State v. Tutt
2021 Ohio 96
Ohio Ct. App.2021Background
- Devin Michael Tutt was charged with two counts of first‑degree rape against minors (two separate victims, offenses alleged in April and August 2019).
- On September 3, 2019, Tutt waived grand jury and pled guilty to both counts; plea form listed an exposure of "3–11 years" per count and the court conducted a Crim.R. 11 colloquy.
- During the plea colloquy the court misstated the Reagan Tokes maximum aggregate exposure as 33 years; at sentencing the court corrected the maximum to 27.5 years (11 + 11 + 5.5) and asked whether Tutt wished to withdraw—he declined.
- At sentencing the court imposed consecutive 11‑year minimums on each rape count and, under Reagan Tokes, added the 5.5‑year additional maximum exposure, yielding an indefinite aggregate term of 22 to 27.5 years.
- Tutt appealed, arguing his plea/sentence should be vacated because (1) the written waiver did not reference the Reagan Tokes Act or include a written acknowledgement of its impact, and (2) the trial court misstated the maximum sentence during the plea colloquy.
- The Twelfth District affirmed, rejecting both theories: the lack of a written Reagan Tokes acknowledgement did not invalidate the plea and the court’s misstatement did not establish prejudice required to vacate the plea.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Tutt) | Held |
|---|---|---|---|
| Whether lack of a written Reagan Tokes acknowledgement requires vacatur of plea | No written acknowledgment is required by law; plea may be accepted after proper Crim.R. 11 colloquy | Plea is involuntary/manifest injustice because waiver form did not reference Reagan Tokes or include a written waiver | Waived (not raised below) and meritless: no statutory or Crim.R. requirement for a written Reagan Tokes acknowledgement |
| Whether the court's misstatement of the maximum sentence during the plea colloquy renders the plea unknowing/invalid | Misstatement was not a complete Crim.R. 11 failure; court later corrected before sentencing and defendant must show prejudice under Dangler | Misstatement of 33 vs 27.5 years meant plea was not knowing/voluntary | No reversible error: misstatement was not a complete failure of Crim.R. 11; defendant failed to prove prejudice—he confirmed after correction he wished to proceed |
Key Cases Cited
- Awan, 22 Ohio St.3d 120 (1986) (issues not raised in trial court are waived on appeal)
- Childs, 14 Ohio St.2d 56 (1968) (preservation rules for appellate review)
- Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238 (2014) (prejudice must be shown "on the face of the record")