[Cite as State v. Brunning, 2013-Ohio-365.]



                            [Vacated opinion. Please see 2013-Ohio-930.]

                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95376




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                          LINDELL W. BRUNNING, JR.
                                                      DEFENDANT-APPELLANT




                                  JUDGMENT:
                               AFFIRMED IN PART,
                          REVERSED IN PART, REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-532822 and CR-532770
      BEFORE: S. Gallagher, J., Kilbane, P.J., and E.A. Gallagher, J.

      RELEASED AND JOURNALIZED: February 7, 2013




ATTORNEY FOR APPELLANT

Richard A. Neff
614 W. Superior Avenue
The Rockefeller Building
Suite 1300
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: T. Allan Regas
       Daniel T. Van
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

       {¶1} This cause is before us on remand from the Ohio Supreme Court for further

review of our decision released April 21, 2011,1 in view of the Court’s recent decision in

State v. Brunning, Slip Opinion No. 2012-Ohio-5752. The Ohio Supreme Court, having

partially reversed our judgment in this case, has remanded it to us with instructions to

consider issues that were previously rendered moot, which included appellant’s first

assignment of error and challenges to the sentence imposed on him in Cuyahoga C.P. No.

CR-532770. For the reasons that follow, we sustain appellant’s first assignment of

error, find the issue raised regarding his sentence in that case still moot, and reverse and

remand CR-532770 to the trial court for further proceedings on Counts 2 and 3.

       {¶2} In his first assignment of error, appellant alleged:

       (a) The defendant-appellant’s guilty plea was not knowingly and voluntarily
       entered into since it was conditioned on false promises made by the state
       and the trial court.

       (b) The trial court erred when it failed to merge the offenses in case
       10-CR-532770 for sentencing.

       {¶3} In Cuyahoga C.P. No. CR-532770, appellant was charged with three

offenses: (1) failure to verify address (R.C. 2950.06); (2) failure to provide notice of


       1
           State v. Brunning, 8th Dist. No. 95376, 2011-Ohio-1936.
change of address (R.C. 2905.05(E)(1));2 and (3) tampering with records (R.C. 2913.42).



       {¶4} The indictment charged appellant with violations under the version of the law

known as the Adam Walsh Act (“AWA”). It is undisputed that appellant is an offender

who is not subject to reclassification under the AWA, and the vacation of appellant’s

conviction for a violation of R.C. 2950.06, as alleged in Count 1 of the indictment, has

been affirmed. Brunning, 2012-Ohio-5752, ¶ 15. However, the Ohio Supreme Court

has determined that appellant can still face charges for a violation of R.C. 2913.42 and he

may also face charges for violating R.C. 2950.05 by reverting back to the version of that

statutory provision that existed pre-AWA and “the applicable penalty provision for such

convictions is that contained in former R.C. 2950.99, as held in * * * State v. Howard,

___ Ohio St.3d ___, 2012-Ohio-5738, ___ N.E.2d ___.”3 Brunning at ¶ 31.               Therefore,

although appellant was indicted and pled guilty to a second-degree felony under Count 2,

this offense is actually a third-degree felony under the version of the law that is applicable

to him. See former R.C. 2950.99(A)(1)(a)(i).




       2
            “The statute was misnumbered in the indictment — it should have read
R.C. 2905.05(F)(1).” State v. Brunning, Slip Opinion No. 2012-Ohio-5752, ¶ 5.
       3
            “[F]or a defendant whose sex-offender classification was determined under Megan’s Law,
the penalty for a violation of the reporting requirements of former R.C. 2950.05 that occurs after
Megan’s Law was supplanted by the AWA is the penalty set forth in the version of R.C. 2950.99 in
place just before the effective date of the AWA.”
      {¶5} At the plea hearing, the state indicated that appellant would plead guilty to all

three offenses.   Additionally, the state further represented that “[f]or purposes of this

plea agreement, the state will agree that all of those counts would merge for sentencing

purposes.” During the plea colloquy, the trial court advised appellant as follows:

      THE COURT: Now, the prosecutor put on the record, and the state and
      the defense lawyer agreed, that these three counts will all merge for
      purposes of sentencing, okay?

      DEFENDANT: Yes.

      THE COURT: Do you understand that?

      THE DEFENDANT: Yes.

      THE COURT: So the maximum penalty you’re looking at on this case is
      between two to eight years; do you understand that?

      THE DEFENDANT: Yes.

(Emphasis added.)

      {¶6} At appellant’s sentencing hearing, defense counsel indicated that “there is no

question that [all three counts] are allied offenses of similar import.”         The state

responded:

      Your Honor, the State would dispute that. And, furthermore, there was no
      — I guess there was no agreement between the parties at the time that they
      would merge, and the State would dispute that they are allied offenses and *
      * * I would dispute that they would have to run concurrent.

The court imposed maximum, consecutive sentences and ordered appellant to serve an

aggregate sentence of 21 years in prison in this case.   Appellant moved to withdraw his

guilty plea based on the representations that were made to him prior to entering the guilty
pleas.    The state’s attorneys averred that, to their recollection, no promises of any type of

sentence had been made to induce appellant’s guilty pleas.

         {¶7} Crim.R. 11(C)(2) requires that the defendant enter a plea voluntarily “with

understanding of the nature of the charges and of the maximum penalty involved * * *.”

It is clear from this record that appellant was told he faced a maximum penalty of eight

years in this case. He pled guilty with that understanding. At the later sentencing

hearing, the trial court imposed a 21-year prison term.          Under these circumstances,

appellant’s plea was not knowing, intelligent, or voluntary and must be vacated.

         {¶8} This assignment of error is sustained.         Count 1 remains vacated and

dismissed. Appellant’s sentence and guilty pleas to Counts 2 and 3 in CR-532770 are

vacated, and this matter is remanded to the trial court for further proceedings on Counts 2

and 3.     Appellant’s assignment of error pertaining to the 21-year prison sentence he

received in CR-532770 is moot. Assignment of error No. 1 is sustained.

         {¶9} Judgment affirmed in part and reversed in part, and cause remanded.

         It is ordered that appellant and appellee share 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.
SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
