[Cite as State v. Dudley, 2025-Ohio-1715.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-24-1028 L-24-1029 Appellee Trial Court No. CR-20-1842 CR-23-1472 v.
Joshua Dudley DECISION AND JUDGMENT
Appellant Decided: May 13, 2025
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.
Joseph Sobecki, for appellant.
***** MAYLE, J.
{¶ 1} In this consolidated appeal, appellant, Joshua Dudley, appeals the January 3,
2024 judgments of the Lucas County Court of Common Pleas sentencing him to 17
months in prison. For the following reasons, we affirm. I. Background and Facts
{¶ 2} This appeal involves two cases. In the first, case No. CR-0202001842
(“2020 case”), Dudley was indicted on one count of carrying concealed weapons in
violation of R.C. 2923.12(A)(2), a fourth-degree felony. He pleaded no contest to
attempted carrying concealed weapons in violation of R.C. 2923.02 and 2923.12(A)(2), a
fifth-degree felony, and the trial court found him guilty and sentenced him to two years of
community control. In the second case, case No. 0202301472 (“2023 case”), Dudley was
indicted on one count of robbery in violation of R.C. 2911.02(A)(3), a third-degree
felony. As a result of this indictment, Dudley was charged with a community control
violation in the 2020 case.
{¶ 3} The state and Dudley reached an agreement in the 2023 case that allowed
Dudley to plead guilty under North Carolina v. Alford, 400 U.S. 25 (1970), to attempted
robbery in violation of R.C. 2923.02 and 2911.02(A)(3), a fourth-degree felony. In the
written plea agreement, the state said that it “will agree to a 12 month cap.”
{¶ 4} At the plea hearing, the trial court noted the state’s promise that it “is going
to agree to a 12-month sentencing cap.” The court also conducted a thorough Crim.R. 11
plea colloquy, during which it informed Dudley that the 12-month sentencing cap was
only a recommendation that the court was not required to follow, he had an “automatic
right to appeal” his sentence if the court “gave [him] a maximum sentence,” he had a
right to appeal any “mistakes” made during his plea, and any appeal had to be filed
“within 30 days of [his] sentence.” Dudley indicated that he understood each of these
points. The trial court accepted Dudley’s plea and found him guilty.
2. {¶ 5} At the sentencing hearing, Dudley admitted to the community control
violation, and the trial court found that he had violated the terms of his community
control. The court offered Dudley and his attorney the opportunity to speak before it
imposed sentence but did not offer the state an opportunity to speak. The court ultimately
terminated community control and imposed an 11-month prison sentence in the 2020 case
and imposed a 17-month prison sentence in the 2023 case. After it imposed the sentence
for the 2020 case and before it imposed the sentence for the 2023 case, the trial court
“again reminded [Dudley] of the limited right to appeal the plea, as well as a right to
appeal the sentence under certain circumstances as provided for in [R.C.] 2953.08.”
Beyond that, the court did not address the issue of appellate rights. When the court
finished issuing its order, Dudley’s attorney reminded the court that “when we entered a
plea there was a recommendation of a twelve-month on the felony four . . . .” The court
responded that it “did take that into consideration . . . in reading through the pre-sentence
report as well as the prior plea agreement.”
{¶ 6} Dudley now appeals, raising three assignments of error:
I. THE TRIAL COURT ERRED BY FAILING TO NOTIFY THE DEFENDANT OF HIS APPELLATE RIGHTS AFTER IMPOSING THE SENTENCE.
II. THE TRIAL COURT ERRED BY FAILING TO AFFORD THE PROSECUTING ATTORNEY AN OPPORTUNIETY [sic] TO SPEAK.
III. THE TRIAL COURT DID NOT COMMIT AN ERROR BY FAILING TO NOTIFY THE DEFENDANT THAT IT COULD DEVIATE FROM THE RECOMMENDED SENTENCE.
3. II. Law and Analysis
{¶ 7} In his first two assignments of error, Dudley argues that the trial court
violated Crim.R. 32 by failing to inform him of the appellate rights in Crim.R. 32(B)(2)
and (3) after it sentenced him and failing to offer the prosecutor an opportunity to speak,
as required by Crim.R. 32(A)(2). He contends that he “initiated his appeal pro se and
was prejudiced as a result[,]” and was prejudiced by the state not getting a chance to
speak at sentencing because it “deprived [him] of advocacy he was entitled to pursuant to
the plea agreement from the State on his behalf.” He elaborates in his reply brief that the
trial court’s failure to comply with Crim.R. 32 was prejudicial because “the inherent
result was an unfair proceeding not compliant with the Ohio Rules of Criminal
Procedure.”
{¶ 8} The state responds that the trial court’s failure to comply with Crim.R. 32
did not prejudice Dudley because he filed an appeal, has appointed counsel to pursue the
appeal, was not entitled to have the state advocate for him at the sentencing hearing, and
cannot establish that the outcome would have been different if the state had the chance to
speak.
{¶ 9} Criminal Rule 32 requires a trial court to do a number of things at a
defendant’s sentencing hearing, including “[a]fford[ing] the prosecuting attorney an
opportunity to speak” at the time of sentencing and informing the defendant of his rights
related to an appeal. Crim.R. 32(A)(2), (B)(2)-(3). Regarding appellate rights, “[a]fter
imposing sentence in a serious offense, . . .” which includes any felony, the court is
required to tell the defendant that (1) he has a right to appeal his sentence; (2) he is
4. entitled to appeal without payment if he cannot pay the cost of an appeal; (3) he will be
appointed counsel if he is unable to obtain counsel for an appeal; (4) he will be provided
the documents necessary for an appeal without cost if he cannot afford to pay for them;
(5) he has the right to have a timely notice of appeal filed on his behalf; and (6) if the
defendant requests it, the trial court “shall forthwith appoint counsel for appeal.” Crim.R.
32(B)(2)-(3); Crim.R. 2(C).
{¶ 10} Here, although the trial court failed to offer the prosecutor a chance to
speak, “reminded” Dudley of his limited right to appeal before imposing its sentence in
the 2023 case, and completely failed to mention most of Dudley’s appellate rights, none
of this prejudiced Dudley, making the trial court’s errors harmless. Crim.R. 52(A) (“Any
error, defect, irregularity, or variance which does not affect substantial rights . . .” is
harmless and “shall be disregarded.”).
{¶ 11} Dudley contends that he was entitled to have the state advocate on his
behalf at the sentencing hearing, which makes the court’s failure to offer the state a
chance to speak prejudicial. But, unless the plea agreement affirmatively obligates the
state to make a recommendation at sentencing, the prosecutor is not required to say
anything about the agreed upon sentence. State v. Frazier, 2019-Ohio-1546, ¶ 26-27 (2d
Dist.), citing State v. Gibson, 2017-Ohio-6995 (2d Dist.); see also State v. Mushatt, 1976
WL 188831, *2, 4 (9th Dist. July 1, 1976) (Defendant claimed that the prosecutor, who
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[Cite as State v. Dudley, 2025-Ohio-1715.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-24-1028 L-24-1029 Appellee Trial Court No. CR-20-1842 CR-23-1472 v.
Joshua Dudley DECISION AND JUDGMENT
Appellant Decided: May 13, 2025
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.
Joseph Sobecki, for appellant.
***** MAYLE, J.
{¶ 1} In this consolidated appeal, appellant, Joshua Dudley, appeals the January 3,
2024 judgments of the Lucas County Court of Common Pleas sentencing him to 17
months in prison. For the following reasons, we affirm. I. Background and Facts
{¶ 2} This appeal involves two cases. In the first, case No. CR-0202001842
(“2020 case”), Dudley was indicted on one count of carrying concealed weapons in
violation of R.C. 2923.12(A)(2), a fourth-degree felony. He pleaded no contest to
attempted carrying concealed weapons in violation of R.C. 2923.02 and 2923.12(A)(2), a
fifth-degree felony, and the trial court found him guilty and sentenced him to two years of
community control. In the second case, case No. 0202301472 (“2023 case”), Dudley was
indicted on one count of robbery in violation of R.C. 2911.02(A)(3), a third-degree
felony. As a result of this indictment, Dudley was charged with a community control
violation in the 2020 case.
{¶ 3} The state and Dudley reached an agreement in the 2023 case that allowed
Dudley to plead guilty under North Carolina v. Alford, 400 U.S. 25 (1970), to attempted
robbery in violation of R.C. 2923.02 and 2911.02(A)(3), a fourth-degree felony. In the
written plea agreement, the state said that it “will agree to a 12 month cap.”
{¶ 4} At the plea hearing, the trial court noted the state’s promise that it “is going
to agree to a 12-month sentencing cap.” The court also conducted a thorough Crim.R. 11
plea colloquy, during which it informed Dudley that the 12-month sentencing cap was
only a recommendation that the court was not required to follow, he had an “automatic
right to appeal” his sentence if the court “gave [him] a maximum sentence,” he had a
right to appeal any “mistakes” made during his plea, and any appeal had to be filed
“within 30 days of [his] sentence.” Dudley indicated that he understood each of these
points. The trial court accepted Dudley’s plea and found him guilty.
2. {¶ 5} At the sentencing hearing, Dudley admitted to the community control
violation, and the trial court found that he had violated the terms of his community
control. The court offered Dudley and his attorney the opportunity to speak before it
imposed sentence but did not offer the state an opportunity to speak. The court ultimately
terminated community control and imposed an 11-month prison sentence in the 2020 case
and imposed a 17-month prison sentence in the 2023 case. After it imposed the sentence
for the 2020 case and before it imposed the sentence for the 2023 case, the trial court
“again reminded [Dudley] of the limited right to appeal the plea, as well as a right to
appeal the sentence under certain circumstances as provided for in [R.C.] 2953.08.”
Beyond that, the court did not address the issue of appellate rights. When the court
finished issuing its order, Dudley’s attorney reminded the court that “when we entered a
plea there was a recommendation of a twelve-month on the felony four . . . .” The court
responded that it “did take that into consideration . . . in reading through the pre-sentence
report as well as the prior plea agreement.”
{¶ 6} Dudley now appeals, raising three assignments of error:
I. THE TRIAL COURT ERRED BY FAILING TO NOTIFY THE DEFENDANT OF HIS APPELLATE RIGHTS AFTER IMPOSING THE SENTENCE.
II. THE TRIAL COURT ERRED BY FAILING TO AFFORD THE PROSECUTING ATTORNEY AN OPPORTUNIETY [sic] TO SPEAK.
III. THE TRIAL COURT DID NOT COMMIT AN ERROR BY FAILING TO NOTIFY THE DEFENDANT THAT IT COULD DEVIATE FROM THE RECOMMENDED SENTENCE.
3. II. Law and Analysis
{¶ 7} In his first two assignments of error, Dudley argues that the trial court
violated Crim.R. 32 by failing to inform him of the appellate rights in Crim.R. 32(B)(2)
and (3) after it sentenced him and failing to offer the prosecutor an opportunity to speak,
as required by Crim.R. 32(A)(2). He contends that he “initiated his appeal pro se and
was prejudiced as a result[,]” and was prejudiced by the state not getting a chance to
speak at sentencing because it “deprived [him] of advocacy he was entitled to pursuant to
the plea agreement from the State on his behalf.” He elaborates in his reply brief that the
trial court’s failure to comply with Crim.R. 32 was prejudicial because “the inherent
result was an unfair proceeding not compliant with the Ohio Rules of Criminal
Procedure.”
{¶ 8} The state responds that the trial court’s failure to comply with Crim.R. 32
did not prejudice Dudley because he filed an appeal, has appointed counsel to pursue the
appeal, was not entitled to have the state advocate for him at the sentencing hearing, and
cannot establish that the outcome would have been different if the state had the chance to
speak.
{¶ 9} Criminal Rule 32 requires a trial court to do a number of things at a
defendant’s sentencing hearing, including “[a]fford[ing] the prosecuting attorney an
opportunity to speak” at the time of sentencing and informing the defendant of his rights
related to an appeal. Crim.R. 32(A)(2), (B)(2)-(3). Regarding appellate rights, “[a]fter
imposing sentence in a serious offense, . . .” which includes any felony, the court is
required to tell the defendant that (1) he has a right to appeal his sentence; (2) he is
4. entitled to appeal without payment if he cannot pay the cost of an appeal; (3) he will be
appointed counsel if he is unable to obtain counsel for an appeal; (4) he will be provided
the documents necessary for an appeal without cost if he cannot afford to pay for them;
(5) he has the right to have a timely notice of appeal filed on his behalf; and (6) if the
defendant requests it, the trial court “shall forthwith appoint counsel for appeal.” Crim.R.
32(B)(2)-(3); Crim.R. 2(C).
{¶ 10} Here, although the trial court failed to offer the prosecutor a chance to
speak, “reminded” Dudley of his limited right to appeal before imposing its sentence in
the 2023 case, and completely failed to mention most of Dudley’s appellate rights, none
of this prejudiced Dudley, making the trial court’s errors harmless. Crim.R. 52(A) (“Any
error, defect, irregularity, or variance which does not affect substantial rights . . .” is
harmless and “shall be disregarded.”).
{¶ 11} Dudley contends that he was entitled to have the state advocate on his
behalf at the sentencing hearing, which makes the court’s failure to offer the state a
chance to speak prejudicial. But, unless the plea agreement affirmatively obligates the
state to make a recommendation at sentencing, the prosecutor is not required to say
anything about the agreed upon sentence. State v. Frazier, 2019-Ohio-1546, ¶ 26-27 (2d
Dist.), citing State v. Gibson, 2017-Ohio-6995 (2d Dist.); see also State v. Mushatt, 1976
WL 188831, *2, 4 (9th Dist. July 1, 1976) (Defendant claimed that the prosecutor, who
simply mentioned the recommended sentence during the plea hearing, “failed in an
implied promise to support his recommendations ‘with some degree of advocacy[,]’” but
the appellate court found that “[t]here are limits to an attorney’s duty to his adversary”
5. and the prosecutor fulfilled his duty by informing the trial court of the terms of the plea
agreement.).
{¶ 12} Here, the state met any advocacy obligation it might have had because
Dudley’s plea agreement did not require it to make a recommendation at sentencing, and
the prosecutor told the trial court about the agreed sentence cap at the plea hearing. It is
also clear that the trial court was aware of the parties’ agreed sentence cap and told
Dudley that it was not required to follow the parties’ recommendation. Based on these
facts, we cannot see how the court’s failure to offer the prosecutor a chance to speak at
sentencing affected Dudley’s substantial rights.
{¶ 13} Likewise, the trial court’s failure to fully comply with the requirements of
Crim.R. 32(B) did not prejudice Dudley. “[A]ll twelve Ohio appellate districts hold that
this error is harmless where the defendant either files a timely appeal or the court of
appeals accepts a delayed appeal.” State v. Herbert, 2019-Ohio-5092, ¶ 14 (7th Dist.)
(citing cases); State v. Clyde, 2017-Ohio-8205, ¶ 10 (6th Dist.); compare State v. Hunter,
2010-Ohio-657, ¶ 18 (8th Dist.) (finding trial court’s complete failure to mention
appellate rights prejudicial). This is true even when the defendant initially files his notice
of appeal pro se. See State v. Tunison, 2014-Ohio-2692, ¶ 19 (6th Dist.). Evidence that
the appellant has actually exercised the rights outlined in Crim.R. 32(B) mitigates any
prejudice from the trial court’s error. See State v. Hudson, 2010-Ohio-5386, ¶ 12 (2d
Dist.) (“While the trial court did neglect to so advise Hudson [of his appellate rights
under Crim.R. 32(B)], he has shown no prejudice. Hudson was appointed appellate
6. counsel, he was allowed to proceed in forma pauperis, the transcript of proceedings was
prepared at the State’s expense, and he timely filed his appeal.”).
{¶ 14} Like the defendant in Hudson, Dudley filed timely notices of appeal, has
appointed appellate counsel pursuing the appeal for him, and filed an affidavit of
indigency. Because Dudley has exercised all of the rights in Crim.R. 32(B), we cannot
say that the trial court’s failure to inform him of the substance of the rule affects his
substantial rights.
{¶ 15} In short, the trial court’s failure to comply with Crim.R. 32 in this case did
not affect Dudley’s substantial rights and was, therefore, harmless. Crim.R. 52(A).
Accordingly, Dudley’s first and second assignments of error are not well-taken.
{¶ 16} Dudley’s third assignment of error does not actually assign any errors.
Instead, he explains that he disagrees with some of the trial court’s actions, but “it would
be a violation of Ohio Civ.R. 11 to argue that the trial court committed legal error by
failing to follow the plea agreement because there is no basis for this argument in law[,]”
and he recognizes that “he cannot appeal issues in [the 2020] case other than the
sentencing for the community control violation.” Contrary to his claim in his reply brief,
his arguments do not “invite[] this Court to reverse existing law and (1) hold that a trial
court may not disregard a plea agreement with impunity and (2) that issues related to an
underlying a [sic] conviction not raised on direct appeal may be raised on appeal of a
motion to revoke community control.” Because Dudley “fails to identify in the record
the error on which the assignment of error is based . . . ,” we will disregard his third
7. assignment of error. App.R. 12(A)(2). Dudley’s third assignment of error is not well-
taken.
III. Conclusion
{¶ 17} Based on the foregoing, the January 3, 2024 judgments of the Lucas
County Court of Common Pleas are affirmed. Dudley is ordered to pay the costs of this
appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. JUDGE
Christine E. Mayle, J. JUDGE
Gene A. Zmuda, J. CONCUR. JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
8.