M ORE L AW
LEXAPEDIA
Salus Populi Suprema Lex Esto

Information
About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 04-13-2019

Case Style:

STATE OF OHIO - vs - JESSE LEE HAGAN

Case Number: CA2018-07-136

Judge: Stephen Powell

Court: COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY

Plaintiff's Attorney: Michael T. Gmoser, Butler County Prosecuting Attorney

Defendant's Attorney: Scott N. Blauvelt

Description:








On March 28, 2018, the Butler County Grand Jury returned a three-count
Butler CA2018-07-136

- 2 -
indictment charging Hagan with single counts of gross sexual imposition, rape, and sexual
battery. According to the bill of particulars, the charges arose after Hagan, an adoptive
parent, stepparent, guardian, custodian, or person in loco parentis to the 14-year-old victim,
was alleged to have touched the victim’s vagina or breasts or both for purposes of sexual
gratification or arousal. The bill of particulars also alleged Hagan had digitally penetrated
the victim.
{¶ 3} On May 10, 2018, Hagan entered into a plea agreement and agreed to plead
guilty to one count of third-degree felony sexual battery in exchange for the remaining
charges against him being dismissed. As part of his plea agreement, Hagan executed a
plea form noting his intent to plead guilty to the sexual battery offense. As relevant here,
the plea form stated:
Upon conviction Defendant will be designated a Tier III sex offender requiring in-person verification every 90 days for life among other restrictions including a prohibition from living within 1000 feet of a school.

{¶ 4} After Hagan executed the plea form, a plea hearing was held before the trial
court. During this hearing, Hagan acknowledged that he had read and signed the plea form
with a full understanding of its contents after conferring with his trial counsel. This included
the fact that he would be subject to various requirements and restrictions as a Tier III sex
offender.
{¶ 5} After confirming Hagan had read and signed the plea form, the trial court
addressed Hagan and stated the following:
THE COURT: The Court understands that you are entering a guilty plea to Count III. That is sexual battery, a felony of the third degree. Please understand that as a result of this plea this Court could sentence you to 60 months in prison and impose a fine in the amount of $10,000.

Also you will be designated a tier 3 sex offender and that will require that you register in person for verification every 90 days
Butler CA2018-07-136

- 3 -
for the rest of your life. There will be other restrictions which will include a prohibition from moving within a thousand feet of a school. Do you understand that?

THE DEFENDANT: Yes.

{¶ 6} Further into the proceedings, the trial court again addressed Hagan and
stated the following:
THE COURT: Do you have any questions about anything that we discussed?

THE DEFENDANT: No.

THE COURT: Do you have any questions about anything that we have not discussed?

THE DEFENDANT: No.

THE COURT: Do you have any questions about anything that's on this plea form that you told me you signed?

THE DEFENDANT: No.

{¶ 7} Hagan then entered his plea of guilty, which the trial court accepted. Upon
accepting Hagan's guilty plea, the trial court ordered a presentence-investigative report and
scheduled the matter for sentencing.
{¶ 8} On June 14, 2018, the parties reconvened for purposes of sentencing. During
this hearing, but prior to issuing its sentencing decision, the trial court noted that it had
considered the necessary sentencing statutes, R.C. 2929.11 and 2929.12, as well as "the
record, the charge, the statements made at this hearing, the letter that I received from Mr.
Hagan, the victim impact statements and the pre-sentence investigation report."
{¶ 9} The trial court also noted that Hagan had previously served time in prison after
he was convicted of trafficking in heroin. The trial court further noted that following Hagan's
release from prison that "[w]hile he was under supervision to the parole authority he violated
his post-release control and completed the River City program."
Butler CA2018-07-136

- 4 -
{¶ 10} Continuing, the trial court stated:
The Court notes within the specifics to the facts of this case, that the Defendant did hold a special – had a relationship of trust with the victim in this case. The victim perceived him to be a father figure and he likewise perceived to be her (sic) a daughter-like figure. And the Court finds he used that position of trust in facilitating this offense.

{¶ 11} Concluding, the trial court noted the "serious nature of this offense and the
age of this victim. The victim was 14 years old when this offense occurred." The trial court
then issued its sentencing decision and sentenced Hagan to serve 42 months in prison.
The trial court also ordered Hagan to pay court costs and notified Hagan that he would be
subject to a mandatory five-year postrelease control term.
Appeal
{¶ 12} Hagan now appeals from his conviction and sentence, raising two
assignments of error for review.
{¶ 13} Assignment of Error No. 1:
{¶ 14} THE TRIAL COURT ERRED IN ACCEPTING A GUILTY PLEA WHICH WAS
NOT KNOWING, INTELLIGENT AND VOLUNTARY.
{¶ 15} In his first assignment of error, Hagan argues his guilty plea was not entered
knowingly, intelligently, and voluntarily since the trial court failed to explicitly advise him, as
a Tier III sex offender, that he would be subject to a mandatory community notification
requirement as provided for by R.C. 2950.11(F)(1)(a) as part of its Crim.R. 11(C) plea
colloquy. According to Hagan, this constitutes a complete failure on behalf of trial court to
comply with Crim.R. 11(C)(2)(a), thereby necessitating his guilty plea be vacated without
the need to show prejudice. We disagree.
Standard of Review: Knowing, Intelligent, and Voluntary Guilty Plea
{¶ 16} When a defendant enters a guilty plea in a criminal case, the plea must be
Butler CA2018-07-136

- 5 -
knowingly, intelligently, and voluntarily made. State v. Mosley, 12th Dist. Warren No.
CA2014-12-142, 2015-Ohio-3108, ¶ 6. "Failure on any of those points 'renders
enforcement of the plea unconstitutional under both the United States Constitution and the
Ohio Constitution.'" State v. McQueeney, 148 Ohio App.3d 606, 2002-Ohio-3731, ¶ 18
(12th Dist.), quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). To ensure that a
defendant's guilty plea is knowingly, intelligently and voluntarily made, the trial court must
engage the defendant in a plea colloquy pursuant to Crim.R. 11(C). State v. Reynolds, 12th
Dist. Madison No. CA2018-02-005, 2018-Ohio-4942, ¶ 9.
{¶ 17} As relevant here, pursuant to Crim.R. 11(C)(2), the trial court may not accept
a defendant's guilty plea without first addressing the defendant personally and:
(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.

(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing 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.

{¶ 18} A guilty plea is invalid if the trial court does not strictly comply with Crim.R.
11(C)(2)(c), which requires the trial court to verify the defendant understands the
constitutional rights he is waiving. State v. Shavers, 12th Dist. Butler No. CA2014-05-119,
2015-Ohio-1485, ¶ 9. On the other hand, the trial court need only substantially comply with
the nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and (b). State v. Floyd,
Butler CA2018-07-136

- 6 -
12th Dist. Warren No. CA2016-09-077, 2017-Ohio-687, ¶ 14. Under the substantial
compliance standard, the appellate court must review the totality of the circumstances
surrounding the defendant's plea and determine whether the defendant subjectively
understood the effects of his plea. State v. Givens, 12th Dist. Butler No. CA2014-02-047,
2015-Ohio-361, ¶ 12.
Analysis
{¶ 19} As noted above, Hagan does not dispute that the trial court strictly complied
with Crim.R. 11(C)(2)(c), which requires the trial court to verify the defendant understands
the constitutional rights that he is waiving upon entering a guilty plea. Hagan also does not
dispute that he was notified of the nonconstitutional requirements of Crim.R. 11(C)(2)(b).
Hagan instead argues the trial court completely failed to comply with Crim.R. 11(C)(2)(a)
by failing to notifying him of the maximum penalty he faced since the trial court did not
explicitly advise him, as a Tier III sex offender, that he would be subject to a mandatory
community notification requirement as provided for by R.C. 2950.11(F)(1)(a) as part of its
Crim.R. 11(C) plea colloquy. We find no merit to Hagan's claim.
{¶ 20} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, the Ohio Supreme
Court found that R.C. Chapter 2950 is punitive and therefore part of the penalty imposed
upon a defendant. Id. at ¶ 16. Two years later, with full knowledge of the Ohio Supreme
Court's decision in Williams, this court found "Crim.R. 11 obligates a trial court to advise a
defendant of the basic registration requirements under R.C. Chapter 2950 before accepting
a guilty plea." State v. Butcher, 12th Dist. Butler No. CA2012-10-206, 2013-Ohio-3081, ¶
11. However, although these advisements are part of the nonconstitutional notifications
found in Crim.R. 11(C)(2)(a) and (b), we nevertheless held that "a trial court is not required
to review each of the numerous individual restrictions and requirements set forth in R.C.
Chapter 2950 to substantially comply with Crim.R. 11." Id. These requirements and
Butler CA2018-07-136

- 7 -
restrictions include registration, verification, and community notification requirements, as
well as residential restrictions.
{¶ 21} Upon outlining these principles in Butcher, this court thereafter upheld
appellant's guilty plea upon finding:
In the present case, the record indicates that Butcher subjectively understood the maximum penalty resulting from his guilty plea, including his classification as a Tier III sex offender and the resulting registration requirements. During the plea hearing, the trial court correctly advised Butcher that he would be labeled a Tier III sex offender. The trial court also notified Butcher that he would be subject to certain registration requirements as a result of this classification. The trial court specifically informed Butcher that every 90 days, for the rest of his life, he would be required to register with the sheriff of the county where he resides. Importantly, after informing Butcher of his Tier III classification and the lifetime reporting requirements, the trial court specifically asked Butcher if this "in any way change[d] what you wish to do here as far as plea," and Butcher respond, "no."

The trial court's failure to specify that Butcher would also be required to register with the sheriff of the county in which he works, attends school, or "temporarily resides" does not invalidate his plea. Rather, the totality of the circumstances indicate that Butcher subjectively understood that by pleading guilty to rape, he would be subjected to certain restrictions as a Tier III sex offender. Accordingly, we find that the statements made by the trial court with regard to Butcher's registration requirements under R.C. Chapter 2950 were such that the trial court substantially complied with the nonconstitutional provisions of Crim.R.11.

(Emphasis added.) Id. at ¶ 12-13.

{¶ 22} Relying on this court's decision in Butcher, we find the statements made by
the trial court regarding the various requirements and restrictions Hagan faced as a Tier III
sex offender in this case were such that the trial court, at worst, substantially complied with
the nonconstitutional provisions of Crim.R. 11(C)(2)(a). This is true despite the fact that the
trial court failed to explicitly notify Hagan that he would be subject to a mandatory
community notification requirement. This is because, as noted above, "a trial court is not
Butler CA2018-07-136

- 8 -
required to review each of the numerous individual restrictions and requirements set forth
in R.C. Chapter 2950 to substantially comply with Crim.R. 11." (Emphasis added.) Id. at ¶
11; see State v. Reeder, 12th Dist. Butler Nos. CA2013-05-075 and CA2013-07-126, 2014
Ohio-2233, ¶ 16-19 (upholding appellant's plea upon finding "the totality of the
circumstances indicates appellant subjectively understood that by pleading guilty to rape,
he would be subjected to certain restrictions as a Tier III sex offender"); see also State v.
Creed, 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627, ¶ 17 ("[t]he fact that appellant was
not specifically informed that he would be prohibited from living within 1,000 feet of a school
does not invalidate his plea").
{¶ 23} Although not explicit, this court has already found as much in State v. Henson,
12th Dist. Butler Case No. CA2013-12-221, 2014-Ohio-3994, ¶ 13. As this court stated in
Henson:
[A] trial court is not required to review each of the numerous individual restrictions and requirements set forth in R.C. Chapter 2950 to substantially comply with See Crim.R. 11. However, where a trial court reviews a specific requirement set forth in Chapter R.C. 2950, such as the requirement for community notification, the trial court is under an obligation to provide accurate information to the defendant. Where a trial court affirmatively misadvises a defendant about his reporting and notification requirements under R.C. Chapter 2950, the trial court has failed to comply with the requirements of Crim.R. 11(C), and the defendant need not show prejudice to have his plea vacated.

(Emphasis added. Internal citation omitted.)

{¶ 24} This court's holding in Henson demonstrates that a trial court may, but is not
required to, specifically notify a defendant of the community notification requirement when
the defendant enters a guilty plea to an offense that includes a Tier III sex offender
classification. But, although not required to do so, where the trial court does advise a
defendant of the community notification requirement, the trial court must provide the
Butler CA2018-07-136

- 9 -
defendant with accurate information as it relates to that specific requirement. This includes,
as noted by Henson, the community notification requirement as provided by R.C.
2950.11(F)(1)(a). See id. at ¶ 14 (invalidating appellant's guilty plea where the trial court
incorrectly informed appellant, as a Tier III sex offender, that he would not be subject to the
community notification requirement).
{¶ 25} Our holding is further supported by the Second District Court of Appeals in
State v. Mayes, 2nd Dist. Montgomery No. 27194, 2017-Ohio-9313. In that case, just as in
the case at bar, appellant argued his guilty plea was not knowingly, intelligently, and
voluntarily entered where the trial court advised appellant, as a Tier III sex offender, that he
would be required to register every 90 days for the rest of his life as part of its Crim.R. 11(C)
plea colloquy but failed to explicitly advise appellant that he would also be subject to a
mandatory community notification requirement. Id. at ¶ 17.
{¶ 26} Finding the trial court "at least partially complied" with the requirements of
Crim.R. 11(C)(2)(a) by advising appellant of some of the requirements and restrictions
found in R.C. Chapter 2950, the Second District rejected appellant's claim that his guilty
plea was not knowingly, intelligently, and voluntarily entered. In so holding, the Second
District stated, in pertinent part, the following:
The court advised Mayes that he would be "required to register as a Tier [III] offender every 90 days for the rest of [his] life." Although the court does not appear to have complied completely with Crim.R. 11, inasmuch as it did not inform Mayes "about the fact that a Tier III conviction includes [a] community notification [requirement]," the court at least partially complied with the rule. Mayes says that the omission rendered his plea unknowing and involuntary, but the mere recitation of these words falls far short of the demonstration of prejudice that would entitle Mayes to have his plea vacated.

(Brackets sic. Internal citations omitted.) Id. at ¶ 17; see also State v. Young, 2d Dist.
Greene No. 2013-CA-22, 2014-Ohio-2213, ¶ 20 (trial court failed to substantially comply
Butler CA2018-07-136

- 10 -
with Crim.R. 11[C] by accepting appellant's guilty plea where the trial court "failed to discuss
any of the registration requirements").
{¶ 27} Mayes appealed from the Second District's decision to the Ohio Supreme
Court. The Ohio Supreme Court nevertheless declined Mayes' motion to file a delayed
appeal in 6/27/2018 Case Announcements, 2018-Ohio-2418, and thereafter denied review
in both 8/15/2018 Case Announcements, 2018-Ohio-3257, and 9/26/2018 Case
Announcements #2, 2018-Ohio-3868.
{¶ 28} Although our holding in Butcher and the Second District's holding in Mayes
are not currently under review, the Ohio Supreme Court is currently reviewing the Sixth
District Court of Appeals' holding originally pronounced in State v. Ragusa, 6th Dist. Lucas
No. L-15-1244, 2016-Ohio-3373; specifically, that before a defendant enters a plea that
results in the defendant being classified as a sex offender under R.C. Chapter 2950, "the
trial court must inform the defendant of all of the punitive consequences of entering a guilty
plea and having a * * * sex offender classification in order to substantially comply with non
constitutional provisions of Crim.R. 11." Id. at ¶ 5.
{¶ 29} The Sixth District's holding in Ragusa has resulted in that district invalidating
several pleas upon finding the trial court failed to notify the defendant of all of the various
requirements and restrictions set forth in R.C. Chapter 2950. See, e.g., State v. Dornoff,
6th Dist. Wood No. WD-16-072, 2018-Ohio-3084 (plea invalid where trial court failed to
inform appellant of the registration requirements, community notifications, and residential
restrictions associated with being classified as a Tier II and III sexual offender prior to
accepting appellant's guilty plea); State v. Gilbert, 6th Dist. Sandusky No. S-16-047, 2018
Ohio-879, ¶ 16 (guilty plea invalid where "the trial court's complete failure to mention the
residential restrictions outlined in R.C. 2950.034 renders [appellant's] plea involuntary and
thus invalid under Crim.R. 11[C][2]"); State v. Dangler, 6th Dist. Williams No. WM-16-010,
Butler CA2018-07-136

- 11 -
2017-Ohio- 7981 (plea invalid because trial court informed defendant of Tier III classification
but not registration or notification requirements); State v. Sanders, 6th Dist. Lucas No. L
15-1068, 2016-Ohio-1397, ¶ 8 (plea invalid because trial court informed defendant of Tier
III classification but not registration requirements); State v. McMahon, 6th Dist. Sandusky
No. S-14-036, 2015-Ohio-3300, ¶ 15 (plea invalid where trial court did not inform defendant
of classification level or its implications, including registration and community notification
requirements of R.C. Chapter 2950); see also State v. Tebary, 6th Dist. Lucas No. L-15
1235, 2016-Ohio-3095, ¶ 7-10 (upholding appellant's guilty plea where trial court notified
appellant he would be subject to registration, verification, and community notification
requirements, as well as residential restrictions, even though trial court "did not inform him
that the registration requirement was for every 90 days, for the rest of his life").
{¶ 30} Although informative, unless and until the Ohio Supreme Court affirms this
proposition of law as initially set forth by the Sixth District in Ragusa, we decline to accept
the Sixth District's holding in Ragusa and its progeny as the law of this district and adhere
to our decisions in Butcher and Henson, as well as the Second District's decision in Mayes.
{¶ 31} In light of the foregoing, we find no merit to Hagan's claim that his guilty plea
was not knowingly, intelligently, and voluntarily entered since the trial court failed to explicitly
advise him, as a Tier III sex offender, that he would be subject to a mandatory community
notification requirement as provided for by R.C. 2950.11(F)(1)(a) as part of its Crim.R. 11(C)
plea colloquy. In reaching this decision, we find it significant that the plea form read and
signed by Hagan specifically stated that upon his conviction he would be designated a Tier
III sex offender "requiring in-person verification every 90 days for life among other
restrictions including a prohibition from living within 1000 feet of a school." (Emphasis
added.)
{¶ 32} We also find significant the fact that the trial court specifically addressed
Butler CA2018-07-136

- 12 -
Hagan at the plea hearing and stated:
THE COURT: The Court understands that you are entering a guilty plea to Count III. That is sexual battery, a felony of the third degree. Please understand that as a result of this plea this Court could sentence you to 60 months in prison and impose a fine in the amount of $10,000.

Also you will be designated a tier 3 sex offender and that will require that you register in person for verification every 90 days for the rest of your life. There will be other restrictions which will include a prohibition from moving with a thousand feet of a school. Do you understand that?

THE DEFENDANT: Yes.

(Emphasis added.)

{¶ 33} Further into the proceedings, the trial court again addressed Hagan and
stated:
THE COURT: Do you have any questions about anything that we discussed?

THE DEFENDANT: No.

THE COURT: Do you have any questions about anything that we have not discussed?

THE DEFENDANT: No.

THE COURT: Do you have any questions about anything that's on this plea form that you told me you signed?

THE DEFENDANT: No.

{¶ 34} When reviewing the totality of the circumstances surrounding Hagan's guilty
plea, including the plea form read and signed by Hagan, we find the record supports the
trial court's finding Hagan subjectively understood the effects of his guilty plea. This
includes the fact that Hagan would be subject to certain requirements and restrictions as a
Tier III sex offender. See Butcher, 2013-Ohio-3081 at ¶ 13 ("the totality of the
circumstances indicate that Butcher subjectively understood that by pleading guilty to rape,
Butler CA2018-07-136

- 13 -
he would be subjected to certain restrictions as a Tier III sex offender"); see also Reeder,
2014-Ohio-2233 at ¶ 16-19 (upholding appellant's plea upon finding "the totality of the
circumstances indicates appellant subjectively understood that by pleading guilty to rape,
he would be subjected to certain restrictions as a Tier III sex offender").
{¶ 35} Due to the generous plea agreement offered by the state, there is also nothing
in the record to indicate Hagan would not have pled guilty had the trial court explicitly
advised him of the community notification requirement. Therefore, in light of our holdings
in Butcher, Henson, and the Second District's holding in Mayes, we find that the statements
made by the trial court with regard to the various requirements and restrictions Hagan faced
as a Tier III sex offender under R.C. Chapter 2950 were such that the trial court substantially
complied with the nonconstitutional provisions of Crim.R.11(C)(2)(a). Accordingly, finding
no merit to the arguments raised herein, Hagan's first assignment of error lacks merit and
is overruled.
{¶ 36} Affirming Hagan's guilty plea in this matter, we would be remiss not to address
several issues we discovered in researching the law applicable to this case. In Henson this
court stated at ¶ 13:
We have previously found that the registration and notification requirements set forth in R.C. Chapter 2950 are part of the penalty imposed upon a defendant, and that "Crim.R. 11 obligates a trial court to advise a defendant of the basic requirements under R.C. Chapter 2950 before accepting a guilty plea."

(Emphasis added.)

{¶ 37} This court quoted this same passage in our subsequent decision in State v.
Swinson, 12th Dist. Clermont No. CA2016-05-024, 2017-Ohio-150. Specifically, this court
in Swinson stated at ¶ 16:
This court has previously found that "the registration and notification requirements set forth in R.C. Chapter 2950 are part
Butler CA2018-07-136

- 14 -
of the penalty imposed upon a defendant, and that 'Crim.R. 11 obligates a trial court to advise a defendant of the basic requirements under R.C. Chapter 2950 before accepting a guilty plea.'"

(Emphasis added.)

{¶ 38} This court in Henson (and by extension Swinson) extrapolated this statement
of law by quoting from this court's prior decision in Butcher. The quote in Henson, however,
excluded the word "registration" from the phrase "basic registration requirements" as
originally pronounced in Butcher. Specifically, as this court stated in Butcher at ¶ 11:
As the requirements under R.C. Chapter 2950 are now part of penalty for the offense, we find that Crim.R. 11 obligates a trial court to advise a defendant of the basic registration requirements under R.C. Chapter 2950 before accepting a guilty plea.

(Emphasis added.)

{¶ 39} These misstatements in Henson and Swinson, by misquoting our prior
decision in Butcher, implies that there is a distinction between the registration and
community notification requirements to that of the verification requirement and residential
restrictions as it relates to a Crim.R. 11(C) plea colloquy. But, when reviewing our decision
in Butcher, we do not believe that this was the intent behind this court's holding. This
becomes clear when considering the final sentence of ¶ 11 in Butcher, a sentence that both
Henson and Swinson also cited as authority, wherein this court held "a trial court is not
required to review each of the numerous individual restrictions and requirements set forth
in R.C. Chapter 2950 to substantially comply with Crim.R. 11." (Emphasis added.)
{¶ 40} When taken in context, we find that our initial use of the phrase "basic
registration requirements" in Butcher was referring to that requirement as it related to the
specific facts of that case and the arguments raised therein. Our holding in Butcher,
however, should not be so limited. This becomes apparent based on the plain language
Butler CA2018-07-136

- 15 -
found in the final sentence of ¶ 11 in Butcher, which, as noted above, refers generally to
"the numerous individual restrictions and requirements set forth in R.C. 2950[.]" (Emphasis
added.) These restrictions and requirements include registration, verification, and
community notification requirements, as well as residential restrictions.
{¶ 41} We also find it necessary to note our decision in State v. Johnson, 12th Dist.
Butler No. CA2015-02-016, 2015-Ohio-4650. In that case, appellant pled guilty to rape and
was classified as a Tier III sex offender. On appeal, appellant argued his guilty plea was
not knowingly, intelligently, and voluntarily entered. Id. at ¶ 18. In support, appellant argued
his plea should be vacated since the trial court misstated the repercussions of his Tier III
sex offender classification by notifying him as part of its Crim.R. 11(C) plea colloquy that
the community notification requirement was a mere possibility rather than a mandatory
aspect of his sex offender classification. Id. at ¶ 20. This court overruled appellant's
argument upon finding the totality of the circumstances surrounding appellant's plea
indicated appellant "subjectively understood the effects of his plea, including the notification
requirement associated with his rape conviction and Tier III classification." Id. ¶ 23.
{¶ 42} Of significance to this case, however, was this court's statement that "[t]he
trial court's colloquy should have informed [appellant] that community notification was a
mandatory aspect of his Tier III classification." Id. at ¶ 20. At first glance, this court's
pronouncement could certainly be read to mean a trial court is required to explicitly notify a
defendant, as a Tier III sex offender, that he or she would be subject to a community
notification requirement as part of its Crim.R. 11(C) plea colloquy. But, when read in
context, it becomes clear that this court was merely commenting on the fact that the trial
court mistakenly informed appellant that he "could" be subject to the community notification
requirement rather than that he "would" be subject to that requirement. This court stated
as much when noting later on in the opinion that "the trial court should have used the word
Butler CA2018-07-136

- 16 -
'must' instead of 'could.'" Id. at ¶ 21. This, as our decision in Johnson noted, is different
than "a case where the trial court incorrectly stated that [appellant] would not be subject to
notification," a scenario this court previously addressed in Henson.
{¶ 43} Our interpretation of Johnson becomes even more apparent when
considering that decision has not been cited as authority by this court or any other court for
the proposition that a trial court must explicitly advise a defendant, as a Tier III sex offender,
that he or she would be subject to a community notification requirement as part of its Crim.R.
11(C) plea colloquy. This includes the Sixth District Court of Appeals decision in Ragusa
and its progeny. Of further significance is the fact that our decision in Johnson did not cite
to either of this court's prior decisions in Butcher or Henson as authority. This court's
decision in Johnson is therefore limited to its facts and, as noted below, should not be read
as an expansion of our prior holdings in Butcher or Henson.
{¶ 44} Due to the confusion that may arise between Butcher, Henson, Swinson, and
Johnson, we find it necessary to reiterate and explicitly hold that "a trial court is not required
to review each of the numerous individual restrictions and requirements set forth in R.C.
Chapter 2950 to substantially comply with Crim.R. 11." (Emphasis added.) See, e.g.,
Butcher at ¶ 11-13; see also Henson at ¶ 13; Swinson at ¶ 16. Therefore, as discussed
more fully above, because the trial court substantially complied with Crim.R. 11(C)(2)(a) by
notifying Hagan he would be subject to, among others, a registration requirement and
residential restrictions as a Tier III sex offender, the totality of the circumstances indicate
Hagan's guilty plea was knowingly, intelligently, and voluntarily entered. This is true despite
the fact the trial court failed to explicitly advise Hagan, as a Tier III sex offender, that he
would be subject to a mandatory community notification requirement as provided for by R.C.
2950.11(F)(1)(a) as part of its Crim.R. 11(C) plea colloquy.
{¶ 45} Assignment of Error No. 2:
Butler CA2018-07-136

- 17 -
{¶ 46} THE TRIAL COURT ERRED IN IMPOSING A PRISON TERM WHERE THE
FINDING THAT APPELLANT HELD A POSITION OF TRUST IN RELATION TO THE
VICTIM WAS CONTRARY TO LAW AND UNSUPPORTED BY THE RECORD.
{¶ 47} In his second assignment of error, Hagan argues the trial court erred by
sentencing him to serve 42 months in prison upon finding he held a position of trust in
relation to his 14-year-old victim as provided by R.C. 2929.12(B)(3). We disagree.
Standard of Review: Felony Sentencing
{¶ 48} As with all felony sentences, we review the trial court's sentencing decision
under the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, this court may modify or vacate
a sentence only if, by clear and convincing evidence, "the record does not support the trial
court's findings under relevant statutes or that the sentence is otherwise contrary to law."
State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. A sentence
is not clearly and convincingly contrary to law where the trial court "considers the principles
and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly
imposes postrelease control, and sentences the defendant within the permissible statutory
range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8. This
court may therefore "increase, reduce, or otherwise modify a sentence only when it clearly
and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the
record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at
¶ 7.
Analysis
{¶ 49} Hagan challenges the following statement made by the trial court at the
sentencing hearing:
The Court notes within the specifics to the facts of this case, that
Butler CA2018-07-136

- 18 -
the Defendant did hold a special – had a relationship of trust with the victim in this case. The victim perceived him to be a father figure and he likewise perceived to be her (sic) a daughter-like figure. And the Court finds he used that position of trust in facilitating this offense.

{¶ 50} Based on this statement, Hagan argues the trial court mistakenly found that
he had used a "position of trust" in facilitating the offenses as provided by R.C.
2929.12(B)(3). Pursuant to that statute:
(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is more serious than conduct normally constituting the offense:

* * *

(3) The offender held a public office or position of trust in the community, and the offenses related to that office or position.

As noted by the Ohio Supreme Court, "[b]y including the phrase 'position of trust in the
community,' the legislature reveals its intent that R.C. 2929.12(B)(3) apply only to public
officials and other community leaders." State v. Massien, 125 Ohio St.3d 204, 2010-Ohio
1864, ¶ 20.
{¶ 51} There is no dispute that Hagan is neither a public official nor a community
leader. There is also no dispute the sexual battery offense Hagan pled guilty to was in no
way related to any office or position held by Hagan. Hagan is therefore correct in his
assertion that R.C. 2929.12(B)(3) does not apply to this case. The trial court, however,
never cited to or referenced that statute when issuing its sentencing decision. Hagan
merely presumes that the trial court was applying R.C. 2929.12(B)(3) to the case at bar
when it found "[Hagan] used that position of trust in facilitating this offense." We find no
merit to Hagan's claim.
{¶ 52} When taken in context, it is clear that the trial court was referring generally to
Hagan's relationship with the victim, a permissible factor under R.C. 2929.12(B)(6), rather
Butler CA2018-07-136

- 19 -
than any "position of trust" as that phrase is used in R.C. 2929.12(B)(3). Pursuant to R.C.
2929.12(B)(6):
(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is more serious than conduct normally constituting the offense:

* * *

(6) The offender’s relationship with the victim facilitated the offense.

{¶ 53} That is exactly what the trial court did here by finding "[Hagan] did hold a
special – had a relationship of trust with the victim in this case." The trial court's subsequent
statement finding "[Hagan] used that position of trust in facilitating this offense," rather than
referring back to its previous finding that "[Hagan] did hold a special – had a relationship of
trust with the victim in this case," was nothing more than a slip of the tongue that in no way
impacts the trial court's sentencing decision. This is certainly the case here when
considering the trial court in the immediately preceding sentence found "[t]he victim
perceived [Hagan] to be a father figure and he likewise perceived to be her (sic) a daughter
like figure."
{¶ 54} Although somewhat factually distinguishable, we find this case is nevertheless
analogous to the Seventh District Court of Appeals' decision in State v. Gant, 7th Dist.
Mahoning No. 04 MA 252, 2006-Ohio-1469. As the Seventh District stated in that case
when addressing a substantially similar argument raised by Hagan herein:
Appellant argues that the trial court mistakenly found that Appellant had abused a position of trust. Appellant presumes that the trial court misread R.C. § 2929.12(B)(3), which states: "The offender held a public office or position of trust in the community, and the offense related to that office or position." The trial court, though, was referring generally to a relationship based on trust between Appellant and the victim. This is more related to the factor listed in R.C. § 2929.12(B)(6): "The offender's relationship with the victim facilitated the offense."
Butler CA2018-07-136

- 20 -
Based on this sentencing factor, rather than the one Appellant has referred to, the trial court did not err in considering the personal relationship between the defendant and the victim.

Id. at ¶ 61.

{¶ 55} In light of the foregoing, including the Seventh District's decision in Gant, we
find no merit to Hagan's claim the trial court erred by sentencing Hagan to 42 months in
prison upon finding that he held a position of trust in relation to the victim pursuant to R.C.
2929.12(B)(3).
{¶ 56} Regardless, even if we did find merit to Hagan's claim, any such error would
be harmless given the significant other factors supporting the trial court's sentencing
decision. This includes, but is not limited to, the serious nature of the offense and the young
age of the victim. This also includes the fact that Hagan had previously served time in
prison after he was convicted of trafficking in heroin, as well as the fact Hagan violated his
postrelease control shortly after he was released from prison on that charge. These factors,
standing alone, justify the trial court's decision to sentence Hagan to serve 42 months in
prison.
{¶ 57} In reaching this decision, we note that the trial court had the option of
sentencing Hagan to a maximum 60-month prison term – 18 months more than the
sentence the trial court actually imposed in this case. See R.C. 2929.14(A)(3)(a) (third
degree felony sexual battery carries a prison term of "twelve, eighteen, twenty-four, thirty,
thirty-six, forty-two, forty-eight, fifty-four, or sixty months"). The trial court properly exercised
its discretion in sentencing Hagan to a sentence that was less than the maximum sentence
allowable for a third-degree felony sexual battery offense. Therefore, finding no merit to the
arguments raised herein, Hagan's second assignment of error lacks merit and is overruled.

Outcome: Judgment affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2019 MoreLaw, Inc. - All rights reserved.