[Cite as State v. Walters, 2016-Ohio-5783.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ADAMS COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : Case No. 15CA1009 

v. : 

 DECISION AND 

WILLIAM M. WALTERS, : JUDGMENT ENTRY 

 Defendant-Appellant. : RELEASED 09/07/2016 

APPEARANCES: 

Timothy Young, Ohio Public Defender, and Terrence K. Scott, Assistant Ohio Public Defender, 

Columbus, Ohio, for defendant-appellant William M. Walters. 

David Kelley, Adams County Prosecuting Attorney, and Mark R. Weaver, Adams County 

Assistant Prosecuting Attorney, West Union, Ohio, for plaintiff-appellee State of Ohio. 

Hoover, J. 

{¶1} This is an appeal from a judgment of conviction and sentence entered by the 

Adams County Court of Common Pleas following the entry of a guilty plea by William M. 

Walters (“Walters”), appellant herein, to one count of sexual battery. On appeal, Walters first 

contends that his guilty plea was not knowingly, voluntarily, and intelligently made because the 

trial court failed to explain the maximum potential sentence. Specifically, Walters argues that the 

trial court failed to adequately inform him prior to his guilty plea that the entirety of any imposed 

prison sentence was mandatory time, and that he would not be eligible for judicial release. We 

disagree. Crim.R. 11(C)(2)(a) only requires that the trial court address the defendant to ensure 

the defendant understands the maximum possible penalty. Here, the trial court informed Walters 

of the maximum prison sentence and asked Walters if he understood that any imposed prison 
Adams App. No. 15CA1009 2 

sentence would be mandatory, and Walters stated that he did. Because the trial court confirmed 

that Walters understood the maximum penalty before accepting his guilty plea, the trial court 

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

{¶2} Next, Walters contends that the trial court imposed an unlawful, “hybrid” 

sentence. Because Walters did not object to the imposition of the sentence at the sentencing 

hearing, he waived all but plain error. Nonetheless, we believe that Walters has established plain 

error. The sentencing entry contains contradictory language suggesting the imposition of a prison 

term containing mandatory and discretionary sub-terms. Such a sentence is not authorized by 

law, is contrary to law, and constitutes plain error.

{¶3} Accordingly, we affirm the judgment in part, reverse the judgment in part, and 

remand for resentencing.

I. Facts and Procedural History 

{¶4} Walters was charged with one count of sexual battery in violation of R.C. 

2907.03(A)(5) pursuant to a bill of information filed on September 25, 2014. The bill of 

information also contained a specification alleging that the victim was less than 13 years old at 

the time of the offense making the offense a felony of the second degree and subjecting Walters 

to a mandatory prison term. A supplemental indictment was filed on October 23, 2014, charging 

Walters with one count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. 

Although Walters initially pled not guilty to the charges, he later agreed to plead guilty to the 

sexual battery offense. The rape charged was dismissed as a result of the plea agreement.

{¶5} At the March 16, 2015 change of plea hearing, the trial court endeavored to 

ascertain if Walters understood his rights. The trial court then accepted Walters’ guilty plea, 

found him guilty of the sexual battery offense and specification, and ordered that sentencing be 
Adams App. No. 15CA1009 3 

held at a later date. On March 27, 2015, Walters filed a motion to withdraw his guilty plea 

arguing that he only pled guilty out of fear and panic that he could receive a life term if he 

proceeded to jury trial and was found guilty of both counts, and that he and the alleged victim 

did not reside in Adams County during the time of the alleged offenses. The trial court denied the 

motion to withdraw guilty plea after a hearing on the matter. Ultimately, the sentencing hearing 

was held on July 2, 2015, and Walters was ordered to serve “a stated prison term of seven years 

in the Ohio Department of Rehabilitations and Corrections * * *again, there’s- uh, the seven year 

sentence is mandatory, uh, the two years is minimum mandatory”. Likewise, the sentencing entry 

states that Walters must “serve a mandatory stated prison term of Seven (7) years, in the Ohio 

Department of Rehabilitation and Corrections, with minimum mandatory Two (2) years.” 

Walters was also classified as a Tier III sex offender, and ordered to pay fines and costs. This 

appeal followed.

II. Assignments of Error 

{¶6} Walters assigns the following errors for our review: 

Assignment of Error I: 

William M. Walters was deprived of his right to due process under the Fourteenth 

Amendment to the United States Constitution and Article I, Section 10 of the 

Ohio Constitution when the trial court accepted an unknowing, unintelligent, and 

involuntary guilty plea. (March 17, 2015 Plea of Guilty; July 2, 2015 Sentencing 

Entry; August 12, 2015 Sentencing Tr. p. 6, 12, and 33). 

Assignment of Error II: 

William M. Walters was deprived of his right to due process under the Fourteenth 

Amendment to the United States Constitution and Article I, Section 10 of the 

Ohio Constitution when the trial court exceeded its authority and imposed an 

illegal, hybrid sentence for an offense that was subject to a mandatory sentence. 

(July 2, 2015 Sentencing Entry). 
Adams App. No. 15CA1009 4 

III. Law and Analysis 

A. Validity of Guilty Plea 

{¶7} In his first assignment of error, Walters contends that his guilty plea was not 

knowing, voluntary, and intelligent because the trial court failed to inform him of the maximum 

potential sentence. In particular, Walters argues that the trial court failed to explain that the entire 

sentence would be mandatory, and that he would not be eligible for judicial release. 

{¶8} In deciding whether to accept a guilty plea, the trial court must determine whether 

the plea was made knowingly, intelligently, and voluntarily. State v. McDaniel, 4th Dist. Vinton 

No. 09CA677, 2010–Ohio–5215, ¶ 8. The failure to satisfy any one of these requirements 

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

the Ohio Constitution. See State v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, 897 N.E.2d 

621, ¶ 7; State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “ ‘An appellate court 

determining whether a guilty plea was entered knowingly, intelligently, and voluntarily conducts 

a de novo review of the record to ensure that the trial court complied with the constitutional and 

procedural safeguards.’ ” State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014–Ohio–

5601, ¶ 36, quoting State v. Moore, 4th Dist. Adams No. 13CA965, 2014–Ohio–3024, ¶ 13. “In 

other words, appellate courts will conduct their own, independent review of the record without 

any deference to the trial court.” State v. Johnson, 4th Dist. Scioto No. 14CA3612, 2016-Ohio1070, ¶ 5. 

{¶9} “Before accepting a guilty plea, the trial court should engage in a dialogue with 

the defendant as described in Crim.R. 11(C).” McDaniel at ¶ 8, citing State v. Morrison, 4th Dist. 

Adams No. 07CA854, 2008–Ohio–4913, ¶ 9. The trial court must address the defendant 
Adams App. No. 15CA1009 5 

personally and determine 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.” Crim.R. 11(C)(2)(a). The trial court must also inform the defendant of 

other matters under Crim.R. 11(C)(2)(b) and (c). 

{¶10} When this rule concerns the waiver of constitutional rights, strict compliance is 

mandatory. Johnson at ¶ 10. However, “ ‘[s]ubstantial compliance with the provisions of 

Crim.R. 11(C)(2)(a) and (b) is sufficient to establish a valid plea.’ ” McDaniel at ¶ 13, quoting 

State v. Vinson, 10th Dist. Franklin No. 08AP–903, 2009–Ohio–3240, ¶ 6. “ ‘Substantial 

compliance means that, under the totality of the circumstances, appellant subjectively understood 

the implications of his plea and the rights he waived.’ ” Id.

{¶11} As the Ohio Supreme Court explained in State v. Clark, 119 Ohio St.3d 239, 

2008–Ohio–3748, 893 N.E.2d 462, ¶ 32: 

When the trial judge does not substantially comply with Crim.R. 11 in regard to a 

nonconstitutional right, reviewing courts must determine whether the trial court 

partially complied or failed to comply with the rule. 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. 

The test for prejudice is “whether the plea would have otherwise been made.” If 

the trial judge completely failed to comply with the rule, e.g., by not informing 

the defendant of a mandatory period of postrelease control, the plea must be 

vacated. “A complete failure to comply with the rule does not implicate an 

analysis of prejudice.” 
Adams App. No. 15CA1009 6 

(Emphasis sic.) (Citations omitted.) 

{¶12} Walters contends that his plea was invalid because the trial court failed to 

substantially comply with the requirement that the trial court inform the accused of the maximum 

potential penalty for his offenses under Crim.R. 11(C)(2)(a). Specifically, Walters argues that the 

trial court failed to inform him that any prison sentence he would receive would be a mandatory 

sentence under R.C. 2907.03(B)1 and that he would be ineligible for judicial release. 

{¶13} “ ‘When a defendant on whom a mandatory prison sentence must be imposed 

enters a plea of guilty or no contest, the court must, before accepting the plea, determine the 

defendant's understanding that the defendant is subject to a mandatory sentence and that the 

mandatory sentence renders the defendant ineligible for probation or community control 

sanctions.’ ” State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶ 14, quoting 

State v. Balidbid, 2d Dist. Montgomery No. 24511, 2012–Ohio–1406, ¶ 10; see also State v. 

Givens, 12th Dist. Butler No. CA2014–02–047, 2015–Ohio–361, ¶¶ 15–16 (trial court's failure to 

advise defendant that guilty plea to robbery charge carried a mandatory prison term that rendered 

him ineligible for community control rendered the plea invalid so as to require reversal of the 

conviction and sentence); State v. Smith, 5th Dist. Licking No. 13–CA–44, 2014–Ohio–2990, ¶¶ 

11–12 (trial court's failure to notify defendant that guilty plea to rape charges of the amount of 

mandatory prison time and the time during which he would be ineligible for community control 

resulted in invalid plea that required reversal); State v. Rand, 10th Dist. Franklin No. 03AP–745, 

2004–Ohio–5838, ¶ 23 (trial court committed reversible error when it accepted defendant's guilty 

plea because it misinformed him that his sentence was not mandatory); State v. Ruby, 4th Dist. 

 1

 R.C. 2907.03(B) provides that: “If the other person is less than thirteen years of age, sexual battery is a felony of 

the second degree, and the court shall impose upon the offender a mandatory prison term equal to one of the prison 

terms prescribed in section 2929.14 of the Revised Code for a felony of the second degree.” 
Adams App. No. 15CA1009 7 

Adams No. 03CA780, 2004–Ohio–3708, ¶ 10, quoting State v. Floyd, 4th Dist. Scioto No. 

92CA2102, 1993 WL 415287, *6 (Oct. 13, 1993) (“ ‘The prejudice to a defendant is apparent 

when the court informs him/her that he/she is eligible for probation although it is actually 

unavailable. In such case, a defendant might be coerced into pleading guilty because of the 

possibility of probation.’ ”).

{¶14} At the change of plea hearing in this case, the trial court addressed Walters as 

follows:

COURT: Alright. 

Mr. Walters, did you understand the stated results of the plea negotiations, you 

would plead to Count I, Count II would be dismissed? And you understood, uh, 

the maximum and mandatory penalties, is that correct? 

MR. WALTERS: Yes, sir. 

(Emphasis added.) Later in the change of plea hearing, this exchange took place: 

COURT: Now Mr. Walters, if you do enter a plea of guilty to this offense, you 

should understand that at the time of sentencing you’re facing a maximum penalty 

of eight years in prison, and Fifteen Thousand Dollars in fines. Do you understand 

that? 

MR. WALTERS: Yes, sir. 

COURT: There are mandatory penalties, Mr. Walters, that are associated with 

conviction for this particular offense. When I use the term mandatory, do you 

understand what I mean by that? 
Adams App. No. 15CA1009 8 

MR. WALTERS: Yes, sir. 

COURT: What do you believe mandatory to mean? 

MR. WALTERS: You got to complete that (inaudible). I mean, mandatory means 

you have to do that time day for day. 

COURT: Correct. 

You understand that there is a mandatory prison sentence, and the minimum 

mandatory prison sentence is two years? 

MR. WALTERS: Yes, sir. 

The trial court also declined to address the issue of community control, given the mandatory 

prison sentence, noting as follows: 

COURT: Now counselors, because community control is not an option to the 

Court at the time of sentencing, due to a mandatory prison sentence, the Court 

does not intend to review community control. Uh, does the State have any 

objection? 

PROS ATTY KELLEY: No, Your Honor. 

COURT: UhATTY DRINNON: No objection, Your Honor. 

The trial court then again addressed the maximum sentence noting as follows: 
Adams App. No. 15CA1009 9 

COURT: Now Mr. Walters, uh, this is a free to argue plea agreement. Meaning 

that uh, the minimum sentence will be two years, the maximum sentence will be 

eight years, and Fifteen Thousand Dollars in fines, the mandatory and automatic it 

would be a Tier III Registered Sex Offender. 

The trial court went on to discuss the plea of guilty entry form signed by Walters. In particular, 

the following exchange occurred: 

COURT: * * * Mr. Walters, Mr. Kelley, on behalf of the Court, is going to 

provide to you and your counsel a copy of the—the original of the plea of guilty. 

You’re going to see on this document now uh, certain areas where the Court has 

initialed in blue ink, uh circled—it should stand out to you – certain areas that are 

emphasized and/or modified. I’ll need your initials by the Court’s acknowledging 

your understanding of the same, and eventually your signature to the written plea 

of guilty, please. 

Mr. Walters, you’ve now signed your written plea of guilty to the offense of 

Sexual Battery, with a specification that the victim was less than thirteen years of 

age at the time of commission of the offense, a Felony of the Second Degree. * * 

* 

The plea of guilty entry form again enumerated that the maximum sentence was eight years 

imprisonment. The trial court had circled a portion of the form indicating that a prison term was 

mandatory, and had also handwritten in the words “minimum mandatory Two (2) years.” 

{¶15} Here, after reviewing the transcript from the change of plea hearing, we believe 

that the trial court substantially complied with Crim.R. 11(C)(2)(a) in advising Walters of the 
Adams App. No. 15CA1009 10 

maximum penalty associated with the charge to which he entered his guilty plea. Walters 

verbally acknowledged that he understood the mandatory nature of the penalties, even providing 

a definition of the term “mandatory”. In particular, Walters acknowledged to the trial judge in 

open court that he understood the maximum penalty to be eight years in prison, and that any 

sentence would be mandatory. Walters also signed the guilty plea entry form acknowledging that 

he understood the maximum sentence.

{¶16} Walters argues that the trial judge’s handwritten note on the guilty plea entry 

form, indicating “minimum mandatory Two (2) years”, misled him as to the maximum sentence 

for the offense. Specifically, he argues that he was led to believe that only two years of his 

sentence would be mandatory, when in reality, the entire sentence is mandatory. However, there 

is no evidence that Walters actually relied upon the guilty plea entry form when he entered his 

guilty plea. If Walters did not rely upon the guilty plea entry form, then he cannot claim that the 

language in that entry caused his plea to be less than knowing, intelligent, and voluntary. The 

guilty plea entry form was not acknowledged by Walters until near the end of the change of plea 

hearing. By that point in time the trial court had already concluded its colloquy with Walters, and 

Walters had acknowledged his understanding of the maximum and mandatory nature of the 

sentence. We further note that in addition to the contested language, the guilty plea entry form 

also clearly sets out the sentencing range for the offense of sexual battery as charged, and 

indicates that a prison term is mandatory. 

{¶17} Finally, we have previously held that failure of the trial court to explain 

defendant’s eligibility for judicial release does not violate a defendant’s Crim.R. 11 rights. See 

State v. Bryant, 4th Dist. Meigs No. 11CA19, 2012-Ohio-3189, ¶ 7. 
Adams App. No. 15CA1009 11 

{¶18} In sum, knowledge of the maximum penalties is a non-constitutional right and the 

trial court substantially complied with Crim.R. 11(C)(2)(a) by advising Walters as to the 

maximum penalties and mandatory nature of the penalties. Accordingly, we overrule Walters’ 

first assignment of error. 

B. Validity of Sentence 

{¶19} In his second assignment of error, Walters contends that the trial court erred by 

imposing a “hybrid” sentence, which consists of both mandatory and discretionary prison time.

{¶20} When reviewing felony sentences we apply the standard of review set forth in 

R.C. 2953.08(G)(2). See State v. Brewer, 2014–Ohio–1903, 11 N.E.3d 317, ¶ 33 (4th Dist.) (“we 

join the growing number of appellate districts that have abandoned the Kalish plurality’s secondstep abuse-of-discretion standard of review; when the General Assembly reenacted R.C. 

2953.08(G)(2), it expressly stated that ‘[t]he appellate court’s standard of review is not whether 

the sentencing court abused its discretion’ ”). R.C. 2953.08(G)(2) specifies that an appellate 

court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the 

court clearly and convincingly finds that “the record does not support the sentencing court’s 

findings” under the specified statutory provisions or “the sentence is otherwise contrary to law.” 

{¶21} Walters pled guilty to sexual battery in violation of R.C. 2907.03(A)(5) with the 

specification that the victim was less than thirteen years of age, a second-degree felony. R.C. 

2907.03(B) provides the sentence for this offense and states that “the court shall impose upon the 

offender a mandatory prison term equal to one of the prison terms prescribed in section 2929.14 

of the Revised Code for a felony of the second degree.” R.C. 2929.14, which governs basic 

prison terms, provides that “[f]or a felony of the second degree, the prison term shall be two, 

three, four, five, six, seven, or eight years.” Therefore, whatever prison term the court imposes 
Adams App. No. 15CA1009 12 

pursuant to R.C. 2929.14 for second-degree felony sexual battery offenses in violation of R.C. 

2907.03(A)(5)/(B) is a mandatory term. 

{¶22} Walters failed to object to the imposition of the sentence at the sentencing hearing 

and forfeited this issue, absent plain error. Crim.R. 52(B). For a reviewing court to find plain 

error: (1) there must be an error, i.e., “a deviation from a legal rule”; (2) the error must be plain, 

i.e., “an ‘obvious' defect in the trial proceedings”; and (3) the error must have affected 

“substantial rights,” i.e., it must have affected the outcome of the proceedings. State v. Barnes,

94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “[T]he burden of demonstrating plain error is on 

the party asserting it.” State v. Davis, 116 Ohio St.3d 404, 2008–Ohio–2, 880 N.E.2d 21, ¶ 378. 

“We take notice of plain error with the utmost of caution, under exceptional circumstances, and 

only to prevent a manifest miscarriage of justice.” State v. Merryman, 4th Dist. Athens No. 

12CA28, 2013–Ohio–4810, ¶ 49. 

{¶23} In State v. Ware, 141 Ohio St.3d 160, 2014–Ohio–5201, 22 N.E.3d 1082, ¶ 10, 

the Ohio Supreme Court was faced with the certified question: “When the imposition of a 

mandatory prison term is statutorily-mandated for a specific felony offense, is the trial court 

permitted to impose a total prison term within the maximum allowed, only a portion of which is 

mandatory under the statute?” The Court held that trial courts have no authority to divide a 

singular “mandatory prison term” into “a hybrid of mandatory and discretionary sub-terms.” 

Ware at ¶ 17 (“No sentencing statute allows a court to divide a singular ‘mandatory prison term’ 

into a hybrid of mandatory and discretionary sub-terms.”).

{¶24} Reading R.C. 2907.03 and Ware together, the entire prison term was required to 

be mandatory. The only discretion the trial court had when sentencing Walters was how many 

years that mandatory prison term would be. The sentencing entry imposed “a mandatory stated 
Adams App. No. 15CA1009 13 

prison term of seven (7) years, in the Ohio Department of Rehabilitation and Corrections, with 

minimum mandatory Two (2) years.” While the trial court’s intent is not entirely clear, the 

imposed sentence suggests a hybrid of mandatory and discretionary sub-terms. Thus, based on 

R.C. 2907.03 and Ware, we find the trial court’s imposition of a hybrid sentence was not 

authorized by law and was contrary to law. Additionally, we find that Walters’ sentence clearly 

deviates from a legal rule; and the error is obvious from reviewing the record.

{¶25} As far as whether the error affected Walters’ substantial rights, “[t]he Supreme 

Court of Ohio has declared, ‘[j]udges have no inherent power to create sentences * * * [and lack] 

the authority to impose a sentence that is contrary to law.’ ” State v. Clay, 4th Dist. Lawrence 

No. 11CA23, 2013-Ohio-4649, ¶ 76, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio6238, 942 N.E.2d 332, ¶¶ 22–23. “[J]udges are duty-bound to apply sentencing laws as they are 

written.” Fischer at ¶ 22. We find that since the trial court imposed a sentence that is contrary to 

law and not authorized by law, the sentencing error did affect Walters’ substantial rights. Accord 

State v. Wharton, 2015-Ohio-5026, 53 N.E.3d 758, ¶ 34 (4th Dist.). 

{¶26} Based on the foregoing, we find that the trial court committed plain error by 

sentencing Walters to a hybrid prison sentence. Accordingly, we sustain Walters’ second 

assignment of error and remand the matter for resentencing in accordance with this opinion.2

IV. Conclusion 

 2

 Walters cites our decision in State v. Whitfield, 4th Dist. Scioto No. 14CA3615, 2015-Ohio-4139, ¶ 14, and argues 

that the correct remedy is to vacate his guilty plea. However, Whitfield is distinguishable from the case sub judice. 

Whitfield involved an appeal from a denial of a post-sentence motion to withdraw a guilty plea. Id. at ¶ 7. In that 

case we were not provided a transcript of the plea hearing, but concluded that imposition of an agreed hybrid 

sentence was such an egregious error that the appellant must not have been properly instructed on the maximum 

penalties involved. Id. at ¶¶ 9, 12-13. In contrast, in the case sub judice, we have had the benefit of reviewing the 

plea hearing transcript and have concluded that the trial court substantially complied with Crim.R. 11. We believe 

this case to be more analogous to State v. Clark, 10th Dist. Franklin No. 14AP-697, 2015-Ohio-1239, which 

involved an appeal of a hybrid sentence. Like here, the court in Clark determined the hybrid sentence to be improper 

and that the proper remedy was to remand for resentencing. Id. at ¶¶ 5-8. 
Adams App. No. 15CA1009 14 

{¶27} Having overruled Walters’ first assignment of error, we affirm his conviction; 

however, having sustained his second assignment of error, we reverse his sentence and remand 

for resentencing. 

JUDGMENT AFFIRMED IN PART, 

REVERSED IN PART, 

AND CAUSE REMANDED. 

Harsha, J., concurring in part and dissenting in part. 

{¶28} I respectfully dissent from that part of the judgment and opinion sustaining 

Walters’s second assignment of error, which asserts that the trial court erred by imposing a 

hybrid sentence, i.e., both mandatory and discretionary prison time. By not raising this objection 

below, Walters forfeited all but plain error. State v. Black, 4th Dist. Ross No. 12CA3327, 2013–

Ohio–2105, ¶ 20–21 appeal not allowed, 136 Ohio St.3d 1558, 2013–Ohio–4861, 996 N.E.2d 

985, ¶ 20–21 (2013); State v. Garvin, 197 Ohio App.3d 453, 2011–Ohio–6617, 967 N.E.2d 1277, 

¶ 51 (4th Dist.). 

{¶29} Under Crim.R. 52(B) we may notice plain errors or defects affecting substantial 

rights. “Inherent in the rule are three limits placed on reviewing courts for correcting plain 

error.” State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306, ¶ 15. “ ‘First, 

there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. 

To be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious' defect in the 

trial proceedings. * * * Third, the error must have affected ‘substantial rights.’ We have 

interpreted this aspect of the rule to mean that the trial court's error must have affected the 

outcome of the trial.' ” Id. at ¶ 16, 873 N.E.2d 306, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 

759 N.E.2d 1240 (2002). We will notice plain error “only to prevent a manifest miscarriage of 
Adams App. No. 15CA1009 15 

justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. 

“Reversal is warranted only if the outcome of the trial clearly would have been different absent 

the error.” State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). In our context the word 

“trial” should be construed to mean the outcome of the “proceeding”. 

{¶30} I would not exercise our discretion to invoke the plain-error doctrine for three 

reasons. 

{¶31} First, I am not persuaded that a manifest miscarriage of justice has occurred. The 

trial court expressly indicated that it was sentencing Walters to a “mandatory stated prison term 

of seven (7) years.” 

{¶32} Second, Walters does not invoke the plain-error doctrine in his appellate briefs. 

See State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-2996, ¶ 25, citing State v. 

Quarterman, 140 Ohio St.3d 464, 2014–Ohio–4034, 19 N.E.3d 900, ¶ 17–20 (appellate court 

need not consider plain error where appellant fails to timely raise plain-error claim). 

{¶33} Third, it is questionable whether the trial court imposed a hybrid sentence. The 

court pronounced that all potential sentences were mandatory and it was imposing a mandatory 

prison term of seven years from the statutory range of 8 to 12 years. The additional language 

referencing a “minimum mandatory” of two years was mere surplusage; it addressed the 

statutory minimum sentence, which was also a mandatory sentence. It did not modify the 

mandatory nature of the entire term. Although this surplusage was indeed “inartful” as the state 

concedes, at no point at the hearing or in its sentencing entry did the trial court indicate that any 

part of its sentence was discretionary. Like the trial court’s sentencing entry in Ware, 141 Ohio 

St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, at ¶ 14, the trial court did not impose a 

discretionary component in its sentence nor could it. And although Walters cites our decision in 
Adams App. No. 15CA1009 16 

Whitfield, 4th Dist. Scioto No. 14CA3615, 2015-Ohio-4139, in support of his second assignment 

of error, that case is distinguishable because the sentencing entry in that case expressly mandated 

that the sentence was for “nine (9) years, in which six (6) years is mandatory.” Id. at ¶ 9. There 

was no manifest imposition of a discretionary component to Walters’s sentence here. 

{¶34} Consequently, I dissent from the judgment sustaining the second assignment of 

error and reversing the judgment of the trial court.3 I concur in the remainder of the judgment 

and opinion overruling Walters’s first assignment of error. 

 

 3

 As my colleague Judge Abele has often correctly noted, felony sentencing has become an exercise akin to solving 

Rubik’s cube. One website proclaims to solve that puzzle “you only have to learn six algorithms.” Our sentencing 

puzzle should be so simple. 
Adams App. No. 15CA1009 17 

JUDGMENT ENTRY 

 

 It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN 

PART and that the CAUSE IS REMANDED for further proceedings consistent with this 

opinion. Appellant and appellee shall split the costs. 

 The Court finds that reasonable grounds existed for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Adams County 

Court of Common Pleas to carry this judgment into execution. 

 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously posted. The 

purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an 

application for a stay during the pendency of proceedings in that court. If a stay is continued by 

this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of 

the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day 

appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. 

Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, 

the stay will terminate as of the date of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

Abele, J.: Concurs in Judgment and Opinion. 

Harsha, J.: Concurs in Part and Dissents in Part with Opinion. 

 

 For the Court 

 BY: ____________________________ 

 Marie Hoover, Judge 

 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and 

the time period for further appeal commences from the date of filing with the clerk.