State v.

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, in finding that R.C.

Chapter 2950 imposes classification, registration and community notification

requirements on sexual offenders, and the registration requirements in R.C. 2950.03, the

community notification requirements in R.C. 2950.11, and the residential restrictions in

R.C. 2950.034 are penalties. Dornoff I at ¶ 14. Thus, we found the trial court failed to

comply with Crim.R. 11(C)(2) by not informing appellant of all of the registration

requirements, community notifications and residential restrictions related to Tier II and

III sexual offender classifications prior to accepting appellant’s plea. Id. at ¶ 18. We

further found “the trial court’s failure to comply with Crim.R. 11(C)(2) renders

appellant’s plea involuntary, unknowing and invalid.” Id. We vacated the trial court’s

judgment, and ruled the second assignment of error was moot. Id. at ¶ 18, 19. Appellant

appealed to the Supreme Court, and Dornoff II was decided.




4.
                                   Dornoff II/Dangler II

       {¶ 10} In Dornoff II, the Supreme Court reversed Dornoff I on the authority of

Dangler II, 2020-Ohio-2765.

       {¶ 11} In Dangler II, the Supreme Court ruled “[w]hen a trial court has told a

defendant that he is subject to the sex-offender-registration scheme, that defendant is

entitled to have his conviction vacated for lack of a more complete explanation only if he

demonstrates prejudice.” Id. at ¶ 2.

       {¶ 12} The Supreme Court mentioned the traditional rule when a criminal

defendant seeks to have a conviction reversed on appeal: the defendant must establish

that an error occurred and the defendant was prejudiced by that error. Id. at ¶ 13. The

Supreme Court noted two exceptions to the prejudice component of the rule in the

context of a criminal plea: when a trial court fails to explain the constitutional rights a

defendant waives by pleading guilty or no contest and when a trial court completely fails

to comply with Crim.R. 11(C)(2)(a)’s requirement that it explain the maximum penalty to

a defendant. Id. at ¶ 13-15. “Aside from these two exceptions, the traditional rule

continues to apply: a defendant is not entitled to have his plea vacated unless he

demonstrates he was prejudiced by a failure of the trial court to comply with the

provisions of Crim.R. 11(C).” Id. at ¶ 16.

       {¶ 13} The Supreme Court noted that in State v. Dangler, 6th Dist. Williams No.

WM-16-010, 2017-Ohio-7981 (“Dangler I”), we relied on State v. Williams, 129 Ohio

St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, and found the registration requirements,




5.
in-person verification requirements, community-notification provisions and residency

restrictions were punitive sanctions. Dangler II at ¶ 8. The Supreme Court observed that

under our view “each of these requirements constitutes a separate penalty and therefore a

trial court must go over each requirement in order to comply with Crim.R. 11(C)(2)(a)’s

maximum-penalty advisement.” Id. The Supreme Court noted that we “concluded that

the trial court had completely failed to comply with Crim.R. 11(C)(2)(a) and vacated

Dangler’s conviction and sentence without requiring him to show prejudice.” Id.

       {¶ 14} The Supreme Court disagreed with our interpretation, ruling “the Williams

court did not decide that any specific element of the statutory scheme constitutes a

criminal penalty.” Id. at ¶ 22. The Supreme Court found

               Because the trial court * * * advised Dangler that he would be

       subject to the registration requirements of that statutory scheme, the trial

       court did not completely fail to comply with Crim R. 11(C)(2)(a)’s

       maximum-penalty-advisement requirement. * * * And the maximum-

       penalty advisement is not a constitutional requirement. Consequently,

       neither of this court’s exceptions to the prejudice requirement apply, and

       Dangler can prevail only by establishing that he would not have pleaded no

       contest but for the trial court’s failure to explain the sex-offender-

       classification scheme more thoroughly.

Id. at ¶ 22- 23.




6.
       {¶ 15} The Supreme Court stated “prejudice must be established, ‘on the face of

the record.’ Hayward v. Summa Heath Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-

Ohio-1913, 11 N.E.3d 243.” Id. at ¶ 24. The Supreme Court concluded there was

“nothing in the record indicating that Dangler would not have entered his plea had he

been more thoroughly informed of the details of the sex-offender-classification scheme.

* * * Because Dangler has not established prejudice, he is not entitled to have his no-

contest plea vacated for a failure to comply with Crim.R. 11(C).” Id.

                                            Analysis

       {¶ 16} In light of the Supreme Court’s Dornoff II decision and remand, we now

reexamine appellant’s assignments of error.

       {¶ 17} Upon review, we find the trial court, similar to the trial court in Dangler,

failed to completely and separately advise appellant of the sex-offender registration and

in-person verification requirements, community-notification provisions, and residence

restrictions imposed by the sex-offender registration scheme when accepting appellant’s

guilty plea. We further find, on the authority of the Supreme Court’s holding in Dangler,

this failure did not constitute a complete failure to comply with Crim.R. 11, thus

appellant must demonstrate prejudice in order to have his conviction vacated.

       {¶ 18} A review of the record reveals appellant has alleged he was prejudiced, but

he has offered no explanation or evidence to show that he would not have entered the

guilty plea but for the trial court’s failure to fully advise him of all of the details of the

sex-offender classification scheme. Therefore, appellant has not established prejudice,




7.
and he is not entitled to have his guilty plea vacated for a failure of the trial court to

comply with Crim.R. 11(C). Accordingly, appellant’s assignments of error are not well-

taken.

         {¶ 19} The September 14, 2016 judgment of the Wood County Court of Common

Pleas is affirmed. Pursuant to App.R. 24, appellant is assessed the costs of this appeal.


                                                                           Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                                 _______________________________
                                                              JUDGE
Thomas J. Osowik, J.
                                                  _______________________________
Gene A. Zmuda, P.J.                                           JUDGE
CONCUR.
                                                  _______________________________
                                                              JUDGE


              This decision is subject to further editing by the Supreme Court of
         Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
              version are advised to visit the Ohio Supreme Court’s web site at:
                       http://www.supremecourt.ohio.gov/ROD/docs/.




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