[Cite as State v. Anderson, 2020-Ohio-6891.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-20-05
v.
MATTHEW N. ANDERSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 19 06 0207
Judgment Affirmed
Date of Decision: December 28, 2020
APPEARANCES:
William T. Cramer for Appellant
Sarah J. Warren for Appellee
Case No. 8-20-05
WILLAMOWSKI, J.
{¶1} Defendant-appellant Matthew N. Anderson (“Anderson”) appeals the
judgment of the Logan County Court of Common Pleas. He alleges that his due
process rights were violated as he did not knowingly, intelligently, or voluntarily
enter a guilty plea. For the reasons set forth below, the judgment of the trial court
is affirmed.
Facts and Procedural History
{¶2} On September 10, 2019, Anderson was indicted on three counts of
attempted felonious assault in violation of R.C. 2903.11(A)(1); one count of failure
to comply with an order or signal of a police officer in violation of R.C.
2921.331(B); one count of possession of a fentanyl related compound in violation
of R.C. 2925.11(A); one count of possession of cocaine in violation of R.C.
2925.11(A); one count of domestic violence in violation of R.C. 2912.25(A); and
two counts of assault in violation of R.C. 2903.13(A). Doc. 13.
{¶3} On February 7, 2020, Anderson appeared before the trial court for a
change of plea hearing. Doc. 112. After the Crim.R. 11 plea colloquy, Anderson
pled guilty to one count of attempted felonious assault in violation of R.C.
2903.11(A)(1); one count of failure to comply with an order or signal of a police
officer in violation of R.C. 2921.331(B); and one count of possession of cocaine in
violation of R.C. 2925.11(A). Tr. 21. Doc. 112. The remaining charges in the
original indictment were dismissed. Doc. 112.
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{¶4} After accepting Anderson’s guilty plea, the trial court proceeded to
sentencing. Doc. 112. For the offense of attempted felonious assault, the trial court
imposed an indefinite sentence with a minimum prison term of three years and a
maximum prison term of four-and-one-half years. Doc. 112. The trial court then
ordered Anderson to serve a definite prison term of three years for the offense of
failure to comply with an order or signal of a police officer and a definite prison
term of one year for the offense of possession of drugs. Doc. 112. The trial court
imposed these prison terms consecutively. Doc. 112.
Assignment of Error
{¶5} The appellant filed his notice of appeal on February 26, 2020. Doc.
130. On appeal, Anderson raises the following assignment of error:
Appellant’s due process rights were violated by a guilty plea that
was not entered knowingly, intelligently, or voluntarily.
He argues that the trial court did not properly determine that he understood the
maximum penalty for the offense of attempted felonious assault. In particular, he
argues that the trial court did not sufficiently explain indefinite sentencing to him
before he entered his guilty plea. On the basis of these arguments, he asserts that
his guilty plea was not knowingly, intelligently, or voluntarily entered.
Legal Standard
{¶6} “When a defendant enters a plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525,
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527, 660 N.E.2d 450, 451 (1996). “Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution
and the Ohio Constitution.” Id. “To ensure that a defendant’s guilty plea is
knowingly, intelligently, and voluntarily made, the trial court must engage the
defendant in a plea colloquy pursuant to Crim.R. 11(C).” State v. Fabian, 12th Dist.
Warren No. CA2019-10-119, 2020-Ohio-3926, ¶ 8.
{¶7} “Crim.R. 11(C)(2) outlines the procedures trial courts must follow for
accepting guilty pleas.” State v. Mullins, 3d Dist. Wyandot No. 16-04-05, 2004-
Ohio-4293, ¶ 7. Crim.R. 11(C)(2) reads as follows:
(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 and
doing all of the following:
(a) 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.
(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.
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Crim.R. 11(C)(2). “The court must make the determinations and give the warnings
that Crim.R. 11(C)(2)(a) and (b) require and must notify the defendant of the
constitutional rights that Crim.R. 11(C)(2)(c) identifies.” State v. Bishop, 156 Ohio
St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 11.
{¶8} “While the court must strictly comply with the requirements listed in
Crim.R. 11(C)(2)(c), the court need only substantially comply with the requirements
listed in Crim.R. 11(C)(2)(a) and (b).” Bishop at ¶ 11.
When a trial judge fails to explain the constitutional rights set
forth in Crim.R. 11(C)(2)(c), the guilty or no-contest plea is
invalid ‘under a presumption that it was entered involuntarily
and unknowingly.’ [State v.] Griggs, 103 Ohio St.3d 85, 2004-
Ohio-4415, 814 N.E.2d 51, ¶ 12; see also [State v.] Nero, 56 Ohio
St.3d[ 106,] 107, 564 N.E.2d 474, citing Boykin [v. Alabama], 395
U.S. [238,] 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274. However, if
the trial judge imperfectly explained nonconstitutional rights
such as the right to be informed of the maximum possible penalty
and the effect of the plea, a substantial-compliance rule applies.
Id. Under this standard, a slight deviation from the text of the
rule is permissible; so long as the totality of the circumstances
indicates that ‘the defendant subjectively understands the
implications of his plea and the rights he is waiving,’ the plea may
be upheld. Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474.
When the trial judge does not substantially comply with Crim.R.
11 in regard to a nonconstitutional right, reviewing courts must
determine whether the trial court partially complied or failed to
comply with the rule. If the trial judge partially complied, e.g., by
mentioning mandatory postrelease control without explaining it,
the plea may be vacated only if the defendant demonstrates a
prejudicial effect. See Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474,
citing State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O.3d 52,
364 N.E.2d 1163, and Crim.R. 52(A); see also [State v.] Sarkozy,
117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 23. The test
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for prejudice is ‘whether the plea would have otherwise been
made.’ Nero at 108, 564 N.E.2d 474, citing Stewart, [I]d. If the
trial judge completely failed to comply with the rule, e.g., by not
informing the defendant of a mandatory period of postrelease
control, the plea must be vacated. See Sarkozy, 117 Ohio St.3d
86, 2008-Ohio-509, 881 N.E.2d, 1224, paragraph two of the
syllabus. ‘A complete failure to comply with the rule does not
implicate an analysis of prejudice.’ Id. at ¶ 22.
State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31-32. “[A]
defendant challenging a guilty plea on the basis that it was not knowingly,
intelligently, and voluntarily made bears the burden of demonstrating a prejudicial
effect.” Mullins, supra at ¶ 5.
Legal Analysis
{¶9} In this case, Anderson argues that his guilty plea was not knowingly,
intelligently, and voluntarily entered because he believed, at the change of plea
hearing, that he was going to receive a definite prison term of seven years. He states
that he had this belief because he was under the impression that the joint sentencing
recommendation suggested a definite prison term of seven years. Anderson further
argues that the trial court’s explanation of indefinite sentencing during the Crim.R.
11 colloquy was insufficient to bring him to an understanding of the maximum
penalty that he faced by pleading guilty.
{¶10} We begin our analysis by noting that a trial court is not bound by a
joint sentencing recommendation. State v. Underwood, 124 Ohio St.3d 365, 2010-
Ohio-1, 922 N.E.2d 923, ¶ 28 (holding that trial courts “are not bound by a jointly
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recommended sentence.”). During the Crim.R. 11 colloquy, the trial court clearly
informed Anderson that it was not bound by the terms of the joint sentencing
recommendation. Tr. 10. In response, Anderson affirmed that he understood that
the trial court was not required to impose the recommended sentence. Tr. 10.
{¶11} Further, while the change of plea petition stated that a seven-year
prison term was recommended, this document nowhere stated that this was to be a
definite sentence. Doc. 112. In fact, the change of plea petition clearly stated that
the charge of attempted felonious assault was an offense that was subject to an
indefinite sentence and provided a detailed explanation of indefinite sentencing.
Doc. 112. In his brief, Anderson also does not identify evidence in the record that
indicates that he was offered a definite prison term of seven years.
{¶12} Anderson next argues that the trial court’s Crim.R. 11 colloquy was
not sufficient to bring him to an understanding of indefinite sentencing such that his
guilty plea was knowing, intelligent, and voluntary. By arguing that the trial court
did not properly determine that he understood indefinite sentencing, Anderson is
asserting that the trial court did not comply with Crim.R. 11(C)(2)(a), which
requires the trial court to determine that a defendant understand “the nature of the
charges and of the maximum penalty involved * * *.” Crim.R. 11(C)(2)(a). Since
this argument implicates a nonconstitutional right, we will review the change of plea
hearing to determine whether the trial court substantially complied with Crim.R.
11(C)(2)(a). Clark, supra, at ¶ 31.
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{¶13} Turning to the Crim.R. 11 colloquy, the trial court, at the outset,
informed Anderson of the maximum penalty that he could receive for the offense of
attempted felonious assault. Tr. 12. The trial court stated the following:
[Trial Court]: Now, with regard to the possible penalties, the
Court is obligated to inform you that for a felony in the F2—
second-degree felony, the prison term that the Court could
sentence you to is from two to eight years in prison and a fine of
up to $20,000? * * *
[Anderson]: Yes, sir.
Tr. 12. After briefly reciting the maximum penalties for each of the charges against
Anderson, the trial court returned to the charge of attempted felonious assault to
explain that this offense was subject to an indefinite sentence and the implications
of indefinite sentencing. Tr. 14-17. The following is the portion of the colloquy in
which the trial court explained indefinite sentencing to Anderson:
[Trial Court]: On the felony of the second degree, there is a law
in Ohio that applies to that sentence. It’s called the Reagan Tokes
Law. And what it has that comes along with the Reagan Tokes
Law [is] what is called an indefinite sentence. This means that
you will receive both a minimum term and a maximum term on
that sentence. At sentencing, the Court will select a minimum
prison term from the range of penalties that you receive. The
minimum term for an F2, for instance, if you got seven years
would be seven years. That would be your minimum term. Do
you understand that, sir?
[Anderson]: Yes.
[Trial Court]: And after that, the Court picks a minimum
sentence. The maximum term will automatically be an additional
50 percent of that minimum term. So the maximum term that you
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would be in jail for—if seven years is a minimum would be ten
and a half years. Do you understand that, sir?
[Anderson]: Yes, sir.
***
[Trial Court]: All right. Do you understand that the longest
minimum sentence that you could be ordered to serve would be
eight years for a felony of the second degree?
[Anderson]: Yes, sir.
[Trial Court]: And the longest maximum sentence that you could
be ordered to serve would be 12 years?
[Anderson]: Yes, sir.
[Trial Court]: Eight years plus half of eight, which is four or a
total of 12 years. Do you understand that, sir?
[Anderson]: Yes, sir.
[Trial Court]: Do you understand that the law presumes that you
will be released from prison once you have served the minimum
term. So if the minimum term is seven years, there is a
presumption that you would be released after those seven years.
Do you understand that?
[Anderson]: Yes, sir.
[Trial Court]: Do you understand that the presumption can be
overcome by the Ohio Department of Rehabilitation and
Correction, meaning that you can be kept in prison longer than
the minimum term?
[Anderson]: Yes, sir.
[Trial Court]: Do you understand that the Department of
Rehabilitation and Correction could schedule a hearing during
your prison term and that the department would consider at that
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hearing your conduct while in prison, your rehabilitation, your
threats to society, any housing restrictions imposed on you during
your prison term, and your security classification in prison. Do
you understand that?
[Anderson]: Yes, sir.
[Trial Court]: Do you understand that the Department of
Rehabilitation and Corrections could make specific findings and
could keep you in prison beyond the minimum term for an
additional period of time that the department felt was reasonable?
[Anderson]: Yes, sir.
[Trial Court]: And do you understand that the Department of
Rehabilitation and Correction could keep you in prison beyond
the minimum term more than once provided the department
conducts the kind of hearing that the law requires?
[Anderson]: Yes, sir.
[Trial Court]: Do you understand if you’re kept in prison by the
Department of Rehabilitation and Correction for the full amount
of your minimum prison term on the F2, then you must be
released from prison once you have served that maximum term?
[Anderson]: Yes, sir.
***
[Trial Court]: Do you understand that regardless of whether you
receive good time credit, you will be released when you finish your
minimum term unless the ODRC determines that you must
remain in prison for bad conduct?
[Anderson]: Yes, sir.
***
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[Trial Court]: Do you understand if you’re not released when
your minimum term ends, you will serve an additional specified
period of time and will be given a new release date?
[Anderson]: Yes, sir.
[Trial Court]: Do you understand you’ll be released on that date
unless you were, again, denied release?
[Anderson]: Yes, sir.
[Trial Court]: Do you understand that this process could repeat
until you are released or until you finish you maximum term?
[Anderson]: Yes, sir.
[Trial Court]: All right. So if my math is right, if you received
the maximum term on a maximum sentence under the F2, that
would be 12 years; on the F3 would be an additional three years,
which would total 15, and on the F5, that would be an additional
year, which would be 16 years. If all of the maximums came into
play and I made the sentencing consecutive, the amount of time
that you would be facing at the very, very most would be 16 years
in prison. Do you understand that?
[Anderson]: Yes, sir.
Tr. 13-17. Following this explanation of indefinite sentencing, the trial court
informed Anderson that the prison terms he received for these three offenses could
be run consecutively. Tr. 19. The trial court also told Anderson that, if it ordered
the maximum sentence for each offense and imposed these prison terms
consecutively, he could face a total of sixteen years in prison. Tr. 19.
{¶14} In this plea colloquy, the trial court did not merely “mention[]”
indefinite sentencing. Clark, supra, at ¶ 32. Rather, the trial court provided a
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thorough explanation of indefinite sentencing and its implications for Anderson. Tr.
13-17. In response, Anderson affirmed that he understood each aspect of the trial
court’s explanation. Tr. 13-17. Having considered the entirety of the Crim.R. 11
plea colloquy, we conclude that Anderson has not identified a deficiency in the trial
court’s explanation of indefinite sentencing. We further find that the totality of the
circumstances indicates that Anderson understood the implications of his guilty plea
with regard to the maximum penalty that he faced.
{¶15} Anderson next argues that the trial court should have been aware that
he did not understand that he could receive an indefinite sentence because he stated,
at the change of plea hearing, that he believed he was going to have a prison term
of seven years. Tr. 9. However, Anderson made this statement before the trial court
engaged in the Crim.R. 11 plea colloquy. In response to this statement, the trial
court clearly cautioned Anderson that it was not bound by the jointly recommended,
seven-year prison term. Tr. 10. The trial court also clearly explained to Anderson,
during the Crim.R. 11 colloquy, that he could receive up to sixteen years in prison
if he pled guilty. Tr. 19.
{¶16} On appeal, Anderson has not demonstrated that his guilty plea was not
knowingly, intelligently, or voluntarily entered. In this case, the trial court
thoroughly explained the maximum penalty for each of charges against Anderson
before he pled guilty. Further, the Crim.R. 11 plea colloquy included an extensive
explanation of indefinite sentencing. Having reviewed the materials in the record,
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we conclude that Anderson’s arguments are without merit. Thus, Anderson’s sole
assignment of error is overruled.
Conclusion
{¶17} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of Logan County Court of Common Pleas is
affirmed.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
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