State v. Gau ( 2023 )

[Cite as State v. Gau, 2023-Ohio-4205.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29786
:
v. : Trial Court Case No. 2023 CR 00030
:
BRANDON GAU : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on November 22, 2023
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ROBERT ALAN BRENNER, Attorney for Appellant
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee
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EPLEY, J.
{¶ 1} Defendant-Appellant Brandon Gau appeals from his conviction in the
Montgomery County Court of Common Pleas after he pleaded guilty to one count of gross
sexual imposition (GSI) and was sentenced to 24 months in prison. For the reasons that
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follow, the judgment of the trial court will be affirmed.
I. Facts and Procedural History
{¶ 2} On February 6, 2023, Gau was indicted on two counts of gross sexual
imposition in violation of R.C. 2907.05(A)(4), third-degree felonies. The victim of the
crimes was a 12-year-old boy. A few weeks later, Gau filed a motion to suppress; the trial
court set a hearing date of April 6, 2023. Instead of a suppression hearing on that date,
Gau decided to enter a guilty plea. In exchange for Gau’s pleading guilty to one count
and withdrawing his motion to suppress, the State agreed to dismiss the other GSI count.
{¶ 3} After accepting the guilty plea, the trial court ordered a presentence
investigation. Gau was sentenced to 24 months in prison and designated a Tier II sex
offender. He has filed a timely appeal that raises a single assignment of error.
II. Guilty Plea
{¶ 4} In his lone assignment of error, Gau argues that his plea was not made in a
knowing, intelligent, and voluntary manner because “the trial judge misled him into
believing that he was not facing a presumption of prison time[.]” Appellant’s Brief at 2.
{¶ 5} To satisfy the requirements of due process, a guilty plea must be made
knowingly, intelligently, and voluntarily, and the record must affirmatively demonstrate as
much. State v. Harris, 2d Dist. Clark No. 2020-CA-29, 2021-Ohio-1431, ¶ 15. For a plea
to be made knowingly, intelligently, and voluntarily, the trial court must follow the
mandates of Crim.R. 11(C). State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705,
2012-Ohio-199, ¶ 13. “[T]he rule ‘ensures an adequate record on review by requiring the
trial court to personally inform the defendant of his rights and the consequences of his
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plea and determine if the plea is understandingly and voluntarily made.’ ” State v. Dangler,
162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 11, quoting State v. Stone, 43 Ohio
St.2d 163, 168, 331 N.E.2d 411 (1975).
{¶ 6} Crim.R. 11(C)(2)(c) dictates that the trial court inform the defendant of the
constitutional rights he is waiving, like the right to a jury trial, the right to confront
witnesses, the right to compulsory process, the right against self-incrimination, and the
right to require the State to establish guilt beyond a reasonable doubt. State v. Perdue,
2022-Ohio-722, 185 N.E.3d 683, ¶ 11 (2d Dist.). Strict compliance with this Rule is
required. Id. A failure to do so invalidates the plea. Id.{¶ 7} “A trial court must substantially comply with the notification of non-
constitutional rights contained in Crim.R. 11(C)(2)(a) and (b), and a defendant generally
must show prejudice before a plea will be vacated for failure to substantially comply with
these notifications.” State v. Easter, 2016-Ohio-7798, 74 N.E.3d 760, ¶ 8 (2d Dist.).
“Substantial compliance” means that under the totality of the circumstances the defendant
understands the implications of his plea and the rights he is giving up. State v. Thomas,
2d Dist. Montgomery No. 26907, 2017-Ohio-5501, ¶ 37; State v. Nero, 56 Ohio St.3d 106,
108, 564 N.E.2d 474 (1990). A defendant challenging a guilty plea on non-constitutional
grounds “must show a prejudicial effect” – in other words, “that the plea would otherwise
not have been entered.” Thomas at ¶ 38.
{¶ 8} As to the underlying charge of GSI, R.C. 2907.05(A)(4) states that no person
shall have sexual contact with another if the other is less than 13 years of age, whether
or not the offender knows the age of that person. A violation of this section carries a
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presumption of prison. R.C. 2907.05(C)(2); R.C. 2929.13(D)(1); State v. Jordan, 2d Dist.
Champaign No. 2016-CA-17, 2017-Ohio-5827, ¶ 15. See also State v. Montez, 6th Dist.
Lucas No. L-21-1086, 2022-Ohio-640, ¶ 22; State v. Stephens, 11th Dist. Portage No.
2018-P-0090, 2019-Ohio-3150, ¶ 15. The presumption can be overcome, and if it is, the
court may impose community control sanctions. Id; State v. Bevly, 142 Ohio St.3d 41,
2015-Ohio-475, 27 N.E.3d 516, ¶ 25.
{¶ 9} Gau has not argued that the trial court failed to advise him of the
constitutional and non-constitutional rights he was giving up by entering a guilty plea, and
our review of the record confirms that he was thoroughly informed of his rights. Instead,
Gau claims that the trial court misled him into thinking he had a 50-50 chance of receiving
community control sanctions, making his plea involuntary. We disagree.
{¶ 10} We begin by noting that a trial judge is not required, when accepting a guilty
plea, to inform a defendant of the statutory presumption in favor of incarceration or to
ascertain that the defendant understands that presumption. State v. Good, 2d Dist. Clark
No. 2022-CA-39, 2023-Ohio-1510, ¶ 13; State v. Gales, 2d Dist. Greene No. 1997-CA-
114, 1998 WL 698363, *4 (Oct. 9, 1998) (“[T]here is no provision in Crim.R. 11 for
determining that the defendant has an understanding of the statutory presumption in favor
of incarceration[.]”).
{¶ 11} During the plea colloquy, the trial court made it clear at least twice that there
were two possible outcomes: imposition of a prison sentence or community control
sanctions. First, the court stated that it had “the option of doing one of two things; either
impose a prison sentence or grant community control. Those are the Court’s only two
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options.” Plea Tr. at 10. A short time later, it asked: “Now, appreciating that these are the
two options, and the Court has to pick one of those, also appreciating I can’t tell you today
which one I will impose * * *, I ask you. Do you still want to go forward with the change of
plea to guilty?” Plea Tr. at 12. There was nothing false or misleading about those
statements. The court did not promise community control, nor did it rule out the possibility
of a prison term; it accurately advised Gau of the case’s possible outcomes. In every non-
mandatory prison term case, there are two potential dispositions: community control or
prison. Further, Gau’s plea agreement (which he signed and stated that he understood)
clearly set out that both a prison term of up to 60 months or community control sanctions
were possibilities.
{¶ 12} Gau also believes that the trial court should have honored the parties’ joint
recommendation that he be sentenced to community control. There are two problems
with this argument. First, there is scant evidence that there was such an agreement. There
was no mention of it at the plea hearing by either party or the court, and there is nothing
in the plea agreement itself that indicates there was an agreement as to sentence. That
form indicates that there was a range of prison sentences available from 12 to 60 months,
or community control sanctions. The only mention of it was by defense counsel at the
disposition.
{¶ 13} Second, even if there were an agreed recommendation, Ohio courts have
held that a trial court is not bound to accept a jointly-recommended sentence in a plea
agreement. State v. Underwood, 124 Ohio St.3d 363, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28;
State v. Stevens, 2d Dist. Miami No. 2021-CA-40, 2022-Ohio-2974, ¶ 6; State v. Downing,
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2d Dist. Greene No. 2019-CA-72, 2020-Ohio-3984, ¶ 34; State v. Elliott, 2021-Ohio-424,
168 N.E.2d 33, ¶ 15 (1st Dist.) (a recommended sentence is a “nonbinding
recommendation to the court, which the court is not required to accept or comment on”).
{¶ 14} Because the record confirms that Gau was not misled into thinking he was
going to get community control, and because the trial court was not required to explain
that there was a presumption of prison, we conclude that he entered into the plea
agreement in a knowing, intelligent and voluntary manner. The assignment of error is
overruled.
III. Conclusion
{¶ 15} The judgment of the trial court will be affirmed.
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WELBAUM, P.J. and LEWIS, J., concur.