State v. ClarkState v. Clark
APPEARANCES:
Chris Brigdon, Thornville, Ohio, for Appellant.
Judy C. Wolford, Pickaway County Prosecutor, Heather M.J. Carter, Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
Smith, P.J.
{¶1} Christopher M. Clark appeals the August 4, 2023 Entry of Sentence of the Pickaway County Court of Common Pleas. Clark entered guilty pleas to Count One, Trafficking in a Fentanyl-Related Compound, a violation of
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} Subsequent to a traffic stop, on September 1, 2022, Clark was indicted on three counts:
| Count One: | Trafficking in a fentanyl related compound, |
| Count Two: | Possession of a fentanyl related compound, |
| Count Three: | Possession of cocaine, |
The counts also contained forfeiture specifications related to the U.S. currency discovered during the stop.
{¶3} On May 8, 2023, Clark entered guilty pleas to Counts One and Three. On August 2, 2023, the trial court imposed a mandatory term of 6 to 9 years as to Count One, and 16 months as to Count Three, to run concurrently.
ASSIGNMENTS OF ERROR
- DID THE TRIAL COURT ERROR [SIC] WHEN FAILING TO ACCURATELY EXPLAIN THE MAXIMUM POTENTIAL SENTENCE ASSOCIATED WITH
R.C. 2925.03(A)(2) (C)(9)(e) ? - DID THE TRIAL COURT ERROR [SIC] WHEN FAILING TO ACCURATELY EXPLAIN THE MAXIMUM PENALTY ASSOCIATED WITH
R.C. 2929.14 ANDR.C. 2929.144 ?
{¶5} Without explicitly citing the Reagan Tokes Act in his assignments of error, Clark‘s arguments thereunder concern whether or not the trial court properly informed him of the Reagan Tokes Act as relates to his plea to Count One, Trafficking in a Fentanyl-Related Compound. Thus, we consider them jointly.
{¶6} Clark contends that his guilty plea to Count One of the indictment was not knowingly, intelligently, and voluntarily made because the trial court did not accurately set forth the maximum penalty during the court‘s colloquy with him. The maximum penalty associated with Trafficking in a Fentanyl-Related Compound,
{¶7} In response, the State of Ohio points out that Clark did not interpose any objection to the alleged deficient notification. The State asserts that a review of the record in its totality demonstrates that the trial court substantially complied with the requirements of
A. STANDARD OF REVIEW
{¶8} Appellate courts apply a de novo standard of review when evaluating a plea‘s compliance with
1. Legal Requirements of Pleas
{¶9} “‘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. Jones, 2024-Ohio-2034, ¶ 17 (11th Dist.), quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). See also State v. Tolle, 2022-Ohio-2839, ¶ 12 (4th Dist.). “Ohio‘s
{¶10} Clark‘s assigned errors involve
{¶11} “Thus, ‘the questions to be answered are simply: (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?‘” Jones, ¶ 20, quoting Dangler at ¶ 17.
2. Reagan Tokes Act
{¶12} The Reagan Tokes Act, effective as of March 22, 2019, implemented a system of indefinite sentencing for non-life felonies of the first and second degree committed on or after the effective date. Jones at ¶ 22, citing State v. Joyce, 2022-Ohio-3370, ¶ 8 (11th Dist.). Under the Reagan Tokes Act, a trial court imposing a sentence upon an offender for a second-degree felony must impose “an indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term that is determined pursuant to [
{¶13} An offender sentenced under the Act has a rebuttable presumption of release at the conclusion of the offender‘s minimum term. See
{¶14} To be clear,
- That it is rebuttably presumed that the offender will be released from service of the sentence on the expiration of the minimum prison term imposed as part of the sentence or on the offender‘s presumptive earned early release date, as defined in section
2967.271 of the Revised Code, whichever is earlier; - That the department of rehabilitation and correction may rebut the presumption described in division (B)(2)(c)(i) of this section if, at a hearing held under section
2967.271 of the Revised Code, the department makes specified determinations regarding the offender‘s conduct while confined, the offender‘s rehabilitation, the offender‘s threat to society, the offender‘s restrictive housing, if any, while confined, and the offender‘s security classification; - That if, as described in division (B)(2)(c)(ii) of this section, the department at the hearing makes the specified determinations and rebuts the presumption, the department may maintain the offender‘s incarceration after the expiration of that minimum term or after that presumptive earned early release date for the length of time the department determines to be reasonable, subject to the limitation specified in section
2967.271 of the Revised Code; - That the department may make the specified determinations and maintain the offender‘s incarceration
under the provisions described in divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to the limitation specified in section 2967.271 of the Revised Code; - That if the offender has not been released prior to the expiration of the offender‘s maximum prison term imposed as part of the sentence, the offender must be released upon the expiration of that term.
{¶15} At sentencing, the trial court addressed Clark explaining as follows, the notifications required by the Reagan Tokes Act:
Well, for the offense of Trafficking in a Fentanyl-Related Compound with Specification, a felony of the second degree, it will be the order of the court, Mr. Clark stand committed for a period of six to nine years on that one. That is a mandatory sentence. For the Possession of Cocaine, a felony of the fourth degree, it will be the order of the court he stand committed for 16 months. I‘ll run those concurrent..... Mr. Clark, it‘s presumed you will be released from prison on the expiration of the six-year sentence. The department of rehabilitation and corrections may rebut the presumption by holding a hearing and making a specified determination regarding your conduct and demeanor while confined. If the department that the hearing makes the specified determination and rebuts the presumption, the department may maintain your incarceration beyond the expiration of six years, but not beyond nine years. The department may hold hearing to make a specified determination and maintain your incarceration more than once. You must be released upon the expiration of your maximum term of nine years.
{¶16} However, Clark challenges the knowing, intelligent, and voluntary nature of his plea due to the alleged deficient notification, not the lawfulness of his sentence due to alleged deficient notification. (Emphasis added.) This
{¶17} As with all challenges to the knowing, intelligent, and voluntary nature of pleas, we turn to review of the transcript. At Clark‘s change of plea hearing held on May 8, 2023, the transcript indicates that the trial court asked Clark about his educational level and whether or not he was under the influence of alcohol or drugs. Clark stated that he had graduated from high
{¶18} Next, the trial court inquired:
You understand that Count One is Trafficking in a fentanyl related compound, a felony of the second degree, it carries a maximum penalty of eight to twelve years in prison,... Any prison sentence is mandatory, which means you wouldn‘t be eligible for any type of early release. Count Three is possession of cocaine, a felony of the fourth degree. It carries a maximum possible penalty of eighteen months in state prison, $5,000 fine. Any sentence you receive can be concurrent or consecutive. Concurrent means you serve them both at the same time. Consecutive means you have to serve each one separately. Do you understand what you‘re charged with and the maximum possible penalty?
At this point, Clark expressed affirmance of his understanding of the maximum possible penalty.
{¶19} The hearing transcript demonstrates that the trial court next discussed Clark‘s constitutional rights before turning to a further discussion of the penalties. The court stated as follows:
A felony of the second degree carries a presumption of prison. Also, upon finishing your prison sentence, you will be subject to mandatory post release control for a period of time not to exceed three years, but not less than eighteen months. You would be under the supervision of the Ohio Department of Rehabilitation and Corrections. They would have a parole officer watching over you, they would have rules and regulations concerning your conduct. If you violate their rules and regulations they can send you back to prison to serve additional time. Additional time could equal one half, add up to one half of the original sentence you receive from me, unless one of the violations is a new felony conviction. If you get convicted of a new felony while on post release control, you could be made to return to prison under this case to serve the greater of one year or time remaining on post release control, which could be up to three years, whichever is greater. And, by law, that has to be served consecutive with any new felony conviction, the sentence you receive while on post release control. Do you have any questions you wish to ask me about any of your rights?
{¶20} Clark answered “No, Sir.” Clark thereafter entered pleas to Counts One and Three. The trial court made a finding that Clark was entering his plea knowingly, voluntarily, and intelligently. Count Two was dismissed and the court referred the matter for presentence investigation.
{¶21} Recently in State v. Boulware, 2024-Ohio-1388 (2d Dist.), appellant appealed denial of his motion to withdraw his guilty plea on the basis that his plea to voluntary manslaughter was not knowingly, intelligently, and voluntarily entered because the trial court did not advise him of the Reagan Tokes Act notifications set forth in
In fact, case law from this state suggests that the failure to give the
R.C. 2929.19(B)(2)(c) notifications at the plea hearing does not invalidate a guilty plea. For example, in State v. Hodgkin, 2021-Ohio-1353, the Twelfth District Court of Appeals noted that it was “immaterial” that the trial court did not provide all of theR.C. 2929.19(B)(2)(c) notifications at the plea hearing because “[t]he trial court is required to advise an offender of the2929.19(B)(2)(c) notifications at the sentencing hearing[.]” (Emphasis sic.) Id. at fn. 3. In State v. Searight, 2023-Ohio-3584, the First District Court of Appeals noted that although the defendant had argued that the trial court‘s failure to apprise him of the Reagan Tokes Act notifications underR.C. 2929.19(B)(2)(c) rendered his guilty pleas invalid, “the substance of his argument and his request for proper notifications * * * stick to the sentence, not the pleas.” Id. at ¶ 6. In State v. Conner, 2021-Ohio-1769, the Third District Court of Appeals specifically held that the trial court did not err by failing to advise the defendant, at the plea hearing, of one of the notifications underR.C. 2929.19(B)(2)(c) , i.e., that the ODRC could rebut the presumption of his release once the defendant completed the minimum prison term imposed. Id. at ¶ 14. Despite the trial court‘s failure to give that notification, the Third District held that the trial court had substantially complied withCrim.R. 11(C)(2)(a) in its explanation of the maximum penalty. Id. at ¶ 16.
{¶22} The Boulware court ultimately held that res judicata barred
{¶23} At Clark‘s hearing, the trial court discussed the Petition to Enter Plea of Guilty form, indicating that the maximum prison term for Count One is 8-12 years and also indicating that the prison sentence is mandatory. Without referencing the Reagan Tokes Act or the indefinite nature of the sentence, the trial court then addressed Clark and explained the maximum
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court 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 60 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 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-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 60 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. and Hess, J. concur in Judgment and Opinion.
For the Court,
Jason P. Smith
Presiding 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.