State v. Perdue , 2022 Ohio 722 ( 2022 )

[Cite as State v. Perdue, 2022-Ohio-722.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-6
:
v. : Trial Court Case No. 2020-CR-21
:
CHRISTOPHER RAY PERDUE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 11th day of March, 2022.
...........
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio
45429
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Defendant-appellant Christopher Ray Perdue appeals from his conviction,
following a plea of guilty, for aggravated arson, burglary, and disrupting a public service.
Perdue claims the trial court erred in accepting his guilty plea after failing to advise him
during the plea hearing of the requirement to register as an arson offender. For the
reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} On January 11, 2020, Perdue trespassed into an unoccupied residence and
started a fire therein. The fire destroyed the entire structure and eventually spread to an
adjacent, occupied residence, causing significant damage to this structure. Thereafter,
Perdue broke a window and entered a different residence. However, he left after
encountering the homeowner. He then used a saw to cut through a power line to yet
another residence.
{¶ 3} On January 21, 2020, Perdue was indicted on three counts of burglary, three
counts of aggravated arson, one count of disrupting public services, and one count of
possessing criminal tools. Following plea negotiations, Perdue agreed to enter guilty
pleas to one count of aggravated arson, one count of burglary, and one count of disrupting
public services. In exchange, the State agreed to dismiss the remaining counts. There
was no agreement as to the length of each sentence, but the State agreed the sentences
would be served concurrently.
{¶ 4} A plea hearing was conducted on September 22, 2020. On that date,
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Perdue signed a plea form and an arson registration notification form.1 The trial court
did not mention the arson registration notification form during the plea hearing. However,
the court otherwise conducted a proper Crim.R. 11(C) plea colloquy with Perdue and
thereafter accepted his plea of guilty.2
{¶ 5} A sentencing hearing was conducted on October 15, 2020. Prior to
sentencing, the following colloquy took place:
THE COURT: What was not placed on the record at the time of the plea -
- at least I don’t recall it being placed on the record - - is the fact that the
defendant completed a form that is a notice of duty to register as an arson
offender which indicated to him that he would be required to register in
person with the sheriff of the county in which he establishes residency within
ten days of coming into that county or if occupying a dwelling for more than
three days of coming into the county
He is required to provide the sheriff certain information including
Social Security number; full name and any alias; his residence address;
information regarding the offense for which he was convicted or pled guilty;
a description of any scars, tattoos, or other distinguishing marks on his
person; the name and address of any places where he is employed or
attends school; any driver’s license number, commercial driver’s license
number, or state identification card number issued to him; the license plate
1
The arson registration notification form was not filed of record until October 19, 2019.
2
As noted below, Perdue does not challenge the trial court’s plea colloquy regarding
anything other than the failure to mention the arson registration requirements.
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number of any vehicle or each vehicle owned or operated by the defendant
or registered in his name. The vehicle identification number and
description of the vehicle must also be provided to the sheriff.
He will [be] required to provide the sheriff fingerprints and palm
prints. The sheriff will also obtain a photograph at the time of registration.
The Defendant will be required to remit the registration fee of $50 to the
sheriff, unless the fee is waived; and after the date of the initial registration,
he will be required to register annually. He must update or amend any of
the information described in this form that has changed and provide any
additional information requested at the county sheriff’s office within ten days
of the anniversary of the calendar date on which he initially registered.
He’s required to pay a registration fee of $25 to the sheriff.
If he changes his residence address, he shall provide written notice
of that change to the sheriff with whom he most recently registered and to
the sheriff of the county in which he intends to reside.
For the record now, Mr. Perdue, do you remember going over this
form and signing it?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understood the requirements of registration?
THE DEFENDANT: Yes, Your Honor, I do.
Sentencing Tr. p. 4-6.
{¶ 6} The trial court then imposed a minimum prison term of eight years and
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maximum term of 12 years for the aggravated arson conviction; a prison term of 24
months for the burglary conviction; and a 12-month sentence for the disrupting public
services conviction.3 As agreed by the parties, the court ordered the sentences to be
served concurrently.
{¶ 7} Perdue appeals.
II. Guilty Plea
{¶ 8} Perdue assigns the following as his sole assignment of error:
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
BY ACCEPTING A GUILTY PLEA WHICH WAS NOT KNOWING,
INTELLIGENT, AND VOLUNTARY IN VIOLATION OF APPELLANT’S DUE
PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATE [SIC] CONSITUTION [SIC] AND
ARTICLE I, SECTION 18, OF THE OHIO CONSTITUTION.
{¶ 9} Perdue asserts that his guilty plea was not knowingly, intelligently, and
voluntarily made because the trial court failed to advise him that by pleading guilty to the
arson count he became subject to the arson offender registration requirements of R.C.
2909.13, 2909.14, and 2909.15.
{¶ 10} Due process requires that a defendant’s guilty plea be knowing, intelligent,
and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969);
see also State v. Inskeep, 2d Dist. Champaign No. 2016-CA-2, 2016-Ohio-7098, ¶ 12.
3
The record demonstrates that Perdue had a significant criminal history and had not
responded favorably to prior sanctions.
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A trial court’s compliance with Crim.R. 11(C) ensures that a plea comports with due
process. State v. McElroy, 2d Dist. Montgomery No. 28974, 2021-Ohio-4026, ¶ 14;
State v. Russell, 2d Dist. Clark No. 10-CA-54, 2011-Ohio-1738, ¶ 6.
{¶ 11} Crim.R. 11(C)(2)(c) requires the trial court to inform the defendant of the
constitutional rights he is waiving by entering a plea. These rights are the right to a jury
trial, the right to confront witnesses, the right to compulsory process, the right against self-
incrimination, and the right to require the State to establish guilt beyond a reasonable
doubt. Since constitutional rights are involved, strict compliance with this portion of the
rule is required. State v. Jones, 2d Dist. Greene No. 2019-CA-811, 2020-Ohio-4667,
¶ 10, citing State v. Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211, ¶ 5. A
failure of strict compliance requires a finding that the plea is not consistent with due
process; prejudice, under this circumstance, is presumed, and the plea must be
invalidated. Id., citing State v. Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d
617, ¶ 16, State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31-
32.
{¶ 12} Crim.R. 11(C)(2)(a) requires the trial court to determine that the plea is
being made voluntarily, that the defendant understands the nature of the charge, the
maximum penalty involved, and, if applicable, that the defendant is not eligible to be
sentenced to a term of community control sanctions. Crim.R. 11(C)(2)(b) requires the
trial court to determine that the defendant understands the effect of the plea and that the
trial court, upon acceptance of the plea, may proceed to sentencing. Since Crim.R.
11(C)(2)(a) and (b) do not implicate constitutional rights, a trial court’s partial compliance
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with these portions of the rule, as opposed to strict compliance, does not necessarily
require that the plea be vacated. Instead, the defendant must establish that the failure
of strict compliance has caused prejudice. State v. Dangler, 162 Ohio St.3d 1, 2020-
Ohio-2765, 164 N.E.3d 286, ¶ 16. In this context, prejudice is measured by whether the
defendant would have entered the plea if there had been full compliance with, as
applicable, Crim.R. 11(C)(2)(a) or (b). Id. at ¶ 23. But, a trial court’s complete failure to
comply with either Crim.R. 11(C)(2)(a) or (b) eliminates the defendant’s burden to
establish prejudice.4 Id. at ¶ 15.
{¶ 13} Perdue argues that the arson registration requirements are punitive and
thus are part of the maximum penalty for an arson offense. Based on this view, Perdue
argues that the trial court completely failed to address the arson registration requirements
at the plea hearing, that this complete failure eliminated his burden to establish prejudice,
and that, as such, his plea must be vacated. We disagree.
{¶ 14} An arson offender must register annually, in person, with the sheriff of the
county in which he resides. R.C. 2909.15. This is a lifetime requirement unless
modified by the trial court. R.C. 2909.15(D)(2). Registration is mandatory for all arson
offenders; an arson offender is any person convicted of arson or aggravated arson, or
4
As noted, Perdue signed an arson registration notification form on the date of the
sentencing hearing. But the record is not clear if the form was signed before, during, or
after the plea hearing. If signed before or at the plea hearing, and assuming that the
registration requirements are part of the maximum penalty, it would seem that this
constituted at least partial compliance with the trial court’s obligation to inform Perdue of
the maximum penalty. And, based upon what occurred at the sentencing hearing, Perdue
could not demonstrate prejudice. Of course, given our conclusion that the registration
requirements are not part of the maximum sentence, this issue does not require
resolution.
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any person convicted of an attempt, conspiracy, or complicity in committing these crimes.
R.C. 2909.14(A), R.C. 2909.13(B)(1), and R.C. 2909.13(A). A failure to register is a fifth-
degree felony. R.C. 2909.15(H).
{¶ 15} Whether a consequence of a guilty plea is part of a defendant’s maximum
sentence turns on whether the consequence is part of the defendant’s punishment or,
instead, is a remedial, collateral consequence of the plea. The appellate districts that
have considered the issue have concluded that the arson registration requirements are a
remedial, collateral consequence and that a trial court’s failure at the plea hearing to
advise a defendant of the arson registration requirements does not violate Crim.R.
11(C)(a) or affect the knowing, intelligent, and voluntary nature of a defendant’s plea.
State v. Rogers, 8th Dist. Cuyahoga Nos. 105335, 105518, 2017-Ohio-9161, ¶ 25; State
v. Magby, 7th Dist. Mahoning No. 17MA6, 2019-Ohio-877, ¶ 33.
{¶ 16} In State v. Caldwell, 2014-Ohio-3566, 18 N.E.3d 467 (1st Dist.), the First
District Court of Appeals concluded that the retroactive application of the arson
registration requirements did not violate the retroactivity clause of the Ohio Constitution,
Article II, Section 28. This is germane to the present discussion because a remedial
statute – as opposed to substantive one –may be applied retroactively without violating
the Ohio Constitution. Caldwell concluded that the registration requirements are
remedial. Id. at ¶ 21, ¶ 35.
{¶ 17} In reaching this conclusion, Caldwell discussed and distinguished State v.
Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, which determined that
the changes to Ohio’s sex offender registration scheme made by S.B. 10 (the Adam
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Walsh Act) were, in the aggregate, punitive, and thus the retroactive application of S.B.
10 violated the Retroactivity Clause of the Ohio Constitution. Id. at ¶ 21-22. Caldwell
first noted the similarities between the arson registration and sex offender registration
requirements as follows:
* * * Both the sex-offender and arson-offender registration schemes
have been placed within R.C. Title 29 - Ohio's criminal code. The failure
to register under either scheme subjects offenders to criminal prosecution.
Arson offenders are automatically subject to registration requirements upon
conviction for any arson-related offense, “without regard to the
circumstances of the crime or [their] likelihood to reoffend.” They are not
entitled to a hearing prior to classification, nor is there any opportunity for
the court to review the appropriateness of the classification. Further, arson
offenders are automatically subject to a lifetime reporting requirement—with
a limited exception that permits the trial court to reduce their reporting
requirement to no less than ten years, upon the request of the prosecutor
and investigating officer.
(Citations omitted.) Caldwell at ¶ 33. But then the opinion outlined the differences
between the two schemes as follows:
Sex offenders must register in potentially three different counties—those in
which they reside, work, and attend school—and some must register as
frequently as 90 days. In contrast, arson offenders need only register
annually in the county in which they reside. [There is a] stigma that follows
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from an offender's placement on the public sex-offender registry.
Conversely, the arson-offender registry is visible only to certain law-
enforcement personnel. The sex-offender statutes impose stringent
restrictions on where the offender is permitted to reside, whereas arson
offenders are not subject to any residential restrictions. And while arson-
registry violations may subject the offender to later prosecution, we think it
notable that the failure to register is a low-level felony that carries a
presumption of probation. R.C. 2909.15(H). This is markedly different
from the failure of a sex offender to register, which constitutes a felony of
the same degree as that of the underlying conviction. See R.C. 2950.99.
(Citations omitted.) Id. at ¶ 34.
{¶ 18} As noted, Caldwell concluded that the arson registration requirements are
remedial and thus subject to retroactive application. Id. at ¶ 35. The other appellate
districts that have considered the issue have all concluded that the arson registration
scheme is remedial and, as a result, does not violate the Retroactivity Clause of the Ohio
Constitution. State v. Jones, 6th Dist. Lucas No. L-16-1014, 2017-Ohio-413, ¶ 25; State
v. Reed, 2014-Ohio-5463, 25 N.E.3d 480, ¶ 85 (11th Dist.); State v. Galloway, 2015-Ohio-
4949, 50 N.E.3d 1001, ¶ 36 (5th Dist.).
{¶ 19} Consistent with the State v. Caldwell analysis and the conclusion reached
by our sister appellate districts, we conclude that the arson registration requirements are
remedial, and thus they were not part of Perdue’s maximum sentence. Therefore, the
trial court was not required to inform Perdue of the arson registration requirements at the
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plea hearing, though the better practice would be to have the discussion. Perdue’s sole
assignment of error is overruled.
Conclusion
{¶ 20} The trial court’s judgment is affirmed.
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WELBAUM, J. and LEWIS, J., concur.
Copies sent to:
Ian A. Richardson
Charles M. Blue
Hon. Richard J. O’Neill