State v. Forsythe , 2019 Ohio 3117 ( 2019 )

[Cite as State v. Forsythe, 2019-Ohio-3117.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-2
:
v. : Trial Court Case No. 2018-CR-549
:
JOHN FORSYTHE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 2nd day of August, 2019.
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JANNA L. PARKER, Atty. Reg. No. 0075261, Safety Building, 201 West Main Street,
Prosecutor’s Office, Troy, Ohio 45373
Attorney for Plaintiff-Appellee
BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
Attorney for Defendant-Appellant
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DONOVAN, J.
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{¶ 1} John Forsythe appeals from the trial court’s December 3, 2018 judgment
entry of conviction, following his plea of guilty to one count of compelling prostitution, in
violation of R.C. 2907.21(A)(2)(b). On May 30, 2019, the State filed a notice of conceded
error, in which it acknowledged that Forsythe was not advised of the maximum possible
penalties, “specifically the sex offender tier and the requirements of registration,” prior to
entering his guilty plea, and that the trial court erred at sentencing when it designated
Forsythe a Tier III sex offender rather than a Tier II sex offender. We hereby reverse the
judgment of the trial court, vacate Forsythe’s plea, and remand the matter for further
proceedings.
{¶ 2} Forsythe was originally charged by way of complaint in the Miami County
Municipal Court. He waived his right to a preliminary hearing, and in lieu of grand jury
action, he was charged by way of a bill of information, having waived prosecution by
indictment. Forsythe entered his guilty plea on October 24, 2018. At Forsythe’s plea
hearing, defense counsel advised the court that in exchange for Forsythe’s waiving a
preliminary hearing and grand jury consideration and entering a guilty plea, the State
agreed not to bring additional charges. When the court asked Forsythe if he had
previously been convicted of a felony, Forsythe stated that he had been convicted in 2012
of gross sexual imposition. After Forsythe entered his plea, the court stated as follows:
Let the record reflect that the Court finds that Defendant, John M.
Forsythe, is making a knowing, intelligent and voluntary decision to tender
a plea of guilt[y] to the sole count in the Bill of Information, which is a Felony
3 Compelling Prostitution. The Court will further find that the Defendant,
Mr. Forsythe, has been informed of his constitutional rights; that he
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understands the nature of the charge, the effect of his guilty plea as well as
the possible penalties that this Court can impose. Therefore the Court will
accept the Defendant’s guilty plea, find him guilty to the Felony 3
Compelling Prostitution. Now Mr. Forsythe because you’re pleading to a
sexually oriented offense, the Court must go over some general
notifications. Because you’re pleading guilty to a sexually oriented
offense, you – you’ll be required to register as a sexual offender. * * *
{¶ 3} After confirming that Forsythe understood and having him sign a “Notification
to Defendant Regarding Sexually Oriented/Child Victim Offenses,” the court conducted a
sex offender registration classification hearing and advised Forsythe about the
registration requirements, including that he could not reside within 1000 feet of any school
premises. The court indicated, “You will be required to fulfill these requirements for a
period of time. As a result of the nature of the offense that you’ve just pl[ed] guilty to,
you will be designated, by operation of law, as a Tier II Sex Offender. At the time of
sentencing, I will advise you of specific requirements and duties you must comply with as
a Tier II Sex Offender.”
{¶ 4} At sentencing, a different judge presided. The following exchange occurred:
JUDGE: * * * [B]efore we proceed to sentencing, I need, I spoke to
counsel about this, at the hearing on which Mr. Forsythe entered [a] guilty
plea to this charge, this third degree felony compelling prostitution charge,
he was told, I believe, that this offense would require him to register as a
Tier II sex offender, and while I wasn’t there I did see some notes from the
court reporter that indicated that’s what he was told. In looking at the
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statute, because this offense, which is normally a Tier II registration offense,
because this occurred while the Defendant had a duty to register as a Tier
II offender because of his prior conviction, then that makes this offense
what’s called a Tier III registration offense, and because it’s a Tier III
registration offense he would be required to register for the remainder of his
life, and he has to do that by going to the local sheriff’s office every 90 days
for the rest of his life, so that is the principle difference between a Tier II and
a Tier III. A Tier II only would be required to register for 25 years with in-
person verification every 180 days or twice a year. Do you understand
what I’ve just said?
MR. FORSYTHE: Yes, your honor.
THE COURT: Because that was part of your plea, that you were
told it was a Tier II sex offense, I want to ask you whether you still wish to
stand on your guilty plea knowing that this is actually a Tier III offense and
the registration requirements are more, there’s more required; do you
understand that?
MR. FORSYTHE: Yes, your honor.
JUDGE: Do you want to go ahead and stand on your guilty plea.
MR. FORSYTHE: Yes, your honor.
{¶ 5} The court sentenced Forsythe to 18 months in prison.
{¶ 6} Forsythe raises two assignments of error on appeal. Forsythe’s first
assignment of error is as follows:
THE TRIAL COURT ERRED WHEN [IT] ACCEPTED FORSYTHE’S
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GUILTY PLEA WITHOUT NOTIFYING FORSYTHE OF THE POSSIBLE
MAXIMUM PENALTIES INVOLVED WITH HIS PLEA.
{¶ 7} Crim.R. 11(C)(2)(a) provides, in part:
(2) In felony cases the court may refuse to accept a plea of guilty or
a plea of no contest, and shall not accept a plea of guilty or no contest
without first addressing the defendant personally and doing all of the
following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty
involved, and if applicable, that the defendant is not eligible for probation or
for the imposition of community control sanctions at the sentencing hearing.
{¶ 8} As this Court has noted:
In State v. Williams, 129 Ohio St. 3d 324, 2011-Ohio-3374, 952
N.E.2d 1108, ¶ 16, the Ohio Supreme Court held that the Adam Walsh Act
version of R.C. Chapter 2950 is punitive, not remedial. As a result, * * *
Crim.R. 11 obligates a trial court to advise a defendant who is being
sentenced under the Adam Walsh Act at least of the basic registration
requirement before accepting his plea. * * *
State v. Hawkins, 2d Dist. Greene No. 2012-CA-49, 2013-Ohio-2572, ¶ 9.
{¶ 9} The State so concedes. The State further concedes that the trial court failed
to inform Forsythe before his guilty plea that the conviction would require him to register
as a sex offender. Therefore, his guilty plea was not knowing, intelligent, and voluntary.
We agree with Forsythe and the State, and Forsythe’s first assignment of error is
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accordingly sustained.
{¶ 10} Forsythe’s second assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT DESIGNATED FORSYTHE
A TIER III SEX OFFENDER.
{¶ 11} The State concedes as follows:
Assuming arguendo that the Appellant had been properly advised of
the sex offender registration requirements prior to entering his guilty plea,
the sentencing court improperly designated the Appellant a Tier III sex
offender. As indicated in Appellant’s brief, the record provided from Darke
County Common Pleas Court reflects that the Appellant was previously
designated a Tier I sex offender. As such, whether by virtue of the
conviction for Compelling Prostitution or by virtue of the Defendant
committing a subsequent sex offense after having been previously
designated a Tier I sex offender, he should have been designated a Tier II
sex offender. R.C. §2950.01(F)(1)(a) & (j).
{¶ 12} Attached to Forsythe’s brief is his judgment entry of conviction in Darke
County C.P. No. 2011-CR-176. It provides that Forsythe pled guilty to one count of
unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A), a felony of the fourth
degree, and that he was “classified as a ‘Tier I’ sex offender.” Forsythe’s PSI also
provided that he was convicted of one count of unlawful sexual conduct with a minor in
Darke County C.P. No. 2011-CR-176. The PSI further provided that Forsythe “was in a
relationship with the victim who was 15 years of age, that resulted in them having a sexual
relationship, when the Defendant was 22 years of age.”
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{¶ 13} As noted above, Forsythe advised the court at his plea hearing that he had
been previously convicted of gross sexual imposition, which is proscribed by R.C.
2907.05. The docket on the court’s website indicates that he was originally charged in
the Darke County case with four counts of unlawful sexual conduct with a minor, that
three of the charges were dismissed, and that he pled guilty to one amended charge of
gross sexual imposition. (Docket accessed June 17, 2019).
{¶ 14} R.C. 2950.01provides:
(F) “Tier II sex offender/child-victim offender” means any of the
following:
(1) A sex offender who is convicted of, pleads guilty to, has been
convicted of, or has pleaded guilty to any of the following sexually oriented
offenses:
(a) A violation of section 2907.21 * * *;
(b) A violation of section 2907.04 of the Revised Code when the
offender is at least four years older than the other person with whom the
offender engaged in sexual conduct * * *;
***
(j) Any sexually oriented offense that is committed after the sex
offender previously has been convicted of, pleaded guilty to, or has been
adjudicated a delinquent child for committing any sexually oriented offense
or child-victim oriented offense for which the offender was classified a tier I
sex offender/child-victim offender * * *.
{¶ 15} Given the inconsistencies between Forsythe’s statement at his plea
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hearing, the court’s on-line docket, the judgment entry of conviction from Darke County,
and the trial court’s remarks regarding Forsythe’s prior conviction, we cannot determine
whether, upon a conviction for compelling prostitution, he would be properly classified as
a Tier III sex offender. However, because we reverse his conviction and vacate his plea,
we need not address this issue at this time. We simply note the lack of clarity in the
record. On remand, should Forsythe again be found guilty after entering a plea or going
to trial, the trial court will be required to consider Forsythe’s proper sex offender
classification.
{¶ 16} Having sustained Forsythe’s first assignment of error, the judgment of the
trial court is reversed, Forsythe’s plea is vacated, and the matter is remanded for further
proceedings.
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HALL, J. and TUCKER, J., concur.
Copies sent to:
Janna L. Parker
Ben M. Swift
Hon. Stacy M. Wall