[Cite as State v. Johnson, 2025-Ohio-149.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-240142 C-240143 Plaintiff-Appellee, : TRIAL NOS. B-2201011 B-2103844 vs. :
DOMICO JOHNSON, : OPINION Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: January 22, 2025
Connie Pillich, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Jon R. Sinclair, for Defendant-Appellant. [Cite as State v. Johnson, 2025-Ohio-149.]
CROUSE, Judge.
{¶1} Defendant-appellant Domico Johnson accepted a plea deal to four
third-degree felony offenses—two counts each in two separate cases. The agreed-upon,
recommended sentence on each count was one year in prison, with three of those years
to run concurrently and one to run consecutively, for a total of 24 months in prison.
{¶2} In one assignment of error, Johnson challenges the voluntariness of his
pleas, asserting (1) that the trial court failed to inform him during the plea colloquy
that one of his prison sentences was required to run consecutively to his other prison
sentences and (2) that the trial court incorrectly informed him about the mandatory
driver’s license suspension required by one of his convictions.
{¶3} Johnson is correct; the trial court erred in both respects during his plea
colloquy. However, because the trial court at least partially complied with Crim.R.
11(C), and because Johnson has failed to show that he was prejudiced by the error, we
overrule Johnson’s sole assignment of error and affirm his convictions.
I. BACKGROUND
{¶4} On August 4, 2021, Domico Johnson was charged in a four-count
indictment with one count each of having a weapon under a disability,
R.C. 2923.13(A)(3); tampering with evidence, R.C. 2921.12(A)(1); aggravated
trafficking in methamphetamine, R.C. 2925.03(A)(2); and aggravated possession of
methamphetamine, R.C. 2925.11(A). All four offenses were charged as third-degree
felonies, and all were alleged to have occurred “on or about” July 27, 2021.
{¶5} On March 11, 2022, Johnson was indicted again on seven more
charges—two counts of first-degree felony trafficking in a fentanyl-related compound
under R.C. 2925.03(A)(2), two counts of first-degree felony possession of a fentanyl-
related compound under R.C. 2925.11(A), one count of second-degree felony OHIO FIRST DISTRICT COURT OF APPEALS
trafficking in heroin under R.C. 2925.03(A)(2), one count of second-degree felony
possession of heroin under R.C. 2925.11(A), and one count of failing to comply with
an order or signal of a police officer under R.C. 2921.331(B), charged as a third-degree
felony. The failure-to-comply charge stemmed from an incident on October 5, 2021,
while the other six arose out of conduct occurring “on or about” September 21, 2021.
{¶6} Then began this case’s long and somewhat tortured pretrial history.
Following two and a half years of revolving-door appointed counsel, allegations of
deficiency, a period of self-representation, and repeatedly continued proceedings,
Johnson entered into a negotiated plea agreement and, on the eve of his trial in
February 2024, twice attempted to plead guilty.
{¶7} The first of Johnson’s two plea hearings took place on a Friday. During
that hearing, Johnson had suggested he did not wish to plead, but was doing so
because he lacked faith that his attorneys would fight for him. He said he was willing
to plead guilty if his alternative was going to trial with his then-current counsel, but
only because he felt trapped by his inability to find counsel he trusted. Based on these
and similar conflicting statements, the trial court was not confident that Johnson’s
waiver of his trial rights was knowing, intelligent, and voluntary, and so it refused to
accept his guilty pleas.
{¶8} The following Monday, Johnson appeared in court once again to plead
guilty. When asked what had changed over the weekend, Johnson replied, “Just the
conversation with my kids and my mother and my girlfriend. Just family members
told me to make a better decision.” Johnson did not raise any of his previously-voiced
concerns with his attorneys.
{¶9} Counsel for the State explained the plea agreements that Johnson had
signed. Under the agreements, the State agreed to dismiss 7 of the 11 pending charges,
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and Johnson agreed to plead guilty to the remaining four. In the case numbered B-
2103844, he pled guilty to the weapons-under-a-disability charge and the aggravated-
methamphetamine-trafficking charge, both felonies of the third degree. And in the
case numbered B-2201011, Johnson pled guilty to one count of trafficking in a
fentanyl-related compound, which the State agreed to reduce to a third-degree felony,
and one count of failure to comply with an order or signal of an officer, also a third-
degree felony. Johnson and the State agreed to a recommended sentence of one year
on each of the four counts, three to run concurrently, and the fourth (for the failure-
to-comply charge) to run consecutively, for a total of two years in prison.
{¶10} During the plea colloquy, the trial court made sure that Johnson
understood that it had the power to sentence him to more prison time than the parties
agreed to in the plea agreements. It also advised him that “the maximum penalty on
each count on each case is 36 months in prison and a $10,000 fine,” and that “[o]n the
failure to comply charge on the B22 case, there is an additional potential penalty, a
suspension of your driver’s license, between five months and six years.” The trial court
confirmed that Johnson understood the constitutional rights he was waiving, and that
he had read and understood his signed plea-agreement forms. After finding that
Johnson had “made a knowing, intelligent, and voluntary waiver” of his rights, the trial
court accepted his guilty pleas.
{¶11} The parties waived the presentence investigation, and the trial court
imposed the aggregate 24-month sentence agreed upon by the parties, crediting
Johnson for time-served—125 days in the case numbered B-2103844 and 115 days in
the case numbered B-2201011. The court then stayed execution of its judgment for
about a month, to give Johnson time to make arrangements for the care of his children
and to attend his girlfriend’s graduation.
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{¶12} This appeal timely followed.
II. CRIM.R. 11 ANALYSIS
{¶13} In his sole assignment of error, Johnson contends that his guilty pleas
were not knowing, intelligent, and voluntary. First, he argues that the trial court failed
to inform him that, under R.C. 2921.331, he was required to serve any prison term
imposed for his failure-to-comply violation consecutively to all other prison sentences.
Second, he argues that the trial court failed to inform him that suspension of his
driver’s license was mandatory and misstated the length of the suspension. He argues
that these failures caused him to plead without “understanding . . . the maximum
penalty involved,” in violation of Crim.R. 11(C)(2)(a).
{¶14} “Because a guilty plea operates as a waiver of several constitutional
rights, the validity of a guilty plea turns on whether that plea was done voluntarily,
knowingly, and intelligently, with sufficient awareness of the relevant circumstances
and likely consequences.” (Cleaned up.) State v. Davis, 2023-Ohio-4389, ¶ 7 (1st
Dist.); see Boykin v. Alabama, 395 U.S. 238 (1969). “To determine whether a plea was
entered knowingly, voluntarily, and intelligently, an appellate court examines the
totality of the circumstances through a de novo review of the record.” (Cleaned up.)
State v. Davis, 2024-Ohio-2793, ¶ 15 (1st Dist.).
{¶15} “Crim. R. 11(C) was adopted in order to facilitate a more accurate
determination of the voluntariness of a defendant’s plea by ensuring an adequate
record for review.” State v. Nero, 56 Ohio St.3d 106, 107 (1990). The Ohio Supreme
Court has held that Crim.R. 11 “fully encompasses those procedural requirements
established by the United States Constitution.” State v. Johnson, 40 Ohio St.3d 130,
133 (1988), citing State v. Stewart, 51 Ohio St.2d 86, 88 (1977).
{¶16} When appellants challenge the voluntariness of their pleas under
5 OHIO FIRST DISTRICT COURT OF APPEALS
Crim.R. 11, “reviewing courts must engage in a multitiered analysis to determine
whether the trial judge failed to explain the defendant’s constitutional or
nonconstitutional rights and, if there was a failure, to determine the significance of the
failure and the appropriate remedy.” State v. Clark, 2008-Ohio-3748, ¶ 30.
{¶17} This analysis includes determining whether the trial court adequately
complied with Crim.R. 11’s constitutional requirements, as well as its
nonconstitutional, or rule-based requirements. Johnson argues that the trial court
failed to comply with Crim.R. 11 by failing to determine that he understood the
maximum penalties involved. The maximum-penalty provision in Crim.R. 11(C)(2)(a)
is one of the rule’s nonconstitutional requirements, State v. Dangler,
2020-Ohio-2765, ¶ 23, and requires a trial court to “determin[e] that the defendant is
making the plea voluntarily, with understanding of the nature of the charges and of
the maximum penalty involved.” Crim.R. 11(C)(2)(a).
{¶18} We recently clarified the procedure for assessing a trial court’s
compliance with Crim.R. 11’s nonconstitutional requirements in State v. Walker,
2024-Ohio-6079, ¶ 28 (1st Dist.):
[I]f we find that the trial court did not comply with a nonconstitutional
provision of Crim.R. 11, then we jump straight to determining “whether
the trial court partially complied . . . with the rule,” or “failed to comply”
with it entirely. (Emphasis sic.) [Clark at ¶ 32]; accord State v. Veite,
2021-Ohio-290, ¶ 16 (1st Dist.). If the trial court’s advisement amounted
to a complete failure to comply with the rule, then the defendant’s plea
will be deemed per se involuntary. See Clark at ¶ 32; Veite at ¶ 16-17;
Dangler at ¶ 15. Otherwise, if the trial court partially complied, the
defendant must show that the error prejudiced his decision to plead
6 OHIO FIRST DISTRICT COURT OF APPEALS
guilty before it can be overturned. See Dangler at ¶ 16.
{¶19} Walker also clarified the sometimes-murky line between a complete
failure to comply and partial compliance in the maximum-penalty context. A violation
of that provision constitutes a complete failure to comply if it “‘involves a trial court’s
complete omission in advising [the defendant] about a distinct component of the
maximum penalty.’” (Bracketed text in original.) Walker at ¶ 29, quoting State v.
Cook, 2024-Ohio-4771, ¶ 34 (1st Dist.). Thus, we said, “a trial court completely fails to
comply with Crim.R. 11(C)(2)(a) when it neglects to inform a defendant about a class
of penalties they may suffer.” (Emphasis added.) Id. For example, if a trial court
completely fails to mention the maximum prison term a defendant is facing, or that
the defendant may be subject to a fine or postrelease control, then that is considered
a complete failure to comply with the maximum-penalty provision. Id., citing State v.
Wilson, 2024-Ohio-1290, ¶ 17 (1st Dist.), State v. Rogers, 2020-Ohio-4102, ¶ 23 (12th
Dist.), and State v. Sarkozy, 2008-Ohio-509, ¶ 22. But a trial court is deemed to have
partially complied with Crim.R. 11(C)(2)(a) if it mentions all components of the
maximum penalty during the plea colloquy, even if the advisement as to any one is
incomplete or inaccurate. Id. at ¶ 30 and 39.
Mandatory Consecutive Sentences
{¶20} Johnson contends he was “not informed that if he was sentenced to a
prison term” for his failure-to-comply offense under R.C. 2921.331(B), that prison
term would have to “run consecutive to any other prison term.” He argues that the
trial court thus failed to uphold its responsibility under Crim.R. 11(C) to ensure he
understood “the maximum penalty involved” in entering his pleas, rendering his pleas
involuntary.
{¶21} Johnson was convicted under the 2021 version of Ohio’s failure-to-
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comply statute, with a harmful/dangerous conduct enhancement under
R.C. 2921.331(C)(5).1 With this enhancement, his offense became a third-degree
felony and had to be served “consecutively to any other prison term.” Former
R.C. 2921.331(D). Ohio courts have held that this “consecutive service mandate
applies where,” as here, “a defendant is being sentenced in two or more separate
cases.” State v. Smith, 2020-Ohio-914, ¶ 10 (8th Dist.); accord, e.g., State v. Jeffery,
2011-Ohio-2654, ¶ 48 (5th Dist.) (holding that “R.C. 2921.331(D) mandates a sentence
consecutive to appellee’s prior sentences” imposed for other cases in other counties).
{¶22} We hold that the trial court’s failure to inform Johnson that any prison
sentence for the failure-to-comply charge must be served consecutively to any other
prison sentence violated Crim.R. 11(C)(2)(a)’s maximum-penalty provision. This
result is dictated by our recent decision in Cook, 2024-Ohio-4771, at ¶ 38 (1st Dist.),
in which we held “that the failure to advise a defendant that a guilty plea to a failure to
comply charge carries a mandatory consecutive sentence under R.C. 2921.331(D)
violates Crim.R. 11(C).” The Cook rule is rooted in the qualitative difference between,
on the one hand, a sentence that may be “up to 36 months” and, on the other, a
sentence that could run for “up to 36 months, to be served consecutively with any
other sentence.” Thus, we have held that a “defendant who does not understand that
a mandatory prison term will be added to any other term of incarceration cannot
understand the maximum sentence created by a guilty plea.” Id. at ¶ 38, citing State v.
1 The crimes to which Johnson pleaded guilty occurred between July 2021 and October 2021, but
the relevant sentencing statutes and provisions have changed slightly since that date. Unless otherwise stated, the amendment of a statute will not “[a]ffect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment,” unless that “penalty, forfeiture, or punishment for any offense is reduced by” the amendment. R.C. 1.58(A)(3) and (B). Because the amended versions of the statutes dictating Johnson’s sentences in this case do not purport to be retroactive, and because they do not lighten the penalty, punishment, or forfeiture imposed, we apply the sentencing provisions in effect on the dates in the indictment.
8 OHIO FIRST DISTRICT COURT OF APPEALS
Norman, 2009-Ohio-4044, ¶ 12 (8th Dist.).
{¶23} Despite failing to mention the mandatory consecutive character of the
failure-to-comply sentence, the trial court in this case did not entirely fail to mention
a class of penalties that could come with Johnson’s maximum sentence. Under Cook,
the maximum prison term a defendant faces on a failure-to-comply charge is not
merely the number of years he might be incarcerated, but also the fact that those years
must run consecutively to any other sentence. See id. at ¶ 38. Thus, the failure to
disclose that a sentence must run consecutively misses a part of the maximum prison
term a defendant may face. So, by otherwise “discussing [Johnson’s] maximum
potential prison exposure [on the failure-to-comply charge]—however inaccurately or
incompletely—the trial court at least partially complied with the rule.” See Walker,
2024-Ohio-6079, at ¶ 39 (1st Dist.).
{¶24} “[W]here the trial court has partially complied with the rule’s
nonconstitutional dictates, we must assess whether its partial deficiency had ‘a
prejudicial effect’ on the defendant.” Id. at ¶ 31, quoting Clark, 2008-Ohio-3748, at
¶ 32. This means that Johnson must show that, “but for the violation of Crim.R. 11,”
he would not have entered his guilty pleas. See id., citing Sarkozy, 2008-Ohio-509, at
¶ 20. “If the defendant was prejudiced, then his plea must be vacated as involuntary
under Crim.R. 11.” Id.
{¶25} Johnson asserts that he would not have pled guilty and would have
proceeded to trial, had he been properly apprised of the fact that his failure-to-comply
sentence would have to run consecutively. But Johnson offers no explanation of why
this fact would have altered his decision, and points to no other evidence of prejudice.
{¶26} In fact, the record contains evidence that Johnson had actual knowledge
that any prison sentence for his failure-to-comply charge had to run consecutively to
9 OHIO FIRST DISTRICT COURT OF APPEALS
his remaining charges. During a plea hearing just three days prior, at which the court
rejected Johnson’s guilty pleas, Johnson himself explained that, if he were to go to trial
and be found guilty of all counts, his minimum prison exposure would have been
“three years and nine months.” The most obvious way for Johnson to have reached
this total would have been to run all of his possible sentences concurrently, except for
one third-degree felony—like the failure-to-comply offense.2 If this is how Johnson
understood his minimum term, it suggests he knew at least one third-degree felony
carried a mandatory consecutive prison term. In addition, the record demonstrates
instances during prior hearings when Johnson’s lawyer referenced the mandatory
consecutive sentence for the failure-to-comply offense explicitly.
{¶27} The agreed sentences recommended in Johnson’s plea-change forms
also suggest that Johnson knew about the mandatory consecutive sentence for the
failure-to-comply charge. Johnson’s pleas involved four charges in two cases. On the
two change-of-plea forms, both of which bear Johnson’s signature, Johnson agreed to
a cumulative 24-month sentence, comprised of three 12-month sentences to run
concurrently, and one 12-month sentence to run consecutively. The agreements
specified the failure-to-comply sentence as the one running consecutively.
{¶28} Ultimately, the burden falls on Johnson to show that he suffered
prejudice from the trial court’s failure to follow Crim.R. 11 precisely. See Walker,
2024-Ohio-6079, at ¶ 40 (1st Dist.) (“Walker bears the burden of demonstrating that,
but for [the violation of Crim.R. 11(C)], he would not have pled guilty.”). Johnson has
2 Johnson’s indictments, prior to the pleas, contained several first-degree felonies, which carried
mandatory minimum terms of three years each. See former R.C. 2929.14(A)(1)(a). As such, if Johnson received all minimum sentences, and if those sentences ran concurrently, then his term would have been three years. However, because the failure-to-comply charge had to be run consecutively, Johnson had stacked its minimum sentence of nine months on top of the three years, see former R.C. 2929.14(A)(3)(b), and thereby arrived at his total minimum term of three years and nine months.
10 OHIO FIRST DISTRICT COURT OF APPEALS
not offered such evidence. Instead, the record suggests that he had actual knowledge
of the mandatory consecutive sentence he faced, and Johnson has offered nothing to
refute that inference. We therefore hold that Johnson has failed to demonstrate that
the trial court’s partial deficiency prejudiced his decision to plead guilty.
{¶29} This conclusion does not contradict our holding in Cook,
2024-Ohio-4771 (1st Dist.). In that case, we held that the trial court had “entirely failed
to advise Cook of the mandatory consecutive sentence that attached to his failure to
comply guilty plea.” Id. at ¶ 39. At first blush, this language might suggest that we held
the trial court in Cook had completely failed to comply with Crim.R. 11(C). However,
further examination of Cook reveals that we actually found partial compliance.
{¶30} After concluding in Cook that the trial court’s plea colloquy had been
deficient, we proceeded to note that “[n]either the plea form Cook executed nor the
trial court at sentencing” had mentioned the mandatory consecutive sentence, before
holding that, “based on the record before us, Cook was not able to fully comprehend
the sentencing consequences created by his guilty plea.” Id. We do not examine plea
agreements to assess a trial court’s compliance with Crim.R. 11(C), partial or
otherwise. See Wilson, 2024-Ohio-1290, at ¶ 17 (1st Dist.) (“Although the plea form he
signed included the maximum sentence, Crim.R. 11 requires the trial court to
personally address the defendant and inform him of the maximum sentence during
the plea colloquy.”); see also State v. Gipson, 1998 Ohio App. LEXIS 4687, *9-10 (1st
Dist. Sept. 30, 1998) (describing how this court “examine[s] compliance with Crim.R.
11 by examining the trial court’s communication to the defendant, not the defendant’s
subjective understanding of his rights”). Our examination of the plea agreement in
Cook, therefore, was done to determine whether Cook had suffered prejudice. And our
further discussion of how the trial court had miscalculated Cook’s aggregate sentence
11 OHIO FIRST DISTRICT COURT OF APPEALS
likewise served to illustrate the prejudice he suffered from this omission. See Cook at
¶ 36.
{¶31} Reaching the question of prejudice in Cook means that we did not
believe that the trial court had completely failed to comply with Crim.R. 11(C).
Because, in Cook, we had no evidence of the defendant’s actual knowledge, we found
it relatively easy to see how a failure to mention a mandatory-consecutive-sentence
requirement would have prejudiced the defendant’s plea decision.
{¶32} Thus, we hold that the trial court in this case partially complied with its
duty under Crim.R. 11(C) by informing Johnson of the maximum duration of his
sentences, despite failing to inform him that the sentence for his failure-to-comply
charge had to run consecutively. And we further hold that Johnson has not
demonstrated that he was prejudiced by this deficiency.
Period of License Suspension
{¶33} Johnson also argues that his pleas were involuntary because he was not
“correctly advised of a mandatory driving suspension” for the failure-to-comply
charge.
{¶34} Under the then-current version of R.C. 2921.331, “[i]n addition to any
other sanction imposed for a felony violation of [R.C. 2921.331(B)], the court shall
impose a class two suspension from the range specified in [R.C. 4510.02(A)(2)].”
(Emphasis added.) Former R.C. 2921.331(E). R.C. 4510.02(A)(2), in turn, allows a
court to suspend a driver’s license for “a definite period of three years to life.”
{¶35} A suspension of the defendant’s driver’s license is part of “the maximum
penalty involved” in entering a guilty plea, which the court must ensure the defendant
understands under Crim.R. 11(C)(2)(a). See, e.g., State v. Walz, 2012-Ohio-4627, ¶ 12
(2d Dist.) (holding that trial court failed to comply with Crim.R. 11(C) by not informing
12 OHIO FIRST DISTRICT COURT OF APPEALS
defendant of mandatory license suspension); State v. Hendershot, 2017-Ohio-8112,
¶ 28 (5th Dist.) (describing the defendant’s “license suspension” as “a component of
the maximum penalty for the charges”); see generally State v. Fry-McMurray,
2016-Ohio-6998, ¶ 20-26 (7th Dist.) (summarizing several cases addressing license
suspensions under Crim.R. 11).
{¶36} During the plea colloquy, the trial court advised Johnson as follows:
THE COURT: On the failure to comply charge on the B22 case,
there is an additional potential penalty, a suspension of your driver’s
license, between five months and six years; do you understand that
potential penalty?
THE DEFENDANT: Yes, Ma’am.
This description was doubly wrong. First, it was wrong because the court referred to
the suspension twice as a “potential penalty,” when the statute uses mandatory
language: “the court shall impose . . . a suspension.” (Emphasis added.) Former
R.C. 2921.331(E). Second, it was wrong because the range of suspension durations did
not reflect the range from which the court was permitted to choose—the court said the
suspension could range from five months to six years, while the relevant statutory
provision set the range at “three years to life.” R.C. 4510.02(A)(2).
{¶37} However, the trial court’s failure of compliance was not “complete.” The
trial court attempted to inform Johnson of the driver’s license penalties; it was just
wrong about what those penalties were. Compare Fry-McMurray at ¶ 19, citing
Sarkozy, 2008-Ohio-509, at ¶ 22-23 (“There is a difference between a complete failure
to mention something like postrelease control and when there is some mention of it.”);
accord Walker, 2024-Ohio-6079, at ¶ 30 (1st Dist.). Because the trial court partially
complied, we turn to the prejudice prong.
13 OHIO FIRST DISTRICT COURT OF APPEALS
{¶38} Under the peculiar facts of this case, Johnson cannot show prejudice.
True, the trial court’s reference to license suspension was seriously inaccurate, both
because it claimed that the suspension was discretionary and because it provided an
inaccurate temporal range for that suspension. But the force of Johnson’s objection is
dampened when one realizes that the trial court did not impose the usually-mandatory
driver’s license suspension in his case. Nor did the State challenge that sentence or
seek such a suspension—Johnson’s signed plea agreements make no reference to any
driver’s-license suspension. And the trial court ultimately made no mention of any
license suspension when it announced Johnson’s sentences from the bench, nor in its
journal entry imposing the sentences.
* * *
{¶39} For the foregoing reasons, Johnson’s sole assignment of error is
overruled and the judgments of the trial court are affirmed.
Judgments affirmed.
BOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.