NO.2o1o-0498 IML IN THE SUPREME COURT OF OHIO APPEAL FROM THE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO NO. 92789 STATE OF OHIO Plaintiff-Appellant -vs- SCOTT ROBERTS Defendant-Appellee MOTION FOR RECONSIDERATION Counsel for Plaintiff/Appellant K =D JUN 2 12010 CLERKOFC URT SUPREME COURT OF HIO WILLIAM D. MASON CUYAHOGA COUNTY PROSECUTOR DANIEL T. VAN (#oo846i4) Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-78oo Counsel for Defendant/Appellee ROBERT L. TOBIK CHIEF PUBLIC DEFENDER PAUL KUZMINS (#0074475) 31o Lakeside Avenue, Suite 200 Cleveland, Ohio 44113 JUN2 1 2010 CLERK OF COURT SUPREfUE COURT OF 0HI0
STATE'S MOTION FOR RECONSIDERATION Pursuant to S. Ct. Prac. R. XI, Section 2, the State of Ohio moves this Honorable Court to reconsider the dismissal of this case and to grant leave to appeal or in the alternative grant leave to appeal and stay briefing for State v. Omiecinski, Sup. Ct. Case No. 2oo8-o863 and in State v. Blanchard, Sup. Ct. Case No. o9-1024. The Roberts holding unreasonably elevates collateral plea consequences, such as sex offender registration, to the level of strict-compliance. While it is rational to require the vacation of a guilty plea when there is a failure to advise of constitutional rights, or where there is a complete omission of informing of a maximum sentence, there is no rational reason for automatically vacating a plea because incorrect information is given when advising of non-essential information. Defendants enter guilty pleas for a number of reasons. In some cases a defendant may be given collateral information that is not a factor in the defendant's decision to enter a guilty plea. Under Roberts, victims and the state are deprived of finality and closure of criminal charges after good faith negotiations. The Roberts decision would allow pleas to be vacated based on incorrect information about a collateral alone, regardless of whether the incorrect information induced the plea. 1. This Court only recognized automatic vacation of a plea when a court does not strictly comply with constitutional requirements of Crim. R. ii or when there was a complete failure to advise of a criminal sentence. The rule of law set forth by the Eighth District in State v. Roberts, Cuyahoga App. No. 92789 20io-Ohio-156, elevates advisements outside of Crim. R. it to a strict compliance standard. Under the Eighth District's new rule pleas are vacated when incorrect information is given, even if the incorrect information is about collateral or
non-essential to Crim. R. ii. This Court has only recognized the automatic vacation of pleas when: i) a court does not strictly comply with constitutional requirements of Crim. R. ii and 2) when a court completely fails to advise of an aspect of the criminal sentence to be imposed. In State v. Veney, this Honorable Court held failure to strictly comply with constitutional advisements under Crim. R. ii renders a plea invalid.l In a dissenting opinion authored by Justice Lanzinger and joined by Justices Cupp and Lundberg Stratton opined: [***] when a trial judge fails to explain the constitutional right set forth in Crim. R. ii(c)(2)(c), the guilty or no-contest plea is invalid "under a presumption that it was entered involuntarily and unknowingly. [***] This court has never held, [until Veney], that this presumption is irrebuttable or that a plea must be vacated automatically when the trial court fails to orally explain a constitutional right.2 In State v. Sarkozy, this Honorable Court held that failure to inform a defendant about the mandatory term of post release control requires a plea to be vacated.3 In the Court's opinion authorized by Justice Lundberg Stratton, the Court held: We disagree with the court of appeals' finding of substantial compliance with Crim. R. u. Rather we find that there was no compliance with Crim. R. ii. The trial court did not merely misinform Sarkozy about the length of his term of postrelease control. Nor did the court merely misinform him as to whether postrelease control was mandatory or discretionary. Rather, the court failed to mention postrelease control at all during the plea colloquy.4 1 State v. Veney, 120 Ohio St.3d 176, 2oo8-Ohio-5200, 897 N.E.2d 621, syllabus. 2 State v. Veney, 120 Ohio St.3d 176, 2oo8-Ohio-520o, 897 N.E.2d 621 (Lanzinger, J. concurring in part and dissenting, Cupp, J. and Lundberg Stratton, J. concurring). 3 State v. Sarkozy, 117 Ohio St.3d 86, 20o8-Ohio-5o9, 881 N.E.2d 1224, paragraphs one and two of the syllabus. 4 State v. Sarkozy, 117 Ohio St.3d 86, 2oo8-Ohio-5o9, 881 N.E.2d 1224, 22. 2
The Court's opinion suggests that if the trial misinformed Sarkozy about the length of post-release control or as to whether post-release control was mandatory or discretionary then a substantial compliance and prejudice analysis would have applied. In the dissenting opinion authored by Justice Lanzinger and joined in by Justice Cupp, the Justices opined: I dissent, however, from the conclusion that a failure to notify a defendant about postrelease control during the taking of a plea is a "complete failure to comply with the rule" that does not require an analysis of prejudice and that requires an automatic vacation of the plea. A defendant who challenges a guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must also show a prejudicial effect 5 The dissent in Sarkozy opined that even when a defendant is not informed of post-release control, automatic vacation of a plea is not required. This Court in State v. Clark held that a plea colloquy did not substantially comply with Crim. R. ii and that remand was required to determine whether the defendant was prejudiced when the trial court gave conflicting information about parole and postrelease control.6 In a dissenting opinion authored by Justice Lanzinger and joined in by Justice Lundberg Stratton, Justice Lanzinger opined: Unquestionably the trial judge must convey accurate information so that the defendant can understand the consequences of his or her decision and enter a valid plea. However, when the court errs by omitting information or giving it incorrectly, but the error does not prejudice the defendant, the plea need not be vacated. Except for the single recent case of State v. Sarkozy, 117 Ohio St.3d 86, 2oo8-Ohi0-5o9, 881 N.E.2d 1224, in which the sentencing court failed to explain mandatory postrelease control, we have not automatically vacated a plea. Instead, we have upheld pleas using the 5 State v. Sarkozy, 117 Ohio St.3d 86, 2oo8-Ohio-5o9, 881 N.E.2d 1224, 28 (Lanzinger, J. dissenting, Cupp, J. concurring). 6 State v. Clark, iig Ohio St.3d 239, 2oo8-Ohio-3748> 893 N.E.2d 462. 3
standard of substantial compliance and the totality of the circumstances ***].7 LThe Court in Clark did not require automatic vacation of the plea, even though Clark received conflicting information about parole and post-release control. The Eighth District's new rule of law requires the automatic vacation of plea based on incorrect information alone. Such a rule could extend beyond sex offender registration and could be applied to any information given under the plea colloquy, regardless of whether it is required under Crim. R. ii. II. This Court has accepted a similar proposition of law in Omiecinski and Blanchard but the issue in this case may not be resolved by Omiecinski or Blanchard. This Court accepted jurisdiction in State v. Omiecinski, Sup. Ct. Case No. 2oo8- o863 and in State v. Blanchard, Sup. Ct. Case No. 09-1024 on a similar proposition of law. Appellee suggested that this case if accepted should be held for Omiecinski. The proposition raised by the appellants in Omiecinski and Blanchard is: A criminal defendant's plea is not knowing, intelligent, and voluntary when he is misinformed about the sex offender classification consequences of his or her plea.8 The issue of whether a plea is automatically vacated based on incorrect information during the plea colloquy may be implicated by Omiecinski and Blanchard. While the proposition of law is similar, the facts are distinguishable. Omiecinski and Blanchard involved defendants who entered their pleas prior to the effective date of the Adam Walsh Act but were sentenced after the effective date of the Adam Walsh Act. 7 State v. Clark, ir9 Ohio St.3d 239, 20o8-Ohio-3748, 893 N.E.2d 462, 65, emphasis added (Lanzinger, J. dissenting, Lundberg Stratton, J. concurring). 8 See State v. Omiecinski, Sup. Ct. Case. No. 2oo9-o863 (Proposition of Law V) and State v. Blanchard, Sup. Ct. Case No. 09-1024 (Proposition of Law IV). 4
In both Omiecinski and Blanchard, the Eighth District Court of Appeals found that the trial court did not misinform the appellant. The Eighth District held that the trial court in Omiecinski and Blanchard gave accurate and relevant information at the time of the plea but did not inform of the future consequences of the Adam Walsh Act.9 The Omiecinski court held that the trial court was not required to inform Omiecinski of sex offender registration because the Adam Walsh Act was civil, the court also held that Omiecinski was not prejudiced by the failure to inform of the future obligations under AWA.10 Interestingly, the Blanchard court reached a similar conclusion by applying a Crim. R. ii substantial compliance analysis.ll The proposition of law raised in Omiecinski and Blanchard addresses the State's concerns. But resolution of Omiecinski and Blanchard may not resolve the issue in Roberts because of the factual distinctions. The State does not contest that incorrect information was given to Roberts during the plea. However, the State submits that the automatic vacation standard advanced in Roberts unreasonably elevates collateral or non-essential information to a level of strict compliance. III. Sex offender registration is a collateral consequence and requires a showing of prejudice. The State maintains that the amendments to Ohio's sex offender registration laws under the Adam Walsh Act did not render sex offender registration a criminal penalty. Sex offender registration remains civil-in-nature. Assuming that sex offender 9 State v. Omiecinski, Cuyahoga App. No. 90510, 20o9-Ohio-io66, 22; State v. Blanchard, Cuyahoga App. No. 90935, 20o9-Ohio-1357, 6. 10 State u. Omiecinski, Cuyahoga App. No. 90510, 2oo9-Ohio-io66, 22. 11 State v. Blanchard, Cuyahoga App. No. 90935, 2oo9-Ohio-1357> 5-7 (holding defendant was not prejudiced by trial court's failure to advise of future consequences under the Adam Walsh Act). 5
registration is a criminal penalty and a part of the criminal sentence then trial courts would be required to advise a defendant of sex offender registration as part of the maximum sentence. Incorrectly advising a defendant about the maximum sentence would implicate the substantial compliance test, which requires a defendant to show a prejudicial effect before vacating a plea. In short, even if Crim. R. ii was violated, this Court's case law requires a prejudice analysis. CONCLUSION The guilty plea is the cornerstone of the effective and efficient administration of justice. Defendants enter pleas for many different reasons. Collateral information even if incorrect does not necessarily induce a plea. The automatic vacation standard undermines the finality of pleas. For the foregoing reasons, the State respectfully asks this Honorable Court to reconsider its decision to dismiss this case and to grant the State leave to appeal. Respectfully Submitted, WILLIAM D. MASON CUYAHOGA COUNTY PROSECUTOR By: 1 VR'^. DANIEL T. VAN (#0084614) Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-78oo 6
SERVICE ^^ A copy of the foregoing Motion for Reconsideration has been mailed this!` day of June 2010 to PAUL KUZMINS, 31o Lakeside Avenue, Suite 200, Cleveland, Ohio 44113. DANIELT. VAN (#oo84614) Assistant Prosecuting Attorney 7