[Cite as State v. Conner , 2021-Ohio-1769.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 16-21-01

v. ANDREW H. CONNER, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Wyandot County Common Pleas Court Trial Court No. 19-CR-0150 Judgment Affirmed Date of Decision: May 24, 2021

APPEARANCES:



### Howard A. Elliott for Appellant 

### Douglas D. Rowland for AppelleeCase No. 16-21-01

-2- ZIMMERMAN, J. {¶1} Defendant-appellant, Andrew H. Conner (“Conner”), appeals the September 15, 2020 judgment entry of conviction and December 17 , 2020 judgment entry of sentence of the Wyandot County Court of Common Pleas. For the following reasons, we affirm. {¶2} On January 8, 2020, the Wyandot County Grand Jury indicted Conn er on the following criminal charges: Counts One and Ten of break ing and entering in violation of R.C. 2911.13(A), both fifth-degree felonies; Co unts Two, Four, and Eleven of theft in violation of R.C. 2913.02(A)(1), all fifth-d egree felonies; Count Three of burglary in violation of R.C. 2911.12(A)(3), a third-d egree felony, which included a criminal-forfeiture specification 1 ; Count Five of grand theft in violation of R.C. 2913.02(A)(2), a third-degree felony; Count Six of havi ng weapons while under disability in violation of R.C. 2923.13(A)(3), a third-de gree felony; Counts Seven, Nine, and Twelve of possessing criminal tools in violati on of R.C. 2923.24(A), a fifth-degree felony; Count Eight of aggravated ro bbery in violation of R.C. 2911.01(A)(1), a first-degree felony; Count Thirteen of safecracking in violation of R.C. 2911.31(A), a fourth-degree felony; Count Fou rteen of aggravated possession of drugs in violation of R.C. 2925.11(A), a fifth-de gree felony; and

1 It was alleged that Conner used or intended to use a 2007 Chev rolet Avalanche in the commission or facilitation of the burglary offense, and as such, that motor v ehicle is subject to criminal forfeiture as “proceeds or instrumentalities”. (Doc. No. 20).Case No. 16-21-01

-3- Count Fifteen of possession of heroin in violation of R.C. 2925 .11(A), a fifth-degree felony. 2 (Doc. No. 20). On January 9, 2020, Conner appeared for arraig nment and entered pleas of not guilty. (Doc. No. 26). {¶3} On September 15, 2020, Conner withdrew his pleas of not guilty and entered guilty pleas, under a negotiated-plea agreement, to Cou nt Three (the burglary charge), Count Eight (the robbery charge as amended), and Count Ten (the breaking and entering charge). 3 (Doc. Nos. 48, 49). In exchange for his guilty pleas, the State agreed to dismiss the remaining counts of the indictm ent. ( Id. ). Further, the State and Conner also submitted a joint-sentencing recommen dation to the trial

court. 4 (Doc. No. 48). The trial court accepted Conner’s guilty plea s, found him guilty, dismissed the remaining counts of the indictment, and o rdered a presentence investigation. (Doc. No. 49). {¶4} On December 15, 2020, the trial court sentenced Conner consiste nt with the terms of the joint-sentencing recommendation. (Doc. No. 54 ). Specifically, the trial court sentenced Conner to a 24-month prison term as to hi s burglary charge (under Count Three), an indefinite minimum term of six years an d a maximum term

2 The indictment included a series of six individual offense dat es involving three municipalities and four victims. (Doc. Nos. 31, 53). ( See Doc. No. 20). 3 Count Eight was amended from aggravated robbery under R.C. 291 1.01(A)(1), a first-degree felony, to robbery under R.C. 2911.02(A)(1), a second-degree felony. (Doc . No. 48). 4 Specifically, under the terms of the agreement, the parties jo intly agreed to recommend a 24-month prison term as to Count Three, a prison term of six to nine years as t o Count Eight, and 11-month prison term as to Count Ten. Moreover, they agreed that the prison terms be run consecutively “for an aggregate prison sentence of thirty-five (35) months and six (6) to nine (9) yea rs. (Doc. No. 48). Conner further agreed to forfeit his motor vehicle under the criminal-forfeiture specifi cation and pay restitution and court costs. ( Id. ). Finally, pursuant to their agreement, Conner reserved the right to speak at sentencing. ( Id. ).Case No. 16-21-01

-4- of nine years in prison (under Count Eight), and an 11-month pr ison term (under Count Ten) with said sentences ordered to be served consecutive ly to one another. 5 (Doc. No. ). {¶5} On January 8, 2021, Conner filed a notice of appeal, and he rai ses one assignment of error for our review. (Doc. No. 58). Assignment of Error The trial court in accepting the Defendant-Appellant’s plea of guilty herein did so in violation of his due process rights by not explaining that the maximum sentence imposed was tied into the presumptive minimum sentence imposed with said presumption being rebuttable by evidence of violation of prison rules or criminal offenses while in prison with a hearing conducted by t he Ohio Department of Rehabilitation and Correction. {¶6} In his assignment of error, Conner argues that the trial court erred by failing to provide him a particular notification regarding his prison sentence, which Conner claims violates his due process rights. In particular, Conner asserts that the trial court failed to explain portions of Reagan Tokes Law pert aining to the possibility that the Ohio Department of Rehabilitation and Corr ection (“ODRC”) could rebut the presumption of his release from prison once Con ner completes his minimum term of imprisonment. Thus, Conner claims his guilty p leas were not made voluntarily.

5 Conner received 369 days’ jail-time credit and was ordered to pay restitution to the victims. (Doc. No. 54).Case No. 16-21-01

-5- {¶7} Initially, we must determine whether Conner can pursue this app eal, considering that R.C. 2953.08(D) generally bars a defendant fro m appealing a jointly recommended sentence that has been accepted by the tria l judge and is authorized by law, as in the instant case. R.C. 2953.08(D). See State v. Floyd , 4th Dist. Lawrence No. 10CA14, 2011-Ohio-558, ¶ 9, citing R.C. 2953 .08. However, since Conner is arguing that his plea was invalid on the basis that it was not voluntary, R.C. 2953.08, which deals solely with sentencing, is not controlling. See Floyd at ¶ 9, citing State v. Gibson , 7th Dist. Mahoning No. 07 MA 98, 2008-Ohio4518, ¶ 7 and State v. Royles , 1st Dist. Hamilton Nos. C-060875 and C-060876, 2007-Ohio-5348, ¶ 10

. Standard of Review {¶8} When we are determining whether a guilty plea was entered knowi ngly, intelligently, and voluntarily, we conduct a de novo review of the record (looking at the totality of the circumstances) to ensure that the trial court complied with the constitutional and procedural safeguards. State v. Scott , 3d Dist. Seneca No. 13- 2000-34, 2001-Ohio-2098, *1, citing State v. Kelley , 57 Ohio St.3d 127, 129 (1991)

and State v. Carter , 60 Ohio St.2d 34 (1979). Analysis {¶9} “‘Because a no-contest or guilty plea involves a waiver of cons titutional rights, a defendant’s decision to enter a plea must be knowing, intelligent, andCase No. 16-21-01

-6- voluntary.’” State v. Fritts , 3d Dist. Allen No. 1-20-54, 2021-Ohio-895, ¶ 7, quoting State v. Dangler , 162 Ohio St.3d 1, 2020-Ohio-2765, ¶ 10. “‘If the plea was no t made knowingly, intelligently, and voluntarily, enforcement of that plea is

unconstitutional.’” Id. , quoting id. {¶10} Crim.R. 11(C)(2), outlines the procedures that trial courts mus t follow when accepting felony case guilty or no contest pleas and provi des in its pertinent parts: (2) In felony cases the court may refuse to accept a plea of gu ilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved , and if applicable, that the defendant is not eligible for probation or for the imposition of community control sancti ons at the sentencing hearing. (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment a nd sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the right s to jury trial, to confront witnesses against him or her, to have compul sory process for obtaining witnesses in the defendant’s favor, and t o require the state to prove the defendant’s guilt beyond a reaso nable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself. (Emphasis added.) Crim.R. 11(C)(2)(a)-(c).Case No. 16-21-01

-7- {¶11} The Supreme Court of Ohio has drawn a distinction between the

nonconstitutional notifications and the constitutional notifica tions under Crim.R. 11(C). State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 14. “‘A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives the defendant’s co nstitutional rights.’” State v. Wolfe , 3d Dist. Van Wert No. 15-20-10, 2021-Ohio-1354, ¶ 14, quoting State v. Montgomery , 3d Dist. Putnam No. 12-13-11, 2014-Ohio-1789, ¶ 11, citing Veney at ¶ 31. “‘“When a trial court fails to strictly comply with this duty, the defendant’s plea is invalid.”’” Id. , quoting Montgomery at ¶ 11, quoting Veney at ¶ 31. “‘A trial court, however, is required to only substantiall y comply with the nonconstitutional notifications in Crim.R. 11(C)(2)(a) and (b).’” Id. , quoting Montgomery at ¶ 11, citing Veney at ¶ 14-17. {¶12} At issue in the facts before us, is whether the trial court com plied with Crim.R. 11(C)(2)(a) as to Conner’s understanding of the “maximu m penalty involved”. Thus, Conner is challenging the nonconstitutional n otifications under Crim.R. 11(C), and we review the record for substantial complia nce. See Wolfe at ¶ 14. {¶13} Notably, Conner did not raise issues related to the trial court ’s purported failure prior to sentencing by way of a Crim.R. 32.1 presentence motion to withdraw his guilty plea, at his sentencing in open court, o r following hisCase No. 16-21-01

-8- sentencing hearing with a postsentence motion to withdraw his g uilty plea. Importantly, Conner concedes on appeal that the plain-error rul e is applicable to the facts presented. (Appellant’s Brief at 12). Indeed, “[i]t is a well-established rule that ‘“an appellate court will not consider any error which cou nsel for a party complaining of the trial court’s judgment could have called but did not call to the

trial court’s attention at a time when such error could have be en avoided or corrected by the trial court.”’” State v. Ferguson , 11th Dist. Lake No. 2020-L-031, 2020- Ohio-5578, ¶ 10, quoting State v. Awan , 22 Ohio St.3d 120, 122 (1986), limited by , In re M.D. , 38 Ohio St.3d 149 (1988), quoting State v. Childs , 14 Ohio St.2d 56 (1968), paragraph three of the syllabus and citing State v. Cargile , 123 Ohio St.3d 343, 2009-Ohio-4939, ¶ 15, citing Awan at the syllabus. “However, the waiver doctrine set forth by Awan is discretionary; thus, ‘even where waiver is clear, a reviewing court may consider constitutional challenges to the a pplication of statutes in specific cases of plain error or where the rights and intere sts involved may warrant

it.’” State v. Heft , 3d Dist. Logan No. 8-09-08, 2009-Ohio-5908, ¶ 29, quoting State

v. Rice , 3d Dist. Allen Nos. 1-02-15, 1-02-29, and 1-02-30, 2002-Ohio- 3951, ¶ 7, citing In re M.D. , supra . “The Supreme Court of Ohio has directed, however, that ‘“‘“discretion will not ordinarily be exercised to review such claims, where the right sought to be vindicated was in existence prior to or at the tim e of trial.”’”’” Heft at ¶ 29, quoting Rice at ¶ 7, quoting State v.1981 Dodge Ram Van , 36 Ohio St.3d 168,Case No. 16-21-01

-9- 170-71, (1988), quoting State v. Woodards , 6 Ohio St.2d 14, 21 (1966). Since Conner is challenging the voluntariness of his plea (on constit utional grounds) as a result of the trial court’s alleged noncompliance with a noncon stitutional portion of Crim.R. 11(C), we, nonetheless, apply the plain-error rule to t he facts before us. See Crim.R. 52(B). {¶14} Our review of the record reveals that Conner entered into a neg otiatedplea agreement, which included a joint-sentencing recommendatio n. (Doc. Nos. 48, 49); (Sept. 15, 2020 Tr. at 3). At Conner’s change-of-plea hea ring, the trial court addressed Conner as to his understanding of each penalty for hi s individual indicted offenses. ( See Sept. 15, 2020 Tr. at 5-7). Thereafter, the trial court revie wed the terms of the State and Conner’s agreed-upon sentence. (Doc. No . 48); ( Id. at 11- 14). Notably, Crim.R. 11(C)(2)(a)’s requirement that a trial c ourt’s determination as to whether a defendant understands the “maximum penalty” has long been understood as a reference to a single penalty for each individu al offense. State v.

Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, paragraph one of the syll abus (“A sentence is the sanction or combination of sanctions imposed fo r each separate, individual offense.”). Here, Conner is arguing that he should have been notified of his “stated prison term” rather than his “[s]entence”. See R.C. 2929.01(EE), (FF)(1)-(2). However, there is no such requirement that a tria l court must advise a defendant of the “stated prison term” (that it will order at th e sentencing hearing) atCase No. 16-21-01

-10- the change-of-plea hearing . Therefore, the trial court did not err by failing to advise Conner, at the plea hearing, that ODRC could rebut the presumpt ion of his release once Conner completed the minimum term imposed under R.C. 2967. 271. 6 Compare R.C. 2929.19(B)(2)(c)(i)-(v) (requiring such notifications at sentencing). Consequently, in our review of the record, we conclude that the trial court substantially complied with the nonconstitutional notifications required under Crim.R. 11(C)(2)(a). {¶15} Nevertheless, even if we had of concluded otherwise, we would s till affirm based entirely on Conner’s failure to demonstrate prejud ice under the facts presented. 7 See Dangler , 162 Ohio St.3d 1, 2020-Ohio-2765, at ¶ 23. {¶16} Because we determined the trial court substantially complied wi th Crim.R. 11(C)(2)(a) in its explanation of the “maximum penalty” as to each separate, individual offense Conner pleaded guilty to, we find no error here, let alone, plain error. Accordingly, Conner’s argument is without merit. {¶17} For these reasons, Conner’s sole assignment of error is overrul ed.

6 Important to this discussion, we note that Chapter 2967 is tit led Pardon, Parole; Probation and Section 2967.271 is specifically titled Presumptions related to sentence to non-life felony indefinite prison term. (Emphasis added.) R.C. 2967.271. 7 Strictly speaking, Conner’s brief is void of any assertion of prejudice—arguing that but for the trial court’s failure to explain that ODRC may seek to rebut the presumption of release upon his completion of the minimum term (if ODRC finds, at a hearing, any of the R.C. 2967 .271(C) factors apply) at his change of plea hearing, that he would not have otherwise pleaded guilty to the offenses herein. See Dangler , 162 Ohio St.3d 1, 2020-Ohio-2765, at ¶ 23.Case No. 16-21-01

-11- {¶18} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed WILLAMOWSKI, P.J. and SHAW, J., concur. /jlr