[Cite as State v. Hartness, 2019-Ohio-316.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106810



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                          VICTOR HARTNESS

                                                         DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                REVERSED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                    Case No. CR-95-323640-ZA

        BEFORE: Kilbane, A.J., S. Gallagher, J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                   January 31, 2019
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113



MARY EILEEN KILBANE, A.J.:

       {¶1}    Defendant-appellant, Victor Hartness (“Hartness”), appeals the trial court’s

judgment adjudicating him a sexual oriented offender. For the reasons that follow, we reverse.

       {¶2}    In May 1995, Hartness was charged with one count of aggravated murder with a

felony murder specification, and one count of rape. In September 1995, Hartness, who had no

prior record, negotiated a plea agreement with the state. Under the plea agreement, Hartness

pled guilty to count one as amended to murder, without the language that the murder was

committed during or immediately after a rape and without the felony murder specification. In

exchange for Hartness’s guilty plea, the state dismissed the rape charge in count two. The trial

court sentenced Hartness to a prison term of 15 years to life.

       {¶3}    In January 2017, shortly before Hartness was scheduled to be released from

prison, the Ohio Department of Rehabilitation and Correction notified the trial court that it
needed to conduct a sexual offender classification hearing under Ohio’s Megan’s Law.

Hartness’s release date was to be February 1, 2017. The trial court notified Hartness that a

classification hearing would be conducted within a year of his release from prison. Hartness

was in fact released on February 1, 2017.

       {¶4}    In the meantime, on April 12, 2017, because Hartness had only been convicted of

straight murder, the trial court held a hearing on the propriety of conducting a hearing under

Megan’s Law. At the hearing, the state indicated that there is a subset of offenses under

Megan’s Law that require a hearing if the state can prove by clear and convincing evidence that

the underlying conviction was sexually motivated. The state also indicated it had Hartness’s

May 8, 1995 statement to the police. In the statement, Hartness indicated that he and the victim

were engaged in consensual sexual intercourse. In addition, the state indicated that the coroner

had determined that the victim died of manual strangulation.

       {¶5}    Defense counsel indicated that there was no basis for the hearing because absent

from the transcript of the plea hearing was any language that the offense was committed with a

sexual motivation. Defense counsel also indicated that Hartness was charged with aggravated

murder and rape, but the state dismissed the aggravating condition that the murder was

committed while the defendant was engaged in the commission of another felony, i.e, rape.

Defense counsel also indicated that the state dismissed the charge of rape, and further indicated

that Hartness and the victim were engaged in consensual sex.

       {¶6}    On October 31, 2017, the trial court issued a journal entry stating that Hartness

was convicted of a sexually oriented offense and subject to registration under Megan’s Law. On

January 29, 2018, the trial court conducted a classification hearing under Megan’s Law and

classified Hartness as a sexually oriented offender.    The trial court stayed the registration
requirement pending this appeal.

       {¶7}    Hartness now appeals, assigning the following errors for our review.

                                     Assignment of Error One

       Victor Hartness’[s] classification as a sexually oriented offender constituted a
       breach of his plea agreement.

                                    Assignment of Error Two

       The trial court erred in classifying Victor Hartness as a sexually oriented offender
       when he was convicted of murder and not murder with a sexual motivation.

                                    Assignment of Error Three

       The trial court violated Victor Hartness’[s] constitutional rights when it
       determined, in a summary proceeding without a jury and on a reduced burden of
       proof, that his murder conviction was committed with a sexual motivation.

                                    Assignment of Error Four

       The trial court failed to present legally sufficient evidence that the murder was
       committed with a sexual motivation.

       {¶8}    In the first assignment of error, Hartness argues his classification as a sexually

oriented offender is a breach of the plea agreement with the state.

       {¶9}    In 1996, the General Assembly enacted Ohio’s version of the federal “Megan’s

Law” legislation, which created a comprehensive registration and classification system for sex

offenders. State v. Kahn, 8th Dist. Cuyahoga No. 104360, 2017-Ohio-4067, citing State v.

Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 6-7. Under Megan’s Law, a

sentencing court was required to determine whether a sex offender fell into one of three

classifications (1) sexually oriented offender, (2) habitual sex offender, or (3) sexual predator.

Kahn, citing State v. Cook, 83 Ohio St.3d 404, 407, 1998-Ohio-291, 700 N.E.2d 570.
       {¶10}      This    court      reviews    these     determinations     under     a     civil

manifest-weight-of-the-evidence standard. State v. Bidinost, 8th Dist. Cuyahoga No. 100466,

2014-Ohio-3136. This is because a sex offender classification under Megan’s Law is considered

civil in nature. Id., citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, syllabus. The civil manifest-weight-of-the-evidence standard “affords the lower court

more deference than the criminal standard.” State v. Nelson, 8th Dist. Cuyahoga No. 101228,

2014-Ohio-5285, quoting Wilson at ¶ 26. “Thus, a judgment supported by ‘some competent,

credible evidence going to all the essential elements of the case’ must be affirmed.” Id., quoting

C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

       {¶11} We turn our attention to the plea agreement, which we find dispositive of the

instant appeal.

       {¶12} A plea agreement is generally “contractual in nature and subject to contract-law

standards.” State v. Parham, 8th Dist. Cuyahoga No. 105983, 2018-Ohio-1631, quoting State v.

Butts, 112 Ohio App.3d 683, 679 N.E.2d 1170 (8th Dist.1996). Plea agreements should be

construed strictly against the government. Parham, citing United States v. Fitch, 282 F.3d 364

(6th Cir.2002). “When a plea rests in any significant degree on a promise or agreement of the

prosecutor, so that it can be said to be part of the inducement or consideration, such promise

must be fulfilled.” Parham, quoting Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30

L.Ed.2d 427 (1971).

       {¶13} At the plea hearing in this case, the assistant prosecutor presented the plea

agreement to the court and stated:

       [MR. BOMBIK]: As the Court has indicated, this is a two count indictment; first
       count aggravated murder, second count rape. First count of aggravated murder is
       indicted in terms of what is commonly referred to as felony murder doctrine in
       Ohio, that is committing a murder during the course of another felony, to wit: in
       this case the allegation of rape. * * * It is my understanding at this time the
       defendant desires to withdraw his formerly entered plea of not guilty and with
       respect to the first count of the indictment of aggravated murder enter a plea to the
       lesser included offense of murder in violation of Revised Code Section 2903.02.
       Basically[,] to accomplish that we ask the Court to delete the language pertaining
       to committing or attempting to commit or while fleeing immediately after
       committing or attempting to commit rape and leaving the balance of the
       indictment to say that purposely caused the death of another, to wit: Lois Strow
       on or about April 7, 1995 in Cuyahoga County. * * * We would further ask that
       Count One be amended to delete the felony murder specification, thus leaving
       with such deletion a charge of straight murder pursuant to 2903.01. * * * We
       would further recommend upon acceptance of the plea that Count Two of the
       indictment pertaining to the charge of rape be dismissed.

       {¶14} Defense counsel agreed and stated:

       [MR. GRANT]:We also had an opportunity to discuss with Mr. Hartness the
       potential consequences of the plea in this matter both in terms of potential
       sentences and other ramifications. Your Honor, it is our belief at this time that it
       is his desire to withdraw his previously entered plea of not guilty and to enter a
       plea of guilty to one count of murder as amended by Mr. Bombik and the deletion
       of the second count of this matter.

       {¶15} Prior to accepting Hartness’s plea, the trial court stated:

       [JUDGE]: The case has been amended to a straight murder. We shall delete from
       the body of the indictment — the indictment shall read this defendant purposely
       caused the death of another, to wit: Lois Strow on April 7, 1995, and as such this
       is straight murder. Deleting the felony murder specification, this is punishable by
       a term of imprisonment of 15 to life.

       {¶16} It is clear from our review of the 1995 plea hearing that the state and Hartness were

in one accord on deleting the very element the state now attempts to utilize to justify classifying

Hartness as a sexually oriented offender. It is also clear that the trial court was satisfied that

there was a meeting of the minds between the state and Hartness. Thus, it is clear that a contract

existed between the state and Hartness.

       {¶17} In support of his argument that the state breached the agreement, Hartness relies on

our decision in State v. Mosley, 8th Dist. Cuyhoga No. 99887, 2014-Ohio-391. In Mosley,
involving similar issues, the state indicted appellant on a single count of failing to register in

violation of R.C. 2950.041(E) and sought to utilize his 1999 conviction for attempted abduction

as the predicate offense triggering the registration requirement. Mosley moved the trial court to

dismiss the indictment on the grounds that abduction was not a sex offense. At the hearing on

the motion to dismiss, Mosley testified that he entered the guilty plea with the understanding he

was not pleading to any offense that carried a registration requirement. Mosley also testified he

was advised that attempted abduction was not a sex offense. Mosley specifically testified he

would not have entered a plea if the offense was a sex offense that carried a registration

requirement.   The trial court granted Mosley’s motion to dismiss, and the state appealed.

Mosley at ¶ 5-6.

       {¶18} In Mosley we stated:

       Relying on the child-victim oriented offender provisions contained in former R.C.
       2950.041 and enacted as part of S.B. 5, effective July 31, 2003, the state argues
       that Mosley has an absolute duty to register. The state argues that the General
       Assembly redesignated the offense of abduction of a minor from a sexually
       oriented offense (see former R.C. 2950.01, effective January 1, 1997, 1996 H.B.
       180) to a child-victim offense through S.B. 5. And based on the retroactivity
       clause contained in former R.C. 2950.041(A)(1)(c), the state argues that Mosley
       was required to register because (1) his “offense would have been considered a
       sexually oriented offense prior to July 31, 2003,” and (2) he “would have been
       required to register as a sexually oriented offender.”

       Mosley counters that the state’s argument is fatally flawed because he was not
       required to register as a sex offender under Ohio’s sex offender registration and
       notification scheme in effect at the time of his conviction for attempted abduction.
        Mosley points out that, at the time of his 1999 sentencing, abduction was not
       automatically considered a sexually oriented offense; it was only a sexually
       oriented offense if there is an additional determination that the victim “is under
       eighteen years of age.” Former R.C. 2950.01(D)(2)(a). Despite the fact that the
       victim in this case was under the age of 18, Mosley argues that “the parties
       effectively agreed, as a part of the plea agreement, that the offense did not involve
       a minor,” thereby avoiding the registration requirements in effect at the time. The
       state does not dispute this point.
       Based on the evidence presented at the hearing on the motion to dismiss, it is clear
       from the record that Mosley not having to register as a sex offender was a material
       term of his plea agreement. While the state now contends that Mosley pleaded
       guilty to attempted abduction of a minor, we find no support for this claim in the
       record before us. Instead, consistent with Mosley’s arguments and the trial court’s
       sentencing journal entry, it appears that Mosley was convicted and sentenced for
       attempted abduction, without any reference to the victim being a minor. To the
       extent that the state now seeks to go beyond the terms of the parties’ plea
       agreement, we find that it is precluded from doing so.

       {¶19} Likewise, in the instant case, deleting any references to allegations that Hartness

committed the offense with a sexual motivation was a material term of the plea agreement. In

addition, amending the charge to “straight murder” and dismissing the rape charge is indicative

of how material the term was to Hartness’s decision to plead guilty. In reaching the plea

agreement, the state bargained away the possibility of securing convictions on the aggravated

murder and the rape charge, as indicted, in exchange for Hartness pleading guilty to a “straight

murder” charge. After this mutual agreement, between the state and Hartness, nothing should

disrupt the benefit of the bargain. To view otherwise would undermine the very nature and

purpose of plea bargains.

       {¶20} Nonetheless, the state argues Mosley involved a plea agreement reached after the

enactment of Megan’s Law, while Hartness entered his plea prior to the enactment, and therefore,

the murder conviction should be treated as a sexually oriented offense. We are not persuaded.

       {¶21} Importantly, at the time of Hartness’s plea in 1995, the offense of murder did not

have a sexual motivation component. Under former R.C. 2903.02(A), in effect at the time of

Hartness’s plea, the offense of murder read as follows: “No person shall purposely, and with

prior calculation and design, cause the death of another or the unlawful termination of another’s

pregnancy.” Thus, under a plain reading of former R.C. 2903.02(A), Hartness could not have

been convicted of murder with a sexual gratification component.
       {¶22} Nevertheless, to further support its position, the state relies on our decision in State

v. Nagy, 8th Dist. Cuyahoga No. 90400, 2008-Ohio-4703. However, Nagy is distinguishable

from the instant case. In Nagy, the [defendant] pled guilty to aggravated murder in violation of

R.C. 2903.01. The indictment charged that between November 13 and 14, 1981, defendant

“unlawfully and purposefully caused the death of another, to-wit: [victim,] while committing or

attempting to commit, or while fleeing immediately after committing or attempting to commit

Kidnapping and/or Rape.” Nagy at ¶ 2.

       {¶23} In Nagy, the predicate offense(s) necessary for the aggravated murder conviction

were, without question, sexually oriented. Unlike, Hartness, who has always maintained he and

the victim were engaged in consensual sex, that the death was accidental, and negotiated out any

sexual assault allegations from the agreement. Therefore, we find Nagy distinguishable from the

instant case.

       {¶24} The state also seeks to rely on State v. McClellan, 10th Dist. Franklin

No. 01AP-1462, 2002-Ohio-5164, where a pre-Megan’s Law conviction for “straight murder”

was considered a sexually oriented offense. We also find McClellan distinguishable from the

instant case.

       {¶25} The McClellan court stated: “[w]hether or not the offense of murder is classified as

one which was ‘committed with a purpose to gratify the sexual needs or desires of the offender’

is a question of fact that lies with the unique facts and circumstances of each individual case.”

McClellan at ¶ 15, citing State v. Slade, 10th Dist. Franklin No. 98AP-1618, 1999 Ohio App.

LEXIS 6476 (Dec. 28, 1999).

       {¶26} Under the unique facts and circumstances of the instant case, it is important to note

once more that Hartness has always maintained that he and the victim were engaged in
consensual sex and that her death was accidental.          In addition, Hartness objected to and

contested the sexual classification hearing. As opposed to McClellan, where appellant’s counsel

neither objected to nor contested the sexual predator hearing or that appellant committed a

sexually oriented offense at any time prior to, during, or after the hearing. McClellan at ¶ 19.

Therefore, we find McClellan distinguishable from the instant case.

        {¶27} In the aforementioned mutual agreement reached between the parties, the state

bargained away the possibility of securing convictions on the aggravated murder and the rape

charge, as indicted, in exchange for Hartness pleading guilty to a “straight murder” charge. As

such, the state is bound by the plea agreement and is precluded from utilizing the very terms it

excised to justify having Hartness classified as a sexually oriented offender. Consequently,

under the unique facts and circumstances of the instant case, Hartness should not have been

subject to classification.

        {¶28} Accordingly, we sustain the first assignment of error.

        {¶29} Having found that the state breached the plea agreement and Hartness was not

subject to classification, we need not address the remaining assignments of error.

        {¶30} Judgment reversed.

        It is ordered that appellant recover of appellee 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 common pleas

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.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY WITH MAJORITY OPINION
AND WRITES SEPARATE CONCURRING IN JUDGMENT ONLY OPINION;

PATRICIA ANN BLACKMON, J., CONCURS WITH MAJORITY OPINION AND WRITES
SEPARATE CONCURRING OPINION


SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:

       {¶31} I respectfully concur in judgment only. Hartness’s conviction predated Megan’s

Law.   Under Megan’s Law, the state is not permitted to submit evidence to the trial court for the

purpose of demonstrating the sexual motivation component during the sexual predator hearing

that occurs under the applicable version of R.C. 2950.09(C)(1). Under that subdivision, the

department of rehabilitation and correction notifies the trial court of the impending release of an

offender who was convicted of a designated homicide, committed with a sexual motivation.

       {¶32} Under the applicable version of R.C. 2950.09(C)(2)(a), for offenders who

committed their crimes and were sentenced before 1997, the sexual offender registration arose by

operation of law. The only issue to be determined by the trial court upon the offender’s release

from a prison term was whether the offender was a sexual predator. R.C. 2950.09 (C)(1)(a),

effective 2006. There is no provision for the court to determine whether the offender is a

sexually oriented offender; that is a presumption derived from the fact of conviction to a sexually

oriented offense. State v. Burkey, 9th Dist. Summit No. 19741, 2000 Ohio App. LEXIS 2369, 4
(June 7, 2000).

       {¶33} On this point, State v. Nagy, 8th Dist. Cuyahoga No. 90400, 2008-Ohio-4703, must

be limited.     The panel relied on division (B) of that section to conclude that the state is entitled

to present evidence of a sexual motivation during the sexual predator hearing for the purposes of

determining whether the offender committed a sexually oriented offense.           According to Nagy,

which is heavily relied on by the state in this case, the pertinent version of R.C. 2950.09(B)(1)(a)

provided that

       [t]he judge who is to impose sentence on a person who is convicted of * * * a
       sexually oriented offense that is not a registration-exempt sexually oriented
       offense shall conduct a hearing to determine whether the offender is a sexual
       predator if any of the following circumstances apply:

       ***

       (ii) Regardless of when the sexually oriented offense was committed, the offender
       is to be sentenced on or after January 1, 1997, for a sexually oriented offense * *
       *, and either of the following applies: * * * the sexually oriented offense is a
       designated homicide, assault, or kidnapping offense and either a sexual motivation
       specification or a sexually violent predator specification, or both such
       specifications, were not included in the indictment, count in the indictment, or
       information charging the designated homicide, assault, or kidnapping offense.
       (Emphasis added.)

Id. at ¶ 35-37. Nagy applied the above statutory section to an offender sentenced before January

1, 1997, to the contrary of the express language of the statute. The only division of the applicable

version of R.C. 2950.09 that addressed sentences that were imposed before 1997 was division

(C), which only outlined the process to determine whether an offender is a sexual predator or

habitual sexual offender.

       {¶34} In this case, Hartness pleaded guilty to murder, with no furthermore clause or

accompanying sex offense — which might have satisfied the sexual motivation component. In

light of the fact that the department of rehabilitation and correction must determine whether the
offender was convicted of a sexually oriented offense from the conviction, the sexual motivation

element must be in the record of conviction; the state cannot supplement the record at the sexual

predator hearing for the purposes of determining whether R.C. 2950.09(C)(1) was properly

invoked.   From the face of the conviction, there is nothing indicating that Hartness was

convicted of a sexually oriented offense that implicated the version of R.C. 2950.09(C)(1) in

effect. The statutory scheme did not authorize the trial court to determine whether Hartness is a

sexually oriented offender, and for this reason, I concur in judgment only.



PATRICIA ANN BLACKMON, J., CONCURRING:

       {¶35} I concur with the majority opinion, and I write separately because I do not believe

that the state has proven by competent, credible evidence that Hartness’s conviction is a sexually

oriented offense.

       {¶36} This case is specific to its facts. Hartness was charged with murder and various

sex offenses. In his plea negotiations, as the majority opinion points out, the state dismissed the

sex offenses and allowed Hartness to plead guilty to murder.      He served his time.    The state

now wants him to report under Megan’s Law.

       {¶37} My question since reading this case is:     At what point in this crime did Hartness

become a rapist and a murderer?     The state may not have to answer that question, but it must

present competent and credible evidence that his murder conviction is a sexually oriented

offense.

       {¶38} If the state wanted Hartness to report as a sexual offender at the time of his crime,

and truly believed that this murder was sexually oriented, it could have accepted a plea that
reflected this. My understanding of the history of sexual offender registration is that Ohio has

had a reporting law for sex offenders since 1963.

       {¶39} The state relies on police reports that do not tell us whether the crime was a

sexually oriented offense. We have Hartness’s narrative of what happened, but we do not have

a crime scene narrative of whether this was a sexually oriented offense. To me, the state failed

in its burden.

       {¶40} I realize that Hartness strangled the victim.   That is proven.    He was charged

with her death and pled to murder. Where is the competent, credible evidence that this was a

sexually   oriented   offense?     Consequently,    I   concur   with   the   majority   opinion.
