[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 Appellee 
Case No. 16-21-01 

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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 Conner 

on the following criminal charges: Counts One and Ten of breaking and entering 

in violation of R.C. 2911.13(A), both fifth-degree felonies; Counts Two, Four, and 

Eleven of theft in violation of R.C. 2913.02(A)(1), all fifth-degree felonies; Count 

Three of burglary in violation of R.C. 2911.12(A)(3), a third-degree felony, which 

included a criminal-forfeiture specification1

; Count Five of grand theft in violation 

of R.C. 2913.02(A)(2), a third-degree felony; Count Six of having weapons while 

under disability in violation of R.C. 2923.13(A)(3), a third-degree felony; Counts 

Seven, Nine, and Twelve of possessing criminal tools in violation of R.C. 

2923.24(A), a fifth-degree felony; Count Eight of aggravated robbery 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 Fourteen of aggravated 

possession of drugs in violation of R.C. 2925.11(A), a fifth-degree felony; and 

 

1

 It was alleged that Conner used or intended to use a 2007 Chevrolet Avalanche in the commission or 

facilitation of the burglary offense, and as such, that motor vehicle is subject to criminal forfeiture as 

“proceeds or instrumentalities”. (Doc. No. 20). 
Case No. 16-21-01 

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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 arraignment 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 Count 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 indictment. (Id.). Further, 

the State and Conner also submitted a joint-sentencing recommendation to the trial 

court.4

 (Doc. No. 48). The trial court accepted Conner’s guilty pleas, found him 

guilty, dismissed the remaining counts of the indictment, and ordered a presentence 

investigation. (Doc. No. 49). 

{¶4} On December 15, 2020, the trial court sentenced Conner consistent 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 his burglary charge 

(under Count Three), an indefinite minimum term of six years and a maximum term 

 

2

 The indictment included a series of six individual offense dates 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. 2911.01(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 jointly agreed to recommend a 24-month prison 

term as to Count Three, a prison term of six to nine years as to 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) years. (Doc. No. 48). Conner further agreed to 

forfeit his motor vehicle under the criminal-forfeiture specification 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 

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of nine years in prison (under Count Eight), and an 11-month prison term (under 

Count Ten) with said sentences ordered to be served consecutively to one another.5

 

(Doc. No. ). 

{¶5} On January 8, 2021, Conner filed a notice of appeal, and he raises 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 the 

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 pertaining to the 

possibility that the Ohio Department of Rehabilitation and Correction (“ODRC”) 

could rebut the presumption of his release from prison once Conner completes his 

minimum term of imprisonment. Thus, Conner claims his guilty pleas 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 

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{¶7} Initially, we must determine whether Conner can pursue this appeal, 

considering that R.C. 2953.08(D) generally bars a defendant from appealing a 

jointly recommended sentence that has been accepted by the trial 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 knowingly, 

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 constitutional 

rights, a defendant’s decision to enter a plea must be knowing, intelligent, and 
Case No. 16-21-01 

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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 not 

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 must follow 

when accepting felony case guilty or no contest pleas and provides in its pertinent 

parts: 

(2) In felony cases the court may refuse to accept a plea of guilty 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 sanctions 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 and 

sentence. 

(c) Informing the defendant and determining that the defendant 

understands that by the plea the defendant is waiving the rights to jury 

trial, to confront witnesses against him or her, to have compulsory 

process for obtaining witnesses in the defendant’s favor, and to 

require the state to prove the defendant’s guilt beyond a reasonable 

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 

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

nonconstitutional notifications and the constitutional notifications 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 constitutional 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 substantially 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 complied with 

Crim.R. 11(C)(2)(a) as to Conner’s understanding of the “maximum penalty 

involved”. Thus, Conner is challenging the nonconstitutional notifications under 

Crim.R. 11(C), and we review the record for substantial compliance. 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, or following his 
Case No. 16-21-01 

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sentencing hearing with a postsentence motion to withdraw his guilty plea. 

Importantly, Conner concedes on appeal that the plain-error rule 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 counsel 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 been 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 application of statutes 

in specific cases of plain error or where the rights and interests 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 time 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 

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170-71, (1988), quoting State v. Woodards, 6 Ohio St.2d 14, 21 (1966). Since 

Conner is challenging the voluntariness of his plea (on constitutional grounds) as a 

result of the trial court’s alleged noncompliance with a nonconstitutional portion of 

Crim.R. 11(C), we, nonetheless, apply the plain-error rule to the facts before us. See 

Crim.R. 52(B). 

{¶14} Our review of the record reveals that Conner entered into a negotiatedplea agreement, which included a joint-sentencing recommendation. (Doc. Nos. 48, 

49); (Sept. 15, 2020 Tr. at 3). At Conner’s change-of-plea hearing, the trial court 

addressed Conner as to his understanding of each penalty for his individual indicted 

offenses. (See Sept. 15, 2020 Tr. at 5-7). Thereafter, the trial court reviewed 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 court’s determination 

as to whether a defendant understands the “maximum penalty” has long been 

understood as a reference to a single penalty for each individual offense. State v. 

Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, paragraph one of the syllabus (“A 

sentence is the sanction or combination of sanctions imposed for 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 trial court must advise a 

defendant of the “stated prison term” (that it will order at the sentencing hearing) at 
Case No. 16-21-01 

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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 presumption 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 still 

affirm based entirely on Conner’s failure to demonstrate prejudice 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 with 

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 overruled. 

 

6

 Important to this discussion, we note that Chapter 2967 is titled 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 

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{¶18} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

WILLAMOWSKI, P.J. and SHAW, J., concur. 

/jlr