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Date: 01-19-2021
Case Style:
State of Ohio v. Gregory D. Anderson
Case Number: L-18-1110
Judge: Mark L. Pietrykowski
Court: IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Plaintiff's Attorney: Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney
Defendant's Attorney:
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Description:
Toledo, OH - Criminal defense attorney represented Gregory Anderson with a appeal from the April 25, 2018 judgment of the Lucas County Court of Common Pleas convicting him of attempted rape.
{¶ 1} Appellant, Gregory Anderson, appealed from the April 25, 2018 judgment of
the Lucas County Court of Common Pleas convicting him of attempted rape, a violation
of R.C. 2923.02 and 2907.02(A)(1)(c) and (B) (following acceptance of his guilty plea
entered pursuant to North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d
162 (1970) and sentencing him. He asserted a single assignment of error on direct
appeal asserting the trial court erred by accepting his guilty plea because it was not
knowingly made.
{¶ 2} On appeal, appellant argued the trial court had not substantially complied
with Crim.R. 11 because the court had not notified appellant of all of the punitive
consequences of entering a guilty plea. More specifically, appellant argues the trial court
did not inform him of what he considered to be the two major penalty requirements
related to his Tier III sex-offender classification: the ban against living within 1,000 feet
of a school, preschool, or child daycare, R.C. 2950.034(A), and the registration reporting
requirements of R.C. 2950.041(2)(c) and (d) (that he would have to register in a county
where he was employed permanently or temporarily).
{¶ 3} We found the court’s notice that appellant would have to register certain
information, without discussing the specifics, was sufficient to give appellant notice of
the registration requirements. State v. Anderson, 6th Dist. Lucas No. L-18-1110, 2019-
Ohio-1915, *2. However, we agreed with appellant that the court completely failed to
notify appellant of the residential restrictions, including the prohibition from residing
within 1,000 feet of a school, preschool, or child daycare and the community notification
requirements of R.C. 2950.11. Id. Therefore, we found the plea was constitutionally
invalid and vacated his sentence. Id. We also certified the record to the Ohio Supreme
Court for final review and determination because our holding, which follows the
precedent of our court, is in direct conflict with the judgment pronounced by State v.
Hagan, 12th Dist. Butler No. CA2018-07-136, 2019-Ohio-1047, ¶ 29-30. Anderson.
3.
{¶ 4} Appellee filed its notice of certified conflict with the Ohio Supreme Court
on June 13, 2019. The Supreme Court determined that a conflict existed and accepted the
case on August 21, 2019. While the case was pending in the Supreme Court, the trial
court [subsequently on remand] permitted appellant to enter a new guilty plea, and
sentenced appellant on August 26, 2019. The trial court then issued a nunc pro tunc
decision relating to the August 26 decision on September 11, 2019. However, because
the matter was pending in the Supreme Court, the “trial court had no jurisdiction to act on
remand order from the court of appeals while appeal was pending in ** * [the Ohio
Supreme] court.” State ex rel. Dobson v. Handwork, 151 Ohio St.3d 442, 2020-Ohio1069, 151 N.E.3d 442, ¶ 17, citing State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132,
124 N.E.3d 7766, ¶ 24 (DeWine, J. concurring in judgment only). Accordingly, the
August 26 and September 11 judgments of the trial court entered while this case was
pending before the Supreme Court are void. Handwork at ¶ 17.
{¶ 5} On May 26, 2020, the Ohio Supreme Court reversed our decision and
remanded the case to this court for application of State v. Dangler, Slip Opinion No.
2017-1703, 2020-Ohio-2765. State v. Anderson, 160 Ohio St.3d 171, 2020-Ohio-3025,
154 N.E.3d 84. In the Dangler case, the Ohio Supreme Court addressed the issue of
whether the trial court must specifically recite each registration requirement for a Tier III
sex-offender classification. The Ohio Supreme Court held that notification that the
defendant “would be subject to the registration requirements of the statutory scheme” for
such classification was sufficient to constitute partial compliance with Crim.R. 11 and
requires that appellant must demonstrate he was prejudiced by the failure to comply with
4.
the non-constitutional requirement of Crim.R. 11(C)(2)(a) to explain the maximum
penalty. Id. at ¶ 22.
{¶ 6} Because appellant did not fully address the issue of whether he was
prejudiced by the trial court’s partial compliance with Crim.R. 11, we gave him an
opportunity to supplement his brief to address this issue. However, appellant did not file
a supplemental brief.
{¶ 7} To establish prejudice, we must determine “whether the plea would have
otherwise been made.” Dangler at ¶ 16. Furthermore, prejudice must be established “on
the face of the record.” Id. at ¶ 24, quoting Wagner v. Roche Laboratories, 85 Ohio St.3d
457, 462, 709 N.E.2d 162 (1999).
{¶ 8} In his original brief, appellant argued the residence restriction would
significantly impact his ability to choose a place of residence. He implies that he would
not have entered the plea if he had known of this restriction. We find, however, that the
record reflects otherwise.
{¶ 9} On the morning of trial, the trial court warned appellant that if the state
proved the rape, appellant would receive a long sentence. The plea agreement provided
for appellant to enter a guilty plea to a reduced charge of attempted rape. Furthermore,
the plea agreement notified appellant that the reduced charge of attempted rape carries a
prison term of two-to-eight years and a maximum fine of $15,000, but the parties had
agreed to a jointly-recommended sentence of three years. In light of the significant
reduction in sentence by entering the plea to the reduced charge and a jointlyrecommended sentence, we find there is nothing in the record to support appellant’s
5.
claim that he would not have entered his plea if he had known of the residency
restrictions and community notification requirements of the Tier III sex-offender
classification. Because appellant has not established prejudice, he is not entitled to have
his plea vacated. Therefore, we find his sole assignment of error not well-taken.
Outcome: Having found that the trial court did not commit error prejudicial to appellant and that substantial justice has been done, the April 25, 2018 judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Plaintiff's Experts:
Defendant's Experts:
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