[Cite as State v. Thompson, Jr., 2020-Ohio-211.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

ALVIN E. THOMPSON JR. 

Defendant-Appellant 

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Appellate Case No. 28308 

Trial Court Case No. 2018-CR-3283 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 24th day of January, 2020. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 

45422 

Attorney for Plaintiff-Appellee 

 

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, 

Ohio 45434 

 Attorney for Defendant-Appellant 

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TUCKER, J. 
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{¶ 1} Defendant-appellant Alvin E. Thompson, Jr. appeals his conviction and 

sentence for the following offenses: Count I, having weapons while under disability in 

violation of R.C. 2923.13(A)(2), a felony of the third degree; Count II, having weapons 

while under disability in violation of R.C. 2923.13(A)(3), also a felony of the third degree; 

Count III, failure to comply with the order or signal of a police officer in violation of R.C. 

2921.331(B) and (C)(5), a felony of the third degree; Count IV, endangering children in 

violation of R.C. 2919.22(A), a felony of the third degree; Count V, carrying concealed 

weapons in violation of R.C. 2923.12(A)(2), a felony of the fourth degree; and Count VI, 

improper handling of a firearm in a motor vehicle in violation of R.C. 2923.16(B), a felony 

of the fourth degree. 

{¶ 2} Thompson pleaded guilty to all of the counts in the indictment and waived a 

presentence investigation report (PSI). In exchange for his guilty pleas, the parties 

agreed that Thompson would be sentenced to an aggregate prison term of seven and 

one-half years and would receive jail time credit of 159 days. 

{¶ 3} After Thompson entered his pleas, the trial court proceeded directly to 

sentencing. Following the merger of Counts I and II, the trial court imposed the following 

sentences: 24 months on Count I, having weapons under disability; 24 months on Count 

III, failure to comply with the order or signal of a police officer; 24 months on Count IV, 

endangering children; 18 months on Count V, carrying concealed weapons; and 18 

months on Count VI, improper handling of a firearm in a motor vehicle. The trial court 

then ordered that Counts I, III, and IV be served consecutively to one another, and Counts 

V and VI be served concurrently to each other but consecutively to Counts I, III, and IV, 

for an aggregate sentence of the agreed-upon seven and one-half years in prison. The 
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failure to comply count (Count III) required a driver’s license suspension of three years to 

life. The trial court imposed a 20-year license suspension. This appeal followed. 

Assignments of Error 

{¶ 4} Thompson’s two assignments of error are as follows: 

 THOMPSON’S PLEAS WERE NOT MADE KNOWINGLY, 

INTELLIGENTLY, AND VOLUNTARILY. 

 THE TRIAL COURT FAILED TO MAKE FINDINGS TO SUPPORT 

THE IMPOSITION OF CONSECUTIVE SENTENCES. 

Crim.R. 11(C)(2)(a) Maximum Penalty Advisement 

{¶ 5} Due process mandates that a guilty plea be knowing, intelligent, and 

voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); 

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. Compliance 

with Crim.R. 11(C) ensures that a plea meets this constitutional mandate. State v. Cole, 

2d Dist. Montgomery No. 26122, 2015-Ohio-3793, ¶ 12. Strict compliance with the 

Crim.R. 11(C)(2)(c) constitutional advisements is necessary to establish that a plea is 

consistent with due process. State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 

N.E.3d 766, ¶ 11, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 

261, ¶ 18. But substantial compliance with the Crim.R. 11(C)(2)(a) and (b) nonconstitutional plea requirement is sufficient to meet the due process requirement. 

Substantial compliance exists when the “totality of circumstances” permit the conclusion 

that the defendant “subjectively understands” the non-constitutional plea requirements. 
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Clark at ¶ 31, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). If, 

however, the trial court’s compliance with the Crim.R. 11(C) non-constitutional 

requirements is only partial, an appellate court must undertake a prejudice analysis, with 

prejudice, in this context, being gauged by whether the defendant would otherwise have 

entered the plea. Bishop at ¶ 19, quoting Clark at ¶ 32, quoting State v. Sarkozy, 117 

Ohio St.3d 86, 2008-Ohio-509, 88 N.E.2d 1224, ¶ 22. If prejudice is not found, the plea 

will not be vacated. Id. Finally, if the trial court’s Crim.R. 11(C)(2)(a) or (b) failure is 

complete, prejudice is presumed and the plea must be vacated. Id. 

{¶ 6} A mandatory license suspension is part of a defendant’s maximum penalty. 

Thus, Crim.R. 11(C)(2)(a) requires that a defendant be advised regarding the potential 

maximum duration of a mandatory license suspension. State v. Walz, 2d Dist. 

Montgomery No. 23783, 2012-Ohio-4627; State v. Greene, 2d Dist. Greene No. 2005-

CA-26, 2006-Ohio-480; State v. Billenstein, 3d Dist. Mercer No. 10-13-10, 2014-Ohio255. 

{¶ 7} In Thompson’s case, the following exchange occurred at the plea hearing 

when the trial court realized it had failed to discuss the mandatory license suspension: 

THE COURT: Okay. There’s one thing I need to - - I did not go over with 

you, and I apologize. On Count - - hold on a second. On Count III, failure 

to comply with the order or signal of a police officer - - by pleading guilty to 

that one, your driver’s license can be suspended for between three years 

and life. Do you understand that? 

THE DEFENDANT: Yes. 

THE COURT: Okay. Does that change your plea as to Count III, failure to 
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comply with the order or signal of a police officer? 

THE DEFENDANT: No. 

The plea form Thompson signed did not remedy the trial court’s imprecise statement 

suggesting a discretionary license suspension. In fact, the plea form seemed to indicate 

that Thompson’s driver’s license could be permanently suspended based upon a 

community control sanctions violation, which, even if community control sanctions were 

involved, was incorrect. 

{¶ 8} Based upon the trial court’s suggestion the license suspension was 

discretionary and the plea form’s failure to cure the trial court’s misstatement, we 

conclude there was not substantial compliance with the Crim.R. 11(C)(2)(a) maximum 

penalty advisement. The totality of the circumstances simply does not allow the 

conclusion that Thompson subjectively understood the license suspension was 

mandatory. 

{¶ 9} Going to the next step, we conclude there was partial compliance with the 

required maximum penalty advisement regarding the license suspension. The Supreme 

Court, in an analogous situation, has ruled that a trial court’s failure to discuss postrelease control constitutes a complete failure to comply with the maximum penalty 

advisement. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 88 N.E.2d 1224, at ¶ 22. 

Discussing this conclusion, the Sarkozy court stated that “the trial court did not merely 

misinform Sarkozy about the length of his term of postrelease control. Nor did the court 

merely misinform him as to whether postrelease control was mandatory or discretionary.” 

Id. This language obviously suggests that such misstatements would constitute partial 

Crim.R. 11(C)(2)(a) compliance. 
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{¶ 10} Consistent with the Supreme Court’s suggestion, we have ruled that partial 

Crim.R. 11(C)(2)(a) compliance occurs when a defendant is incorrectly informed that 

post-release control is discretionary instead of mandatory. State v. Russell, 2d Dist. 

Montgomery No. 27473, 2018-Ohio-2571, ¶ 29; State v. Hastings, 2d Dist. Montgomery 

Nos. 27212, 27213, 2018-Ohio-422, ¶ 23; State v. Knox, 2d Dist. Montgomery 25774, 

2015-Ohio-4198. Consistent with this authority, we conclude the trial court’s statement 

to Thompson that “your driver’s license can be suspended for between three years and 

life” constituted partial compliance with the Crim.R. 11(C)(2)(a) maximum penalty 

advisement. 

{¶ 11} In reaching this conclusion, we are aware of our decision in Walz, 2d Dist. 

Montgomery No. 23783, 2012-Ohio-4627; this decision is distinguishable. As here, Walz 

pleaded guilty to failure to comply with an order or signal of a police officer, triggering a 

mandatory license suspension of between three years and life. The plea form correctly 

informed Walz of the length and mandatory nature of the suspension, But the trial court, 

during the plea colloquy, did not mention a license suspension, and, in fact, affirmatively 

informed Walz that the discussed penalties (prison term, fines, and post-release control) 

were “all the potential penalties” he faced. Id. at ¶ 16. We ruled that the trial court’s 

incorrect “all potential penalties” statement overcame the correct plea form, making 

Walz’s plea less than voluntary, knowing, and intelligent. Id. at ¶ 17, citing State v. Engle, 

74 Ohio St.3d 525, 660 N.E.2d 450 (1996). This conclusion eliminated the possibility of 

partial compliance. 

{¶ 12} If, in the pending case, the trial court had not discussed a license 

suspension during the plea colloquy or, after discussing the other potential penalties, had 
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stated “these are all the penalties you face,” there would have been a complete Crim.R. 

11(C)(2)(a) failure. But this is not what occurred, distinguishing Walz from the pending 

case. Thus, a prejudice analysis is required. 

Prejudice Analysis 

{¶ 13} The record does not support a conclusion that, had Thompson been 

informed that the license suspension was mandatory, he would have decided to forego 

the negotiated plea agreement. The plea hearing transcript reflects that Thompson 

entered the plea on Friday, January 25 before the scheduled Monday, January 28 jury 

trial. The transcript also reflects the negotiations concerning Thompson’s sentence, 

which resulted in the discussed seven and one-half year prison term. The transcript also 

reveals that Thompson was on post-release control, but the trial court informed him of its 

intention to terminate the post-release control, thus eliminating the possibility that the 

parole board could effectively increase the prison term. Finally, as already discussed, 

the trial court informed Thompson that his license could be suspended for three years to 

life. Thompson, when so informed, told the trial court that the prospect of a lengthy 

(perhaps lifetime) suspension did not alter his plea decision. The record supports the 

conclusion that Thompson, facing an impending trial on multiple serious charges, was 

primarily concerned with the length of the prison term, and that the prospect of a lengthy 

license suspension was not an overriding concern. In short, the record does not support 

a conclusion that Thompson would not have entered the plea if the trial court had used 

the word “will” instead of “can” with regard to the license suspension. 

{¶ 14} Since the trial court partially complied with the Crim.R. 11(C)(2)(a) 
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maximum penalty advisement and the record does not support a finding of prejudice, 

Thompson’s first assignment of error is overruled. 

Consecutive Sentences 

{¶ 15} Thompson’s second assignment of error asserts the trial court erred 

because it did not make the consecutive sentence findings required by R.C. 

2929.14(C)(4). This argument is incorrect. 

{¶ 16} If, as here, an agreed-upon sentence “includes non-mandatory consecutive 

sentences and the trial court fails to make the consecutive sentence findings * * *, the 

sentence nonetheless is ‘authorized by law,’ and therefore is not appealable pursuant to 

R.C. 2953.08(D)(1).” State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 

627, ¶ 30. Also, the trial court was required to impose a consecutive sentence regarding 

the failure to comply count. Since this consecutive sentence was “mandated by law, the 

trial court * * * was not required to make the [R.C. 2929.14(C)(4)] findings * * *.” State v. 

Tonn, 2d Dist. Greene Nos. 2004-CA-36, 2004-CA-37, 2005-Ohio-2021, ¶ 27. Thus, the 

trial court did not err by failing to make the R.C. 2929.14(C)(4) consecutive sentence 

findings. The second assignment of error is overruled. 

Conclusion 

{¶ 17} Having overruled Thompson’s assignments of error, the judgment of the 

Montgomery County Common Pleas Court is affirmed. 

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WELBAUM, J., concurs. 

DONOVAN, J., dissents: 

{¶ 18} I dissent. Thompson was given misinformation during the plea colloquy. 

He was informed that a license suspension “can” be imposed when in fact it was 

mandatory; hence, he was not informed of the maximum penalty for failure to comply in 

accordance with Crim.R. 11(C)(2). Furthermore, the plea form also did not inform 

Thompson of the mandatory license suspension. In fact, there was misinformation 

contained therein which erroneously tied a mandatory license suspension to a violation 

of community control. I would find no compliance and vacate the plea as this court did 

in Walz, 2d Dist. Montgomery No. 23783, 2012-Ohio-4627, and State v. Greene, 2d Dist. 

Greene No. 2005-CA-26, 2006-Ohio-489. As Judge Grady noted in his dissent in 

Greene, “a mandatory suspension of driving privilege is a serious adverse consequence 

of a guilty plea.” Greene at ¶ 23. Thompson’s 20-year license suspension is indeed 

longer than his prison term. Furthermore, “when material misinformation about the 

consequence of a guilty plea is conveyed to a defendant, and the court by its silence fails 

to correct the mistake, the failure renders the plea less than knowing, intelligent, and 

voluntary.” Engle, 74 Ohio St.3d 525, 660 N.E.2d 450 (1996). I would reverse. 

Copies sent to: 

Mathias H. Heck, Jr. 

Lisa M. Light 

Robert Alan Brenner 

Hon. Mary Katherine Huffman