State v. W.
| Decision Date | 13 May 2022 |
| Docket Number | 29251 |
| Citation | 2022 Ohio 1611 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. SCOTTY WEST Defendant-Appellant |
| Court | Ohio Court of Appeals |
2022-Ohio-1611
STATE OF OHIO Plaintiff-Appellee
v.
SCOTTY WEST Defendant-Appellant
No. 29251
Court of Appeals of Ohio, Second District, Montgomery
May 13, 2022
Criminal Appeal from Common Pleas Court Trial Court Case No. 2020-CR-510
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee
JOHNNA M. SHIA, Atty. Reg. No. 0067685, Attorney for Defendant-Appellant
OPINION
DONOVAN, J.
{¶ 1} Scotty West appeals from his conviction, on his guilty pleas, of two counts of sexual battery in violation of R.C. 2907.03(A)(9), felonies of the third degree; one count of disseminating matter harmful to juveniles in violation of R.C. 2907.31, a felony of the fifth degree; and one count of illegal use of a minor in a nudity-oriented material or performance in violation of R.C. 2907.323(A)(5), also a felony of the fifth degree. The court sentenced West to 60 months each on the sexual batteries and to 12 months each on disseminating matter harmful to juveniles and illegal use of a minor in nudity-oriented material, all to be served concurrently. The court also designated West a Tier III sex offender with a lifetime registration requirement every 90 days for the sexual batteries and designated him a Tier I sex offender with a duty to register annually for 15 years for illegal use of a minor in a nudity-oriented material. We will affirm the judgment of the trial court.
{¶ 2} On February 20, 2020, West was indicted on the charges listed above, as well as pandering obscenity involving a minor in violation of R.C. 2907.321 (A)(1), a felony of the second degree. He initially pled not guilty to all the offenses. West filed a motion to suppress on March 10, 2020. The court held a hearing on the motion on June 25, 2020.[1] On January 21, 2021, the court overruled West's motion to suppress.
{¶ 3} After his motion to suppress was overruled, West entered into a plea
agreement whereby he pled guilty to four offenses as described above, and the pandering obscenity charge was dismissed. He was found guilty on his guilty pleas and sentenced as described above.
{¶ 4} West raises four assignments of error on appeal. We will consider his first and second assignments of error together. They are as follows:
WEST'S PLEA WAS NOT VOLUNTARY, KNOWING NOR INTELLIGENT
THE TRIAL COURT FAILED TO PROPERLY ADVISE WEST OF POST RELEASE CONTROL FOR THE OFFENSE FOR WHICH HE ENTERED A GUILTY PLEA AT THE TIME OF HIS PLEA AND THEREFORE, BOTH HIS PLEA AND SENTENCE SHOULD BE VACATED.
{¶ 5} In his first assignment of error, West asserts that the trial court failed to comply with Crim.R. 11 (C)(a) when it "affirmatively misadvised" him of the reporting and notification requirements under R.C. Chapter 2950 for the offenses to which he pled guilty. West asserts that the court failed to comply with Crim.R. 11(C)(2)(a) when it "affirmatively misinformed" him of his registration and notification requirements related to his conviction for illegal use of a minor in a nudity-oriented material or performance. West relies on State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, and he asserts that his plea must be vacated.
{¶ 6} In his second assignment of error, West contends that, although the trial court properly advised him of the mandatory post-release control that could be imposed
for the sexual batteries, the court failed to properly advise him of the mandatory postrelease control on the other offenses to which he was entering a plea. He also asserts that the court "misadvised" him that he could be required to serve a term of post-release control on the offense for which he was not entering a plea, "and even so, this information was incorrect."
{¶ 7} In response, the State contends that the trial court substantially complied with the requirements of Crim.R. 11 such that West's plea was knowing, intelligent, and voluntary, and that West cannot establish prejudice as a result of the trial court's "lack of full compliance." The State did acknowledge some error:
* * * [T]he trial court was mistaken * * * in suggesting to West that the [sex offender] designation was only "preliminary" and was somehow subject to change. The trial court also mistakenly overstated the registration requirements that would result from West's conviction for Illegal Use of Minor in Nudity-Oriented Material under R.C. 2907.323(A)(3), telling West he would be required to register every 180 days for 25 years when, in actuality, the registration requirement for that offense (a Tier I offense) is annually for 15 years. * * *
However, the State contends that, because the trial court "partially, if not substantially, complied" with the sex-offender notification requirements when taking West's plea, West must demonstrate prejudice before his plea can be vacated. It further argues that West did not argue or presented any evidence that he was prejudiced and would not have entered his pleas had the trial court accurately informed him of the sex-offender
registration requirements during the plea colloquy. The State also notes that West's plea form informed him that he would be a Tier III offender.
{¶ 8} In reply, West argues that he does not have to demonstrate prejudice where the trial court completely failed to "definitively advise then misinformed" him of the penalties involved. He contends that, although the trial court did advise him of some registration requirements, the court told West that these were "preliminary," that a hearing would be held to determine his "status," and that he would be advised of his status and the registration requirements at the time of sentencing. West further asserts that "the preliminary status and registration requirements given by the trial court were incorrect." According to West, "because the trial court failed to advise [him] of the maximum penalty involving his registration and notification requirements, the trial court failed to comply with Crim.R. 11(C)(2)(a)."
{¶ 9} At the start of West's plea hearing, the court ascertained that West was a U.S. citizen, was not under the influence of drugs or alcohol, and was not on community control sanctions, probation, parole, or post-release control. The court advised West of the maximum prison sentences and financial sanctions it could impose as a result of his guilty pleas, and West acknowledged his understanding.
{¶ 10} The court's dialogue with West continued:
THE COURT: Also, sir, upon completing any prison sentence, if there is one, you may be required to serve a period of up to three years of post-release control on the felonies of the second degree. And on the felonies of the third degree, you would be required to serve a period of five
years of post-release control under the supervision of the parole board.
* * *
THE COURT: Now, sir, because these are sexual [sic] oriented offenses, I also need to tell you that -- I think in two of the offenses at least -- you would be designated as a sexual or child-victim offender in which you may not reside within 1, 000 feet of any school premise. Also, you may be required to register your residence, place of employment, school attending, or place of obtaining higher education in person with the sheriff of the county in which you establish residency.
You may also be required to file a notice of intent to reside. After the date of your initial registration, you will be required to periodically verify your residence in person at the sheriff's office. If you change your address, school, employment, or place of higher education you will be required to notify the sheriff and register the new information. You will be required to fulfill these requirements for a period of time. A hearing will be held at which time the Court will determine your sexual status - - your sexual offender status.
It appears right now that on the charge of use of a minor in a nudity-oriented material, that would be a -- what we call a Tier II level, which means that you must register every 180 days for 25 years. I do not believe there's any requirement on the other at five, I believe?
[THE PROSECUTOR]: That's correct.
THE COURT: * * * And on the felonies of the third degree, on both of those, the - - it looks like preliminarily you would be designated as what we call a Tier III offender, which means that you must register every 90 days for life. Your failure to comply with these registration requirements is a crime in and of itself, and you [sic] will result in criminal prosecution. And I will formally tell you what the designation is at the time of sentencing. Do you understand that?
THE DEFENDANT: Yes, sir.
{¶ 11} The court then advised West of his constitutional rights, and West acknowledged his understanding of those rights. The prosecutor read statements of the charges, and West acknowledged his understanding. West indicated that he had had the opportunity to discuss his case with defense counsel and that he was satisfied with counsel's representation. West indicated that his pleas were voluntary, that he understood the proceedings, and that he had no questions for defense counsel or the court.
{¶ 12} After West entered his pleas and signed the plea form, the court found that West understood the nature of his constitutional rights and knowingly, intelligently and voluntarily waived those rights. The court further found that West understood the nature of the offenses, the maximum penalties that could be imposed, his eligibility for community control sanctions, and that he could be required to pay a fine, restitution, court costs, and other financial sanctions and to register as a sexually-oriented offender.
{¶ 13} West's plea form for the count of sexual battery stated that he understood
that he would be a Tier III...
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