[Cite as State v. Cruz, 2019-Ohio-5239.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                          No. 108198, 108199, and 108731
                 v.                              :

JOSE A. CRUZ,                                    :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 19, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-15-597092-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Daniel Van, Assistant Prosecuting Attorney,
                 for appellee.

                 Jonathan N. Garver, for appellant.


MARY EILEEN KILBANE, A.J.:

                   In this consolidated appeal, defendant-appellant, Jose A. Cruz

(“Cruz”), challenges the validity of his guilty plea and the trial court’s denial of his
pro se, postsentence motions to withdraw his guilty plea and terminate his sex

offender status.1 For the reasons set forth below, we affirm.

               In July 2015, Cruz was charged in a six-count indictment. Counts 1-

3 charged him with rape. Counts 4 and 5 charged him with gross sexual imposition.

Count 6 charged him with kidnapping and carried a sexual motivation specification.

The indictment listed the victim as Jane Doe (D.O.B. 4/13/01). In February 2016,

Cruz entered into a plea agreement with the state. Cruz pled guilty to amended

counts of sexual battery (Counts 1 and 3) and an amended count of abduction with

the sexual motivation specification (Count 6). The remaining counts were nolled.

               The trial court conducted its sentencing hearing in March 2016. The

trial court sentenced Cruz to three years in prison on each count, to be served

concurrently, for a total of three years in prison. The court classified Cruz as a Tier

III sex offender and informed Cruz of his registration obligations.

               In October 2016, Cruz filed a motion for judicial release, which the

state opposed. The trial court denied the motion in November 2016. Two years

later, in December 2018, Cruz filed two pro se motions — a motion to withdraw his

guilty plea and vacate his conviction and a motion to terminate and/or modify his

sex offender classification status. In his motion to withdraw his guilty plea, Cruz

argued that defense counsel had promised him judicial release after serving six



      1  Case No. 108198 involves the denial of Cruz’s postsentence motion to withdraw
his guilty plea. Case No. 108199 involves the trial court’s denial of Cruz’s motion to
terminate and/or modify his sex offender classification. Case No. 108731 is a delayed
appeal from Cruz’s guilty plea.
months in prison. In his motion to terminate his sex offender classification, Cruz

argued that the Tier III reporting requirements are excessive punishment in

violation of both the U.S. and Ohio Constitutions. The state opposed both motions.

The trial court denied both motions in January 2019.

              Cruz now appeals, raising the following four assignments of error for

review:

                            Assignment of Error No. 1

      [Cruz’s] guilty plea must be vacated because the trial court erred in
      failing to adequately inform [Cruz], prior to accepting his guilty pleas,
      that he had a constitutional right to a trial by jury.

                            Assignment of Error No. 2

      [Cruz’s] guilty plea must be vacated because the trial court erred by
      failing to ascertain, prior to accepting his guilty plea, that he
      understood the constitutional rights recited by the trial court and that
      he further understood that by entering guilty pleas he was waiving
      those constitutional rights.

                            Assignment of Error No. 3

      The trial court erred in denying [Cruz’s postsentencing] motion to
      withdraw guilty plea and vacate conviction.

                            Assignment of Error No. 4

      The trial court erred in denying [Cruz’s posttrial] motion to terminate
      and/or modify his Tier III sex offender/child offender classification
      status because [R.C.] 295o.1(G)(1)(A) violates the ban on cruel and
      unusual punishment contained in the Eighth Amendment of the
      Constitution of the United States.

                                    Guilty Plea

              In the first and second assignments of error, Cruz challenges his guilty

plea. Cruz argues that his plea must be vacated because the trial court did not
adequately inform him of his constitutional right to a jury trial. Cruz also argues

that his guilty plea must be vacated because the trial court failed to ascertain, prior

to accepting his guilty plea, that he understood his constitutional rights and that he

waived those constitutional rights by entering a guilty plea.

               Crim.R. 11(C) sets forth the procedure the trial court must follow

before accepting defendant’s guilty plea. “When a defendant enters a plea in a

criminal case, the plea must be made knowingly, intelligently, and voluntarily.”

State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

               We review the trial court’s compliance with the requirements of

Crim.R. 11(C) de novo. State v. Roberts, 8th Dist. Cuyahoga No. 89453, 2010-Ohio-

3302, ¶ 19, citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

               Crim.R. 11(C)(2)(c) provides in relevant part:

      In felony cases the court may refuse to accept a plea of guilty * * * and
      shall not accept a plea of guilty * * * without first addressing the
      defendant personally and doing all of the following: * * * [i]nforming
      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 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.

               Strict compliance by the trial court is required for the waiver of the

constitutional rights (right to a jury trial) set forth under Crim.R. 11(C)(2)(c). State

v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18, citing State v.

Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981). In explaining strict compliance,

the Ohio Supreme Court has held that “the preferred procedure is for the trial court
to use the language in Crim.R. 11(C), * * * [but the] ‘failure to [literally comply] will

not necessarily invalidate a plea. The underlying purpose, from the defendant’s

perspective, of Crim.R. 11(C) is to convey to the defendant certain information so

that he can make a voluntary and intelligent decision whether to plead guilty.’” Id.

at ¶ 18, quoting Ballard at 479-480.

               Cruz argues that the trial court failed to adequately inform him of his

constitutional right to a jury trial.      We note that while the advisement on

constitutional rights necessitates strict compliance, “[a] rote recitation of the rule is

not required.” Ballard. Indeed, the failure to use the exact language of the rule will

not be fatal to the plea as long as the record demonstrates that the trial court

explained the rights set forth in Crim.R. 11(C) in a manner reasonably intelligible to

that defendant. Id. at paragraph two of the syllabus, citing State v. Caudill, 48 Ohio

St.2d 342, 358 N.E.2d 601 (1976). In reaching this conclusion, the Supreme Court

reasoned that “[t]o hold otherwise would be to elevate formalistic litany of

constitutional rights over the substance of the dialogue between the trial court and

the accused. This is something we are unwilling to do.” Id.

               A review of the record in the instant case reveals that the trial court

did advise Cruz of his constitutional right to a jury trial. During the plea colloquy,

Cruz provided his name, his age (62 years old), the fact that he had an associate’s

degree, that he was not under the influence of any drugs or alcohol, and that he

understood the proceedings. Other than the plea offer, Cruz agreed that no threats

or promises had been made. Cruz indicated that he was satisfied with counsel. The
trial court then informed Cruz of his constitutional rights. The court advised, in

relevant part:

       By entering into a plea, you’re waiving, you’re giving up, [your]
       constitutional rights. First of all, you have the right to trial.

       ***

              And, [Cruz], in your case, the case would be heard by [the
       assigned judge] or alone or by a jury of 12 people. At trial, with the
       assistance of your attorneys, you would be able to confront and cross-
       examine any witnesses brought against you. You’d be able to subpoena
       witnesses. You could require people to appear in court and testify for
       you. You could testify.

(Tr. 10.)

                 Based on the foregoing, we find that the trial court explained to Cruz

the right to a jury trial in a reasonably intelligible manner, and in strict compliance

with Crim.R. 11(C)(2)(c). The court advised Cruz that he had the constitutional right

to trial, which could be heard before the judge alone or a jury of 12 people. Given

Cruz’s age and level of education, it is reasonable to believe he understood that he

was waiving the rights associated with a jury trial, and he was also waiving his right

to a jury trial. State v. Truitt, 10th Dist. Franklin No. 10AP-795, 2011-Ohio-2271, ¶

14.

                 Cruz also argues that his guilty plea must be vacated because the trial

court did not ensure he understood that, by pleading guilty, he was waiving the

constitutional rights set forth in Crim.R. 11(C)(2). More specifically, Cruz contends

the trial court did not ask him after each constitutional right whether he understood

the right and whether he knew that he was waiving the right, nor did the trial court,
referring collectively to all of the constitutional rights, ask him whether he

understood his constitutional rights and whether he knew that, by entering a guilty

plea, he was waiving his constitutional rights. In support of his argument, Cruz

relies on two decisions from this court — State v. Miller, 8th Dist. Cuyahoga No.

105363, 2018-Ohio-843, discretionary appeal allowed, 153 Ohio St.3d 1502, 2018-

Ohio-4288, 109 N.E.3d 1259, and State v. Smith, 8th Dist. Cuyahoga No. 107956,

2019-Ohio-3769.2 We find these cases distinguishable.

               In Miller and in Smith, the trial courts did not explicitly describe a

waiver of constitutional rights. Rather, the courts explained the constitutional rights

in terms of the rights the defendant maintained upon going to trial instead of

notifying the defendant that he was waiving those rights.

               At the plea hearing in Miller, the trial court “informed Miller of his

constitutional rights, but never expressly stated that by pleading guilty, Miller was

waiving those rights. Miller nevertheless pleaded guilty according to the terms of

the plea agreement, and the court sentenced him to an aggregate eight-year prison

term.” Id. at ¶ 3. In Smith, which relied on Miller, the trial court ensured that Smith

understood all of his constitutional rights, but it never expressly stated, or inquired

as to whether Smith understood, that by pleading guilty, he was waiving his




      2 We recognize that at the time of this appeal, Miller is pending before the Ohio
Supreme Court with oral argument scheduled for December 11, 2019. However, because
Miller is distinguishable, we are reviewing this case instead of staying with the
proceedings pending the release of the Ohio Supreme Court’s decision.
constitutional rights. Smith at ¶ 11. During the plea colloquy in Smith, the trial court

explained the constitutional rights to Smith as follows:

       [THE COURT]: Even though your lawyer may have discussed your trial
       rights, it is my duty to explain them to you in open court.

       First, you would have a right to a trial by a jury or by a judge without a
       jury, whichever you prefer.

       You would have the right to be represented by a lawyer. If you could
       not afford one, the Court will appoint one to represent you at no cost.

       At trial, the prosecutor would have to produce its witnesses in open
       court, and you and your attorney would have the right to cross-examine
       those witnesses.

       You could issue subpoenas to compel witnesses to come into court to
       testify on your own behalf. You could testify if you wish, but you cannot
       be compelled to testify against yourself, and the prosecutor could not
       comment on your failure to testify.

       You would be presumed innocent until the prosecutor proved your guilt
       by evidence beyond a reasonable doubt.

       Do you understand those rights?

       [SMITH]: Yes, sir.

       ***

       [THE COURT]: Having said all that, how do you plead to Count 1 as
       amended, attempted rape, felony of the second degree; Count 2 as
       amended, child endangering, felony of the third degree?

       [SMITH]: Guilty, sir.

       [THE COURT]: Let the record reflect [Smith] has pled guilty. The
       Court accepts that plea, finds it was made knowingly, intelligently, and
       voluntarily.

Id at ¶ 10.
              Relying on Miller, the Smith court could not conclude the use of the

words “would have” and “could have” demonstrate that the trial court explained the

rights in a manner reasonably intelligible to Smith. Smith, 8th Dist. Cuyahoga No.

107956, 2019-Ohio-3769, ¶ 11. As a result, the Smith court found that the trial

court’s failure to strictly comply with the requirements of Crim.R. 11(C)(2)(c), with

respect to the waiver of Smith’s constitutional rights, rendered his guilty plea

invalid. Id., citing Miller, 8th Dist. Cuyahoga No. 105363, 2018-Ohio-843; State v.

Lozada, 8th Dist. Cuyahoga No. 107827, 2019-Ohio-3040.

              Whereas in the instant case, the court explicitly advised Cruz that a

guilty plea would waive Cruz’s constitutional rights. The court stated:

      Gentlemen, I’m sure that both of your attorneys have talked to you
      about your constitutional rights. I want to talk about those again. By
      entering into the plea, you’re waiving, you’re giving up, those
      constitutional rights. First of all, you have the right to trial.

      ***

      And, [Cruz] in your case, the case would be heard by [the assigned
      judge] or alone or by a jury of 12 people. At trial, with the assistance of
      your attorneys, you would be able to confront and cross-examine any
      witnesses brought against you. You’d be able to subpoena witnesses.
      You could require people to appear in court and testify for you. You
      could testify.

      You could also choose not to testify. And if you chose not to testify, no
      one could comment on that or use that against you in any way. The
      burden of proof is on the state. The state is required to prove all the
      elements of the crimes they’ve alleged against you, and they must do
      that to the highest standard of proof used in court, beyond a reasonable
      doubt.

      ***

      Is counsel comfortable that I’ve complied with Rule 11?
      ***

      [DEFENSE COUNSEL]: Yes, your Honor.

      ***

      Let the record reflect the court is satisfied that these gentlemen have
      been informed of their constitutional rights, that they understand the
      nature of the charges, the effect of a plea and the maximum penalties
      which could be imposed. The court further finds that each of their pleas
      will be made knowingly, intelligently and voluntarily.

(Tr. 9-10, 13-14.)

               While the Ohio Supreme Court in Ballard has recommended that “the

best method of informing a defendant of his constitutional rights is to use the

language contained in Crim.R. 11(C), stopping after each right and asking the

defendant whether he understands the right and knows that he is waiving it by

pleading guilty,” Id., 66 Ohio St.2d at 480, 423 N.E.2d 115, “the failure to do so will

not necessarily invalidate a plea.” State v. Donaldson, 8th Dist. Cuyahoga No.

106812, 2018-Ohio-4872, ¶ 10, citing State v. Holt, 9th Dist. Summit No. 21835,

2004-Ohio-3252, ¶ 11, citing Ballard.

      The purpose of Crim.R. 11(C) “is to convey to the defendant certain
      information so that he can make a voluntary and intelligent decision
      whether to plead guilty.” [Holt at ¶ 11], citing Ballard. Providing an
      explanation of the rights that will be forgone upon pleading guilty
      satisfies the general purpose of Crim.R. 11(C).

      The Ohio Supreme Court rejected the proposition of law requiring
      courts to abide by the model change of plea hearing as discussed in
      Ballard, and so, too, must we.

Donaldson at ¶ 10-11.
              Here, unlike Miller and Smith, the trial court explicitly explained to

Cruz that by pleading guilty he would be waiving certain constitutional rights. As to

Cruz’s contention that the trial court explained the constitutional rights without

stopping and asking him if he subjectively understood each right, we note that his

“contention is based on an exemplary plea colloquy, not that which is required.”

Donaldson at ¶ 11.

              Therefore, the first and second assignments of error are overruled.

                  Postsentence Motion to Withdraw Guilty Plea

              In the third assignment of error, Cruz argues that his pro se,

postsentence motion to withdraw his guilty plea should have been granted because

defense counsel was ineffective.

              The withdrawal of a guilty plea is governed by Crim.R. 32.1, which

provides in relevant part: “[a] motion to withdraw a plea of guilty * * * may be made

only before sentence is imposed; but to correct manifest injustice the court after

sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea.”

              A Crim.R. 32.1 postsentence motion to withdraw a guilty plea is

subject to a manifest injustice standard. State v. Xie, 62 Ohio St.3d 521, 526, 584

N.E.2d 715 (1992). A “manifest injustice” has been defined as a “clear or openly

unjust act,” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d

83 (1998), citing Webster’s Third New International Dictionary 1164, 1375 (1986),
that is viewed as a ‘“an extraordinary and fundamental flaw in the plea proceeding.’”

State v. Hamilton, 8th Dist. Cuyahoga No. 90141, 2008-Ohio-455,

¶ 8, quoting State v. Lintner, 7th Dist. Carroll No. 732, 2001 Ohio App. Lexis 4267

(Sept. 21, 2001), and citing State v. Wheeler, 2nd Dist. Montgomery No. 18717,

2002-Ohio-284.      “Ineffective assistance of counsel can constitute a manifest

injustice constituting a withdrawal of a guilty plea.” State v. Montgomery, 8th Dist.

Cuyahoga No. 103398, 2016-Ohio-2943, ¶ 4, citing State v. Ayesta, 8th Dist.

Cuyahoga No. 101383, 2015-Ohio-1695, ¶ 8, citing State v. Dalton, 153 Ohio App.3d

286, 2003-Ohio-3813, 793 N.E.2d 509, ¶ 18 (10th Dist.).

               The defendant seeking withdrawal of the plea bears the burden of

establishing the existence of a “manifest injustice.” State v. Smith, 49 Ohio St.2d

261, 361 N.E.2d 1324 (1977), paragraph one of syllabus. A determination of whether

that burden is satisfied is within the sound discretion of the trial court, and will not

be reversed by an appellate court absent an abuse of that discretion.          State v.

Steinke, 8th Dist. Cuyahoga No. 100345, 2014-Ohio-2059, ¶ 19, citing State v.

Caver, 8th Dist. Cuyahoga Nos. 90945 and 90946, 2008-Ohio-6155, citing Smith.

“‘The term “abuse of discretion” * * * implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.’” (Citations omitted.) Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams,

62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

               In the instant case, Cruz filed for judicial release seven months after

the imposition of his sentence. The trial court denied his motion one month later.
More than two years later, in December 2018, and with approximately three months

remaining on his sentence, Cruz sought to withdraw his guilty plea. Cruz attached

two affidavits in support of his motion. In these affidavits, Cruz expressed his actual

innocence and that defense counsel told him he would get judicial release after six

months in prison if he accepted the plea offer. He alleged that defense counsel

coerced him into pleading guilty and that counsel failed to perform requested duties.

               A review of the record, however, refutes Cruz’s allegations. The state

explained the plea offer as follows:

      It’s my understanding that the defendant will be withdrawing his
      previously-entered plea of not guilty and entering a plea of guilty to 3
      charges. The first would be count 1, an amended count to sexual
      battery.

      ***

      The state would also ask to amend Count 3 to the same charge, sexual
      battery, again 2907.03 (A)(1), again a felony of the 3rd degree, high tier.
      And, lastly, count 6, judge, would be amended at this time to an
      abduction, in violation of 2905.02 (B). That would be a felony of the
      3rd degree and it would be low tier.

      Judge, it’s my understanding that counts 1 and 3 would require Tier III
      sex offender registration. In light of this plea, judge, the state would
      make a motion to nolle all remaining counts[.]

(Tr. 7-8.)

               Furthermore, when the trial court asked Cruz whether he was

threatened or promised anything to induce his change of plea, other than the plea

offer, Cruz responded, “[n]o.” Additionally, Cruz did not express any concern with

defense counsel’s performance during the colloquy. The record demonstrates that

Cruz was pleased with defense counsel’s performance at the time of the plea. He
stated to the court he was “very satisfied” with defense counsel. Cruz waited until

he had approximately three months left in his sentence to express his concern with

defense counsel.

              Accordingly, Cruz did not demonstrate that a manifest injustice

occurred, and the trial court did not abuse its discretion in denying his postsentence

motion to withdraw his plea.

              Therefore, the third assignment of error is overruled.

                   Motion to Terminate Sex Offender Classification

              In the fourth assignment of error, Cruz argues the onerous

registration requirements for Tier III sex offenders violated the constitutional ban

against cruel and unusual punishment.

              We summarily reject Cruz’s argument that the requirements

accompanying his Tier III sex offender classification violate the U.S and Ohio

Constitutions’ prohibition against cruel and unusual punishment.            We have

previously addressed this argument and found that the registration requirements do

not constitute cruel and unusual punishment. In State v. Bias, 8th Dist. Cuyahoga

No. 93053, 2010-Ohio-1977, we stated:

      The Ohio Supreme Court has previously addressed the
      constitutionality of sexual offender classification and registration laws
      under House Bill 180, Megan’s Law, and subsequent amendments.
      Beginning with State v. Cook, 83 Ohio St. 3d 404, 1998-Ohio-291, 700
      N.E.2d 570, through State v. Ferguson, 120 Ohio St. 3d 7, 2008 Ohio
      4824, 896 N.E.2d 110, the Court has not only upheld sex offender
      registration laws, but supported their retroactive application. The
      United States Supreme Court has also found that these laws serve an
      important governmental interest and do not violate constitutional
       rights. Smith v. Doe (2003), 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d
       164. Appellant argues that the changes to R.C. 2950 that took effect
       with the passage of the AWA [Adam Walsh Act] changed the nature of
       the law from civil and remedial to punitive. That argument has been
       addressed by this court and rejected. See Gildersleeve v. State,
       Cuyahoga App. Nos. 91515, 91519, 91521, 91532, 2009-Ohio-2031,
       ¶ 26-33. Appellant claims that the AWA requirements constitute
       multiple punishments for one offense. The U.S. Supreme Court as well
       as the Ohio Supreme Court have found sex offender registration laws
       to be civil, remedial measures, not punitive. Smith, supra, at 105-106,
       123 S.Ct. 1140; Ferguson, supra, at ¶ 32-33. Therefore, double jeopardy
       is not implicated in this case.

       Appellant also argues that the registration and reporting requirements
       constitute cruel and unusual punishment. Again, this court found that
       the AWA does not impose punishment, but is a civil, remedial measure
       enacted to protect the public. Gildersleeve at ¶ 26-33. See, also,
       Spangler v. State, Lake App. No. 2008-L-062, 2009 Ohio 3178, ¶ 64-
       67; State v. Acoff, Cuyahoga App. No. 92342, 2009 Ohio 6633, ¶ 24
       (finding that “the prospective application of the AWA does not violate
       due process, double jeopardy, or constitute cruel and unusual
       punishment”).

Id. at ¶ 6-7.

                Accordingly, the fourth assignment of error is overruled.

                Judgment is affirmed.

       It is ordered that appellee recover from appellant 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
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
