[Cite as State v. Newell, 2024-Ohio-939.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 21AP-648

v. : (C.P.C. No. 20CR-5109)

James D. Newell, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on March 14, 2024 

On brief: G. Gary Tyack, Prosecuting Attorney, and

Taylor M. Mick, for appellee. 

On brief: Law Offices of Mark J. Miller, LLC, and Mark J. 

Miller, for appellant. 

APPEAL from the Franklin County Court of Common Pleas

LELAND, J.

{¶ 1} Defendant-appellant, James D. Newell, appeals a judgment of the Franklin 

County Court of Common Pleas convicting him, pursuant to a guilty plea, of attempted 

burglary and burglary. For the following reasons, we affirm that judgment.

I. Facts and Procedural History

{¶ 2} On October 29, 2020, Newell was indicted on one count of attempted

burglary, a felony of the third degree in violation of R.C. 2923.02 and 2911.12; one count of 

burglary, a felony of the second degree in violation of R.C. 2911.12; and one count of theft, 

a felony of the fifth degree in violation of R.C. 2913.02. All of these charges arose out of 

Newell’s actions on July 26, 2020.

{¶ 3} Newell initially entered a plea of not guilty. However, on September 28, 2021, 

Newell appeared before the trial court, withdrew his plea of not guilty, and entered a plea 
No. 21AP-648 2

of guilty to one count of attempted burglary and one count of burglary. During the plea

hearing, the prosecutor informed the court “this was a case that was originally assigned to 

a former prosecutor” who “made [a] plea offer to defense counsel back in January.” 

(Sept. 28, 2021 Tr. at 3.) The prosecutor represented it was “not an offer that the victim is 

happy with, or that I would have considered at the time; but since the offer was made by 

my office, I feel it appropriate that we continue that offer. And so that’s why the offer is still 

on the table and offered to Mr. Newell today.” (Sept. 28, 2021 Tr. at 3-4.)

{¶ 4} The prosecutor then explained that, in the early morning hours of July 26, 

2020, Newell “attempted to gain entrance into [the] back of a residence on Tanbark Court 

in Galloway, Ohio.” (Sept. 28, 2021 Tr. at 4.) Newell’s failure to access the Tanbark Court 

residence was captured by the homeowner’s home video surveillance system. 

Approximately 45 minutes later, Newell successfully broke into a house located on Shelba 

Drive in Galloway. The Shelba Drive residence’s home video surveillance system showed 

Newell in the backyard shortly after 4:00 a.m. The Shelba Drive home alarm “was tripped 

at 4:32 a.m., * * * when the sliding glass door was opened for [Newell] to exit the home.” 

(Sept. 28, 2021 Tr. at 4.) Although the homeowners were not home, their teenage son was 

sleeping in the house when Newell burglarized it. The homeowners received an alarm alert 

and immediately called their son, who called police. Newell stole “a number of items, * * * 

including jewelry” from the Shelba Drive residence. (Sept. 28, 2021 Tr. at 5.)

{¶ 5} During the plea hearing, the trial court reviewed the plea agreement with 

Newell, asking him if he had signed the agreement, whether he had discussed the 

agreement with his counsel before signing it, and whether his counsel “explain[ed]

everything in the form” to him. (Sept. 28, 2021 Tr. at 6-7.) Newell answered affirmatively 

to each of those questions. The trial court noted the plea form indicated that “you’re going 

to plead guilty to Count One and Count Two of the indictment,” and “Count Three is going

to be dismissed by you pleading guilty to those two counts.” (Sept. 28, 2021 Tr. at 7.) 

Newell concurred. The court informed Newell of the maximum sentence for a felony of the 

second degree, as well as for a felony of the third degree. The court summarized by stating

“[t]heoretically, by pleading guilty today, you could serve a total of 15 years in prison.” 

(Sept. 28, 2021 Tr. at 7-8.) Newell stated he understood the possible sentences. The trial 

court then noted “there’s a joint recommendation that you serve a minimum sentence of 
No. 21AP-648 3

two to three years at the Ohio Department of Rehabilitation and Corrections.” (Sept. 28, 

2021 Tr. at 8.) Again, Newell stated he understood.

{¶ 6} The trial court also reviewed with Newell the rights he was giving up by 

entering a plea. Thereafter, Newell entered a guilty plea to one count of burglary and one 

count of attempted burglary. The trial court found “[Newell] has appeared in open court 

with the assistance of counsel,” that “[h]e has demonstrated a full understanding of the 

maximum possible penalties,” and “has made a knowing, intelligent and voluntary waiver 

of his rights.” The court then “accept[ed]” Newell’s “change of plea.” (Sept. 28, 2021 Tr. at 

12.) 

{¶ 7} After accepting the change of plea, the trial court indicated it was going to 

defer sentencing Newell until it had reviewed a presentence investigation report. The trial 

court informed Newell that “you’re going to meet with our probation officer * * * about this 

offense. * * * I want you to be upfront with them in that report.” (Sept. 28, 2021 Tr. at 13.) 

The trial judge further stated “I indicated that I was probably going to go along with that 

joint recommendation that we have, but I want to see you being honest and showing - -

taking responsibility when you have that [presentence investigation] interview.” (Sept. 28, 

2021 Tr. at 13.) 

{¶ 8} On October 28, 2021, the trial court conducted a sentencing hearing during 

which the court noted Newell had previously pled guilty to one count of attempted burglary

and one count of burglary, and the court had “ordered a presentence investigation report” 

that it “had a chance to review.” (Oct. 28, 2021 Tr. at 2.) The trial court also informed the 

parties it had reviewed a victim impact statement authored by the homeowners of the 

Shelba Drive residence. One of the homeowners then stated “[m]y seven-year-old is 

traumatized from the situation. She no longer feels safe in her own home. She won’t even 

sleep in her own bed anymore because she doesn’t know if this will ever happen again.” 

(Oct. 28, 2021 Tr. at 5.) The homeowner asked “[h]ow does someone spend four years in 

jail for this his first time, released on parole, but then commits the same crime, with my 16-

year-old son home alone, not only the same crime, but the same neighborhood three houses 

down from his first offense?” (Oct. 28, 2021 Tr. at 5.) She concluded “[Newell] has zero 

remorse for his crime and what he has done to our family. I don’t feel like justice is being 

served.” (Oct. 28, 2021 Tr. at 5.)
No. 21AP-648 4

{¶ 9} Newell’s counsel addressed the trial court and requested it “follow the joint 

recommendation in this case.” (Oct. 28, 2021 Tr. at 7.) Regarding that recommendation, 

the trial court stated “it is a principle of plea negotiations that the Court is not bound by any 

recommendation. It is merely that, a recommendation.” (Oct. 28, 2021 Tr. at 10.) The trial 

court went on to say “[g]iven that Mr. Newell had previously served a term of incarceration 

for the same offense, a Burglary, * * * that he was on post-release control supervision for 

that offense at the time of these new offenses, I do not find that the joint recommendation 

is appropriate in this matter.” (Oct. 28, 2021 Tr. at 10.)

{¶ 10} The trial court orally pronounced Newell would receive a sentence of 12 

months incarceration for attempted burglary, to run concurrent to a 6-year term of 

incarceration for burglary “for a total sentence, an indeterminate sentence, of six to nine 

years in prison,” with 372 days of jail-time credit. (Oct. 28, 2021 Tr. at 10.) By judgment 

entry filed November 5, 2021, the trial court imposed a prison term of 6 to 9 years on Count 

1, and 12 months on Count 2, and the court ordered the sentences to run concurrently.

II. Assignments of Error

{¶ 11} Newell now appeals the November 5, 2021 judgment, and assigns the 

following three assignments of error for this court’s review:

[I.] The trial court rendered Appellant’s plea involuntary and 

violated Appellant’s State and Federal Constitutional rights by 

not following the joint recommendation of sentence and 

imposing a sentence that greatly exceeded the agreed-upon 

sentencing recommendation.

[II.] The trial court abused its discretion in rejecting the joint 

recommendation of the parties and sentencing Appellant to a 

sentence excessively more than the recommendation.

[III.] As amended by the Reagan Tokes Act, the Ohio Revised 

Code’s sentences for first and second degree qualifying 

felonies violates the Constitutions of the United States and the 

State of Ohio.

III. Analysis

{¶ 12} By his first assignment of error, Newell argues the trial court rendered his 

plea involuntary by failing to follow the joint sentencing recommendation and by imposing 

a sentence greatly exceeding the recommended sentence. Newell contends he entered his 

guilty plea relying on the two-year joint recommendation which the trial court “knew about 
No. 21AP-648 5

and stated that it was ‘probably’ going to follow if the [a]ppellant showed responsibility.” 

(Appellant’s Brief at 5.) 

{¶ 13} Due process requires that “ ‘[w]hen a defendant enters a plea in a criminal 

case, the plea must be made knowingly, intelligently, and voluntarily.’ ” State v. Veney, 120 

Ohio St.3d 176, 2008-Ohio-5200, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). 

The enforcement of a plea that does not satisfy each of these three criteria is 

unconstitutional under both the United States and Ohio Constitutions. Id.

{¶ 14} A trial court is not bound by a jointly recommended sentence in a plea 

agreement. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 28. Thus, “ ‘[a] trial 

court does not err by imposing a sentence greater than “that forming the inducement for 

the defendant to plead guilty when the trial court forewarns the defendant of the applicable 

penalties, including the possibility of imposing a greater sentence than that recommended 

by the prosecutor.” ’ ” State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 

¶ 6, quoting State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, ¶ 13 (5th Dist.), 

quoting State v. Pettiford, 12th Dist. No. CA2001-08-014 (Apr. 22, 2002). Preferably, a 

trial court will explicitly inform a defendant of its ability to deviate upward from the 

recommended sentence at the plea hearing. State v. Melson, 2d Dist. No. 2022-CA-53, 

2023-Ohio-1231, ¶ 11; State v. Vargyas, 6th Dist. No. WD-20-068, 2021-Ohio-3383, ¶ 10; 

State v. Downing, 2d Dist. No. 2019-CA-72, 2020-Ohio-3984, ¶ 34; State v. Harder, 6th 

Dist. No. OT-14-005, 2015-Ohio-795, ¶ 7. However, a trial court may instead deliver the 

necessary warning by advising the defendant of the maximum prison term he or she faces. 

Melson at ¶ 13; Vargyas at ¶ 12-13, 16; Downing at ¶ 37-39; Harder at ¶ 8, 12. Additionally, 

the plea agreement may inform the defendant that the trial court is not bound to follow the 

recommended sentence. Melson at ¶ 13; Vargyas at ¶ 12-13, 16; Downing at ¶ 36-37, 39; 

Harder at ¶ 9-12.

{¶ 15} In this case, the plea agreement Newell signed stated “I understand that the 

prosecution and defense jointly recommend to the Court the following sentence(s), which 

is/are not binding upon the Court: A mandatory indefinite sentence of 2 – 3 years at the 

ODRC.” (Emphasis added.) (Entry of Guilty Plea at 1.) Moreover, in the signed plea 

agreement, Newell “assert[ed] that no person has * * * promised me leniency, or in any 

other way coerced or induced me to plead ‘Guilty’ as indicated above; my decision to plead 

‘Guilty,’ thereby placing myself completely and without reservation of any kind upon the 
No. 21AP-648 6

mercy of the Court with respect to punishment, represents the free and voluntary exercise 

of my own will and best judgment.” (Entry of Guilty Plea at 3.)

{¶ 16} During the sentencing hearing, Newell confirmed to the trial court that his 

attorney had reviewed “everything” in the plea agreement to him. (Sept. 28, 2021 Tr. at 6.) 

The trial court then explained to Newell it could sentence him to 2 to 12 years imprisonment 

for burglary, a second-degree felony, and up to 36 months imprisonment for attempted 

burglary, a third-degree felony. The trial court followed up by stating “[t]heoretically, by 

pleading guilty today, you could serve a total of 15 years in prison.” (Sept. 28, 2021 Tr. at

8.) Newell replied that he understood the possible sentences.

{¶ 17} Based on the signed plea agreement and the plea colloquy, we conclude 

Newell understood at the time he changed his plea that the trial court was not required to 

follow the state’s recommendation as to sentencing and he faced a potential maximum 

prison term that far exceeded the recommended sentence. Given this knowledge, Newell

entered his guilty plea apprehending that the trial court had the ability to impose a greater 

sentence than the recommended sentence. 

{¶ 18} Newell, however, next asserts the trial court’s involvement in the plea 

negotiations—specifically, its representation that it would probably follow the joint 

sentence recommendation—made the recommendation binding on the trial court.

{¶ 19} Due to a judge’s position in the criminal justice system, judicial participation 

in the plea-bargaining process “presents a great potential for coerced guilty pleas and can 

easily compromise the impartial position a trial judge should assume.” State v. Byrd, 63 

Ohio St.2d 288, 293 (1980). Although the Supreme Court of Ohio “strongly discourages” a 

trial judge’s participation in the plea-bargaining process, a plea is not presumptively invalid 

because of such involvement. Id. Rather, “a trial judge’s participation in the plea 

bargaining process must be carefully scrutinized to determine if the judge’s intervention 

affected the voluntariness of the defendant’s guilty plea.” Id. An appellate court considers 

the totality of the record to determine whether a trial judge’s participation in plea 

negotiations affected the voluntariness of the plea. State v. Finroy, 10th Dist. No. 09AP795, 2010-Ohio-2067, ¶ 7.

{¶ 20} When a trial court promises a certain sentence, that promise becomes an 

inducement to enter a plea and, unless that sentence is given, the plea is not voluntary. 

State v. Elcess, 12th Dist. No. CA2023-01-005, 2023-Ohio-2820, ¶ 13; State v. Harrison, 
No. 21AP-648 7

2d Dist. No. 28526, 2020-Ohio-4154, ¶ 22; State v. Korecky, 8th Dist. No. 108328, 2020-

Ohio-797, ¶ 13; State v. Wallace, 9th Dist. No. 14CA010609, 2015-Ohio-4222, ¶ 10. 

However, “a trial court generally does not improperly participate in plea negotiations as to 

sentencing when it does not promise a particular sentence or otherwise encourage the 

defendant to enter a plea in order to receive a more lenient sentence.” Harrison at ¶ 23.

{¶ 21} In this case, at some point prior to the plea hearing, the parties and the trial 

judge appear to have had an off-the-record conversation regarding the plea bargain. We 

infer that this conversation occurred because the transcript of the plea hearing includes the 

trial judge’s reference to a comment that he made during that conversation. Towards the 

end of the plea hearing, the trial judge stated that he had previously “indicated that [he] 

was probably going to go along with that joint recommendation that we have.” (Sept. 28, 

2021 Tr. at 13.) Based on this comment, we surmise the judge told the parties that he 

“probably” would impose the jointly recommended sentence on Newell during the off-therecord conversation. 

{¶ 22} Notably, because the record does not contain the conversation regarding the 

plea bargain, we do not know whether it occurred before or after Newell signed the plea 

agreement. If it occurred after Newell signed the plea agreement, the judge did not 

participate in the plea negotiations and the judge’s comment could not have factored into 

Newell’s decision to plead guilty. The comment, then, could not render Newell’s plea 

involuntary.

{¶ 23} On appeal, an appellant bears the burden of showing error by reference to 

matters in the record. State v. Justice, 10th Dist. No. 21AP-253, 2022-Ohio-87, ¶ 5. When 

an appellate court lacks the necessary record to decide whether error occurred, we have no 

choice but to presume the validity of the trial court’s proceedings and affirm. Id. Here, 

given the paucity of the record, Newell cannot direct this court to anything in the record

that unequivocally demonstrates the trial court participated in the plea negotiations. 

Because we cannot determine from the record whether the trial court participated in the 

plea negotiations, we must presume the validity of the trial court’s proceedings and affirm.

{¶ 24} Moreover, regardless of when the trial judge stated he would “probably” 

impose the jointly recommended sentence, that statement does not constitute a promise of 

a particular sentence. At best, the judge indicated he was likely, but not certain, to impose

the two-to-three-year recommended sentence. Additionally, as we stated above, Newell 
No. 21AP-648 8

understood he could receive a longer prison sentence because the plea agreement warned

him that the recommended sentence was “not binding upon the Court.” (Entry of Guilty 

Plea at 1.) Having this information, Newell could not construe the judge’s comment as a 

promise that he would impose the recommended sentence. In short, the totality of the 

circumstances do not demonstrate that the trial judge guaranteed Newell the jointly 

recommended sentence, thus rendering Newell’s plea involuntary when Newell did not 

receive that sentence.

{¶ 25} In sum, the trial court warned Newell that it could impose a sentence greater 

than the jointly recommended sentence and it did not promise any particular sentence to 

Newell. We thus conclude that Newell’s guilty plea was voluntary. Accordingly, we overrule 

Newell’s first assignment of error. 

{¶ 26} By his second assignment of error, Newell argues the trial court abused its 

discretion in sentencing him to a prison term that exceeded the two-to-three-year term that 

the parties jointly recommended. Newell maintains the sentence was unreasonable and 

unconscionable in light of the trial court’s earlier representation that it probably would 

follow the sentence recommendation.

{¶ 27} R.C. 2953.08(G) governs appellate review of felony sentences. State v. 

Workman, 10th Dist. No. 21AP-607, 2024-Ohio-167, ¶ 45; State v. Farmer-Reese, 10th 

Dist. No. 22AP-613, 2023-Ohio-4772, ¶ 18. That statute explicitly states “[t]he appellate 

court’s standard for review is not whether the sentencing court abused its discretion.” R.C. 

2953.08(G)(2). Consequently, appellate courts may not apply the abuse of discretion 

standard in sentencing challenges. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 

¶ 10; State v. D.H., 10th Dist. No. 18AP-608, 2019-Ohio-1017, ¶ 21. Because we may not 

review or reverse a felony sentence for an abuse of discretion, we overrule Newell’s second 

assignment of error.

{¶ 28} By his third assignment of error, Newell argues the trial court erred in 

imposing an indefinite sentence under the Reagan Tokes Law because that law is 

unconstitutional. We disagree.

{¶ 29} Effective March 2019, the Reagan Tokes Law provides that first- and seconddegree felonies not already carrying a life sentence are subject to an indefinite sentencing 

scheme consisting of a minimum and maximum prison term. R.C. 2929.14(A)(1)(a) and 

(A)(2)(a). The Reagan Tokes Law creates a presumption that an offender will be released 
No. 21AP-648 9

from incarceration after serving the minimum prison term but gives the Ohio Department 

of Rehabilitation and Correction (“ODRC”) the opportunity to rebut that presumption, in 

which case the ODRC may maintain the offender's incarceration up to the maximum prison 

term. R.C. 2967.271(B), (C), and (D).

{¶ 30} During the sentencing hearing, the trial court determined the Reagan Tokes 

Law applied to the burglary offense. As a result, the trial court sentenced Newell to an 

indefinite sentence of a minimum of six years and a maximum of nine years in prison. 

Newell now argues on appeal the trial court erred in applying the indefinite sentencing 

structure of the Reagan Tokes Law because that law is unconstitutional. More specifically, 

Newell argues that R.C. 2967.271, which allows ODRC to incarcerate an offender beyond 

the minimum prison term imposed by a trial court, violates the separation-of-powers 

doctrine, the right to a jury trial, and procedural due process.

{¶ 31} While this appeal was pending, the Supreme Court issued a decision finding 

the Reagan Tokes Law to be facially constitutional. State v. Hacker, __ Ohio St.3d __, 

2023-Ohio-2535, ¶ 41 (holding the Reagan Tokes Law does not violate the doctrine of 

separation of powers, the right to a jury trial, or procedural due process). Following the 

Supreme Court’s decision in Hacker, we reject Newell’s constitutional challenge to the 

indefinite sentencing structure of the Reagan Tokes Law. Accordingly, we overrule Newell’s 

third assignment of error.

IV. Conclusion

{¶ 32} For the foregoing reasons, we overrule Newell’s three assignments of error, 

and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed. 

LUPER SCHUSTER and BOGGS, JJ., concur.