State v. Beard , 2021 Ohio 2512 ( 2021 )

[Cite as State v. Beard, 2021-Ohio-2512.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109630
v. :
DEMETRIUS BEARD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: July 22, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-637588-C
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Caroline Nelson, Assistant Prosecuting
Attorney, for appellee.
Paul W. Flowers Co., L.P.A., and Louis E. Grube, for
appellant.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, Demetrius Beard (“Beard”), appeals his sentence
and claims the following errors:
1. The trial court committed plain error by failing to merge all of
defendant’s convictions at sentencing.
2. The trial court committed plain error by imposing a violent offender
database registration requirement, which is an unconstitutionally
retroactive penalty.
3. The trial court committed plain error by failing to provide the notices
mandated by R.C. 2903.42(A)(1).
4. Defendant’s counsel was constitutionally ineffective by failing to
argue that his conviction for kidnapping should have merged into his
other conviction.
5. Defendant’s counsel was constitutionally ineffective by failing to
object to the violent offender database registration requirement.
We find some merit to the appeal, affirm the trial court’s judgment in
part, reverse it in part, and remand the case to the trial court to advise Beard of the
presumption of enrollment in the violent offender database (“VOD”) under R.C.
2903.42(A)(1) and of his right to rebut that presumption.
I. Facts and Procedural History
In Cuyahoga C.P. No. CR-19-637588-C, Beard was charged with one
count of aggravated robbery in violation of R.C. 2911.01(A)(1), one count of
aggravated burglary in violation of R.C. 2911.11(A)(2), one count of kidnapping in
violation of R.C. 2905.01(A)(2), one count of receiving stolen property in violation
of R.C. 2913.51(A), one count of having weapons while under disability in violation
of R.C. 2923.12(A)(2), and one count of petty theft, in violation of R.C.
2913.02(A)(1). The aggravated robbery, aggravated burglary, and kidnapping
charges included one- and three-year firearm and forfeiture specifications.
The indictment alleged that Beard, together with codefendants Garland
V. Taylor, Anthony Hicks-Stevens, and Corraune D. Paige, entered a convenience
store on Noble Road in East Cleveland and committed, or attempted to commit, a
theft offense. All the defendants were wearing masks and carrying firearms.
Count 3 of the indictment further alleged that the defendants removed or restrained
the liberty of the victim/storekeeper for the purpose of committing the aggravated
robbery and aggravated burglary in the store.
Beard pleaded guilty to one count of robbery, one count of burglary, and
one count of kidnapping. The one-year firearm specification attendant to the
aggravated robbery charge was deleted from the robbery charge in Count 1, and the
one- and three-year firearm specifications were deleted from the burglary charge in
Count 2. The kidnapping charge alleged in Count 3 was amended to include a
notation that the victim was released to a safe place unharmed. The parties agreed
that amended Counts 1 and 2 were allied offenses that should be merged for
sentencing, but there was no agreement as to whether the kidnapping charge
merged with the other two offenses. (Tr. 30.) Beard also agreed to forfeit certain
property, including weapons. (Tr. 10, 22-23.) The remaining counts were nolled.
Prior to sentencing, while Beard was out on bond, Beard’s trial counsel
filed a motion to withdraw, which was granted. Beard was later stopped in his
vehicle and arrested pursuant to a capias that was issued after he failed to appear
for sentencing in Cuyahoga C.P. No. CR-19-637588-C. Following a search of his
vehicle, Beard was charged with two new counts of having weapons while under
disability and one count of improper handling of a firearm in a motor vehicle in
Cuyahoga C.P. No. CR-19-644312-A. At a hearing on both of Beard’s criminal cases,
the court notified Beard that because of “the nature of the offense” in C.P. No. CR-
19-637588-C, he will have to register as a violent offender after his release from
prison. (Tr. 41.) Thereafter, Beard pleaded guilty to one count of having weapons
while under disability and one count of improper handling of a firearm in a motor
vehicle as alleged in Counts 1 and 3 of the indictment in C.P. No. CR-19-644312-A.
In C.P. No. CR-19-637588-C, the trial court sentenced Beard to four
years on the amended robbery charge alleged in Count 1, plus three years on the
attendant gun specification for a total of seven years on Count 1. The court
sentenced Beard to four years on the burglary charge alleged in Count 2, and four
years on the kidnapping charge alleged in Count 3, to be served concurrently with
each other and with the prison term on Count 1, for an aggregate seven-year prison
term.
In C.P. No. CR-19-644312-A the court sentenced Beard to one year in
prison on his having weapons while under disability conviction and one year in
prison on the improper handling of a firearm in a motor vehicle conviction to be
served concurrently with each other and with the aggregate sentence imposed in
C.P. No. CR-19-637588-C. This appeal followed.
II. Law and Analysis
A. Allied Offenses
In the first assignment of error, Beard argues the trial court committed
plain error by failing to merge his robbery, burglary, and kidnapping convictions in
C.P. No. CR-19-637588-C.
Beard’s trial counsel failed to object to the trial court’s failure to merge
these offenses and, therefore, forfeited all but plain error. State v. Rogers, 143 Ohio
St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21 (“An accused’s failure to raise the
issue of allied offenses of similar import in the trial court forfeits all but plain
error[.]”). In the fourth assignment of error, Beard argues his trial counsel was
constitutionally ineffective because he failed to argue that Beard’s kidnapping
conviction should merge with his other convictions. We discuss Beard’s first and
fourth assignments of error together because they are closely related.
Under Crim.R. 52(B), “plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
In a plain-error analysis, the appellant bears the burden on demonstrating that, but
for the error, the outcome of the proceeding would clearly have been different. State
v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 17.
To establish ineffective assistance of counsel, the defendant must
demonstrate that counsel’s performance fell below an objective standard of
reasonable representation and that he or she was prejudiced by that deficient
performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
The state and Beard agreed as part of their plea agreement that Beard’s
burglary and robbery convictions were allied offenses that would merge at
sentencing. (Tr. 30.) After accepting Beard’s guilty pleas, the court asked on the
record: “Counsel have agreed that Counts 1 and 2 will merge for sentencing
purposes, correct, [Defense Counsel]?” Counsel replied, “Yes, ma’am.” (Tr. 30.)
The trial court never indicated an intent to deviate from the parties’ agreement or
warned Beard that it was not bound to follow the terms of the parties’ plea
agreement before accepting his guilty pleas. Yet, the court failed to merge these
convictions. The state now asserts the offenses are not allied and that, in any case,
Beard was not prejudiced by the failure to merge the convictions because the court
ordered them to be served concurrently.
However, in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1,
922 N.E.2d 923, the Ohio Supreme Court explained that “even when the sentences
are to be served concurrently, a defendant is prejudiced by having more convictions
than are authorized by law.” Id. at ¶ 31. Moreover, the Underwood court found
plain error where the parties agreed to the merger of offenses, and the court
separately sentenced the defendant to concurrent prison terms for each conviction.
Id. at ¶ 31-32. Therefore, the trial court erred in failing to merge the robbery and
burglary convictions in Counts 1 and 2.
The parties’ plea agreement is silent as to whether Beard’s kidnapping
convictions should have merged with his burglary and robbery convictions. “When
the plea agreement is silent on the issue of allied offenses of similar import * * *, the
trial court is obligated under R.C. 2941.25 to determine whether the offenses are
allied, and if they are, to convict the defendant of only one offense.” Id. at ¶ 29. We
must, therefore, determine whether Beard’s kidnapping conviction is allied with his
other convictions.
R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution and Article I, Section 10, of
the Ohio Constitution, prohibiting multiple punishments for the same offense.
Under R.C. 2941.25(A), when the same conduct by the defendant “can be construed
to constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be
convicted of only one.” Nevertheless, under R.C. 2941.25(B),
[w]here the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate
animus as to each, the indictment or information may contain counts
for all such offenses, and the defendant may be convicted of all of them.
Beard argues his burglary, robbery, and kidnapping convictions
should have merged for sentencing because they were committed as part of the same
conduct with the same animus.
In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
the Ohio Supreme Court explained that an allied offenses analysis is not limited to
consideration of the defendant’s conduct. The Ruff Court held that while an allied
offenses analysis begins with an examination of the defendant’s conduct, courts
must also consider whether (1) the offenses are dissimilar in import or significance,
(2) the offenses were committed separately, or (3) the offenses were committed with
a separate animus or motivation. Id. at paragraph three of the syllabus, citing R.C.
2941.25(B). Two or more offenses are of dissimilar import within the meaning of
R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and
identifiable.” Id. at paragraph two of the syllabus.
Kidnapping and aggravated robbery may be allied offenses depending
on the circumstances. State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905
N.E.2d 154. Indeed, “[a] brief restraint of the victim is present in every aggravated
robbery.” State v. Jackson, 1st Dist. Hamilton No. C-180341, 2019-Ohio-2027, ¶ 10,
citing State v. Morris, 1st Dist. Hamilton No. C-150421, 2016-Ohio-5490, ¶ 17.
The test for determining whether kidnapping and robbery should
merge is “whether the restraint or movement of the victim is merely incidental to a
separate underlying crime or, instead, whether it has a significance independent of
the other offense.” State v. Logan, 60 Ohio St.2d 126, 135, 397 N.E.2d 1345 (1979);
see also State v. Lundy, 8th Dist. Cuyahoga No. 105117, 2017-Ohio-9155, ¶ 21-34.
Where the restraint of the victim is prolonged, the confinement of the victim
secretive, or the movement of the victim is substantial, there exists a separate
animus for each offense. Id. at syllabus. A separate animus also exists where “the
asportation or restraint of the victim subjects the victim to a substantial increase in
risk of harm separate and apart from that involved in the underlying crime.” Id.At the sentencing hearing, the state described the conduct of Beard
and his codefendants as follows:
Mr. Beard and three co-defendants planned and carried out an
aggravated robbery of a convenience store * * *.
Two of the males went into the convenience store, walked around and
the other two then entered. All four had firearms. It was reported by
the victim they took the victim at gunpoint from behind the counter to
the basement of the store searching for a safe, having the victim get on
the ground in the basement. When they didn’t find the safe, they, at
gunpoint, brought him back upstairs, again looking for the safe.
(Tr. 70-71.)
Beard and his codefendants moved the victim to the basement and
back upstairs, which suggests the movement was prolonged. Beard and his
codefendants were also carrying firearms, which subjected the victim to the threat
of serious physical harm. Therefore, the kidnapping charge alleged in Count 3 was
more than merely incidental to the robbery charge alleged in Count 2 and is not
subject to merger as allied offenses.
Therefore, the first and fourth assignments of error are overruled.
B. Violent Offender Registration
In the second assignment of error, Beard argues the trial court
committed plain error by imposing a VOD registration requirement pursuant to
Am.Sub.S.B. No. 231, also known as “Sierah’s Law.” See R.C. 2903.41 through
2903.44. He contends the VOD registry set forth in Sierah’s Law is an
unconstitutionally retroactive law prohibited by Article II, Section 28 of the Ohio
Constitution. He also contends his guilty pleas were not entered knowingly,
intelligently, and voluntarily because the court failed to advise him that he would be
subject to the VOD registration created by Sierah’s Law before he pleaded guilty.
Sierah’s Law, which became effective on March 20, 2019, created a
statewide violent offender database, which requires those convicted of certain
specified offenses to enroll in a registry that will allow law enforcement to track their
whereabouts for ten years following release from prison. Violent offenders with
VOD duties must appear in person at the local county sheriff’s office within ten days
following release from prison, or after receiving notice at the sentencing hearing if
the offender is not sentenced to prison, to enroll in the database. R.C. 2903.43.
Thereafter, the offender must re-register annually for ten years. R.C. 2903.43.
To enroll in the VOD, the offender must complete and sign an
enrollment form that sets forth (1) the offender’s full name and any alias the offender
may have used; (2) the offender’s residential address; (3) the offender’s social
security number; (4) the offender’s driver’s license number or state identification
card number; (5) the offense for which the offender was convicted; (6) the name and
address of the offender’s employer; (7) the name and address of any school or
institution of higher education the violent offender attends; (8) the vehicle
identification number and license plate number for each vehicle owned or operated
by the offender; and (9) a description of any scars, tattoos, or other distinguishing
marks on the offender. R.C. 2903.43(C)(2)(a)-(i). The offender must also provide
finger and palm prints and annually allow his or her photograph to be taken. R.C.
2903.43(C)(3), (D)(1). If the offender moves from his or her address, the offender
must notify the sheriff with whom the offender most recently enrolled of the change
of address within three business days. R.C. 2903.43(E). An offender who recklessly
fails to enroll, re-enroll, or notify the sheriff of a change of address is guilty of a felony
of the fifth degree. R.C. 2903.43(I)(1) and (2).
1. Constitutionality of Sierah’s Law
Article II, Section 28 of the Ohio Constitution states: “The general
assembly shall have no power to pass retroactive laws”1 Beard contends that the
violent-offender statutes are unconstitutionally retroactive because they are
substantive, rather than remedial in nature, and became effective after he
committed his offenses.
Whether a statute is unconstitutional is a question of law subject to de
novo review. Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d
466, ¶ 15, citing Crutchfield Corp. v. Testa, 151 Ohio St.3d 278, 2016-Ohio-7760, 88
N.E.3d 900, ¶ 16; Toledo, Columbus & Ohio River RR. Co. v. Miller, 108 Ohio St.
388, 140 N.E. 617 (1923), paragraph two of the syllabus.
A regularly enacted statute in Ohio “is presumed to be constitutional
and is therefore entitled to the benefit of every presumption in favor of its
1 Ohio’s Retroactivity Clause is distinct from the Ex Post Facto Clause of the United
States Constitution. See State v. White, 132 Ohio St.3d 144, 2012-Ohio-2583, 972 N.E.2d
534. While Ohio’s Retroactivity Clause broadly prohibits retroactive legislation that
impairs substantial rights, the Ex Post Facto Clause applies only to criminal statutes. See
State v. Cook, 83 Ohio St.3d 4040, 700 N.E.2d 570 (1998).
constitutionality.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128
N.E.2d 59 (1955), paragraph one of the syllabus. The presumption of
constitutionality cannot be overcome “unless it appear[s] that there is a clear conflict
between the legislation in question and some particular provision or provisions of
the Constitution.” Xenia v. Schmidt, 101 Ohio St. 437, 130 N.E. 24 (1920),
paragraph two of the syllabus; Dickman at 147. The party challenging the statute
bears the burden of proving it is unconstitutional beyond a reasonable doubt. State
v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991).
Despite the Ohio Constitution’s prohibition against retroactive laws,
the Ohio Supreme Court has held that “‘retroactivity itself is not always forbidden
by Ohio law.” State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534,
¶ 31. “Ohio courts have long recognized that there is a crucial distinction between
statutes that merely apply retroactively * * * and those that do so in a manner that
offends our Constitution.” Bielat v. Bielat, 87 Ohio St.3d 350, 353, 721 N.E.2d 28(2000).
Determining whether a statute is unconstitutionally retroactive
involves a two-step process. Id. at ¶ 27. A court must first determine whether the
General Assembly “expressly made the statute retroactive.” Hyle v. Porter, 117 Ohio
St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶ 8. Statutes are presumed to apply
prospectively unless the General Assembly expressly indicates that a statute applies
retrospectively. R.C. 1.48 (“A statute is presumed to be prospective in its operation
unless expressly made retrospective.”). If the legislature did not intend the statute
to be applied retroactively, the analysis ends and the statute may not be applied
retroactively. White at ¶ 27, citing R.C. 1.48. If the General Assembly expressly
intended a statute to apply retroactively, the court must move to the second step of
the analysis and “determine whether the statute is remedial, in which case
retroactive application is permitted, or substantive, in which case retroactive
application is forbidden.” Id. See also State v. Walls, 96 Ohio St.3d 437, 2002-
Ohio-5059, 775 N.E.2d 829, ¶ 10; Cook, 83 Ohio St.3d at 410-411, 700 N.E.2d 570.
R.C. 2903.42 provides that enrollment in the violent offender
database is presumed for all violent offenders. R.C. 2903.41(A) defines a “violent
offender” as:
(1) A person who on or after the effective date of this section is
convicted of or pleads guilty to any of the following:
(a) A violation of section 2903.01 [aggravated murder], 2903.02
[murder], 2903.03 [voluntary manslaughter], 2905.01 [kidnapping] of
the Revised Code or a violation of section 2905.02 [abduction] of the
Revised Code that is a felony of the second degree;
(b) Any attempt to commit, conspiracy to commit, or complicity in
committing any offense listed in division (A)(1)(a) of this section.
(2) A person who on the effective date of this section has been convicted
of or pleaded guilty to an offense listed in division (A)(1) of this section
and is confined in a jail, workhouse, state correctional institution, or
other institution, serving a prison term, term of imprisonment, or other
term of confinement for the offense.
The VOD registration requirements expressly apply to any violent
offender who “on the effective date * * * has been convicted or pleaded guilty” to a
specified violent offense and is confined for that offense. R.C. 2903.41(A)(2). The
registration requirements also apply to any person who “on or after the effective date
* * * is convicted or pleads guilty” to a specified violent offense. R.C. 2903.41(A)(1).
Both sections apply regardless of when the offense was committed and, therefore,
include offenses occurring before the effective date of the statutes. Therefore, the
statutes are retroactive because the General Assembly plainly intended the
registration requirements to apply to conduct occurring before the statutes’ effective
date.
Having determined that the violent offender registration
requirements of Sierah’s Law apply retroactively, we must next determine whether
the statutory provisions are substantive or remedial. “A purely remedial statute does
not violate Section 28, Article II of the Ohio Constitution, even if applied
retroactively.” Cook, 83 Ohio St.3d at 411, 700 N.E.2d 570. However, “[i]f a statute
affects a substantial right, then it offends the constitution.” State v. Ferguson, 120
Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 13, citing Van Fossen v. Babcock
& Wilcox Co., 36 Ohio St.3d 100, 107, 522 N.E.2d 489 (1988).
“A statute is ‘substantive’ if it impairs or takes away vested rights,
affects an accrued substantive right, imposes new or additional burdens, duties,
obligations, or liabilities as to a past transaction, or creates a new right.” Id., citing
Van Fossen at 107. “[R]emedial laws are those affecting only the remedy provided,
and include laws that merely substitute a new or more appropriate remedy for the
enforcement of an existing right.” Id., citing Van Fossen at 107.
“Where no vested right has been created, ‘a later enactment will not
burden or attach a new disability to a past transaction * * * in the constitutional
sense, unless the past transaction * * * created at least a reasonable expectation of
finality.’” Cook at 412, quoting State ex rel. Matz v. Brown, 37 Ohio St.3d 279, 281,
525 N.E.2d 805 (1988). The commission of a felony is not a past transaction that
creates a reasonable expectation of finality. White, 132 Ohio St.3d 344, 2012-Ohio-
2583, 972 N.E.2d 534 at ¶ 43. “Except with regard to constitutional protections
against ex post facto laws, * * * felons have no reasonable right to expect that their
conduct will never thereafter be made the subject of legislation.” Matz at 281-282.
The Ohio Supreme Court previously held that certain sex-offender-
registration statutes in effect in the 1990s and early 2000s were remedial even
though they imposed new duties on sex offenders retroactively. See Cook at 409
(upholding the constitutionality of the 1997 version of R.C. Chapter 2950);
Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110 (upholding the
constitutionality of the 2003 version of R.C. Chapter 2950). In Ferguson, the court
observed that “Ohio retroactivity analysis does not prohibit all increased burdens; it
prohibits only increased punishment.” Id. at ¶ 39.
In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d
1108, the Ohio Supreme Court later found that the amendments contained in the
Adam Walsh Act (“AWA”) were punitive and, therefore, could not constitutionally
be applied retroactively. In Williams, the court did not consider whether offenders
affected by the new registration requirements had a vested right or “reasonable
expectation of finality” in their registration status. Instead, the court described the
onerous nature of the registration requirements and found that the newly imposed
duties were so burdensome that they were punitive in nature and, therefore, violated
the Retroactivity Clause of the Ohio Constitution. Id. at ¶ 19-21.
Thereafter, in White, 132 Ohio St.3d 344, 972 N.E.2d 534, the Ohio
Supreme Court considered the constitutionality of R.C. 2929.06(B), a statute
providing that where an offender’s death sentence has been vacated, the trial court
must empanel a new jury and conduct a new penalty hearing. The new law replaced
the rule set forth in State v. Penix, 32 Ohio St.3d 369, 513 N.E.2d 744 (1987), which
held that when a death sentence imposed by a jury has been vacated for a penalty-
phase error, the trial court could not empanel a new jury to impose a new death
sentence; it was required to sentence the defendant to life in prison. White at ¶ 5.
R.C. 2929.06(B) allowed a new jury to reconsider the death penalty on remand. Id.
at ¶ 3. The defendant in White argued that because his crime occurred before
enactment of R.C. 2929.06(B), it could not be retroactively applied to him. Id. at
¶ 12.
The court rejected the defendant’s argument and found that the
retroactive statute was remedial rather than substantive in nature and, therefore,
could be applied retroactively. In reaching this conclusion, the court noted that R.C.
2929.06(B) did not increase the punishment for the underlying crime because the
death penalty was available at the time the crime was committed and at the time of
resentencing. Id. at ¶ 33. The court then considered whether the defendant had a
vested or accrued right to be sentenced in accordance with the law articulated in
Penix. Id. at ¶ 34-35. The court defined “accrued right” as a “‘right that is ripe for
enforcement.’” Id. at ¶ 35, quoting Garner, Black’s Law Dictionary 1436 (9th
Ed.2009). The court further explained that “‘[a] right, not absolute but dependent
for its existence upon the action or inaction of another, is not basic or vested * * *.’”
Id., quoting Hatch v. Tipton, 131 Ohio St. 364, 368, 2 N.E.2d 875 (1936), paragraph
two of the syllabus. The White court found that R.C. 2929.06(B) did not impair any
accrued right because the defendant’s alleged right to be resentenced under Penix
could not have vested until his original sentence had been invalidated, which
occurred after the enactment of the new law. Id. at ¶ 37.
Finally, the court found that R.C. 2929.06(B) was not substantive
because it did not impose a new burden on the defendant since the defendant had
the burden of defending against the death penalty at the time of his original trial.
Id. at ¶ 41. The court reiterated that “‘the commission of a felony’ is not a transaction
that creates a reasonable expectation of finality” and that “[e]xcept with regard to
constitutional protections against ex post facto laws * * *, felons have no reasonable
right to expect that their conduct will never thereafter be made the subject of
legislation.” Id. at ¶ 43, quoting Matz, 37 Ohio St.3d at 281-282, 525 N.E.2d 805.
Thus, the court found that because the defendant “could have no reasonable
expectation of finality with respect to Penix on the date of the murder, retroactive
application of R.C. 2929.06(B) to White’s resentencing d[id] not create a new
burden ‘in the constitutional sense.’” Id. at ¶ 44, quoting Matz at 281.
A violent offender will only be subjected to punishment under Sierah’s
Law if he or she fails to enroll in the database, re-enroll in the database, or notify the
sheriff of a change of address. R.C. 2903.43(I)(2). “[C]lassification as a violent
offender and enrollment into the violent offender database ‘is a collateral
consequence of the offender’s criminal acts rather than a form of punishment per
se.’” State v. Hubbard, 2020-Ohio-856, 146 N.E.3d 593, ¶ 32 (12th Dist.), quoting
Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 34. And,
because “felons have no reasonable right to expect that their conduct will never
thereafter be made the subject of legislation,” they cannot claim a vested right in not
being subject to VOD requirements. Matz, 37 Ohio St.3d at 281-282, 525 N.E2d
805.
Moreover, the registration requirements under Sierah’s Law are not
so burdensome as to amount to a form of punishment that may not be imposed
retroactively. The VOD duties are less onerous than those of the AWA. In contrast
to the automatic sex offender classifications under the AWA, there is a presumption
that an individual who qualifies as a “violent offender” must register with the
database, but the presumption may be rebutted with proof, by a preponderance of
the evidence, that “the offender was not the principal offender in the commission of
the offense.” R.C. 2903.42(A)(2)(a) and 2903.42(A)(4)(a).
Sex offenders, depending on the tier of registration, may be required
to register, in person, every 90 days for life, or every 180 days for 25 years. R.C.
2950.07(B)(2); R.C. 2905.06(B)(3). Under R.C. 2903.42, a violent offender is
required to register with the local sheriff’s office once per year for ten years. R.C.
2903.43(D)(1). The sex-offender registry established under the AWA is a public
registration and is published on the internet. VOD information is not published
online, and the VOD is only accessible by federal, state, and local law enforcement
officers, and is not a public record, although some information held by the local
sheriff is subject to Ohio’s Public Records Law.2 R.C. 2903.43(F)(2); R.C.
2903.43(F)(3)(a) and 2903.42(F)(3)(b).
Sex offenders under the AWA are subject to certain residency
restrictions while violent offenders under Sierah’s Law are not. See R.C. 2950.031.
And, unlike the strict-liability standard for failure-to-register offenses under the
AWA, a failure-to-register offense under Sierah’s Law imposes a recklessness
standard, and any failure-to-register results in a fifth-degree felony, which carries a
presumption of community control. R.C. 2950.04(E); R.C. 2903.43(I)(1). Failure
to register as a sex offender under the AWA constitutes a felony of the same degree
as the underlying sexually oriented offense. R.C. 2950.99. Thus, if a sex offender
committed a first-degree felony, the failure to register constitutes another first-
degree felony, which carries a potential prison term of 11 to 16.5 years. R.C.
2950.99(A)(1)(a); R.C. 2929.14(A)(1)(a); R.C. 2929.144(B)(1).
Based on these differences, courts have concluded the registration
provisions of Sierah’s Law are “‘not so punitive that they impose a new burden in
2 See R.C. 2903.43(F)(3)(a) and (b).
the constitutional sense, as contemplated by Williams[,]’ and, instead, are remedial
in nature.” State v. Rike, 1st Dist. Hamilton No. C-190401, 2020-Ohio-4690, ¶ 62,
quoting Hubbard, 2020-Ohio-856, 146 N.E.3d 593, ¶ 37 (12th Dist.). See also State
v. Morgan, 2020-Ohio-3955, 156 N.E.3d 989 (9th Dist.)(finding no retroactivity-
clause violation). But see State v. Jarvis, 5th Dist. Muskingham No. CT 2019-0029,
2020-Ohio-1127 (holding that the violent offender registration requirements of
Sierah’s Law violate Section 28, Article II of the Ohio Constitution).3
In Hubbard, the Twelfth District observed that the VOD statutes are
more akin to the arson offender registration requirements set forth in R.C. 2909.13,
2909.14, and 2909.15, which have been found to be remedial in nature. Id. at ¶ 37.
Arson offenders must complete their first registration within ten days after being
released from prison and must re-register with the local sheriff annually for life. R.C.
2909.15(D). And, similar to the VOD enrollment requirements, arson offenders
must provide (1) the offender’s name and any aliases; (2) the offender’s residential
address; (3) the offender’s social security number; (4) the offender’s driver’s license
number or state identification card number; (5) the offense for which the offender
was convicted; (6) the name and address of the offender’s employer; (7) the name
and address of any school or institution of higher education the violent offender
3 The Ohio Supreme Court has certified a conflict between the Twelfth and Fifth
Districts on the issue of whether the violent offender registration statutes, when applied
to an offense that occurred before the statutes’ March 20, 2019 effective date, violate the
prohibition against retroactive statutes contained in Article II, Section 28, of the Ohio
Constitution. See State v. Hubbard, 159 Ohio St.3d 1427, 2020-Ohio-3473, 148 N.E.3d
568; State v. Jarvis, 159 Ohio St.3d 1427, 2020-Ohio-3473, 148 N.E.3d 568.
attends; (8) the vehicle identification number and license plate number for each
vehicle owned or operated by the offender; (9) a description of any scars, tattoos, or
other distinguishing marks on the offender; and (10) any other information required
by the Attorney General. R.C. 2909.15(C)(2)(a) through (j). An arson offender must
also provide finger and palm prints and allow his photograph to be taken. R.C.
2909.15(C)(3).
The arson registry is maintained by the Bureau of Criminal
Identification and Investigation and is only accessible to the fire marshal’s office,
state and local law enforcement officers, and certain authorized firefighters. R.C.
2909.15(E)(2). Like the VOD, the arson offender registry is not available to the
public. R.C. 2909.15(E)(2).
We agree the VOD established by Sierah’s Law is similar to the arson
offender registry, which has been constitutionally upheld as a remedial statute. See
State v. Caldwell, 1st Dist. Hamilton No. C-130812, 2014-Ohio-3566; State v. Reed,
11th Dist. Lake No. 2013-L-130, 2014-Ohio-5463. Accordingly, we find the statutory
provisions set forth in R.C. 2903.41 through 2903.44, which establish the VOD
requirements for violent offenders, are remedial in nature and, therefore,
constitutional.
2. Guilty Pleas
Beard nevertheless contends that his guilty pleas were not knowingly,
intelligently, and voluntarily made because the court failed to advise him that he
would be subject to VOD enrollment before he pleaded guilty to violent offenses that
would subject him to the VOD.
Pursuant to Crim.R. 11(C)(2)(a), a court shall not accept a guilty plea
in a felony case without first addressing the defendant personally and determining
whether he is making the plea voluntarily and with full understanding of the nature
of the charge and of the maximum penalty involved. The maximum penalty,
however, does not include the registration requirements under the VOD. See State
v. Rogers, 8th Dist. Cuyahoga Nos. 105335 and 105518, 2017-Ohio-9161, ¶ 22 (“The
maximum penalty, however, does not include the registration requirements under
the Ohio Arson Registry.”).
As previously stated, the VOD requirements are not punitive; they are
remedial, collateral consequences of the underlying violent offenses. Hubbard,
2020-Ohio-856, 146 N.E.3d 593, ¶ 32 (12th Dist.), quoting Ferguson, 120 Ohio St.3d
7, 896, 2008-Ohio-4824, N.E.2d 110, at ¶ 34. (“classification as a violent offender
and enrollment into the violent offender database ‘is a collateral consequence of the
offender’s criminal acts rather than a form of punishment per se.’”).
This court has held that because registration requirements are
collateral consequences rather than punishment, Crim.R. 11 does not require a trial
court to inform a defendant of the registration and notification requirements before
accepting a defendant’s guilty plea. Rogers at ¶ 25 (holding that trial court was not
required to inform the defendant of arson registration requirements before
accepting the defendant’s guilty plea because the arson registration requirements
were collateral consequences of conviction rather than punishment); See also State
v. Rice, 8th Dist. Cuyahoga No. 72685, 1999 Ohio App. LEXIS 535 (Feb. 18, 1999)
(holding that trial court was not required to inform defendant of sex offender
registration requirements under Megan’s Law since the notification and registration
requirements “merely collateral consequences to defendant’s decision to plead
guilty to the sexually oriented offenses.”). Therefore, the trial court was not required
to inform Beard of the applicable registration requirements before accepting his
guilty pleas.
The second assignment of error is overruled.
C. Notices Mandated by R.C. 2903.42(A)(1)
In the third assignment of error, Beard argues the trial court
committed plain error by failing to provide the notices required by R.C.
2903.42(A)(1). In the fifth assignment of error, Beard argues his trial counsel was
constitutionally ineffective because he failed to object to the VOD registration
requirements and failed to file a motion to rebut the presumption that Beard was a
violent offender as defined by R.C. 2903.42. We discuss these assigned errors
together because they are closely related.
As previously stated, in a plain-error analysis, the appellant bears the
burden on demonstrating that, but for the error, the outcome of the proceeding
would clearly have been different. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873
N.E.2d 306, at ¶ 17. To establish a claim for ineffective assistance of counsel, the
appellant must show that counsel’s performance fell below an objective standard of
reasonable representation and that he or she was prejudiced by that deficient
performance. Strickland, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674.
Prejudice is established when the defendant demonstrates “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
R.C. 2903.42(A)(1) provides, in relevant part:
(1) For each person who is classified a violent offender, it is presumed
that the violent offender shall be required to enroll in the violent
offender database with respect to the offense that so classifies the
person and shall have all violent offender database duties with respect
to that offense for ten years after the offender initially enrolls in the
database. The presumption is a rebuttable presumption that the
violent offender may rebut as provided in division (A)(4) of this section,
after filing a motion in accordance with division (A)(2)(a) or (b) of this
section, whichever is applicable. Each violent offender shall be
informed of the presumption established under this division, of the
offender’s right to file a motion to rebut the presumption, of the
procedure and criteria for rebutting the presumption, and of the effect
of a rebuttal and the post-rebuttal hearing procedures and possible
outcome, as follows:
(a) If the person is classified a violent offender under division (A)(1) of
section 2903.41 of the Revised Code, the court that is sentencing the
offender for the offense that so classifies the person shall inform the
offender before sentencing of the presumption, the right, and the
procedure, criteria, and possible outcome.
R.C. 2903.42(A)(1) is a mandatory provision; “[e]ach violent offender
shall be informed of the presumption * * * , of the offender’s right to file a motion to
rebut the presumption, of the criteria for rebutting the presumption, and of the
effect of a rebuttal.” Id. (Emphasis added.) The state concedes that the trial court
erred in failing to advise Beard of his right to rebut the presumption. (Appellees’
brief, p. 17.)
In State v. Walker, 8th Dist. Cuyahoga No. 109142, 2021-Ohio-580,
this court recently held that a trial court commits reversible error when it fails to
properly advise a violent offender of the presumption established under R.C.
2903.42(A)(1), the offender’s right to file a motion to rebut the presumption, of the
procedure and criteria for rebutting the presumption, and of the effect of a rebuttal
and post-rebuttal hearing procedures and possible outcome. Id. at ¶ 31-42. In
reaching this conclusion, this court observed that the defendant did not have an
opportunity to prepare for an enrollment hearing, did not have an opportunity to
file a written motion to rebut the presumption, and did not have the opportunity to
present evidence to rebut the presumption. Id. at ¶ 38. He was, therefore,
prejudiced by the trial court’s failure to advise him of his right to rebut the
presumption and by the lack of opportunity to present evidence and argument to
rebut the presumption.
The trial court similarly failed to advise Beard of the presumption
established under R.C. 2903.42(A)(1) and of his right to file a motion to rebut the
presumption. He, therefore, was deprived of the opportunity to present evidence to
rebut the presumption. And since Beard pleaded guilty, there is insufficient
evidence on which to conclude that Beard’s attempts to rebut the presumption
would have been futile.
We, therefore, sustain the third and fifth assignments of error.
The trial court’s judgment is affirmed in part and reversed in part. The
case is remanded to the trial court to advise Beard of the presumption of enrollment
in the VOD under R.C. 2903.42(A)(1), his right to file a motion to rebut the
presumption, the procedure and criteria for rebutting the presumption, and the
effect of a rebuttal and post-rebuttal hearing procedures and possible outcome as
required by R.C. 2903.42(A)(1).
It is ordered that appellee and appellant share 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.
EILEEN T. GALLAGHER, JUDGE
ANITA LASTER MAYS, P.J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS WITH SEPARATE ATTACHED
OPINION
MARY EILEEN KILBANE, J., DISSENTING:
I respectfully dissent. I would find that the violent offender database
requirements of Sierah’s Law, R.C. 2903.41 et seq., as applied to a defendant such
as Beard who committed an offense prior to the March 20, 2019, enactment violates
Article II, Section 28 of the Ohio Constitution and Article I, Section 9 of the United
States Constitution. State v. Jarvis, 2020-Ohio-1127, 152 N.E.3d 1225 (5th Dist.).
Therefore, I would reverse and remand the case to the trial court.