[Cite as State v. Givens, 2024-Ohio-2563.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

COLUMBIANA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

JUSTIN M. GIVENS,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case Nos. 23 CO 0039, 23 CO 0040

Criminal Appeals from the

Court of Common Pleas of Columbiana County, Ohio

Case Nos. 22 CR 05 and 22 CR 415

BEFORE:

Carol Ann Robb, Cheryl L. Waite, Mark A. Hanni, Judges.

JUDGMENT:

Affirmed.

Atty. Vito J. Abruzzino, Prosecuting Attorney, Atty. Shelley M. Pratt, Assistant Prosecuting 

Attorney, Columbiana County Prosecutor’s Office, for Plaintiff-Appellee and

Atty. Christopher Bazeley, for Defendant-Appellant.

Dated: July 2, 2024
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Case No. 23 CO 0039, 23 CO 0040

Robb, P.J.

{¶1} Defendant-Appellant Justin M. Givens appeals the judgments of the 

Columbiana County Common Pleas Court entered after he pled guilty in two criminal 

cases. Appellant contends the trial court improperly held his silence at sentencing against 

him while opining he lacked remorse. He also argues certain offenses might have been 

subject to merger prior to sentencing. Lastly, he claims his pleas should be vacated 

because the phraseology “can be punished separately” in the court’s oral plea colloquy 

was not a specific advisement that the sentence for any new felony committed on postrelease control (if placed on it in the future) would be “consecutive” to any sentence 

imposed for the post-release control violation. For the following reasons, Appellant’s 

convictions are upheld, and the trial court’s two sentencing judgments are affirmed.

STATEMENT OF THE CASE

{¶2} In Columbiana County Common Pleas Case Number 22 CR 5, Appellant 

was indicted for the following three offenses occurring on December 26, 2021: improper 

handling of a firearm in a motor vehicle, a fourth-degree felony; obstructing official 

business, a second-degree misdemeanor; and endangering children, a first-degree 

misdemeanor. (2/10/22 Ind.). 

{¶3} On March 18, 2022, while he was out on bond in 22 CR 5, he shot and killed 

his children’s grandmother in front of his two young children. He stole two guns from her 

house and subsequently buried them, broke a shared cell phone to avoid tracking, and 

slept in a field overnight with his children, who were found wet, cold, and hungry. (Sent.Tr. 

10). 

{¶4} As a result of these events, Appellant was indicted in Columbiana County 

Common Pleas Case Number 22 CR 415 for eight offenses. The first two counts were 

aggravated murder and murder, both with a firearm specification. The third and fourth 

counts were third-degree felony thefts, one for a .380 semi-automatic firearm and one for 

a rifle. The fifth and sixth counts were two third-degree felony counts of tampering with 

evidence, for burying the guns and breaking the phone. The seventh count was fifth-
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degree felony drug possession (methamphetamine). The eighth count was first-degree 

misdemeanor endangering children. (7/14/22 Ind.).

{¶5} On April 21, 2023, Appellant entered a plea agreement in 22 CR 5. He pled 

guilty to improper handling of a firearm in a motor vehicle and endangering children. In 

exchange, the state agreed to dismiss the obstruction charge. As part of the agreement, 

the state agreed to recommend 15 months in prison for the fourth-degree felony and a 

concurrent jail term of 180 days for the misdemeanor. A presentence investigation (PSI) 

was ordered.

{¶6} On July 10, 2023, Appellant entered a plea agreement in 22 CR 415. The 

state agreed to dismiss the charge of aggravated murder. In exchange, Appellant pled 

guilty to the remaining charges. As part of the agreement, the state agreed to recommend 

a total sentence of 21 years to life by seeking the following terms: 15 years to life for 

murder plus three years for the firearm specification; 18 months on counts three and four 

to run concurrently with each other but consecutively to the other offenses; 18 months on 

counts five and six to run concurrently with each other but consecutively to the other 

offenses; 10 concurrent months on count seven; and 180 days of concurrent jail time on 

count eight. A PSI was not ordered for this case.

{¶7} A joint sentencing hearing in the two cases was held on July 18, 2023. 

Although the prior written plea agreements anticipated the defense would seek a lower 

sentence than recommended by the state, at sentencing, the defense asked the court to 

impose the sentence recommended by the prosecution, stating it was now a joint 

recommendation. (Tr. 27-29). 

{¶8} The court imposed all requested sentences except for the 10 concurrent 

months recommended for drug possession (count seven in 22 CR 415), which the court 

chose to impose as a consecutive sentence. (Sent.Tr. 34, 36-38). In 22 CR 415, this 

resulted in a total prison sentence of 21 years and 10 months to life (instead of the jointly 

recommended 21 years to life in prison). The sentences in the two cases were run 

consecutively with each other. (Sent.Tr. 38). 

{¶9} Appellant filed a timely notice of appeal from the July 19, 2023 sentencing 

judgments. The appeal in 22 CR 5 resulted in 7th Dist. No. 22 CO 39, and the appeal in 
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22 CR 415 resulted in 7th Dist. No. 22 CO 40. Appellant filed one brief with arguments 

addressing both cases after this court granted a motion for consolidated briefing.

ASSIGNMENT OF ERROR ONE

{¶10} Appellant sets forth three assignments of error, the first of which alleges:

“THE TRIAL COURT ERRED WHEN IT FOUND THAT GIVENS’ MAINTAINING 

HIS INNOCENCE AND REMAINING SILENT AT SENTENCING AMOUNTED TO A 

LACK OF REMORSE UNDER R.C. 2929.12.”

{¶11} Appellant argues the court erred when it considered his silence at 

sentencing as evidence that he lacked remorse. He claims the court’s comments on his 

remorse show he was inappropriately punished for exercising his constitutional right to 

remain silent. 

{¶12} Lack of genuine remorse is a statutory sentencing factor relevant to 

recidivism. Specifically, “The sentencing court shall consider all of the following that apply 

regarding the offender, and any other relevant factors, as factors indicating that the 

offender is likely to commit future crimes: * * * (5) The offender shows no genuine remorse 

for the offense.” R.C. 2929.12(D)(5). Compare R.C. 2929.12(E)(5) (stating recidivism 

less likely if the “offender shows genuine remorse”). Pursuant to Crim. R. 32(A)(1), the 

trial court shall give the defendant an opportunity to speak during sentencing or present 

any information in mitigation of punishment. This process “is much more than an empty 

ritual: it represents a defendant's last opportunity to plead his case or express remorse.” 

State v. Green, 90 Ohio St.3d 352, 359-60, 738 N.E.2d 1208 (2000).

{¶13} The Brunson case relied upon by Appellant addressed the application of the 

Fifth Amendment to a sentencing court’s use of a defendant’s silence at trial to find a lack 

of genuine remorse. State v. Brunson, 171 Ohio St.3d 384, 2022-Ohio-4299, 218 N.E.3d 

765. The cited right to remain silent to protect against self-incrimination provides in 

pertinent part: “No person * * * shall be compelled in any criminal case to be a witness 

against himself, nor be deprived of life, liberty, or property, without due process of law * * 

*.” Fifth Amendment to the U.S. Constitution.

{¶14} The Brunson Court began by observing the “normal rule” prohibits the 

drawing of negative inferences, including during sentencing, about “factual 

determinations respecting the circumstances and details of the crime” based on a 
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Case No. 23 CO 0039, 23 CO 0040

defendant's failure to testify. Brunson, 171 Ohio St.3d 384 at ¶ 75-76, quoting Mitchell v. 

United States, 526 U.S. 314, 328-329, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (the 

holding that an adverse factual inference may not be drawn from silence at sentencing 

does not answer the question of whether silence at sentencing can influence a court’s 

decision on the sentencing factor of remorse). The Ohio Supreme Court then 

acknowledged the United States Supreme Court subsequently suggested, “it may be 

reasonable for a court to consider a defendant's silence at sentencing as a demonstration 

of that defendant's lack of remorse.” Id. at ¶ 77, citing White v. Woodall, 572 U.S. 415, 

422, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014).

{¶15} The Brunson Court then explained that remorse essentially involves an 

admission to taking part in the offense and is not akin to a mere expression of sympathy. 

Id. at ¶ 72, 80-82 (“It is easy to see why a defendant who maintains his or her innocence 

may waive allocution, since allocution is not meant to serve as a time to renew challenges 

to guilt and a defendant cannot express remorse for a crime that he or she denies 

committing.”). The Court concluded the use of the defendant’s silence to draw a negative 

inference on remorse was not constitutionally permissible because it affected the factual 

determinations in the case “for a defendant who pleaded not guilty and took the case to 

trial.” (Emphasis added.) Id. at ¶ 78. 

{¶16} In other words, “when a defendant has maintained his or her innocence by 

pleading not guilty and has taken the case to trial, the trial court errs when it considers 

the defendant's silence to be a demonstration of that defendant's lack of remorse for 

purposes of sentencing under R.C. 2929.12(D)(5).” (Emphasis added.) Id. at ¶ 83. “To 

consider the defendant's silence as a lack of remorse in this context would create a 

negative inference regarding the factual determinations in the case—an inference that is

prohibited under Mitchell.” (Emphasis added.) Id.

{¶17} Distinguishably, Appellant pled guilty and thereby admitted the offenses.

Brunson involved a defendant who took the case to trial, where he remained silent. 

{¶18} “The plea of guilty is a complete admission of the defendant's guilt.” Crim.R. 

11(B). At the plea hearings in each of Appellant’s cases, Appellant said he understood 

he was making a complete admission to the charges. (4/21/23 Plea Tr. 9); (7/10/23 Plea 

Tr. 13). He also wrote “yes” in his sworn and signed filings when asked, “Do you fully 
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realize that when you complete your Response to Court under oath, you are confessing 

that you are truly guilty of committing the crime to which you plead guilty * * *.” (7/12/23 

Def.Resp. to Ct. in 22 CR 415); (4/21/23 Def.Resp. to Ct. in 22 CR 05).

{¶19} As the state points out, other appellate districts have similarly distinguished 

the error in Brunson and applied the Brunson holding to permit consideration of silence 

at sentencing after a guilty plea, as silence at sentencing post-plea can properly be 

interpreted as tending to show the lack of remorse statutory sentencing factor. See State 

v. Lowery, 2d Dist. Clark No. 2023-CA-4, 2023-Ohio-4444, ¶ 18; State v. Gurto, 11th Dist. 

Ashtabula No. 2022-A-0045, 2023-Ohio-2351, ¶ 19-21. The state also notes that even 

prior to the Brunson Court limiting its holding to sentencing after a trial, appellate courts 

were opining a trial court does not violate the right to remain silent after a guilty plea by 

considering a failure to express remorse. See, e.g., State v. Taft, 6th Dist. Huron No. H18-003, 2019-Ohio-1565, ¶ 33, citing State v. Clunen, 7th Dist. Columbiana No. 12 CO 

30, 2013-Ohio-5525, ¶ 21; State v. Duhl, 2d Dist. Champaign No. 2016-CA-30, 2017-

Ohio-5492, ¶ 31.

{¶20} Because Appellant pled guilty to the offenses, the Brunson decision 

prohibiting courts from using silence against the defendant is inapplicable, as it 

specifically applied to defendants who took their case to trial. A negative inference from 

failing to express or otherwise show remorse is not prohibited after a guilty plea. 

{¶21} Moreover, the defendant forfeits all but plain error on appeal where defense 

counsel failed to object to this specific constitutional argument when the sentencing factor 

on remorse was mentioned by the trial court in conjunction with the defendant’s silence 

at the sentencing hearing. Brunson, 171 Ohio St.3d 384 at ¶ 67. Where defense counsel 

failed to specifically challenge the sentencing court's consideration of the defendant’s lack 

of allocution as relevant to a lack of remorse, the Supreme Court required the appellant 

in Brunson to meet the plain error standard (even though his attorney raised an argument 

about the court's consideration of the silence exercised during a presentenceinvestigation interview). Id. at 65-67.

{¶22} Here, no objection was made while the court was addressing Appellant’s 

lack of remorse. Later, at the close of the sentencing hearing, after imposing the 

sentence, the court asked if there was anything further from the defense. Appellant’s 
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attorney answered, “Just to note our objection as to the consecutive sentences as well as 

the violent offender designation. Other than those objections, nothing further, Your 

Honor.” (Sent.Tr. 44-45). 

{¶23} This was not an objection claiming the court improperly considered silence 

at sentencing as showing a lack of genuine remorse. See Brunson, 171 Ohio St.3d 384 

at ¶ 65-67 (finding the issue was not preserved below where an even stronger case for 

preservation was made). Accordingly, even if we had found an error above, we would be 

applying only a plain error standard of review to this issue. Id. at ¶ 65-67.

{¶24} The discretion to recognize plain error must be exercised with the utmost 

caution, under exceptional circumstances, and only to prevent a manifest miscarriage of 

justice. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “Crim.R. 52(B) 

does not demand that an appellate court correct [the error]. Crim.R. 52(B) states only that 

a reviewing court ‘may’ notice plain forfeited errors; a court is not obliged to correct them.” 

Id. But first, an error must be found, and the deviation from a legal rule must be an 

obvious defect in the trial court proceedings. Id. In addition to showing an obvious error, 

the defendant must demonstrate a reasonable probability the error resulted in prejudice; 

the probability of a different result must be sufficient to undermine the reviewing court’s 

confidence in the outcome of the proceeding. Id.; Brunson, 171 Ohio St.3d 384 at ¶ 25, 

84-87, 90, citing State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, 

¶ 130. See also State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, 

¶ 22 (plain error’s reasonable probability test is the same prejudice test used in reviewing 

ineffective assistance of counsel claims).

{¶25} Although Brunson ruled the sentencing court erred by finding the 

defendant’s lack of allocution showed a lack of remorse (after that defendant took the 

case to trial where he remained silent), the Supreme Court nevertheless concluded the 

defendant did not show this constituted plain error requiring a new sentencing hearing. 

Brunson, 171 Ohio St.3d 384 at ¶ 84-87. Specifically, the defendant did not demonstrate 

a reasonable probability that but for the trial court's consideration of his silence, his 

sentence would have been different. Id. (pointing to other factors supporting the trial 

court's recidivism determination and the overall sentence imposed). 
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{¶26} Here, five relatives of the victim spoke at sentencing, and a victim impact 

statement from another relative was submitted to the court. Appellant’s lack of remorse 

over the period of time since the murder was addressed by various relatives. (Sent.Tr. 

18, 20, 24). Defense counsel acknowledged the issue for the court “does, in fact, center 

on Mr. Given[s’] remorse and feelings that he has inside that are very difficult for him to 

articulate.” (Sent.Tr. 25). Counsel said Appellant accepted responsibility and was 

accepting the state’s sentencing recommendations “to minimize the harm that he has 

done * * * so the family didn’t have to go through anymore turmoil because of his decisions 

and actions.” (Sent.Tr. 27-28). Counsel concluded by stating, “Justin does offer up his 

deep condolences to the family for what had occurred, what he did, and what he caused.” 

(Sent.Tr. 29). The court was not required to believe this constituted genuine remorse.

{¶27} Appellant criticizes the court’s subsequent observations, including: “I hope 

that you listened to every single word that was said in here, because as you sit before me 

right now, I see zero emotion. I see zero remorse. I actually see no care at all. I have 

witnessed that from you every time you have been in front of me. Not even a mere sorry. 

Not a tear shed for the life you took.” (Sent.Tr. 29-30). After discussing his persistence 

in obtaining the guns to commit the murder even after firearms were removed from him 

and the impact of his offense on his children and other family members, the court 

addressed the statements by the relative who spoke at sentencing by making the 

following observations: “And you don’t even have the decency to tell them you’re sorry, 

that you made a mistake. I have never heard that from you either. This was your 

opportunity to say that and you didn’t. You had nothing to say. And maybe that is the 

proper way. Maybe there are no words that can actually describe the heinous acts you 

committed.” (Sent.Tr. 31).

{¶28} The court said it considered all of the seriousness and recidivism factors. 

Various negative sentencing factors were discussed at sentencing. (Sent.Tr. 4-7, 9-12, 

30-32). Appellant committed the murder and other offenses in 22 CR 415 while he was 

out on bond in 22 CR 5. He killed the grandmother of his children in front of his children, 

indicating his relationship with the victim facilitated the offense. By the time of the 

sentencing at issue, he was serving a sentence for escape and another weapons offense. 
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He also had pending charges due to conduct while incarcerated. In addition, his criminal 

record contained various criminal charges predating these offenses. 

{¶29} The court’s decision to impose ten months more than the jointly 

recommended sentence was not primarily based on Appellant’s silence at sentencing. 

Appellant has not demonstrated his case involves exceptional circumstances, a manifest 

miscarriage of justice, or a reasonable probability his sentence would have been different 

(had the court refrained from mentioning his lack of allocution at sentencing). Regardless, 

Appellant’s constitutional rights were not violated by considering his silence at sentencing 

after he pled guilty to the offenses. This assignment of error is overruled.

ASSIGNMENT OF ERROR TWO

{¶30} Appellant’s second assignment of error contends:

“THE TRIAL COURT FAILED TO PROPERLY MERGE ALLIED OFFENSES OF 

SIMILAR IMPORT.”

{¶31} Appellant argues the trial court failed to consider whether the two counts 

involving theft of a firearm (counts three and four) should be merged into one count and 

whether the two counts involving tampering with evidence (counts five and six) should be 

merged into one count. As Appellant points out, running sentences concurrently is not 

akin to merging offenses. State v. Holcomb, 7th Dist. Mahoning No. 19 MA 0083, 2021-

Ohio-2352, ¶ 46-47, citing, e.g., State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 

950 N.E.2d 512, ¶ 17. In claiming the trial court erred, Appellant cites Underwood where 

the Supreme Court made the following holding: “[A] trial court is prohibited from imposing 

individual sentences for counts that constitute allied offenses of similar import. A 

defendant's plea to multiple counts does not affect the court's duty to merge those allied 

counts at sentencing. This duty is mandatory, not discretionary.” State v. Underwood, 

124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26. Accordingly, “when a sentence 

is imposed on multiple counts that are allied offenses of similar import in violation of R.C. 

2941.25(A), R.C. 2953.08(D) does not bar appellate review of that sentence even though 

it was jointly recommended by the parties and imposed by the court.” Id. 

{¶32} Nevertheless, “the failure to raise the allied offense issue at the time of 

sentencing forfeits all but plain error.” State v. Bailey, 171 Ohio St.3d 486, 2022-Ohio4407, 218 N.E.3d 858, ¶ 7, quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
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2459, 38 N.E.3d 860, ¶ 28. See also Underwood, 124 Ohio St.3d 365 at ¶ 27 (when the 

issue of allied offenses is before the court, the question is whether the law allows the 

court to sentence the defendant on each offense). Although merger arguments are 

reviewed de novo, the record must demonstrate an unraised merger issue was an error 

that was both obvious and prejudicial in order to meet the plain error test on appeal. State 

v. Bailey, 171 Ohio St.3d 486, 2022-Ohio-4407, 218 N.E.3d 858, ¶ 6-16. In claiming plain 

error under Crim.R. 52(B), the defendant has the burden to show there is a reasonable 

probability that an obvious deviation from a legal rule resulted in prejudice sufficient to 

undermine our confidence in the outcome of the proceeding. Brunson, 171 Ohio St.3d 

384 at ¶ 25, 84-87, 90, citing Myers, 154 Ohio St.3d 405 at ¶ 130. See also Rogers, 143 

Ohio St.3d 385 at ¶ 22 (“The accused is therefore required to demonstrate a reasonable 

probability that the error resulted in prejudice—the same deferential standard for 

reviewing ineffective assistance of counsel claim.”).

{¶33} In evaluating merger under R.C. 2941.25, a court can find a defendant's 

conduct supports multiple sentences for multiple guilty pleas if the offenses were: (1) 

dissimilar in import or significance (including when each causes a separate, identifiable 

harm); (2) similar in import but committed separately; or (3) similar in import but committed 

with separate animus or motivation. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 

34 N.E.3d 892, ¶ 20-21, 25, 31, applying R.C. 2941.25. If any one aspect of this test is 

met, then multiple convictions are warranted. Id. 

{¶34} Sentencing occurring after a guilty plea typically results in minimal facts 

being presented on the record in a case where the defense failed to set forth merger 

arguments below, especially where sentencing is a joint recommendation. Importantly, 

each case is fact-dependent with the burden resting on the defense to cite the relevant 

portions of the factual record supporting the merger argument. See Bailey, 171 Ohio 

St.3d 486 at ¶ 16 (reversing an appellate court's use of plain error to merge offenses after

a jury trial while stating, “it is clear to us that in an area of law so driven by factual 

distinctions, any asserted error was not obvious.”). 

{¶35} After the state recited its sentencing recommendations, defense counsel 

made the following comments about the recommendation: 
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in essence, the sentence is a joint recommendation. We’re not asking the 

Court to deviate lower than that. I believe that it’s a fair resolution to this 

matter. There are issues that probably need to – there were issues as to 

that sentence in regards to merger or concurrent sentences. But that being 

said, Justin accepted the recommendations of the State. And the main 

reason is to minimize the harm that he has done. Nothing can take back 

what happened back in March of last year. But what Justin instructed me 

to do and what we did was reach resolution so that the family didn’t have to 

go through anymore turmoil because of his decisions and actions. 

(Sent.Tr. 27). Defense counsel subsequently concluded, “We would ask the Court to, in 

its analysis, honor the recommended sentence from the State of Ohio.” (Sent.Tr. 28-29).

{¶36} The trial court’s only deviation from the joint recommendation involved the 

imposition of a consecutive 10-month sentence for possession of methamphetamine 

instead of the jointly recommended concurrent 10-month sentence. Notably, Appellant 

sets forth no merger argument as to that offense; nor would any facts support such an 

argument. Instead, Appellant argues the trial court erred in failing to consider whether 

the two counts involving theft of a firearm should be merged into one count and whether 

the two counts involving tampering with evidence should be merged into one count. He 

does not actually explain why he believes merger was warranted; rather, he broadly 

contends the court erred in failing to sua sponte conduct an analysis on allied offenses of 

similar import. 

{¶37} The indictment specified the theft of a firearm in count three involved a .380 

semi-automatic and the theft of a firearm in count four involved a rifle. Counts five and 

six represented a count of tampering with the evidence for burying the stolen guns and a 

count of tampering with evidence for breaking a “shared” cell phone to prevent being 

tracked after he fled with his children and their mother. (Sent.Tr. 11). As relevant to these 

four offenses, the state briefly recited at sentencing: Appellant stole from the murder 

victim; he then shot her; and while fleeing, he buried the guns and broke the phone. 

{¶38} The state opined the acts were separate offenses, each with a separate 

animus. (Sent.Tr. 10-11). Appellant did not argue these counts should be merged at the 

sentencing hearing; instead, defense counsel indicated any prior idea of presenting a 
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merger theory had been abandoned when the defense tactically chose to join the state’s 

sentencing recommendations.

{¶39} On appeal, a supported argument is not specified as to how the count 

representing the act of burying guns constituted an offense that would merge with the 

count representing Appellant’s act of breaking a shared phone to avoid having his 

movements (during and after the murder) tracked. From all indications in the record, 

these acts were committed separately. Therefore, there is no indication the tampering 

with evidence charges in counts five and six could have been merged.1

{¶40} As to counts three and four, he stole two different guns from one victim, a 

semi-automatic handgun and a rifle. We note the guns were stolen from the victim’s 

house (not from her person). The record does not indicate where they were stored in the 

house, who owned each gun, the timing of each theft during the course of events, or the 

purpose for which Appellant used each gun. For instance, from the comments at 

sentencing, it appears one of the firearms may have been the murder weapon, which 

would give rise to a distinct motivation for the theft. (Sent.Tr. 30-31). In any event, the 

record does not indicate Appellant’s animus or motivation for each theft was the same. 

Nor does the record indicate the thefts were committed together (as opposed to 

separately) or were similar in significance or harm caused. In accordance, Appellant has 

not demonstrated on the record the existence of an obvious error or prejudice in the failure 

to merge counts three and four. 

{¶41} Lastly, we point out the sentence was jointly recommended. This was not 

just a guilty plea with a state’s agreement to recommend a certain sentence and a defense 

failure to argue merger at sentencing; rather, this case additionally involves the defense 

joining the state’s sentencing recommendation at the sentencing hearing. That request 

included an agreement that counts three and four could each receive their own concurrent 

18-month sentence (but consecutive to other offenses) and counts five and six could each 

receive their own concurrent 18-month sentence (but consecutive to other offenses). Not 

1 Appellant’s brief merger argument is based on the court running the sentences concurrently for “counts 

three and four and counts five and six”; these sentences were imposed concurrently within the sets but 

consecutive among the sets. Hence, he does not argue the theft of firearms from one location should be 

merged into the count of tampering with evidence as applicable to the burying of the firearms at another 

location. In any event, there is no support for a merger argument between those counts.
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only did the defense refrain from protesting the entry of a conviction (guilty plea plus 

sentence) on each of these four counts, the defense essentially joined in the state’s 

argument that there were no allied offenses of similar import by joining in the concurrent 

and consecutive recommendations at issue. More notably, defense counsel’s mention of 

a previous defense theory on merger in the midst of explaining the new decision to join in 

the state’s sentencing recommendation indicated the defense was abandoning any 

merger theory they may have previously contemplated raising. Compare Underwood, 

124 Ohio St.3d 365 at ¶ 32 (where there was “nothing in the record that demonstrate[d] 

that Underwood was informed that he was agreeing to be convicted of allied offenses, 

thereby waiving his constitutional right to be free from double jeopardy.”).2

{¶42} The plea included an agreement for the state to seek dismissal of the 

aggravated murder count and to recommend lower than maximum sentences on various 

felonies. The maximum sentence was 36 months in prison for each of the four thirddegree felony offenses at issue in this assignment of error. R.C. 2929.14(A)(3)(b). 

Appellant knew the court was not required to follow the state’s request. Even after the 

defense joined the recommendation of 18 months on each third-degree felony (concurrent 

between the sets but consecutive with other offenses), there was concern recognized on 

the record that the court would impose maximum, consecutive sentences on all offenses. 

Defense counsel specifically observed, “It’s easy to just give maximum consecutive 

sentences in a case like this, but that’s not what we’re required to do.” (Sent.Tr. 28). 

Clearly, it was a tactical decision to join the lower-than-maximum, partially-concurrent 

sentencing recommendations to convince the court to accept the plea and the joint 

recommendations. (And, the particular sentences challenged in this assignment of error 

were joint recommendations adopted by the trial court, as the only deviation involved the 

consecutive nature of the ten-month sentence, which is not at issue in this assignment). 

Although an ineffective assistance of counsel argument was not specified here, the record 

does not indicate a deficiency in counsel’s performance on reaching this tactical decision. 

2 We note the case at bar is distinguishable from a case Appellant cites involving the following distinct 

features: the facts of the offenses were elicited at a jury trial; defense counsel specifically made a merger 

argument at sentencing; and the trial court made an ambiguous statement about concurrent sentences that 

suggested some future decision would be made on merger. See State v. Grove, 7th Dist. Mahoning No. 

18 MA 0145, 2020-Ohio-3622.
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{¶43} In any event, as set forth above, plain error has not been established. For 

the various reasons reviewed above, this assignment of error is without merit.

ASSIGNMENT OF ERROR THREE

{¶44} Appellant’s third assignment of error argues:

“THE TRIAL COURT FAILED TO PROPERLY ADVISE GIVENS THAT A 

SENTENCE FOR A FELONY CONVICTION MUST BE SERVED CONSECUTIVELY TO 

A SENTENCE FOR A POST RELEASE CONTROL (PRC) VIOLATION AT HIS PLEA 

HEARING.” 

{¶45} At the plea hearing in 22 CR 5 as related to fourth-degree felony improper 

handling of a firearm in a motor vehicle, the trial court informed Appellant he could be 

placed on up to two years of post-release control at the option of the parole board. See 

R.C. 2967.28(C). The court also explained the parole board’s ability to impose a prison 

term of up to one-half of his originally stated prison term for a violation of post-release 

control. In dispute here is the court’s subsequent advisement: “In addition to that, if a 

period of Post-Release Control was imposed and you violate it by committing a separate 

felony offense, you can be punished separately for that felony offense.” (4/21/23 Plea Tr. 

11).

{¶46} At the plea hearing in 22 CR 415, the murder offense was not subject to 

post-release control due to the statutorily required prison term of 15 years to life. As 

related to the third-degree felonies (theft of a firearm and tampering with evidence) and 

the fifth-degree felony (possession of methamphetamine), the court gave the same 

advisement as in 22 CR 5 on the optional two years of post-release control and on the 

potential to receive an additional prison term of up to one-half of the originally stated 

prison term for a violation. As in the appeal from 22 CR 5, Appellant contests the court’s 

subsequent advisement in 22 CR 415: “In addition to that, if you are to violate by 

committing a separate felony offense, you can be punished separately for that felony 

offense.” (7/10/23 Plea Tr. 17).

{¶47} Under R.C. 2929.141(A)(1), if a court decides to impose a prison term for a 

violation of post-release control, then it shall be served consecutively to any prison term 

imposed for the new felony. Appellant argues the court did not fully advise him of the 

maximum penalty regarding post-release control because the oral advisement at each 
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plea hearing did not specifically state a sentence for a future felony committed while on 

post-release control would be imposed “consecutively” to any prison sentence a court 

may choose to impose for the post-release control violation where the court instead used 

the word “separately” when so advising him. 

{¶48} Pursuant to Crim.R. 11(A)(2)(a), the court accepting a plea of guilty or no 

contest must address the defendant personally to determine he is making the plea 

voluntarily, with understanding of the nature of the charges and of the maximum penalty 

involved. Post-release control qualifies as part of the maximum penalty discussed in 

Crim.R. 11(C)(2)(a). State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 

1224, ¶ 22 (finding a complete failure to comply with Crim.R. 11(C)(2)(a) where the 

defendant was subject to five years of post-release control but the trial court failed to 

mention the topic).

{¶49} It has long been held that a trial court need not strictly comply with the nonconstitutional advisements in Crim.R. 11(C)(2)(a), such as the maximum sentence 

argument at issue herein; rather, substantial compliance with non-constitutional 

advisements is sufficient to avoid a finding of error. State v. Veney, 120 Ohio St.3d 176, 

2008-Ohio-5200, 897 N.E.2d 621, ¶ 14. The reviewing court considers the totality of the 

circumstances to ascertain whether the defendant subjectively understood the rights 

waived and the implications of the plea. Id. at ¶ 15. 

{¶50} The traditional rule requires a defendant to demonstrate prejudice when 

seeking vacation of a plea based on a non-compliant advisement about the nonconstitutional aspects of Crim.R. 11(C). State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio2765, 164 N.E.3d 286, ¶ 13-17. In evaluating prejudice, we ask whether the plea would 

have otherwise been made. Id. at ¶ 16. The record must show the defendant would not 

have pled guilty but for the lacking advisement. Id. at ¶ 23-24 (upholding the plea where 

there was “nothing in the record indicating [the defendant] would not have entered his 

plea had he been more thoroughly informed of the details” of the contested item). There 

is an exception to the prejudice requirement where the trial court completely fails to 

comply with a non-constitutional aspect of Crim.R. 11(C). Id. at ¶ 15, citing Sarkozy, 117 

Ohio St.3d 86 at ¶ 22 (finding a complete failure where the court did not orally mention 

post-release control at all). 
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Case No. 23 CO 0039, 23 CO 0040

{¶51} Appellant relies on an Eighth District case finding a complete failure to 

comply with the necessary maximum sentence advisement where the trial court said the 

defendant’s pending sentence for the new felony “may” be run consecutively to the 

pending sentence for his post-release control violation. State v. Nix, 8th Dist. Cuyahoga 

No. 106894, 2019-Ohio-3886, ¶ 8, 18. However, in Nix, the defendant was, at that 

moment, pleading guilty to the new felony while on post-release control and was about to 

be sentenced for both after the plea hearing at issue. Id. at ¶ 2, 18. 

{¶52} Those facts were also present in the Supreme Court’s Bishop (plurality) 

opinion relied on by the Nix court. See id. at ¶ 16 (stating the question was “whether an 

advisement about the court's ability to impose sentence under R.C. 2929.141(A)(1) was 

necessary when a defendant on post-release control pleads guilty or no contest to new 

felony charges”), citing State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 

766, ¶ 21. The certified question answered affirmatively in Bishop was whether “a criminal 

defendant on [post-release 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 [post-release control] and to impose a consecutive prison sentence for the 

[post-release control] violation.” (Brackets sic.) Bishop, 156 Ohio St.3d 156 at ¶ 1. In 

both cases, there was a complete failure to comply with the advisement on the maximum 

sentence because the defendant was subject to mandatory consecutive sentences on the 

plea he was entering.3

{¶53} Distinguishably, the case at bar does not involve a defendant pleading to a 

new felony offense committed while on post-release control. Rather, the trial court was 

providing information about a future felony that may never occur (while on optional postrelease control that was fully explained on the offenses to which it was pertinent). 

Therefore, the case law cited by Appellant does not support his position. 

{¶54} That is, the Nix case Appellant relies on does not hold that all pleading 

defendants must be advised that if they are subsequently placed on post-release control 

3

In formulating the distinct ruling for cases where a defendant is pleading to a new felony committed while 

on post-release control, the Supreme Court maintained its prior ruling that a trial court is not required to 

advise the pleading defendant of the maximum available sentences when totaled on all offenses or of the 

option to run sentences consecutively. Bishop, 156 Ohio St.3d 156 at ¶ 14, citing State v. Johnson, 40 

Ohio St.3d 130, 133, 532 N.E.2d 1295 (1988). 
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Case No. 23 CO 0039, 23 CO 0040

and if they commit a felony while still on post-release control and if a court imposes an 

additional prison term for the post-release control violation, then the sentence for the new 

felony must be consecutive to the sentence on the violation. In fact, the Eighth District 

subsequently pointed out: “any advisement that a sentence for the violation of postrelease control arising from the commission of a new felony will be served consecutively 

to the sentence for the new felony offense is only required during the plea hearing for the 

new felony offense.” (Emphasis added.) State v. Sullivan, 8th Dist. Cuyahoga No. 

111621, 2023-Ohio-1036, ¶ 19. The court distinguished its Nix case and the Supreme 

Court’s Bishop case, as we did above. Id. at ¶ 19-20 (rejecting the argument that the trial 

court failed to advise of the maximum penalty for the current offense when the court said 

a prison term for a post-release control violation “could be” imposed consecutively to the 

sentence for a new felony offense).

{¶55} Here, the court informed Appellant of the discretionary nature and term of 

post-release control, explained the available punishments for violations, and mentioned 

that he can be punished separately for a new felony committed while on post-release 

control. The omitted item complained of by Appellant was not a requirement for explaining 

the maximum sentence in the case before the court. 

{¶56} Even assuming the oral colloquy was incomplete, it was not a “complete 

failure” to advise Appellant about the maximum penalty imposable in the case at bar. As 

Bishop observed, “If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant 

demonstrates a prejudicial effect.” Bishop, 156 Ohio St.3d 156 at ¶ 19. Accordingly, even 

assuming arguendo full compliance was lacking, a demonstration of prejudice would be 

required.

{¶57} Notably, the record demonstrates the trial court’s oral colloquy was not 

Appellant’s only source of pertinent information on the subject now raised. Written plea 

forms can be reviewed in ascertaining whether a non-constitutional issue was prejudicial. 

State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 16 (where the trial 

court did not orally advise the defendant the guilty plea constituted a complete admission 

of his guilt, the Supreme Court upheld the plea upon viewing the written plea form and 
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the oral assurances that Appellant understood the content of the form and was aware of 

the rights he was waiving). 

{¶58} In 22 CR 415, before the trial court discussed post-release control at the 

plea hearing, defense counsel specifically said he reviewed with Appellant the felony plea 

agreement and an entry entitled, “Judicial Advice to Defendant”; counsel then asked the 

court to accept the forms. (7/10/23 Plea Tr. 5). In 22 CR 5, defense counsel generally 

said he reviewed the forms with Appellant and asked the court to accept them. (4/21/23 

Plea Tr. 4). 

{¶59} In both cases, the judgment entry providing judicial advice to the defendant 

specifically reviewed the penalties for a future post-release control violation, including for 

committing a new felony while on post-release control, and then explicitly explained: “This 

prison term must be served consecutively to any term imposed for the new felony you are 

convicted of committing.” (7/12/23 J.E. in 22 CR 415, signed by the court on 7/10/23); 

(4/21/23 J.E. in 22 CR 5). This quote contains the advice Appellant says was missing 

from the plea hearing (because the court said the sentence for the new felony could be 

imposed “separately from” the post-release control violation sentence instead of 

“consecutively to” it).

{¶60} In a separate filing (“Defendant’s Response to Court”), Appellant swore he 

understood everything in the entry providing judicial advice to the defendant. (7/12/23 

Def.Resp. to Ct. in 22 CR 415, sworn to and signed by Appellant as confirmed by defense 

counsel’s signature on July 10, 2023); (4/21/23 Def.Resp. to Ct. in 22 CR 5, sworn to and 

signed by Appellant as confirmed by defense counsel’s signature on April 21, 2023). 

Appellant then subsequently reaffirmed his understanding of these items during the plea 

colloquy conducted by the trial court. The court specifically discussed the plea 

agreement, the judicial advice entry, and the filed document containing the defendant’s 

response to the court. Upon the court’s inquiry, Appellant said he reviewed the contents 

of these forms with counsel and understood them, while acknowledging he signed the 

plea agreement and the defendant’s response to the court. (4/12/23 Plea Tr. 6-7); 

(7/10/23 Plea Tr. 8-9).

{¶61} Considering the totality of the circumstances, the record does not 

demonstrate prejudice from the trial court’s use of the word “separately” instead of 
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“consecutively” during the oral plea colloquy (when mentioning future violations of postrelease control by committing a new felony if he is placed on post-release control in the 

future). There is no indication Appellant would not have pled guilty had this oral 

advisement been made. Accordingly, this assignment of error is overruled.

{¶62} For the foregoing reasons, Appellant’s convictions are upheld, and the trial 

court’s judgments in both cases are affirmed.

Waite, J., concurs.

Hanni, J., concurs.
[Cite as State v. Givens, 2024-Ohio-2563.]

For the reasons stated in the Opinion rendered herein, the Appellant’s convictions 

are upheld and the final judgment and order of this Court is that the judgment of the Court 

of Common Pleas of Columbiana County, Ohio, is affirmed for both cases. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.