[Cite as State v. Hutsenpiller, 2024-Ohio-3069.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY
STATE OF OHIO, CASE NO. 2023-G-0041
Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas
CHARLES G. HUTSENPILLER, JR., Trial Court No. 2022 C 000283 Defendant-Appellant.
OPINION
Decided: August 12, 2024 Judgment: Reversed; remanded
James R. Flaiz, Geauga County Prosecutor, and Christian A. Bondra, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee).
R. Robert Umholtz, Geauga County Public Defender, and Paul J. Mooney, Chief Assistant Public Defender, 211 Main Street, Chardon, OH 44024 (For Defendant- Appellant).
EUGENE A. LUCCI, P.J.
{¶1} Appellant, Charles G. Hutsenpiller, Jr., appeals the judgment imposing
sentence following his guilty plea to one felony and two misdemeanor charges. We
reverse the judgment, vacate Hutsenpiller’s plea, and remand this matter for further
proceedings consistent with this decision.
{¶2} On December 28, 2022, an indictment was filed charging Hutsenpiller with
the following six counts: aggravated vehicular assault, a second-degree felony, in
violation of R.C. 2903.08(A)(1)(a); vehicular assault, a third-degree felony, in violation of R.C. 2903.08(A)(2)(b); OVI, a first-degree misdemeanor, in violation of R.C.
4511.19(A)(1)(a); driving under OVI suspension, a first-degree misdemeanor, in violation
of R.C. 4510.14(A); operation in willful or wanton disregard of the safety of persons or
property, a minor misdemeanor, in violation of R.C. 4511.20(A); and lane of travel upon
roadways, a minor misdemeanor, in violation of R.C. 4511.25(A).
{¶3} Hutsenpiller initially pleaded not guilty. Thereafter, the parties entered into
a plea agreement whereby Hutsenpiller agreed to plead guilty to aggravated vehicular
assault, OVI, and driving under OVI suspension, as charged in the indictment, and the
state agreed to move to dismiss the remaining three charges. At a change of plea hearing,
following a plea colloquy, Hutsenpiller pleaded guilty in accordance with the plea
agreement. The trial court accepted Hutsenpiller’s plea, ordered a presentence
investigation, and set the matter for sentencing.
{¶4} In a judgment of conviction issued on July 26, 2023, on the aggravated
vehicular assault count, the trial court sentenced Hutsenpiller to a mandatory seven to
10.5 years in prison, 18 months to three years of post-release control, and a ten-year,
class three driver’s license suspension. On each of the two misdemeanor counts, the trial
court sentenced Hutsenpiller to six months of confinement. The court further imposed
license suspensions, fines, and vehicle immobilization relative to the misdemeanor
counts. In addition, with respect to the OVI count, the court ordered Hutsenpiller to be
assessed by a community addiction service provider and follow all recommendations
made. The court then dismissed the remaining counts of the indictment.
Case No. 2023-G-0041 {¶5} Hutsenpiller filed a delayed notice of appeal with leave of this court, and he
now raises two assigned errors for our review. In his first assigned error, Hutsenpiller
argues:
{¶6} “Defendant-appellant’s change of plea was not entered knowingly,
intelligently, and voluntarily as the trial court failed to personally review the potential
penalties and provide other notifications.”
{¶7} “‘When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.’” State v. Veney, 2008-Ohio-5200, ¶ 7, quoting State v. Engle,
1996-Ohio-179, 527. “‘In considering whether a guilty plea was entered knowingly,
intelligently, and voluntarily, an appellate court examines the totality of the circumstances
through a de novo review of the record to ensure that the trial court complied with
constitutional and procedural safeguards.’” State v. Siler, 2011-Ohio-2326, ¶ 12 (11th
Dist.), quoting State v. Eckler, 2009-Ohio-7064, ¶ 48 (4th Dist.).
{¶8} “Crim.R. 11 was adopted in 1973, giving detailed instruction to trial courts
on the procedure to follow when accepting pleas.” Veney at ¶ 7. Crim.R. 11 is meant to
ensure “‘an adequate record on review by requiring the trial court to personally inform the
defendant of his rights and the consequences of his plea and determine if the plea is
understandingly and voluntarily made.’” State v. Dangler, 2020-Ohio-2765, ¶ 11, quoting
State v. Stone, 43 Ohio St.2d 163, 168 (1975); see also State v. Nero, 56 Ohio St.3d 106,
107 (1990).
Case No. 2023-G-0041 {¶9} Here, Hutsenpiller challenges the trial court’s compliance with Crim.R.
11(C)(2), which pertains to the colloquy required when a defendant enters a guilty or no-
contest plea to a felony charge.1 Crim.R. 11(C)(2) provides:
In felony cases the court may refuse to accept a plea of guilty . . . and shall not accept a plea of guilty . . . without first addressing the defendant personally . . . and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty . . . , and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶10} When a defendant challenges his plea to a felony, a reviewing court
engages in a three-prong inquiry: “(1) has the trial court complied with the relevant
1. Because Hutsenpiller’s convictions resulted from a combined guilty plea to multiple charges in accordance with a plea agreement, reversible error with respect to the colloquy applicable to the felony count requires this court to vacate the plea as to all counts unified by the plea agreement. Compare State v. Farley, 2002-Ohio-1142 (1st Dist.) (where guilty pleas on multiple counts resulted from a plea agreement, the trial court's failure to comply with Crim.R. 11 as to one count resulted in vacating all pleas) with State v. Maggard, 2011-Ohio-4233, ¶ 21 (1st Dist.) (distinguishing Farley where “no plea agreement existed between the state and Maggard, and Maggard pleaded no-contest to all the charges, errors that inured to only some of the counts do not automatically result in the reversal of the pleas on all counts, absent some showing that the defect should be treated more broadly”).
Case No. 2023-G-0041 provision of [Crim.R. 11(C)(2)]? (2) if the court has not complied fully with the rule, is the
purported failure of a type that excuses a defendant from the burden of demonstrating
prejudice? and (3) if a showing of prejudice is required, has the defendant met that
burden?” Dangler at ¶ 17. With respect to the second prong, the Ohio Supreme Court has
identified two instances where a defendant is relieved of demonstrating prejudice on
appeal. First, when a trial court fails to explain the constitutional rights contained in
Crim.R. 11(C)(2)(c) that a defendant waives by pleading guilty, “we presume that the plea
was entered involuntarily and unknowingly, and no showing of prejudice is required.”
(Citation omitted.) Dangler at ¶ 14. Second, “a trial court’s complete failure to comply with
a portion of Crim.R. 11(C) eliminates the defendant’s burden to show prejudice.” (Citation
omitted.) Dangler at ¶ 15. As to the latter exception, in the context of the “maximum
penalty involved,” a complete failure occurs when the trial court “makes no mention of a
mandatory component of a defendant’s sentence.” (Emphasis in original.) State v. Willard,
2021-Ohio-2552, ¶ 95 (11th Dist.).
{¶11} In the present case, Hutsenpiller does not dispute that the trial court
properly advised him of the constitutional rights he was waiving by entering his guilty plea
to the felony count pursuant to Crim.R. 11(C)(2)(c). Instead, he maintains that the trial
court failed to comply with Crim.R. 11(C)(2)(a), pertaining to the colloquy required relative
to the nature of the charges, the maximum penalty involved, and the ineligibility for the
imposition of community control.
{¶12} The following excerpt from the change-of-plea hearing represents the
entirety of the trial court’s colloquy relevant to Crim.R. 11(C)(2)(a):
THE COURT: . . . Let me advise you of the maximum possible penalties that could be imposed on you for these. Since the 5
Case No. 2023-G-0041 first count that you’re pleading to, Aggravated Vehicular Assault, and I’ll look to the prosecutor to correct me if I get this wrong, but the maximum fixed term would be an 8 year prison sentence with the possibility of an indefinite term of up to 12 years.
For the OVI count, that’s a first degree misdemeanor, so the maximum would be one year in jail with a - - I’m sorry, 6 months in jail with a $1,000 dollar fine. And that also applies to Driving Under the OVI Suspension, that has an unclassified there’s something - - any other twists to that one?
[THE STATE]: Yes, your Honor. There’s just a few other things I would like to add with the Court’s permission.
THE COURT: Please.
[THE STATE]: Just given the fines, highlighting some of the fines for the first charge, it’s $1500 dollar maximum fine, mandatory Class 3 license suspension, that’s 2 to 10 years.
THE COURT: You mean $15,000.
[THE STATE]: $15,000. Yes. I apologize.
For the OVI that is a mandatory 10 days in jail. The fine given it’s the second in ten years is $525 to $1,625. And then that has an unclassified license suspension as well, 1 to 7 years.
And then for the driving under the OVI suspension, that does have a mandatory 3 consecutive days in jail and, again, a fine $250 to $1,000 with the Class 7 suspension as well.
THE COURT: Okay. Thank you for the clarification. So, I’m also required to inform you that if a prison sentence is imposed, you may be subject to post-release control for a period of up to two years at the discretion of the - - I’m sorry. It would be I think it would be three years.
[THE STATE]: I believe that’s correct, your Honor.
THE COURT: So post-release control means a period of supervision by the adult parole authority after release from imprisonment. If you violate a post-release control sanction all of the following might apply: First, the adult parole authority may impose a more restrictive post-release control sanction. 6
Case No. 2023-G-0041 Secondly, the parole board could increase the duration of the post-release control. Third, the parole board could impose an additional prison term of up to one-half of the original sentence not to exceed nine months for each violation. And lastly, if the violation of a post-release control sanction is also a felony, you may be sentenced for the new felony and the court may impose an additional prison term of either 12 months or the time remaining on post-release control whichever is greater and that has to be run consecutively.
Do you think we got the three years on the post-release control, correct?
[THE STATE]: That is correct, Judge. It’s just it does have a mandatory minimum of 18 months on that as well.
THE COURT: Thank you for that.
[THE STATE]: Uh-huh.
{¶13} Based on the significant deficiencies in this colloquy, as discussed below,
with respect to the aggravated vehicular assault count, the trial court completely failed to
comply with the requirement in Crim.R. 11(C)(2)(a) that it “address the defendant
personally . . . and . . . determin[e] that the defendant is making the plea . . . with
understanding . . . of the maximum penalty involved, and if applicable, that the defendant
is not eligible for probation or for the imposition of community control sanctions at the
sentencing hearing.”
Duty to Personally Address the Defendant and Ensure the Defendant’s Understanding of the Maximum Penalty
{¶14} In reviewing whether a plea was knowingly and voluntarily entered, we
focus on the dialogue between the court and the defendant to determine whether the
defendant understood the consequences of his plea. Dangler, 2020-Ohio-2765, at ¶ 12.
However, the portion of the colloquy pertaining to Crim.R. 11(C)(2)(a), reproduced above,
consisted of a conversation between the trial court and the state. At no time during this 7
Case No. 2023-G-0041 portion of the colloquy did the trial court inquire of Hutsenpiller whether he understood the
maximum penalty involved for the aggravated vehicular assault count. Although, in other
contexts, inquiry of a defendant’s understanding of the maximum penalty while it is being
explained may not be required, here the trial court repeatedly shifted the focus of its
statements to the state. On this record, we cannot presume Hutsenpiller’s understanding
of the maximum penalty from his silence.
{¶15} The dissent reads the above portion of the plea colloquy as addressing
Hutsenpiller. To the extent that we could read the trial court’s above statements as
addressing Hutsenpiller, as opposed to addressing the state, the trial court made several
conflicting statements and omissions with respect to the maximum penalty and mandatory
nature of the sentence, without attempting to assess Hutsenpiller’s understanding of
these issues during this portion of the plea colloquy, as addressed below.
The Maximum Sentence and the Reagan Tokes Law
{¶16} First, the trial court failed to adequately explain the nature of the maximum
prison term involved for the aggravated vehicular assault count, which was subject to the
Reagan Tokes Law.
{¶17} “The ‘Reagan Tokes Law,’ which became effective in March 2019, requires
that for certain first- and second-degree felony offenses, a sentencing court impose on
the offender an indefinite sentence consisting of a minimum and a maximum prison term.
There is a presumption that the offender will be released from incarceration after serving
the minimum prison term. But if that presumption is rebutted, the Ohio Department of
Rehabilitation and Correction (“DRC”) may maintain the offender’s incarceration up to the
maximum prison term set by the trial court.” State v. Hacker, 2023-Ohio-2535, ¶ 1.
Case No. 2023-G-0041 {¶18} Thus, where the maximum sentence is a non-life felony indefinite prison
term, the maximum sentence for purposes of Crim.R. 11(C) consists of a minimum and
maximum term for purposes of the Reagan Tokes Law, and is subject to the following
provisions: (1) an offender is rebuttably presumed “to 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;” (2) the DRC may rebut this
presumption if, at a hearing held under R.C. 2967.271, the DRC “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;” (3) if, at such a hearing, the
DRC makes the specified determinations and rebuts the presumption, the DRC “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 [DRC] determines
to be reasonable, subject to the limitation specified” in R.C. 2967.271; (4) the DRC may
make the specified determinations and maintain the offender’s incarceration as described
above more than one time, “subject to the limitation specified in” R.C. 2967.271; and “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.” See R.C. 2929.19(B)(2)(c).
{¶19} Here, the portion of the colloquy regarding the maximum prison term for the
aggravated vehicular assault count consisted solely of the trial court’s statement that “the
Case No. 2023-G-0041 maximum fixed term would be an 8 year prison sentence with the possibility of an
indefinite term of up to 12 years.”
{¶20} In State v. Amin, 2023-Ohio-3761 (11th Dist.), this court vacated the plea of
a defendant who was advised as to the maximum sentence subject to the Reagan Tokes
Law by the prosecutor, instead of the trial court, at the plea hearing. See Amin at ¶ 13.
We also found the substance of the notification insufficient. There, the prosecutor stated
that the offender “faced a ‘definite’ prison sentence of between 2 and 8 years.” Id. at ¶ 14.
“Then, after advising [the defendant] that there was a presumption for prison but that
prison would not be mandatory, the prosecutor stated that, under the Reagan Tokes law,
[the defendant] faced a ‘potential for indefinite prison term maximum’ of up to 12 years.”
Id. “No explanation was given [the defendant] as to how a definite prison sentence of up
to 8 years was consistent with an indefinite prison sentence of up to 12 years or what was
the legal significance of being ‘under the Reagan Tokes law.’” Id. Although the offender
“responded to the court that she understood the prosecutor’s advisement as to what the
maximum penalty was[, it was] not at all clear that her ‘understanding’ properly reflected
the operation of the Reagan Tokes law.” Id.
{¶21} Similarly, here, the trial court gave no explanation of how a “maximum fixed
term” of 8 years was consistent with a “possibility of an indefinite term of up to 12 years.”
Neither the court nor the prosecutor mentioned the applicable provisions of the Reagan
Tokes Law that controlled this prison term. Nor did the trial court attempt to ascertain
Hutsenpiller’s understanding of the possible maximum term.
{¶22} The dissent maintains that the trial court’s statement that “the maximum
fixed term would be an 8 year prison sentence with the possibility of an indefinite term of
Case No. 2023-G-0041 up to 12 years” was “an accurate statement of the possible maximum indefinite sentence
appellant faced.” However, the eight-year prison term referenced by the trial court was
not a “maximum fixed term.” Instead, it was the stated minimum term of the maximum
indefinite term that the court could impose of eight to twelve years. Thus, we disagree
with the dissent on this issue, and conclude that the trial court’s explanation of the
maximum prison term was wholly deficient.
{¶23} Further, we acknowledge that this court has rejected the argument that the
R.C. 2929.19(B)(2)(c) notifications as to the Reagan Tokes Law, when applicable, must
be given at the plea colloquy. See State v. Jones, 2024-Ohio-2034, ¶ 27 (11th Dist.).2
While R.C. 2929.19(B), by its terms, pertains to notifications that a trial court must give a
defendant at sentencing, (which we agree with the dissent did not occur in this case), the
prudent course would be to provide these notifications during the plea colloquy to ensure
a defendant’s understanding of the nature of the maximum sentence.
{¶24} Moreover, we emphasize that the maximum term of imprisonment under the
Reagan Tokes Law consists of both a stated minimum term and a maximum term. Despite
the dissent’s statement to the contrary, we take no issue “with the trial court’s not
explaining that if [it] sentenced appellant to a lesser term, that the indefinite prison term
imposed under the Reagan Tokes Law would be an additional ‘fifty per cent of that term.’”
Nowhere within this opinion do we hold that a trial court must ascertain whether a
defendant is aware of every lesser penalty a court could impose. Instead, the court must
2. This author is not in agreement with the Jones holding, as I believe that the notifications set forth in R.C. 2929.19(B)(2)(c) are essential to an understanding of the maximum penalty. Nonetheless, as a majority of this court has rejected this position absent further authority requiring such notifications be given at the plea hearing, I simply note my disagreement and apply our precedent. 11
Case No. 2023-G-0041 determine that the defendant is making the plea with an understanding of the maximum
penalty involved, and, in cases implicating the Reagan Tokes Law, the “maximum
penalty” includes a stated minimum term of imprisonment and a maximum term of
imprisonment.
Mandatory License Suspension
{¶25} Next, the trial court failed to advise Hutsenpiller of the mandatory license
suspension of two to ten years on the aggravated vehicular assault count. See R.C.
2903.08(B)(2); R.C. 4510.02(A)(3). “A mandatory license suspension is part of a
defendant’s maximum penalty. Thus, Crim.R. 11(C)(2)(a) requires that a defendant be
advised regarding the potential maximum duration of a mandatory license suspension.”
(Citations omitted.) State v. Thompson, 2020-Ohio-211, ¶ 6 (2d Dist.); State v. Spitalieri,
1988 WL 38056, *4 (11th Dist. 1988) (“Crim.R. 11(C)(2) mandates that a court inform a
defendant that he could lose his right to drive if he pleads guilty to any statute which itself
provides for such a sanction.”).
{¶26} Here, the state indicated that the maximum penalty for the aggravated
vehicular assault count included a mandatory class three license suspension of two to ten
years. However, “‘[s]tatements from the prosecutor and defense counsel are not an
adequate substitute for the trial judge’s obligation to address the defendant ‘personally’
to ensure that he understands the maximum penalty he is facing.’” See Amin, 2023-Ohio-
3761, ¶ 13 (11th Dist.), quoting State v. Gonzalez, 2019-Ohio-4882, ¶ 9 (9th Dist.). Thus,
the trial court failed to comply with this aspect of the colloquy relative to the maximum
penalty.
Case No. 2023-G-0041 Post-Release Control
{¶27} In addition, where post-release control is mandatory, it constitutes part of
the maximum penalty for purposes of Crim.R. 11(C)(2)(a). State v. Sarkozy, 2008-Ohio-
509 (“If the trial court fails during the plea colloquy to advise a defendant that the sentence
will include a mandatory term of post[-]release control, the court fails to comply with
Crim.R. 11, and the reviewing court must vacate the plea and remand the cause.”).
{¶28} Applicable here, pursuant to R.C. 2929.14(D)(1) and 2967.28(B)(2), a court
that imposes a non-life term of imprisonment for a second-degree felony must “include in
the sentence a requirement that the offender be subject to a period of post-release control
after the offender’s release from imprisonment” for a period of “up to three years, but not
less than eighteen months . . . .”
{¶29} However, as set forth above, the trial court stated, “So, I’m also required to
inform you that if a prison sentence is imposed, you may be subject to post-release control
for a period of up to two years at the discretion of the - - I’m sorry. It would be I think it
would be three years.” (Emphasis added.) Later in the transcript, the court asked the
prosecutor, “Do you think we got the three years on the post-release control, correct?”
The prosecutor replied, “That is correct, Judge. It’s just it does have a mandatory
minimum of 18 months on that as well.”
{¶30} By its use of the term, “may,” the trial court conveyed that post-release
control is discretionary, and not mandatory. The prosecutor’s later statement as to the
minimum mandatory period of post-release control contradicted the trial court’s prior
indication that post-release control was discretionary. And, again, statements from the
prosecutor are not an adequate substitute for the trial judge’s obligation to personally
Case No. 2023-G-0041 address the defendant and ensure his understanding of the maximum penalty. See Amin,
2023-Ohio-3761, at ¶ 13 (11th Dist.). There is no indication in the transcript that the trial
court attempted to clarify the mandatory nature and term of post-release control, and at
no time did the trial court attempt to ascertain Hutsenpiller’s understanding on this issue.
Ineligibility for Probation or for the Imposition of Community Control Sanctions
{¶31} Next, the transcript contains no discussion of the mandatory nature of the
prison term, nor does it contain any advisement that Hutsenpiller was therefore not
eligible for probation or for the imposition of community control sanctions at sentencing.
To the contrary, the trial court stated, “So, I’m also required to inform you that if a prison
sentence is imposed, you may be subject to post-release control . . . ,” thus conveying
that appellant’s conviction did not automatically carry a prison term. (Emphasis added.)
{¶32} Accordingly, the trial court failed to comply with the requirement of Crim.R.
11(C)(2)(a) that it notify Hutsenpiller of his ineligibility for probation or for the imposition
of community control sanctions. Compare State v. Miller, 2014-Ohio-5706, ¶ 22 (11th
Dist.) (where trial court failed to inform the appellant during the change-of-plea hearing
that he was ineligible for community control sanctions based upon his conviction for rape,
but expressly stated to him that his conviction dictated he must serve a prison term of at
least three years, that reference substantially complied with the “community control
sanctions” aspect of Crim.R. 11(C)(2)(a)).
{¶33} On this issue, the dissent again maintains that “Crim.R. 11 does not require
a trial court to determine that a defendant understands the minimum penalty involved.”
Again, we do not hold otherwise. Instead, we conclude that the trial court failed to advise
Hutsenpiller that he was “not eligible for probation or for the imposition of community
Case No. 2023-G-0041 control sanctions at the sentencing hearing” in accordance with Crim.R. 11(C)(2)(a). Nor
did the court attempt to ascertain Hutsenpiller’s understanding on this issue.
Complete Failure to Comply
{¶34} For the reasons stated above, the trial court failed to comply with Crim.R.
11(C)(2)(a). Thus, we must determine whether the failures amounted to a “complete
failure” to comply so as to excuse Hutsenpiller from demonstrating prejudice. See
Dangler, 2020-Ohio-2765, at ¶ 14.
{¶35} We recognize that some of the deficiencies in the plea colloquy may not, in
isolation, constitute a “complete failure” to comply. See, e.g., State v. Manyo, 2023-Ohio-
267, ¶ 27 (11th Dist.) (where trial court misinformed defendant regarding the length of the
post-release control term and its mandatory nature, there did not exist a complete failure
to comply); State v. Straley, 2019-Ohio-5206 (plurality) (where, during plea colloquy, court
improperly advised defendant that his prison sentences were not mandatory, trial court
did not wholly fail to comply with Crim.R. 11(C)(2)(a), and defendant was required to show
prejudice), accord State v. Burns, 2023-Ohio-3121, ¶ 20 (11th Dist.). However, the extent
and nature of the particular deficiencies in the plea colloquy in this case amounted to a
“complete failure,” excusing Hutsenpiller from demonstrating prejudice. In so holding, we
place great emphasis on the lack of any dialogue between the court and Hutsenpiller
during this portion of the plea colloquy from which the court could assess Hutsenpiller’s
understanding of the nonconstitutional rights he was waiving. Accordingly, Hutsenpiller’s
first assigned error has merit.
{¶36} In his second assigned error, Hutsenpiller argues:
Case No. 2023-G-0041 {¶37} “Defendant-appellant was denied his right to effective assistance of counsel
at his change of plea hearing.”
{¶38} We do not reach the merits of Hutsenpiller’s second assigned error, as it
has been rendered moot by our disposition of his first assigned error. See App.R.
12(A)(1)(c).
{¶39} Therefore, the judgment of the trial court is reversed, Hutsenpiller’s plea to
the charges is vacated, and this matter is remanded to the trial court for further
ROBERT J. PATTON, J., concurs,
JOHN J. EKLUND, J., dissents with a Dissenting Opinion.
_________________________________
{¶40} The trial court’s plea colloquy did not fully comply with the non-constitutional
requirements of Crim.R. 11(C)(2)(a). But, it was not a complete failure to comply with
those provisions. Appellant has not demonstrated that the trial court’s failure prejudiced
him i.e., that he would not have pled as he did if the court had done it perfectly. Therefore,
I would affirm.
{¶41} The transcript of the sentencing hearing shows the trial court did not
provide any R.C. 2929.19(B)(2)(c) sentencing notifications. Although this issue was not
raised by appellant nor addressed by the majority. It is not grounds to reverse because
it is an issue of statutory, not constitutional proportion. Appellant has not demonstrated
any prejudice, and more fundamentally, “‘[a]s a general rule, appellate courts do not 16
Case No. 2023-G-0041 assign errors for parties, do not make assumptions as to the portion of an entry an
appellant may have intended to attack, and do not usurp a potential appellate strategy
employed by an appellant.’” State v. Ward, 2024-Ohio-2038, ¶ 14 (11th Dist.), quoting
Brown v. Dayton, 2012-Ohio-3493, ¶ 24 (2d Dist.).
{¶42} At the plea hearing, the trial court advised appellant of the “maximum
possible penalties that could be imposed on you for these.” The court said that for Count
One, “the maximum fixed term would be an 8 year prison sentence with the possibility of
an indefinite term of up to 12 years.” The trial court explained the potential jail sentence
and fines for the OVI count and Driving Under Suspension count. After addressing
appellant, the trial court asked if there was anything to add and the State added penalty
details about the maximum fines and mandatory license suspensions. The trial court
thanked the State “for the clarification.” The trial court also informed appellant he would
be subject to post-release control for a period of up to three years and informed him of
the consequences for violating a post-release control sanction.
{¶43} Appellant’s first assignment of error argues that his change of plea to guilty
was not made knowingly, intelligently, or voluntarily because the trial court completely
failed to inform him of the maximum penalty involved in his plea. He argues the trial court
[1] did not mention “anything about Reagan Tokes requirements”; [2] did “not properly
inform [appellant] about post-release control; [3] never mention[ed] anything about judicial
release; and [4] never mention[ed] anything about rights to appeal.”
{¶44} Appellant’s argument rests entirely on this court’s finding that the trial court
completely failed to comply with the non-constitutional requirements set forth in Crim.R.
11(C)(2)(a). Appellant’s briefing does not argue that he was prejudiced and, during oral
Case No. 2023-G-0041 argument, appellant’s counsel offered that no one could know whether or not appellant
was indeed prejudiced.
{¶45} 1. Reagan Tokes Notifications:
{¶46} There is no denying that the trial court’s plea hearing was a bit sloppy. This
includes the trial court’s explanation of the Reagan Tokes Law. But, sloppiness is not the
same as a complete failure to comply with Crim.R. 11(C)(2)(a).
{¶47} The Reagan Tokes Law reinstituted “indefinite sentencing” in Ohio for
certain crimes. A sentence under the statute is indefinite. It is comprised of two parts –
a minimum and a maximum. The minimum is within a range. The maximum is up to an
additional 50% of the minimum imposed.
{¶48} The trial court informed appellant that his maximum “fixed term” was an
eight-year prison sentence. The court said there was a “possibility of an indefinite term
of up to 12 years.” This was an accurate statement of the possible maximum indefinite
sentence appellant faced.
{¶49} Nevertheless, the majority takes issue with the trial court’s not explaining
that if he sentenced appellant to a lesser term, that the indefinite prison term imposed
under the Reagan Tokes Law would be an additional “fifty per cent of that term.” However,
such an explanation is unnecessary to ensure a defendant understands the maximum
penalty involved under Crim.R. 11(C)(2)(a). Crim.R. 11 “does not require the trial court to
determine whether the defendant is aware of every lesser penalty that could be imposed.”
State v. Liles, 2019-Ohio-3029, ¶ 19 (3rd Dist.). Indeed, the Reagan Tokes Law does
describe how a sentencing court must calculate an offender’s presumptive minimum
prison term, triggering events that may extend that presumptive minimum sentence, and
Case No. 2023-G-0041 other details. However, these details are not required in order to obtain a knowing,
intelligent, and voluntary plea under Crim.R. 11(C)(2)(a).
{¶50} I agree that the trial court did not fully comply with the non-constitutional
requirements set forth in Crim.R. 11(C)(2)(a). The trial court inappropriately relied on the
prosecutor to fill in certain gaps in the court’s explanation, such as the license
suspensions for each count and the maximum fine. See State v. Bakos, 2023-Ohio-2827,
¶ 23 (11th Dist.) (a mandatory license suspension is part of the maximum penalty and
implicates the “maximum penalty involved” requirements of Crim.R. 11(C)(2)(a).). But
this was a deficiency, not a complete failure.
{¶51} In support of his Reagan Tokes arguments, appellant relies on State v.
Amin, 2023-Ohio-3761 (11th Dist.). In Amin, the trial court said “normally I would advise
you of the maximum penalties but they’ve been set forth in the plea agreement itself. I’m
going to ask [the prosecutor] do you have an opinion whether that’s sufficient to be able
to not repeat them all.” Id. at ¶ 10.
{¶52} We found “the trial court’s advisement regarding the maximum penalty was
wholly deficient inasmuch as it communicated contradictory information to Amin without
any effort to explain the significance of definite and indefinite sentencing under the
Reagan Tokes Law.” Id. at ¶ 12. We also said that it was improper for the trial court to
rely on the prosecutor’s deficient statement of the maximum penalty. Id. at ¶ 13.
{¶53} Even though Amin said that she understood the prosecutor’s advisement,
it was “not at all clear that her ‘understanding’ properly reflected the operation of the
Reagan Tokes Law” and the court failed to use or explain the terms “stated minimum
Case No. 2023-G-0041 term” and “maximum prison term.” Id., citing R.C. 2929.14(A)(2)(a) and R.C.
2929,144(B)(1).
{¶54} A guilty plea is not made knowingly, intelligently, and voluntarily where the
trial court completely fails to advise the defendant of the indefinite, maximum sentence
he or she will be subject to under the Reagan Tokes Law. State v. Jackson, 2022-Ohio-
3449, ¶ 7 (1st Dist.); State v. Fikes, 2021-Ohio-2597, ¶ 11-13 (1st Dist.).
{¶55} This case is unlike Amin. In Amin, the trial court did not personally address
the defendant at all. The court said that the plea agreement covered the maximum
penalties and then delegated the entire plea colloquy to the prosecutor.
{¶56} That is not what happened here. This was not a complete failure to advise
appellant of the maximum term of incarceration involved as there plainly was in Amin.
The court personally addressed appellant and stated that the “fixed term would be an 8
year prison sentence with the possibility of an indefinite term of up to 12 years.” The court
similarly informed appellant of the maximum term of incarceration for the two
misdemeanor counts. The trial court did personally address appellant and provided
information about the maximum penalty involved in his offenses.
{¶57} However, the prosecutor, not the court, later explained the maximum fines
and associated license suspensions for each of the counts. In Amin, the information the
prosecutor gave was incorrect. Here, the prosecutor correctly added information the trial
court had omitted. The trial court thanked the prosecutor for the clarification.
{¶58} Further, it does not follow that a trial court, as part of ensuring that a
defendant is aware of the maximum penalty involved during a Crim.R. 11 plea colloquy,
must exhaustively notify the defendant of the machinations of the Reagan Tokes Law. To
Case No. 2023-G-0041 be sure, the trial court must, at least, inform the appellant of the maximum penalty
involved. If this maximum penalty is subject to indefinite sentencing under the Reagan
Tokes Law, then the trial court must notify the defendant of the minimum and maximum
components of the indefinite sentence. R.C. 2929.144(B) provides that “the maximum
prison term shall be equal to the minimum term imposed on the offender under division
(A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code plus fifty per cent of that term.”
{¶59} Here, the trial court informed appellant that his maximum sentence would
be eight years “with the possibility of an indefinite term of up to 12 years.” This was an
accurate statement of the possible maximum definite and indefinite sentence appellant
faced. Again, this was not a complete failure.
2. Postrelease Control:
{¶60} Appellant also argues that the trial court failed to properly inform him about
postrelease control. At the hearing, the trial court informed appellant that he would be
subject to a period of three years’ postrelease control and explained that postrelease
control is a period of supervision after release from imprisonment. Further, the court
explained the possible consequences for violations of postrelease control. This
explanation does not constitute a complete failure to inform appellant of the maximum
penalty involved in his plea. Although the trial court said appellant “may” be subject to
postrelease control, the prosecutor did state that there was “a mandatory minimum of 18
months on that as well.”
{¶61} This case is unlike State v. Sarkozy, 2008-Ohio-509, where the Ohio
Supreme Court held that a failure to mention postrelease control where the defendant
Case No. 2023-G-0041 was subject to a mandatory five years of postrelease control was a complete failure to
comply with the requirements of Crim.R. 11. Id. at ¶ 22.
{¶62} Further, Sarkozy was decided prior to the Supreme Court’s decision in
Dangler. Appellate courts, applying the old substantial compliance standard, have
concluded that "even in cases where the court has mistakenly or inadvertently implied
that a prison term might be imposed upon entry of the guilty plea, rather than informing
the defendant directly that a mandatory prison term will be imposed, we find that
substantial compliance with Crim.R. 11 may still be found.” State v. Abuhashish, 2008-
Ohio-3849, ¶ 35 (6th Dist.).
{¶63} And under the current Dangler standard, this court ruled in State v. Manyo,
2023-Ohio-267 (11th Dist.), that misinforming a defendant that postrelease control was
discretionary rather than mandatory, was a “failure to comply fully with the dictates of Rule
11,” but not a complete failure. Id. at ¶ 25. We held there was no arguable merit in the
position that the plea was thereby invalid” because the appellant was unable to
demonstrate prejudice resulting from the trial court’s misstatement. Id. at ¶ 28. “[T]here
is no colorable basis on which to argue that Manyo would not have entered his plea had
the trial court properly advised him regarding postrelease control at the plea colloquy.”).
{¶64} The same logic should apply here. The trial court’s misstatement (with or
without the prosecutor’s correction) was not a complete failure to comply with the
nonconstitutional requirements set forth in Crim.R. 11. Appellant has not even articulated
the possibility of prejudice, much less demonstrated it. There is no basis to invalidate
appellant’s plea.
Case No. 2023-G-0041 3. Judicial Release:
{¶65} Appellant also argues that the trial court failed to mention judicial release
during his plea hearing. While it is true that a “trial court may not misinform a defendant
regarding his or her eligibility for judicial release, Crim.R. 11(C) does not place a specific
burden on the trial court to inform a defendant of his or her eligibility for judicial release.”
State v. Brownlee, 2023-Ohio-1090, ¶ 24 (11th Dist.). Appellant has not suggested that
the trial court misinformed him regarding his judicial release eligibility, and it was not
incumbent on the trial court to address judicial release during the plea hearing.
4. Notice of Appellate Rights:
{¶66} A trial court has an “obligation to advise a defendant of his right to appeal,”
however, that obligation only “becomes operative ‘after imposing sentence,’ and has no
bearing on the validity of a guilty plea.” State v. Nicholas, 2010-Ohio-1451, ¶ 26 (11th
Dist.), quoting State v. Atkinsom, 2006-Ohio-5806, ¶ 22 (9th Dist.). While appellant did
not timely file the instant appeal, we granted leave to file a delayed appeal. Thus,
regardless of whether the trial court committed error by failing to inform appellant of his
appellate rights, appellant has failed to demonstrate how that failure has prejudiced him.
We find no reversible error in this instance. See State v. Middleton, 2005-Ohio-681, ¶ 25
(12th Dist.) (finding no reversible error where appellant failed to show prejudice from trial
court’s error with regard to Crim.R. 32(B)(2) and (3)).
Mandatory Minimum Sentence
{¶67} Although not raised by appellant directly in his merit brief, the majority finds
the trial court failed to inform appellant that he was subject to a mandatory prison term.
However, Crim.R. 11 does not require a trial court to determine that a defendant
Case No. 2023-G-0041 understands the minimum penalty involved. State v. Liles, 2019-Ohio-3029, ¶ 19 (3rd
Dist.) (Crim.R. 11(C)(2)(a) “does not require the trial court to determine whether the
defendant is aware of every lesser penalty that could be imposed.”). Further, where a
trial court fails to inform a defendant of a mandatory sentence, such a failure is non-
constitutional in nature. Thus, the defendant must demonstrate that this failure resulted
in prejudice (State v. Burns, 2023-Ohio-3121, ¶ 21 (11th Dist.)). Appellant has not raised
this issue, has not asserted prejudice, and the trial court’s failure was non-constitutional.
{¶68} For the foregoing reasons, I respectfully dissent.
.
Case No. 2023-G-0041