State v. Hall , 2021 Ohio 1894 ( 2021 )

[Cite as State v. Hall, 2021-Ohio-1894.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28882
:
v. : Trial Court Case No. 2019-CR-2136
:
AARON L. HALL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 4th day of June, 2021.
...........
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant Aaron L. Hall appeals from his convictions for the
following offenses: Count I, aggravated robbery (deadly weapon), in violation of R.C.
2911.01(A)(1), a felony of the first degree; Count II, aggravated robbery (deadly weapon),
in violation of R.C. 2911.01(A)(1), a felony of the first degree; Count III, aggravated
robbery (deadly weapon), in violation of R.C. 2911.01(A)(1), a felony of the first degree;
Count IV, kidnapping (felony or flight-safe release), in violation of R.C. 2905.01(A)(2), a
felony of the second degree, and Count V, tampering with evidence (alter/destroy), in
violation of R.C. 2921.12(A)(1), a felony of the third degree. Hall filed a timely notice of
appeal on August 26, 2020.
{¶ 2} The incident which formed the basis for Hall’s convictions occurred on June
28, 2019, when Hall committed a robbery of a bank in West Carrollton, Ohio. The
robbery involved three employees of the bank, and Hall was found to have used a firearm
while committing the offenses.
{¶ 3} On July 24, 2019, Hall was indicted for three counts of aggravated robbery
(Counts I-III), each with a firearm specification; one count of kidnapping (Count IV); one
count of tampering with evidence (Count V); and one count of having a weapon while
under disability (Count VI). At his arraignment on July 30, 2019, Hall stood mute, and
the trial court entered pleas of not guilty on his behalf. On August 7, 2019, Hall filed a
motion to suppress, but he later withdrew the motion on October 25, 2019.
{¶ 4} In July 2020, Hall pled guilty to Counts I-V. In exchange for Hall’s guilty
pleas, the State dismissed Count VI and the firearm specifications attached to Counts I-
III. In relation to his guilty plea to Count IV, kidnapping, Hall acknowledged that he was
required to register as a violent offender. On August 21, 2020, the court sentenced Hall
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pursuant to the Reagan Tokes Act (“RTA”); the trial court sentenced Hall to an indefinite
mandatory minimum term of ten years (maximum of 15 years) on Counts I-III; an indefinite
mandatory term of six years (maximum of 12 years) on Count IV1; and 36 months on
Count V. The trial court ordered all of the sentences to be served concurrently for an
aggregate sentence of a minimum of ten years to a maximum of 15 years in prison. The
trial court also informed Hall of his duties to register as a violent offender and the
requirements of that designation.
{¶ 5} It is from this judgment that Hall now appeals.
{¶ 6} Hall’s first assignment of error is as follows:
THE TRIAL COURT FAILED TO FOLLOW THE MANDATES OF CRIM.R.
11, RENDERING HALL’S PLEA INVOLUNTARY AND UNKNOWING.
{¶ 7} In his first assignment, Hall contends that his pleas were not made in a
knowing, intelligent, and voluntary manner because the trial court did not properly advise
him of the maximum sentence he could serve. Specifically, Hall advances the following
arguments: 1) the plea form for Count IV, kidnapping, did not contain the correct post-
release control period; 2) the trial court improperly advised Hall that his mandatory
minimum prison term could be reduced by earned credit for good behavior; and 3) the
trial court failed to explain the duties associated with Hall’s designation as a violent
offender.
1
We note that Hall’s sentence for kidnapping -- a minimum of 6 years and a maximum of
12 years -- does not appear to comport with the Reagan Tokes Act, which sets maximum
sentences at 50% above the minimum sentence. See R.C. 2929.144(B). However,
because all of Hall’s sentences were run concurrently and the kidnapping was not the
highest-degree offense of which he was convicted, Hall’s aggregate sentence is
unaffected by the error.
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{¶ 8} Crim.R. 11(C) sets forth the requisite notice to be given to a defendant at a
plea hearing on a felony. To be fully informed of the effect of the plea, the court must
determine that the defendant's plea was made with an “understanding of the nature of the
charges and the maximum penalty involved.” Crim.R. 11(C)(2)(a).
{¶ 9} In order for a plea to be made knowingly and voluntarily, the trial court must
follow the mandates of Crim.R. 11(C). If a defendant's guilty plea is not voluntary and
knowing, “it has been obtained in violation of due process and is therefore void.” Boykin
v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), fn. 5, quoting
McCarthy v. United States, 394 U.S. 459, 89 S.Ct 1166, 22 L.Ed.2d 418 (1969).
{¶ 10} A trial court must strictly comply with Crim.R. 11 as it pertains to the waiver
of federal constitutional rights. These include the right to trial by jury, the right of
confrontation, and the privilege against self-incrimination. Id. at 243. However,
substantial compliance with Crim.R. 11(C) is sufficient when waiving non-constitutional
rights. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). The non-
constitutional rights of which a defendant must be informed are the nature of the charges
with an understanding of the law in relation to the facts, the maximum penalty, and that
after entering a guilty plea or a no contest plea, the court may proceed to judgment and
sentence. Crim.R. 11(C)(2)(a)(b); State v. Morgan, 2018-Ohio-319, 104 N.E.3d 941, ¶ 9
(2d Dist.), quoting State v. Balidbid, 2d Dist. Montgomery No. 24511, 2012-Ohio-1406;
see also McCarthy v. U.S., 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
Substantial compliance means that under the totality of the circumstances, the defendant
subjectively understands the implications of his plea and the rights he is waiving. Nero at
108.
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{¶ 11} If there is a lack of substantial compliance regarding a non-constitutional
right, then the reviewing court is to determine whether there was a partial or a total failure
to comply with the rule. State v. Cassell, 2d Dist. Montgomery No. 27899, 2018-Ohio-
1668, ¶ 14. A complete failure to advise of a non-constitutional right requires that the
plea be vacated without an analysis of prejudice. Id., citing State v. Sarkozy, 117 Ohio
St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22, 25. “However, if the court's
advisement on a non-constitutional right is considered partial compliance with the rule,
then the plea cannot be vacated unless the defendant demonstrates prejudice.” Id.,citing Clark at ¶ 32, 40. Prejudice in this context means that the plea would otherwise
not have been entered. Id. at ¶ 15. Where the trial court completely fails to comply with
Crim.R. 11(C)(2)(a) or (b), however, “an analysis of prejudice” is not implicated. Sarkozy
at ¶ 22.
Post-Release Control
{¶ 12} Under Crim.R. 11(C)(2)(a), a trial court's responsibility to determine that a
defendant's plea is voluntary includes assuring that the defendant has an “ ‘understanding
of the nature of the charges and of the maximum penalty involved * * *.’ ” State v. Riddle,
2017-Ohio-1199, 88 N.E.3d 475, ¶ 12 (2d Dist.), quoting State v. Jones, 2d Dist.
Montgomery No. 24772, 2013-Ohio-119, ¶ 6. “The ‘maximum penalty’ includes any
mandatory post-release control sanction[.]” Jones at ¶ 7. “Thus if the defendant will be
subject to a period of post-release control, to comply with Crim.R. 11[,] the court must
inform the defendant of post-release control.” Id.{¶ 13} In order to properly inform a defendant of post-release control, a trial court
must both “notify [the] offender at the sentencing hearing about post-release control and
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* * * incorporate post-release control into its sentencing entry.” State v. Grimes, 151 Ohio
St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 11, quoting State v. Jordan, 104 Ohio St.3d
21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 22. Furthermore, “statutorily compliant
notification” includes “notifying the defendant of the details of the post-release control and
the consequences of violating post-release control,” including whether post-release
control is discretionary or mandatory and the term of supervision. Id., citing State v.
Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18, Jordan at ¶ 22-23,
and State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 12.
{¶ 14} While the sentencing entry must incorporate the post-release control
notifications given at the sentencing hearing, it “need not repeat those notifications
verbatim.” Id. at ¶ 13. Rather, “a minimally compliant entry must provide the [Adult
Parole Authority] the information it needs to execute the post-release-control portion of
the sentence.” Id.
{¶ 15} Here, Hall argues that the plea form for kidnapping incorrectly stated that
he was subject to a mandatory post-release control period of five years, when the correct
term of post-release control was a mandatory period of three years. However, this issue
was addressed at the plea hearing after the mistake was brought to the attention of the
trial court in the following exchange:
TRIAL COURT: And, in fact, I need to tell you that – Counsel, I through III,
the aggravated robbery and the kidnapping would all be mandatory
sentences in this case. Do you understand that?
HALL: Yes, sir.
TRIAL COURT: And you understand the Court could not give you
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community control sanctions and I will not consider that. Do you
understand that?
HALL: I do.
TRIAL COURT: Also, sir, you understand that you will serve a period of
post-release control of [sic] this case of five years on each of the aggravated
robbery charges. You would serve a period, mandatory, of three years on
the kidnapping offense and you may be required to serve a period of up to
three years on the felony of the third degree.
UNIDENTIFIED SPEAKER #2: I think there’s five years on –
HALL: I do, sir.
TRIAL COURT: F-2 should be a –
UNIDENTIFIED SPEAKER #2: Three years?
TRIAL COURT: Three years.
UNIDENTIFIED SPEAKER #2: Your Honor, I believe the plea form says
that there’s a mandatory PRC of five years on Count IV [kidnapping].
[Defense counsel], do you see the error? On the plea form for the
kidnapping charge, it says there’s PRC for five years.
TRIAL COURT: [Defense counsel], on the plea form there, if you could take
a look at it. The plea form is mistaken. It says that the kidnapping is for
five years. The Court, to correctly state it, it’s for three years. So if you
could correct it on the plea form, I would appreciate it. And that would only
be to the kidnapping charge. If you could maybe have your client initial
that, too, please. That – I just don’t want him to have any issues even
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though I’ve told him correctly. I don’t want him to have any issues on the
plea form.2
(Pause in the proceedings)
TRIAL COURT: Okay. Let me just repeat it here since we had to change
it on the form. I told you correctly though that on the three counts of
aggravated robbery, you will serve a period of five years of post-release
control. On the kidnapping, you would serve a period of three years of
post-release control and on the tampering with evidence, you could receive
up to a period of three years on post-release control. Do you understand
all that, Mr. Hall?
HALL: I do, sir
(Emphasis added.) Plea Hearing Transcript p. 8-9.
{¶ 16} While it is undisputed that the filed plea form incorrectly stated that Hall was
subject to a mandatory post-release control period of five years for the kidnapping
offense, it is apparent from the above exchange that the trial court imposed the correct
three-year post-release control term on the record at the plea hearing. The trial court
and the parties were all aware of the mistake in the kidnapping plea form. Additionally,
the trial court ensured that Hall understood that there was a mistake on the plea form and
confirmed that he understood that the correct term of post-release control for the
kidnapping offense was three years. Hall was also informed of the correct term of post-
2 Due to restrictions imposed because of the Covid-19 pandemic, Hall and defense
counsel appeared before the trial court through a video call, with the trial court being
visible to them on camera as well. Notably, the trial court’s directive to defense counsel
to correct the term of post-release control on the plea form and have his client initial it
was not done.
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release control in the judgment entry filed by the trial court. On this record, Hall cannot
establish that he was prejudiced by the mistake on the plea form, nor can he establish
that but for this mistake, he would not have pled guilty to the charged offenses. Because
the record establishes that the trial court substantially complied with Crim.R. 11 when it
informed Hall of the correct three-year post-release control term for his kidnapping
offense, and the judgment entry reflects the correct term, this section of his first
assignment of error is overruled.
Reagan-Tokes Act Earned Credit
{¶ 17} Hall also argues that the trial court erred when it advised him that his term
of imprisonment could be reduced by good behavior earned credit. Specifically, Hall
argues that because his sentences were mandatory for the aggravated robbery and
kidnapping charges, the trial court should not have advised him regarding the earned
credit of 5-15% against his minimum sentence for good behavior. Because he was
improperly advised of the opportunity for earned credit, Hall contends that his plea was
involuntary.
{¶ 18} The Reagan Tokes Act was enacted in 2018 and became effective on
March 22, 2019. R.C. 2901.011. Under the law, qualifying first- and second-degree
felonies committed on or after March 22, 2019 are now subject to the imposition of
indefinite sentences. The law specifies that these indefinite terms will consist of a
minimum term selected by the sentencing judge from a range of terms set forth in R.C.
2929.14(A) and a maximum term determined by formulas set forth in R.C. 2929.144.
{¶ 19} Additionally, the law establishes a presumptive release date at the end of
the minimum term. R.C. 2967.271(B). However, the Ohio Department of Rehabilitation
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and Correction (ODRC) may rebut that presumption, resulting in the offender remaining
in prison until the completion of the maximum term imposed by the sentencing judge. R.C.
2967.271(C). In order to rebut the presumption, the ODRC must conduct a hearing and
determine whether any of the following factors are applicable:
(1) During the offender's incarceration, the offender committed institutional
rule infractions that involved compromising the security of a state
correctional institution, compromising the safety of the staff of a state
correctional institution or its inmates, or physical harm or the threat of
physical harm to the staff of a state correctional institution or its inmates, or
committed a violation of law that was not prosecuted, and the infractions or
violations demonstrate that the offender has not been rehabilitated [and]
[t]he offender's behavior while incarcerated, including, but not limited to the
infractions and violations specified in division (C)(1)(a) of this section,
demonstrate that the offender continues to pose a threat to society.
(2) Regardless of the security level in which the offender is classified at the
time of the hearing, the offender has been placed by the department in
extended restrictive housing at any time within the year preceding the date
of the hearing.
(3) At the time of the hearing, the offender is classified by the department
as a security level three, four, or five, or at a higher security level.
R.C. 2967.271(C)(1-3).
{¶ 20} While the ODRC may exercise its discretion to keep an offender imprisoned,
it also may exercise its discretion to conclude that the offender merits early release, as
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long as the offender is not disqualified due to his security level. Under the RTA, the
ODRC must draft administrative rules that credit inmates who demonstrate appropriate
conduct with “earned reduction of minimum prison term” (“ERMPT”). ERMPT can
reduce the minimum term between 5 and 15%. State v. Dames, 8th Dist. Cuyahoga No.
109090, 2020-Ohio-4991, ¶ 5. There is a rebuttable presumption that the offender gets
the ERMPT credit once the ODRC requests it for the inmate. The trial court will hold a
hearing at which the victim of the crime and the State of Ohio can present arguments that
the offender should stay in prison. The trial court must then make findings to rebut the
presumption; otherwise the ERMPT is considered earned.
{¶ 21} At Hall’s plea hearing, the following exchange occurred:
TRIAL COURT: Do you understand, sir, it is possible for you to earn good
time credit of anywhere from five to 15 percent against your minimum
sentence for good behavior but, do you understand, the Court also has a
right to deny your good time credit? Do you understand that?
HALL: Yes, sir.
TRIAL COURT: Okay. And do you understand whether or not you receive
good time credit, you will be released when you finish your minimum term
unless the Department of Rehabilitation determines that you must remain
in prison for bad conduct. Do you understand that?
HALL: I do.
TRIAL COURT: In other words, those – there is a presumption that you will
be released after the minimum sentence the Court imposes. And if you’re
not released, it’ll be up to the parole board to look at your record and if
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you’ve had some bad conduct, it’ll be their decision when you’re released
after that. It’s not left up to the Court. Do you understand that?
HALL: I do, sir.
TRIAL COURT: And once again, do you understand that if you’re not
released by your minimum – when your minimum term ends, you will serve
an additional period of time and be given a new release date by the prison
system. Do you understand that?
HALL: Yes, sir. I can keep my nose clean.
TRIAL COURT: That’s good. If you do then there’s no issues. Do you
understand that this process will repeat if they do violate you until you finish
your maximum term[?] They can’t keep you any longer than your
maximum term but the resumption [sic] is that you’ll be released after your
minimum term depending upon your conduct. Do you understand that?
HALL: I do.
Plea Hearing Transcript, p. 10-11.
{¶ 22} It is undisputed that a mandatory prison term renders a defendant ineligible
for community control, judicial release, or earned credit. See State v. Hendrix, 12th Dist.
Butler App. No. CA2012-12-265, 2013-Ohio-4978, ¶ 26. Here, although Hall was
advised regarding good time credit, the trial court also clearly informed him that he would
not be released until he completed his mandatory minimum sentence unless the ODRC
decided to increase the sentence depending on his conduct while in prison. The trial
court also advised Hall that the ODRC could not prolong his time in prison past the
maximum term imposed by the trial court. Hall stated that he understood.
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{¶ 23} Furthermore, in addition to pleading guilty to three counts of aggravated
robbery and one count of kidnapping, all offenses requiring imposition of a mandatory
sentence, Hall also pled guilty to one count of tampering with evidence, a felony of the
third degree that did not require a mandatory sentence. Thus, technically, the trial court
was required to advise Hall regarding good time credit pursuant to the RTA. R.C.
2967.271.
{¶ 24} As previously stated, the test for prejudice is “whether the plea would have
otherwise been made.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d
51, ¶ 12. Therefore, Hall has the burden of proving that he relied upon the trial court's
explanation of earned credit in deciding to enter his guilty pleas. The record establishes
that the trial court properly advised Hall of the minimum and maximum mandatory prison
terms that it could impose. The trial court also advised Hall that he was pleading guilty
to one or more qualifying offenses that required indefinite sentencing pursuant to the RTA.
The trial court informed Hall of all of the possible prison terms for each count, qualifying
and non-qualifying offenses, and the minimum and maximum terms for each offense.
When Hall inquired regarding the meaning of indefinite sentencing, the trial court clarified
its earlier explanation, stating that he would receive both a minimum and a maximum
sentence for the first- and second-degree felonies that he was pleading guilty to and that
there was a presumption that he would be released upon completing the minimum
mandatory sentence. In light of the foregoing, we conclude that Hall was not prejudiced
when the trial court advised him that his term of imprisonment could be reduced by good
behavior earned credit, and the advisement did not render his guilty pleas unknowing,
unintelligent, and involuntary.
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Violent Offender Database
{¶ 25} Further, Hall argues that the trial court erred when it failed to inform him at
the plea hearing of his duties to enroll in the Violent Offender Database (“VOD”) following
his release from prison, because it affected the maximum penalty of his kidnapping
offense, thus rendering his plea involuntary. Specifically, Hall argues that the trial court
failed to properly notify him of the procedures to overcome the presumption of violent
offender registration prior to sentencing.
{¶ 26} On March 20, 2019, R.C. 2903.41 et seq., commonly known as Sierah's
Law, became effective. See 2018 Am.Sub.S.B. No. 231. Sierah's Law created the VOD
and requires violent offenders convicted of specified offenses, including kidnapping, to
enroll in the database. Sierah's Law creates a presumption that violent offenders enroll
in the database and provides enrollment for a minimum of ten years. Re-enrollment in
the database is required on an annual basis.
{¶ 27} R.C. 2903.42(A)(1), governing enrollment in the VOD, states as follows:
(1) For each person who is classified a violent offender, it is presumed that
the violent offender shall be required to enroll in the violent offender
database with respect to the offense that so classifies the person and shall
have all violent offender database duties with respect to that offense for ten
years after the offender initially enrolls in the database. The presumption
is a rebuttable presumption that the violent offender may rebut as provided
in division (A)(4) of this section, after filing a motion in accordance with
division (A)(2)(a) or (b) of this section, whichever is applicable. Each
violent offender shall be informed of the presumption established under this
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division, of the offender's right to file a motion to rebut the presumption, of
the procedure and criteria for rebutting the presumption, and of the effect of
a rebuttal and the post-rebuttal hearing procedures and possible outcome,
as follows:
(a) If the person is classified a violent offender under division (A)(1) of
section 2903.41 of the Revised Code, the court that is sentencing the
offender for the offense that so classifies the person shall inform the
offender before sentencing of the presumption, the right, and the procedure,
criteria, and possible outcome.
(Emphasis added.)
{¶ 28} As stated above, the presumption that a person classified as a violent
offender must enroll in the violent offender database is rebuttable. R.C. 2903.42(A)(1).
To rebut the presumption, Hall first was required to file a motion with the trial court, prior
to or at sentencing, asserting that he was not the principal offender in the commission of
the kidnapping and requesting that the court not require him to enroll in the VOD and not
have all VOD duties with respect to that offense. R.C. 2903.42(A)(2)(a). Thus, Hall bore
the burden to establish by a preponderance of the evidence that he was not the principal
offender in the commission of the kidnapping. R.C. 2903.42(A)(4).
{¶ 29} If the violent offender proves that he or she was not the principal offender,
the court must “continue the hearing for the purpose of determining whether the offender,
notwithstanding the rebuttal of the presumption, should be required to enroll in the violent
offender database and have all VOD duties with respect to that offense.” R.C.
2903.42(A)(4)(a).
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{¶ 30} At the plea hearing, the following exchange occurred:
TRIAL COURT: All right. I’m going to have you listen as the prosecution
reads a statement of the charges. But before they do, is the State satisfied
with the explanation so far?
THE STATE: Yes, Your Honor. However, I would note that by virtue of
pleading to Count IV, the kidnapping charge, Mr. Hall would have to register
as a violent offender.
TRIAL COURT: Yeah. I – I should’ve explain [sic] this to you, sir, and I’m
sure [Defense Counsel] went over this with you. But by virtue of the statute
because of the – is this for the kidnapping, too, or just the aggravated
robbery?
THE STATE: Just kidnapping.
TRIAL COURT: Okay. On the kidnapping offense, the Court will have to
designate you as a violent offender. You’ll have the duty to register as that
and I will explain all of that to you at the time of sentencing but you would
be required to register as a violent offender. Do you understand that?
HALL: I do.
TRIAL COURT: Okay. Does that change anything so far up to this point
in time?
HALL: No.
TRIAL COURT: Okay. Anything else that needs to be explained?
THE STATE: Yes, Your Honor. Your Honor, with regards to that violent
offender requirement, it’s just a notification to the Defendant that if he does
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need to challenge and rebut the presumption of it, then any kind of motion
should have to be filed prior to sentencing..
TRIAL COURT: Okay. [Defense Counsel], you can explain to him if he
wants to rebut that, at all, a motion has to be filed before sentencing on the
violent offender, if that is happening.
DEFENSE COUNSEL: I understand that.
TRIAL COURT: Anything further?
THE STATE: No, Your Honor.
TRIAL COURT: [Defense Counsel], are you satisfied with everything the Court’s
gone over so far?
DEFENSE COUNSEL: Yes.
(Emphasis added.) Plea Hearing Transcript, p. 13-15.
{¶ 31} In support of his argument that the trial court did not adequately advise him
of his duties in regard to the violent offender specification, Hall relies on a recent opinion
from the Ohio Supreme Court, State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164
N.E.3d 286. In Dangler, the Supreme Court held that the trial court's failure to separately
go over the sex offender registration and in-person verification requirements, community-
notification provisions, and residence restrictions imposed by the sex offender registration
scheme when accepting defendant's no contest plea did not constitute a complete failure
to comply with the criminal procedure rule governing pleas of guilty and no contest in
felony cases. Id. at syllabus. The Dangler court also found that sex offender duties were
punitive in nature and part of the maximum penalty imposed, but because the duty to
enroll in the registry is a non-constitutional aspect of the defendant’s plea, the trial court
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only had to substantially comply during the Crim.R. 11 colloquy, and therefore the
defendant must establish that he was prejudiced. Hall’s reliance on Dangler is
misplaced.
{¶ 32} In the instant case, Hall was ordered to register with the VOD, which has
been found to remedial in nature, rather than punitive. See State v. Hubbard, 146 N.E.3d
593, 2020-Ohio-856, ¶ 32 (12th Dist.). “[C]lassification as a violent offender and
enrollment into the violent offender database “is a collateral consequence of the offender's
criminal acts rather than a form of punishment per se.” Id., citing State v. Ferguson, 120
Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 34.
“To argue the trial court has to inform defendant-appellant of all of the
possible consequences of his plea is untenable. For example, the trial
court does not have to inform defendant-appellant of all the ‘effects' of his
plea such as the potential for losing his/her job, home, marriage, reputation
or that his/her plea to a felony will deprive him/her the right to vote and/or
possess a firearm.”
State v. Craver, 2d Dist. Montgomery No. 25804, 2014-Ohio-3635, ¶ 14, citing State v.
Rice, 8th Dist. Cuyahoga No. 72685, 1999 WL 125742, *4 (Feb. 18, 1999).
{¶ 33} Since the VOD is a non-constitutional aspect of Hall’s guilty plea for
kidnapping and a collateral consequence of his actions, the trial court was not required to
inform Hall of all of his duties in regard to registering as a violent offender. Nevertheless,
on the record before us, we find that the trial court substantially complied with Crim.R. 11
in regard to informing Hall of his duty to register with the VOD. Specifically, Hall signed
the plea form for the kidnapping charge which indicated that by pleading guilty to that
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count, he would have to register as a violent offender. Additionally, the trial court advised
Hall that he would have a duty to register with the VOD, and at the time of sentencing, it
would review all of the duties with him with respect to registration. Significantly, the trial
court and the State put Hall on notice at the plea hearing that if he wanted to rebut the
presumption of having to register with the VOD, he would have to file a motion prior to
sentencing. As stated above, the trial court advised defense counsel to discuss the VOD
registration with Hall, and defense counsel stated that he understood. The record
establishes that neither Hall nor his counsel filed a motion prior to sentencing in order to
rebut the presumption of having to register as a violent offender. Finally, at sentencing,
Hall was advised of all his duties to register as a violent offender, and he signed a Notice
of Duties to Enroll as a Violent Offender (O.R.C. 2903.41 et seq.).
{¶ 34} Lastly, even if the trial court did not substantially comply with Crim.R. 11
when it failed to advise Hall of all of his duties pursuant to the VOD (which we do not
concede), Hall cannot establish that he was prejudiced and would not have otherwise
pleaded guilty. Significantly, the only manner by which Hall could have rebutted the
presumption of having to register as a violent offender was to file a motion with the trial
court arguing that he was not the principal offender. Hall was unable to advance this
argument; the record clearly established that he was the sole perpetrator of the offenses,
thereby making it nigh impossible for him to rebut the presumption that he was not the
principal offender. Upon review, we therefore conclude that the trial court substantially
complied with Crim.R. 11, and Hall’s guilty pleas were made in a knowing, intelligent, and
voluntary fashion.
{¶ 35} Hall’s first assignment of error is overruled.
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{¶ 36} Hall’s second assignment of error is as follows:
THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S EXCESS
SENTENCE.
{¶ 37} In his second assignment, Hall contends that the record does not support
the sentence imposed by the trial court. Specifically, Hall argues that the trial court did
not properly consider all of the relevant factors pursuant to R.C. 2929.11 and R.C.
2929.12 in regard to his remorse, his possible mental health problems, his acceptance of
responsibility for his actions, and his ability to become a productive member of society.
Therefore, he argues that his aggregate sentence was contrary to law.
{¶ 38} To the extent that Hall seeks to have this Court modify his sentence, we
emphasize that the Supreme Court of Ohio recently clarified an appellate court’s review
of a felony sentence under R.C. 2953.08(G)(2). State v. Jones, Ohio Slip Opinion No.
2020-Ohio-6729, __ N.E.3d __, ¶ 39. The Supreme Court determined that R.C.
2953.08(G)(2)(a) “clearly does not provide a basis for an appellate court to modify or
vacate a sentence if it concludes that the record does not support the sentence under
R.C. 2929.11 and R.C. 2929.12 because * * * R.C. 2929.11 and R.C. 292912 are not
among the statutes listed in the provision.” Id. at ¶ 31. Thus, the Supreme Court
concluded that an appellate court may not modify or vacate a felony sentence based upon
a finding by clear and convincing evidence that the record does not support the trial court’s
“findings” under R.C. 2929.11 and R.C. 2929.12. Id. at ¶ 42 (“Nothing in R.C.
2953.08(G)(2) permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the sentence that
best reflects compliance with R.C. 2929.11 and 2929.12.”).
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{¶ 39} In Jones, the Supreme Court also confirmed that R.C. 2953.08(G)(2)(b)
does not provide a mechanism for an appellate court to modify or vacate a felony
sentence abased upon a finding that the sentence is “contrary to law” because it clearly
and convincingly is not supported by the record under R.C. 2929.11 and R.C. 2929.12.
Id. at ¶ 32-39. “As a result of the Supreme Court’s holding in Jones, when reviewing felony
sentences that are imposed solely after considering the factors in R.C. 2929.11 and R.C.
2929.12, we shall no longer analyze whether those sentences are unsupported by the
record. We simply must determine whether those sentences are contrary to law.” State v.
Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A sentence is contrary to
law when it does not fall within the statutory range for the offense or if the trial court fails
to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and
the sentencing factors set forth in R.C. 2929.12.” Id. citing State v. Brown, 2017-Ohio
8416, 99 N.E.3d 1135 (2d Dist.).
{¶ 40} The record demonstrates that the prison terms imposed by the trial court in
this case were within the statutory range and that the trial court considered the requisite
statutory factors in R.C. 2929.11 and R.C. 2929.12 when it fashioned Hall’s aggregate
sentence. Thus, Hall cannot demonstrate that his sentence was clearly and convincingly
contrary to law, and his sentence must therefore be affirmed. See State v. Burks, 2d Dist.
Clark No. 2019-CA70, 2021-Ohio-224, ¶ 9. Under Jones, this ends the inquiry regarding
the individual and aggregate sentences.
{¶ 41} Hall’s second assignment of error is overruled.
{¶ 42} Hall’s third and final assignment of error is as follows:
HALL’S SENTENCE IS CONTRARY TO LAW BECAUSE HE WAS
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SENTENCED PURSUANT [TO] THE REAGAN TOKES ACT, WHICH IS
UNCONSTITUTIONAL.
{¶ 43} In his final assignment, Hall contends the newly-enacted statutory
sentencing scheme established by the RTA is unconstitutional. Hall therefore asserts
the sentence imposed by the trial court must be vacated. Hall also argues that his
counsel’s failure to object to the constitutionality of the RTA at sentencing constituted
ineffective assistance.
{¶ 44} Initially, we note that Hall failed to object to the constitutionality of the RTA
in the trial court. The “[f]ailure to raise at the trial court level the issue of the
constitutionality of a statute or its application, which is apparent at the time of trial,
constitutes a waiver of such issue and a deviation from this state's orderly procedure, and
therefore need not be heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d
120, 489 N.E.2d 277 (1986), syllabus.
{¶ 45} We retain the discretion, of course, to consider a waived constitutional
argument under a plain-error analysis. In re M.D., 38 Ohio St.3d 149, 151, 527 N.E.2d
286 (1988). An error qualifies as “plain error” only if it is obvious and but for the error,
the outcome of the proceeding clearly would have been otherwise. State v. Macias, 2d
Dist. Darke No. 1562, 2003-Ohio-1565, citing State v. Yarbrough, 95 Ohio St.3d 227, 245,
2002-Ohio-2126, 767 N.E.2d 216. Accordingly, we review Hall’s argument using a plain
error analysis.
{¶ 46} As with any statute enacted by the General Assembly, the RTA is entitled
to a “strong presumption of constitutionality.” State v. Romage, 138 Ohio St.3d 390, 2014-
Ohio-783, 7 N.E.3d 1156, ¶ 7. Thus, “if at all possible, statutes must be construed in
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conformity with the Ohio and the United States Constitutions.” State v. Collier, 62 Ohio
St.3d 267, 269, 581 N.E.2d 552 (1991). A party challenging the constitutionality of a
statute bears the burden of proving that it is unconstitutional beyond a reasonable doubt.
State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 41, citing
State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 12.
{¶ 47} Here, Hall argues that the RTA violates the separation of powers doctrine.
Specifically, he argues the law is unconstitutional because it permits the ODRC, rather
than a trial court, to make the factual determination whether a defendant's prison term will
extend beyond the presumptive minimum term. Hall’s argument is based upon the
holding in State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000).
{¶ 48} In Bray, the Ohio Supreme Court addressed the constitutionality of R.C.
2967.11 (which has since been repealed). The statute stated, in pertinent part, that “[a]s
part of a prisoner's sentence, the parole board may punish a violation committed by the
prisoner by extending the prisoner's stated prison term for a period of fifteen, thirty, sixty,
or ninety days in accordance with this section. If a prisoner's stated term is extended
under this section, the time by which it is so extended shall be referred to as ‘bad time.’ ”
R.C. 2967.11(B). A “violation” was defined as “an act that is a criminal offense under the
law of this state or the United States, whether or not a person is prosecuted for the
commission of the offense.” R.C. 2967.11(A). Other sections in R.C. 2967.11 articulated
the procedures that were followed to determine whether a “violation” (a crime) had been
committed. Bray at 135.
{¶ 49} The Supreme Court held, “[i]n short, R.C. 2967.11(C), (D), and (E) enable[d]
the executive branch to prosecute an inmate for a crime, to determine whether a crime
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[had] been committed, and to impose a sentence for that crime.” Id. The court held the
statute improperly permitted the executive branch to act “as judge, prosecutor, and jury
* * * [and thereby] intrude[d] well beyond the defined role of the executive branch as set
forth in our Constitution.” Id. Thus, the Court found the statute unconstitutional because
it violated the separation of powers doctrine. Id. at 136.
{¶ 50} Hall’s reliance upon Bray is misplaced because there is a significant
distinction between R.C. 2967.11 and the RTA. State v. Leet, 2d Dist. Montgomery No.
28670, 2020-Ohio-4592, ¶ 15. Specifically, R.C. 2967.11 authorized the parole board to
sentence a defendant to an additional prison term beyond that which had been imposed
by the trial court. In Bray, the defendant had served the entirety of the definite sentence
imposed by the trial court, but the parole board then tacked an additional prison term onto
the defendant's sentence. In contrast, under the RTA, the executive branch cannot keep
a defendant in prison beyond the maximum sentence imposed by the trial court. Simply
put, the RTA does not allow the ODRC to lengthen a defendant's sentence beyond the
maximum sentence imposed by the trial court. We thus conclude that Bray does not
compel the conclusion that the RTA violates the separation of powers doctrine. Id.{¶ 51} Hall also argues that the RTA violates due process. Specifically, Hall
contends that the RTA “leaves the parole board with unfettered discretion to decide even
whether the most minor infractions will keep an offender in prison longer.” We have
recently stated the following regarding whether the RTA comports with due process:
“[T]he fundamental requisite of due process of law is the opportunity to be
heard in a meaningful manner. The Reagan Tokes Law satisfies these
requirements. The Law states that, in order to rebut the presumption of the
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minimum term, the DRC must make a particular statutory determination ‘at
a hearing.’ R.C. 2967.271(C) and (D). The law does not give the [ODRC]
unfettered discretion to require an offender to serve more than the minimum
term. And it affords an offender notice and an opportunity to be heard
before more than the minimum may be required.”
State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶ 25, quoting
Woods v. Telb, 89 Ohio St.3d 504, 513, 733 N.E.2d 1103 (2000), citing Goldberg v. Kelly,
397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
{¶ 52} Accordingly, we therefore adhere to the conclusion that the RTA does not
facially violate the separation of powers doctrine or a defendant's right to procedural due
process, and the trial court did not err, plainly or otherwise, when it sentenced Hall
pursuant to the RTA.
{¶ 53} Lastly, Hall argues that his counsel’s failure to object to the constitutionality
of the RTA at sentencing constituted ineffective assistance.
{¶ 54} “We review the alleged instances of ineffective assistance of trial counsel
under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial
counsel is entitled to a strong presumption that his or her conduct falls within the wide
range of reasonable assistance. Strickland at 688. To reverse a conviction based on
ineffective assistance of counsel, it must be demonstrated that trial counsel's conduct fell
below an objective standard of reasonableness and that his errors were serious enough
to create a reasonable probability that, but for the errors, the result of the trial would have
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been different. Id. “Hindsight is not permitted to distort the assessment of what was
reasonable in light of counsel's perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective assistance of
counsel.” State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31, citing
State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992).
{¶ 55} A defendant is not deprived of the effective assistance of counsel when
counsel chooses, for strategic reasons, not to pursue every possible tactic. State v.
Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). The test for a claim of ineffective
assistance of counsel is not whether counsel pursued every possible defense; the test is
whether the defense chosen was objectively reasonable. Strickland at 688. A reviewing
court may not second-guess decisions of counsel which can be considered matters of
strategy. State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Debatable strategic
and tactical decisions may not form the basis of a claim for ineffective assistance of
counsel, even if, in hindsight, it looks as if a better strategy had been available. State v.
Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).
{¶ 56} Because we have concluded that Hall's constitutional rights were not
violated by the trial court’s imposition of sentence pursuant to the RTA, Hall is therefore,
unable to establish that he was prejudiced by his counsel's failure to challenge the
constitutionality of the statute. Accordingly, Hall is unable to establish that he received
ineffective assistance of counsel.
{¶ 57} Hall’s third assignment of error is overruled.
{¶ 58} All of Hall’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
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.............
HALL, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Ben M. Swift
Hon. Dennis J. Adkins