[Cite as State v. Gau, 2023-Ohio-4205.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO

 Appellee 

v. 

BRANDON GAU

 Appellant

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C.A. No. 29786

Trial Court Case No. 2023 CR 00030

(Criminal Appeal from Common Pleas 

Court)

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O P I N I O N

Rendered on November 22, 2023

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ROBERT ALAN BRENNER, Attorney for Appellant

 

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee

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EPLEY, J.

{¶ 1} Defendant-Appellant Brandon Gau appeals from his conviction in the 

Montgomery County Court of Common Pleas after he pleaded guilty to one count of gross 

sexual imposition (GSI) and was sentenced to 24 months in prison. For the reasons that 
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follow, the judgment of the trial court will be affirmed.

I. Facts and Procedural History

{¶ 2} On February 6, 2023, Gau was indicted on two counts of gross sexual 

imposition in violation of R.C. 2907.05(A)(4), third-degree felonies. The victim of the 

crimes was a 12-year-old boy. A few weeks later, Gau filed a motion to suppress; the trial 

court set a hearing date of April 6, 2023. Instead of a suppression hearing on that date, 

Gau decided to enter a guilty plea. In exchange for Gau’s pleading guilty to one count 

and withdrawing his motion to suppress, the State agreed to dismiss the other GSI count.

{¶ 3} After accepting the guilty plea, the trial court ordered a presentence 

investigation. Gau was sentenced to 24 months in prison and designated a Tier II sex 

offender. He has filed a timely appeal that raises a single assignment of error.

II. Guilty Plea 

{¶ 4} In his lone assignment of error, Gau argues that his plea was not made in a 

knowing, intelligent, and voluntary manner because “the trial judge misled him into 

believing that he was not facing a presumption of prison time[.]” Appellant’s Brief at 2. 

{¶ 5} To satisfy the requirements of due process, a guilty plea must be made 

knowingly, intelligently, and voluntarily, and the record must affirmatively demonstrate as 

much. State v. Harris, 2d Dist. Clark No. 2020-CA-29, 2021-Ohio-1431, ¶ 15. For a plea 

to be made knowingly, intelligently, and voluntarily, the trial court must follow the 

mandates of Crim.R. 11(C). State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705, 

2012-Ohio-199, ¶ 13. “[T]he rule ‘ensures an adequate record on review by requiring the 

trial court to personally inform the defendant of his rights and the consequences of his 
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plea and determine if the plea is understandingly and voluntarily made.’ ” State v. Dangler, 

162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 11, quoting State v. Stone, 43 Ohio 

St.2d 163, 168, 331 N.E.2d 411 (1975).

{¶ 6} Crim.R. 11(C)(2)(c) dictates that the trial court inform the defendant of the 

constitutional rights he is waiving, like the right to a jury trial, the right to confront 

witnesses, the right to compulsory process, the right against self-incrimination, and the 

right to require the State to establish guilt beyond a reasonable doubt. State v. Perdue, 

2022-Ohio-722, 185 N.E.3d 683, ¶ 11 (2d Dist.). Strict compliance with this Rule is 

required. Id. A failure to do so invalidates the plea. Id.

{¶ 7} “A trial court must substantially comply with the notification of nonconstitutional rights contained in Crim.R. 11(C)(2)(a) and (b), and a defendant generally

must show prejudice before a plea will be vacated for failure to substantially comply with 

these notifications.” State v. Easter, 2016-Ohio-7798, 74 N.E.3d 760, ¶ 8 (2d Dist.). 

“Substantial compliance” means that under the totality of the circumstances the defendant 

understands the implications of his plea and the rights he is giving up. State v. Thomas, 

2d Dist. Montgomery No. 26907, 2017-Ohio-5501, ¶ 37; State v. Nero, 56 Ohio St.3d 106, 

108, 564 N.E.2d 474 (1990). A defendant challenging a guilty plea on non-constitutional 

grounds “must show a prejudicial effect” – in other words, “that the plea would otherwise 

not have been entered.” Thomas at ¶ 38.

{¶ 8} As to the underlying charge of GSI, R.C. 2907.05(A)(4) states that no person 

shall have sexual contact with another if the other is less than 13 years of age, whether 

or not the offender knows the age of that person. A violation of this section carries a 
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presumption of prison. R.C. 2907.05(C)(2); R.C. 2929.13(D)(1); State v. Jordan, 2d Dist. 

Champaign No. 2016-CA-17, 2017-Ohio-5827, ¶ 15. See also State v. Montez, 6th Dist. 

Lucas No. L-21-1086, 2022-Ohio-640, ¶ 22; State v. Stephens, 11th Dist. Portage No. 

2018-P-0090, 2019-Ohio-3150, ¶ 15. The presumption can be overcome, and if it is, the 

court may impose community control sanctions. Id; State v. Bevly, 142 Ohio St.3d 41, 

2015-Ohio-475, 27 N.E.3d 516, ¶ 25.

{¶ 9} Gau has not argued that the trial court failed to advise him of the 

constitutional and non-constitutional rights he was giving up by entering a guilty plea, and 

our review of the record confirms that he was thoroughly informed of his rights. Instead, 

Gau claims that the trial court misled him into thinking he had a 50-50 chance of receiving 

community control sanctions, making his plea involuntary. We disagree.

{¶ 10} We begin by noting that a trial judge is not required, when accepting a guilty 

plea, to inform a defendant of the statutory presumption in favor of incarceration or to 

ascertain that the defendant understands that presumption. State v. Good, 2d Dist. Clark 

No. 2022-CA-39, 2023-Ohio-1510, ¶ 13; State v. Gales, 2d Dist. Greene No. 1997-CA114, 1998 WL 698363, *4 (Oct. 9, 1998) (“[T]here is no provision in Crim.R. 11 for 

determining that the defendant has an understanding of the statutory presumption in favor 

of incarceration[.]”). 

{¶ 11} During the plea colloquy, the trial court made it clear at least twice that there 

were two possible outcomes: imposition of a prison sentence or community control 

sanctions. First, the court stated that it had “the option of doing one of two things; either 

impose a prison sentence or grant community control. Those are the Court’s only two 
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options.” Plea Tr. at 10. A short time later, it asked: “Now, appreciating that these are the 

two options, and the Court has to pick one of those, also appreciating I can’t tell you today 

which one I will impose * * *, I ask you. Do you still want to go forward with the change of 

plea to guilty?” Plea Tr. at 12. There was nothing false or misleading about those 

statements. The court did not promise community control, nor did it rule out the possibility 

of a prison term; it accurately advised Gau of the case’s possible outcomes. In every nonmandatory prison term case, there are two potential dispositions: community control or 

prison. Further, Gau’s plea agreement (which he signed and stated that he understood) 

clearly set out that both a prison term of up to 60 months or community control sanctions 

were possibilities. 

{¶ 12} Gau also believes that the trial court should have honored the parties’ joint 

recommendation that he be sentenced to community control. There are two problems 

with this argument. First, there is scant evidence that there was such an agreement. There 

was no mention of it at the plea hearing by either party or the court, and there is nothing 

in the plea agreement itself that indicates there was an agreement as to sentence. That 

form indicates that there was a range of prison sentences available from 12 to 60 months, 

or community control sanctions. The only mention of it was by defense counsel at the 

disposition. 

{¶ 13} Second, even if there were an agreed recommendation, Ohio courts have

held that a trial court is not bound to accept a jointly-recommended sentence in a plea 

agreement. State v. Underwood, 124 Ohio St.3d 363, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28;

State v. Stevens, 2d Dist. Miami No. 2021-CA-40, 2022-Ohio-2974, ¶ 6; State v. Downing, 
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2d Dist. Greene No. 2019-CA-72, 2020-Ohio-3984, ¶ 34; State v. Elliott, 2021-Ohio-424, 

168 N.E.2d 33, ¶ 15 (1st Dist.) (a recommended sentence is a “nonbinding 

recommendation to the court, which the court is not required to accept or comment on”). 

{¶ 14} Because the record confirms that Gau was not misled into thinking he was 

going to get community control, and because the trial court was not required to explain 

that there was a presumption of prison, we conclude that he entered into the plea 

agreement in a knowing, intelligent and voluntary manner. The assignment of error is 

overruled.

III. Conclusion

{¶ 15} The judgment of the trial court will be affirmed. 

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WELBAUM, P.J. and LEWIS, J., concur.