[Cite as State v. Kouts, 2017-Ohio-2905.]




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


State of Ohio                                   Court of Appeals No. S-16-012

         Appellee                               Trial Court No. 15 CR 902

v.

Andrew J. Kouts                                 DECISION AND JUDGMENT

         Appellant                              Decided: May 19, 2017

                                            *****

         Loretta Riddle, for appellant.

                                            *****

         MAYLE, J.

         {¶ 1} Defendant-appellant, Andrew Kouts, appeals the April 4, 2016 judgment of

the Sandusky County Court of Common Pleas sentencing him to an aggregate sentence of

198 months in prison. For the reasons that follow, we reverse and remand to the trial

court.
                                     I. Background

       {¶ 2} On October 8, 2015, Kouts was indicted on two counts of rape in violation

of R.C. 2907.02(A)(1)(b) and five counts of pandering sexually oriented matter involving

a minor in violation of R.C. 2907.322(A)(1). On February 25, 2016, Kouts pleaded

guilty to the lesser offenses of two counts of gross sexual imposition in violation of R.C.

2907.05(B) and five counts of pandering sexually oriented matter involving a minor in

violation of R.C. 2907.322(A)(5). On April 4, 2016, the trial court sentenced him to 54

months in prison on each of the gross sexual imposition convictions and 18 months on

each of the pandering convictions, which the court ordered to run consecutively, giving

him an aggregate sentence of 198 months—or 16 years and six months—in prison.

       {¶ 3} Kouts appeals the trial court’s judgment, asserting two assignments of error:

              ASSIGNMENT OF ERROR NO. I

              APPELLANT’S GUILTY PLEA WAS NOT VOLUNTARY AND

       KNOWINGLY [sic] WHEN THE TRIAL COURT FAILED TO

       SUBSTANTIALLY COMPLY WITH CRIM.R. 11 BY FAILING TO

       INFORM APPELLANT OF ALL OF THE PUNITIVE CONSEQUENCES

       OF HIS PLEA.

              ASSIGNMENT OF ERROR NO. II

              APPELLANT RECEIVED CONSTITUTIONALLY

       INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL




2.
       COUNSEL DID NOT REQUEST A PSYCHOLOGICAL

       EXAMINATION.

                                  II. Law and Analysis

                            A. Knowing and Voluntary Plea

       {¶ 4} In his first assignment of error, Kouts contends that his plea was not made

knowingly and voluntarily because the trial court failed to inform him of all the

restrictions and requirements inherent in sex offender registration under R.C. Chapter

2950. We agree.

       {¶ 5} Before accepting a defendant’s guilty plea, the trial court must address the

defendant personally to inform him that pleading guilty waives his constitutional rights

and to determine that he understands the nature of the charges against him, the maximum

penalty he is facing, and the effects of his plea. State v. Montgomery, 148 Ohio St.3d

347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 41; Crim.R. 11(C)(2). The underlying purpose

of Crim.R. 11(C) is to ensure that the information a defendant needs to make a voluntary

and intelligent decision about pleading guilty is conveyed to him. State v. Ballard, 66

Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981).

       {¶ 6} The trial court must strictly comply with Crim.R. 11(C) when explaining the

defendant’s constitutional rights, or the plea is invalid under the presumption that it was

not knowingly and voluntarily entered. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-

3748, 893 N.E.2d 462, ¶ 31; State v. Rinehart, 6th Dist. Wood No. WD-11-030, 2013-

Ohio-3372, ¶ 17. The court need not use the exact language in the rule, but must explain




3.
the rights in a manner that is reasonably intelligible to the defendant. Rinehart at ¶ 17,

citing Ballard at paragraph two of the syllabus.

       {¶ 7} On the other hand, substantial compliance is adequate for nonconstitutional

rights, such as those affected by sex offender classification. Clark at ¶ 31; Rinehart at

¶ 18; and State v. Ragusa, 6th Dist. Lucas No. L-15-1244, 2016-Ohio-3373, ¶ 4, 5.

“Substantial compliance means that under the totality of the circumstances the defendant

subjectively understands the implications of his plea and the rights he is waiving.” State

v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

       {¶ 8} In cases of substantial compliance, the appellate court must determine if the

trial court partially complied or failed to comply with Crim.R. 11. Clark at ¶ 32. If it

partially complied, the appellant’s plea may be vacated only if he shows a prejudicial

effect—i.e. that he otherwise would not have entered the plea. Id.; Ragusa at ¶ 5. If the

trial court completely failed to comply with the rule, the plea must be vacated and the

appellant need not demonstrate prejudice. Clark at ¶ 32.

       {¶ 9} When a guilty plea results in a defendant being classified as a child victim

offender or sex offender under R.C. Chapter 2950, substantial compliance requires the

trial court to inform the defendant of 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. Ragusa at ¶ 10. If the trial court fails to inform the defendant of all three

penalties the plea is invalid. Id.




4.
       {¶ 10} In Ragusa, the trial court informed the appellant that she would be

“required to register as a sex offender, Tier III sex offender, which is going to require you

to register for the rest of your life in person every 90 days” and “to register as a Tier II

* * * child victim offender for a period of 25 years in person every 180 days.” Id. at ¶ 7.

We held that “[e]ach of the penalty notifications of R.C. Chapter 2950 must be viewed

independently. The court in this case informed appellant of one of the penalties, but not

all three. Therefore, we must find that there was a complete failure to comply with the

notification duties and the plea is invalid.” Id. at ¶ 10.

       {¶ 11} More recently, in State v. Mahler, 6th Dist. Ottawa No. OT-16-009, 2017-

Ohio-1222, we followed Ragusa and found that the trial court completely failed to

comply with Crim.R. 11(C) because it did not tell defendant that he would be a “Tier II

sex offender,” and did not inform the defendant of the community notification and

residential restrictions. Id. at ¶ 13. We found the plea invalid because

       the court did not inform appellant that he would be classified as a Tier II

       sex offender following his guilty plea. Moreover, the court did not explain

       the requirements pertaining to Tier II sex offender status, namely the fact

       that appellant would be required to register every 180 days for a period of

       25 years. Further, the court failed to recite the community notification

       requirements and residential restrictions that would apply to appellant as a

       Tier II sex offender. Id. at ¶ 11.




5.
       {¶ 12} In this case, the trial court and Kouts engaged in the following colloquy at

the plea hearing regarding his sex offender classification and registration duties:

              THE COURT: You will be classified and will be required to

       register, pursuant to Chapter 2950, as a sexual offender. * * * Do you

       understand that, sir?

              THE DEFENDANT: Yes, Your Honor.

              THE COURT: You will be a Tier III Offender. Tier III registration

       is for your lifetime with in person verification every 90 days. Your

       registration is not subject to community notification pursuant to O.R.C.

       2950.11(f)(2). Okay, that’s going to be a lifetime requirement. Do you

       understand?

              THE DEFENDANT: Yes, Your Honor.

       {¶ 13} Although the trial court informed Kouts of his registration requirements as

a Tier III sex offender and the community notification requirements, it did not inform

him of the residential restrictions outlined in R.C. 2950.034. Thus, consistent with our

holdings in Ragusa and Mahler, we find that the trial court completely failed to comply

with Crim.R. 11(C). We therefore find Kouts’s first assignment of error well-taken,

vacate Kouts’s plea, and remand this case to the trial court for further proceedings.

                          B. Ineffective Assistance of Counsel

       {¶ 14} Because we find Kouts’s plea invalid, his second assignment of error

alleging ineffective assistance of counsel is moot.




6.
                                     III. Conclusion

       {¶ 15} The April 4, 2016 judgment of the Sandusky County Court of Common

Pleas is reversed. The state is ordered to pay the costs of this appeal pursuant to App.R.

24.


                                                                        Judgment reversed.




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




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
James D. Jensen, P.J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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