State v. Veite , 2021 Ohio 290 ( 2021 )

[Cite as State v. Veite, 2021-Ohio-290.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190339
TRIAL NO. 19CRB-9258
Plaintiff-Appellant/ :
Cross-Appellee,
: O P I N I O N.
vs.
:
JONATHAN VEITE,
:
Defendant-Appellee/
Cross-Appellant.
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Pleas Vacated and Cause Remanded
Date of Judgment Entry on Appeal: February 3, 2021
Andew W. Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Jon Vogt, Assistant Prosecuting Attorney, for Plaintiff-
Appellant/Cross-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellee/Cross-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Following Jonathan Veite’s guilty pleas to voyeurism and public
indecency, the Hamilton County Municipal Court imposed jail sentences on each
charge but did not include a sex-offender classification in its sentencing entries or
inform him of his duties to register. Two days later, the court denied the state’s
motion to classify Veite a Tier I sex offender as to each of the charges. We granted
the state’s motion for leave to appeal Veite’s sentence for voyeurism, and Veite filed a
cross-appeal.
The State’s Appeal.
{¶2} In a single assignment of error, the state argues that the trial court
erred when it failed to impose Tier I sex-offender classification and registration
requirements where Veite pleaded guilty to voyeurism, an offense that automatically
rendered him a Tier I sex offender.
{¶3} Veite was convicted of voyeurism in violation of R.C. 2907.08. R.C.
2950.01(E)(1)(a) defines a “Tier I sex offender” as “[a] sex offender who is convicted
of, pleads guilty to, has been convicted of, or has pleaded guilty to * * * [a] violation
of section * * * 2907.08 * * * of the Revised Code.” The tier classification is based
solely on the sex offense committed and is automatic. State v. Lewis, 2018-Ohio-
1380, 110 N.E.3d 919, ¶ 8 (1st Dist.), citing State v. Williams, 129 Ohio St.3d 344,
2011-Ohio-3374, 952 N.E.2d 1108, ¶ 20.
{¶4} A judgment convicting the defendant of an offense that subjects the
defendant to the registration and notification requirements of Ohio’s version of the
Adam Walsh Act (“AWA”) must accurately reflect the defendant’s tier classification.
State v. Rucker, 1st Dist. Hamilton No. C-110082, 2012-Ohio-185, ¶ 31 and 48. In
State v. Hildebrand, 1st Dist. Hamilton No. C-150046, 2018-Ohio-2962, ¶ 6, we
stated:
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OHIO FIRST DISTRICT COURT OF APPEALS
The registration and verification requirements of the AWA are
punitive. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952
N.E.2d 1108, ¶ 16. They are part of the penalty imposed for the
offense. State v. Thomas, 2016-Ohio-501, 56 N.E.3d 432, ¶ 7 (1st
Dist.); State v. Lawson, 1st Dist. Hamilton Nos. C-120067 and C-
120077, 2012-Ohio-5281, ¶ 21; State v. Jackson, 1st Dist. Hamilton No.
C-100645, 2012-Ohio-3348, ¶ 6. “[A] sentence is a sanction or
combination of sanctions imposed for an individual offense, and
incarceration and postrelease control are types of sanctions that may
be imposed and combined to form a sentence.” State v. Holdcroft, 137
Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 6. Tier classification
under the AWA is a type of sanction that may be imposed for an
offense. See Williams.
{¶5} Veite’s tier classification is part of the sentence for his voyeurism
offense, and therefore, it must be included in the entry of conviction and sentence.
See State v. Merritt, 1st Dist. Hamilton No. C-170649, 2018-Ohio-4995, ¶ 3; State v.
Arzman, 1st Dist. Hamilton No. C-170595, 2018-Ohio-4132, ¶ 7. Because it was not,
the trial court’s judgment must be set aside.
{¶6} Veite argues, however, that we should not remand this matter for
resentencing, asserting that the trial court lost its jurisdiction to classify him as a sex
offender because he served the imposed period of incarceration for the voyeurism
offense. He contends that he had a legitimate expectation of finality in his sentence
and that resentencing him to impose the sanction of the tier classification is
prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution. He asserts that once the entirety of the period of incarceration
has been served, “the defendant’s expectation of finality becomes paramount, and his
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OHIO FIRST DISTRICT COURT OF APPEALS
sentence for that crime may no longer be modified,” citing State v. Holdcroft, 137
Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 18.
{¶7} However, Veite’s argument ignores the “repeated statements in
Holdcroft that on a direct appeal of a criminal conviction, any aspect of a defendant’s
sentence may be challenged and any part of that sentence that has been successfully
challenged may be corrected.” State v. Christian, 159 Ohio St.3d 510, 2020-Ohio-
828, 152 N.E.3d 216, ¶ 16.1 As the Supreme Court explained in Christian:
The United States Supreme Court has made it clear that a defendant
“has no expectation of finality in his sentence until the appeal is
concluded or the time to appeal has expired.” United States v.
DiFrancesco, 449 U.S. 117, 136, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).
In applying DiFrancesco, this court has stated that “when the
legislature has provided the government with a statutory right of
appeal, ‘[t]he defendant * * * is charged with knowledge of the statute
and its appeal provisions, and has no expectation of finality in his
sentence until the appeal is concluded or the time to appeal has
expired.’ ” (Brackets and ellipsis sic.) State v. Roberts, 119 Ohio St.3d
294, 2008-Ohio-3835, 893 N.E.2d 818, ¶ 16, quoting DiFrancesco at
136, 101 S.Ct. 426.
Id. at ¶ 17. Therefore, because Veite’s sentence is subject to correction on appeal, he
had no expectation of finality in the sentence. Id. at ¶ 18. “[J]eopardy does not
attach to a sentence that has been invalidated and, therefore, a trial court’s
imposition of a new sentence does not violate double jeopardy.” Id. at ¶ 21. This is
true even where the state did not seek and the trial court did not impose a stay of the
1 We note that Holdcroft was abrogated on other grounds by State v. Hudson, Slip Opinion No.
2020-Ohio-3849 (failure to include notice of the consequences of violating postrelease control
renders the sentence voidable).
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OHIO FIRST DISTRICT COURT OF APPEALS
execution of the sentence. See State v. Roberts, 119 Ohio St.3d 294, 2008-Ohio-
3835, 893 N.E.2d 818, ¶ 29. The state’s timely appeal of Veite’s sentence placed him
on notice that his sentence was subject to being overturned. Id. Consequently, Veite
had no expectation of finality in the sentence, and resentencing on remand would not
violate double jeopardy. Id.{¶8} Consequently, we hold that the trial court erred by failing to impose
the statutorily mandated tier classification as part of Veite’s sentence for his
voyeurism offense. Therefore, we sustain the state’s assignment of error.
Veite’s Cross-Appeal
{¶9} In a single assignment of error, Veite argues that the trial court erred
by accepting his guilty pleas because they were not knowingly, intelligently, and
voluntarily entered. Veite contends that his pleas must be vacated because the trial
court failed to inform him (1) of the effect of his guilty pleas and (2) that he would be
classified and required to register as a Tier I sex offender.
{¶10} The state does not address Veite’s argument about the trial court’s
failure to inform him of the effect of his guilty pleas. The state addresses only the
second part of Veite’s argument concerning the trial court’s failure to inform him of
the classification and registration requirements for the voyeurism offense. The state
asserts that this argument is not ripe for review because Veite’s tier classification was
not included in the judgment of conviction and sentence. However, we do not reach
the state’s argument on this point because we hold that the trial court erred by failing
to inform Veite of the effect of his guilty pleas.
{¶11} Before accepting a plea to a misdemeanor involving a petty offense,
Crim.R. 11(E) requires that a trial court inform the defendant only of the effect of the
specific plea being entered. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877
N.E.2d 677, paragraph one of the syllabus. To satisfy the requirement of informing
the defendant of the effect of the plea, the court must inform the defendant of the
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OHIO FIRST DISTRICT COURT OF APPEALS
appropriate language under Crim.R. 11(B). Id. at paragraph two of the syllabus.
Crim.R. 11(B)(1) states that a guilty plea is “a complete admission of the defendant’s
guilt.” Therefore, before accepting a guilty plea to a misdemeanor for a petty offense,
the court must inform the defendant that a plea of guilty is a complete admission of
guilt. Id. at ¶ 25.
{¶12} A petty offense is defined as “a misdemeanor other than a serious
offense.” Crim.R. 2(D). A serious offense includes “any misdemeanor for which the
penalty prescribed by law included confinement for more than six months.” Crim.R.
2(C). In this case, Veite entered guilty pleas to voyeurism as a third-degree
misdemeanor and public indecency as a fourth-degree misdemeanor. Because the
prescribed penalties for the misdemeanor offenses were maximum jail terms of 60
days and 30 days, respectively, under R.C. 2929.24(A)(3) and (4), both were petty
offenses. See Crim.R. 2(C) and (D). Before accepting Veite’s guilty pleas, therefore,
the trial court was required to inform him that a plea of guilty is a complete
admission of guilt. See Jones at ¶ 25.
{¶13} The trial court engaged in the following plea colloquy with Veite:
THE COURT: All right. Mr. Veite, do you understand that on the B
charge, which is the public indecency, the maximum possible penalty
is 30 days in jail and/or a $250 fine? Yes?
THE DEFENDANT: Yeah.
THE COURT: And on the C charge (voyeurism), the maximum penalty
is 90 days in jail and/or a $700 - - No. I’m sorry. 60 days in jail, M3,
and a $500 fine. Do you understand?
THE DEFENDANT: Yes.
THE COURT: All right. Do you have any questions before I accept
your plea?
THE DEFENDANT: No.
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OHIO FIRST DISTRICT COURT OF APPEALS
THE COURT: No? I’ll accept the pleas of guilty. Facts.
{¶14} After the prosecutor’s statement of facts, the court asked defense
counsel, “Anything on those facts?” When counsel said no, the court stated, “The
finding is guilty.”
{¶15} Before the trial court accepted Veite’s guilty pleas, the court did not
inform him that a guilty plea is a complete admission of guilt, as set forth in Crim.R.
11(B). Therefore, the court failed to satisfy Crim.R. 11(E)’s requirement that it inform
Veite of the effect of his guilty pleas. See id.
{¶16} The right to be informed that a guilty plea is a complete admission of
guilt is a nonconstitutional right and subject to review for substantial compliance.
State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. When a
trial court does not substantially comply with Crim.R. 11 in regard to a
nonconstitutional right, we must determine whether the trial court partially
complied or failed to comply with the rule. State v. Clark, 119 Ohio St.3d 239, 2008-
Ohio-3748, 893 N.E.2d 462, ¶ 32. If the trial court partially complied, the plea may
be vacated only if the defendant demonstrates a prejudicial effect. Id. However, if
the trial court completely failed to comply with the rule, the plea must be vacated.
Id., citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224,
paragraph two of the syllabus. “A complete failure to comply with the rule does not
implicate an analysis of prejudice.” Id., quoting Sarkozy at ¶ 22.
{¶17} In this case, the trial court’s failure to inform Veite of the appropriate
language in Crim.R. 11(B)(1) regarding the effect of Veite’s guilty pleas was a
complete failure to comply with the requirements of Crim.R. 11(E). See Cleveland v.
Jones-McFarlane, 8th Dist. Cuyahoga No. 108581, 2020-Ohio-3662, ¶ 24. Where
there is a complete failure to comply with the rule, a prejudice analysis is not
necessary and the guilty pleas must be vacated. Id. at ¶ 25, citing Clark at ¶ 32; State
v. Moschell, 7th Dist. Mahoning No. 19 MA 0129, 2020-Ohio-6818, ¶ 15 and 18; State
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OHIO FIRST DISTRICT COURT OF APPEALS
v. Milano, 2018-Ohio-1367, 110 N.E.3d 781, ¶ 16 (9th Dist.). Therefore, Veite’s
assignment of error is sustained.
Conclusion
{¶18} Because the trial court failed to include the Tier I classification in
Veite’s sentence, the state’s assignment of error is sustained. However, because we
have determined that Veite’s pleas were entered involuntarily under Crim.R. 11(E),
his assignment of error is sustained. Therefore, Veite’s pleas are hereby vacated and
the cause is remanded to the trial court for further proceedings.
Judgment accordingly.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry this date.
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