State v. Davis

[Cite as State v. Davis, 2021-Ohio-352.]

COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A Delaney, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
.
-vs- :
:
BRYAN A. DAVIS : Case No. 20-COA-017
:
Defendant-Appellant :
: OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County
Court of Common Pleas, Case No. 19-CRI-
201

JUDGMENT: Affirmed in part; reversed in part; remanded

DATE OF JUDGMENT ENTRY: February 8, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNEL BRIAN A. SMITH
Ashland County Prosecutor Smith Law Firm
110 Cottage Street, 3rd Floor 755 White Pond Drive, Ste.403
Ashland, OH 44806 Akron, OH 44320
[Cite as State v. Davis, 2021-Ohio-352.]

Gwin, P.J.

{¶1} Defendant-appellant Bryan A. Davis [“Davis”] appeals his conviction and

sentence after entering a negotiated guilty plea in the Ashland County Court of Common

Pleas.

Facts and Procedural History

{¶2} On September 13, 2019, the Ashland County Grand Jury indicted Davis on

two counts of rape, both first-degree felonies, and two counts of unlawful sexual conduct

with a minor, both third-degree felonies, one count of gross sexual imposition, a fourth-

degree felony, and one count of kidnapping, a second-degree felony.

{¶3} On March 23, 2020, Davis entered guilty pleas to Count 1: Rape and Count

3: Unlawful Sexual Conduct with a Minor. The State of Ohio dismissed the remaining

counts as part of the plea agreement. The trial court deferred sentencing and ordered the

preparation of a Pre-sentence Investigation Report.

{¶4} On April 27, 2020, the trial court conducted the sentencing hearing. At the

sentencing hearing the trial court sentenced Davis to a definite term of 9 years in prison

with an indefinite term of up to 13 1/2 years on Count 1 and 12 months in prison on Count

3. The trial court made the statutory findings to order the sentences to be served

consecutively to one another for an aggregate term of 10 years. The trial court credited

Davis with 270 days served.

Assignments of Error

{¶5} Davis raises four Assignments of Error,

{¶6} “I. APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY,

VOLUNTARILY, AND INTELLIGENTLY MADE BECAUSE APPELLANT WAS NOT
Ashland County, Case No. 20-COA-017 3

ORALLY INFORMED OF HIS RIGHTS UNDER CRIM.R. 11(C), IN VIOLATION OF

APPELLANT'S RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

10 OF THE OHIO CONSTITUTION.

{¶7} “II. APPELLANT'S SENTENCE WAS CONTRARY TO LAW DUE TO THE

RAPE AND UNLAWFUL SEXUAL CONDUCT WITH MINOR COUNTS BEING ALLIED

OFFENSES OF SIMILAR IMPORT, BUT NOT BEING MERGED FOR PURPOSES OF

SENTENCING.

{¶8} “III. BECAUSE THE TRIAL COURT DID NOT PROPERLY NOTIFY

APPELLANT OF THE TERMS AND CONDITIONS OF POST-RELEASE CONTROL IN

ITS SENTENCING ENTRY, THE TRIAL COURT'S SENTENCE OF APPELLANT WITH

RESPECT TO APPELLANT'S POST-RELEASE CONTROL WAS CONTRARY TO LAW.

{¶9} “IV. APPELLANT'S SENTENCE WAS NOT SUPPORTED BY THE

RECORD.”

I.

{¶10} In his First Assignment of Error, Davis argues that the trial court did not

substantially comply with the non-constitutional requirements of Crim.R. 11(C)(2)(b),

because during the plea colloquy the trial court failed to advise him that it could proceed

to judgment and sentence upon the acceptance of his guilty plea. The state agrees that

the trial court failed to advise Davis that it could proceed to judgment and sentence upon

the acceptance of his guilty plea.
Ashland County, Case No. 20-COA-017 4

Standard of Appellate Review

{¶11} The entry of a plea of guilty is a grave decision by an accused to dispense

with a trial and allow the state to obtain a conviction without following the otherwise difficult

process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States,

368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete

admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of guilty, the accused is not

simply stating that he did the discreet acts described in the indictment; he is admitting

guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102

L.Ed.2d 927(1989).

{¶12} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need

only "substantially comply" with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d

115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v.

Griggs, the Ohio Supreme Court noted the following test for determining substantial

compliance with Crim.R. 11:

Though failure to adequately inform a defendant of his constitutional

rights would invalidate a guilty plea under a presumption that it was entered

involuntarily and unknowingly, failure to comply with non-constitutional

rights will not invalidate a plea unless the defendant thereby suffered

prejudice. [State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.

The test for prejudice is ‘whether the plea would have otherwise been

made.’ Id. Under the substantial-compliance standard, we review the
Ashland County, Case No. 20-COA-017 5

totality of circumstances surrounding [the defendant’s] plea and determine

whether he subjectively understood [the effect of his plea]. See, State v.

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20.

{¶13} 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12.

Issue for Appellate Review: Whether Davis can demonstrate that he suffered

prejudice as a result of the trial court’s failure failed to advise him that it could proceed

judgment and sentence upon the acceptance of his guilty pleas

{¶14} In the case at bar, Davis entered guilty pleas on March 23, 2020. The trial

court ordered the preparation of a Pre-Sentence Investigation Report and deferred the

sentencing hearing to April 27, 2020. Thus, the trial court did not proceed to judgment

and sentence upon the acceptance of Davis’s guilty plea.

{¶15} Accordingly, Davis cannot demonstrate, nor does he argue, that but for the

trial court’s failure to advise him during the change of plea hearing on March 23, 2020,

the trial court could immediately proceed to judgment and sentencing he would not have

entered his pleas of guilty.

{¶16} Davis’s First Assignment of Error is overruled.

II.

{¶17} In his Second Assignment of Error, Davis argues the trial court erred in

failing to merge the rape and unlawful sexual conduct with minor charges for sentencing

because they are allied offenses of similar import. Davis did not ask the trial court to

merge the offenses.
Ashland County, Case No. 20-COA-017 6

Standard of Appellate Review

{¶18} In State v. Rogers, 143 Ohio St.3d 385, 2015–Ohio–2459, 38 N.E.3d 860,

¶ 21, the Ohio Supreme Court found that an appellant forfeits his or her allied offenses

claim for appellate review by failing to seek the merger of his or her convictions as allied

offenses of similar import in the trial court. An accused's failure to raise the issue of allied

offenses of similar import in the trial court forfeits all but plain error, which is not reversible

error unless it affected the outcome of the proceeding and reversal is necessary to correct

a manifest miscarriage of justice. Id. at ¶3. Moreover, unless an accused shows a

reasonable probability that his or her convictions are allied offenses of similar import

committed with the same conduct and without a separate animus, he or she cannot

demonstrate that the trial court's failure to inquire whether the convictions merge for

purposes of sentencing was plain error. Id.

Issue for Appellate Review: Whether Davis has demonstrated a reasonable

probability that his convictions are allied offenses of similar import committed with the

same conduct and without a separate animus.

{¶19} In the case at bar, Davis raped the victim on the couch. Davis ordered the

victim to clean herself in the bathroom after the rape. Davis then attacked the victim a

second time by the door of his residence, pinned her hands against the door and

penetrated her from behind, Davis ejaculating on the floor.

{¶20} A defendant's conduct that constitutes two or more offenses against a single

victim can support multiple convictions if the harm that results from each offense is

separate and identifiable from the harm of the other offense. Unless an accused shows a

reasonable probability that his or her convictions are allied offenses of similar import
Ashland County, Case No. 20-COA-017 7

committed with the same conduct and without a separate animus, he or she cannot

demonstrate that the trial court's failure to inquire whether the convictions merge for

purposes of sentencing was plain error. State v. Rogers, 143 Ohio St.3d 385, 2015–

Ohio–2459, 38 N.E.3d 860, ¶ 21.

{¶21} Davis’s convictions involved multiple offenses. The attack and rape on the

couch was separate and distinct in time and location from the attack by the door.

{¶22} Davis’s Second Assignment of Error is overruled.

III.

{¶23} In his Third Assignment of Error, Davis argues the trial court erred in

improperly advising Davis as to the terms and conditions of post-release control, as

required under R.C. 2929.19. Specifically, Davis contends, “Although the trial court

properly advised Davis of the terms of post-release control at Davis's sentencing hearing,

the trial court's sentencing entry reads as follows: ‘The Defendant was advised that if he

violates the terms of post-release control, the adult parole authority may impose a more

restrictive sanction, or the parole board may return the Defendant to prison for up to nine

(9) months, but not more than half of the original prison sentence.’ Appendix A, Judgment

Entry-Sentencing, April 29, 2020, at A-4. However, the trial court's sentencing entry fails

to state that the Adult Parole Authority could return Davis to prison for up to one-half of

the original minimum prison sentence.” Accordingly, Davis argues the term "original

prison sentence" is vague, due to the indefinite nature of Davis's sentence, and leaves

open the possibility that a future parole board could interpret this clause to mean half of

Davis's maximum sentence of 14 1/2 years, or 7 1/4 years, or, at the very least to mean,
Ashland County, Case No. 20-COA-017 8

half of a non-minimum sentence, which would exceed the maximum additional prison time

to which Davis would be subject under R.C. 2967.28(F)(3).

Standard of Appellate Review

{¶24} “Post-release control is a period of supervision that occurs after a prisoner

has served his or her prison sentence and is released from incarceration, during which

the individual is subject to specific sanctions with which he or she must comply.” State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 35. It is settled that “a

trial court has a statutory duty to provide notice of post release control at the sentencing

hearing” and that “any sentence imposed without such notification is contrary to law.”

State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23, superseded

by statute as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920

N.E.2d 958, ¶ 22-23. Concomitantly, because a court is generally said to speak only

through its journal, the trial court is “required to incorporate that notice into its journal entry

imposing sentence.” Id. at ¶ 17. State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927,

85 N.E.3d 700, ¶7.

{¶25} Any error in imposing the post-release control sanction in a defendant’s

sentence is an error in the exercise of the trial court’s jurisdiction that can be objected to

at trial and that may be reversible error on direct appeal. However, such an error does

not render any part of a defendant’s sentence void. State v. Harper, 160 Ohio St.3d 480,

2020-Ohio-2913, 159 N.E.3d 248, ¶41.

Issue for Appellate Review: Whether the trial court provided notice of post

release control at the sentencing hearing and correctly incorporated that notice into its

journal entry imposing sentence.
Ashland County, Case No. 20-COA-017 9

{¶26} In the instant case, we note Davis does not dispute that the trial court

correctly notified him of post-release control at the sentencing hearing. [Appellant’s Brief

at 14]. Davis was notified of the maximum amount of time he could receive in prison for

a violation, or for violations, of post-release control—that being up to one-half of his stated

minimum prison term. Sentencing Transcript at 17-18.

{¶27} R.C. 2967.28(F)(3) provides in relevant part,

Unless a releasee’s stated prison term was reduced pursuant to

section 5120.032 of the Revised Code, the period of a prison term that is

imposed as a post-release control sanction under this division shall not

exceed nine months, and the maximum cumulative prison term for all

violations under this division shall not exceed one-half of the definite prison

term that was the stated prison term originally imposed upon the offender

as part of this sentence or, with respect to a stated non-life felony indefinite

prison term, one-half of the minimum prison term that was imposed as part

of that stated prison term originally imposed upon the offender.

Emphasis added. In the case at bar, the trial court’s sentencing entry reads in relevant

part,

The Defendant was advised that if he violates the terms of post-

release control, the adult parole authority may impose a more restrictive

sanction, or the parole board may return the Defendant to prison for up to

nine (9) months, but not more than half of the original prison sentence.

Emphasis added. Accordingly, the trial court’s judgment entry does not comply with R.C.

2967.28(F)(3).
Ashland County, Case No. 20-COA-017 10

{¶28} The Supreme Court of Ohio has explained that “where notification of post-

release control was accurately given at the sentencing hearing, an inadvertent failure to

incorporate that notice into the [sentencing entry] may be corrected by a nunc pro tunc

entry without a new sentencing hearing.” State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.3d 659, ¶ 30, citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-

1111, 967 N.E.2d 718, ¶ 15.

{¶29} Davis’s Third Assignment of Error is sustained. We remand this case to the

trial court to prepare and file a nunc pro tunc sentencing entry that includes an advisement

that if Davis violates the terms of post-release control, the adult parole authority may

impose a more restrictive sanction, or the parole board may return the Defendant to prison

for up to nine (9) months, but not more than one-half of the minimum prison term that was

originally imposed upon the Davis.

IV.

{¶30} In his Fourth Assignment of Error, Davis maintains that his sentence is not

supported by competent, credible evidence.

Standard of Appellate Review.

{¶31} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
Ashland County, Case No. 20-COA-017 11

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.

{¶32} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

{¶33} Recently, the Ohio Supreme Court reviewed the issue of “whether a

sentence is “contrary to law” under R.C. 2953.08(G)(2)(b) when an appellate court finds

that the record does not support a sentence with respect to R.C. 2929.11 and 2929.12.”

State v. Jones, Oh. Sup. Ct. No. 2018-0444, 2020-Ohio-6729, 2020 WL 7409669(Dec.

18, 2020).1 A plurality of the Court in Jones found,

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. In particular, R.C.

2953.08(G)(2) does not permit an appellate court to conduct a freestanding

inquiry like the independent sentence evaluation this court must conduct

1 We note that Jones was decided after briefs were filed in the case at bar. However, Jones does
not change the law; rather, Jones simply clarifies existing law and precedents.
Ashland County, Case No. 20-COA-017 12

under R.C. 2929.05(A) when reviewing a death penalty-sentence. See

State v. Hundley, ––– Ohio St.3d ––––, 2020-Ohio-3775, ––– N.E.3d ––, ¶

128 (recognizing that R.C. 2929.05(A) requires de novo review of findings

and other issues within its scope).

2020-Ohio-6729, 2020 WL 7409669, ¶ 42. The Court in Jones noted that,

R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate

a sentence if it clearly and convincingly finds that “the record does not

support the sentencing court’s findings under” certain specified statutory

provisions. But R.C. 2929.11 and 2929.12 are not among the statutory

provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D),

2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.

2020-Ohio-6729, 2020 WL 7409669, ¶ 28. The plurality concluded,

R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an

appellate court to modify or vacate a sentence based on its view that the

sentence is not supported by the record under R.C. 2929.11 and 2929.12.

2020-Ohio-6729, 2020 WL 7409669, ¶39. The Court clarified,

The statements in Marcum at ¶ 23 suggesting that it would be “fully

consistent” with R.C. 2953.08(G) for an appellate court to modify or vacate

a sentence when the record does not support the sentence under R.C.

2929.11 or 2929.12 were made only in passing and were not essential to

this court’s legal holding. The statements are therefore dicta.

2020-Ohio-6729, 2020 WL 7409669, ¶ 27.
Ashland County, Case No. 20-COA-017 13

Issue for Appellate Review: Whether the record clearly and convincing does

not support Roberts’s sentence.

{¶34} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,

the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856,

845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have

full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Kalish at ¶ 1 and ¶ 11, citing Foster at ¶ 100, See

also, State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306; State v.

Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823.

{¶35} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶

13, see also State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1; State v.

Firouzmandi supra at ¶ 29.

{¶36} Thus, post-Foster, “there is no mandate for judicial fact-finding in the

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v. Delong,

4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post-Foster, trial courts

are still required to consider the general guidance factors in their sentencing decisions.
Ashland County, Case No. 20-COA-017 14

{¶37} There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and recidivism

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State

v. Gant, 7th Dist. Mahoning No. 04 MA 252, 2006–Ohio–1469, ¶ 60 (nothing in R.C.

2929.12 or the decisions of the Ohio Supreme Court imposes any duty on the trial court

to set forth its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d

94(1992); State v. Hughes, 6th Dist. Wood No. WD–05–024, 2005–Ohio–6405, ¶10 (trial

court was not required to address each R.C. 2929.12 factor individually and make a

finding as to whether it was applicable in this case), State v. Woods, 5th Dist. Richland

No. 05 CA 46, 2006–Ohio–1342, ¶ 19 (“... R.C. 2929.12 does not require specific

language or specific findings on the record in order to show that the trial court considered

the applicable seriousness and recidivism factors”) (citations omitted); State v. Taylor, 5th

Dist. Richland No. 17CA29, 2017-Ohio-8996, ¶23. In State v. Bump, this Court observed,

The failure to indicate at the sentencing hearing the court has

considered the factors in R.C. 2929.11 and 2929.12 does not automatically

require reversal. State v. Reed, 10th Dist. No. 09AP–1163, 2010–Ohio–

5819, ¶ 8. “When the trial court does not put on the record its consideration

of R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper

consideration to those statutes.” Id., citing Kalish at ¶ 18, fn. 4. The Code

does not specify that the sentencing judge must use specific language or

make specific findings on the record in order to evince the requisite

consideration of the applicable seriousness and recidivism factors. State v.

Arnett, 88 Ohio St.3d 208, 215, 2000–Ohio–302.
Ashland County, Case No. 20-COA-017 15

Bump, 5th Dist. Ashland No. 11-COA-028, 2012-Ohio-337, ¶12. See, also, State

v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992) (“Nothing in the statute or

the decisions of this court imposes any duty on the trial court to set forth its

reasoning.”).

{¶38} In the case at bar, the trial court considered the PSI and the statements

made during the sentencing hearing.

{¶39} We conclude that the trial court did not commit error when it sentenced

Davis. Upon review, we find that the trial court’s sentencing on the charges complies with

applicable rules and sentencing statutes. While Davis may disagree with the weight given

to these factors by the trial judge, Davis’s sentence was within the applicable statutory

range and therefore, we have no basis for concluding that it is contrary to law. R.C.

2953.08(G)(2)(b) does not provide a basis for an appellate court to modify or vacate a

sentence based on its view that the sentence is not supported by the record under R.C.

2929.11 and 2929.12. State v. Jones, Oh. Sup. Ct. No. 2018-0444, 2020-Ohio-6729,

2020 WL 7409669(Dec. 18, 2020), ¶39.

{¶40} Davis’s Fourth Assignment of Error is overruled.
Ashland County, Case No. 20-COA-017 16

{¶41} The judgment of the Ashland County Court of Common Pleas is affirmed,

in part and reversed in part and this matter is remanded to the trial court to prepare and

file a nunc pro tunc sentencing entry that includes an advisement that if Davis violates the

terms of post-release control, the adult parole authority may impose a more restrictive

sanction, or the parole board may return the Defendant to prison for up to nine (9) months,

but not more than one-half of the minimum prison term that was originally imposed upon

the Davis.

By Gwin, P.J.,

Delaney, J., and

Wise, E.J., concur

.