[Cite as State v. Midkiff, 2023-Ohio-1835.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

CLARK COUNTY

STATE OF OHIO 

 Appellee

v. 

DUSTIN MIDKIFF

 Appellant

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C.A. No. 2022-CA-62

Trial Court Case No. 22-CR-0442

(Criminal Appeal from Common Pleas 

Court)

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O P I N I O N

Rendered on June 2, 2023

. . . . . . . . . . . 

IAN A. RICHARDSON, Attorney for Appellee

 

LUCAS W. WILDER, Attorney for Appellant

 . . . . . . . . . . . . .

LEWIS, J.

{¶ 1} Defendant-Appellant Dustin Midkiff appeals from his conviction in the Clark 

County Court of Common Pleas after pleading guilty to one count of robbery, one count 

of attempted aggravated robbery, and one count of failure to comply. In support of his 

appeal, Midkiff contends that the trial court abused its discretion by denying his motions 

for continuance. Midkiff also contends that his sentence was contrary to law because, at 
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the sentencing hearing, the trial court failed to provide the statutorily required notices set 

forth in R.C. 2929.19(B)(2)(c). For the reasons outlined below, we conclude that Midkiff’s 

guilty plea functioned as a waiver of any alleged error in the trial court’s denial of his 

motions for continuance, but that his sentence was contrary to law due to the trial court’s 

failure to provide the notifications required under R.C. 2929.19(B)(2)(c). Therefore, the 

judgment of the trial court will be affirmed in part and reversed in part, and the cause will 

be remanded to the trial court for the sole purpose of resentencing Midkiff.

I. Facts and Course of Proceedings

{¶ 2} On May 23, 2022, a Clark County grand jury indicted Midkiff on one count of 

robbery, a third-degree felony in violation of R.C. 2911.02(A)(3); one count of aggravated 

robbery, a first-degree felony in violation of R.C. 2911.01(A)(1); one count of failure to 

comply, a fourth-degree felony in violation of R.C. 2921.331(B) and (C)(4); and one count 

of failure to comply, a third-degree felony in violation of R.C. 2921.331(B) and (C)(5).

{¶ 3} A jury trial was scheduled for August 9, 2022. A plea agreement was 

attempted the morning of August 8, 2022, but the trial court rejected it. That afternoon, 

Midkiff filed a motion requesting that the trial judge either recuse himself or continue the 

trial so that Midkiff could “consider filing an affidavit of disqualification with the Ohio 

Supreme Court.” Later that afternoon, the trial court denied both the recusal request and 

the motion for a continuance. On the day of trial, Midkiff filed a motion to compel 

production of video and photo evidence and to continue the trial. The trial court granted 

the motion to compel but denied the motion for continuance.
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{¶ 4} After the jury was empaneled, Midkiff entered into a revised plea agreement 

with the State, whereby the State agreed to amend count two to attempted aggravated 

robbery and to dismiss count three as well as the gun specification on count two. 

Pursuant to the agreement, Midkiff agreed to plead guilty to count one, amended count 

two, and count four. In return, Midkiff would receive an agreed sentence of two years in 

prison on count one, six to nine years in prison on count two, and two years in prison on 

count four, with all three prison terms to run consecutively. The trial court accepted the 

plea agreement and sentenced Midkiff accordingly. Midkiff filed a timely notice of appeal.

II. Midkiff Waived Any Error in The Trial Court’s Denial of His Motions for a 

Continuance of The Trial

{¶ 5} Midkiff’s first assignment of error states “Whether the trial court erred in 

denying Midkiff’s requests for continuance.”

{¶ 6} Midkiff contends that the trial court abused its discretion by denying two 

separate requests for a continuance. According to Midkiff, the first request was made the 

day before trial when Midkiff “requested a continuance to allow him the ability to file an 

affidavit of disqualification with the Ohio Supreme Court.” Appellant’s Brief, p. 3. The 

second request, filed the morning of trial, “was made because Midkiff was not in 

possession of discovery[.]” Id. The trial court granted the request for discovery but denied 

the request for a continuance.

{¶ 7} The State counters that Midkiff’s guilty plea effectively waived any potential 

issues regarding the trial court’s denial of his motions to continue. The State concludes 
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that “Defendant’s guilty plea was made intelligently, knowingly, and voluntarily; the trial 

court’s denial of the motions to continue did not affect the voluntariness of his plea, and 

Defendant’s guilty plea has waived any argument regarding his motions to continue.” 

Appellee’s Brief, p. 3-4.

{¶ 8} “ ‘A criminal defendant who enters a voluntary plea of guilty while represented 

by competent counsel waives all nonjurisdictional defects in prior stages of the 

proceedings.’ ” State v. Cruse, 10th Dist. Franklin Nos. 01AP-1074, 01AP-1075, 2002-

Ohio-3259, ¶ 22, quoting State v. Durst, 2d Dist. Montgomery No. 11384, 1989 WL 

150797, *1 (Dec. 13, 1989). Once a defendant enters a guilty plea, he waives any error 

in the trial court's refusal to grant a requested continuance. State v. Rice, 9th Dist. Summit 

No. 24932, 2010-Ohio-1825, ¶ 9. “The only exception would be if the denial of the motion 

for a continuance of the trial date effectively coerced [the defendant’s] plea, i.e., made it 

other than voluntary.” State v. Lane, 2d Dist. Greene No. 2001-CA-91, 2002 WL 626164, 

*5 (Apr. 19, 2002). Midkiff does not allege that the denial of his requested continuances 

coerced his guilty plea or made it other than voluntary. Therefore, his first assignment of 

error is overruled.

III. The State Concedes Error Due to the Trial Court’s Failure to Provide The 

Required Notifications in R.C. 2929.19(B)(2)(c)

{¶ 9} Midkiff’s second assignment of error states “Midkiff’s sentence is contrary to 

law because the trial court did not advise him of all the 2929.19(B)(2)(c) notifications.”

{¶ 10} When a trial court imposes a non-life felony indefinite sentence pursuant to 
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the Reagan Tokes Law, R.C. 2929.19(B)(2)(c) requires that the trial court provide the 

following notifications to the defendant: (1) it is rebuttably presumed that the offender will 

be released on the expiration of the minimum prison term imposed; (2) the department of 

rehabilitation and correction may rebut the presumption at a hearing by making 

determinations regarding the offender's conduct while confined, the offender's 

rehabilitation, the offender's threat to society, the offender's restrictive housing, and the 

offender's security classification; (3) if the presumption is rebutted, the department may 

maintain the offender's incarceration for the length of time the department determines to 

be reasonable; (4) the department may make the specified determinations and maintain 

the offender's incarceration more than one time; and (5) the offender must be released 

no later than the expiration of the maximum prison term. R.C. 2929.19(B)(2)(c)(i)-(v).

{¶ 11} According to Midkiff, “[a] sentence is contrary to law if a trial court imposes 

an indefinite prison term pursuant to the Reagan Tokes Act and fails to orally advise the 

defendant of all of the R.C. 2929.19(B)(2)(c) notifications at disposition.” Appellant’s 

Brief, p. 9, citing State v. Massie, 2d Dist. Clark No. 2020-CA-50, 2021-Ohio-3376. Citing 

to the transcript, Midkiff contends that “the trial court did not fully advise Midkiff of the 

notifications under 2929.19(B)(2)(c).” Appellant’s Brief, p. 9.

{¶ 12} The State concedes error on this assignment of error. According to the 

State, “[a]lthough the trial court briefly explained indefinite sentencing and the 

presumption that Defendant would be released after the minimum term, it did not fully 

restate the notifications prescribed by R.C. 2929.19(B)(2(c).” Appellee’s Brief, p. 4. 

Therefore, the State concludes that “this Court should remand the case solely for the 
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purpose of providing Defendant with the required sentencing notifications.” Id.

{¶ 13} The trial court in this case generally advised Midkiff at the sentencing 

hearing that there was a presumption that he would be released after serving the 

minimum term of his sentence, but this presumption could be rebutted based on Midkiff’s 

conduct while in prison. August 9, 2022 Transcript, p. 10-11, 14-15. However, the trial 

court neglected to advise him of the remaining notifications set forth in R.C. 

2929.19(B)(2)(c). Accordingly, Midkiff’s sentence was contrary to law, and his second 

assignment of error is sustained. See Massie at ¶ 23.

IV. Conclusion

{¶ 14} The judgment of the trial court is reversed as it pertains to Midkiff’s 

sentence; in all other respects, the judgment is affirmed. The matter shall be remanded 

to the trial court for the sole purpose of resentencing Midkiff in accordance with R.C. 

2929.19(B)(2)(c).

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WELBAUM, P.J. and HUFFMAN, J., concur.