State v. Bobo

[Cite as State v. Bobo, 2022-Ohio-3555.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111362
v. :
VICTOR BOBO, :
Defendant-Appellant. :
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JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
RELEASED AND JOURNALIZED: October 6, 2022
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Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-666312-B
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Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Luke Habermehl, Assistant Prosecuting
Attorney, for appellee.
The Law Office of Jaye M. Schlachet, Jaye M. Schlachet,
and Eric M. Levy, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Victor Bobo (“Bobo”) appeals his conviction and
sentence after pleading guilty to one count of felony two drug trafficking. For the
following reasons, we affirm in part, reverse in part, and remand for further
proceedings.
Procedural and Factual History
On January 14, 2022, Bobo was indicted for drug trafficking cocaine in
an amount exceeding 27 grams but less than 100 grams, a felony of the first degree
(Count 1); possession of cocaine, a felony of the first degree (Count 2); and
possession of criminal tools, a felony of the fifth degree (Count 3). Bobo also had
three other cases before the court as follows: Cuyahoga C.P. No. CR-21-633725-A:
receiving stolen property, a felony of the fourth degree; Cuyahoga C.P. No. CR-21-
664669: robbery a felony of the third degree and grand theft a felony of the fourth
degree; and Cuyahoga C.P. No. CR-22-666766: abduction, a felony of the third
degree; domestic violence, a felony of the fourth degree; and resisting arrest, a
misdemeanor of the second degree.
On March 2, 2022, the court conducted a pretrial. Prior to that date,
Bobo’s counsel had asked the court to review his record for a possible community-
control sanction. The court informed Bobo that, after a review of his record if Bobo
reached a plea agreement, a prison term would be imposed. The court noted Bobo’s
lengthy criminal history and his four new cases from September 2021 to February
2022. Based on those facts alone, the trial court felt it would be inappropriate to
impose a community-control sanction.
After further discussion, the trial court adjourned until the afternoon
session to allow Bobo to discuss the case with his attorney. On returning to the
record, Bobo accepted a plea deal and pleaded guilty to Count 1 as amended to a
felony of the second degree.1 The state dismissed the remaining charges on that
indictment. During the plea colloquy, the trial court advised Bobo that the sentence
required mandatory prison time. However, the trial court also advised Bobo that he
would be entitled to earn good-time credit and could reduce his term by 15 percent.
After accepting Bobo’s plea, the trial court proceeded immediately to
sentencing. Bobo was sentenced to a minimum indefinite sentence of three years to
a maximum possible term of four and one-half years.2 After the trial court
concluded sentencing, but before the case was adjourned, Bobo’s attorney
questioned whether he was eligible for good-time credit on a mandatory prison
term. The trial court indicated that the legislature is silent as to whether a defendant
is eligible for early release under S.B. 201.
Bobo now appeals assigning the following errors for our review.
Assignment of Error No. 1
The trial court erred when it found appellant’s plea was voluntary,
knowing and intelligent and that he was aware of the maximum penalty
involved where at the time of his change of plea he was given inaccurate
information about prison reduction where the trial court imposed a
mandatory prison sentence.
Assignment of Error No. 2
Appellant’s indefinite sentence imposed under the Reagan Tokes
sentencing scheme violates appellant’s rights under the United States
Constitution applied to the state of Ohio through the Fourteenth
1 Bobo also pleaded guilty to the grand theft charge as amended to a felony of the
fifth degree and the domestic violence and resisting arrest charges.
2 Bobo was sentenced to credit for time served on his other cases.
Amendment and the Ohio Constitution as it denies appellant due
process of law; violates the Sixth Amendment right to a jury trial;
violates the separation of powers doctrine; does not provide fair
warning of the dictates of the statute to ordinary citizens; and the
statute conferred too much authority to the Ohio Department of
Rehabilitation and Correction (ODRC).
Assignment of Error No. 3
Appellant’s sentence is contrary to law where the trial court failed to
comply with the required notices contained in R.C. 2929.19(B)(2)(c)
when imposing sentence.
Law and Analysis
For ease of discussion, we will examine the assignments of error out of
order, when necessary. In the first assignment of error, Bobo argues that the trial
court erred when it found his guilty plea was voluntary, knowing, and intelligent
where the court informed him, incorrectly, that he was entitled to good-time credit
on a mandatory prison term. The state filed a notice of conceded error as to this
assignment of error pursuant to Loc.App.R. 16(B).
Bobo essentially argues that the trial court’s error violated Crim.R.
11(C)(2)(a), which states that a trial court
“shall not accept a plea of guilty * * * without first addressing the
defendant personally * * * and: Determining that the defendant is
making the plea voluntarily, with understanding of the nature of the
charges 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.
Bobo argues that such an error is sufficient to warrant vacating his plea
and remanding the case back to the trial court. Alternatively, Bobo suggests the
Reagan Tokes Law, S.B. 201, might allow for good-time credit on a mandatory
sentence. If so, Bobo argues, his first assignment of error is moot. We will address
Bobo’s arguments in this assignment of error in turn.
Preliminarily, a no-contest or guilty plea must be knowing,
intelligent, and voluntary because it involves a waiver of constitutional rights. State
v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 10, citing Parke v.
Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992); State v. Clark, 119
Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. “If the plea was not made
knowingly, intelligently, and voluntarily, enforcement of the plea is
unconstitutional.” Id.The requirements of an acceptable plea are codified in Ohio under
Crim.R. 11, and it includes constitutional and nonconstitutional elements. The rule
is intended to ensure “‘an adequate record on review by requiring the trial court to
personally inform the defendant of his rights and the consequences of his plea and
determine if the plea is understandingly and voluntarily made.’” Id. at ¶ 11, quoting
State v. Stone, 43 Ohio St.2d 163, 168, 331 N.E.2d 411 (1975).
No magic words are required to establish compliance with
Crim.R. 11, rather the concern is “whether the dialogue between the court and the
defendant demonstrates that the defendant understood the consequences of the
plea.” Dangler at ¶ 12, citing State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163(1977), and State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621,
¶ 15-16; Clark at ¶ 26; State v. Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151
N.E.3d 617, ¶ 19.
When a criminal defendant challenges his conviction due to errors
in the plea colloquy, the rule is that he must establish that an error occurred and that
he was prejudiced by that error. Id. at ¶ 13. Prejudice is shown when the defendant
demonstrates that but for the trial court’s error, the plea would not have been made.
State v. Clifton, 8th Dist. Cuyahoga No. 105220, 2018-Ohio-269, ¶ 9, citing Clark at
¶ 32, State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12, State
v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
However, there are two exceptions to the requirement that the
defendant show prejudice. One exception deals with the defendant’s constitutional
rights and the other with the defendant’s nonconstitutional rights. A trial court must
strictly comply with Crim.R. 11(C)(2)(c), which describes the constitutional rights a
defendant waives when he enters a plea of guilty or no contest. State v. Smith, 8th
Dist. Cuyahoga Nos. 110660 and 110694, 2022-Ohio-1411, ¶ 30. If the trial court
fails to give the constitutional advisements, it is presumed that the plea was entered
involuntarily and unknowingly. In that instance, the defendant is not required to
show prejudice. Dangler, 162 Ohio St.3d 1 2020-Ohio-2765, 164 N.E.3d 286 at ¶
10, citing Clark at ¶ 31; Veney at syllabus.
On the other hand, the trial court must substantially comply with
Crim.R. 11(C)(2)(a) and (b) that cover nonconstitutional rights. Smith at ¶ 31. If the
trial court completely fails to comply with advising on a nonconstitutional element
of Crim.R. 11(C), defendant is also not required to show prejudice. Dangler at ¶ 14.
In Dangler, the Supreme Court summarized our review of Crim.R.
11(C) as follows:
Properly understood, the 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?
Dangler at ¶ 17.
Here, the main focus is whether the trial court complied with
Crim.R. 11(C)(2) and determined that Bobo understood the maximum penalty
involved in his plea. A review of the record shows that the trial court did initially
comply with Crim.R. 11(C)(2). The trial court advised Bobo that the maximum
potential penalty for his charge was a term of 8 to 12 years. Further, the trial court
informed him that whether his prison term was extended beyond eight years would
depend on his behavior in the institution. Finally, the trial court informed Bobo that
the sentence was mandatory.
The court then took the added step of advising Bobo that he was
entitled to good-time credit under R.C. 2967.193. The court informed Bobo that his
sentence could be shortened by 15 percent if he earned good time while incarcerated.
Crim.R. 11(C) does not require the trial court to advise a defendant
on the eligibility for good-time credit. Nevertheless, a trial court can elect to inform
a defendant of aspects of his sentence that are not mandated by Crim.R. 11. If in
doing so, the trial court gives an incorrect recitation of the law, in a way that obscures
the maximum prison term a defendant faces, the trial court’s recitation fails to meet
the substantial-compliance standard for Crim.R. 11(C). Clifton, 8th Dist. Cuyahoga
No. 105220, 2018-Ohio-269, ¶ 15, citing Clark, 119 Ohio St.3d 239, 2008-Ohio-
3748, 893 N.E.2d 462 at ¶ 31. However, when the trial court gives an incorrect
statement of the law, the trial court does not completely ignore its responsibilities
under Crim.R. 11(C)(2)(a). The incorrect recitation of the law still amounts to partial
compliance with the rule. Therefore, the defendant needs to show prejudice to
prevail.
In the instant case, the question is whether Bobo is entitled to good-
time credit. If he is, then the trial court correctly advised him of the law, and the
first assignment of error is moot. If not, then the trial court partially complied with
Crim.R. 11(C)(2)(a) and Bobo must establish that he was prejudiced by the error.
To answer, we begin with R.C. 2967.271(B) which states:
When an offender is sentenced to a non-life felony indefinite prison
term, there shall be a presumption that the person shall be released
from service of the sentence on the expiration of the offender’s
minimum prison term or on the offender’s presumptive earned early
release date, whichever is earlier.
R.C. 2929.01(GGG) defines a “non-life felony indefinite prison term”
as one that is imposed under R.C. 2929.14(A)(1)(a) or (2)(a) and 2929.144 for a first-
degree or second-degree felony. R.C. 2929.14(A)(2)(a) provides:
For a felony of the second degree committed on or after the effective
date of this amendment, the prison term shall be an indefinite prison
term with a stated minimum term selected by the court of two, three,
four, five, six, seven, or eight years and a maximum term that is
determined pursuant to section 2929.144 of the Revised Code, except
that if the section that criminalizes the conduct constituting the felony
specifies a different minimum term or penalty for the offense, the
specific language of that section shall control in determining the
minimum term or otherwise sentencing the offender but the minimum
term or sentence imposed under that specific language shall be
considered for purposes of the Revised Code as if it had been imposed
under this division.
(Emphasis added.)
Bobo pleaded guilty to R.C. 2925.03, which requires a mandatory
prison term for a felony of the second degree. R.C. 2925.03(C)(4)(e) (“[T]he court
shall impose as a mandatory prison term a second-degree felony mandatory prison
term.”).
Finally, pursuant to R.C. 2929.13(F)(5),3 a trial court shall impose a
sentence under R.C. 2929.14 and “shall not” reduce a mandatory sentence imposed
under R.C. 2925.03 pursuant to R.C. 2967.193, in addition to other statutes.
Therefore, this issue is not moot and the trial court erred when it advised Bobo that
he could earn credit for good behavior to reduce his mandatory prison term
pursuant to R.C. 2967.193.
3R.C. 2929.13(F): Notwithstanding divisions (A) to (E) of this section, the court
shall impose a prison term or terms under sections 2929.02 to 2929.06, section 2929.14,
section 2929.142, or section 2971.03 of the Revised Code and except as specifically
provided in section 2929.20, divisions (C) to (I) of section 2967.19, or section 2967.191 of
the Revised Code or when parole is authorized for the offense under section 2967.13 of
the Revised Code shall not reduce the term or terms pursuant to section 2929.20, section
2967.19, section 2967.193, or any other provision of Chapter 2967 or Chapter 5120 of the
Revised Code for any of the following offenses * * *.
(5) A first-, second-, or third-degree felony drug offense for which section 2925.02,
2925.03, 2925.04, 2925.05, 2925.06, 2925.11, 2925.13, 2925.22, 2925.23, 2925.36,
2925.37, 3719.99, or 4729.99 of the Revised Code, whichever is applicable regarding the
violation, requires the imposition of a mandatory prison term.
This error resulted in the trial court’s mere partial compliance with
Crim.R. 11(C)(2)(a). Consequently, Bobo must establish that he was prejudiced by
the trial court’s error before he is entitled to have his plea vacated, i.e., but for the
trial court’s error, he would not have pleaded guilty to the charge. Clark, 119 Ohio
St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462 at ¶32.
Bobo argues that he was prejudiced because he would not have
pleaded guilty if he realized he was not entitled to good-time credit. He claims that
the facts that he hoped to avoid prison and sought to negotiate a lower sentence are
indicators that he would have refused to plead guilty if he had been aware of the trial
court’s error. However, the record does not support his argument for the following
reasons.
Bobo knew if he entered a plea that he would be sentenced to prison.
The trial court told him before he entered his plea. Furthermore, the trial court did
not instruct Bobo about good-time credit until after the plea colloquy had
commenced. Therefore, Bobo’s decision to plead guilty was not based on the
potential of receiving good-time credit. The record does not support Bobo’s
contention that the prospect of receiving good-time credit induced him to enter a
plea. Additionally, there is no evidence that Bobo would have refused to plead guilty
if informed good-time credit was inapplicable. After the plea colloquy, Bobo’s
attorney raised the possibility that he was not entitled to good-time credit. Even
though the trial court did not know the answer, Bobo did not immediately seek to
withdraw his plea or seek further clarification. Based on these facts, Bobo has failed
to establish that he was prejudiced by the trial court’s error.
Accordingly, we overrule the first assignment of error.
In the third assignment of error, Bobo argues that his sentence was
contrary to law because the trial court failed to comply with R.C. 2929.19(B)(2)(c).
We agree.
When reviewing a felony sentence, we must apply the standard of
review established in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under R.C. 2953.08(G)(2), an appellate court
“may increase, reduce, or otherwise modify a sentence * * * or may vacate the
sentence and remand the matter * * * for sentencing” when a) the record does not
show that the requirements of particular sentencing statutes were met or b) “that
the sentence was contrary to law.” Id.Several appellate courts, including this one, have found that a
sentence is contrary to law when the trial court sentences an offender to an indefinite
prison term under the Reagan Tokes Law and fails to advise the offender of all the
notifications set forth in R.C. 2929.19(B)(2)(c) at the sentencing hearing. See State
v. Whitehead, 8th Dist. Cuyahoga No. 109599, 2021-Ohio-847, ¶ 46; State v. Gates,
8th Dist. Cuyahoga No. 110616, 2022-Ohio-1666, ¶ 27; State v. Massie, 2d Dist.
Clark No. 2020-CA-50, 2021-Ohio-3376, ¶ 23; State v. Pope, 12th Dist. Butler No.
CA2021-05-057, 2022-Ohio-426, ¶ 23; State v. Bentley, 4th Dist. Adams No.
21CA1147, 2022-Ohio-1914, ¶ 10; State v. Wolfe, 5th Dist. Licking No.
2020CA00021, 2020-Ohio-5501, ¶ 36; State v. Bates, Slip Opinion No. 2022-Ohio-
475 (while the case addresses postrelease control specifically, the court found that
R.C. 2929.19(B)(2)(c) requires oral notification at the sentencing hearing).
Under R.C. 2929.19(B)(2)(c) if the trial court determines that prison
is necessary or required the court shall advise the defendant at the sentencing
hearing all of the following:
(i) That it is rebuttably presumed that the offender will be released
from service of the sentence on the expiration of the minimum prison
term imposed as part of the sentence or on the offender’s presumptive
earned early release date, as defined in section 2967.271 of the Revised
Code, whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut the
presumption described in division (B)(2)(c)(i) of this section if, at a
hearing held under section 2967.271 of the Revised Code, the
department makes specified determinations regarding the offender’s
conduct while confined, the offender’s rehabilitation, the offender’s
threat to society, the offender’s restrictive housing, if any, while
confined, and the offender’s security classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the
department at the hearing makes the specified determinations and
rebuts the presumption, the department may maintain the offender’s
incarceration after the expiration of that minimum term or after that
presumptive earned early release date for the length of time the
department determines to be reasonable, subject to the limitation
specified in section 2967.271 of the Revised Code;
(iv) That the department may make the specified determinations and
maintain the offender’s incarceration under the provisions described in
divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject
to the limitation specified in section 2967.271 of the Revised Code;
(v) That if the offender has not been released prior to the expiration of
the offender’s maximum prison term imposed as part of the sentence,
the offender must be released upon the expiration of that term.
The trial court did not give the advisements in R.C. 2929.19(B)(2)(c)
at sentencing. The trial court told Bobo that if he “violated while * * * incarcerated,
the Parole Authority at the Department of Rehabilitation can send you back to
prison and keep you there up until four and a half years.” The court did not instruct
Bobo on the presumption that he would be released after he served the minimum
mandatory term, or that a hearing would be held prior to any extension of his
sentence. Nor did the trial court advise that he could be evaluated again for each
additional infraction. Therefore, the trial court erred when it failed to inform Bobo
of all the R.C. 2929.19(B)(2)(c) advisements. As we determined in State v. Gates,
8th Dist. Cuyahoga No. 110616, 2022-Ohio-1666, when this type of error occurs, it
“in no way [affects] the validity of the underlying conviction or any other aspect of
the sentence imposed by the trial court.” Id. at ¶ 26, quoting State v. Pope, 12th Dist.
Butler No. CA 2021-05-057, 2022-Ohio-426. However, the most “prudent
approach” is to remand the case to the trial court for the sole purpose of providing
Bobo with the notifications required by R.C. 2929.19(B)(2)(c). Id. at ¶ 27.
Consequently, this case is remanded to the trial court in order for Bobo to be
resentenced and given the proper advisements.
Accordingly, we sustain the third assignment of error.
In the second assignment of error, Bobo challenges the
constitutionality of the Reagan Tokes Law. In doing so, Bobo cites as support three
of our prior cases, State v. Delvallie, 2021-Ohio-1809, 173 N.E.3d 544 (8th Dist.),
State v. Daniel, 2021-Ohio-1963, 173 N.E.3d 184 (8th Dist.), and State v. Sealey,
2021-Ohio-1949, 173 N.E.3d 894 (8th Dist.). However, all three cases were
subsequently overruled by our en banc decision in State v. Delvallie, 2022-Ohio-
470, 185 N.E.3d 536 (8th Dist.), where we found the Reagan Tokes Law
constitutional.
Accordingly, we overrule the second assignment of error.
Judgment affirmed, reversed in part, and remanded for a limited
hearing so that the court may give proper advisement pursuant to R.C.
2929.19(B)(2)(c).
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
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EMANUELLA D. GROVES, JUDGE
FRANK DANIEL CELEBREZZE, III, P. J., and
MARY J. BOYLE, J., CONCUR
N.B. Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B.
Forbes (dissenting) and Judge Anita Laster Mays (concurring in part and
dissenting in part) in Delvallie and would have found the Reagan Tokes Law
unconstitutional.