Update: On May 5, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“So what aspect at the time of the plea—not sentencing—was there substantial compliance?”

Justice Stewart, to the prosecutor

“What are the words the trial court has to say to be ok?”

Justice DeWine to defense counsel

On February 20, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Brad J. Dangler, 2017-1703. At issue is whether a trial court must inform a defendant of all penalties associated with a sex offender classification to comply with Crim.R. 11’s requirement that a defendant enter a plea knowingly and voluntarily. The case was accepted on conflict certification.

Case Background

As part of a negotiated plea, Brad Dangler pled no contest to a sexual battery charge.  At the plea hearing, the trial court told Dangler that he would have to register as a Tier III sex offender for life. Dangler acknowledged that he understood the explanation. At the sentencing hearing, the judge informed Dangler that this registration required specific reporting obligations, and that these obligations would be provided to him in writing at a later time. But at no time did the judge inform Dangler of the community notification requirements and the residential restrictions. Dangler was sentenced to three years in prison and five years of post-release control.

Dangler appealed to the Sixth District Court of Appeals on the grounds that his plea was not voluntarily and knowingly made because the trial court failed to comply with Crim.R. 11 by not informing him of the punitive consequences of his plea—specifically, that the trial court never informed him of the community notification requirements, residence restrictions, and in-person verification requirements of Tier III registered sex offenders.

In a unanimous decision written by Judge Mark L. Pietrykowski, joined by Judges Thomas Osowik and Christine Mayle, the Sixth District reversed the trial court. The Appeals Court held that the trial court failed to substantially comply with Crim. R. 11’s requirement that Dangler be informed of the punitive consequences of his plea.

The Supreme Court then accepted the case on conflict certification.

Certified Question

“During a plea proceeding, does the failure of the sentencing court to inform a defendant of all the penalties associated with a sex offender classification imposed by R.C. Chapter 2950 constitute a complete failure to comply with Crim.R. 11 and render the plea void without the need to show prejudice resulted?”

Certified Conflict Cases

 State v. Creed, 2012-Ohio-2627 (8th Dist.) (The trial court substantially complied with Crim.R. 11 despite failing to notify the defendant that by pleading guilty he could not live within 1,000 feet of a school.)

State v. Young, 2014-Ohio-2213 (2nd Dist.) (The trial court’s reference to the correct sex-offender tier level and the need for registration constituted partial compliance, and because no prejudice was shown, the plea was valid.)

Read the oral argument preview here.

Key Statutes and Precedent

R.C. 2950 (Ohio’s sex offender classifications and registration requirements, including duty to register, residency restrictions, and geographic notifications.)

Crim.R. 11 (A court shall not accept a guilty or no contest plea without addressing the defendant personally and determining that the plea is knowingly, intelligently, and voluntarily made.)

State v. Nero, 56 Ohio St.3d 106 (1990) (“Literal compliance with Crim. R. 11 is certainly the preferred practice, but the fact that the trial judge did not do so does not require vacation of the defendant’s guilty plea if the reviewing court determines that there was substantial compliance.”)

State v. Veney, 2008-Ohio-5200 (“Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.”)

State v. Clark, 2008-Ohio-3748 (“for a plea to be knowingly, intelligently, and voluntarily made, the trial judge must substantially comply with Crim.R. 11 by informing the defendant about the applicability of postrelease control and parole to his or her sentence.”)

State v. Williams, 2011-Ohio-3374 (The registration requirements of R.C. 2950 are punitive, rather than remedial, measures.)

State v. Barker, 2011-Ohio-4130 (An alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference to other portions of the record, including the written plea. Syllabus paragraph 2.)

State v. Young, 2014-Ohio-2213 (2nd Dist.) (“. . . a trial court need not elaborate on every specific registration requirement before accepting a plea.”)

State v. Clark, 2008-Ohio-3748 (Due process requires that a defendant’s plea be made knowingly, intelligently, and voluntarily; otherwise, the defendant’s plea is invalid.)

State v. Sarkozy, 2008-Ohio-509 (Before accepting a guilty plea, failure of the trial court to inform a defendant of the mandatory term of postrelease control, which was part of the maximum penalty, does not meet the requirements of Crim.R. 11(C)(2)(a) and prejudice need not be shown.)

State v. Bishop, Slip Opinion No. 2018-Ohio-5132.  (Crim.R. 11 requires trial courts to advise defendants with prior felonies, during plea hearings in new felony cases, of the trial court’s ability to impose consecutive prison sentences for violations of post-release control.)

At Oral Argument

Arguing Counsel

David T. Harold, Williams County Special Prosecutor, Wood County Prosecutor’s Office, for Appellant State of Ohio

Karin L. Coble, Law Office of Karin L. Coble, Toledo, for Appellee Brad J. Dangler

State’s Argument

There are two issues in this case-what constitutes a complete failure to comply with Crim.R. 11 and whether or not prejudice must be shown at the time of a plea. In this case there was substantial compliance with the Rule and Mr. Dangler failed to show prejudice. The failure to mention one facet of sex offender classification does not equate to a complete failure at the time of plea. The Sixth District has taken the standard of whether or not things must be mentioned at sentencing and moved it to whether or not it has to be mentioned at the time of the plea.

Mr. Dangler was not surprised at the time of his plea or at the time of his sentencing that he was going to be a sexual offender, because he was apprised in his very first appearance that he was going to be classified as a Tier III sexual offender if found guilty. This was reaffirmed at various times in the proceedings, including at plea. And again, at the sentencing hearing, Mr. Dangler was read verbatim from the form that more fully informs the offender of the requirements of his classification, and he did not object or protest that he had not been properly informed. And while the state concedes that Mr. Dangler was not informed of the community notification requirements at the time of plea, that does not constitute a complete failure to comply with the Rule. What is required at the time of plea is to inform the offender of the Tier the offender will be in, and how long the registration will be.  In this case, that would be a Tier III offender, with lifetime registration. At that point the rule is substantially complied with, and it was in this case. Additionally, Mr. Dangler was at all times represented by counsel, who must share some of the responsibility for informing the offender of the particulars involved in sexual offender classification.

The Sixth District is requiring what is in effect a strict compliance standard for a substantial compliance issue. That court is saying that one small mistake when something is not mentioned at plea creates a complete failure. At a minimum, what needs to be said at the time of plea is you are a Tier III sexual offender which will include registration for life. The state asks this Court to harmonize the Sixth District with the other districts within the state that require a showing of prejudice when one or two factors are not mentioned at the time of plea in order to find that substantial compliance has not occurred.

Dangler’s Argument

This Court has explicitly held that Chapter 2950 is punitive. The rule from the Sixth District logically follows from all of this Court’s precedents starting with Williams, and most recently, with Bishop. But unlike Bishop, trial judges in this situation do not have to track down additional information from a separate case. Here, because the consequences are automatic upon acceptance of a plea, the trial judge will already have all of that information at hand.

The Sixth District has articulated a very clear test for trial courts that encapsulates the core punishments that derive from a tier classification. The core punishments are address verification, community notification, and the residential restrictions. And by articulating all of that information at the time of the plea, everybody in court can be on the same page. The Sixth District has created a form, which may be somewhat complicated, but no more so than what is required for judges at a DUI sentencing.

This case presents this Court with an opportunity to give appellate courts very clear guidance about what constitutes substantial compliance by trial courts in this context. Following the Sixth District’s rule, at the time of plea, the trial judge must tell the defendant, and ask if he understands, that upon acceptance of the plea, he will automatically be classified as a Tier III sex offender, subject to registration for life, which includes address verification every 90 days for life, and which includes community notification and residential restrictions, and that failure to abide by these restrictions will result in additional penalties. This is both necessary and sufficient to constitute substantial compliance.

Once there is substantial compliance, it must be determined whether there is partial compliance or a complete failure to comply with the rule. As reaffirmed in Bishop, partial compliance means that a punishment is mentioned, but not explained.  If there is partial compliance, then the burden is on the defendant to show he was prejudiced by that lack of an explanation, but at least it was mentioned to him.

According to this court’s precedents, what constitutes compliance is mentioning the requirements. Not having to go into detail, but simply mentioning that the requirement exists and that there will be additional penalties if not met puts the defendant on notice so he can then inquire either of the court or of counsel.  These  requirements could also be put in a form that would be available to trial judges at the time of the plea rather than at the time of the sentencing.

What Was On Their Minds

What Suffices for Substantial Compliance

Is the state really just saying there was substantial compliance here and the defendant didn’t show prejudice, asked Justice Stewart? (answer: yes.)

Are the residency restrictions and the community notification requirements collateral, asked Chief Justice O’Connor? Aren’t they essential parts of a Tier III classification? Is there any variation where some Tier III sexual offenders do not have to register and do not have to have community notification? Must the advisement include the consequences of failure to comply? What exactly should the test be? Aren’t the specifics necessary at the time of the plea? Including the fact that failure to comply with this will result in criminal charges?

Why isn’t the analysis here that Mr. Dangler was told he was a Tier III sex offender, and now he has to show prejudice, asked Justice DeWine in a long exchange with Ms. Coble. What exactly must the trial judge say to substantially comply? Must the judge discuss the restrictions near a school? Or a child care facility? And what exactly should be said about the residency requirements? Just that there are some or must the judge list the places they can’t live in? List everything in the statute? If it is the punishments that must be explained, would the judge need to read the defendant the entire statute? Whether there is partial compliance or a complete failure, isn’t that the question of whether there is substantial compliance? Either you substantially comply or you completely fail to comply? It seems to me that saying “Tier III sex offender,” mentions the so-called punishment, and that is the compliance required. After that, the defense is just debating the level of detail it wants the court to explain.  I’m just trying to get everything that needs to be in there because there is a big list of things, DeWine said.  Isn’t the reason the form’s at sentencing because that’s when the legislature said it should be done?

Justice Fischer asked a series of hypotheticals in another lengthy exchange with Ms. Coble.  Assume two statements by the trial judge, he said. One is that you will be found to be a Tier III and you will have residency requirements. The other is you’ll be a Tier III, you’ll have residency requirements, and can’t live within 1000 feet of a school or child care center—go further in depth.  Is either substantial compliance? No, said Ms. Coble, for failure to advise the defendant that if he failed to comply he can be charged with a new felony. What about the judge telling the defendant that he will be found to be a Tier III and if he violate any of those provisions, there are punishment consequences, including possibly jail and fines. Is that sufficient? (still no, said Ms. Coble.)

What Was Defendant Told by the Court

Did the defendant know what a Tier III offender was, asked Chief Justice O’Connor? How?

Was there a point at which the court specifically advised the defendant of the residency restrictions and the community notification, asked Justice French? Are they on a form somewhere? A booklet? How would he be advised of those specific requirements? (The prosecutor conceded Dangler was not informed of the community notification requirements).

Getting back to the plea, the Criminal Rule 11 requirements are inherent upon the judge, noted Justice Stewart. Counsel has some responsibility, but the Criminal Rule 11 requirements are a must so that the judge knows the plea is being made knowingly, intelligently and voluntarily made.  So what aspect at the time of the plea—not sentencing—was there substantial compliance? Doesn’t Rule 11 require that all the penalties inherent in taking a plea be told to the defendant? How does someone knowingly decide to enter into a plea when told he has to register as a Tier III sexual offender? Aren’t the defendants required to know what all of that entails? Living restrictions, registration restrictions, the timeliness of them, what can happen if you don’t register—just by saying Tier III, is the defendant supposed to know all that?

Setting aside the idea of whether the court in this particular case substantially complied, would the state agree that it would be advisable for this Court to guide the trial courts of this state that it would be the best practice at every plea colloquy to have the form signed rather than at sentencing, and that way defense counsel can go over every single detail about the sexual registration requirement, have the defendant sign it, have counsel sign it,  and that should be done at the plea hearing, rather than at sentencing, asked Justice Donnelly? Later, he asked if the Court wasn’t entitled to presume that Mr. Dangler had competent counsel who went over everything in detail before Mr. Dangler entered his plea.

How It Looks From The Bleachers

To Professor Emerita Bettman

First off, compliments to both counsel for an extremely well-argued case.  I’d place Ms. Coble in particular in the top tier of oralists the blog has previewed. And Mr. Harold had a very nice, sincere manner, particularly when he admitted the trial court had failed to inform Dangler about the community notification requirement.

I’m with Ms. Coble here. I think at the plea hearing, telling a defendant he is a Tier III offender doesn’t mean the defendant understands what that means, as the Chief suggested, nor should the trial judge have to inform the defendant of every provision in the statute, as Justice DeWine seemed to be suggesting if the Sixth District is affirmed. I think Ms. Coble’s answer is just fine—the defendant needs to be informed by the trial judge of the punitive consequences of a Tier III classification, namely address verification, community notification, and the residential restrictions, and that there will be additional punishment if these requirements are not met. So what if this puts more of a burden on the trial court?  That’s part of being a judge, and cannot be replaced by defense counsel’s duties to a client.  As the Chief suggested in one of her questions, just informing a defendant that he is a Tier III offender doesn’t mean the defendant understands what that means. And the punitive consequences that are attached to that classification are so draconian, what’s the harm in spending a little more time spelling out exactly what that means, at the plea hearing, to make sure that plea is knowingly made? It would seem that is the time it most matters.

Whether Dangler has a majority for his position is hard to say, because this one may be close, but I think the Chief and Justices Stewart, Donnelly, and French will go with Dangler’s position. Justices DeWine and Fischer seemed convinced there was substantial compliance and no prejudice here.

To Student Contributor Carson Miller

This is a close call. Chief Justice O’Connor latched onto Ms. Coble’s argument that the main issue in this case is defendants’ knowledge of the potential penal consequences of violating their sex offender requirements, rather than exact specificity of what the sex-offender registration requirements actually are. Both Justices Stewart and French questioned the state on similar grounds. I think Dangler has these three votes.

On the other side, Justices Fischer and DeWine emphasized the burden placed on trial courts to determine how they might substantially comply with Crim.R. 11; Justice DeWine asked if judges would be required to read R.C. 2950 to defendants before they enter a plea.

To what degree should trial courts rely on counsel to explain to their clients the consequences of accepting sex-offender status? Justice Donnelly asked both sides about the role of defense counsel in putting defendants on notice, and whether courts should ensure that defense counsel have done this. I think that Justice Donnelly’s vote will decide the case.

I think Dangler will win, with Chief Justice O’Connor, Justice French, Justice Stewart, and Justice Donnelly forming the majority. I think that Justice Donnelly will be swayed by the opportunity to provide trial courts with clearer guidance as to what exactly courts need to ensure defendants are aware of when making a plea. However, if Justice Donnelly determines that this burden better falls on defense counsel, the state could very well win this case.