[Cite as State v. Willard, 2021-Ohio-2552.]

IN THE COURT OF APPEALS OF OHIO 

ELEVENTH APPELLATE DISTRICT 

TRUMBULL COUNTY

STATE OF OHIO, 

 Plaintiff-Appellee, 

 - v - 

JEFFREY ALLEN WILLARD, 

 Defendant-Appellant. 

CASE NO. 2020-T-0040 

 

Criminal Appeal from the 

Court of Common Pleas 

Trial Court No. 2019 CR 001106 

O P I N I O N 

Decided: July 26, 2021 

Judgment: Affirmed in part, modified in part, and affirmed as modified. 

Dennis Watkins, Trumbull County Prosecutor; Ashleigh Musick and Ryan J. Sanders, 

Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W., 

Warren, OH 44481 (For Plaintiff-Appellee). 

Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481 

(For Defendant-Appellant). 

MARY JANE TRAPP, P.J. 

{¶1} Appellant, Jeffrey Allen Willard (“Mr. Willard”), appeals his judgment of 

conviction from the Trumbull County Court of Common Pleas following his guilty pleas to 

having weapons while under disability, grand theft, grand theft of a motor vehicle, failure 

to comply with order or signal of police officer, escape, and obstructing official business. 

{¶2} Mr. Willard presents two assignments of error, which we address in reverse 

order. 
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{¶3} In his second assignment of error, Mr. Willard contends he did not enter his 

guilty pleas knowingly, intelligently, or voluntarily because the trial court did not comply 

with Crim.R. 11(C)(2)(a). Specifically, he contends the trial court failed to inform him of 

potential consecutive prison terms and restitution. 

{¶4} In his first assignment of error, Mr. Willard contends the trial court abused 

its discretion in ordering him to pay restitution in the amount of $4,500 for police officer 

overtime because there is nothing in the record indicating the amount bears a reasonable 

relationship to the loss the police department actually suffered. 

{¶5} In response to this court’s sua sponte order for supplemental briefing, Mr. 

Willard contends under his first assignment of error that the trial court’s restitution order 

for officer overtime was contrary to law because the Liberty Township Police Department 

was not a “victim” for the purposes of R.C. 2929.18(A)(1). The state concedes error on 

the latter issue. 

{¶6} After a careful review of the record and pertinent law, we find as follows: 

{¶7} (1) The trial court complied with Crim.R. 11(C)(2)(a) with respect to Mr. 

Willard’s maximum prison terms. While the trial court did not inform Mr. Willard about 

discretionary, consecutive prison terms, the trial court complied with the precedent 

applying Crim.R. 11(C)(2)(a) that indicates this is not required. 

{¶8} (2) The trial court did not comply with Crim.R. 11(C)(2)(a) by failing to inform 

Mr. Willard about potential restitution to the Liberty Township Police Department as part 

of his sentence. However, Mr. Willard has not shown resulting prejudice, i.e., that he 

would not have pleaded guilty otherwise. 
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{¶9} (3) We clearly and convincingly find that the trial court’s order of restitution 

for officer overtime is contrary to law because the Liberty Township Police Department 

was not a “victim” that suffered an “economic loss” pursuant to R.C. 2929.18(A)(1). 

{¶10} Thus, we affirm the trial court’s judgment in part, modify in part, and affirm 

as modified. 

Substantive and Procedural History

{¶11} In February 2020, the Trumbull County Grand Jury indicted Mr. Willard on 

the following six felony counts: having weapons while under disability, a felony of the 

third degree, in violation of R.C. 2923.13(A)(1) and (B) (count 1); grand theft, a felony of 

the third degree, in violation of R.C. 2913.02(A)(1) and (B)(4) (count 2); grant theft of a 

motor vehicle, a felony of the fourth degree, in violation of R.C. 2913.02(A)(2) and (B)(5) 

(count 3); failure to comply with order or signal of police officer, a felony of the third 

degree, in violation of R.C. 2921.331(B), (C)(1), and (C)(5)(a)(ii) (count 4); escape, a 

felony of the third degree, in violation of R.C. 2921.34(A)(1) and (C)(2)(b) (count 5); and 

obstructing official business, a felony of the fifth degree, in violation of R.C. 2921.31(A) 

and (B) (count 6). 

{¶12} Mr. Willard pleaded not guilty to the charges. He subsequently withdrew 

his former pleas of not guilty and entered written and oral pleas of guilty to all six charges. 

{¶13} The parties jointly recommended concurrent prison terms of 24 months on 

count 1 (having weapons while under disability); 24 months on count 2 (grand theft); 18 

months on count 3 (grand theft of a motor vehicle); 24 months on count 5 (escape); 24 

months on count 6 (obstructing official business); and a mandatory consecutive prison 
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term of 12 months on count 4 (failure to comply with order or signal of police officer), for 

an aggregate recommended prison term of 36 months. 

{¶14} Among other notices, the plea agreement stated as follows: 

{¶15} “I understand that court costs, restitution and other financial sanctions 

including day fine, standard fine, and reimbursement for the cost of community sanctions 

may be imposed. 

{¶16} “I understand that if I am charged with multiple counts, the Court could 

impose consecutive sentences.” 

Plea Hearing 

{¶17} The trial court held a plea hearing and engaged in a colloquy with Mr. 

Willard. Mr. Willard indicated that he had read the plea agreement, had reviewed it with 

his attorney, and had no questions about it. He also confirmed his understanding that the 

sentence was not binding on the court and that the court could impose whatever sentence 

it deemed appropriate within the guidelines. 

{¶18} The trial court advised Mr. Willard of the potential penalties associated with 

each of the six charges, including the ranges of potential prison terms, the maximum 

fines, and whether prison was mandatory. With respect to count 4 (failure to comply with 

order or signal of police officer), the trial court advised Mr. Willard that any prison term 

imposed was required to be served consecutive to any other prison term. Mr. Willard 

indicated that he understood the trial court’s advisements and entered guilty pleas to all 

six charges. 

{¶19} As a factual basis, the state indicated as follows: 
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{¶20} “[O]n or about the date referenced in the indictment, in Trumbull County, 

State of Ohio, officers with the Liberty Township Police Department got dispatched to a 

bar in their jurisdiction for a drunk and disorderly person. When they arrived they came 

into contact with the Defendant who was, in fact, drunk and disorderly. They attempted 

to take him into custody for that offense. He struggled with them. He struggled with the 

arrest. 

{¶21} “[U]ltimately they were able to take him into custody. They placed him in 

the back of one of the Liberty Township cruisers. While they finished their paperwork, the 

Defendant climbed through the window from the back seat to the front seat and he was 

able to take off in the police cruiser. 

{¶22} “The police cruiser contained a shotgun that was the property of the Liberty 

Township Police Department and the Defendant was under disability for Possession of 

Firearms. 

{¶23} “[D]uring that time, the police attempted to stop this Defendant from leaving 

the scene, as he was in custody, and he refused to do so, driving off with the vehicle, 

ultimately crashing into another motor vehicle. 

{¶24} “To prove these allegations the State would have brought forth the 

testimony of the arresting officers and witnesses at the scene.” 

{¶25} The trial court determined that Mr. Willard made knowing, intelligent, and 

voluntary guilty pleas; had been informed of his constitutional rights; and understood the 

nature of the charges, the effect of changing his pleas, and the possible penalties. 

Accordingly, the court accepted Mr. Willard’s guilty pleas and found him guilty. 
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{¶26} Mr. Willard waived a presentence investigation, and the matter proceeded 

immediately to sentencing. 

Sentencing

{¶27} During the sentencing portion of the hearing, the trial court asked the state 

whether there were any issues of restitution. The state responded that the Liberty 

Township Police Department had submitted a victim response form requesting restitution 

of $10,000 as a result of alleged damage to the police cruiser and $4,500 in officer 

overtime as a result of the incident. The state indicated it was unaware until after the start 

of the hearing that the form had been provided and did not know if defense counsel had 

seen it. Defense counsel indicated that he had not. 

{¶28} Following defense counsel’s review of the form, the following exchange 

occurred: 

{¶29} “[DEFENSE COUNSEL]: Your Honor, the only thing I can see, there was 

insurance on this vehicle, and they checked that it is, so I don’t know that they’re out 

$10,000. It’s purely overtime. 

{¶30} “[THE TRIAL COURT]: Are you able to verify that? 

{¶31} “[THE STATE]: Well, Your Honor, it does say that there was insurance for 

the vehicle, so I would assume that they were made whole. Now, I have not received 

anything from the insurance company. * * * With regard to the overtime, it’s not unheard 

of for police departments to ask for that, though it’s rare. The overtime amount is $4,500. 

{¶32} “[DEFENSE COUNSEL]: That’s the first time I heard over time. 

{¶33} “[THE TRIAL COURT]: You would agree with the defense that the 

insurance covers the car? 
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{¶34} “[THE STATE]: It’s marked here, yes. 

{¶35} “[THE TRIAL COURT]: So the issue then is the $4,500 overtime to find this 

Defendant after he stole the police car? 

{¶36} “[THE STATE]: Correct. 

{¶37} “[THE TRIAL COURT]: Anything else on the issue of restitution?

{¶38} “[THE STATE]: No. 

{¶39} “[THE TRIAL COURT]: Counselor, is there anything you would like to say 

on behalf of Mr. Willard? 

{¶40} “[DEFENSE COUNSEL]: Your Honor, we would just ask the Court to go 

along with the agreement for the time between the State and the Defense.” 

{¶41} The trial court sentenced Mr. Willard to prison terms of 36 months on count 

1 (having weapons while under disability); 24 months on count 2 (grand theft); 18 months 

on count 3 (grand theft of a motor vehicle); 36 months on count 4 (failure to comply with 

order or signal of police officer); 24 months on count 5 (escape); and 12 months on count 

6 (obstructing official business).1 The trial court ordered the prison terms in counts 1, 2, 

and 3 to be served concurrent to each other; the prison terms in counts 5 and 6 to be 

served concurrent to each other but consecutive to the prison terms in counts 1, 2, and 

3; and the prison term in count 4 to be served consecutive to all other counts, for an 

aggregate prison term of 96 months. 

1. The hearing transcript indicates that the trial court imposed a prison term of 24 months on count 6, while 

the subsequent judgment entry states 12 months. Mr. Willard has not challenged this discrepancy on 

appeal. 
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{¶42} The trial court stated that it had “reviewed the appropriate documentation” 

and ordered Mr. Willard to pay restitution to the Liberty Township Police Department in 

the sum of $4,500 “for overtime as necessary to apprehend” Mr. Willard. 

{¶43} The hearing transcript indicates that following the trial court’s 

pronouncement of sentence, Mr. Willard voiced his displeasure with the length of his 

aggregate prison sentence by using expletives and remarking, “That’s not what I agreed 

to.” 

{¶44} The trial court subsequently issued judgment entries memorializing Mr. 

Willard’s guilty pleas and sentences. 

{¶45} Mr. Willard appealed and now raises the following two assignments of error: 

{¶46} “[1.] The trial court abused its discretion when it ordered restitution for 

expenses incurred by the police department for officer overtime. 

{¶47} “[2.] The trial court erred when [it] found that appellant’s change of plea was 

made knowingly, intelligently and voluntarily.” 

{¶48} Based on our consideration of the record and briefs, this court, sua sponte, 

ordered the parties to file supplemental briefs in relation to Mr. Willard’s first assignment 

of error to address whether the Liberty Township Police Department constitutes a “victim” 

for purposes of R.C. 2929.18(A)(1). Both parties filed supplemental briefs and agreed 

that the Liberty Township Police Department does not constitute a “victim” under R.C. 

2929.18(A)(1) and, therefore, that the trial court’s restitution order was erroneous. 

{¶49} We review Mr. Willard’s assignments of error in reverse order. 
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Guilty Pleas 

{¶50} In his second assignment of error, Mr. Willard contends he did not enter his 

guilty pleas knowingly, intelligently, or voluntarily because the trial court failed to comply 

with Crim.R. 11(C)(2)(a) during the plea colloquy. 

Standard of Review 

{¶51} This court reviews de novo whether the trial court accepted a plea in 

compliance with Crim.R. 11. State v. Dundics, 2016-Ohio-1368, 62 N.E.3d 1013, ¶ 10 

(11th Dist.). 

Crim.R. 11(C)(2) 

{¶52} “When a defendant enters a plea in a criminal case, the plea must be made 

knowingly, intelligently, and voluntarily. Failure on any of those points renders 

enforcement of the plea unconstitutional under both the United States Constitution and 

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). 

Crim.R. 11 was adopted to give detailed instructions to trial courts on the procedures to 

follow before accepting pleas of guilty. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio4130, 953 N.E.2d 826, ¶ 9. 

{¶53} Crim.R. 11(C)(2), provides, in relevant part, as follows: 

{¶54} “In felony cases the court * * * shall not accept a plea of guilty * * * without 

first addressing the defendant personally and doing all of the following: 

{¶55} “(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. 
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{¶56} “(b) Informing the defendant of and determining that the defendant 

understands the effect of the plea of guilty * * *, and that the court, upon acceptance of 

the plea, may proceed with judgment and sentence. 

{¶57} “(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) through (c). 

{¶58} The Supreme Court of Ohio most recently addressed appellate review of a 

trial court’s compliance with Crim.R. 11 in State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio2765, 164 N.E.3d 286. 

{¶59} According to the court, the focus in reviewing pleas is not “on whether the 

trial judge has ‘[incanted] the precise verbiage’ of the rule, * * * but on whether the 

dialogue between the court and the defendant demonstrates that the defendant 

understood the consequences of his plea.” (Emphasis added.) Id. at ¶ 12, quoting State 

v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). 

{¶60} The court also stated that its prior caselaw had “muddled” the required 

analysis “by suggesting different tiers of compliance with the rule.” Id. at ¶ 17. For 

instance, “[t]he court has, in some instances, said that “‘partial’ compliance is sufficient 

absent a showing of prejudice from the failure to ‘substantially’ comply.” Id., quoting State 

v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. Further, “the court 

has indicated that when a trial court has ‘substantially’ complied, the defendant must show 
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prejudice from the failure to ‘strictly’ or ‘literally’ adhere to the rule.” Id., quoting State v. 

Nero, 56 Ohio St.3d 106, 107-108, 564 N.E.2d 474 (1990), and Stewart at 93. 

{¶61} According to the court, “those formulations have served only to unduly 

complicate what should be a fairly straightforward inquiry. Properly understood, the 

questions to be answered are simply: (1) has the trial court complied with the relevant 

provision of the rule? (2) if the court has not complied fully with the rule, is the purported 

failure of a type that excuses a defendant from the burden of demonstrating prejudice? 

and (3) if a showing of prejudice is required, has the defendant met that burden?” Id. 

{¶62} With the above principles in mind, we apply the three-part Dangler test. 

Consecutive Prison Terms 

{¶63} Mr. Willard contends that the trial court did not comply with Crim.R. 

11(C)(2)(a) by failing to inform him of the possibility of consecutive prison terms for counts 

1-3, 5, and 6. We disagree. 

{¶64} In State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), the 

Supreme Court of Ohio determined that a trial court complies with Crim. R. 11(C)(2)(a) 

by informing a defendant of the maximum sentence for each of the individual crimes with 

which he is charged. Id. at 134. The court held that “[f]ailure to inform a defendant who 

pleads guilty to more than one offense that the court may order him to serve any 

sentences imposed consecutively, rather than concurrently, is not a violation of Crim.R. 

11(C)(2), and does not render the plea involuntary.” Id. at syllabus. 

{¶65} A plurality of the court recently questioned the applicability of Johnson under 

the current version of Crim.R. 11(C)(2)(a), which requires the trial court to ensure the 

defendant understands the nature of the “charges” rather than the “charge.” State v. 
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Case No. 2020-T-0040 

Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 15 (“Crim.R. 11(C)(2)(a) 

has been amended since Johnson so that a single plea can now apply to multiple charges, 

see 83 Ohio St.3d xciii, cix (effective July 1, 1998)”). However, the court did not overrule 

its holding in Johnson. See id. at ¶ 47 (Kennedy, J., dissenting) (“[W]e have never held 

that our holding in Johnson has been abrogated by the amended rule”). 

{¶66} In Bishop, the court addressed the certified question of “[w]hether a criminal 

defendant on [postrelease control] for a prior felony must be advised, during his plea 

hearing in a new felony case, of the trial court’s ability under R.C. 2929.141 to terminate 

his existing [postrelease control] and to impose a consecutive prison sentence for the 

[postrelease-control] violation.” Id. at ¶ 1. 

{¶67} In answering the certified question in the affirmative, the court distinguished 

Johnson, stating as follows: 

{¶68} “[W]hat happened to the defendant in Johnson is a far cry from what 

happened to Bishop. Johnson was told of his potential sentences for each individual 

offense; the trial court just failed to tell Johnson the sentences for each offense could run 

consecutively. Here, the trial court told Bishop that he could receive a maximum sentence 

of 12 months for his fifth-degree-felony conviction. But the trial court did not tell Bishop 

that he was also subject to a separate consecutive 12-month sentence for his 

postrelease-control violation.” Id. at ¶ 16. 

{¶69} This court and others have recognized the court’s distinction in Bishop and 

have continued to apply Johnson. See, e.g., State v. Shepard, 11th Dist. Ashtabula No. 

2019-A-0024, 2019-Ohio-3995, ¶ 44, fn. 1; State v. Roberts, 9th Dist. Medina No. 

19CA0004-M, 2019-Ohio-4393, ¶ 6-7; State v. Ellis, 5th Dist. Coshocton Nos. 
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2019CA0014 and 2019CA0015, 2020-Ohio-1130, ¶ 9-12; State v. Nelson, 8th Dist. 

Cuyahoga Nos. 109072, 109073, and 109260, 2020-Ohio-6993, ¶ 45-51. 

{¶70} Courts have also distinguished Johnson in the context of a “mandatory” 

consecutive prison term imposed pursuant to R.C. 2921.331(D). See, e.g., State v. 

Bailey, 9th Dist. Summit Nos. 28003, 28004, and 28005, 2016-Ohio-4937, ¶ 13; State v. 

Norman, 8th Dist. Cuyahoga, No. 91302, 2009-Ohio-4044, ¶ 7; State v. Pitts, 159 Ohio 

App.3d 852, 2005-Ohio-1389, 825 N.E.2d 695, ¶ 22 (6th Dist.). 

{¶71} R.C. 2921.331(D) provides that if an offender is sentenced to prison for a 

felony offense of failure to comply with an order or signal of a police officer pursuant to 

division (C)(4) or (5), the offender “shall serve the prison term consecutively to any other 

prison term or mandatory prison term imposed upon the offender.” Courts have held that 

the trial court must inform the defendant of the consecutive nature of the sentences, as it 

is part of the maximum penalty. See Bailey at ¶ 13, quoting Norman at ¶ 7 (“When a 

statute requires that sentences be served consecutively, the consecutive nature ‘directly 

affects the length of the sentence, thus becoming a crucial component of what constitutes 

the “maximum” sentence’”). 

{¶72} Here, the trial court properly explained the maximum individual prison terms 

for each of the six charges to which Mr. Willard pleaded guilty. In addition, as Mr. Willard 

acknowledges, the trial court expressly informed him of a mandatory consecutive prison 

term as a result of his guilty plea to count 4, where he was charged with failure to comply 

with order or signal of police officer, a felony of the third degree, in violation of R.C. 

2921.331(B), (C)(1), and (C)(5)(a)(ii). 
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{¶73} Accordingly, since the trial court’s discussion of Mr. Willard’s prison terms 

was consistent with the applicable precedent, we conclude that the trial court complied 

with Crim.R. 11(C)(2)(a). 

Restitution 

{¶74} Mr. Willard next contends that the trial court did not comply with Crim.R. 

11(C)(2)(a) by failing to inform him that he may be ordered to pay restitution as part of his 

possible sentence. We agree. 

{¶75} There appears to be no case law discussing whether restitution constitutes 

part of the “maximum penalty involved” under Crim.R. 11(C)(2)(a). 

{¶76} In State v. Wilson, 8th Dist. Cuyahoga No. 102645, 2015-Ohio-5143, the 

Eighth District Court of Appeals appeared to presume that it does but determined that the 

defendant did not demonstrate prejudicial error. See id. at ¶ 11. 

{¶77} In State v. Jones, 11th Dist. Lake No. 2012-L-072, 2013-Ohio-2616, this 

court suggested that restitution constitutes part of the maximum penalty involved by 

stating, in dicta, that “the best approach for all concerned is that, if a matter of restitution 

is not apparent from the nature of the plea and charges, there should be some 

understanding of the restitution parameters at the time of the plea. Otherwise, whether a 

plea was truly knowing or voluntary would be subject to question.” (Emphasis sic.) Id. at 

¶ 17. 

{¶78} The existing statutory authority supports a conclusion that restitution is part 

of the “maximum penalty involved” under Crim.R. 11(C)(2)(a). 

{¶79} R.C. 2929.18(A)(1) provides that “the court imposing a sentence upon an 

offender for a felony may sentence the offender to any financial sanction or combination 
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of financial sanctions authorized under this section * * *,” including, “[r]estitution by the 

offender to the victim of the offender’s crime * * *, in an amount based on the victim’s 

economic loss.” (Emphasis added.) 

{¶80} The Supreme Court of Ohio has recognized that a restitution order imposed 

for a felony is part of an offender’s sentence. State v. Danison, 105 Ohio St.3d 127, 2005-

Ohio-781, 823 N.E.2d 444, syllabus. “‘Sentence’ means the sanction or combination of 

sanctions imposed by the sentencing court on an offender who is convicted of or pleads 

guilty to an offense.” (Emphasis added.) R.C. 2929.01(EE). “‘Sanction’ means any 

penalty imposed upon an offender who is convicted of or pleads guilty to an offense, as 

punishment for the offense,” and it expressly includes “any sanction imposed pursuant to 

any provision of sections 2929.14 to 2929.18 * * * of the Revised Code.” (Emphasis 

added.) R.C. 2929.01(DD). 

{¶81} Thus, since an order of restitution is a “penalty” and a component of the 

defendant’s sentence, we conclude that it constitutes part of the “maximum penalty 

involved” under Crim.R. 11(C)(2)(a). 

{¶82} The transcript demonstrates that the trial court did not make any reference 

to restitution during the plea hearing. The state contends that the trial court “substantially 

complied” with the rule because Mr. Willard’s written plea agreement indicated that 

restitution may be imposed and because the trial court confirmed Mr. Willard’s 

understanding of the written plea agreement during the plea colloquy. 

{¶83} We note that in State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 

N.E.2d 621, the Supreme Court of Ohio held that a written plea form could be considered 

as part of the totality of the circumstances in determining whether a trial court substantially 
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complied with the nonconstitutional requirements in Crim.R. 11(C)(a) and (b). See id. at 

¶ 15-16. 

{¶84} Veney may not be consistent with Dangler, where the court indicated that 

the relevant focus is on the “dialogue between the court and the defendant” and whether 

it “demonstrates that the defendant understood the consequences of his plea.” 

(Emphasis added.) See id. at ¶ 12. The Dangler court also criticized its past use of 

“different tiers of compliance with the rule,” including the concept of substantial 

compliance. See id. at ¶ 17. Under Dangler, the extent of trial court’s compliance is now 

relevant in determining whether a prejudice analysis is required. See id. at ¶ 15 (“[A] trial 

court’s complete failure to comply with a portion of Crim.R. 11(C) eliminates the 

defendant’s burden to show prejudice”). (Emphasis sic.)

{¶85} Further, while Mr. Willard’s plea agreement stated that “restitution * * * may 

be imposed,” it contained no specificity to the present case. In fact, the transcript 

demonstrates that the state was not aware of the Liberty Township Police Department’s 

request for restitution until after the plea/sentencing hearing began. Defense counsel 

was not informed of the police department’s request until the sentencing portion of the 

hearing, which occurred after the trial court accepted Mr. Willard’s guilty pleas. Therefore, 

Mr. Willard could not have understood that he could be ordered to pay restitution to the 

Liberty Township Police Department prior to the trial court’s acceptance of his guilty pleas. 

{¶86} Accordingly, we conclude that the trial court did not comply with Crim.R. 

11(C)(2)(a) by failing to inform Mr. Willard that he may be ordered to pay restitution the 

Liberty Township Police Department. 
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Prejudice Exceptions 

{¶87} We next determine whether the trial court’s error is “of a type that excuses 

a defendant from the burden of demonstrating prejudice.” Dangler at ¶ 17. We conclude 

that it is not. 

{¶88} According to the Dangler court, “[w]hen a criminal defendant seeks to have 

his conviction reversed on appeal, the traditional rule is that he must establish that an 

error occurred in the trial-court proceedings and that he was prejudiced by that error.” Id.

at ¶ 13. This traditional rule is subject to two “limited” exceptions. See id. at ¶ 14-15. 

{¶89} First, “[w]hen a trial court fails to explain the constitutional rights that a 

defendant waives by pleading guilty or no contest, [a reviewing court] presume[s] that the 

plea was entered involuntarily and unknowingly, and no showing of prejudice is required.” 

Id. at ¶ 14. 

{¶90} Second, “a trial court’s complete failure to comply with a portion of Crim.R. 

11(C) eliminates the defendant’s burden to show prejudice.” (Emphasis sic.) Dangler at 

¶ 15. The court explained that in State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 

881 N.E.2d 1224, it held that “the trial court completely failed to comply with Crim.R. 

11(C)(2)(a)’s requirement that it explain the maximum penalty when the court made no 

mention of postrelease control in the plea colloquy, despite the fact the defendant was 

subject to a mandatory five years of postrelease control.” Id. 

{¶91} The court reiterated that “[a]side from these two exceptions, the traditional 

rule continues to apply: a defendant is not entitled to have his plea vacated unless he 

demonstrates he was prejudiced by a failure of the trial court to comply with the provisions 
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of Crim.R. 11(C).” Id. at ¶ 16. “The test for prejudice is ‘whether the plea would have 

otherwise been made.’” Id., quoting Nero at 108. 

{¶92} In Dangler, the trial court informed the defendant that he would be required 

to register as a Tier III sex offender for the rest of his life but did not fully explain the 

obligations and restrictions that accompanied his status as a sex offender. Id. at ¶ 1. The 

Supreme Court of Ohio determined that neither of its exceptions to the prejudice 

requirements applied. Id. at ¶ 23. 

{¶93} First, the “maximum-penalty advisement is not a constitutional 

requirement.” Id. Second, the trial court did not “completely fail” to comply with the 

“maximum-penalty-advisement requirement” in Crim.R. 11(C)(2)(a) because it advised 

the defendant that he would be subject to the registration requirements of the statutory 

scheme. See id. at ¶ 22. Thus, the court concluded that the defendant could prevail “only 

by establishing that he would not have pleaded no contest but for the trial court’s failure 

to explain the sex-offender classification scheme more thoroughly.” Id. at ¶ 23. 

{¶94} Here, Mr. Willard challenges the trial court’s compliance with Crim.R. 

11(C)(2)(a), which involves nonconstitutional rights. See Dangler at ¶ 23. Therefore, the 

first exception does not apply. 

{¶95} We acknowledge that the trial court made no mention of restitution during 

the plea colloquy. However, in the context of a non-prison sanction, we construe the 

second exception as applicable when the trial court makes no mention of a mandatory

component of a defendant’s sentence. See Sarkozy at ¶ 22 (mandatory postrelease 

control); State v. Rogers, 2020-Ohio-4102, 157 N.E.3d 142, ¶ 23 (12th Dist.) (mandatory 
19 

Case No. 2020-T-0040 

fine); State v. Brown, 2020-Ohio-4474, 158 N.E.3d 972, ¶ 32 (8th Dist.) (mandatory sex 

offender requirements). 

{¶96} As the dissenting judge in Rogers aptly noted, construing Dangler broadly 

would result in a defendant being excepted from the prejudice requirement upon a trial 

court’s failure to mention any component of the defendant’s potential sentence, even if 

that component was not actually imposed, was inconsequential, or was demonstratively 

known. See Rogers at ¶ 36, fn. 4 (Piper, J., dissenting). It would also require reversal of 

pleas that would not have been reversed prior to Dangler, which would be contrary to the 

simplicity that the Dangler court intended. See id. at ¶ 36 (Piper, J., dissenting). 

{¶97} R.C. 2929.18(A)(1) provides that the trial court may impose restitution, 

which indicates a restitution order is discretionary, not mandatory. Therefore, we 

conclude the trial court’s error is not “of a type that excuses” Mr. Willard “from the burden 

of demonstrating prejudice.” Dangler at ¶ 17. 

Prejudice Analysis 

{¶98} “The test for prejudice is ‘whether the plea would have otherwise been 

made.’” Dangler at ¶ 16, quoting Nero at 108. Prejudice must be established “‘on the 

face of the record.’” Id. at ¶ 24, quoting Hayward v. Summa Health Sys./Akron City Hosp., 

139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 26. 

{¶99} Mr. Willard has not asserted the existence of prejudice, and we find none 

on the face of the record. 

{¶100} Courts have held where a trial court fails to advise a defendant of some 

facet of a maximum penalty but otherwise complies with Crim.R. 11(C)(2)(a), the 

defendant cannot show prejudice if the trial court does not actually impose the component 
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of the maximum sentence that it did not discuss. See State v. Liles, 3d Dist. Allen No. 1-

18-69, 2019-Ohio-3029, ¶ 23; State v. Simmons, 8th Dist. Cuyahoga Nos. 99513 and 

100552, 2013-Ohio-5026, ¶ 7. For example, in Simmons, the Eighth District found no 

resulting prejudice from the trial court’s failure to advise the defendant of possible fines 

and court costs where it did not actually impose them and otherwise advised the 

defendant of the maximum penalty he faced. Id. at ¶ 7.2

{¶101} The trial court properly advised Mr. Willard regarding the maximum penalty 

involved other than restitution, and it did not actually impose restitution for vehicle 

damage. Therefore, Mr. Willard cannot demonstrate prejudice resulting from the trial 

court’s failure to inform him about potential restitution for vehicle damage. 

{¶102}In addition, there is nothing in the record indicating that Mr. Willard would 

not have entered his guilty pleas had the trial court informed him of potential restitution 

for officer overtime. 

{¶103} For instance, after defense counsel reviewed the police department’s 

restitution request during the sentencing hearing, he disputed the portion relating to 

vehicle damage. Neither defense counsel nor Mr. Willard disputed the portion relating to 

officer overtime. Mr. Willard also did not move to withdraw his guilty pleas either before 

or after sentencing. Based Mr. Willard’s comments following the trial court’s 

announcement of sentence, the record indicates that Mr. Willard was primarily concerned 

with the length of his aggregate prison sentence, not the restitution order. 

2. We acknowledge some appellate districts have determined that any issues relating to unimposed 

components of a penalty are “moot.” See, e.g., Rogers at ¶ 10, fn. 1 (involving fines and driver’s license 

suspension); State v. Bostic, 8th Dist. Cuyahoga No. 84842, 2005-Ohio-2184, ¶ 24 (involving postrelease 

control). However, we find a prejudice analysis to be more appropriate. 
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{¶104} Accordingly, Mr. Willard has not established that he was prejudiced by the 

trial court’s error. 

{¶105} Mr. Willard’s second assignment is without merit. 

Restitution Order 

{¶106}In his first assignment of error, Mr. Willard challenges the trial court’s 

restitution order in the amount of $4,500 for police officer overtime. 

Standard of Review 

{¶107} This court reviews restitution orders pursuant to R.C. 2953.08(G)(2). State 

v. Ciresi, 2020-Ohio-5305, 162 N.E.3d 846, ¶ 5 (11th Dist.). That provision states: 

{¶108}“The court hearing an appeal under division (A), (B), or (C) of this section 

shall review the record, including the findings underlying the sentence or modification 

given by the sentencing court. 

{¶109}“The appellate court may increase, reduce, or otherwise modify a sentence 

that is appealed under this section or may vacate the sentence and remand the matter to 

the sentencing court for resentencing. The appellate court’s standard for review is not 

whether the sentencing court abused its discretion. The appellate court may take any 

action authorized by this division if it clearly and convincingly finds either of the following: 

{¶110}“(a) That the record does not support the sentencing court’s findings under 

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or 

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; 

{¶111}“(b) That the sentence is otherwise contrary to law.” 
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{¶112} Here, none of the sections referenced in R.C. 2953.08(G)(2)(a) apply. 

Thus, our review is limited to determining whether we clearly and convincingly find that 

the restitution order is otherwise contrary to law. Ciresi at ¶ 10. 

Supplemental Briefing 

{¶113}In his appellate brief, Mr. Willard’s argument focuses on whether the amount 

of $4,500 for officer overtime bears a reasonable relationship to the loss the Liberty 

Township Police Department suffered. 

{¶114} As indicated, this court, sua sponte, ordered the parties to file supplemental 

briefs addressing whether the Liberty Township Police Department constitutes a “victim” 

for purposes of R.C. 2929.18(A)(1). In their supplemental briefs, both Mr. Willard and the 

state agree that the Liberty Township Police Department does not constitute a “victim” 

under R.C. 2929.18(A)(1) and, therefore, that the trial court’s restitution order was 

erroneous. Despite the state’s concession of error, we briefly discuss the issue. 

Law and Analysis 

{¶115} R.C. 2929.18(A)(1) provides, in relevant part, that “the court imposing a 

sentence upon an offender for a felony may sentence the offender to any financial 

sanction or combination of financial sanctions authorized under this section,” including 

“[r]estitution by the offender to the victim of the offender’s crime * * * in an amount based 

on the victim’s economic loss.” 

{¶116} The statute does not define the term “victim.” This court has defined a 

“victim of a crime” as “the person or entity that was the ‘object’ of the crime.” State v. 

Pietrangelo, 11th Dist. Lake No. 2003-L-125, 2005-Ohio-1686, ¶ 15, quoting State v. 

Samuels, 4th Dist. Washington No. 03CA8, 2003-Ohio-6106, ¶ 5. 
23 

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{¶117}In Pietrangelo, we determined that “a government entity voluntarily 

advancing its own funds to pursue a drug buy through an informant is not one of the 

scenarios contemplated by R.C. 2929.18(A)(1).” Id. We recognized that “[i]n certain 

circumstances, a government entity may be considered a victim of a crime under R.C. 

2929.18(A)(1): For example, when government funds are embezzled or when 

government property is vandalized.” Id. We also acknowledged the state’s “legitimate 

interest and entitlement, in certain cases, to defray the spiraling costs of criminal 

investigation on behalf of the taxpayer.” Id. at ¶ 17. However, we agreed with the majority 

of federal and states court that had concluded “‘the government is not a victim entitled to 

restitution where public moneys are expended in pursuit of solving crimes, as these 

expenditures represent normal operating costs.’” Id., quoting State v. Sequiera, 93 Haw. 

34, 43, 995 P.2d 335 (2000). Based on the absence of “an express statement from the 

legislature authorizing trial courts to sentence criminal defendants to pay restitution to law 

enforcement agencies for this purpose,” we declined to “take it upon ourselves to judicially 

rewrite the statute.” Id. 

{¶118}In In re M.A., 2016-Ohio-1161, 61 N.E.3d 630 (11th Dist.), we determined 

police and fire departments did not qualify as “victims” pursuant to R.C. 2152.20(A)(3), 

which governs restitution following a delinquency adjudication, where the departments 

responded to a “nonspecific” bomb threat made to the schools within a district. Id. at ¶ 1. 

We explained that the bomb threat was not made against these departments and was not 

the type of crime “where actual harm was done to the Departments themselves, through 

damage or theft. They merely performed services in aiding the public and/or investigating 

crime, which is well within their ordinary duties.” Id. at ¶ 21. While the record indicated 
24 

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the police department had “expended some funds due to overtime work,” the state cited 

no case law indicating that “overtime funds expended are not part of normal operating 

costs.” Id. at ¶ 22. Further, even if additional overtime funds were considered an 

economic loss, the police department was not a “victim” as the statute has been 

interpreted. Id.; see also State v. Jones, 7th Dist. Jefferson Nos. 08 JE 20 and 08 JE 29, 

2010-Ohio-2704, ¶ 47 (“[T]he government is not a victim under the restitution statute 

merely because it expended funds in some manner as a result of the defendant’s 

offense”). 

{¶119}In this case, even assuming the Liberty Township Police Department 

incurred $4,500 in overtime costs as a result of Mr. Willard’s offenses, we conclude, based 

on the foregoing authority, that such expenses were part of the department’s normal 

operating costs. Therefore, the department was not a “victim” that suffered an “economic 

loss” pursuant to R.C. 2929.18(A)(1). 

{¶120} Accordingly, we clearly and convincingly find that the trial court’s restitution 

order is contrary to law. The trial court’s judgment is modified to remove the restitution 

order and is affirmed as modified. 

{¶121} Mr. Willard’s first assignment of error has merit. 

{¶122} For the foregoing reasons, the judgment of the Trumbull County Court of 

Common Pleas is affirmed in part, modified in part, and affirmed as modified. 

THOMAS R. WRIGHT, J., 

MATT LYNCH, J., 

concur.