State v. Tornstrom

[Cite as State v. Tornstrom, 2023-Ohio-763.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2022-P-0025
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
BRENT G. TORNSTROM,
Trial Court No. 2021 CR 00929
Defendant-Appellant.
OPINION
Decided: March 13, 2023
Judgment: Affirmed and remanded
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Mark H. Ludwig, Law Office of Mark H. Ludwig, LLC, 344 Stouffer Road, Fairlawn, OH
44333 (For Defendant-Appellant).
JOHN J. EKLUND, P.J.
{¶1} Appellant, Brent Tornstrom, entered a guilty plea to Thirteen Counts of
Pandering Sexually Oriented Matter Involving a Minor. He pled guilty to ten second-
degree felony counts, in violation of R.C. 2907.332(A)(1) and three fourth-degree felony
counts of Pandering Sexually Oriented Matter Involving a Minor, in violation of R.C.
2907.332(A)(5).
{¶2} Appellant has raised four assignments of error asserting: (1) R.C. 2967.271,
the Reagan Tokes indefinite sentencing law, is unconstitutional; (2) trial counsel was
ineffective by failing to object to the imposition of an indefinite sentence and by failing to
identify a defect in appellant’s fourth-degree felony indictments; (3) that the trial court
failed to notify appellant of his rights prior to taking his plea; and (4) the trial court failed
to provide statutorily required Reagan Tokes notices during sentencing and that appellant
was subjected to an inconsistent and disparate sentence.
{¶3} After review of the record and the applicable caselaw, we affirm appellant’s
sentence as modified by this opinion. Appellant’s assignment of error challenging the
Reagan Tokes Act is without merit, appellant suffered no prejudice from trial counsel’s
failure to object, the trial court adequately advised appellant of his rights prior to taking
his guilty plea, and finally, appellant has not demonstrated sentencing errors.
{¶4} However, the trial court’s sentencing entry incorrectly stated that only one
of appellant’s convictions was a qualifying offense under the Reagan Tokes Act, which
requires modification.
{¶5} Therefore, we affirm the judgment of the Portage County Court of Common
Pleas and remand with instructions that appellant’s sentence be modified to reflect that
each of his second-degree felony convictions is a qualifying offense under the Reagan
Tokes Act and that an indefinite sentence has been imposed as to Count One.
Substantive and Procedural History
{¶6} On September 24, 2021, appellant was indicted on Twenty Counts of
Pandering Sexually Oriented Matter Involving a Minor in violation of R.C. 2907.332.
Counts One through Ten were second-degree felonies in violation of R.C. 2907.332(A)(1)
and Counts Eleven through Twenty were charged as fourth-degree felonies in violation
of R.C. 2907.332(A)(5).
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{¶7} In February 2022, pursuant to a plea agreement, appellant entered a plea
of guilty to ten second-degree felony counts and three fourth-degree felony counts. The
remaining seven fourth-degree felony counts were dismissed.
{¶8} At the plea hearing, the court determined that appellant understood that
each of the second-degree felony counts were subject to indefinite sentencing under the
Reagan Tokes Act and that an indefinite sentence could only be imposed on one count.
{¶9} On April 18, appellant’s sentencing hearing was held. At the hearing, the
trial court noted several errors in the presentence investigation (PSI) including that it
incorrectly identified the fourth-degree felony counts as second-degree felonies.
Appellant had one prior conviction for an OVI offense.
{¶10} The PSI indicated that appellant uploaded 10 files containing child sexual
abuse material including male and female victims ranging from approximately 5 and 13
years old being raped anally, vaginally, and orally, and including masturbation.
Appellant’s PSI statement indicated that he believed the material was “Just fantasy and
Pretend. I did not realize How severe it was, But I do now.” He said he made the biggest
mistake of his life.
{¶11} The court heard statements from appellant’s attorney, his mother, the State,
and appellant. Appellant reiterated that he did not believe the images he was seeing were
real and felt “horrible for those victims that this happened.” The court told appellant that
this is not a victimless crime and said, “If no one watched these, it wouldn’t be done.”
Appellant responded, “I never want to put myself in that situation ever again” and the court
replied, “Well, you won’t for quite a while.”
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{¶12} The court then said that it must consider the principles of sentencing and
that it had “taken into consideration the need to incapacitate the Defendant, deterring the
Defendant and others from future crimes of this nature, and rehabilitating the Defendant,
making restitution to the public or the victim. Weighing all the factors, a prison term is
consistent with the purpose and principles of sentencing. And the Defendant is not
amenable to community control sanctions.”
{¶13} The trial court sentenced appellant to an indefinite prison term of eight to
twelve years on Count One. The court sentenced appellant to four years on the remaining
second-degree felony counts, “all to run concurrent with Count One.” The court sentenced
appellant to 18 months on the three fourth-degree felony counts “to run concurrent with
one another and concurrent with Count One.”
{¶14} Appellant timely appealed raising four assignments of error.
Assignments of Error and Analysis
{¶15} “[1.] As amended By The Reagan Tokes Act The Revised Code’s Indefinite
Sentencing Scheme For A Second-Degree Qualifying offense Violates The United States
And Ohio Constitutions.”
{¶16} In this assignment of error, appellant challenges the constitutionality of R.C.
2967.271, the Reagan Tokes Law. Appellant did not object to the imposition of an
indefinite sentence at the trial court. However, based on this District’s recent holdings in
State v. Reffitt, 11th Dist. Lake Case No. 2021-L-129, 2022-Ohio-3371, and State v.
Joyce, 11th Dist. Lake Case No. 2021-L-006, 2022-Ohio-3370, this Court has previously
overruled the challenges that appellant advances against the constitutionality of the
Reagan Tokes Law.
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{¶17} At oral arguments, appellant argued that his challenge to the Reagan Tokes
Law was not a facial challenge as addressed in Reffitt and Joyce. However, he did not
articulate a specific as-applied harm that he has suffered that any person sentenced
under the Reagan Tokes Law would not suffer. An as-applied challenge must allege that
the “‘application of the statute in the particular context * * * would be unconstitutional. The
practical effect of holding a statute unconstitutional “as applied” is to prevent its future
application in a similar context, but not to render it utterly inoperative.'” Yajnik v. Akron
Dept. of Health, Housing Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 14,
quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct.
633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting).
{¶18} In addition, Reffitt and Joyce concluded that as-applied challenges to the
Reagan Tokes Law were not ripe for review where only hypothetical harm might result.
Reffitt at ¶ 68; Joyce at ¶ 40. In those cases, arguments relating to procedural safeguards
of hearings to rebut the presumption of release were not ripe because they constituted
as-applied challenges not yet applied to the defendants. Id. The same logic applies to
appellant because he cannot yet demonstrate that an as-applied constitutional challenge
is ripe for review. See State v. Moran, 11th Dist. No. 2020-L-114, 2022-Ohio-3610, 198
N.E.3d 922, ¶ 39.
{¶19} Thus, to the extent that appellant has asserted an as-applied challenge to
the Reagan Tokes Law, he has failed to demonstrate how such a claim is ripe for review.
{¶20} Accordingly, appellant’s first assignment of error is without merit.
{¶21} “[2.] Appellant was denied effective assistance of counsel.”
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{¶22} Appellant argues trial counsel was ineffective for two reasons. First, counsel
failed to object to the imposition of an indefinite sentence under the Reagan Tokes Law.
Second, appellant argues he was prejudiced by trial counsel’s failure to object to a defect
in the fourth-degree felony indictments.
{¶23} In reviewing an ineffective assistance of counsel claim, the standard we
apply is “‘whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.’”
State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An
appellant must demonstrate (1) his counsel was deficient in some aspect of his
representation, and (2) there is a reasonable probability, were it not for counsel's errors,
the result of the proceedings would have been different. Strickland, at 669. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. A failure
to “satisfy one prong of the Strickland test negates a court’s need to consider the other.”
State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing
Strickland, at 697.
{¶24} An appellant “must be able to demonstrate that the attorney made errors so
serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth
Amendment, and that he was prejudiced by the deficient performance.” Story, at ¶ 49,
quoting State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031, 2007-Ohio-2305, ¶ 42.
Ohio courts presume that every properly licensed attorney is competent, and therefore a
defendant bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d
1128 (1985). “Counsel’s performance will not be deemed ineffective unless and until
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counsel’s performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel’s performance.” State v.
Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). “Debatable trial tactics generally
do not constitute a deprivation of effective counsel.” State v. Phillips, 74 Ohio St.3d 72,
85, 656 N.E.2d 643 (1995). “Failure to do a futile act cannot be the basis for claims of
ineffective assistance of counsel, nor could such a failure be prejudicial.” State v.
Henderson, 8th Dist. Cuyahoga No. 88185, 2007–Ohio–2372, at ¶ 42.
{¶25} Turning to the Reagan Tokes issue, as addressed above, we have
previously held that the Reagan Tokes law is constitutional. See State v. Reffitt, 2022-
Ohio-3371, and State v. Joyce, 2022-Ohio-3370. “Because we have found R.C. 2967.271
to be constitutional, Appellant has not demonstrated prejudice from counsel's failure to
raise the claim in the trial court.” State v. Dixon, 11th Dist. Portage No. 2021-P-0114,
2022-Ohio-4158, ¶ 53, quoting State v. Maddox, 6th Dist. Lucas, No. L-19-1253, 2022-
Ohio-1350 ¶ 11; accord State v. Williams, 5th Dist. Coshocton No. 2021CA0003, 2022-
Ohio-2002, ¶ 15; State v. Leamman, 2nd Dist. Champaign No. 2021-CA-30, 2022-Ohio-
2057, ¶ 14; State v. Philpot, 8th Dist. Cuyahoga No. 110828, 2022-Ohio-1499, ¶ 33 (all
holding R.C. 2967.271 constitutional and therefore finding no demonstration of prejudice).
{¶26} Next, we address appellant’s argument that the fourth-degree felony counts
of his indictment were defective. Appellant pled guilty to these counts and did not object
to the indictments. A failure to “timely object to a defect in an indictment constitutes a
waiver of the error.” State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d
26, ¶ 46; Crim.R. 12(C)(2).
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{¶27} The fourth-degree felony indictments against appellant each state that
appellant “did: Knowingly solicit, receive, purchase, exchange, possess or control any
material that shows a minor participating or engaging in sexual activity, masturbation or
bestiality.” This language tracks with Division (A)(5) of R.C. 2907.332(A)(5). However, the
indictment does not contain any language referencing Division (A) itself. By contrast, each
of the second-degree felony indictments under section (A)(1) state that appellant acted
“With knowledge of the character of the material or performance * * *.” This language
tracks with R.C. 2907.332(A) which states: “No person, with knowledge of the character
of the material or performance involved, shall do any of the following:”
{¶28} Article I, Section 10 of the Ohio Constitution and the Sixth Amendment to
the Unites States Constitution require an indictment to contain the elements of the
charged offense and to fairly inform a defendant of the charge to be defended. State v.
Troisi, Slip Opinion No. 2022-Ohio-3582, ¶ 22.
{¶29} An indictment may state in ordinary and concise language words that are
“sufficient to give the defendant notice of all the elements of the offense with which the
defendant is charged.” Id. at ¶ 23, citing Crim.R. 7(B).
{¶30} A defective indictment renders a charge voidable rather than void. State v.
Snowden, 11th Dist. Trumbull No. 2021-T-0008, 2021-Ohio-2885, ¶ 14, appeal not
allowed, 165 Ohio St.3d 1480, 2021-Ohio-4289, 177 N.E.3d 1000, citing State v.
Patterson, 5th Dist. Stark No. 2003CA00135, 2004-Ohio-1569, ¶ 13. An indictment is void
if it sets forth facts which “in no conceivable form can constitute a criminal offense” or
where the court issuing the process had no jurisdiction over the offense or person charged
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with the offense. Id. at ¶ 16, citing Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E.
451 (1918), syllabus.
{¶31} However, an indictment is voidable where there has been “a bona fide
attempt * * * to charge a possible offense under the statute, but by reason of some defect
or irregularity such charge is per se insufficient in law.” Id.{¶32} Under Crim.R. 7(D), a trial court may amend an indictment “at any time * *
* in respect to any defect, imperfection, or omission in form or substance, * * * provided
no change is made in the name or identify of the crime charged.” The state “‘may cure a
defective indictment by amendment, even if the original indictment omits an essential
element of the offense with which the defendant is charged.’” Troisi, supra, at ¶ 25,
quoting State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 15; State
v. Horner, 126 Ohio St.3d 466, at ¶ 9. Where an indictment fails to state the mens rea of
a crime, the indictment may nevertheless be amended to add the mens rea where “both
before and after the amendment of the indictment, the name of the crime remain[s] the
same” and neither penalty nor the degree are changed as a result. State v. O'Brien, 30
Ohio St.3d 122, 126, 508 N.E.2d 144 (1987).
{¶33} We agree with appellant that the fourth-degree felony indictments under
subsection R.C. 2907.332(A)(5) were defective for failing to allege an essential element
of the offense. See Crim.R. 7(B). However, the State’s indictment represented a bona
fide attempt to charge a possible offense under R.C. 2907.332(A)(5). Although the
indictment was indeed defective for failing to contain an essential element, that defect
was curable under Crim.R. 7(D). The name, penalty, and degree of the offense would
remain unchanged. In this case, appellant cannot demonstrate he was prejudiced by trial
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counsel’s failure to object to the flaw in the indictment. Had counsel done so, “it is highly
likely that the state, in being informed of the oversight, would have sought to amend the
indictment under Crim.R. 7(D).” State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031,
2007-Ohio-2305, ¶ 44.
{¶34} Accordingly, appellant’s second assignment of error is without merit.
{¶35} “[3.] Appellant was not adequately advised of his rights on taking his guilty
plea.”
{¶36} Appellant asserts several arguments under his third assignment of error.
{¶37} First, he argues that the trial court erred by telling him that a guilty plea
waived his right to appeal “any issue that might have been brought up at trial,” while not
also informing appellant that he nevertheless retained the right to appeal aspects of his
plea or the sentence imposed.
{¶38} Second, appellant argues the trial court erred by asking appellant: if he was
“fully advised” by trial counsel; by asking if appellant if he had reviewed the written plea
form “thoroughly;” and that the court told appellant “I know” trial counsel “has gone over
your rights with you, you’ve gone over them” before asking if appellant had any questions
about the constitutional rights he was giving up. Appellant argues these questions could
not have satisfied the trial court’s duty to determine he was entering his plea knowingly.
{¶39} Third, he argues that his plea was not made knowingly, intelligently, and
voluntarily because he entered his plea without having knowledge that the Reagan Tokes
Law was unconstitutional and that his trial counsel was providing ineffective assistance
by failing to object. Appellant also argues that the trial court erred by failing to tell appellant
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which of the ten second degree felony counts was the qualifying count under the Reagan
Tokes Law.
{¶40} A guilty plea must be made knowingly, intelligently, and voluntarily. State v.
Wasilewski, 11th Dist. Portage No. 2020-P-0025, 2020-Ohio-5141, ¶ 20, quoting State v.
Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “Failure on any of those points
renders enforcement of the plea unconstitutional under both the United States
Constitution and the Ohio Constitution.” Id.{¶41} In reviewing whether a guilty plea was entered knowingly, intelligently, and
voluntarily, an appellate court conducts a de novo review of the record to ensure
compliance with constitutional and procedural safeguards. State v. Siler, 11th Dist.
Ashtabula No. 2010-A-0025, 2011-Ohio 2326, ¶ 12, quoting State v. Eckler, 4th Dist.
Adams No. 09CA878, 2009-Ohio 7064, ¶ 48. Those constitutional and procedural
safeguards are designed to ensure that a trial court determine whether a plea is entered
knowingly, intelligently, and voluntarily by explaining the Constitutional and other rights
and the consequences of waiving them.
{¶42} Crim.R. 11(C)(2) requires the trial court to inform the defendant of these
rights before accepting a guilty or no contest plea, and to determine that the defendant
understands them as well as other aspects of the proceedings. The rule provides in
pertinent part:
(2) In felony cases the court may refuse to accept a plea of guilty or
a plea of no contest, and shall not accept a plea of guilty or no contest
without first addressing the defendant personally either in-person or
by remote contemporaneous video in conformity with
Crim.R. 43(A) and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
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and of the maximum penalty involved, and if applicable, that
the defendant is not eligible for probation or for the imposition
of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
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.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses against
him or her, to have compulsory process for obtaining
witnesses 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.
{¶43} Crim.R. 11(C)(2)(c) sets forth the constitutional rights a court must inform a
defendant of, and which are waived when entering a guilty or no contest plea. State v.
Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 14.
{¶44} Crim.R. 11(C)(2)(a) provides that a trial court must determine that a
defendant is pleading voluntarily and understands the maximum penalty involved before
accepting a plea of guilty or no contest.
{¶45} When challenging a trial court’s failure to address non-constitutional
Crim.R. 11(C) requirements, a defendant must demonstrate either prejudice or that the
trial court completely failed to comply with the applicable portion of Crim.R. 11(C). Id. at
14-15. To show prejudice, under Crim.R. 11(C)(2)(a) a defendant must demonstrate that
the plea would not have been entered “but for the trial court’s failure to explain the sex-
offender-classification scheme more thoroughly.” Id. at ¶ 23.
{¶46} A “complete failure to comply” with a non-constitutional requirement of
Crim.R. 11 occurs when the court makes “no mention” of the requirement. Id. at ¶ 15,
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citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22
(holding that a failure to mention postrelease control where the defendant was subject to
a mandatory five years of postrelease control was a complete failure to comply with the
requirements of Crim.R. 11).
{¶47} The essential questions to be answered are simply: “(1) has the trial court
complied with the relevant provision of the rule? (2) if the court has not complied fully with
the rule, is the purported failure of a type that excuses a defendant from the burden of
demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant
met that burden?” Id. at ¶ 17.
{¶48} First, appellant’s argument that the trial court failed to inform him of his
appellate rights at his plea hearing is misplaced but does allude to an important trial court
responsibility at sentencing. Although a trial court has an “obligation to advise a defendant
of his right to appeal” that obligation only “becomes operative ‘after imposing sentence,’
and has no bearing on the validity of a guilty plea.” State v. Nicholas, 11th Dist. Portage
No. 2009-P-0049, 2010-Ohio-1451, ¶ 26, quoting State v. Atkinson, 9th Dist. Medina No.
05CA0079-M, 2006-Ohio-5806, ¶ 22.
{¶49} Crim.R. 32(B)(2) provides: “After imposing sentence in a serious offense,
the court shall advise the defendant of the defendant's right, where applicable, to appeal
or to seek leave to appeal the sentence imposed.”
{¶50} Crim.R. 32(B)(3) provides:
If a right to appeal or a right to seek leave to appeal applies under
division (B)(1) or (B)(2) of this rule, the court shall also advise the
defendant of all of the following:
(a) That if the defendant is unable to pay the cost of an appeal, the
defendant has the right to appeal without payment;
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(b) That if the defendant is unable to obtain counsel for an appeal,
counsel will be appointed without cost;
(c) That if the defendant is unable to pay the costs of documents
necessary for an appeal, the documents will be provided without
cost;
(d) That the defendant has a right to have a notice of appeal timely
filed on his or her behalf.
{¶51} The trial court did not inform appellant of his right to appeal at the sentencing
hearing or in its judgment entry of sentence. Therefore, the trial court erred in failing to
comply with the requirements of Crim.R. 32(B)(2). We urge trial courts to fully inform all
criminal defendants of their right to appeal upon imposition of sentence.
{¶52} However, appellant timely filed the instant appeal. Regardless of whether
the trial court committed error by failing to inform appellant of his appellate rights, he has
failed to demonstrate how that failure has prejudiced him. We find no reversible error in
this instance. See State v. Middleton, 12th Dist. Preble No. CA2004-01-003, 2005-Ohio-
681, ¶ 25 (Finding no reversible error where appellant failed to show prejudice from trial
court’s error with regard to Crim.R. 32(B)(2) and (3).
{¶53} Second, we address appellant’s argument that the trial court erred by asking
appellant questions that could not have satisfied the trial court’s duty to determine he was
entering his plea knowingly.
{¶54} Appellant does not point to any particular portion of Crim.R. 11(C) with
which the trial court failed to comply. Appellant has not asserted that the trial court failed
to advise him of any constitutional or nonconstitutional requirement of Crim.R. 11. App.R.
16(A)(7) requires an appellant's brief to provide “[a]n argument containing the contentions
of the appellant with respect to each assignment of error presented for review and the
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reasons in support of the contentions, with citations to the authorities, statutes, and parts
of the record on which appellant relies.” “It is not an appellate court's duty to guess the
arguments of an appellant.” Dennis v. Nickajack Farms, Ltd., 11th Dist. Geauga No.
2014–G–3188, 2014-Ohio-5468, ¶ 6.
{¶55} Third, we address appellant’s argument that the trial court did not properly
inform him of his rights under the Reagan Tokes Law. Specifically, appellant asserts that
the trial court’s explanation of his maximum sentence under the Reagan Tokes Law was
“a complete abandonment of judicial power at the legislature’s direction. And why does
blaming ‘our appeals court’ for ‘having to go over this word for word’ excuse or actually
help ‘explain’ anything? [Other than mean culpa and the rejected Nuremberg defense of
‘I’m just following orders’].” (Brackets sic). Appellant further contends that the trial court
failed to inform appellant which of the ten second-degree felony counts was the qualifying
offense under the Reagan Tokes Law.
{¶56} To the extent that appellant’s argument under this assignment is an
additional challenge of the Reagan Tokes Law, we overrule those arguments as if they
were raised under his first assignment of error.
{¶57} Next, at the plea hearing, the trial court informed appellant “each of the”
second-degree felony “counts may bring with them up to a two to eight year prison term,
up to an indefinite 12 years in prison.” Later in the plea hearing, the court said “when I’m
sentencing, only one of the felonies of the second-degree can be picked as a qualifying
count, which may be up to an indefinite sentence of 12 years. Do you understand that?”
{¶58} This was an incorrect statement of law. As addressed further under
assignment of error four, pursuant to R.C. 2929.144(A), each of the second-degree felony
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was a qualifying offense. R.C. 2929.144(C) provides that each of appellant’s second-
degree felony counts were qualifying offenses subject to a minimum term to be imposed
under R.C. 2929.14(A)(2)(a) and a maximum term determined by R.C. 2929.144(B).
{¶59} Crim.R. 11(C)(2)(a) provides that a trial court must determine that a
defendant is pleading voluntarily and understands the maximum penalty involved before
accepting a plea of guilty. When challenging a trial court’s failure to address non-
constitutional Crim.R. 11(C) requirements, a defendant must demonstrate either
prejudice or that the trial court completely failed to comply with the applicable portion of
Crim.R. 11(C). Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, at ¶ 14-15.
{¶60} Here, the trial court did not fully comply with a non-constitutional
requirement under Crim.R. 11(C)(2)(a). However, appellant must demonstrate he was
prejudiced by this failure. See Id. at ¶ 17. Appellant has not contended he was prejudiced
or that he would not have entered his plea, therefore, he has not met his burden under
the Dangler test.
{¶61} Accordingly, appellant’s third assignment of error is without merit.
{¶62} “[4.] The sentences imposed are contrary to law.”
{¶63} Under his fourth assignment of error, appellant argues that his sentence is
contrary to law for several reasons.
{¶64} First, he argues the court erred by providing statutorily required notices
under R.C. 2929.19(B)(2)(c) only after announcing appellant’s 12-year indefinite
sentence.
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{¶65} R.C. 2929.19(B)(2) provides that “[s]ubject to division (B)(3) of this section,
if the sentencing court determines at the sentencing hearing that a prison term is
necessary or required, the court shall do all of the following: * * *[.]”
{¶66} In contrast, R.C. 2929.19(B)(1) provides that “[a]t the sentencing hearing,
the court, before imposing sentence, shall do all of the following: * * *[.]”
{¶67} When the statutory language is unambiguous, we apply it as written without
resorting to rules of statutory interpretation or considerations of public policy. Gabbard v.
Madison Local School Dist. Bd. of Edn., 165 Ohio St.3d 390, 2021-Ohio-2067, 1793
N.E.3d 1169, ¶ 13. Here the legislature has used language in one provision of a statute
requiring specific timing of an action in the case of Division (B)(1) and has not required
specific timing of a separate action as in Division (B)(2). Appellant asks this Court to
mandate pre-imposition of sentence timing language to the requirements under Division
(B)(2). We will not read such a requirement into the statute.
{¶68} Next, appellant argues that at the sentencing hearing, the trial court
incorrectly imposed a concurrent sentence on Counts Two through Ten. The trial court
said that it was imposing a four-year concurrent sentence on Counts Two through Ten
“all to run concurrent with Count One.” Appellant says that this wording does not make
clear whether the nine second-degree felony counts will run concurrent with the eight
years presumptive minimum sentence or if they can additionally run concurrent with the
indefinite portion of the sentence. However, the sentencing entry does clarify that Counts
Two through Ten were “all to run concurrent and concurrent” with Count One. This aspect
of appellant’s assignment of error is without merit.
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{¶69} However, the State has brought a related error to the Court’s attention. The
State observes that the trial court’s sentencing entry only sentenced appellant to an
indefinite sentence on Count One but did not indicate the remaining second-degree felony
counts were also qualifying offenses with a calculated minimum term.
{¶70} Under the Reagan Tokes Law, a trial court imposing a prison term is
required to order a minimum, definite prison term under R.C. 2929.14(A)(1)(a) or (A)(2)(a
and to order a maximum, indefinite prison term determined by R.C. 2929.144(B). State v.
Johnson, 11th Dist. Lake No. 2020-L-051, 2020-Ohio-6807 ¶ 8.
{¶71} Here, appellant’s indefinite prison term falls within the category of R.C.
2929.144(B)(3) which provides:
If the offender is being sentenced for more than one felony, if one or
more of the felonies is a qualifying felony of the first or second
degree, and if the court orders that all of the prison terms imposed
are to run concurrently, the maximum term shall be equal to the
longest of the minimum terms imposed on the offender under division
(A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a
qualifying felony of the first or second degree for which the sentence
is being imposed plus fifty per cent of the longest minimum term for
the most serious qualifying felony being sentenced.
{¶72} In this case, the trial court sentenced appellant to eight years on Count
One, therefore his maximum term would be twelve years. The sentencing entry correctly
reflects this as “only one maximum term is calculated under R.C. 2929.14.” State v.
Searls, 2nd Dist. No. 28995, 2022-Ohio-858, 186 N.E.3d 328, ¶ 22.
{¶73} However, the court was also required to state the minimum term for each of
the qualifying offense.
{¶74} R.C. 2929.144(C) states:
The court imposing a prison term on an offender pursuant to division
(A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a
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qualifying felony of the first or second degree shall sentence the
offender, as part of the sentence, to the maximum prison term
determined under division (B) of this section. The court shall impose
this maximum term at sentencing as part of the sentence it imposes
under section 2929.14 of the Revised Code, and shall state the
minimum term it imposes under division (A)(1)(a) or (2)(a) of
that section, and this maximum term, in the sentencing entry.
(Bold added).
{¶75} The concurrent sentences in Counts Two through Ten were also qualifying
sentences. When imposing a prison sentence under the Reagan Tokes Law, the trial
court must “first select, for each offense, a stated minimum term from the appropriate
statutory range for either a first- or second-degree felony, unless a specific penalty
applies.” Searls at ¶ 22. Both the stated minimum term and the calculated maximum term
must be included in the sentencing entry.” Id.{¶76} “[W]here the trial court is imposing prison sentences on multiple counts
under the Reagan Tokes Act, the trial court’s sentence for each individual count should
make clear that the prison term is a stated minimum sentence, as opposed to a definite
sentence.” Id. at ¶ 33. The court in Searls remanded with instructions to modify the
language of the sentencing entry to “clarify that the eight-year term for each of those
counts is the stated minimum term of an indefinite sentence under the Reagan Tokes
Act.” Id. at ¶ 34.
{¶77} In this case, the trial court treated Counts Two through Ten as if they were
not qualifying offenses and did not properly identify that each of the four-year sentences
on Counts Two through Ten were the stated minimum term imposed pursuant to R.C.
2929.144(C).
{¶78} Next, appellant argues that his sentence is inconsistent with other
sentences in similar cases. Appellant failed to raise this issue below. That alone precludes
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review. See State v. Bell, 2nd Dist. Greene No. 2004-CA-5, 2005-Ohio-655, ¶ 140; State
v. Roberts, 8th Dist. Cuyahoga No. 84070, 2005-Ohio-28, ¶ 60.
{¶79} Appellant further argues the trial court relied on unsupported sentencing
considerations and made inappropriate comments reflecting it had prematurely made up
its mind about the sentencing in disregard of R.C. 2929.11 and R.C. 2929.12.
{¶80} He argues there was no evidence in the record to support the trial court’s
statement that victims are harmed “because of people like you. * * * If no one watched
these, it wouldn’t be done.”
{¶81} However, under State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169
N.E.2d 649, an appellate court reviewing alleged error under R.C. 2929.11 and R.C.
2929.12 no longer evaluates whether those sentences are unsupported by the record.
Instead, the court “must simply analyze whether the sentencing court’s findings for those
sentences are contrary to law.” Id. at ¶ 11. Jones held that “legal dictionaries define
‘contrary to law’ as ‘in violation of statute or legal regulations at a given time,’ e.g., Black’s
Law Dictionary 328 (6th Ed. 1990).” Id. at ¶ 34. The phrase “contrary to law” is not
“equivalent” to an “appellate court’s conclusions that the record does not support a
sentence under R.C. 2929.11 or 2929.12.” Id. Pursuant to Jones, we will not weigh
whether the record supported the trial court’s comment.
{¶82} Neither will we find that the trial court made injudicious remarks and
prematurely made up its mind during sentencing. Appellant, expressing remorse, said he
never wanted to put himself in such a position again and the court said: “Well, you won’t
for quite a while.” This statement came at the conclusion of appellant’s statement to the
court and directly before the court imposed sentence. It was not, as appellant
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characterized a “swift, harsh, sarcastic retort,” nor was it “cracking wise.” By no means
did the statement indicate the trial court disregarded the sentencing factors of R.C.
2929.11 and R.C. 2929.12 or that the sentence imposed was contrary to law.
{¶83} Finally, appellant argues, relying on State v. Colon, 118 Ohio St.3d 26,
2008-Ohio-1624, 885 N.E.2d 917 (Colon I), that an indictment that omits an essential
element of an offense is void. He therefore contends he could not be sentenced for the
three fourth-degree felony convictions because they were void due to their defect
discussed above.
{¶84} However, Colon I was overruled by State v. Horner, 126 Ohio St.3d 466,
which held that an indictment tracking the language of the criminal statute is not defective
for failure to identify a mens rea where the “statute itself fails to specify a mental state.”
Id. at paragraph one of the syllabus.
{¶85} Further, as discussed in the context of trial counsel’s ineffective assistance
of counsel, a failure to “timely object to a defect in an indictment constitutes a waiver of
the error.” Horner, at ¶ 46 (Overruling State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624,
885 N.E.2d 917 (Colon II)); Crim.R. 12(C)(2). Any claim of error in the indictment in such
a case is limited to a plain-error review on appeal. Id.{¶86} We have already concluded that the defect in the fourth-degree felony
counts was a voidable defect in the indictment which the State could have amended “at
any time.” See Crim.R. 7(D). Appellant has failed to demonstrate any prejudice that
resulted from the defect in the indictment.
{¶87} Accordingly, appellant’s fourth assignment of error is without merit.
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{¶88} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas is affirmed and remanded with instructions that appellant’s sentence be
modified to reflect that each of his second-degree felony convictions is a qualifying
offense under the Reagan Tokes Act, that Count One has a stated minimum term of eight
years with an indefinite sentence of four years, and that Counts Two through Ten have a
stated minimum term of four years.
MARY JANE TRAPP, J.,
MATT LYNCH, J.
concur.
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