STATE OF OHIO, Plaintiff-Appellee, vs. TERRENCE W. FANNON, Defendant-Appellant.
APPEAL NO. C-180270; TRIAL NO. B-1406830
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 8, 2019
2019-Ohio-1752
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 8, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
William F. Oswall, for Defendant-Appellant.
{1} This appeal raises a pair of sentencing questions: for purposes of
{2} Terrence W. Fannon pleaded guilty to one charge of first-degree felony rape and one charge of third-degree felony gross sexual imposition, and he received a 13-year sentence. Prior to accepting his pleas, the trial court informed him on the record that he would be classified as a Tier III sexual offender, and referred to the applicability of lifetime registration requirements and in-person verification every 90 days. The trial court explained the applicable sentence ranges and pointed him to his “Entry Withdrawing Plea of Not Guilty,” which reflected mandatory prison terms.
{3} Mr. Fannon now appeals his convictions. In his first assignment of error, Mr. Fannon argues that his pleas were not knowing, intelligent, or voluntary for purposes of
{4} We begin with Mr. Fannon‘s sex-offender classification. Although noted on the record at the hearing and documented in detail in the “Explanation of Duties to Register as a Sex Offender,” the November 8, 2017 judgment entry itself
{5} We therefore overrule Mr. Fannon‘s first assignment of error, because—like the defendant in Merritt—“we cannot decide and [the defendant] cannot show that his guilty pleas were not knowing, intelligent, and voluntary on the basis that he was not informed about community notification and residency restrictions, because those sanctions were never imposed.” Merritt at ¶ 7. In other words, a defendant cannot effectively appeal a sentence that was not imposed.
{6} Mr. Fannon next argues that he was not properly advised of the mandatory nature of his sentence. A trial court must substantially comply with nonconstitutional notification requirements under
{7} Mr. Fannon urges adherence to Maggard, in which we reversed no-contest rape pleas where the pleas were not knowingly entered. In Maggard, however, the trial court affirmatively misrepresented to the defendant that his sentence would not include mandatory prison time, a misrepresentation that defendant‘s trial counsel reaffirmed. Id. at ¶ 17. Under those circumstances, we vacated the subject pleas.
{8} The state, for its part, points to State v. Lunsford, 1st Dist. Hamilton No. C-850057, 1985 WL 4499 (Dec. 18, 1985), in which this court found that a colloquy including a discussion of the maximum sentence and specific reference to the entry withdrawing plea substantially complied with
{9} The only part of the colloquy that raises concern in this case is the trial court‘s mention of community control, which is not applicable to a rape sentence.
{10} In sum, it does not appear from a comprehensive reading of the record that Mr. Fannon was unaware of or confused about the applicability of mandatory prison time as a result of his pleas. This case is more in line with Lunsford, and it is distinguishable from Maggard and cases in similar vein where there was either a complete omission in the colloquy of the maximum penalty or misrepresentation of the mandatory nature of the defendant‘s sentence. We therefore overrule Mr. Fannon‘s second assignment of error.
{11} For the foregoing reasons, we affirm the decision of the trial court and overrule both assignments of error.
Judgment affirmed.
MOCK, P.J., and ZAYAS, J., concur.
Please note: The court has recorded its own entry this date.