[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-Appellee,

 vs.

MARVIN LEAR,

 Defendant-Appellant.

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APPEAL NO. C-220485

TRIAL NO. B-2105646

 O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 27, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Alana Van Gundy, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

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CROUSE, Presiding Judge.

{¶1} Defendant-appellant Marvin Lear appeals his convictions, following 

guilty pleas, for having a weapon while under a disability and aggravated trafficking in

drugs. In a single assignment of error, he argues that the trial court failed to comply 

with Crim.R. 11 because it did not notify him that he was pleading to a charge that 

carried a mandatory prison term, and that consequently his pleas were not entered

knowingly, intelligently, and voluntarily. Because Lear entered into agreed pleas with 

a recommended aggregate sentence, and because the trial court imposed the sentence 

recommended by Lear and the state, we find his argument to be without merit. We 

hold that Lear entered his pleas knowingly, intelligently, and voluntarily, and we 

affirm the trial court’s judgment. 

I. Lear Pleads Guilty and is Sentenced

{¶2} Lear was indicted for eight felony offenses in November of 2021. The 

offenses included in the indictment 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-degree felony; trafficking in cocaine, a 

second-degree felony; possession of cocaine, a third-degree felony; trafficking in 

marijuana, a fifth-degree felony; and two counts of aggravated trafficking in drugs, 

both fourth-degree felonies. 

{¶3} In August of 2022, Lear pled guilty to having a weapon while under a 

disability, aggravated trafficking in drugs as a second-degree felony, and trafficking in 

cocaine. The plea agreement included a jointly-recommended aggregate sentence of 

five years of imprisonment. After accepting Lear’s guilty pleas, the trial court imposed 

the recommended sentence. This sentence included 12 months of imprisonment for 
OHIO FIRST DISTRICT COURT OF APPEALS

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

a sentence of five years of imprisonment imposed for the offense of aggravated 

trafficking in drugs. The offense of trafficking in cocaine was merged at sentencing, 

resulting in an aggregate sentence of five years’ imprisonment.

{¶4} Lear now appeals.

II. Crim.R. 11 Analysis

{¶5} In his sole assignment of error, Lear argues that the trial court violated 

Crim.R. 11 because it failed to notify him that he was pleading to a charge with a 

mandatory prison term, and that consequently he did not make knowing, intelligent, 

and voluntary pleas. 

{¶6} “Before accepting a guilty or no-contest plea, the court must make the 

determinations 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 

decision to enter a plea must be knowing, intelligent, and voluntary. State v. Dangler, 

162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 10. Crim.R. 11(C)(2) provides 

that:

In felony cases the court may refuse to accept a plea of guilty or a plea 

of no contest, and shall not accept a plea of guilty or no contest without 

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 defendant is making the plea voluntarily, with 

understanding of the nature of the charges and of the maximum penalty 
OHIO FIRST DISTRICT COURT OF APPEALS

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involved, and, if applicable, that the defendant is not eligible for 

probation or for the imposition of community control sanctions at the 

sentencing hearing.

(b) Informing the defendant of and determining 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 

sentence.

(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.

{¶7} In Dangler, the Supreme Court of Ohio expressed frustration with its 

prior caselaw that had “muddled” the analysis used to determine whether a trial court 

had complied with the requirements of Crim.R. 11(C)(2). Dangler at ¶ 17. It recognized 

that:

The court has, in some instances, said that “partial” compliance is 

sufficient absent a showing of prejudice from the failure to 

“substantially” comply. Elsewhere, the court 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

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But those formulations have served only to unduly complicate what 

should be a fairly straightforward inquiry.

(Internal citations omitted.) Id.

{¶8} The Dangler court held that except where a trial court fails to explain

the constitutional rights in Crim.R. 11(C)(2)(c) or where a trial court completely fails 

to comply 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. Prejudice is established by 

showing that the plea would not have otherwise been made. Id. at ¶ 16. It is not 

necessary for a defendant to establish prejudice in the two exceptions previously 

noted, specifically where the constitutional rights in Crim.R. 11(C)(2)(c) are not 

explained 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 Inform that Sentence was Mandatory

{¶9} Lear contends that the trial court failed to comply with Crim.R. 11(C)

because it failed to notify him that he was pleading to a charge (aggravated trafficking 

in drugs) that required a mandatory prison term and that he was ineligible for 

probation. This argument implicates Crim.R. 11(C)(2)(a).

{¶10} At the plea hearing, Lear and the state informed the court 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, the trial court discussed with Lear the 

maximum sentence that he faced for each offense. With respect to the offense of having 

a weapon while under a disability, the court informed Lear that he faced a potential 
OHIO FIRST DISTRICT COURT OF APPEALS

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sentence of nine to 36 months’ imprisonment and a maximum fine of $10,000. The 

court additionally told Lear that it could place him on community control for up to five

years instead of sending him to prison. With respect to the offenses of aggravated 

trafficking in drugs and trafficking in cocaine, the court informed Lear that he faced 

for each offense a potential sentence of two to eight years’ imprisonment and a 

maximum fine of $15,000. Notably, it did not tell Lear that he was ineligible for 

probation or for community control for the offense of aggravated trafficking in drugs. 

The court also discussed the potential periods of postrelease control that Lear faced 

for each offense.

{¶12} Lear’s assertion that he faced a mandatory prison term for the offense 

of aggravated trafficking in drugs is correct. The indictment alleged with respect to 

this offense that he “knowingly prepared for shipment, shipped, transported, 

delivered, prepared for distribution, or distributed a Schedule II controlled substance, 

to wit: METHAMPHETAMINE, * * * in an amount that equaled or exceeded 5 times 

the bulk amount was but was less than 50 times the bulk amount.” R.C. 

2925.03(C)(1)(d) provides that “if the amount 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 the court shall impose as a 

mandatory prison term a second degree felony mandatory prison term.”

{¶13} “A defendant who is required to serve a mandatory prison term is 

ineligible for probation or community control.” State v. Foster, 2018-Ohio-4006, 121 

N.E.3d 76, ¶ 17 (1st Dist.), citing R.C. 2929.16(A). Pursuant to Crim.R. 11(C)(2)(a), 

where a defendant is not eligible for probation or for the imposition of communitycontrol sanctions, the trial court must ensure that the defendant is aware of such 
OHIO FIRST DISTRICT COURT OF APPEALS

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ineligibility prior to accepting the defendant’s plea. Id. Therefore, when applicable, the 

trial court must inform a defendant that the mandatory nature of the sentence faced 

rendered the defendant ineligible for probation or community control. Id.; State v. 

Kinney, 2018-Ohio-404, 105 N.E.3d 603, ¶ 24 (1st Dist.); State v. Grove, 5th Dist. 

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 sentence renders the 

defendant ineligible for probation or community control sanctions”). 

{¶14} The trial court in this case failed to inform Lear that he faced a

mandatory sentence for the offense of aggravated trafficking in drugs and that he was

ineligible to be placed on probation or community control. Following our review of the 

record, however, we find that Lear suffered no prejudice from the trial court’s 

omission. Lear and the state asked the trial court to impose a recommended sentence 

of five years’ imprisonment. Lear thus had no expectation that he would be placed on 

community control instead of serving a prison term. Additionally, the entry 

withdrawing his pleas of not guilty and entering guilty pleas, which was signed by Lear,

indicated that Lear faced a mandatory prison term for the offense of aggravated 

trafficking in drugs. Under these circumstances, we cannot hold that Lear would not 

have entered the pleas but for the trial court’s failure to inform him that he faced a 

mandatory sentence. 

B. Failure to Impose a Sentence in Accordance with Reagan Tokes 

{¶15} Lear also raises in this assignment of error an argument concerning the 

trial court’s failure to comply with the Reagan Tokes Law.
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶16} Lear argues in his issue presented for review that “[a]dditionally, the

Court is required to include indefinite sentencing per Reagan Tokes. The Court failed 

to notify him there was a mandatory term, place that in the sentencing entry, or 

provide an indefinite sentence per Reagan Tokes.” In his appellate brief, he asserts 

that “Mr. Lear was sentenced to a definite sentence for an F2 offense, thus violating 

Reagan Tokes.”

{¶17} Lear’s argument seemingly attacks the sentence imposed, rather than 

the trial court’s compliance with Crim.R. 11. Lear, however, has raised no assignment

of error challenging his sentence. The role of an appellate court is to “rule[] on 

assignments of error, not mere arguments.” Mun. Tax Invest. LLC v. Northup 

Reinhardt Corp., 10th Dist. Franklin No. 19-AP-26, 2019-Ohio-4867, ¶ 24, quoting

Huntington Natl. Bank v. Burda, 10th Dist. Franklin No. 08AP-658, 2009-Ohio-1752, 

¶ 21. This role is clearly set forth in App.R. 12(A)(1)(b), which provides that a court of 

appeals shall “[d]etermine the appeal on its merits on the assignments of error set 

forth in the briefs.” Because Lear has raised no assignment of error challenging his 

sentence, we decline to consider his Reagan Tokes argument so far as it asserts that

the trial court erred in the imposition of sentence. See Mun. Tax Invest. LLC at ¶ 24;

Kellard v. Cincinnati, 2021-Ohio-1420, 171 N.E.3d 868, ¶ 43 (1st Dist.), fn. 2; App.R. 

12(A)(1)(b).

{¶18} Insofar as Lear’s argument can be interpreted as a contention that the 

trial court failed to comply with Crim.R. 11 by failing to inform him that he faced an 

indefinite sentence under the Reagan Tokes Law, we consider his argument. When a 

defendant pleads to an offense that is subject to indefinite sentencing under the 

Reagan Tokes Law, the trial court must, when informing the defendant of the
OHIO FIRST DISTRICT COURT OF APPEALS

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maximum sentence faced, inform the defendant that the maximum penalty includes

an indefinite sentence. State v. Lee, 1st Dist. Hamilton No. C-210001, 2021-Ohio-3918, 

¶ 11-13; State v. Tackett, 8th Dist. Cuyahoga No. 111998, 2023-Ohio-2298, ¶ 20; State

v. Gabbard, 12th Dist. Butler No. CA2020-12-125, 2021-Ohio-3646, ¶ 16.

{¶19} Lear is correct that the offenses of aggravated trafficking in drugs and 

trafficking in cocaine were second-degree felonies for which the trial court was 

required to impose an indefinite sentence under the Reagan Tokes Law. See R.C. 

2929.14(A)(2)(a). He is also correct in his assertion that the trial court failed to inform 

Lear that he faced an indefinite sentence for these offenses.

{¶20} However, we hold that Lear suffered no prejudice from the trial court’s

failure to inform him that the maximum sentence he faced included an indefinite

sentence. This is not a situation in which the trial court imposed an indefinite sentence 

after failing to inform a defendant that an indefinite sentence was required to be 

imposed. See Lee at ¶ 12; State v. Fikes, 1st Dist. Hamilton No. C-200221, 2021-Ohio2597, ¶ 11-13. Rather, the trial court imposed the recommended aggregate sentence of 

five years’ imprisonment that was requested by Lear and the state. Under these 

circumstances where the trial court in fact imposed the recommended sentence, we 

cannot find that Lear would not have entered the pleas but for the trial court’s failure 

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

{¶21} Lear’s assignment of error is overruled. 

III. Conclusion

{¶22} Lear entered his pleas knowingly, intelligently, and voluntarily. The 

judgment of the trial court is accordingly affirmed. 

Judgment affirmed.
OHIO FIRST DISTRICT COURT OF APPEALS

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ZAYAS and BOCK, JJ., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.