[Cite as State v. Adeshina, 2023-Ohio-3654.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29706 : v. : Trial Court Case No. 2022 CR 00875 : OLALEKAN ADEKUNLE ADESHINA : (Criminal Appeal from Common Pleas : Court) Appellant : :
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OPINION
Rendered on October 6, 2023
KRISTIN L. ARNOLD, Attorney for Appellant
MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee
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WELBAUM, P.J.
{¶ 1} Appellant, Olalekan Adekunle Adeshina, appeals from his conviction in the
Montgomery County Court of Common Pleas after pleading guilty to one fifth-degree-
felony count of attempt to commit gross sexual imposition. In support of his appeal,
Adeshina claims that the trial court erred by overruling his motion to suppress statements
he made during a police interview. Adeshina also claims that his sentence was contrary -2-
to law because the trial court erroneously imposed a mandatory five-year term of post-
release control and because the trial court did not address whether it was imposing certain
discretionary fines as part of his sentence.
{¶ 2} The State concedes that the trial court erroneously imposed a mandatory
five-year term of post-release control for Adeshina’s offense. We agree that the trial
court erred in that regard, but we find no error with regard to the trial court’s failure to
address the discretionary fines during sentencing. The omission of any reference to
those fines at the sentencing hearing and in the judgment entry indicates that no fine was
imposed. We also find that, because Adeshina entered a guilty plea, he waived his right
to challenge the trial court’s ruling on his motion to suppress.
{¶ 3} The post-release control portion of Adeshina’s sentence will be reversed and
the matter will be remanded to the trial court for the sole purpose of resentencing
Adeshina to the proper term of post-release control. The judgment of the trial court will
be affirmed in all other respects.
Facts and Course of Proceedings
{¶ 4} On April 13, 2022, a Montgomery County grand jury returned an indictment
charging Adeshina with two first-degree-felony counts of rape in violation of R.C.
2907.02(A)(2) and two fourth-degree-felony counts of gross sexual imposition in violation
of R.C. 2907.05(A)(1). Adeshina entered a plea of not guilty to all the charged offenses
and then filed a motion to suppress. In his motion to suppress, Adeshina sought to
suppress statements he made during an interview with the police on January 18, 2022. -3-
{¶ 5} On June 27, 2022, the trial court held a hearing on Adeshina’s motion to
suppress; it thereafter overruled the motion. Adeshina then entered a plea agreement
with the State whereby he agreed to plead guilty to one amended fifth-degree-felony
count of attempt to commit gross sexual imposition in violation of R.C. 2923.02(A)/R.C.
2907.05(A)(1). In exchange for Adeshina’s guilty plea, the State agreed to dismiss the
remaining counts of rape and gross sexual imposition.
{¶ 6} The trial court accepted Adeshina’s guilty plea to attempt to commit gross
sexual imposition and scheduled the matter for a sentencing hearing. During the
sentencing hearing, the trial court ordered Adeshina to serve 12 months in prison with a
mandatory five-year term of post-release control. The trial court also designated
Adeshina as a Tier I sex offender and ordered him to pay court costs.
{¶ 7} Adeshina now appeals from his conviction and raises three assignments of
error for review.
First Assignment of Error
{¶ 8} Under his first assignment of error, Adeshina challenges the trial court’s
decision overruling his motion to suppress. However, by entering a guilty plea, Adeshina
waived his right to appeal the trial court’s ruling on his motion. It is well established that:
“A plea of guilty is a complete admission of guilt. Consequently, a guilty plea waives all
appealable errors, including a ruling on a motion to suppress, except to the extent that
the errors precluded the defendant from knowingly, intelligently, and voluntarily entering
his or her guilty plea.” (Citations omitted.) State v. Williams, 2d Dist. Montgomery No. -4-
27771, 2018-Ohio-2972, ¶ 4; State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97
N.E.3d 474, ¶ 15 (“[a] valid guilty plea by a counseled defendant * * * generally waives
the right to appeal all prior nonjurisdictional defects, including the denial of a motion to
suppress”).
{¶ 9} In this case, Adeshina does not claim that his guilty plea was not entered
knowingly, intelligently, and voluntarily. Moreover, at the plea hearing, the trial court
addressed the effect of Adeshina’s guilty plea on his ability to appeal pretrial rulings and
stated the following:
THE COURT: Do you understand that the effect [of] your guilty plea
today is a complete admission of your guilt as to this
lesser included offense, and you’re giving up your right
to appeal any pre-trial rulings?
THE DEFENDANT: Yes, ma’am.
Plea Hearing Tr. (Nov. 28, 2022), p. 10.
{¶ 10} On the record before us, Adeshina has waived his right to appeal the trial
court’s decision overruling his motion to suppress. Accordingly, Adeshina’s first
assignment of error is overruled.
Second Assignment of Error
{¶ 11} Under his second assignment of error, Adeshina contends that his sentence
is contrary to law because the trial court erroneously imposed a mandatory five-year term
of post-release control for his fifth-degree-felony offense of attempt to commit gross -5-
sexual imposition. The State concedes error in that regard, and we agree that the post-
release control portion of Adeshina’s sentence is contrary to law.
{¶ 12} When reviewing felony sentences, this court must apply the standard of
review contained in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 7-9. Pursuant to that statute, “an appellate court may
increase, reduce, or modify a sentence, or it may vacate the sentence and remand for
resentencing, only if it ‘clearly and convincingly’ finds either (1) that the record does not
support certain specified findings or (2) that the sentence imposed is contrary to law.”
State v. Mayberry, 2d Dist. Montgomery No. 27530, 2018-Ohio-2220, ¶ 41, quoting R.C.
2953.08(G)(2).
{¶ 13} “A sentence is not clearly and convincingly contrary to law where the trial
court ‘considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant
within the permissible statutory range.’ ” (Emphasis added.) State v. Grieco, 2d Dist.
Montgomery No. 28542, 2020-Ohio-6956, ¶ 21, quoting State v. Julious, 12th Dist. Butler
No. CA2015-12-224, 2016-Ohio-4822, ¶ 8. Accord State v. Curtis, 2d Dist. Miami No.
2021-CA-19, 2022-Ohio-1691, ¶ 21.
{¶ 14} As previously discussed, Adeshina claims that his sentence is contrary to
law because the trial court improperly imposed a mandatory five-year term of post-release
control for his fifth-degree-felony offense of attempt to commit gross sexual imposition.
R.C. 2967.28, the statute governing post-release control, provides that post-release
control is mandatory “for a felony of the first degree, for a felony of the second degree, -6-
for a felony sex offense, or for a felony of the third degree that is an offense of violence
and is not a felony sex offense[.]” R.C. 2967.28(B). Because Adeshina’s offense was
a fifth-degree-felony, post-release control was mandatory only if his offense qualified as
a felony sex offense. The mandatory term of post-release control for a felony sex offense
is five years. R.C. 2957.28(B)(1). “ ‘Felony sex offense’ means a violation of a section
contained in Chapter 2907 of the Revised Code that is a felony.” R.C. 2967.28(A)(3).
{¶ 15} Gross sexual imposition is a felony that is codified under R.C. 2907.05, and
thus it would be considered a “felony sex offense” because it is a violation of Chapter
2907 of the Revised Code. Adeshina, however, was convicted of attempt to commit
gross sexual imposition in violation of the general attempt statute, R.C. 2923.02(A). That
statute provides: “No person, purposely or knowingly, and when purpose or knowledge is
sufficient culpability for the commission of an offense, shall engage in conduct that, if
successful, would constitute or result in the offense.” R.C. 2923.02(A). “Whoever
violates [that] section is guilty of an attempt to commit an offense.” R.C. 2923.02(E)(1).
{¶ 16} In State v. Chatman, 2023-Ohio-1590, 214 N.E.3d 701 (2d Dist.), this court
was asked to determine whether a defendant convicted of attempted failure to comply
was subject to the same driver’s license suspension that is statutorily required when one
actually commits failure to comply in violation of R.C. 2921.331. See R.C. 2921.331(E).
When addressing that issue, this court noted that:
The Ohio Legislative Service Commission has explained that R.C.
2923.02 “is a general attempt statute which consolidates several specific
attempt provisions in former law, and, with three exceptions, establishes an -7-
attempt to commit any offense as an offense in itself. The exceptions are
an attempt to commit conspiracy, an attempt to commit a minor
misdemeanor, and an attempt to commit any offense which in itself is
defined as an attempt—in these cases, attempt is not an offense.”
(Emphasis sic.) Chatman at ¶ 9, quoting Legislative Service Commission Comments
following R.C. 2923.02.
{¶ 17} This court concluded that Ohio law did not authorize the trial court to impose
the driver’s license suspension on the defendant in Chatman because the defendant was
convicted under the general attempt statute, R.C. 2923.02(A), not the failure to comply
statute, R.C. 2921.331(B). Id. at ¶ 6-8. Accordingly, we found that attempted failure to
comply and failure to comply were distinct offenses, and that attempted failure to comply
fell outside the scope of the license suspension, which only applied to violations of R.C.
2921.331. Id. at ¶ 10-11, citing State v. Heidelberg, 2019-Ohio-2257, 138 N.E.3d 537
(6th Dist.) and State v. Brown, 2022-Ohio-3736, 199 N.E.3d 219 (8th Dist.).
{¶ 18} In reaching that conclusion, we distinguished the Supreme Court of Ohio’s
decision in State v. Taylor, 113 Ohio St.3d 297, 2007-Ohio-1950, 865 N.E.2d 37. In
Taylor, the Supreme Court addressed whether the mandatory sentencing provisions for
drug offenses in R.C. 2925.11 applied to a conviction for attempted possession of drugs.
Id. at ¶ 1. In answering that question in the affirmative, the Supreme Court noted that
the definition of “drug abuse offense” in R.C. 2925.01(G)(4) includes attempted drug
offenses. Id. at ¶ 11. It therefore concluded that “an attempted possession of drugs is
not a separate and distinct crime from possession of drugs, but rather is incorporated into -8-
the possession offense.” Id. at ¶ 16. The Supreme Court also found that R.C. 2925.11
is a specific drug-offense statute that describes, among other things, specific
punishments for drug possession offenses, and that it, being the more specific statute,
controlled over the general attempt statute. Id. at ¶ 14. Accordingly, the majority held
that the defendant was subject to the mandatory sentencing provisions of R.C. 2925.11.
Id. at ¶ 17.
{¶ 19} We found Taylor distinguishable from the scenario in Chatman because the
attempted possession of drugs offense in Taylor was incorporated by R.C. 2925.11,
whereas “the offense of attempted failure to comply with the order or signal of a police
officer [was] not delineated in or incorporated by R.C. 2921.331.” Chatman at ¶ 13, citing
Heidelberg at ¶ 20-21 and Brown at ¶ 17-18. Instead, we found that “attempted failure
to comply is a separate offense proscribed by R.C. 2923.02 and punishable under the
general felony-sentencing guidelines of the Revised Code.” Id.
{¶ 20} Like Chatman, the instant case is distinguishable from Taylor because
attempt to commit gross sexual imposition is not delineated in or incorporated by R.C.
2907.05 (the statute governing gross sexual imposition). Therefore, when relying on
Chatman, we find that attempt to commit gross sexual imposition is a separate offense
that falls under the general attempt statute, meaning that it is not a violation of Chapter
2907 of the Revised Code. Because attempt to commit gross sexual imposition is not a
violation of R.C. Chapter 2907, it does not qualify as a felony sex offense as defined in
R.C. 2967.28. Because attempt to commit gross sexual imposition is not a felony sex
offense, the mandatory five-year term of post-release control required by R.C. -9-
2967.28(B)(1) did not apply. Rather, R.C. 2967.28(C) applied since Adeshina’s offense
was a fifth-degree felony.
{¶ 21} Pursuant to R.C. 2967.28(C), “any sentence to prison for a felony of the * * *
fifth degree that is not subject to [R.C. 2967.28(B)(1)] shall include a requirement that the
offender be subject to a period of post-release control of up to two years after the
offender’s release from imprisonment, if the parole board * * * determines that a period of
post-release control is necessary for that offender.” Based on that statute, the trial court
should have imposed a discretionary term of up to two years of post-release control for
Adeshina’s offense. Therefore, the trial court’s decision to impose a mandatory five-year
term of post-release control was contrary to law.
{¶ 22} “When the sentencing court has jurisdiction to act, sentencing errors in the
imposition of postrelease control render the sentence voidable, not void, and the sentence
may be set aside if successfully challenged on direct appeal.” State v. Harper, 160 Ohio
St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 42. Here, there is no dispute that the trial
court had jurisdiction to act and that it improperly imposed post-release control.
Accordingly, Adeshina is entitled to have the post-release control portion of his sentence
set aside and to have a new sentencing hearing limited to the proper imposition of post-
release control. See State v. Heinzen, 2d Dist. Clark No. 2019-CA-65, 2022-Ohio-1341,
¶ 28.
{¶ 23} Adeshina’s second assignment of error is sustained.
Third Assignment of Error -10-
{¶ 24} Under his third assignment of error, Adeshina contends that his sentence is
contrary to law because the trial court did not address at the sentencing hearing or in its
judgment entry whether it was imposing certain fines that the trial court had mentioned
during his plea hearing. At the plea hearing, the trial court advised Adeshina that it could
impose a fine of up to $2,500, plus an additional fine of $50 to $100 for the rape crisis
fund. The parties do not dispute that the fines in question were discretionary and that
the trial court did not say anything about the fines during the sentencing hearing or in the
judgment entry.
{¶ 25} This court addressed a similar scenario in State v. Banks, 2d Dist.
Montgomery No. 20711, 2005-Ohio-4488. In Banks, the trial court sentenced the
appellant to 11 months in prison for a fifth-degree felony and did not make any order at
the sentencing hearing or in the judgment entry for the appellant to pay a fine as part of
his sentence. Id. at ¶ 1, 14-15. For some reason, the appellant believed that he was
required to pay a $2,500 fine and argued on appeal that the trial court had erred by failing
to state during his sentencing hearing that he was required to pay the fine. Id. at ¶ 14.
In light of this argument, “[w]e surmise[d] that Banks recall[ed] from his plea hearing that
the court could sentence him to financial sanctions, including a fine up to $2,500.”
(Emphasis sic.) Id. at ¶ 15.
{¶ 26} Because “ ‘[a] court of record speaks only through its journal and not by oral
pronouncement or mere written minute or memorandum’ ” and because there was no
journalized order requiring the appellant to pay a fine, we concluded that the appellant
was not subject to a fine. Id. at ¶ 16, quoting Schenley v. Kauth, 160 Ohio St. 109, 113 -11-
N.E.2d 625 (1953), paragraph one of the syllabus. Accordingly, we overruled Banks’s
claim that the trial court had erred by failing to impose the $2,500 fine at the sentencing
hearing. Id. at ¶ 17.
{¶ 27} The holding in Banks suggests that when a fine is not mentioned or ordered
in the journalized judgment entry, no fine is imposed, and that if no fine is imposed, the
fine need not be addressed at the sentencing hearing. Like Banks, the journalized
judgment entry in this case omitted any reference to the discretionary fines discussed at
the plea hearing. Accordingly, there was no order for Adeshina to pay any of those fines
and thus no need for the trial court to have discussed those fines at the sentencing
hearing. In summary, the trial court’s omission of any reference to the fines at the
sentencing hearing and in the judgment entry simply indicated that the trial court chose
not to impose any of the fines.
{¶ 28} The State has directed our attention to the Supreme Court of Ohio’s
decision in State v. White, 156 Ohio St.3d 536, 2019-Ohio-1215, 130 N.E.3d 247, and
argues that White is distinguishable from the present case. In White, the trial court had
the authority to impose a fine of up to $150 or up to 30 hours of community service for a
minor misdemeanor failure-to-control offense, but was not required to impose either. Id.
at ¶ 4. At sentencing, the trial court omitted any reference to a fine or community service
and only ordered the defendant to pay court costs, which are not considered part of the
sentence. Id. at ¶ 4-5.
{¶ 29} The defendant in White appealed his conviction, and the First District
dismissed the appeal for lack of a final, appealable order. Id. at ¶ 6. In so holding, the -12-
First District “observed that under Crim.R. 32(C) and [State v. Lester, 130 Ohio St.3d 303,
2011-Ohio-5204, 958 N.E.2d 142], a judgment of conviction must contain the fact of
conviction, the sentence, the judge’s signature, and the time stamp indicating the entry
upon the journal by the clerk of courts.” (Emphasis added.) Id. The First District
explained that it dismissed the appeal because “there was no sentence imposed on
[White] and thus, no conviction for the failure-to-control charge, and therefore, no final
appealable order.” Id.
{¶ 30} White appealed to the Supreme Court of Ohio, which ultimately affirmed the
First District’s decision dismissing the appeal. Id. at ¶ 2, 13-17. In doing so, the
Supreme Court stated that:
The entry’s silence regarding a monetary or community-service
sentence may imply that the court had exercised its discretion to decline to
impose a sentence. But implication is not enough. A trial court’s decision
to exercise its discretion not to impose a sentence should not be
communicated in the judgment of conviction passively—let alone
ambiguously—through suggestion or by implication.
Id. at ¶ 14.
{¶ 31} The Supreme Court went on to conclude that “[t]he trial court’s decision not
to impose a sentence must simply be clear in the entry.” Id. at ¶ 15. For example, the
Supreme Court found that “it would have been sufficient for the trial court to state in the
entry ‘no fine,’ ‘fine waived,’ ‘$0 fine,’ or similar language.” Id.
{¶ 32} Upon review, we agree with the State and find that the present case is -13-
distinguishable from White. White concerned a situation in which the trial court did not
impose any sentence on the defendant and did not make that decision clear in its
judgment entry. Unlike White, the trial court in this case clearly imposed a sentence: it
sentenced Adeshina to 12 months in prison and designated him a Tier I sex offender.
Accordingly, White’s discussion regarding the importance of a trial court’s clearly
conveying its decision not to impose any sentence is not applicable to the present case.
White is also distinguishable because it focused on a minor misdemeanor offense for
which the only possible sentence would have been the discretionary fine and/or
community service. Unlike White, the present case involved a felony conviction for which
there existed a wider range of potential sentencing options. For all the foregoing
reasons, White has no bearing on this case.
{¶ 33} Lastly, we note that Adeshina argued that the trial court’s failure to address
the discretionary fines at the sentencing hearing and in the judgment entry amounted to
plain error. In order to establish plain error, Adeshina must demonstrate that an obvious
error occurred and that there is a reasonable probability that said error resulted in
prejudice. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22;
State v. Parrish, 2d Dist. Clark No. 2022-CA-89, 2023-Ohio-2409, ¶ 29. In this case, the
trial courts’ failure to address the discretionary fines at the sentencing hearing and in the
judgment entry was not an obvious error, because that omission simply indicated that the
trial court decided not to impose any of the fines. Regardless, Adeshina cannot establish
that he was prejudiced by the trial court’s failure to mention the fines since such a failure
resulted in no fines being imposed. In other words, Adeshina cannot establish prejudice -14-
by virtue of not being fined by the trial court. Accordingly, Adeshina cannot establish
plain error.
{¶ 34} Adeshina’s third assignment of error is overruled.
Conclusion
{¶ 35} Having overruled Adeshina’s first and third assignments of error, and having
sustained Adeshina’s second assignment of error, the judgment of the trial court is
reversed with respect to the imposition of post-release control, and the matter is
remanded to the trial court for the sole purpose of resentencing Adeshina to post-release
control in a manner that is consistent with this opinion. In all other respects, the judgment
of the trial court is affirmed.
TUCKER, J. and EPLEY, J., concur.