[Cite as State v. Lear , 2023
- Ohio
- 3442.] 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO , Plaintiff

- Appell ee ,

vs. MARVIN LEAR , Defe ndant

- Appell ant

. :

:

:

:

: APPEAL NO

. C

- 220485 TRIAL NO. B

- 2105646
O P I N I O N

.

Criminal Appeal From: Hamilton County Court of Common Pleas Judgmen t Appealed From Is : Affirmed Date of Judgment Entry on Appeal: September 27, 2023

Melissa A

. Powers , Hamilton County Prosecuting Attor ney, and Paula E. Adams , Assist ant Prosecutin g Att o rney , for Plaintiff

- Appell ee , Alana Van Gundy , for Defendant

- Appell ant

.OHIO FIRST DISTRICT COURT OF APPEALS

2 C ROUSE , Presiding Judge. 

### {¶1} Defendant

- appellant Mar vin Lear appeals his convictions , following guilt y plea s , for having a weapon while under a disability and agg r avated trafficking in drugs

. In a single assignment o f error, he argues that the trial court failed to c omply with Crim.R. 11 because it di d not notify him that he was pleading to a char ge t hat carried a mandatory prison term, and th at consequently his pl ea s w ere not entere d knowingly, intelligently, and voluntarily

. Because Lear entered into agreed plea s with

a recommended aggregate sentence, and because the trial court imposed the sentence recommended by Lear and the state, we find hi s a rgument to be wi t hout mer it . We hold that Lear entered his plea s knowingly, intelligently, and voluntarily, and we affirm the trial cour t ’ s judgme nt

.
I. Lear Pleads Guilty and is Sentenced


### {¶2} Lear was indicted for eight felony offenses in November of 2021. The offenses included in the in dictment were having a weapon while under a disability , a third

- degree felony ; aggravated trafficking in drugs , a second

- degree felony; aggravated possession of cocaine, a second

- degre e felony; trafficking in cocaine, a second

- degree felony; poss ession o f cocaine , a third

- degree felony; trafficking in marijuana, a f

ifth

- degree felony; and two cou nts of aggravated trafficking in drugs , both fourth

- degr ee felonies. 

### {¶3} In August of 2022, Lear pled guil ty to having a weapon while under a disability, ag gravated t raffickin g in drugs as a se cond

- degree felony, and trafficking in

c ocaine. The plea agreement included a jointly

- recommended aggregate sentence of
fi ve years of im prisonment. After accepting Lear ’ s guilty pleas, t he trial court imposed the recomm ende d sentence. Thi s sentence included 12 months of imprisonment forOHIO FIRST DISTRICT COURT OF APPEALS

3 the offense of having a weapon while under a disability , to be served concurrently with

a sentence of five ye ars of imprisonment imposed for the offense of aggravated traffickin g in drugs

. The offense of tr afficking in cocaine w as merged at sentencing , result in g in an aggregate sentence of five years ’ imprisonment. 

### {¶4} Lear now appeal s .
II. Crim.R. 11 Analysis


### {¶5} In his sole assignment of er ror, Lear argues that the trial court violated
Crim. R

. 11 be cause it failed to notify him that he was pleading to a charge with a mandatory prison te rm , and that conse quently he d id not make kn o wing, intelligent , and voluntary plea s . 

### {¶6} “ Before accepting a guilty or no

- contest plea, the court must make the d et ermina tions and give the warnings required by Crim. R. 11(C)(2)(a) and (b) and notify the defendant of the constitutional rights listed in Crim.R. 11(C)(2)(c ). ” State v. Veney , 120 Ohio St.3d 176, 2008

- Ohio

- 5200, 897 N.E.2d 621, ¶ 13. A defendant ’ s decis ion to e nter a plea must be knowing, intelligent, and voluntary. State v. Dangler , 162 Ohio St.3d 1, 2020

- Ohio

- 2765, 164 N.E.3d 28 6, ¶ 10. Crim.R. 11(C) (2) pr ovides that: In felony case s the court may refuse to accept a plea of guilty or a plea of no conte st, and shall not accept a plea of guilty or no contest w ithout first addressing the defendant personally either in

- person or by remote contemporaneous video in conformity with Crim.R. 43(A) and doing all of the following: (a) Determining that the defendan t is mak ing the plea volunt arily, with understanding of the nature of the charges and of the maximum penaltyOHIO FIRST DISTRICT COURT OF APPEALS

4 involved, and, if applicable, that the defendant is not eligible for
pr obati on or for the imposition of community control sanctions at the
sentenci ng heari ng. (b) Informing t he defendant of and determinin g that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and

senten ce. (c) Informing the defendant a nd deter mining that the def endant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory
proce ss fo r obtaining witnesses in the defendant ’ s favor, and to require the stat e to pro ve the defendant ’ s guilt beyond a reasonable doub t at a trial at which the defendant cannot be compelled to testify against himself or herself. 

### {¶7} In Dangler , the Supreme Court of Ohio expressed fr ustration with its prior case law that had “ muddled ” th e anal ys is used to determin e whether a trial cou rt had comp lied with the requirements of Crim.R. 11 (C) (2). Dangler at ¶ 17. It re cognized that : T he court has, in some instances, sa id th at “ partial ” compliance is sufficient absent a showing of prejudice f rom the fa ilure to

“ substanti ally ” comply . Elsewhere, the c ourt has indicated that when a trial court has “ substantially ” complied, the defendant must show prejudice from the failure to “ strictly ” or “ literally ” adhere to the rule

.OHIO FIRST DISTRICT COURT OF APPEALS

5 But those formulations h ave served only to unduly com plicate what should be a fairly straightforward inquiry

. (Internal citations omitted.) Id

. 

### {¶8} The Dangler court held that except where a trial court fails t o exp lain the constitutional rights in Crim.R. 11 (C) (2) (c) or where a tri al c ourt co mpletely fails

to c om ply with a portion of Crim.R . 11 (C) , “ a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of Crim.R. 11(C)

. ” Id . at ¶ 14

- 16. Prejud ice is established by showing that the plea would not have otherwise been made. Id. at ¶ 16. It is not necessary for a defendant to es tablish prejudice in the two exceptio n s pre viously noted, specifically where the constitutional rights in Crim. R. 11 (C) (2) (c) are not explain ed and where there has a been a complete failure to comply with a portion of
Crim .R

. 11 (C)

. Id . at ¶ 14 and 15.

A. Failure to I

n form that Sentence was Mandatory


### {¶9} L ear contends that the trial court failed to comply with C rim.R. 11 (C) beca use it failed to no t ify him that he was pleading to a charge (aggravated trafficking in drug s) that require d a mandatory pr ison term and that he was ineligible for probati on . Thi s argument i mplicates Crim.R. 11 (C) (2)(a). 

### {¶10} At the plea hearing , L ear and the s tate informed the c o urt that they were requesting the court impose a recommended sentence of five years in the Ohio Department of Rehabilitation and Correction

. 

### {¶11} During the plea colloquy , th e tri al court d iscussed with L e ar the maximum sentence that h e fac ed for each offense

. With re spect to t he offense of having

a w eapon while under a disab ility, the court informed Lear that he faced a potentialOHIO FIRST DISTRICT COURT OF APPEALS

6 sentence of nine to 36 months ’ imp risonment and a ma ximum fine of $10,000. The court additionally told Lear that it c o u l d p l a c e h i m o n c o m m u n i t y c o n t r ol for up to five years instea d of sending him to prison. With respect to the offenses of aggravated

t r afficking in drugs and trafficking in c ocaine, the court i nformed Lear that he faced for each offense a potential s entence of two to e ight years ’ impri so nment and a maximum fine of $15,000. Notably, it di d not tell Lear that he was ine ligible for probation or for community control for the offense o f aggra vated trafficking in d rugs . T he court al so discussed the potentia l periods of postre lease control th at Lear faced for each offense

. 

### {¶12} Lear ’ s asser tion that he fa ced a mandatory prison term for the offense of agg ravated trafficking in dru gs is correct. The indictment alleged with respect to this offense that he “ knowingly prepared for shipm ent, shipped, trans ported, delivered, prepare d for distribution, or distributed a Schedule II contro lled substance,
to wit: M ETHAMPHETAMINE, * * * in an amount that equale d or excee ded 5 times the bu lk amount was but was less than 50 ti me s the bulk amount

. ” R.C.
2925.03 (C) ( 1)(d) provides that “ if the am ount of the drug involved equals or exceeds five times the bulk amount but is less than fifty times the bulk amount, aggravated trafficking in drugs is a felony of the second degree, and t he court shal l impo se as a mandatory p rison term a second degree felony mand atory prison term

. ” 

### {¶13} “ A defendant who is required to serve a mandatory prison term is ineligible for probation or c ommunity control. ” State v. Foster , 2018

- Ohio

- 4006, 121 N.E.3d 76 , ¶ 17 (1 st Dist.) , citing R.C. 2929.1 6(A)

. Pursuant to Cr im.R. 11(C )(2)(a), where a de fendant i s not eligible for probation or for the imposition of community

control sanctions, the trial court must ensure that the defendant is aware of suchOHIO FIRST DISTRICT COURT OF APPEALS

7 ineligibility prior to a ccepting the defendant ’ s pl ea. Id

. Therefore, when applicable , the

tr ial court must inform a defendant that the mandatory nature of the sentence faced rendered the defendant inelig ible for probation or community control. Id

. ; State v. Kinney , 20 18

- Ohio

- 404, 105 N. E.3d 603, ¶ 24 (1 st Dist.) ; State v. Grove , 5 th D ist. Tuscarawas No. 2018AP100033, 2019

- Ohio

- 1627, ¶ 13 ( “ a trial court must, before accepting the plea, determine the defendant ’ s understanding that the defendant is subject to a mandatory sentence and that the mandatory sente nce renders the defendant ineli gible for probation or community control sanctions ” ). 

### {¶14} T h e trial cou rt in this case failed to inform Lear that he f aced a

ma ndatory sentence for the offense of aggravated trafficking in d rugs and that he wa s inel igible to be placed on probation or communi ty control

. Following our review of the

rec ord , how ever, we find that Lear suffered no prejudice from the trial court ’ s omission

. Lear and t he state asked the trial court to impose a recom mended sentence of five years ’ impriso nment. Lear thus had no expectation that he would be placed on community control instead of serving a pri son term. Additional l y, the entry withdra wing hi s plea s of not guilty and entering gu ilty plea s , wh ich wa s signed by Lear,
in dicated that Lear faced a mandatory pri son term for the offense of aggravated trafficking in drugs

. Under t he se circumstances, we cannot hol d that Lear would not have entered the plea s but for the trial court ’ s failure to inform hi m that he fac ed a mandatory sent ence.
B. Failure to Impose a Sentence in Accor dance with Reagan To kes


### {¶15} Lear also rais es in this assignment of err or an ar gument concerning the trial court ’ s failure to comp ly with the Reagan T okes L aw .OHIO FIRST DISTRICT COURT OF APPEALS

8 

### {¶16} Lear argues in his issue presente d for review that “ [a]dditionally, the Court is required to include i ndefinite sentenci ng per Reagan Tokes. The Court failed to notify him there was a mandatory term, place th at in the senten cing entry, or provide an indefinite sentence per Reagan Tokes. ” In his appellate br ief, he asserts tha t “ Mr. Lear was sentenced to a definite sentence for an F2 offense, thus violating Reagan Tokes. ” 

### {¶17} Lear ’ s argument seem ingly attack s th e sen tence imposed, rather than the trial court ’ s compliance with Crim.R. 11. Lear , however, has raise d no assignment of er r or challenging his sentence. The role of an appe llate court is to “ rule [] on assignments of error, not mere arguments

. ” Mun. Tax Invest. LLC v. Northup Reinhardt Corp

. , 10 th Dist. Franklin No. 19

- AP

- 26, 2019

- Ohio

- 48 67, ¶ 24, quoting
H untington Natl. Ban k v. Burda , 10th Dist. Franklin No. 08AP

- 658, 2009

- Ohio

- 1752 , ¶ 21

. T h is role is clearly set forth in App.R. 12(A)(1)(b ) , which pro vi des that a court of
ap peals shall “ [d]etermine the appeal on its merits on the assign ments of error set forth in the briefs

. ” B ecause Lear has raised no assignme nt of er ror c hallengi ng his sentence, we decline to consider his Reagan Tokes argument so far as it asserts that the trial cou rt erred in the imposition of sentence. See Mun. Tax I nvest. LLC at ¶ 24; Kellard v. Cincinn ati , 2021
- Ohio

- 1420, 171 N.E.3d 868, ¶ 43 (1 st Dist. ) , fn. 2 ; App.R. 12(A)(1)(b). 

### {¶18} Insofar as Lear ’ s argument can be interpreted as a con tention that the trial co urt failed to comply with Crim.R. 11 by failing to inform him that he faced an indefinite senten ce under the Reaga n Tok es Law , we consider his argument. When a defendant pleads to an offense that is subject to indefinite sentencing under the
R eagan Tokes Law, the trial court must , when informing the defendant of theOHIO FIRST DISTRICT COURT OF APPEALS

9 maximum senten ce faced , inform the de fendant that the maximum penalty include s an i n def init e sentence

. State v . Lee , 1 st Dist. Hamilton No. C

- 210001, 2021
- Ohio

- 3 918 , ¶ 11

- 13; State v. Tackett , 8 th Dist. Cuyahoga No. 111998, 2023

- Ohio

- 2298, ¶ 20; State v. Gabbard , 12 th D i st. Butler No . CA20 20
- 12
- 125, 2021
- Ohio

- 36 46, ¶ 16

. 

### {¶19} Lear is correct that the offenses of aggravated trafficking in drugs and trafficking in coc aine were second

- degree felonies for which the trial court was required to impose an indefini te sentence under t he Reagan Tokes Law. S ee R.C.
2929.14 (A)(2)(a). He is also correct in hi s ass ertion that t he trial court failed to inform
Lear that he faced an inde finite sentence for the se off en ses . 

### {¶20} However, we hol d that Lear suffered n o prejudice fro m the trial court ’ s failure to inform h im that the maximum sentence he faced included an indefinite

sen tence. This is not a situation in which the trial court imposed an indefinite sentence after failing to inform a defendant that an indefinite sentence wa s required to be
im posed. See Lee at ¶ 12; State v. Fikes , 1 st Dist. Hamilton No. C

- 200221, 2021
- Ohio

2597, ¶ 11

- 13. Rather, t he trial court imposed the recommended aggregate sentence of five years ’ i mpri sonment that was reque sted by L ear and the state

. Un der these
circumsta nces where the trial court in fact imposed the recommended sent ence, we cannot find that L ear would n ot have entered the plea s but for the trial court ’ s failure

to notify him of the maxi mum sentence faced under the Reagan Tokes Law. 

### {¶21} L ear ’ s assignment of er ror is overruled.

III. Concl usion


### {¶22} Lear entered his plea s knowingly, intelligently , and voluntarily. T h e judgment of the trial court is accordingly affirmed. Judgment affirmed

.OHIO FIRST DISTRICT COURT OF APPEALS

10 Z AYAS and B OCK , JJ . , concur . Please n ote: T h e court has reco rded its own entry on the date of the r elease of this opi ni on .