Merit Decision: Sex Offender Fails to Show Prejudice in Trial Court’s Incomplete Explanation of All Requirements Attached to Sex Offender Classification. State v. Dangler

By Marianna Bettman on May 11, 2020

“There is nothing in the record indicating that Dangler would not have entered his plea had he been more thoroughly informed of the details of the sex-offender-classification scheme… Because Dangler has not established prejudice, he is not entitled to have his no contest plea vacated for a failure to comply with Crim.R. 11(C).”

Justice DeWine, majority opinion

“Rather than putting our energy into ensuring the narrowness of appellate review for criminal defendants, our goal should be to help Ohio’s trial courts ensure that guilty and no-contest pleas are knowingly, voluntarily, and intelligently entered.”

Justice Donnelly, partial dissent

On May 5, 2020, the Supreme Court of Ohio handed down a merit decision in State v. Dangler, 2020-Ohio-2765. In an opinion written by Justice DeWine, in which Chief Justice O’Connor and Justices Kennedy and French concurred, Justice Fischer concurred in judgment only, and Justice Donnelly concurred in part and dissented in part, with an opinion joined by Justice Stewart, the Court held that a defendant must show prejudice to have a conviction reversed for lack of more compete explanation of the consequences of a Tier III sex offender designation, and that Dangler failed to show prejudice in this case. The case was argued February 20, 2019—more than a year before the decision was issued.

Case Background

Brad Dangler was indicted on one count of rape of a substantially impaired person, a first-degree felony. As part of a negotiated plea, Dangler pled no contest to sexual battery, a third-degree felony. The parties jointly recommended a three-year prison sentence, with the state agreeing not to object to judicial release after 28 months.

At the plea colloquy, the trial court informed Dangler of the maximum possible fine and prison term, and informed him that he “would be obligated to register as a Tier III sex offender which means you would have an obligation to register for your lifetime.” Dangler indicated he understood this. After explaining to Dangler the constitutional rights he was waiving by not going to trial, the judge accepted Dangler’s plea and entered a finding of guilty.

At the sentencing hearing, the court designated Dangler a Tier III sex offender, explained his registration and in-person obligations, and informed him of the penalties for noncompliance. Other than asking for clarification of the date of his initial registration, Dangler told the court he had no other questions about the terms of his Tier III status. The court then imposed the agreed-upon three year prison term with a mandatory five-year period of postrelease control. Dangler appealed.

The Appeal

On appeal, Dangler argued that his plea should be vacated because the trial court failed to inform him of the maximum penalty for his crime in violation of Crim.R. 11(C)(2)(a). Specifically, he was not informed of the registration requirements, in-person verification, residency restrictions and community notification that attach to the Tier III classification. Because of this Dangler argued his plea was not knowingly and voluntarily made. He also challenged the trial court’s order that he pay appointed-counsel fees without a determination of his ability to pay.

The state argued the plea was valid, because Dangler was informed he would be classified as a Tier III sex offender and would be required to register for the rest of his life. The state also argued Dangler failed to show prejudice by the court’s failure to notify him about the other aspects of Tier III requirements.

In a unanimous decision, the Sixth District reversed the trial court. The appeals court held that because the registration, in-person verification, community-notification and residency restrictions are punitive sanctions, the trial court was required to go over each requirement to comply with the maximum penalty advisement required by Crim. R. 11(C)(2)(a), but failed to review the community-notification and residency restrictions. The appeals court vacated Dangler’s conviction and sentence without requiring him to show prejudice and mooted the issue about the appointed counsel fee.

The Supreme Court accepted the case on conflict certification.

Read the oral argument preview of the case here and the analysis of the argument here.

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.)

How does the Supreme Court Answer the Certified Question?

No, although the Court never expressly says “we answer the certified question in the negative.”

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 (C)(2)(a)(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. Stone, 43 Ohio St.2d 163 (1975) (Crim. R. 11 “ensures an adequate record on review by requiring the trial court to personally inform the defendant of his rights and the consequences of his plea and determine if the plea is understandingly and voluntarily made.”)

State v. Stewart, 51 Ohio St.2d 86 (1977) (Defendant was advised of the consequences of his plea despite the trial court not using the precise language of Crim. R. 11).

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. Perry, 2004-Ohio-297 (Criminal defendants seeking convictions reversed on appeal must demonstrate that an error occurred in the trial court and that they were prejudiced by the error.)

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.)

Hayward v. Summa Health Sys., 2014-Ohio-1913 (Prejudice must be established “on the face of the record.”)

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.)

Merit Decision

Analysis

Compliance with Criminal Rule 11

It is black letter law by now that a defendant’s decision to enter a no-contest or guilty plea must be knowing, intelligent and voluntary. Justice DeWine notes that ever since the adoption of the rule, the court has been grappling with the best way to review a trial court’s colloquy to ensure that the plea is knowing and voluntary and has moved away from the rote-recitation-of-the-rule approach to whether the colloquy shows that the defendant understood the consequences of the plea. (Prof’s note: A recent example of this move away from rote recitation is State v. Miller, Slip Opinion No. 2020-Ohio-1420).

General Rule For Reversal in Criminal-Plea Context

The general rule for a criminal defendant to have a conviction reversed on appeal is to prove that the error occurred and then to establish prejudice.

Limited Exceptions Where No Prejudice Need be Shown in Criminal- Plea Context

When a trial court fails to explain these constitutional rights a defendant waives by pleading guilty or no contest— the right to a jury trial, the right to confront one’s accusers, the privilege against self-incrimination, the right to compulsory process to obtain witnesses, and the right to require the state to prove guilt beyond a reasonable doubt—no prejudice need be shown. For nonconstitutional matters, the defendant still must show prejudice.
Where there has been complete failure to comply with a portion of Crim.R.11(C) by the trial court, which, pertinent to this appeal, includes an explanation of the maximum penalty.

Caselaw Has Muddled This Up

Justice DeWine notes that the caselaw has muddled up this prejudice/no prejudice requirement by suggesting different tiers of compliance with the rule, sometimes suggesting partial or substantial compliance is good enough. The rule, he writes, should be straightforward.

Has the trial court complied with the relevant parts of the rule?
If the court has not fully complied, is the purported failure of a type that excuses the defendant from establishing prejudice
If a showing of prejudice is necessary, has the defendant properly established it?

Explaining the Maximum Penalty

The specific issue here in regard to compliance with Crim.R.11(C)(2)(a) is whether the defendant adequately understood the maximum penalty involved in this case, specifically, the obligations attendant to Tier III classification. The Court already decided in State v. Williams that the statutory scheme in Ohio’s version of the Adam Walsh Act was punitive, and the Sixth District relied on that decision it its decision in this case. While opinion author DeWine takes a swipe at the decision in Williams, the Court declines the state’s invitation to revisit that decision, assuming that for the purposes of Criminal Rule 11, the statutory scheme as a whole constitutes a penalty.

Where the Sixth District Went Astray

The Sixth District found that it wasn’t enough for the trial court to inform Dangler he was subject to the sex-offender registration scheme. The trial court should have separately gone over each of the requirements and restrictions imposed by R.C. Chapter 2950. Finding that the trial court failed to do so, the appeals court found a complete failure to comply with a portion of Crim.R.11(C), meaning Dangler did not have to show prejudice. This result, notes DeWine is “premised on the Sixth District’s understanding of each aspect of the sex-offender classification scheme as a discrete criminal penalty.” That is where the high court disagrees, finding that Williams found the statutory scheme as a whole to be punitive, not any one portion. Therefore, because the trial court advised Dangler about his registration requirements, the trial court did not completely fail to comply with the maximum-penalty-advisement requirement of Crim.R.11(C)(2)(a).

Dangler Fails to Show Prejudice

Since the trial court did not completely fail to comply with the requirement that it explain the maximum penalty, Dangler must show prejudice. The maximum-penalty advisement is not a constitutional advisement, so neither of the exceptions to the prejudice requirement apply. So, Dangler much show he would not have pleaded no contest but for this failure to explain the sex-offender-classification scheme more thoroughly, and he cannot.

The majority, unlike the dissent, finds the record is sufficient to decide the prejudice issue now, and not remand the case to the appellate court to do so. The Court finds nothing in the record suggesting Dangler would not have entered his plea if he had been told more about the sex-offender-classification scheme. So, Dangler failed to show prejudice and cannot have his no contest plea vacated for failure to comply with Crim.R.11(C).

But a Best Practices Caution

Trial courts are encouraged to be thorough in going over the consequences of entering a plea with a defendant. In the case of sex offenders, those consequences include the duty to register and provide in-person verification, community notification provisions and residency restrictions.

Bottom Line

The trial court did not completely fail to comply with Crim.R. 11 (C)(2)(a), and nothing in the record supports a finding that Dangler would not have entered his plea if the trial court had been more detailed in its explanation, i.e., no prejudice shown.

Justice Donnelly’s Concurrence in Part and Dissent in Part

The precedent in the Sixth District at the time Dangler appealed his case was to conclusively presume prejudice for a trial court’s failure to inform defendants of each of the specific penal consequences of the defendant’s sex-offender classification. Therefore, Dangler was not on notice that he needed to show prejudice. Donnelly would remand the case to the appeals court to give both parties the chance to brief the issue of prejudice in this case. That said, Donnelly agrees with the majority that reversal is generally appropriate in this kind of situation, and that the certified question should be answered in the negative in this case because he agrees that a trial court’s failure to explain any particular one of the penal consequences of a sex-offender classification is not a complete failure to comply with Crim.R. 11(c)(2)(a). But Donnelly has more to say on this topic.

What Does and Doesn’t Need Elaboration

Take the imposition of a prison term. The trial court does not have to go into detail to explain the meaning of “prison” and each type of loss of liberty it entails. But sex-offender classifications are different and not as well understood now, although some day they might be. Simply informing a defendant of the length of the classification is the minimum necessary to avoid a finding of complete noncompliance with the rule. More is better, in greater detail, for a defendant really to understand the penalty involved here. So, any claim of prejudice deserves very careful consideration.

Best Practices: A Plea for Standard Sex-Offense Plea Forms, and Beyond

Donnelly agrees with the Sixth District that the best practice in a plea colloquy in this situation is for the trial court to explain the registration requirements, community notification requirements, address-verification details, and residence restrictions in detail. He would add to this a written sex-offender-registry notification form signed by the defendant, with an attestation by counsel that the defendant has been advised of and understands the contents of the form.

To Donnelly, the benefit of standard sex-offense plea forms is that the defendant would receive notice of all significant aspects of these classifications before the plea hearing, and not as an afterthought at the sentencing stage. Such forms would give defendants more meaningful engagement with defense counsel and with the court. Attestation by counsel would further ensure this. It would also make plea hearings more efficient and more focused.

“I do not see why this court continues to review cases contesting the validity of guilty and no-contest pleas when this court ends up merely repeating already-existing standards in narrower and narrower terms. We could keep on accepting these cases, or we could do something useful; we could use our power to promulgate rules of procedure that incorporate standardized guilty and no-contest plea forms for sex offenses,” Donnelly wrote.

Even beyond standard sex-offense plea-forms, Donnelly sees standard plea forms for all categories of criminal offenses as an enhancement of the efficiency of the judicial process and protecting the due process rights of defendants.

Justice Stewart concurred in this opinion.

Case Disposition

The court of appeals is reversed on the certified-conflict issue, the acceptance of the plea by the trial court is reinstated, and the case is remanded to the appeals court to resolve the issue it had mooted, which was ordering Dangler to pay court-appointed counsel fees without a determination of his ability to pay.

Trial Court Judge (Affirmed)

Williams County Court of Common Pleas Judge J.T. Stelzer

Sixth District Panel (Reversed)

Opinion by Judge Mark L. Pietrykowski, joined by Judges Thomas Osowik and Christine Mayle

Concluding Observations

Here’s what I wrote after argument:

“I’m with Ms. Coble [Dangler’s lawyer] 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.”

While I was wrong about Dangler winning here, I think his lawyer, Ms. Coble, should consider Justice DeWine’s “best practices” admonition in his opinion a win. I suspect that going forward, trial judges will do as DeWine recommends: (and Coble argued) review with particularity the consequences flowing from sex offender classification, namely the duty to register, provide in-person verification, the community-notification provisions, and the residency restrictions.

This case took well over a year to decide. I’m just guessing here, but Justice Donnelly has long been concerned about the plea bargaining and plea hearing process, well before he became a supreme court justice. I think he may have been looking for the appropriate situation to lay out those concerns, and recommend some best practices, and this seemed the case to do it. His suggestions make a lot of sense, and I hope receive appropriate consideration.