State v. KarpovitchState v. Karpovitch
Decided: September 15, 2025
Judgment: Affirmed in part, reversed in part, and remanded
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
William C. Livingston, Berkman, Gordon, Murray & Devan, 55 Public Square, Suite 2200, Cleveland, OH 44113 (For Defendant-Appellant).
SCOTT LYNCH, J.
{1} Defendant-appellant, Jerry J. Karpovitch, appeals his sentences for Aggravated Possession of Drugs and Possession of Cocaine in this consolidated appeal. For the following reasons, we affirm in part and reverse in part Karpovitch‘s sentences. This matter is remanded for the purposes of a limited resentencing hearing to provide the indefinite sentencing notifications in accordance with
{2} In Lake County Court of Common Pleas Case No. 23-CR-000794 (Appeal No. 2024-L-064), Karpovitch pled guilty to one count of Aggravated Possession of Drugs, a felony of the third degree in violation of
{3} On February 1, 2024, a joint sentencing hearing was held on Case Nos. 23-CR-000794 and 23-CR-001133 as well as four other then-pending cases against Karpovitch (none of which have been appealed). The sentencing court reviewed the circumstances of the six cases with Karpovitch. In accord with the plea agreements, defense counsel and the prosecutor jointly recommended an aggregate sentence of three to four and a half years in prison. Additionally, defense counsel requested a period of “leniency” of about sixty days so that Karpovitch could receive medical treatment for an arm injury: “He‘s got a very serious injury to his right arm. I saw it. He‘s going to need surgery within the next two or three weeks to that arm. ... I‘m going to ask the Court that when you sentence him that you give him time to report so he can take care of that issue because I don‘t think they are going to be able to take care of that in the institution.” Observing that “the only thing that the prison system in the state of Ohio does worse [than] control the drugs which they are perfectly happy to allow ... to be used in prison is medical care,” the court agreed to continue sentencing until after Karpovitch received medical treatment. The court advised Karpovitch: “If you want any hope that I‘m going to go along with this joint recommendation then you‘re going to get over your attitude that [your drug addiction is] nobody‘s business and you‘re going to stay off the drugs because I can
{4} Subsequent to the February 1 hearing and prior to receiving medical treatment, Karpovitch was arrested on new drug charges.
{5} On March 1, 2024, the sentencing hearing was concluded. The court again reviewed the charges to which Karpovitch had pled:
THE COURT: On the 22-1158 you were caught with crack, meth, pills and a scale; 23-550 meth; 23-1022 heroin and meth; 23-794 meth, crack and powder cocaine [Aggravated Possession of Drugs]; 23-1009 heroin, crack, scale with residue, 400 in cash, $263.00, $25.00 in cash; 23-1133 8.9 grams of crack, 22.2 grams of baking soda, I can‘t imagine what that‘s for, 23.8 grams of cocaine, 2.4 grams of meth, a digital scale and a glass measuring cup [Possession of Cocaine]. I can‘t imagine what the baking soda, the scale and the measuring cup was for?
THE DEFENDANT: Turning cocaine into smokable crack.
THE COURT: What was the scale for?
THE DEFENDANT: For making sure I purchased, I got what I purchased and for if I attempted to sell something that I gave them what they paid for.
THE COURT: And what was the glass measuring cup for?
THE DEFENDANT: For turning powder cocaine into crack.
THE COURT: So I think we had a discussion on February 1st about the scale and this is the first time you told me to make sure what the amount you were selling was correct.
THE DEFENDANT: Sure.
THE COURT: You didn‘t tell me that last time.
THE DEFENDANT: Cause I‘m a fricking liar.
{7} On September 12, 2024, Karpovitch filed Motions for Leave to File a Delayed Appeal which were granted. On appeal, he raises the following assignments of error:
- [1.] The Trial Court Erred in Imposing Consecutive Sentences.
- [2.] Appellant‘s sentences are contrary to law because they were based on impermissible sentencing considerations and because he was denied his constitutional right to be sentenced by a neutral decision maker.
- [3.] The trial court erred in failing to notify appellant of the total aggregate sentence imposed and in failing to provide him with all of the Reagan Tokes notifications required by
R.C. 2929.19(B)(2) . - [4.] The trial court erred in imposing a fine in Case No. 23 CR 1133 pursuant to
R.C. 2929.18(B) , or in the alternative, appellant was denied his constitutional right to the effective assistance of counsel by failing to properly file an affidavit of indigency in that case.
{8} Under the first assignment of error, Karpovitch argues that the record does not support the findings necessary to impose consecutive sentences.
{9} “The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentencing court.”
{10} The default rule in Ohio is that “a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States.”
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to
the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{11} “In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
First Assignment of Error: the Lower Court Made the Necessary Findings to Impose Consecutive Sentences
{12} Karpovitch does not claim that the sentencing court failed to make any of the necessary findings to impose consecutive sentences, rather, his argument is that the record does not support the court‘s findings. Karpovitch asserts that the “findings of necessity and proportionality” are unsupported in light of the following: he has never been
{13} Karpovitch‘s arguments do not undermine the sentencing court‘s findings with respect to necessity and proportionality. Nothing in the statute suggests that the necessity and proportionality analysis is different for drug abuse charges as opposed to violent crimes. Karpovitch‘s criminal record as an adult goes back to 1997 (he was forty-five at the time of sentencing). His claim to have been clean for six of these twenty-five years is not particularly significant (and may only reflect a period of time when he avoided new charges). The number of pending charges, the amount and nature of the drugs involved, and the facts that Karpovitch manufactured and sold drugs do not support his representation of himself as a “standard issue drug addict.” When shown leniency to obtain medical treatment, Karpovitch incurred additional charges rather than receiving treatment. Finally, necessity and proportionality are not only measured against the need to protect the public from future crime (or allow the offender to receive treatment) but also to punish the offender to a degree commensurate with the seriousness of his conduct. In these respects, the record fully supports the court‘s necessity and proportionality findings.
{14} With respect to the findings under
{15} In the present case, the sentencing court found that “some of these offenses were committed while other cases were pending.” Karpovitch maintains that, although some of the offenses were committed while other cases were pending, “he did not commit the offenses at issue in this appeal while awaiting trial or sentencing.” Brief of Appellant at 15. The State counters that, in Lake County Court of Common Pleas Case No. 22-CR-001158, Karpovitch was charged with and pled guilty to Possession of Cocaine and Illegal Manufacture of Drugs. These charges were originally filed in Mentor Municipal Court on October 4, 2022, on which date Karpovitch was arraigned and entered a plea of not guilty. The case was subsequently bound over to common pleas court and Karpovitch was not sentenced on these charges until March 1, 2024 (at the same hearing he was sentenced on the charges which are the subject of the present appeal). Accordingly, Karpovitch was “awaiting trial” on these charges for the purposes of
First Assignment of Error: the Lower Court Performed the Proper Analysis for the Imposition of Consecutive Sentences
{16} Finally, Karpovitch argues that the trial court did not engage in the requisite analysis in imposing consecutive sentences under State v. Glover, 2024-Ohio-5195. In Glover, different majorities of the Ohio Supreme Court rejected the proposition “that an appellate court should not ‘focus on a defendant‘s aggregate prison term when reviewing consecutive sentences‘” but affirmed the proposition that “a court of appeals may not ‘substitute its judgment for that of the trial court’ when reviewing a sentence under the appellate-review statute.” Id. at ¶ 41. Karpovitch construes Glover to mean “that the aggregate term of imprisonment must be considered when imposing and reviewing consecutive sentences.” Thus, it is not sufficient for the sentencing court to be aware of the total sentence imposed, “[r]ather, the aggregate sentence must be considered in the specific context of the
{17} In State v. Billings, 2024-Ohio-6000 (11th Dist.), this Court interpreted the implications of Glover as follows:
Because four justices in Glover seem to agree that an appellate court should consider or “focus” on a defendant‘s aggregate prison term when reviewing consecutive sentences (Fischer, J., Stewart, J., Donnelly, J., and Brunner, J.), we must somehow assess the aggregate term. In State v. Jones, 2020-Ohio-6729, ¶ 39, the Supreme Court of Ohio concluded that
R.C. 2953.08(G)(2) does not permit a reviewing court to independently weigh the evidence and/or substitute its judgment for that of the trial courtas it relates to individual sentences imposed pursuant to R.C. 2929.11 andR.C. 2929.12 . Still, because four justices in Glover determined an appellate court should focus on the aggregate prison term when reviewing “stacked,” individual sentences, this assessment would necessarily require the reviewing court to take into account (or evaluate) each individual sentence that contributes to the aggregate. An exercise which we, as an appellate court, are statutorily unable to do. It is accordingly unclear how an appellate court might have any substantive input on the aggregate term of imprisonment issued by a trial court. This is a conundrum. Without more guidance, it is therefore equally unclear what a reviewing court‘s role would involve other than to assess whether the trial court focused upon the aggregate term of imprisonment in the consecutive sentencing process.
{18} We find no deficiency in the sentencing court‘s analysis in light of Glover. Simply by following, as the court did here, the statutory procedure for imposing consecutive sentences, a sentencing court necessarily considers the aggregate sentence in the context of the
{19} Moreover, we find the situation in Glover to be wholly inapposite. The aggregate sentence in Glover was sixty years, over five times the maximum of any individual sentence that could have been imposed (absent gun specifications). Here, Karpovitch received a twenty-four-month sentence for third-degree Aggravated Possession of Drugs where the maximum sentence was thirty-six months and a six-year sentence for first-degree Possession of Cocaine where the maximum sentence was
{20} The first assignment of error is without merit.
Second Assignment of Error: Judicial Bias and Due Process of Law
{21} In the second assignment of error, Karpovitch claims that his sentence was the product of judicial bias and emotion rather than consideration of the appropriate sentencing factors.
{22} “It is well settled that a criminal trial before a biased judge is fundamentally unfair and denies a defendant due process of law.” State v. LaMar, 2002-Ohio-2128, ¶ 34. The Supreme Court of Ohio has “described judicial bias as ‘a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.‘” Id., quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph four of the syllabus.
Second Assignment of Error: the Lower Court Did Not Demonstrate Judicial Bias
{24} Karpovitch “submit[s] that the trial court‘s sentence was an emotional response to, inter alia, comments made by Appellant and his counsel it found offensive, his animosity toward Appellant, and his view and frustration with the prison system based on anecdotal stories and extrajudicial sources,” and, as such, it was contrary to law. Brief of Appellant at 20-21.
{25} Below are a sampling of comments from the transcript of the February 1, 2024 hearing relied upon by Karpovitch:
THE COURT: What did you mean when you told Miss Wehagen in regards to these offenses when advised you did not feel bad about this; what did you mean?
...
THE DEFENDANT: I don‘t feel like I committed crimes, not any drugs. I feel like I‘m using drugs, with all due respect I don‘t mean to disrespect the Court in any fashion, I didn‘t hurt anybody, I never stole from nobody.
...
THE COURT: So you think, in essence what you‘re telling me is because the state legislature determined it‘s illegal, so what ... it ain‘t harming nobody so why should you care, that‘s why you don‘t feel bad about it?
THE DEFENDANT: It‘s not really that I just, so if an adult makes a decision to partake in drug use, I mean doesn‘t the burden of use or abuse, doesn‘t it fall on that individual? Look, I don‘t have --
THE COURT: Well, I think it falls on these four sitting back here too, right? [Indicating family who spoke on Karpovitch‘s behalf.]
THE DEFENDANT: It could.
THE COURT: Maybe when you‘re going 85 miles per hour or more down Route 2 darting in and out of traffic, maybe that has an impact on other people too; you think so?
THE DEFENDANT: Yeah. Yes, Your Honor.
THE COURT: So if you quit being so God damn selfish maybe you can see the bigger picture. ... Maybe cause the whole tone of you in this presentence report and as you stand here is woe is me you know because the cops went out to get me and I really didn‘t do anything and I don‘t feel bad about anything, that‘s what I get from you.
...
MR. PETERSON: You see I‘ve spent a lot of time with Jerry over what you‘re talking about and what he feels is that he‘s addicted to drugs. He knows he‘s addicted and he feels that because of that disease that he has that he should, I don‘t want to say should not be prosecuted because I told him it‘s against the law, you can‘t do that but he‘s been fighting that his whole life but it‘s so hard for him to see why he should be punished for a disease and I may not be saying that right, I don‘t know, maybe Jerry could say it better than me but I think that‘s the attitude that I‘m getting from him not only today but in the past. He just feels that he‘s got this illness so why am I here, why am I being punished for it and not in a hospital or something like that and I don‘t want judge to --
THE COURT: You know why, I mean do you want to know why?
MR. PETERSON: Yeah.
THE COURT: All right. Because he‘s part of the problem. ... A big part of the problem, okay. So I‘m sick of this woe is me nonsense, okay, because he‘s just using drugs. ... Every God damn day out here it‘s destroying what‘s going on but nobody should be responsible for it; is that what we‘re all saying here?
...
MR. PETERSON: Yeah, I understand how you feel, I really do. I don‘t know what the damn answer is, I really don‘t know what the answer is. ... I really never met a client like this that feels the way he does. You know I‘ve been doing this longer than you actually and I‘ve had so many so many drug cases, this is the first time I‘ve come across an attitude like this. You know what we are going to do, we‘re going to send him to prison, he‘s going to get out and do the same thing.
THE COURT: Well, that‘s up to him that‘s not up to me.
MR. PETERSON: No, you‘ve got to send him to prison, maybe that would help him.
THE COURT: You know what‘s going to happen when he goes to prison? ... Because of the ineptness of the governor and attorney general and Department of Rehabilitation and Corrections he‘ll go the first day and get the ability to use drugs every day he‘s there because they won‘t do their job, okay. Now he can either do that or he cannot do that. So this nonsense that sending him to prison is not going to do no good, that‘s up to him that‘s not up to me. It‘s not even up to DeWine or his lackey at the Department of Corrections, he determines what he‘s going to do. So don‘t tell me that sending him to prison is going to do no good cause he‘s going to do the same thing when he comes out, that‘s up to him not up to me. ... That‘s the dumbest thing I‘ve ever heard, dumbest thing I‘ve ever heard.
...
THE DEFENDANT: Your Honor, I‘m going to learn a lesson today whether I go to prison or not I‘m going to learn a lesson.
THE COURT: See, I don‘t know whether you‘re going to learn a lesson because what you‘re telling me it‘s really [none] of society‘s business it‘s your business. My guess is you‘re going to come out and do the same thing because it‘s nobody‘s God damn business.
THE DEFENDANT: I did struggle with that. No, sir, Your Honor.
THE COURT: Then maybe go to a continent on Africa where everybody is doing whatever they want to then nobody will bother you, okay, maybe that‘s the solution.
{26} At the subsequent hearing on March 1, 2024, the sentencing court made the following statement:
THE COURT: I‘ll tell you what, I was sick of it on February 1st and I‘m sick of it now, okay, because everything that you say, everything that you do revolves around you playing the part of the hapless drug addict who can‘t do anything about it and I‘m sick and tired of it. The reason that you don‘t do anything about it is because you don‘t do anything about it. In the last, in the last two days two separate cases I‘ve had two young ladies that were terrible, terrible heroin addicts who‘ve been off it for the space of about four or five years so what they did was they did something about it. You don‘t want to do anything about it. You like to wallow in your own self pity. That‘s what you do best. Then you come here and tell me how mad you were last week when I revoked your bond and then how all of a sudden Billy [from AA] came in and how you see the light, that‘s nonsense. Go on, roll your eyes and shake your head, I don‘t care, okay, cause you‘ve earned the position you‘re in ... which is for me to never believe another word you ever say, you‘ve earned that. ... And I have observed and concluded that you‘re the ultimate con man.
{27} We do not find that the foregoing demonstrates that the sentencing court was biased against Karpovitch or his attorney or that the sentence imposed was the product of emotion rather than consideration of the appropriate sentencing factors. Certainly, the court expressed its opinions forcefully but the opinions themselves were responsive to the positions stated by Karpovitch and his attorney and did not betray any particular ill-will or animus against Karpovitch or his attorney. It should especially be emphasized that neither the court‘s statements nor actions indicate that it had prejudged
{28} The second assignment of error is without merit.
Third Assignment of Error: Reagan Tokes Notifications
{29} Under the third assignment of error, Karpovitch argues that the sentencing court failed to advise him at sentencing of the total aggregate sentence imposed and failed to provide him with the required Reagan Tokes notifications. We agree in part.
{30} In the present case, Karpovitch was sentenced to a definite minimum term of six years for Possession of Cocaine which constitutes a qualifying felony of the first degree. Ohio‘s indefinite sentencing statute provides:
The court imposing a prison term on an offender pursuant to division (A)(1)(a) or (2)(a) of section
2929.14 of the Revised Code for a qualifying felony of the first or second degree shall sentence the offender, as part of the sentence, to the maximum prison term determined under division (B) of this section. The court shall impose this maximum term at sentencing as part of the sentence it imposes under section2929.14 of the Revised Code, and shall state the
minimum term it imposes under division (A)(1)(a) or (2)(a) of that section, and this maximum term, in the sentencing entry.
{31} The relevant formula for determining the maximum prison term in the present case is the following:
If the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree, and if the court orders that some or all of the prison terms imposed are to be served consecutively, the court shall add all of the minimum terms imposed on the offender under division (A)(1)(a) or (2)(a) of section
2929.14 of the Revised Code for a qualifying felony of the first or second degree that are to be served consecutively and all of the definite terms of the felonies that are not qualifying felonies of the first or second degree that are to be served consecutively, and the maximum term shall be equal to the total of those terms so added by the court plus fifty per cent of the longest minimum term or definite term for the most serious felony being sentenced.
Third Assignment of Error: the Lower Court Failed to State the Minimum and Maximum Terms as Required by R.C. 2929.144(C)
{32} Applied to the present circumstances, Karpovitch‘s minimum term is eight years – six years (mandatory) for Possession of Cocaine to be served consecutively with two years for Aggravated Possession of Drugs. The maximum term is eleven years – eight years plus three years (being half of the longest minimum term). Contrary to
{33} The State argues that there was compliance with
{34} This Court has previously rejected a similar argument regarding the aggregate nature of the maximum and minimum terms for the purposes of the Reagan Tokes law. “Under the Reagan Tokes Act, the maximum term imposed is not offense specific.” State v. Miles, 2020-Ohio-6921, ¶ 26 (11th Dist.). Rather, the trial court is required “to aggregate the minimum and definite consecutive terms imposed for each offense ... in order to calculate the overall maximum term.” Id. In Miles, “it [was] apparent from [the sentencing] entries and the transcript of the sentencing hearing that the trial court did not properly advise Miles of the minimum terms ... and did not properly calculate and advise Miles of his maximum prison term.” Id. Inasmuch as Reagan Tokes is not case as well as offense specific, the “matter [should be] remanded for a limited resentencing hearing consistent with this opinion.” Id. at ¶ 31.
{35} We acknowledge that Miles, unlike the present case, involved consecutive sentences resulting from a single prosecution. We further acknowledge that the interpretation and application of the Reagan Tokes law has been described as
Third Assignment of Error: Contrary Authority from the Eighth District Is Not Persuasive
{36} The Eighth District Court of Appeals has construed
{37} Second, the Eighth District purports to rely on the “plain language” of the statute to reach this conclusion. In fact, the Eighth District‘s analysis relies on considerations extraneous to these provisions, such as what constitutes a case file or final order, to undermine their plain meaning. Finally, the distinction made by the Eighth District between consecutive sentences imposed in a single case as opposed to multiple cases has been rejected in the context of
{38} In State v. Bond, 2022-Ohio-1487 (8th Dist.), the Eighth District held that ”
term stated in the sentencing entry may include prison terms imposed in other cases in the calculation“). We do not find the Eighth District‘s reasoning for not applying
{39} At the start, we note that the implications of whether
R.C. 2929.144(B)(2) Does Not Make a Distinction Between Indefinite Sentences Belonging to the Same or Different Cases
{40} Ironically, the Eighth District relies on the same “plain language” of the statute to conclude that
[i]f the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree[, i.e., an indefinite sentence], and if the court orders that some or all of the prison terms imposed are to be served consecutively.
Under this court‘s reading, the statute clearly makes no distinction at all between sentences imposed in a single case or in multiple cases. Rather, the material circumstances are whether consecutive sentences are being imposed and whether one of the sentences is an indefinite sentence. The Eighth District reads the same language and concludes “[n]othing in
{41} The plain language of
{42} The majority opinion in Bond emphasizes the fact “that two separate cases must have two separate journal entries to comply with
If the legislature had intended to allow courts to include indefinite prison terms in separate cases when calculating consecutive sentence under
R.C. 2929.144(B)(2) , it could have done so, but it did not. In accordance with Baker andCrim.R. 32(C) , each case has its own sentencing entry, and the trial court may order the sentences in two or more cases to be served consecutively. But the fact that the trial court in this case ordered the concurrent sentences within each case to be served consecutively does not change the calculation of the maximum prison term imposed in each individual case.
R.C. 2929.14(C)(4) Which Has Substantially Similar Language to R.C. 2929.144(B)(2) Does Not Make a Distinction for Consecutive Sentences in Different Cases
{43} As noted above, we do not find compelling the Eighth District‘s claim that, without express legislative authorization, the plain language of
{44} If the plain language of
{45} Just as critical as the question why would the statutes be construed differently is the question why should they be construed differently. Is there any reason why the legislature might want indefinite consecutive sentences imposed within a single case to be served differently from indefinite consecutive sentences imposed on different
Third Assignment of Error: Whether the Lower Court Failed to Provide the Notifications Required by R.C. 2929.144(C)
{46} Karpovitch‘s second argument under this assignment of error is that the sentencing court failed to give the following Reagan Tokes notifications at the sentencing hearing:
At the sentencing hearing, the court, before imposing sentence, shall do all of the following: ... If the prison term is a non-life felony indefinite prison term, notify the offender of all of the following:
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) 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.
Now on your definite minimum there is a presumption you should be released after that minimum term. Whether you serve any of the additional up to the indefinite maximum is a determination made by the Department of Corrections based on your behavior and activity while you are in prison.
{48} The State relies on several cases which have held that the indefinite sentencing advisements do not have to be given verbatim in the statutory language and have affirmed similarly abbreviated advisements. State v. Lorenzana, 2024-Ohio-2900, ¶ 86 (8th Dist.); State v. Moore, 2024-Ohio-4536, ¶ 15 (3d Dist.).
{49} Given the determination that the sentencing court failed to comply with
{50} To the extent indicated above, the third assignment of error is with merit.
Fourth Assignment of Error: Mandatory Fines for Possession of Drugs
{51} In the fourth and final assignment of error, Karpovitch argues that the sentencing court erred by imposing a mandatory fine as part of his sentence for
{52} The State maintains that the imposition of the mandatory fine for Possession of Cocaine was not contrary to law inasmuch as “[a]n affidavit was never filed with the trial court alleging that Appellant is unable to pay the mandatory fine.” Brief of Appellee at 16-17; see State v. Gipson, 80 Ohio St. 3d 626 (1998), syllabus (“[t]he requirement ... that an affidavit of indigency must be ‘filed’ with the court prior to sentencing means that the affidavit must be delivered to the clerk of court for purposes of filing and must be indorsed by the clerk of court, i.e., time-stamped, prior to the filing of the journal entry reflecting the trial court‘s sentencing decision“).
{53} Karpovitch argues in the alternative that “[t]he failure to file an affidavit attesting to a defendant‘s indigency establishes ineffective assistance of counsel when
{54} The fourth assignment of error is with merit.
{55} For the foregoing reasons, Karpovitch‘s sentences are affirmed in part and reversed in part. This matter is remanded for the purposes of a limited resentencing hearing to provide the indefinite sentencing notifications in accordance with
JOHN J. EKLUND, J., concurs,
MATT LYNCH, J., concurs in part and dissents in part, with a Dissenting Opinion.
{56} I dissent from the majority‘s determination that the trial court was required to advise Karpovitch of the total aggregate prison sentence imposed in his multiple, unconsolidated criminal cases. In all other respects, I concur with the majority‘s judgment and opinion.
{57} The trial court held a joint sentencing hearing on six unconsolidated cases pending against Karpovitch. Two of these sentences, those before us on appeal, were ordered to be served consecutively. (The sentences in the other four cases were ordered to run concurrently.)
{58} In Case No. 794, for Aggravated Possession of Drugs, a (nonqualifying) felony of the third degree, the trial court imposed a definite sentence of 24 months in prison.
{59} In Case No. 1133, for Possession of Cocaine, a (qualifying) felony of the first degree, the trial court imposed an indefinite sentence of a minimum of six years to a maximum of nine years in prison.
{60} At sentencing, the trial court advised that the 24-month sentence in Case No. 794 would be followed by the six- to nine- year sentence in Case No. 1133. Defense counsel asked, “So it‘s an 8 year total?” The court answered, “Correct.” The court issued a separate sentencing entry in each unconsolidated case.
{61} Under Ohio‘s indefinite sentencing statute (“the Reagan Tokes Law“), the court imposing a prison term for qualifying first- and second-degree felony offenses “shall sentence the offender, as part of the sentence, to the maximum prison term determined
{62} The majority concludes that under the Reagan Tokes Law the trial court was required, at sentencing, to impose an aggregate maximum term of eleven years and, in the sentencing entries, to state an aggregate minimum term of eight years and a maximum term of eleven years. In so holding, the majority presumes that
If the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree, and if the court orders that some or all of the prison terms imposed are to be served consecutively, the court shall add all of the minimum terms imposed on the offender under [
R.C. 2929.14(A)(1)(a) or(2)(a) ] for a qualifying felony of the first or second degree that are to be served consecutively and all of the definite terms of the felonies that are not qualifying felonies of the first or second degree that are to be served consecutively, and the maximum term shall be equal to the total of those terms so added by the court plus fifty per cent of the longest minimum term or definite term for the most serious felony being sentenced.
The majority rejects the State‘s argument that the two cases remained unconsolidated with a separate sentencing entry docketed for each case and, instead, concludes that the plain language of division (B)(2) speaks of the offender “being sentenced for more than
{63} However, nothing in
{64} The trial court held a joint sentencing hearing, but the cases remained unconsolidated. The court separately sentenced Karpovitch in each case and issued a separate sentencing entry for each case. Because the Reagan Tokes Law did not apply to the third-degree felony in Case No. 794, the trial court imposed a definite sentence of 24 months in prison. And because there was only one qualifying felony in Case No. 1133, the trial court imposed a minimum term of six years and applied
If the offender is being sentenced for one felony and the felony is a qualifying felony of the first or second degree, the maximum prison term shall be equal to the minimum term imposed on the offender under [
R.C. 2929.14(A)(1)(a) or(2)(a) ] plus fifty per cent of that term.
{65} I would hold that the trial court‘s decision to apply
{66} In addition to the plain language of the statute, I find support for this outcome from two cases decided by the Eighth Appellate District: Bond, 2022-Ohio-1487 (8th Dist.) and State v. Perez, 2023-Ohio-83 (8th Dist.).
{67} In Bond, the defendant pleaded guilty to multiple offenses in multiple unconsolidated cases. In Case One, the trial court imposed a definite sentence of nine months on a non-qualifying felony to run concurrently with an indefinite sentence of four to six years on a qualifying felony. In Case Two, the trial court imposed a definite sentence of 27 months on a non-qualifying felony to run concurrently with an indefinite sentence of four to six years on a qualifying felony. The trial court ordered the sentences in these two cases to be served consecutively and consecutive to an additional four years for firearm specifications. Bond at ¶¶ 3-6. Although not noted in the opinion, this amounts to an aggregate prison term of 12 years to 16 years.
{68} On appeal, the defendant argued that the trial court failed to comply with
We agree that when one or more qualifying felonies are ordered to be served consecutively,
R.C. 2929.144(B)(2) only allows the court to impose fifty percent of the longest minimum term for the most serious felony being sentenced and does not allow the court to impose consecutive indefinite prison terms. However,R.C. 2929.144(B)(2) only applies to consecutive prison terms imposed within a single case. Nothing inR.C. 2929.144(B)(2) authorizes the court to use an indefinite prison term imposed on a qualifying felony in one case to calculate the indefinite prison term on a qualifying felony in a different case.R.C. 2929.144(B) requires the court imposing a prison term on an offender underR.C. 2929.14(A)(1)(a) or(2)(a) for a felony of the first or second degree to determine “the maximum prison term that is part of the sentence.”R.C. 2929.144(C) further requires the court to “impose this maximum term at sentencing as part of the sentence it imposes under [R.C. 2929.14 ],” and to state this maximum “in the sentencing entry.”In State v. Baker, 2008-Ohio-3330, the Ohio Supreme Court held that a judgment of conviction is not a final, appealable order under
R.C. 2505.02 unless it complies withCrim.R. 32(C) . Id. at ¶ 10. In accordance withCrim.R. 32(C) , the court in Baker explained that “[o]nly one document can constitute a final appealable order.” Id. at ¶ 17. And, the final order in a criminal case must “be reduced to writing signed by the judge and entered by the clerk.” Id., quoting State v. Tripodo, 50 Ohio St.2d 124 (1977). The journal entry must include all of the convictions in the case as well as the sentences imposed on each of the convictions in the case. Baker at syllabus. It follows, therefore, that two separate cases must have two separate journal entries in order to comply withCrim.R. 32(C) and Baker.Nothing in
R.C. 2929.144(C) suggests that the maximum term stated in the sentencing entry may include prison terms imposed in other cases in the calculation. If the legislature had intended to allow courts to include indefinite prison terms in separate cases when calculating consecutive sentence underR.C. 2929.144(B)(2) , it could have done so, but it did not. In accordance with Baker andCrim.R. 32(C) , each case has its own sentencing entry, and the trial court may order the sentences in two or more cases to be served consecutively. But the fact that the trial court in this case ordered the concurrent sentences within each case to be served consecutively does not change the calculation of the maximum prison term imposed in each individual case.The trial court sentenced Bond on each count and imposed a maximum prison term as part of the sentence in each case, CR-19-643079-
B and CR-19-643142-A. The court then ran the sentences within each case concurrently. Therefore,
R.C. 2929.144(B)(3) rather than(B)(2) applied to determine the maximum prison term imposed as part of the sentence. In each case, the court sentenced Bond to an indefinite prison term of four to six years in addition to the sentence imposed on the attendant firearm specifications. After making the necessary findings, the trial court ordered the concurrent sentences in each separate case to be served consecutively. The trial court also imposed a sentence of six months for receiving stolen property in CR-19-639466-A, which was run concurrently with the other two cases.The court issued separate sentencing entries in each case as required by Baker and
Crim.R. 32(C) . And, in accordance withR.C. 2929.144(C) the court stated the minimum term imposed underR.C. 2929.14(A)(1)(a) or(2)(a) and the maximum term determined pursuant toR.C. 2929.144 in each case. We, therefore, find that the trial court complied with all applicable sentencing provisions and did not commit plain error.
Bond, 2022-Ohio-1487, at ¶¶ 13-17.
{70} In Perez, the defendant also pleaded guilty to multiple offenses in multiple unconsolidated cases. The trial court imposed indefinite prison terms on one qualifying felony in each of three separate cases: Case A, four to six years; Case B, two to three years; Case C, five to seven and one-half years. The trial court ordered the sentences in these three cases to be served consecutively and consecutive to an additional four years for firearm specifications. As noted by the Eighth District, this amounted to an aggregate sentence of 15 years to a maximum of 20.5 years. Perez, 2023-Ohio-83, at ¶ 18 (8th Dist.).
{71} On appeal, the defendant argued that the trial court erred by imposing indefinite prison terms on one qualifying felony in each of the three cases instead of imposing an indefinite prison term on only one qualifying felony overall. Id. at ¶ 33. The essence of his argument was that the trial court should have joined the three cases for purposes of calculating his maximum term, which would have resulted in an aggregate
{72} I find Bond and Perez persuasive authority to the case at hand, whereas the only authority relied on by the majority, State v. Miles, 2020-Ohio-6921 (11th Dist.), is inapposite. In Miles, a panel of this court noted that the maximum term imposed under the Reagan Tokes Law is not “offense specific,” meaning that the court must aggregate the minimum and definite consecutive terms imposed for each offense to then calculate the maximum term. Id. at ¶ 26. The majority extrapolates from Miles that because the Reagan Tokes Law is not offense specific, it is also not case specific. However, Miles involved multiple consecutive sentences within a single case, rather than multiple unconsolidated cases. Thus, the majority‘s application of that opinion is misplaced here.
{73} Surely, the majority would agree with this writer that had the trial court in this case held two separate hearings on two different days, the court would not have been required to state the aggregate minimum and maximum sentence for these two unconsolidated cases. And, presumably, the majority would not object had the trial court held two sentencing hearings separated only by enough time for the court to gavel the first hearing concluded and the second hearing commenced. Thus, with this decision,
{74} For these reasons, I respectfully dissent from the majority‘s opinion on this issue.
For the reasons stated in the Opinion of this court, the judgments of the Lake County Court of Common Pleas are affirmed in part and reversed in part. This matter is remanded for the purposes of a limited resentencing hearing to provide the indefinite sentencing notifications in accordance with
Costs to be taxed against the parties equally.
JUDGE SCOTT LYNCH
JUDGE JOHN J. EKLUND, concurs
JUDGE MATT LYNCH, concurs in part and dissents in part, with a Dissenting Opinion
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.