[Cite as State v. Midkiff, 2023-Ohio-1835.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Appellee : C.A. No. 2022-CA-62 : v. : Trial Court Case No. 22-CR-0442 : DUSTIN MIDKIFF : (Criminal Appeal from Common Pleas : Court) Appellant : :
...........
OPINION
Rendered on June 2, 2023
IAN A. RICHARDSON, Attorney for Appellee
LUCAS W. WILDER, Attorney for Appellant
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Dustin Midkiff appeals from his conviction in the Clark
County Court of Common Pleas after pleading guilty to one count of robbery, one count
of attempted aggravated robbery, and one count of failure to comply. In support of his
appeal, Midkiff contends that the trial court abused its discretion by denying his motions
for continuance. Midkiff also contends that his sentence was contrary to law because, at -2-
the sentencing hearing, the trial court failed to provide the statutorily required notices set
forth in R.C. 2929.19(B)(2)(c). For the reasons outlined below, we conclude that Midkiff’s
guilty plea functioned as a waiver of any alleged error in the trial court’s denial of his
motions for continuance, but that his sentence was contrary to law due to the trial court’s
failure to provide the notifications required under R.C. 2929.19(B)(2)(c). Therefore, the
judgment of the trial court will be affirmed in part and reversed in part, and the cause will
be remanded to the trial court for the sole purpose of resentencing Midkiff.
I. Facts and Course of Proceedings
{¶ 2} On May 23, 2022, a Clark County grand jury indicted Midkiff on one count of
robbery, a third-degree felony in violation of R.C. 2911.02(A)(3); one count of aggravated
robbery, a first-degree felony in violation of R.C. 2911.01(A)(1); one count of failure to
comply, a fourth-degree felony in violation of R.C. 2921.331(B) and (C)(4); and one count
of failure to comply, a third-degree felony in violation of R.C. 2921.331(B) and (C)(5).
{¶ 3} A jury trial was scheduled for August 9, 2022. A plea agreement was
attempted the morning of August 8, 2022, but the trial court rejected it. That afternoon,
Midkiff filed a motion requesting that the trial judge either recuse himself or continue the
trial so that Midkiff could “consider filing an affidavit of disqualification with the Ohio
Supreme Court.” Later that afternoon, the trial court denied both the recusal request and
the motion for a continuance. On the day of trial, Midkiff filed a motion to compel
production of video and photo evidence and to continue the trial. The trial court granted
the motion to compel but denied the motion for continuance. -3-
{¶ 4} After the jury was empaneled, Midkiff entered into a revised plea agreement
with the State, whereby the State agreed to amend count two to attempted aggravated
robbery and to dismiss count three as well as the gun specification on count two.
Pursuant to the agreement, Midkiff agreed to plead guilty to count one, amended count
two, and count four. In return, Midkiff would receive an agreed sentence of two years in
prison on count one, six to nine years in prison on count two, and two years in prison on
count four, with all three prison terms to run consecutively. The trial court accepted the
plea agreement and sentenced Midkiff accordingly. Midkiff filed a timely notice of appeal.
II. Midkiff Waived Any Error in The Trial Court’s Denial of His Motions for a
Continuance of The Trial
{¶ 5} Midkiff’s first assignment of error states “Whether the trial court erred in
denying Midkiff’s requests for continuance.”
{¶ 6} Midkiff contends that the trial court abused its discretion by denying two
separate requests for a continuance. According to Midkiff, the first request was made the
day before trial when Midkiff “requested a continuance to allow him the ability to file an
affidavit of disqualification with the Ohio Supreme Court.” Appellant’s Brief, p. 3. The
second request, filed the morning of trial, “was made because Midkiff was not in
possession of discovery[.]” Id. The trial court granted the request for discovery but denied
the request for a continuance.
{¶ 7} The State counters that Midkiff’s guilty plea effectively waived any potential
issues regarding the trial court’s denial of his motions to continue. The State concludes -4-
that “Defendant’s guilty plea was made intelligently, knowingly, and voluntarily; the trial
court’s denial of the motions to continue did not affect the voluntariness of his plea, and
Defendant’s guilty plea has waived any argument regarding his motions to continue.”
Appellee’s Brief, p. 3-4.
{¶ 8} “ ‘A criminal defendant who enters a voluntary plea of guilty while represented
by competent counsel waives all nonjurisdictional defects in prior stages of the
proceedings.’ ” State v. Cruse, 10th Dist. Franklin Nos. 01AP-1074, 01AP-1075, 2002-
Ohio-3259, ¶ 22, quoting State v. Durst, 2d Dist. Montgomery No. 11384, 1989 WL
150797, *1 (Dec. 13, 1989). Once a defendant enters a guilty plea, he waives any error
in the trial court's refusal to grant a requested continuance. State v. Rice, 9th Dist. Summit
No. 24932, 2010-Ohio-1825, ¶ 9. “The only exception would be if the denial of the motion
for a continuance of the trial date effectively coerced [the defendant’s] plea, i.e., made it
other than voluntary.” State v. Lane, 2d Dist. Greene No. 2001-CA-91, 2002 WL 626164,
*5 (Apr. 19, 2002). Midkiff does not allege that the denial of his requested continuances
coerced his guilty plea or made it other than voluntary. Therefore, his first assignment of
error is overruled.
III. The State Concedes Error Due to the Trial Court’s Failure to Provide The
Required Notifications in R.C. 2929.19(B)(2)(c)
{¶ 9} Midkiff’s second assignment of error states “Midkiff’s sentence is contrary to
law because the trial court did not advise him of all the 2929.19(B)(2)(c) notifications.”
{¶ 10} When a trial court imposes a non-life felony indefinite sentence pursuant to -5-
the Reagan Tokes Law, R.C. 2929.19(B)(2)(c) requires that the trial court provide the
following notifications to the defendant: (1) it is rebuttably presumed that the offender will
be released on the expiration of the minimum prison term imposed; (2) the department of
rehabilitation and correction may rebut the presumption at a hearing by making
determinations regarding the offender's conduct while confined, the offender's
rehabilitation, the offender's threat to society, the offender's restrictive housing, and the
offender's security classification; (3) if the presumption is rebutted, the department may
maintain the offender's incarceration for the length of time the department determines to
be reasonable; (4) the department may make the specified determinations and maintain
the offender's incarceration more than one time; and (5) the offender must be released
no later than the expiration of the maximum prison term. R.C. 2929.19(B)(2)(c)(i)-(v).
{¶ 11} According to Midkiff, “[a] sentence is contrary to law if a trial court imposes
an indefinite prison term pursuant to the Reagan Tokes Act and fails to orally advise the
defendant of all of the R.C. 2929.19(B)(2)(c) notifications at disposition.” Appellant’s
Brief, p. 9, citing State v.
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[Cite as State v. Midkiff, 2023-Ohio-1835.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Appellee : C.A. No. 2022-CA-62 : v. : Trial Court Case No. 22-CR-0442 : DUSTIN MIDKIFF : (Criminal Appeal from Common Pleas : Court) Appellant : :
...........
OPINION
Rendered on June 2, 2023
IAN A. RICHARDSON, Attorney for Appellee
LUCAS W. WILDER, Attorney for Appellant
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Dustin Midkiff appeals from his conviction in the Clark
County Court of Common Pleas after pleading guilty to one count of robbery, one count
of attempted aggravated robbery, and one count of failure to comply. In support of his
appeal, Midkiff contends that the trial court abused its discretion by denying his motions
for continuance. Midkiff also contends that his sentence was contrary to law because, at -2-
the sentencing hearing, the trial court failed to provide the statutorily required notices set
forth in R.C. 2929.19(B)(2)(c). For the reasons outlined below, we conclude that Midkiff’s
guilty plea functioned as a waiver of any alleged error in the trial court’s denial of his
motions for continuance, but that his sentence was contrary to law due to the trial court’s
failure to provide the notifications required under R.C. 2929.19(B)(2)(c). Therefore, the
judgment of the trial court will be affirmed in part and reversed in part, and the cause will
be remanded to the trial court for the sole purpose of resentencing Midkiff.
I. Facts and Course of Proceedings
{¶ 2} On May 23, 2022, a Clark County grand jury indicted Midkiff on one count of
robbery, a third-degree felony in violation of R.C. 2911.02(A)(3); one count of aggravated
robbery, a first-degree felony in violation of R.C. 2911.01(A)(1); one count of failure to
comply, a fourth-degree felony in violation of R.C. 2921.331(B) and (C)(4); and one count
of failure to comply, a third-degree felony in violation of R.C. 2921.331(B) and (C)(5).
{¶ 3} A jury trial was scheduled for August 9, 2022. A plea agreement was
attempted the morning of August 8, 2022, but the trial court rejected it. That afternoon,
Midkiff filed a motion requesting that the trial judge either recuse himself or continue the
trial so that Midkiff could “consider filing an affidavit of disqualification with the Ohio
Supreme Court.” Later that afternoon, the trial court denied both the recusal request and
the motion for a continuance. On the day of trial, Midkiff filed a motion to compel
production of video and photo evidence and to continue the trial. The trial court granted
the motion to compel but denied the motion for continuance. -3-
{¶ 4} After the jury was empaneled, Midkiff entered into a revised plea agreement
with the State, whereby the State agreed to amend count two to attempted aggravated
robbery and to dismiss count three as well as the gun specification on count two.
Pursuant to the agreement, Midkiff agreed to plead guilty to count one, amended count
two, and count four. In return, Midkiff would receive an agreed sentence of two years in
prison on count one, six to nine years in prison on count two, and two years in prison on
count four, with all three prison terms to run consecutively. The trial court accepted the
plea agreement and sentenced Midkiff accordingly. Midkiff filed a timely notice of appeal.
II. Midkiff Waived Any Error in The Trial Court’s Denial of His Motions for a
Continuance of The Trial
{¶ 5} Midkiff’s first assignment of error states “Whether the trial court erred in
denying Midkiff’s requests for continuance.”
{¶ 6} Midkiff contends that the trial court abused its discretion by denying two
separate requests for a continuance. According to Midkiff, the first request was made the
day before trial when Midkiff “requested a continuance to allow him the ability to file an
affidavit of disqualification with the Ohio Supreme Court.” Appellant’s Brief, p. 3. The
second request, filed the morning of trial, “was made because Midkiff was not in
possession of discovery[.]” Id. The trial court granted the request for discovery but denied
the request for a continuance.
{¶ 7} The State counters that Midkiff’s guilty plea effectively waived any potential
issues regarding the trial court’s denial of his motions to continue. The State concludes -4-
that “Defendant’s guilty plea was made intelligently, knowingly, and voluntarily; the trial
court’s denial of the motions to continue did not affect the voluntariness of his plea, and
Defendant’s guilty plea has waived any argument regarding his motions to continue.”
Appellee’s Brief, p. 3-4.
{¶ 8} “ ‘A criminal defendant who enters a voluntary plea of guilty while represented
by competent counsel waives all nonjurisdictional defects in prior stages of the
proceedings.’ ” State v. Cruse, 10th Dist. Franklin Nos. 01AP-1074, 01AP-1075, 2002-
Ohio-3259, ¶ 22, quoting State v. Durst, 2d Dist. Montgomery No. 11384, 1989 WL
150797, *1 (Dec. 13, 1989). Once a defendant enters a guilty plea, he waives any error
in the trial court's refusal to grant a requested continuance. State v. Rice, 9th Dist. Summit
No. 24932, 2010-Ohio-1825, ¶ 9. “The only exception would be if the denial of the motion
for a continuance of the trial date effectively coerced [the defendant’s] plea, i.e., made it
other than voluntary.” State v. Lane, 2d Dist. Greene No. 2001-CA-91, 2002 WL 626164,
*5 (Apr. 19, 2002). Midkiff does not allege that the denial of his requested continuances
coerced his guilty plea or made it other than voluntary. Therefore, his first assignment of
error is overruled.
III. The State Concedes Error Due to the Trial Court’s Failure to Provide The
Required Notifications in R.C. 2929.19(B)(2)(c)
{¶ 9} Midkiff’s second assignment of error states “Midkiff’s sentence is contrary to
law because the trial court did not advise him of all the 2929.19(B)(2)(c) notifications.”
{¶ 10} When a trial court imposes a non-life felony indefinite sentence pursuant to -5-
the Reagan Tokes Law, R.C. 2929.19(B)(2)(c) requires that the trial court provide the
following notifications to the defendant: (1) it is rebuttably presumed that the offender will
be released on the expiration of the minimum prison term imposed; (2) the department of
rehabilitation and correction may rebut the presumption at a hearing by making
determinations regarding the offender's conduct while confined, the offender's
rehabilitation, the offender's threat to society, the offender's restrictive housing, and the
offender's security classification; (3) if the presumption is rebutted, the department may
maintain the offender's incarceration for the length of time the department determines to
be reasonable; (4) the department may make the specified determinations and maintain
the offender's incarceration more than one time; and (5) the offender must be released
no later than the expiration of the maximum prison term. R.C. 2929.19(B)(2)(c)(i)-(v).
{¶ 11} According to Midkiff, “[a] sentence is contrary to law if a trial court imposes
an indefinite prison term pursuant to the Reagan Tokes Act and fails to orally advise the
defendant of all of the R.C. 2929.19(B)(2)(c) notifications at disposition.” Appellant’s
Brief, p. 9, citing State v. Massie, 2d Dist. Clark No. 2020-CA-50, 2021-Ohio-3376. Citing
to the transcript, Midkiff contends that “the trial court did not fully advise Midkiff of the
notifications under 2929.19(B)(2)(c).” Appellant’s Brief, p. 9.
{¶ 12} The State concedes error on this assignment of error. According to the
State, “[a]lthough the trial court briefly explained indefinite sentencing and the
presumption that Defendant would be released after the minimum term, it did not fully
restate the notifications prescribed by R.C. 2929.19(B)(2(c).” Appellee’s Brief, p. 4.
Therefore, the State concludes that “this Court should remand the case solely for the -6-
purpose of providing Defendant with the required sentencing notifications.” Id.
{¶ 13} The trial court in this case generally advised Midkiff at the sentencing
hearing that there was a presumption that he would be released after serving the
minimum term of his sentence, but this presumption could be rebutted based on Midkiff’s
conduct while in prison. August 9, 2022 Transcript, p. 10-11, 14-15. However, the trial
court neglected to advise him of the remaining notifications set forth in R.C.
2929.19(B)(2)(c). Accordingly, Midkiff’s sentence was contrary to law, and his second
assignment of error is sustained. See Massie at ¶ 23.
IV. Conclusion
{¶ 14} The judgment of the trial court is reversed as it pertains to Midkiff’s
sentence; in all other respects, the judgment is affirmed. The matter shall be remanded
to the trial court for the sole purpose of resentencing Midkiff in accordance with R.C.
2929.19(B)(2)(c).
WELBAUM, P.J. and HUFFMAN, J., concur.