[Cite as State v. Wyke, 2025-Ohio-4990.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 24CA10 and 24CA11 : v. : : DECISION AND JUDGMENT NOAH E. WYKE, : ENTRY : Defendant-Appellant. : _____________________________________________________________ APPEARANCES:
L. Scott Petroff, Athens, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee. _____________________________________________________________
Smith, P.J.
{¶1} Noah E. Wyke, “appellant,” appeals two separate judgment en-
tries of sentence, both filed March 6, 2024, in the Ross County Court of
Common Pleas. Appellant entered pleas to three felony counts which arose
from two separate cases. These cases have been consolidated for purposes
of appeal. Herein, appellant challenges (1) the trial court’s denial of his oral
motion to withdraw his pleas; and (2) the consecutive nature of his sentence.
Based on our review of the record, we find no merit to appellant’s two Ross App. Nos. 24CA10 and 24CA11 2
assignments of error. Accordingly, both are overruled and the judgment of
the trial court is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On April 28, 2023, appellant was indicted on one count, Posses-
sion of a Fentanyl-Related Compound, R.C. 2925.11, a felony of the third
degree. This count was assigned Ross County Common Pleas case number
23CR205. On October 6, 2023, appellant was indicted on three counts: (1)
and (2) Having Weapons While Under Disability, R.C. 2923.13. felonies of
the third-degree; and (3) Assault, R.C. 2903.13, a misdemeanor of the first
degree. This indictment was assigned Ross County Common Pleas case
number 23CR432. At both arraignments on the separate cases, appellant en-
tered not guilty pleas. Throughout the trial court proceedings, appellant re-
mained out of jail on a recognizance bond.
{¶3} On December 13, 2023, the State and appellant reached a plea
agreement in case number 23CR205. The following discussion occurred in
open court:
Court: It’s case number 23CR205. The matter is be- fore the court for a plea hearing as the parties have advised that an agreement has been reached…Could the parties state the terms of the plea agreement?
Willie: Yes, Your Honor. So, this is a conditional recommendation. Mr. Wyke has two Ross App. Nos. 24CA10 and 24CA11 3
cases…The parties understand that if he is found guilty in the later case, the 432, which involves a weapons under disability count, the court would sentence Mr. Wyke to a prison sentence…Therefore, the State is go- ing to make a conditional recommendation. If Mr. Wyke pleads guilty to this, the sentenc- ing will be set out until after the trial in the other case. If he is found not guilty and the case dismissed, the state would recommend in this case community control with the con- dition of a CBCF…and a high stated sen- tence, 36 months as stated. It’s my under- standing that if he is found guilty in the trial in January for 432 and is sentenced to prison, the prosecutor will recommend prison for this case instead of community control for that. Additionally, Your Honor, the State is…agreeing that Mr. Wyke’s bond will stay put after his plea barring any other---any mis- conduct or anything like that outside of court…The State is not going to ask for, as a result of his plea, his bond being modified.
Thereafter, appellant entered a guilty plea, presented for his pre-sentence in-
vestigation (PSI), and a PSI report was prepared dated December 18, 2023.
{¶4} On January 23, 2024, appellant was back in court on case num-
ber 23CR432, and the parties reached another plea agreement. The trial
court asked appellant’s attorney to relate the terms of the plea agreement,
which was as follows:
The State is going to either dismiss or not prosecute the third count in the indictment the misdemeanor. Mr. Wyke will plead guilty to both weapons under disabilities of- fenses. We stipulate to the State’s that the counts merge. Ross App. Nos. 24CA10 and 24CA11 4
The State would recommend a sentence of nine months. Additionally, Your Honor, the case he previously pled to, the possession count, the State is going to recommend nine months on that case at sentencing, concurrent to nine months in this case. Additionally, parties are going to rec- ommend sentencing be set out. Mr. Wyke’s bond be con- tinued…until he comes back for sentencing.
Appellant then entered guilty pleas to Counts One and Two.
{¶5} Disposition of these matters was scheduled for February 15,
2024. However, on that date, appellant failed to appear. Appellant’s attor-
ney advised the court as follows:
I have been in contact with both Mr. Wyke and also a woman…from Ohio Health in Dublin. I have been ad- vised that Mr. Wyke at some point in the recent past had what I believe was a minor surgery that he was supposed to be recovered from by now but he is now reporting a fe- ver, other symptoms that they believe is consistent with being septic…She provided me a contact number…and said she would email the results of any testing they per- form. I asked specifically when he would be cleared to be released from the hospital and they said it would depend on those results. In light of that, Your Honor, I am asking for a continuance at this time. It has further been brought to my attention by the State that very recently Mr. Wyke is a suspect in a pending matter…I learned of this within the last 22 minutes that there was a report by the Ross County Sheriff’s Office…[t]hat Mr. Wyke entered a home out on 234 Tabernacle Road in Ross County…Stole money…Did not have permission to be there…
The prosecutor advised that the criminal report was taken the day before on
February 14, 2024. The bailiff reminded the court that sentencing was Ross App. Nos. 24CA10 and 24CA11 5
supposed to be on February 14th, but the court had continued the date to the
next day to accommodate appellant’s request. 1 A warrant was issued.
{¶6} Appellant eventually came before the court for sentencing on
March 4, 2023. At the sentencing hearing, appellant told the trial court that
he “never intentionally meant to miss court,” but he had “other things going
on.” The trial court noted that there was a new charge for failure to appear.
Concerning appellant’s possible sentence, appellant’s attorney advised the
court:
If his sentence was going to be nine months or 12 months for just the two cases that he currently has pled to he would rather just start serving those today. But if it’s the court was no longer going to be bound and the part of the five to six years that could potentially be imposed here he would- - in light of the way the negotiations went for this- he would rather withdraw his pleas and attempt to proceed to trial on this.
Court: Yeah, that is a solid no.
{¶7} Prior to imposition of sentence, the trial court asked appellant if
he would like to make a statement. Appellant responded:
Mr. Wyke: No, Your Honor. I mean I know I did not do the right thing by showing up to court but it was for a reason, but all I can do is go with your actions and change myself and thoughts as I do my time, that’s it.
1 Appellant had informed that the 14th was his mother’s birthday. Ross App. Nos. 24CA10 and 24CA11 6
Court: Very well. The Court has considered the plea negotiations, the statements of counsel and the statements of the defendant. The court has considered the overriding purposes and principles of felony sentencing pursuant to revised code 2929.11. The seriousness and recidivism factors pursuant to Revised Code Section 2929.12 and the guidance as to de- gree of felony pursuant to Revised Section 2929.13. The Court finds that the defendant not immutable [sic] to any community con- trol sanctions and that prison is an appropri- ate sanction. Therefore, for the offense of possession of a fentanyl-related compound, a third-degree felony in case number 23CR205, the defendant is sentenced to 18 months in prison. And for Count One, the State elected, Having Weapons While Under Disability, 18 months in prison. Court finds that consecutive service is necessary to pro- tect the public from further crime and to pun- ish the defendant and that consecutive sen- tences are not disproportionate to the serious- ness of the offender’s conduct and to the dan- ger the offender poses to the public. The court further finds that the offender commit- ted one or more of the multiple offenses while the offender was awaiting trial or sentencing. The Court further finds that the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to pro- tect the public from future crime by the of- fender. Therefore those cases are to be served consecutive.
{¶8} The trial court continued with post-release control notifications
and appellant’s appeal rights. Then the court inquired: Ross App. Nos. 24CA10 and 24CA11 7
Court: Do you understand your appellate rights?
Wyke: So, I just got three years?
Court: Yes, that’s correct.
Wyke: Three years.
Court: That’s correct.
Wyke: Did you say consecutive or concurrent? So, I can’t file for judicial release?
Court: You are going to have to talk to your attorney about judicial release. You just got 18 months on each, consecutive.
***
Wyke: Yes, but I want to know why wasn’t I able to withdraw my plea today?
Court: Because you don’t have a valid reason. I didn’t show up to court and now I want to withdraw my plea doesn’t cut it.
{¶9} The trial court entered its judgment entry of sentence in both
cases on March 6, 2024. Appellant timely appealed. Additional pertinent
facts are set forth below.
ASSIGNMENTS OF ERROR
I. BECAUSE THE RECORD DOES NOT SUPPORT CONSECUTIVE SENTENCES, THE TRIAL COURT ERRED BY IMPOSING CONSECU- TIVE SENTENCES. Ross App. Nos. 24CA10 and 24CA11 8
II. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION TO WITHDRAW HIS PLEA.
{¶10} For ease of analysis, we consider appellant’s assignments of er-
ror out of order.
Assignment of Error Two - Plea Withdrawal
{¶11} Appellant argues that the trial court abused its discretion when
it failed to entertain arguments on his oral motion to withdraw his plea and,
instead, dismissed the motion out of hand without proper consideration.
“[A] presentence motion to withdraw a guilty plea should be freely and lib-
erally granted.” State v. Gutierrrez, 2024-Ohio-at ¶ 44 (4th Dist.), quoting
State v. Xie, 62 Ohio St.3d 521, 527 (1992). But “a defendant does not have
an absolute right to withdraw a plea prior to sentencing.” Id. “[T]he trial
court must conduct a hearing to determine whether there is a reasonable and
legitimate basis for the withdrawal of the plea.” Id. “Absent an abuse of
discretion on the part of the trial court in making the ruling, its decision must
be affirmed.” Id. To conclude an abuse of discretion occurred, “[w]e must
find that the trial court's ruling was ‘unreasonable, arbitrary, or unconsciona-
ble.’ ” Id., quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980).
Legal Analysis Ross App. Nos. 24CA10 and 24CA11 9
{¶12} Crim.R. 32.1 “gives no guidelines for a trial court to use when
ruling on a presentence motion to withdraw a guilty plea.” Xie at 526. See
Guttierez at ¶ 45. “This court and others have identified nine factors that ap-
pellate courts should consider when reviewing a trial court's decision regard-
ing a presentence motion to withdraw a guilty plea[.]” State v. Howard,
2017-Ohio-9392, ¶ 24 (4th Dist.). These factors are:
(1) whether “highly competent counsel” represented the defendant; (2) whether the trial court afforded the defend- ant “a full Crim.R. 11 hearing before entering the plea”; (3) whether the trial court held “a full hearing” regarding the defendant's motion to withdraw; (4) “whether the trial court gave full and fair consideration to the motion”; (5) whether the defendant filed the motion within a reasonable time; (6) whether the defendant's motion gave specific rea- sons for the withdrawal; (7) whether the defendant under- stood the nature of the charges, the possible penalties, and the consequences of his plea; (8) whether the defendant is “perhaps not guilty or ha[s] a complete defense to the charges”; and (9) whether permitting the defendant to withdraw his plea will prejudice the state.
(Bracketed text in original.) Id., quoting State v. McNeil, 146 Ohio App.3d
173, 176 (1st Dist. 2001). “Consideration of this ‘non-exhaustive’ list is a
balancing test, and no one factor is conclusive.” State v. Estep, 2024-Ohio-
58, ¶ 18 (4th Dist.), quoting State v. Ganguly, 2015-Ohio-845, ¶ 14 (10th Ross App. Nos. 24CA10 and 24CA11 10
Dist.). “[T]he ultimate question is whether there exists a ‘reasonable and le-
gitimate basis for the withdrawal of the plea.’ ” Id., quoting Xie at 527. 2
The Nine Factors
{¶13} The record does not indicate whether or not appellant’s counsel
may be considered “highly competent.” Therefore, we would consider this
factor as neutral. The sentencing transcript demonstrates that appellant was
not afforded a full hearing on his motion to withdraw. And, it cannot be said
that the trial court gave lengthy consideration to the motion. However, ap-
pellant’s motion was orally made at the sentencing hearing. Given the lack
of seriousness with which appellant approached his motion to withdraw, i.e.,
lack of formal filing, we cannot find the trial court’s brief consideration and
lack of a full hearing to be an inappropriate response. These factors do not
militate in appellant’s favor. Nor can it be said that appellant filed his mo-
tion within a reasonable timeframe.
{¶14} The specific reason for a motion to withdraw a plea is another
of the nine factors. Appellant’s verbal motion to withdraw his pleas was in-
terposed on March 4, 2024, only after the trial court indicated it would
2 In State v. Barnes, 2022-Ohio-4486, the Supreme Court of Ohio “referenced the nine-factor test” but “neither applied it nor rejected it.” Estep at ¶ 20. Instead, the court held that “when a defendant discovers evidence that would have affected his decision to plead guilty, he has a reasonable and legitimate basis to withdraw his guilty plea before sentencing.” Barnes at ¶ 24. “[M]any appellate courts,” including this one, have continued “to apply the nine-factor test for withdrawal motions that do not involve the discovery of evidence that would have affected a defendant's decision to plead guilty.” Estep at ¶ 20-21. Ross App. Nos. 24CA10 and 24CA11 11
proceed with arraignment on the new case and thereafter, with disposition of
the prior two cases to which appellant had previously entered guilty pleas.
At that point, appellant’s attorney argued:
Your Honor, Mr. Wyke - - we ask the court to go along with the bargain for recommendation of nine months. I understand that Mr. Wyke was not present at court on dis- position, but he is now being or likely being punished for that if he is found guilty of the failure to appear…I know the court might be inclined to depart from the plea agree- ment based on his failure to appear I would ask the court to consider that he faces up to 18 months as a new charge entirely on that alone in addition to whatever the court does today…would ask the court to go along with the - - the original bargained for sentence of nine months.
The Court: That’s very intuitive of you.
Willie: …He indicated that if the - - if his sentence was going to be nine months of 12 months for just the two cases that he currently has pled to he would rather just start serving those to- day. But if it’s the court was no longer going to be bound and the part of the five to six years that could potentially be imposed here he would - - in light of the way the negotia- tions went for this he would rather withdraw his plea and attempt to proceed to trial on this.
{¶15} The only reason for the motion to withdraw, which can be
gleaned from this record, is appellant’s expectation that on that date he
would receive a sentence longer than 9 to 12 months, due to his own
choices. Appellant’s reason can only be characterized as invalid and a mere Ross App. Nos. 24CA10 and 24CA11 12
change of heart. “A mere change of heart is not a legitimate and reasonable
basis for the withdrawal of a plea.” Howard at ¶ 24.
{¶16} Further, there is no evidence in this record which indicates that
appellant is “perhaps not guilty or ha[s] a complete defense to the charges,”
another and perhaps, more important, of the nine factors. The final factor,
whether permitting the withdrawal will prejudice the State, would be the sin-
gle factor militating in appellant’s favor. Given that there was no impending
trial date at that point, we cannot see how the State would have been preju-
diced if the trial court had chosen to grant appellant’s motion.
{¶17} We have chosen to discuss two of the above-referenced factors
jointly. The second of the nine factors is whether or not a defendant has re-
ceived a full Crim.R. 11 hearing prior to entering his plea. The seventh fac-
tor is whether the defendant understood the nature of the charges, the possi-
ble penalties, and the consequences of his plea.
Crim.R. 11
{¶18} Appellant’s first change of plea hearing in case number
23CR205 was held on December 13, 2023. His second change of plea in
case number 23CR432 was held on January 23, 2024. Appellant argues that
“it does not appear” that he fully understood his rights. However, the hear-
ing transcripts belie these assertions. Ross App. Nos. 24CA10 and 24CA11 13
{¶19} “ ‘Crim.R. 11(C)(2) governs the acceptance of guilty pleas by
the trial court in felony cases and provides that a trial court should not accept
a guilty plea without first addressing the defendant personally[.]’ ” State v.
Doyle, 2025-Ohio-1234, ¶ 24 (4th Dist.), quoting State v. Tolle, 2022-Ohio-
2839, ¶ 8 (4th Dist.), citing McCarthy v. United States, 394 U.S. 459, 466
(1969). The underlying purpose of Crim.R. 11 is to convey certain infor-
mation to a defendant so that they can make a voluntary and intelligent deci-
sion regarding whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473,
479-480 (1981).
Constitutional Rights
{¶20} Crim.R. 11(C)(2)(c) sets out a defendant's constitutional rights.
See Doyle, at ¶ 28; State v. Miller, 2020-Ohio-1420, ¶ 13. Pursuant to
Crim.R. 11(C)(2)(c), a court
must both inform and determine that the defendant under- stands that [by pleading no contest or guilty] he “is waiv- ing the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining wit- nesses 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.”
See Collins at ¶ 6.
{¶21} “Unlike a defendant's non-constitutional rights, ‘strict compli-
ance with Crim.R. 11(C)(2)(c) is required because constitutional rights are Ross App. Nos. 24CA10 and 24CA11 14
involved.’ ” Doyle, at ¶ 29, quoting Collins at ¶ 7. “If the trial court fails to
explain the constitutional rights that a defendant waives by pleading guilty
or no contest, it is presumed that the plea was entered involuntarily and un-
knowingly, and no showing of prejudice is required.” State v. Pierce, 2024-
Ohio-82, ¶ 11 (4th Dist.), citing State v. Dangler 2020-Ohio-2765, ¶ 14.
Otherwise, “the defendant is not entitled to have the plea vacated without
demonstrating prejudice.” Id. at ¶ 13.
Non-Constitutional Rights
{¶22} For purposes of a plea bargain, Crim.R. 11(C)(2)(a) and
11(C)(2)(b) require a court to inform a defendant of their non-constitutional
rights and ensure they are understood. See Doyle, supra at ¶ 25; State v. Jor-
dan, 2015-Ohio-4354, ¶ 5. Crim.R. 11(C)(2)(a) requires a trial court to en-
sure a defendant is “understanding of the nature of the charges and of the
maximum penalty involved, and, if applicable, that the defendant is not eli-
gible for probation or for the imposition of community control sanctions at
the sentencing hearing.” Crim.R. 11(C)(2)(b) requires a trial court to ensure
that a defendant “understands the effect of the plea of guilty or no contest,
and that the court, upon acceptance of the plea, may proceed with judgment
and sentence.” Ross App. Nos. 24CA10 and 24CA11 15
{¶23} “ ‘Substantial compliance with Crim.R. 11(C)(2)(a) and (b) is
sufficient for a valid plea because they do not involve constitutional rights.’
” Doyle, supra at ¶ 26, quoting State v. Collins, 2019-Ohio-3428, ¶ 7 (4th
Dist.), citing Veney, 2008-Ohio-5200, at ¶ 14. “ ‘Substantial compliance
means that, under the totality of the circumstances, appellant subjectively
understood the implications of his plea and the rights he waived.’ ” State v.
McDaniel, 2010-Ohio-5215, ¶ 13 (4th Dist.), quoting State v. Vinson, 2009-
Ohio-3240, ¶ 6 (10th Dist.).
{¶24} “A defendant who seeks to invalidate a plea on the basis that
the trial court partially, but not fully, informed the defendant of his or her
non-constitutional rights must demonstrate a prejudicial effect.” Tolle,
2022-Ohio-2839, at ¶ 16 (4th Dist.), citing Veney, at ¶ 17; State v. Clark,
2008-Ohio-3748, ¶ 39. “To demonstrate that a defendant suffered prejudice
due to the failure to fully inform the defendant of his or her non-constitu-
tional rights, the defendant must establish that, but for the trial court's fail-
ure, a guilty plea would not have been entered.” Id., citing Clark at ¶ 32, cit-
ing State v. Nero, 56 Ohio St.3d 106, 108 (1990). “However, when a trial
court completely fails to inform a defendant of his or her non-constitutional
rights, the plea must be vacated, and no analysis of prejudice is required.”
Id., citing Clark at ¶ 32, citing State v. Sarkozy, 2008-Ohio-509, ¶ 22. Ross App. Nos. 24CA10 and 24CA11 16
{¶25} Based on our review of both plea hearing transcripts, we find
that appellant was fully afforded advisement of his Crim.R. 11 constitutional
and non-constitutional rights. Appellant contends that the trial court should
have engaged him to ensure that he was fully aware that the trial court was
not a party to the plea agreement, i.e., was not bound by the recommended
plea agreement. Appellant asserts that the trial court did not fully engage
with him to ensure that he fully understood the consequences of his plea.
We disagree.
{¶26} The December 13, 2023 plea hearing transcript demonstrates
that the trial court directly engaged appellant. Appellant advised the court of
his name and birthdate; that he was able to read and write; that English was
his native language; that he graduated college. Appellant denied being un-
der the influence of medication, drugs, or alcohol. Appellant denied mental
illness, disease, or incapacity. Appellant also denied being threatened, co-
erced, or promises made in exchange for his plea.
{¶27} The trial court continued:
Court: When we started, I asked your attorney to read into the record the terms of the plea agreement.
Wyke: Oh, yes, Your Honor.
Court: Did you hear what Mr. Wille said? Ross App. Nos. 24CA10 and 24CA11 17
Wyke: Yes, Your Honor.
Court: Is that the same information you discussed with your attorney before today’s hearing be- gan?
Court: Now Mr. Wyke, I also have before me a two- page written plea of guilty form that appears to bear your signature on both the front and the back page. Did you have an opportunity to review the plea form with your attorney?
Court: Do you believe you understood what the plea form said?
Court: And did you voluntarily sign that plea form?
Court: Do you understand that by signing that plea form, you’re making a complete admission of your guilt to the charge contained in this in- dictment?
Court: Do you understand that while you and the state have presented to the court a recommen- dation for sentencing, this court doesn’t have to accept it?
Wyke: Yes, Your Honor. Ross App. Nos. 24CA10 and 24CA11 18
Court: Do you understand that upon acceptance of your plea of guilt, the court could reject the plea agreement and proceed immediately with sentencing?
Court: All right. Knowing that the court is not obli- gated to follow the plea recommendation, do you still wish to proceed with your plea to- day?
Court: All right. Now Mr. Wyke, have you had an opportunity to consult with your attorney about this case?
Court: Has your attorney answered your questions about this case?
Court: Are you satisfied with the legal representa- tion you’ve received?
{¶28} The trial court continued, reading the charges. The trial court
inquired as to whether appellant understood the allegations contained in the
indictment, and whether he understood that by pleading guilty, he was mak-
ing a complete admission to the allegations. To both questions, appellant re-
sponded affirmatively. Ross App. Nos. 24CA10 and 24CA11 19
{¶29} The trial court also discussed its expectations of appellant prior
to sentencing and with regard to participating in a presentence investigation.
The trial court continued:
Court: So specifically you’re going to have to go to the probation department, not today because they’re closed, but in the near future, sched- ule an interview. Do that interview and give them any information they request from you. Do you understand that?
Wyke: Yes, Your Honor. Is Monday fine?
Court: Monday is fine. Sure. Just get it done well in advance of your sentencing. Don’t wait till the week before you’re getting sentenced to go and try to do that because you won’t have time.
Wyke: Okay.
Court: And you’ve got a third degree which is - - I can easily send you to prison on so don’t skip the PSI. Do you see what I’m telling you?
Wyke: Right, I get it.
Court: All right. And I only emphasize that because for some reason, people screw that part up. I don’t know why but a lot of people skip out on that so don’t do that.
Wyke: I hear you.
{¶30} At this point, the trial court engaged appellant, advising each of
the constitutional rights, to which appellant responded affirmative Ross App. Nos. 24CA10 and 24CA11 20
understanding of each. The trial court specifically inquired: “Do you be-
lieve you understand each of these constitutional rights that I have just read
to you?” Again, appellant answered “Yes, Your Honor.” The trial court con-
cluded by asking appellant if he was “certain that this is what you want to
do?” Again, appellant responded, “Yes, Your Honor.”
{¶31} At the conclusion of the hearing, the trial court again cautioned
appellant as follows: “Most importantly, like I told you, if you want me to
go along with this plea deal, depending on how things fall, make sure you do
your presentence investigation, make sure you don’t get in trouble between
now and sentencing, don’t pick up new charges, make sure you’re here for
your sentencing date.” Appellant responded, “Yes, Your Honor.”
{¶32} Our review of the January 23, 2024 change of plea hearing
transcript in case number 23CR432 demonstrates that the trial court engaged
in the same recitation of appellant’s constitutional and nonconstitutional
rights, along with a detailed discussion of the terms of the plea agreement
and the expectations the court placed upon appellant prior to returning for
disposition. In some portions of the transcript, the trial court’s language is
nearly word-for-word as contained in the plea hearing transcript in case
number 23CR205. In particular, the trial court again explained:
Court: Do you understand that while you and the State have presented to the Court a Ross App. Nos. 24CA10 and 24CA11 21
recommendation for sentencing this court does not have to accept it?
Court: Do you understand that upon acceptance of your plea of guilt the court could reject the plea agreement and proceed immediately with sentencing.
Court: Knowing that the court is not obligated to fol- low the plea recommendation do you still wish to proceed with your plea today?
Once again, appellant confirmed that he had consulted with his attorney and
was satisfied with his representation.
{¶33} Upon review of the change of plea hearing transcripts, we find
that at both plea hearings, appellant was fully apprised of both his constitu-
tional and nonconstitutional rights, and that he understood them. At both
hearings we find the trial court fully complied with the requisites of Crim.R.
11. We have no doubt that appellant understood the consequences of his
plea, and that the trial court was not bound to accept the plea agreement if
appellant failed to abide by the conditions placed upon him. Therefore, this
factor does not militate in appellant’s favor. Ross App. Nos. 24CA10 and 24CA11 22
{¶34} Based on the foregoing, we find no merit to appellant’s claim
that the trial court abused its discretion by failing to grant his verbal motion
to withdraw his guilty pleas. Therefore, this assignment of error is without
merit and is hereby overruled.
Assignment of Error One - Consecutive Sentence
{¶35} Appellant contends that the trial court relied on his record of
possession charges and a “supposed” failure to appear as grounds for impos-
ing consecutive sentences, even after previously indicating it would accept
the agreement of the parties for concurrent sentences. Appellant argues that
the record does not support the finding that his “history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public
from future crime…” In support, appellant argues that the offenses for
which he was sentenced do not “necessarily” pose a danger to the public.
While he was convicted for possession a firearm, appellant contends that the
gun was not inherently dangerous nor was it used for nefarious purposes.
Appellant contends that his crimes for Possession of Fentanyl and Having
Weapons Under Disability were “victimless” crimes.
{¶36} Appellant further asserts that his failure to appear for his initial Ross App. Nos. 24CA10 and 24CA11 23
disposition hearing was due to a valid medical reason. Appellant concludes
that the record does not support the imposition of consecutive sentences.
For the reasons which follow, we disagree.
Standard of Review - Felony Sentencing
{¶37} When reviewing felony sentences, appellate courts apply the
standard set forth in R.C. 2953.08(G)(2). State v. Hill, 2025-Ohio-798, ¶ 30
(4th Dist.); State v. Spencer, 2024 Ohio-59, ¶ 13 (4th Dist.). R.C.
2953.08(G)(2)(a) provides that “[t]he appellate court's standard for review is
not whether the sentencing court abused its discretion.” Instead, the statute
authorizes appellate courts to “increase, reduce, or otherwise modify a sen-
tence” “if it clearly and convincingly finds either of the following:”
(a) That the record does not support the sentencing court's findings under division (B) or (D) of sec- tion 2929.13, division (B)(2)(e) or (C)(4) of sec- tion 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is rele- vant;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2).
Legal Analysis
{¶38} The Supreme Court of Ohio has recognized that R.C.
2953.08(G)(2) means that appellate courts ordinarily “ ‘defer to trial courts’
broad discretion in making sentencing decisions.’ ” State v. Collins, 2024- Ross App. Nos. 24CA10 and 24CA11 24
Ohio-2891, ¶ 22 (4th Dist.), quoting State v. Gwynne, 2023-Ohio-3851, ¶ 11.
(Citations omitted.) As recently stated by the Supreme Court of Ohio in
State v. Glover, 2024-Ohio-5195, ¶ 39:
That makes sense: the trial judge presided over the trial and heard the witnesses testify, the defendant made his allocution to the sentencing judge directly, and the trial judge will often have heard directly from the victims at sentencing. Thus, an appellate court's role is not to be a “second-tier sentencing court.”
Hill, supra, at ¶ 31; State v. Jones, 2020-Ohio-6729, ¶ 41-42.
{¶39} In State v. Hammons, 2024-Ohio-6128, the Sixth District court
recently provided a thorough discussion of the Supreme Court's decision in
Glover, supra. “The Ohio Supreme Court has made it clear that ‘an appel-
late court may not reverse or modify a trial court's sentence based on its sub-
jective disagreement with the trial court.’ ” Hammons, supra, at ¶ 22, quot-
ing Glover, 2024-Ohio-5195, ¶ 45 (“Glover II”). In Glover II, the Ohio Su-
preme Court reversed the First District's decision in State v. Glover, 2023-
Ohio-1153 (1st Dist.) (“Glover I”). There the trial court had imposed con-
secutive sentences for multiple counts of aggravated robbery and kidnapping
at gunpoint, for an aggregate prison term of 60 years. The First District re-
versed the consecutive sentences after finding that the lack of physical harm
to the victims, combined with appellant's lack of criminal history, under-
mined the trial court's proportionality determination. Glover I at ¶ 101. The Ross App. Nos. 24CA10 and 24CA11 25
First District compared the aggregate length of the appellant's sentence to
the potential sentence for a single instance of violent crime, like murder, and
observed that “a person who purposely takes another person's life ...” could
be eligible for parole after 15 years, but the appellant “who did not take his
victims’ lives or cause them physical harm, would have no chance of parole
at 15, 20, 25, or even 50 years.” Id. at ¶ 98.
{¶40} In Hammons, the court noted that the Ohio Supreme Court
found, among other things, that the First District erred because it did not
“limit its review to the trial court's findings.” Glover II at ¶ 57. See Ham-
mons, ¶ 23. The Glover court noted that “[t]he court of appeals may have
disagreed with the trial court's assessment of the magnitude of the harm in-
flicted by Glover, but this disagreement with the trial court's assessment is
far different from concluding that the record clearly and convincingly does
not support the trial court's consecutive-sentence findings.” Id. at ¶ 55. In
Glover II, the Supreme Court also found that the First District had “strayed
from its role when it compared Glover's sentence to the sentences imposed
under other statutes and in other cases” because the appellate review statute,
R.C. 2953.08(G)(2), does not permit such a “comparative analysis[.]” Id. at
¶ 59. Ross App. Nos. 24CA10 and 24CA11 26
{¶41} Thus, R.C. 2953.08(G)(2) provides that an appellate court may
increase, reduce, or otherwise modify consecutive sentences only if the rec-
ord does not “clearly and convincingly” support the trial court's R.C.
2929.14(C)(4) consecutive-sentence findings. The clear-and-convincing
standard for appellate review in R.C. 2953.08(G)(2) is written in the nega-
tive. Collins, ¶ 22; Gwynne, 2023-Ohio-3851, at ¶ 13. Moreover, “clear and
convincing evidence” is “that measure or degree of proof which is more than
a mere ‘preponderance of the evidence,’ but not to the extent of such cer-
tainty as is required ‘beyond a reasonable doubt’ in criminal cases, and
which will produce in the mind of the trier of facts a firm belief or convic-
tion as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469 (1954), paragraph three of the syllabus.
{¶42} In general, a statutory presumption exists in favor of concurrent
sentences pursuant to R.C. 2929.41(A) and R.C. 2929.14(C)(4) governs the
imposition of consecutive terms of imprisonment. Collins, ¶ 23; Glover, su-
pra, at ¶ 38. To justify the imposition of consecutive terms of imprison-
ment, “a trial court must make the findings mandated by R.C. 2929.14(C)(4)
at the sentencing hearing and incorporate its findings into its sentencing en-
try, but the court has no obligation to state reasons to support its findings.”
State v. Blair, 2019-Ohio-2768 ¶ 52 (4th Dist.), citing State v. Bonnell, Ross App. Nos. 24CA10 and 24CA11 27
2014-Ohio-3177, syllabus. This Court explained the findings required to
support the imposition of consecutive sentences:
“Under the tripartite procedure set forth in R.C. 2929.14(C)(4), prior to imposing consecutive sentences a trial court must find that: (1) consecutive sentences are necessary to protect the public from future crime or to pun- ish the offender; (2) consecutive sentences are not dispro- portionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and (3) that one of three circumstances specified in the statute ap- plies.”
Hill, supra, ¶ 36, quoting State v. Cottrill, 2020-Ohio-7033, ¶ 14 (4th Dist.).
{¶43} Further, as we outlined in Cottrill, and more recently in Collins,
the three circumstances are:
“(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentenc- ing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so com- mitted was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demon- strates that consecutive sentences are necessary to protect the public from future crime by the offender.”
Cottrill at ¶ 14, and Collins, ¶ 24, quoting R.C. 2929.14(C)(4)(a)-(c). Ross App. Nos. 24CA10 and 24CA11 28
{¶44} The record must support any findings that the applicable statu-
tory sentencing provisions require and made by the sentencing court, such as
those contained in R.C. 2929.14(C)(4)(c). Collins, ¶ 25; State v. Drummond,
2024-Ohio-81, ¶ 11 (4th Dist.). Further, in Drummond we observed that the
plain language of R.C. 2953.08(G)(2) requires an appellate court to defer to
a trial court's consecutive-sentence findings, and to uphold the trial court's
findings unless those findings are clearly and convincingly not supported by
the record. Drummond at ¶ 12. In State v. Bonnell, 2014-Ohio-3177, the
Supreme Court of Ohio held, “In order to impose consecutive terms of im-
prisonment, a trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its
sentencing entry[.]” Id. at ¶ 37.
{45} In response to appellant’s arguments that the record does not
support the finding that he poses a danger to the public; that his crimes were
victimless crimes; and that his failure to attend his original sentencing hear-
ing was not significant, the State points out that the trial court made all the
requisite findings for consecutive sentences. Moreover, the State points to
appellant’s prior felony conviction and prior prison sentence; appellant’s
lengthy negative history with law enforcement; his failure to appear at sen-
tencing without a verified and legitimate reason; the fact that appellant Ross App. Nos. 24CA10 and 24CA11 29
committed additional offenses while out on bond awaiting sentencing; and
appellant’s failure to take responsibility or show remorse for his current of-
fenses. Importantly, the State notes that appellant’s 18-month sentence for
each offense, a three-year aggregate sentence, is within the prescribed statu-
tory range. For the reasons which follow, we agree with the State.
{¶46} The sentencing entries in both cases, 23CR205 and 23CR432,
both set forth in pertinent part as follows:
The Court has considered the record, oral statements, … pre-sentence report, the purposes, and principles of sen- tencing under R.C. 2929.11, the seriousness and recidi- vism factors relevant to the offense and offender pursuant to R.C. 2929.12, and the need for deterrence, incapacita- tions, rehabilitation, and restitution.
{¶47} Each entry further states:
The Court finds that the consecutive service is necessary to protect the public from future crime and to punish the offender and that consecutive sentences are not dispropor- tionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public. The Court fur- ther finds that the offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing. The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶48} As is well-established, the trial court is not required to use “tal-
ismanic words,” but, it must be clear from the record that it actually made
the findings required by statute. State v. Bonnell, 2014-Ohio-3177, syllabus, Ross App. Nos. 24CA10 and 24CA11 30
at ¶ 37; State v. Venes at ¶ 14. The Supreme Court of Ohio further explained
that the word “finding” in this context means that the trial court “must note
that it engaged in the analysis” and that it “considered the statutory criteria
and specifie[d] which of the given bases warrants its decision.” Bonnell at ¶
26. As long as the reviewing court can discern that the trial court engaged in
the correct analysis and can determine that the record contains evidence to
support the findings, consecutive sentences should be upheld. Id. at ¶ 29.
{¶49} Based on our review of the record, especially the sentencing
hearing transcript, this court is well-able to discern that the trial court en-
gaged in the correct R.C. 2929.14(C)(4) analysis. We note that the sentenc-
ing entry is consistent with the trial court’s statements in open court. And,
we note that appellant’s individual sentences are well within the range for
felonies of the third degree.
{¶50} Furthermore, a review of the pre-sentence investigation report
supports the State’s contentions that appellant is no stranger to law enforce-
ment, that he has a prior felony record and history of incarceration, and that
he has not expressed remorse for his actions. Notably, the author of Ross App. Nos. 24CA10 and 24CA11 31
appellant’s PSI report observed that appellant’s ORAS score is 26, “which is
high.”3
{¶51} Nor do we agree with appellant’s contention that his offenses
are victimless crimes, meriting a lighter sentence. It has been said that “the
possession, use, and distribution of illegal drugs ‘represent one of the great-
est problems affecting the health and welfare of our population.’ ” State v.
Gipson, 2022-Ohio-2069, at ¶ 53 (6th Dist.), quoting Treasury Emps. v. Von
Raab, 489 U.S. 656, 668 (1989). By his action of possession, appellant di-
rectly contributed to that problem by placing his community at risk with il-
licit drugs. Gipson, supra, at ¶ 52, made the finding that “his was not a vic-
timless crime.” Accord State v. Allen, 2022-Ohio-1419, ¶ 14 (2d Dist.)
(finding trial court's conclusion—that defendant's possession of marijuana
was a victimless crime—to be both “incorrect and misleading.”) In State v.
Weber, 2020-Ohio-6832, the Supreme Court of Ohio observed:
Research shows that “people who abuse alcohol or illicit drugs are at an increased risk of committing acts of vio- lence.” Webster & Vernick, Keeping Firearms from Drug and Alcohol Abusers, 15 Injury Prevention 425 (2009). The victims of such violence are often a gun owner's fam- ily members or the gun owner himself…Even Remington Arms, a gun manufacturer that has been in business for over 200 years, embraces the concern as part of its Ten Commandments of Firearm Safety: “Alcohol, drugs and 3 The Ohio Risk Assessment System “ORAS” is a tool selected by the Ohio Department of Rehabilitation and Correction to “assess an adult offender’s risk of reoffending and to assess the offender’s rehabilitative needs.” State v. Williams, 2016-Ohio-733, fn 1 (4th Dist.) and Ohio Adm. Code 5120-13-01(A). Ross App. Nos. 24CA10 and 24CA11 32
guns are a deadly combination. * * * A staggering percent- age of the shooting accidents that occur every year involve alcohol or drugs.” Remington Arms Company, Ten Com- mandments of Firearm Safety, available at https://www.remington.com/support/safety-center/ten- commandments-firearm-safety (accessed Sept. 25, 2020) [https://perma.cc/NCD7-TDWB].
Weber, at ¶ 37. We are not convinced that the offenses appellant has pled to
in these two cases are, per se, victimless crimes.
{¶52} Based on the foregoing, we are convinced that the trial court
engaged in the correct analysis and appellant has failed to meet his burden of
identifying clear and convincing evidence that the trial court’s imposition of
consecutive sentences is not supported by the record or is otherwise contrary
to law. Accordingly, this assignment of error is also without merit and is
hereby overruled.
{¶53} Having found no merit to either of appellant’s assignments of
error, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED Ross App. Nos. 24CA10 and 24CA11 33
JUDGMENT ENTRY
It is ordered that the JUDGMENT AFFIRMED and costs be assessed to appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an applica- tion for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
________________________ Jason P. Smith Presiding Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.