[Cite as State v. Servantes, 2023-Ohio-2116.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

- vs -

CONNOR A. SERVANTES,

Defendant-Appellant.

CASE NOS. 2022-P-0031

2022-P-0032

2022-P-0033

Criminal Appeals from the

Court of Common Pleas

Trial Court Nos. 2021 CR 00469

2022 CR 00172

2021 CR 00743

O P I N I O N

Decided: June 20, 2023

Judgment: Affirmed in part; reversed and vacated in part; and remanded

Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna, 

OH 44266 (For Plaintiff-Appellee).

Richard E. Hackerd, 55 Public Square, Suite 2100, Cleveland, OH 44113 (For 

Defendant-Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Connor A. Servantes (“Mr. Servantes”), appeals from the 

judgment of the Portage County Court of Common Pleas that sentenced him to a total 

seven-year term of imprisonment following his guilty pleas in three separate cases to 13 

felonies and one misdemeanor. Mr. Servantes’ convictions stemmed from three separate 

instances of drug-fueled burglarizing and theft. 
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{¶2} Mr. Servantes raises two assignments of error, contending the trial court 

erred by (1) failing to notify him at the plea hearing that the failure to comply with order or 

signal of police officer (“failure to comply”) charge carried a mandatory, consecutive 

sentence and of the maximum penalty for fifth-degree felonies, thus his guilty pleas to 

those offenses were not knowingly, intelligently, and voluntarily made; and (2) denying 

his right to allocution pursuant to Crim.R. 32(A)(1) by interrupting his statement to the 

court during the sentencing hearing. 

{¶3} After a careful review of the record and pertinent law, we find Mr. Servantes’ 

first assignment of error to be with merit. A review of the plea hearing transcript reveals 

the trial court neglected to inform Mr. Servantes of the mandatory, consecutive sentence 

for failure to comply, and it omitted fifth-degree felonies from its recitation of the maximum 

penalties for Mr. Servantes’ various offenses. When consecutive sentences are

statutorily required, the consecutive sentence directly affects the length of the sentence,

thus becoming a crucial component of what constitutes the “maximum” sentence. The

failure to advise a defendant that a sentence must be served consecutively does not

amount to compliance with Crim.R. 11(C)(2). Similarly, failure to inform a defendant of

the maximum penalty for an offense amounts to a complete failure to comply with Crim.R.

11(C)(2). Under these circumstances, Mr. Servantes is not required to demonstrate

prejudice, and we presume his guilty pleas to those counts were not knowingly,

intelligently, or voluntarily made. Accordingly, we vacate Mr. Servantes’ guilty pleas to

the charges of failure to comply, aggravated possession of drugs, identity fraud, and two

counts of breaking and entering. We note Mr. Servantes does not challenge whether the

failure to adequately inform him of the maximum penalty for these offenses rendered his
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entire plea agreement invalid. That issue is currently before the Supreme Court of Ohio. 

See State v. Tancak, 167 Ohio St.3d 1467, 2022-Ohio-2490, 191 N.E.3d 437 (accepting 

appeal for review) (“Tancak II”).

{¶4} A review of the sentencing hearing transcript reveals Mr. Servantes’

second assignment of error is without merit since he was afforded his right to allocution

pursuant to Crim.R. 32. After the trial court interrupted his allocution to inquire whether

any victims were present, Mr. Servantes spoke further with the court. There is no

indication that he had anything more to say apart from agreeing with the court that he was

facing a long term of imprisonment.

{¶5} Lastly, our review of the sentencing judgment entry reveals the statutory

subsections of the offenses, which Mr. Servantes pleaded guilty to, are omitted. Thus,

we instruct the trial court to issue a nunc pro tunc entry upon resentencing.

{¶6} The judgment of the Portage County Court of Common Pleas is affirmed in 

part and reversed, vacated, and remanded in part in accordance with this opinion. 

Substantive and Procedural History

{¶7} In September 2019, March 2021, and April 2021, Mr. Servantes was 

indicted by a grand jury in three cases (case nos. 2021 CR 00469, 2021 CR 00743, and 

2022 CR 00172) on 18 counts. His charges stemmed from a string of burglaries, breaking 

and entering, grand theft, receiving stolen property, identity fraud, and drug possession 

in and around the Kent State University campus. 

{¶8} As a result of plea negotiations, Mr. Servantes pleaded guilty to 14 counts 

(several of which were amended at the plea hearing). 
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{¶9} More specifically, in case no. 2021 CR 00469, Mr. Servantes pleaded guilty 

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

and (C)(1)(a) (count one of the indictment), and identity fraud, a fifth-degree felony, in 

violation of R.C. 2913.49(B)(1) and (2) (count three of the indictment).

{¶10} In case no. 2021 CR 00743, Mr. Servantes pleaded guilty to five amended 

counts of burglary, third-degree felonies, in violation of R.C. 2911.12(A)(3) (counts one, 

four, five, six, and seven of the indictment).

{¶11} In case no. 2022 CR 00172, Mr. Servantes pleaded guilty to grand theft, a 

fourth-degree felony, in violation of R.C. 2913.02(A)(1) and (B)(5) (count one of the 

indictment); failure to comply, a third-degree felony, in violation of R.C. 2921.331(B) and 

(C)(5)(a)(ii) (count two of the indictment); two counts of breaking and entering, fifth-degree 

felonies, in violation of R.C. 2911.13(B) (counts three and six of the indictment); burglary, 

a third-degree felony, in violation of R.C. 2911.12(A)(3) (amended count four of the 

indictment); receiving stolen property, a first-degree misdemeanor, in violation of R.C. 

2913.51(A) (count five of the indictment); and receiving stolen property, a fourth-degree 

felony, in violation of R.C. 2913.51(A) (count eight of the indictment).

The Plea Hearing

{¶12} At the plea hearing, the trial court reviewed the maximum penalties for each 

level of offense, omitting the maximum penalty for fifth-degree felonies. The trial court 

inquired: “Do you understand that the felonies of the third degree may bring with them 

up to 36 months in prison on each count, up to a $10,000 fine and court costs; the felonies 

of the fourth degree may bring with them up to 18 months in prison, up to a $5,000 fine 
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and court costs; the misdemeanor may bring with it up to 180 days local jail, up to a 

$1,000 fine and court costs?”

{¶13} Upon defense counsel’s query, the trial court informed Mr. Servantes that 

the failure to comply charge carried a mandatory license suspension but neglected to 

advise that the maximum penalty included a mandatory, consecutive sentence. 

{¶14} The trial court proceeded to ensure Mr. Servantes understood the rights he 

was waiving, he reviewed the written plea forms with his counsel, and he signed them 

voluntarily. The trial court accepted Mr. Servantes’ guilty pleas and deferred the matter 

for a sentencing hearing pending a presentence investigation.

The Sentencing Hearing

{¶15} At the sentencing hearing, after defense counsel spoke on Mr. Servantes’ 

behalf, the trial court allowed Mr. Servantes an opportunity to speak. Mr. Servantes spoke 

to his homeless condition and apologized for any “psychological effects” his crimes may 

have had on the victims. The court interrupted, “Are any of the victims here? Anyone 

that’s a victim of this crime?” The court continued speaking with Mr. Servantes:

{¶16} “[The Court:] You know, I understand your mental health issues, but at 

some juncture you have to take responsibility. There are ways of handling that.

{¶17} “[Mr. Servantes:] Yeah. Absolutely.

{¶18} “[The Court:] And some of these charges were knocked down significantly, 

you understand that?

{¶19} “[Mr. Servantes:] Yes, I do. I absolutely do.

{¶20} “[The Court:] I mean, you’re looking at many, many, many, many years in 

prison.
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{¶21} “[Mr. Servantes:] I know.”

{¶22} The court proceeded to sentence Mr. Servantes to a seven-year total term

of imprisonment (the following terms are to be served concurrently unless stated 

consecutively): 12 months each for the counts of aggravated possession of drugs and 

identity fraud, fifth-degree felonies; 36 months each for the five counts of burglary, thirddegree felonies; 18 months for grand theft, a fourth-degree felony; 24 months for failure 

to comply, a third-degree felony, to be served consecutively to the previous sentences; 

12 months each for the two counts of breaking and entering, fifth-degree felonies; 24 

months for burglary, a third-degree felony, to be served consecutively to the previous 

sentences; 180 days in jail for receiving stolen property, a first-degree misdemeanor; and 

18 months for receiving stolen property, a fourth-degree felony.

{¶23} Mr. Servantes raises two assignments of error for our review:

{¶24} “[1.] Servantes’ plea was not knowingly, intelligently, and voluntarily given.

{¶25} “[2.] Servantes was denied his right of allocution contrary to Crim.R. 

32(A)(1).”

Crim.R. 11

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

compliance with Crim.R. 11. State v. Willard, 2021-Ohio-2552, 175 N.E.3d 989, ¶ 51 

(11th Dist.). 

{¶27} “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). 
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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.

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

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

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

{¶30} “(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.

{¶31} “(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.

{¶32} “(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.” Crim.R. 11(C)(2)(a) through (c).

{¶33} In State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, the

Supreme Court of Ohio explained that when a criminal defendant seeks to have his 

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

occurred in the trial-court proceedings and he was prejudiced by that error. Id. at ¶ 13. 
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{¶34} There are limited exceptions to the prejudice component. When a trial court 

fails to explain the constitutional rights a defendant waives by pleading guilty or no 

contest, we presume the plea was entered involuntarily and unknowingly, and no showing 

of prejudice is required. Id. at ¶ 14. Similarly, a trial court’s complete failure to comply 

with a portion of Crim.R. 11(C) eliminates the defendant’s burden to show prejudice. Id. 

at ¶ 15; See, e.g., State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, 

¶ 22 (trial court completely failed to comply with Crim.R. 11(C)(2)(a)’s requirement that it 

explain the maximum penalty when it made no mention of defendant’s mandatory five 

years of postrelease control in the plea colloquy).

{¶35} On appellate review, the questions to be answered are “(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. at ¶ 17. 

{¶36} In his first assignment of error, Mr. Servantes asserts his plea was not 

knowingly, intelligently, and voluntarily made because the trial court failed to inform him 

(1) the failure to comply charge carries a mandatory, consecutive sentence and (2) of the 

maximum penalty for a fifth-degree felony. 

Mandatory Consecutive Sentence

{¶37} Mr. Servantes was charged with violating R.C. 2921.331(B), “failure to 

comply with order or signal of police officer,” which states:
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{¶38} “No person shall operate a motor vehicle so as willfully to elude or flee a 

police officer after receiving a visible or audible signal from a police officer to bring the 

person’s motor vehicle to a stop.”

{¶39} “A violation of [R.C. 2921.331(B)] is a felony of the third degree if the jury or 

judge as trier of fact finds * * * [t]he operation of the motor vehicle by the offender caused 

a substantial risk of serious physical harm to persons or property.” R.C. 

2921.331(C)(5)(a)(ii). 

{¶40} The statute further provides, “If an offender is sentenced pursuant to

division * * * (C)(4) or (5) of this section for a violation of division (B) of this section, and if

the offender is sentenced to a prison term for that violation, the offender shall serve the

prison term consecutively to any other prison term or mandatory prison term imposed

upon the offender.” R.C. 2921.331(D). 

{¶41} When consecutive sentences are statutorily required, the consecutive

sentence directly affects the length of the sentence, thus becoming a crucial component

of what constitutes the “maximum” sentence. The failure to advise a defendant that a

sentence must be served consecutively does not amount to compliance with Crim.R.

11(C)(2). State v. Norman, 8th Dist. Cuyahoga No. 91302, 2009-Ohio-4044, ¶ 7; see also

State v. Pitts, 159 Ohio App.3d 852, 2005-Ohio-1389, 825 N.E.2d 695, ¶ 22 (6th Dist.)

(trial court erred by failing to inform the appellant at the plea hearing that R.C.

2921.331(D) mandates consecutive sentences even though the written plea form

correctly stated the sentence must be imposed consecutively); State v. Hankison, 4th

Dist. Scioto No. 01CA2792, 2002-Ohio-6161, ¶ 19.
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{¶42} Since the trial court did not inform Mr. Servantes that any sentence for a

violation of R.C. 2921.331 would be served consecutively to sentences imposed on the

other counts to which he was pleading guilty, the trial court failed to comply with Crim.R.

11(C)(2)(a). Thus, no showing of prejudice is required, and we must vacate Mr.

Servantes’ guilty plea to the charge of failure to comply.

Maximum Penalty

{¶43} Similarly, as our review of the plea hearing transcript reveals, the trial

court omitted any mention of the maximum penalty for a fifth-degree felony from its

recitation of the maximum penalties. Mr. Servantes pleaded guilty to four fifth-degree

felonies: aggravated possession of drugs, identity fraud, and two counts of breaking and

entering.

{¶44} Because the trial court completely failed to inform Mr. Servantes of the

maximum penalty associated with his guilty pleas to those counts, no showing of

prejudice is required, and we vacate his guilty pleas. See Dangler 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); State v. Hill, 4th Dist. Lawrence Nos. 04CA9 & 04CA11, 2005-

Ohio-3491, ¶ 21 (trial court failed to inform the appellant of the maximum penalty for

fourth-degree felonies; thus, his pleas were not knowingly, intelligently, and voluntarily

entered).

{¶45} Accordingly, we vacate Mr. Servantes’ guilty pleas to the charges of failure 

to comply, aggravated possession of drugs, identity fraud, and the two counts of breaking 

and entering. We note Mr. Servantes is only challenging his plea to these offenses and

not the plea agreement itself. In State v. Tancak, 9th Dist. Lorain No. 21CA011725, 2022-
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Ohio-880, the appellant pleaded guilty to several charges, including failure to comply, and 

was sentenced to prison. Id. at ¶ 12. The Ninth District vacated the appellant’s guilty 

plea to failure to comply because, as in this case, the trial court failed to comply with 

Crim.R. 11 by neglecting to inform the appellant that the charge carried a mandatory, 

consecutive sentence. Id. at ¶ 13. The appellant also raised as error whether the 

remaining seven counts must also be invalidated since his plea to failure to comply was 

part of a larger plea agreement. Id. at ¶ 15. The Ninth District disagreed, determining 

the record was devoid of a plea agreement that would unify his plea to all of the charges 

against him. Id. at ¶ 21. Thus, the appellant failed to show that the defect to the failure 

to comply charge should be treated more broadly. Id. Most fundamentally, he 

acknowledged in his written plea form that the trial court had the discretion to sentence 

him to consecutive sentences on all of the charges that carried a term of imprisonment. 

Id. That case is currently pending before the Supreme Court of Ohio. See Tancak II,

supra.

{¶46} Mr. Servantes’ first assignment of error is with merit.

Right to Allocution

{¶47} In Mr. Servantes’ second assignment of error, he contends he was denied 

his right to allocution pursuant to Crim.R. 32 because the trial court interrupted him and 

did not allow him to complete his statement. 

{¶48} Pursuant to Crim.R. 32(A)(1), before imposing sentence, a trial court must 

address the defendant personally and ask whether he or she wishes to make a statement 

on his or her own behalf or present any information in mitigation of punishment. Crim.R. 

32(A); State v. Campbell, 90 Ohio St.3d 320, 326, 738 N.E.2d 1178 (2000). When a trial 
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court has imposed sentence without first asking the defendant whether he or she wishes 

to exercise the right of allocution created by Crim.R. 32(A), resentencing is required 

unless the error is invited error or harmless error. Id.

{¶49} A Crim.R. 32 inquiry 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, 359-360, 738 N.E.2d 1208 (2000). The requirement of allocution is 

considered fulfilled when the conduct of the court clearly indicates to the defendant and 

his counsel that each has a right to make a statement prior to the imposition of sentence. 

See United States v. Byars, 290 F.2d 515, 517 (6th Cir.1961). The right to allocution is 

both absolute and not subject to waiver due to a defendant’s failure to object. See

Campbell at 324-325.

{¶50} As our review of the sentencing hearing reveals, the trial court interrupted 

Mr. Servantes during his allocution to inquire whether there were any victims present. 

Simply because Mr. Servantes was interrupted, however, does not mean he was not 

afforded a full allocution, especially in this case where the court continued to speak with 

him after the interruption and where the record indicates he was finished speaking.

{¶51} For instance, in State v. Roach, 7th Dist. Belmont No. 15 BE 0031, 2016-

Ohio-4656, the Seventh District determined that even if a court interrupts a defendant’s 

allocution, his right is not violated if he is permitted to speak after the interruption. Id. at 

¶ 16. In that case, the appellant was provided a further opportunity to speak after the 

court commented, “Everyone in this room wishes that, sir.” Id. This opportunity was 

indicated by the appellant’s response, “I understand that.” The appellant, however, did 

not continue speaking, and there was no indication he had more to say. Id. In addition, 
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defense counsel had already given a statement on the appellant’s behalf and provided 

information in mitigation of punishment. Id. at ¶ 17. See also State v. Neff, 7th Dist. 

Belmont No. 19 BE 0007, 2020-Ohio-4818, ¶ 15 (determining any error was harmless 

since the defendant was given an opportunity to continue speaking after the interruption,

she submitted a written statement, and defense counsel made a statement on her behalf);

State v. Hutchinson, 8th Dist. Cuyahoga No. 106755, 2018-Ohio-4792, ¶ 15 (the trial court 

did not violate the defendant’s right to allocution where the record reflected the court 

allowed the defendant an opportunity to speak after being interrupted, and his response, 

“Yes, Your Honor,” indicated he completed his allocution).

{¶52} Similarly, in this case, Mr. Servantes was provided with a further opportunity 

to speak, and there is no indication he had more to say besides his agreement with the 

court that he was looking at “many, many, many, many years in prison.” “A trial transcript 

is not like a script for a play and does not contain indicators of demeanor or measures of 

time between pauses.” State v. Turner, 7th Dist. Mahoning No. 17 MA 0155, 2019-Ohio934, ¶ 34 (finding any interruption by the trial court to be harmless error where the 

appellant did not demonstrate prejudice).

{¶53} In addition, prior to his allocution, defense counsel spoke on Mr. Servantes’ 

behalf, reviewing his pre-sentence investigation report and the motions filed on his behalf. 

He advocated for Mr. Servantes to be placed in the CATS (Community Assessment and 

Treatment Services) Program in Wadsworth, Ohio. In mitigation, he noted Mr. Servantes 

was apologetic, he understood the severity of his crimes, and he was suffering from 

“issues” when the crimes occurred. 
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{¶54} In support, Mr. Servantes cites to our decision in State v. Farhat, 11th Dist. 

Portage No. 2021-P-0111, 2022-Ohio-1716, where we determined the appellant was 

denied his right to allocution. Id. at ¶ 15. Farhat, however, is markedly different from the 

circumstances of this case because the appellant was never given an opportunity to 

speak. Rather, the court asked the appellant a question related to the facts of the case 

and then proceeded to sentencing. See id. at ¶ 5-7. The appellant was not afforded an 

opportunity to address the substance of his offense, offer any mitigating circumstances, 

speak to his lengthy criminal history, or express remorse for his actions. Id. at ¶ 15. When 

he attempted to do so, the trial court “cut him off and said, ‘My turn to talk. No, no, no, 

no.” Id. Mr. Servantes, on the other hand, was given an opportunity to speak, both before 

and after the court’s interruption. Further, he expressed remorse and understood he was 

facing a lengthy term of imprisonment. 

{¶55} Based on the facts presented, the record reflects the trial court complied 

with Crim.R. 32(A)(1). 

{¶56} Mr. Servantes’ second assignment of error is without merit.

Clerical Errors in Sentencing Entry

{¶57} Lastly, our review of the record indicated that the sentencing judgment entry 

contains clerical errors insofar as the statutory subsections of the offenses, which Mr. 

Servantes pleaded guilty to were omitted.

{¶58} Crim.R. 36 authorizes the trial court to correct “[c]lerical mistakes in 

judgments, orders, or other parts of the record, and errors in the record arising from 

oversight or omission * * * at any time.” Courts have held that a nunc pro tunc entry may 

be used to correct a sentencing entry to reflect the sentence the trial court imposed at the 
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sentencing hearing. See, e.g., State v. Vaughn, 8th Dist. Cuyahoga No. 103330, 2016-

Ohio-3320, ¶ 21; State v. Fugate, 12th Dist. Butler No. CA2000-02-031, 2000 WL 

1708508, *2 (Nov. 13, 2000).

{¶59} Accordingly, upon remand and resentencing, the trial court is ordered to 

issue a nunc pro tunc entry to include the correct statutes with their appropriate 

subsections. 

{¶60} Based on the foregoing, we affirm in part and reverse in part. We affirm the 

judgment of the Portage County Court of Common Pleas in part since Mr. Servantes was 

afforded his right to allocution during the sentencing hearing. We reverse to the point of 

error, i.e., the change of plea hearing, vacate Mr. Servantes’ guilty pleas to the charges 

of failure to comply, aggravated possession of drugs, identity fraud, and the two counts 

of breaking and entering, and remand for further proceedings in accordance with this 

opinion.

MATT LYNCH, J.,

EUGENE A. LUCCI, J.,

concur.