State v. Devore

2025 Ohio 3164

• Court: Ohio Court of Appeals
• Decided: September 5, 2025
• Docket: 2025-CA-7
• Status: Published

Opinion

[Cite as State v. Devore, 2025-Ohio-3164.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : C.A. No. 2025-CA-7 Appellee : : Trial Court Case Nos. 2024 CR 133 C- v. : 13; 2024 CR 146 C-13 : DAVID NEAL DEVORE : (Criminal Appeal from Common Pleas : Court) Appellant : : FINAL JUDGMENT ENTRY & OPINION ...........

Pursuant to the opinion of this court rendered on September 5, 2025, the judgments

of the trial court are affirmed in part, reversed in part, and remanded for further proceedings

consistent with the opinion.

Costs to be paid 50% by Appellant and 50% by Appellee.

Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

serve notice of this judgment upon all parties and make a note in the docket of the service.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.

For the court,

RONALD C. LEWIS, JUDGE

HUFFMAN, J., and HANSEMAN, J., concur. -2- OPINION CHAMPAIGN C.A. No. 2025-CA-7

COLIN P. COCHRAN, Attorney for Appellant KARA N. RICHTER, Attorney for Appellee

LEWIS, J.

{¶ 1} Defendant-Appellant David Neal Devore appeals from judgments of the

Champaign County Court of Common Pleas, which convicted him on his guilty pleas of

aggravated possession of drugs, operating a vehicle under the influence, and possession of

drugs. For the following reasons, we affirm the judgments of the trial court in part and

reverse them in part, and remand solely for Devore to be resentenced in accordance with

R.C. 2929.19(B)(2)(c).

I. Facts and Course of Proceedings

{¶ 2} On September 4, 2024, a Champaign County grand jury indicted Devore in

Champaign C.P. No. 24 CR 113 on one count of aggravated possession of drugs, a third-

degree felony in violation of R.C. 2925.11(A); one count of aggravated possession of drugs,

a fifth-degree felony in violation of R.C. 2925.11(A); and one count of operating a vehicle

under the influence of alcohol, a drug of abuse, or a combination of them, a first-degree

misdemeanor in violation of R.C. 4511.19(A)(1)(a). These charges related to events that

allegedly occurred on August 24, 2024. Devore pleaded not guilty to all the charges, and

a jury trial was scheduled.

{¶ 3} On October 7, 2024, a Champaign County grand jury indicted Devore in

Champaign C.P. No. 2024 CR 146 on one count of possession of cocaine, a fifth-degree

felony in violation of R.C. 2925.11(A); five counts of aggravated possession of drugs, fifth- -3- degree felonies in violation of R.C. 2925.11(A); and three counts of possession of drugs,

fifth-degree felonies in violation of R.C. 2925.11(A). All nine counts included one-year

firearm specifications pursuant to R.C. 2941.141(A). These charges related to events that

allegedly occurred on October 2, 2024. Devore pleaded not guilty to all the charges, and a

jury trial was scheduled. Devore subsequently waived his right to prosecution by indictment

and consented to prosecution by bill of information in Case No. 2024 CR 146. Pursuant to

the bill of information, Devore was charged with one count of possession of LSD, a second-

degree felony in violation of R.C. 2925.11(A).

{¶ 4} The parties entered into a plea agreement to resolve both criminal cases.

Devore agreed to plead guilty to counts one and three in Case No. 2024 CR 113 and one

count of possession of LSD in Case No. 2024 CR 146. Devore also agreed to forfeit several

items contained in two Champaign County Sheriff’s Office Property Lists. In return, the

State agreed to (1) request dismissal of count two in Case No. 2024 CR 113 and the

remaining nine counts in Case No. 2024 CR 146; (2) not pursue additional charges against

Devore arising from the events of October 2, 2024; and (3) recommend that the sentences

imposed in Case Nos. 2024 CR 113 and 2024 CR 146 be run concurrently.

{¶ 5} On January 13, 2025, a plea hearing was held in which Devore pleaded guilty

to counts one and three in Case No. 2024 CR 113 and one count of possession of LSD in

Case No. 2024 CR 146. The trial court accepted Devore’s guilty pleas and found him guilty

of one count of aggravated possession of drugs and one count of operating a vehicle under

the influence in Case No. 2024 CR 113 and one count of possession of LSD in Case No.

2024 CR 146.

{¶ 6} Following a sentencing hearing, the trial court sentenced Devore in Case No.

2024 CR 113 to 24 months in prison on count one and 150 days in jail on count three. The -4- court ordered that the sentences run concurrently with each other for a total sentence of 24

months. In Case No. 2024 CR 146, the trial court sentenced Devore to a minimum term of

four years in prison to a maximum term of six years in prison. The court ordered that this

sentence run concurrently with the sentences imposed in Case No. 2024 CR 113. Devore

filed a timely notice of appeal from the judgments in both cases.

II. The Trial Court Failed to Provide One of the Required Notifications in R.C.

2929.19(B)(2)(c)

{¶ 7} Devore’s sole assignment of error states:

THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY

PROVIDE THE NOTIFICATIONS REQUIRED BY R.C. 2929.19(B)(2)(c).

{¶ 8} Devore was convicted of a third-degree felony, a first-degree misdemeanor, and

a second-degree felony. The Reagan Tokes Law (S.B. 201) requires sentencing courts to

impose indefinite prison sentences for felonies of the first or second degree that were

committed on or after the law’s effective date of March 22, 2019. The law specifies that the

indefinite sentences will consist of a minimum term selected by the sentencing judge from a

range of terms set forth in R.C. 2929.14(A) and a maximum term determined by formulas

set forth in R.C. 2929.144. The law also establishes a presumption that the offender will be

released at the end of the minimum term. R.C. 2967.271(B). The Ohio Department of

Rehabilitation and Correction (“the ODRC”), however, may rebut that presumption after

conducting a hearing and determining whether certain statutory factors are applicable.

R.C. 2967.271(C). If the presumption is rebutted, the ODRC may maintain the offender’s

incarceration beyond the minimum term for a reasonable period of time not to exceed the

maximum term imposed by the sentencing judge. R.C. 2967.271(D). -5- {¶ 9} At issue in this appeal is whether the trial court complied with R.C.

2929.19(B)(2)(c), which states the sentencing court shall notify the offender of all 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; -6- (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.

R.C. 2929.19(B)(2)(c)(i)-(v).

{¶ 10} The trial court is required to notify an offender of all the information set forth in

R.C. 2929.19(B)(2)(c) at the sentencing hearing in order to fulfill the requirements of the

statute. State v. Massie, 2021-Ohio-3376, ¶ 23 (2d Dist.). A trial court need not use the

precise wording of the statute, but it must convey the required information at the time of

sentencing. State v. Bradley, 2022-Ohio-2954, ¶ 13 (8th Dist.). If the trial court fails to do

so, then the sentence is contrary to law, and we must remand the matter to the trial court for

the sole purpose of resentencing in accordance with R.C. 2929.19(B)(2)(c). Massie at ¶ 23.

{¶ 11} Before we begin our analysis of whether Devore’s sentences are contrary to

law, we note that Devore did not object to his sentences at his sentencing hearing. An error

that was not called to the attention of the trial court at a time when the error could have been

avoided or corrected by the trial court is deemed forfeited unless there was plain error.

State v. Whitaker, 2022-Ohio-2840, ¶ 166, citing State v. Hunter, 2011-Ohio-6524, ¶ 152.

“A trial judge's failure to inform a defendant of all five R.C. 2929.19(B)(2)(c) notices at the

sentencing hearing [constitutes] plain error.” State v. Lawson, 2025-Ohio-934, ¶ 31 (5th

Dist.), citing State v. Price, 2024-Ohio-1641, ¶ 7-10 (4th Dist.).

{¶ 12} Relevant to the sole issue before us on appeal, the trial court stated the

following at the sentencing hearing:

The Court would advise you that it is rebuttably presumed that you’ll be

released upon service of the sentence of the expiration of the minimum term

imposed. And the Ohio Department of Rehabilitation and Correction may -7- rebut that presumption if it makes specified determinations at a hearing

regarding your conduct while confined, your rehabilitation, your threat to

society, your restrictive housing, if any, while confined, and your security

classification. And in that instance, they may maintain your incarceration after

expiration of the minimum prison term up to the maximum term.

The Court would advise you that DRC may make this specified

determination more than one time and may maintain your incarceration up to

that expiration of that maximum term. And they will tell you that you’ll have to

be released at the expiration of the maximum term.

Sentencing Tr. 21-22.

{¶ 13} Devore argues that the trial court did not fully and accurately inform him of the

requirements under R.C. 2929.19(B)(2)(c). In particular, Devore contends that the trial

court failed to inform him of the notification set forth in R.C. 2929.19(B)(2)(c)(iii) that “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 [R.C. 2967.271].”

Appellant’s Brief, p. 11. Therefore, Devore believes that the sentence he received is

contrary to law and that we should reverse the judgment of the trial court and remand the

matter for a new sentencing hearing in compliance with R.C. 2929.19(B)(2)(c).

{¶ 14} The State responds that “[t]he trial court’s advisement, taken in its totality,

sufficiently conveyed the required notifications pursuant to R.C. 2929.19(B)(2)(c).”

Appellee’s Brief, p. 4. According to the State, the trial court’s “failure to inform Appellant of

the reasonableness standard ODRC must use to determine the length of time to extend the

offender’s incarceration does not render Appellant’s sentence contrary to law” and “the trial -8- court conveyed all of the substantive notifications mandated by R.C. 2929.19(B)(2)(c).” Id.

at 5.

{¶ 15} It is undisputed that the trial court did not inform Devore that the length of time

the ODRC may maintain his incarceration after the expiration of the minimum term is the

amount of time the department “determines to be reasonable.” However, the court did

explain that the amount of time the department could maintain his incarceration could not

exceed his maximum prison term. Therefore, the narrow issue before us is whether the

trial court’s failure to inform Devore that the additional period of incarceration could be a

“reasonable” period determined by the ODRC caused Devore’s sentences to be contrary to

law. While we have not had an opportunity to address this specific question previously, two

of our sister districts have.1

{¶ 16} In State v. Gutierrez, 2025-Ohio-1884 (4th Dist.), the Fourth District Court of

Appeals noted that the trial court had provided some of the statutorily required information

at the sentencing hearing but did not provide all of it at that time. “For example, the court

did not provide all the information in R.C. 2929.19(B)(2)(c)(ii) about DRC’s ability to rebut

the presumption regarding release or tell [the defendant], as required by R.C.

2929.19(B)(2)(c)(iii), that DRC may maintain her incarceration for the length of time it

determines is reasonable, subject to the limitation specified in R.C. 2967.271.” Id. at ¶ 66.

The Fourth District concluded, “[b]ecause the trial court failed to comply with R.C.

1 The State cites State v. Lawrence, 2024-Ohio-4792 (8th Dist.), in support of its position.

However, the Eighth District did not directly address the absence of the “reasonable” language contained in R.C. 2929.19(B)(2)(c)(iii). Further, the Eighth District partially relied on the fact that the trial court included the requisite notifications in its journal entry. Id. at ¶ 84. However, the trial court that sentenced Devore did not include the notification at issue in this appeal in its written judgment entries. Regardless, we have previously held that the trial court must provide the R.C. 2929.19(B)(2)(c) notifications at the sentencing hearing. Massie, 2021-Ohio-3376, at ¶ 22-23 (2d Dist.). -9- 2929.19(B)(2)(c), [the defendant’s] sentence is contrary to law and plain error[.]” Id. at ¶ 67.

{¶ 17} The Third District Court of Appeals came to a different conclusion in State v.

Moore, 2024-Ohio-4536 (3d Dist.). There, the appellant contended that the trial court’s

notifications at sentencing failed to comply with R.C. 2929.19(B)(c)(iii) “because it did not

specify that the extension would be for a term that the department deemed reasonable.”

(Emphasis in original.) Moore at ¶ 15. The Third District rejected this argument and

concluded that “the trial court is not required to provide a verbatim recitation and we find that

the trial court’s statement satisfactorily informed [appellant] of the notification requirement of

R.C. 2929.19(B)(2)(c)(iii).” Id., citing State v. Lorenzana, 2024-Ohio-2900, ¶ 85 (8th Dist.),

and State v. Abdus-Salaam, 2024-Ohio-2773, ¶ 80.

{¶ 18} We agree with the approach taken by the Fourth District in Gutierrez. The

General Assembly chose to include the following two limitations on the amount of time the

ODRC could extend a defendant’s prison sentence after it had successfully rebutted the

presumption of being released after the minimum sentence had been served: (1) the prison

sentence could not be extended beyond the maximum sentence; and (2) the amount the

prison sentence was extended beyond the minimum sentence must be reasonable. See

R.C. 2967.271(D)(1). The General Assembly then stated in a separate statute that the trial

court shall notify the defendant of these two limitations, among other notifications. R.C.

2929.19(B)(2)(c). It is undisputed that the trial court notified Devore of only one of these

two limitations. While the State essentially argues that the trial court substantially complied

with the notification requirements contained in R.C. 2929.19(B)(2)(c), we do not believe it is

appropriate to adopt a substantial compliance approach to the statutory notifications

contained in R.C. 2929.19(B)(2)(c) where the General Assembly explicitly set forth the

notification requirements and used the word “shall” to indicate the mandatory nature of the -10- statutory notifications. “We will not interpret such a clear statute to mean anything other

than what it unmistakably states.” State v. Brooks, 2004-Ohio-4746, ¶ 24 (rejecting a

substantial compliance interpretation of former R.C. 2929.19(B)(5) where the General

Assembly used the word “shall” even though “reasonable minds could differ on how

important” the notification requirement was in the “grand scheme of R.C. Chapter 2929”),

citing State v. Comer, 2003-Ohio-4165, ¶ 20. “To do so would be to rewrite a statute that

is clear on its face.” Id.

{¶ 19} Based on our review of the sentencing transcript, we conclude the trial court

failed to provide a notification that was required by R.C. 2929.19(B)(2)(c)(iii). Therefore,

the sentences imposed on Devore were contrary to law and the trial court committed plain

error. The sole assignment of error is sustained.

III. Conclusion

{¶ 20} Having sustained Devore’s assignment of error, we will reverse the judgments

of the trial court in part and remand the cause for the sole purpose of resentencing him in

accordance with R.C. 2929.19(B)(2)(c). The judgments of the trial court will be affirmed in

all other respects.

.............

HUFFMAN, J., and HANSEMAN, J., concur.