State v. McFadden

[Cite as State v. McFadden, 2021-Ohio-2204.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 20AP-179
v. : (C.P.C. No. 19CR-1890)

Terry J. McFadden, : (REGULAR CALENDAR)

Defendant-Appellant. :

State of Ohio, :

Plaintiff-Appellant/ :
Cross-Appellee,
:
v. No. 20AP-375
: (C.P.C. No. 19CR-1890)
Terry J. McFadden,
: (REGULAR CALENDAR)
Defendant-Appellee/
Cross-Appellant. :

D E C I S I O N

Rendered on June 29, 2021

On brief: G. Gary Tyack, Prosecuting Attorney, Barbara A.
Farnbacher, and Sheryl L. Prichard, for State of Ohio.
Argued: Sheryl L. Prichard.

On brief: Yeura R. Venters, Public Defender, and George M.
Schumann, for Terry J. McFadden. Argued: George M.
Schumann.

APPEALS from the Franklin County Court of Common Pleas
Nos. 20AP-179 and 20AP-375 2

SADLER, J.
{¶ 1} In case No. 20AP-375, plaintiff-appellant/cross-appellee, State of Ohio,
appeals from a March 3, 2020 judgment of the Franklin County Court of Common Pleas
convicting defendant-appellee/cross-appellant, Terry J. McFadden, of 2 counts of rape, in
violation of R.C. 2907.02, and imposing an aggregate prison term of 22 years. In the cross-
appeal, McFadden alleges the trial court did not comply with Crim.R. 11 in accepting his
guilty plea and convicting him of rape.
{¶ 2} In case No. 20AP-179, defendant-appellant, Terry J. McFadden, appeals from
a March 5, 2020 judgment of the Franklin County Court of Common Pleas convicting him
of 2 counts of rape, in violation of R.C. 2907.02, and imposing an aggregate prison term of
22 to 27.5 years.
{¶ 3} For the reasons that follow, we reverse the judgment in case No. 20AP-375
and vacate the judgment in case No. 20AP-179.
I. FACTS AND PROCEDURAL HISTORY
{¶ 4} The facts underlying McFadden's convictions were set forth by the prosecutor
at the January 9, 2020 plea hearing as follows:
This occurred on or about April 5th, 2019. On April 7, 2019,
the Grandview Heights Police received a call from Children
Services regarding potential sex abuse of two minors located
at 795 Gladden Road, Columbus, Ohio, here in Franklin
County. The referral referenced two juvenile females who
attended an in-home daycare at 795 Gladden Road. It was run
by the homeowner, Carol McFadden, along with the help of
her husband, the defendant, Terry McFadden. The complaint
referenced that on one occasion Terry -- the defendant placed
his hands down the pants of both juvenile females and
touched their vaginas.
Your Honor, on April 8th, 2019, Grandview Heights Police
Detectives interviewed the suspect about these allegations.
He voluntarily submitted to the interview at police
headquarters and he did admit to the sexual contact and the
conduct as reported. Both juvenile females were interviewed
by a forensic interviewer at the Nationwide Children's, Center
for Family Safety and Healing and they disclosed the incidents
that did occur.
(Jan. 9, 2020 Plea Hearing Tr. at 9-10.)
Nos. 20AP-179 and 20AP-375 3

{¶ 5} On April 17, 2019, a Franklin County Grand Jury indicted McFadden on four
counts of rape, in violation of R.C. 2907.02. Counts 1 and 2 of the indictment alleged
offenses against a child victim that occurred on April 5, 2019. Count 3 of the indictment
alleged an offense against the same child victim that occurred on or about January 1 to
April 4, 2019. Count 4 alleged an offense against a second child victim that occurred on or
about May 1 to September 30, 2018. All charges in the indictment were first-degree
felonies.
{¶ 6} McFadden initially pleaded not guilty to the charges in the indictment.
However, on January 9, 2020, McFadden executed a plea form wherein he expressed his
desire to withdraw his previously entered general plea of not guilty and to plead guilty to
the charges in Counts 1 and 4 of the indictment. At the January 9, 2020 plea hearing, the
following exchange occurred:
THE COURT: So you know when you signed this [plea] form
you're changing your previously entered not guilty plea,
you're pleading guilty to two F1 rape counts, the maximum
sentence for which you could receive is an indefinite sentence
of 22 years to 27-and-a-half years, and conversely the
minimum sentence for which you could receive is an
indefinite sentence of 3 years to 4-and-a-half years, and the
maximum fine you could receive on each count is $20,000; do
you understand that?
THE DEFENDANT: Yes, Your Honor.
(Emphasis added.) (Jan. 9, 2020 Plea Hearing Tr. at 5-6.)
{¶ 7} The trial court found McFadden guilty of two counts of rape and scheduled a
sentencing hearing for March 3, 2020. Counts 2 and 3 were nolled. The sentencing hearing
transcript reads as follows:
THE COURT: Mr. McFadden, you have been convicted of or
pleaded guilty to a sexually oriented child victim offense, as
such you will be a Tier III registrant for your lifetime with in
person verification every 90 days. Failure to register, failure
to verify residence address at the specified times, or failure to
provide notice of a change in resident address or other
required information as described above will result in
criminal prosecution.
***
On Count One, I am sending you to prison for 11 years. On
Count Four, I am sending you to prison for 11 years, they will
Nos. 20AP-179 and 20AP-375 4

be consecutive to each other for a total of 22 years. You have
32 days jail credit.
(Mar. 3, 2020 Sentencing Hearing Tr. at 23-24.)
{¶ 8} The trial court subsequently issued a judgment entry on March 3, 2020,
convicting McFadden of 2 counts of rape and imposing a definite prison term of 11 years as
to each count. The trial court ordered McFadden to serve the 2 prison terms consecutively,
for an aggregate prison term of 22 years. The trial court also imposed Tier III sex offender
registration requirements pursuant to R.C. Chapter 2950.
{¶ 9} On March 4, 2020, the trial court issued a warrant ordering the Franklin
County Sheriff to convey McFadden to the Ohio Department of Rehabilitation and
Correction ("ODRC") to begin serving his sentence. On that same day, however, the trial
court scheduled a hearing for March 5, 2020. The parties agreed McFadden was not
conveyed to ODRC on March 4, 2020, and he was present in the courtroom and represented
by counsel at the March 5, 2020 hearing.
{¶ 10} As a result of the hearing, the trial court issued an "Amended Judgment
Entry" on March 5, 2020. In the amended judgment entry, the trial court changed
McFadden's prison term as to Count 1 from a definite prison term of 11 years to an
"indeterminate" prison term of 11 to 16.5 years. The trial court imposed a definite prison
term of 11 years as to Count 4 and ordered McFadden to serve the 2 prison terms
consecutively for an aggregate prison term of 22 to 27.5 years.
{¶ 11} McFadden timely appealed to this court in case No. 20AP-179 from the
March 5, 2020 judgment entry. The state of Ohio subsequently appealed to this court, in
case No. 20AP-375, from the March 3, 2020 judgment entry. McFadden filed a cross-
appeal in case No. 20AP-375, with leave of court. On September 1, 202o, this court issued
a journal entry coordinating case Nos. 20AP-179 and 20AP-375 "for purposes of oral
argument and determination." (Sept. 1, 2020 Journal Entry.) Accordingly, we shall
determine both cases in a single decision.
II. ASSIGNMENTS OF ERROR
{¶ 12} In case no. 20AP-375, the state of Ohio assigns the following as trial court
error:
THE TRIAL COURT ERRED IN INITIALLY IMPOSING A
DEFINITE PRISON TERM FOR DEFENDANT'S
Nos. 20AP-179 and 20AP-375 5

CONVICTION ON COUNT ONE, IN CONTRAVENTION OF
THE REAGAN TOKES ACT.
{¶ 13} McFadden assigns the following as trial court error:
[1.] The trial court erred by entering a judgment of conviction
for sex offenses based upon guilty pleas that were not
knowing, intelligent and voluntary, because the trial court
completely failed to substantially comply with Crim.R.
11(C)(2)(a) by completely failing to inform the defendant-
appellant that the maximum penalty involved on both count
one and count four included Tier III sex offender registration
duties.
[2.] The trial court erred by entering a judgment of conviction
for a sex offense based upon a guilty plea that was not
knowing, intelligent and voluntary, because the trial court
completely failed to substantially comply with Crim.R.
11(C)(2)(a) by completely failing to inform the defendant-
appellant that the maximum penalty on count one included an
indeterminate prison term that contained a presumptive
release date subject to rebuttal by the ODRC.
[3.] The trial court erred by entering a judgment of conviction
for a sex offense based upon a guilty plea that was not
knowing, intelligent and voluntary, because the trial court
completely failed to substantially comply with Crim.R.
11(C)(2)(a) by completely failing to inform the defendant-
appellant that the maximum penalty on count four included a
determinate prison term of 11 years, and by incorrectly
informing him that the maximum penalty involved an
indeterminate sentence.
[4.] The trial court erred in imposing consecutive terms of
imprisonment on count one and count four, where the trial
court failed to make all of the required finding mandated by
R.C. 2929.14(C)(4) at the sentencing hearing and further
failed to incorporate all of the findings mandated by R.C.
2929.14(C)(4) into its sentencing entry.
{¶ 14} In case no. 20AP-179, McFadden assigns the following as trial court error:
[1.] The trial court did not have jurisdiction or legal authority
to resentence the defendant-appellant after the trial court had
caused the entry of final judgment of conviction on the journal
by the clerk pursuant to Crim.R. 32(C); the resentencing
judgment entered on the journal is void and must be vacated.
[2.] The trial court violated the defendant-appellant's
constitutional rights to due process under Section 10, Article
I, Ohio Constitution and the Fourteenth Amendment to the
Nos. 20AP-179 and 20AP-375 6

U.S. Constitution, and violated Crim.R. 43(A)(1) when it
resentenced him outside of his physical presence and in the
absence of a valid waiver of his right to be present.1
[3.] The mandatory indeterminate prison term imposed
pursuant to the statutory scheme set forth in R.C.
2929.14(A)(1)(a), R.C. 2929.144(B)(1), R.C. 2967.271(C) and
R.C. 2967.271(D) violates the defendant-appellant's rights to
a jury trial under Section 10, Article I, Ohio Constitution and
the Sixth and Fourteenth Amendments to the U.S.
Constitution, because the statutes provide for a presumptive
release date of the minimum term but allow for the
presumption to be rebutted with findings of fact after the
initial guilt determination and unrelated to the facts necessary
for the imposition of punishment for the commission of the
offense.
[4.] The mandatory indeterminate prison term imposed
pursuant to the statutory scheme set forth in R.C.
2929.14(A)(1)(a), R.C. 2929.144(B)(1), R.C. 2967.271(C) and
R.C. 2967.271(D) violates the principle of separation of
powers under the Ohio Constitution, because the statutes
provide for a legislative delegation of judicial sentencing
power to the executive branch, by allowing the ODRC to
increase the defendant-appellant's punishment after the
initial guilt determination in the trial court based on facts
unrelated to the imposition of punishment for the commission
of the offense.
[5.] The mandatory indeterminate prison term imposed
pursuant to the statutory scheme set forth in R.C.
2929.14(A)(1)(a), R.C. 2929.144(B)(1), R.C.2967.271(C) and
R.C. 2967.271(D) violates the defendant-appellant's rights to
due process of law under Sections 10 and 16, Article I, Ohio
Constitution and the Fifth and Fourteenth Amendments to
the U.S. Constitution, because the statutes operate to deprive
the defendant-appellant of a vested liberty interest by
providing for a guilt determination by the executive branch on
facts unrelated to the commission of the offense of conviction
authorizing an increase in the defendant-appellant's imposed
punishment, but without providing the defendant-appellant
with notice of the allegations against him, without providing
the defendant with an opportunity to defend against the
allegations, without providing a neutral and detached
factfinder, without the benefit of counsel, without the benefit
of a guilt determination beyond a reasonable doubt, and

1 McFadden has withdrawn his second assignment of error in case No. 20AP-179. (Nov. 9, 2021 Notice.)
Nos. 20AP-179 and 20AP-375 7

without the benefit of judicial review of the executive branch's
deprivation of the defendant-appellant's liberty interest.
[6.] The trial court erred in imposing an indeterminate prison
term on count one without giving the defendant-appellant any
of the mandatory statutory notifications required by R.C.
2929.19(B)(2)(c), (d), (f), and (h) when the court imposes an
indeterminate prison term.
III. LEGAL ANALYSIS
A. McFadden's Cross-Appeal in Case No. 20AP-375
{¶ 15} In McFadden's first, second, and third assignments of error in his cross-
appeal, he contends the trial court erred when it accepted his guilty plea as to Counts 1 and
4 of the indictment without first ensuring that McFadden's plea was knowing, voluntary,
and intelligent. Accordingly, we will consider these assignments of error before addressing
the sentencing issues raised in the two appeals.
1. McFadden's First Assignment of Error
{¶ 16} In his cross-appeal in case No. 20AP-375, McFadden argues, for various
reasons, the trial court erred in convicting him of rape because his guilty pleas were not
knowing, voluntary, and intelligent due to the trial court's failure to substantially comply
with Crim.R. 11.
{¶ 17} "A trial court must comply with Crim.R. 11 when it accepts a guilty plea.
Among other requirements, the rule requires a trial court to determine that the defendant
is making the plea voluntarily, with understanding of the nature of the charges and of the
maximum penalty involved, and, to inform the defendant of and determine that the
defendant understands the effect of the plea of guilty." State v. Green, 10th Dist. No. 10AP-
934, 2011-Ohio-6451, ¶ 10, citing Crim.R. 11(C)(2)(a) and (b). See also State v. Engle, 74
Ohio St.3d 525, 527 (1996); State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7. "A
trial court need only substantially comply with these non-constitutional requirements of
Crim.R. 11." Green at ¶ 10, citing State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12.
"Substantial compliance means that under the totality of the circumstances the defendant
subjectively understands the implications of his plea and the rights he is waiving." State v.
Nero, 56 Ohio St.3d 106, 108 (1990).
{¶ 18} Here, the plea form executed by McFadden on January 9, 2020 provides that
he is pleading guilty to the "stipulated lesser included offense to Count One - Rape (F-1) @
Nos. 20AP-179 and 20AP-375 8

2907.02(A)(2) of R.C." and the "stipulated lesser included offense to Count Four - Rape (F-
1) @ 2907.02(A)(2) of R.C." The form further indicates that "[t]he maximum sentence for
which the Defendant could receive is an indefinite sentence: 22 years to 27.5 years
incarceration in ODRC."
{¶ 19} McFadden makes the following acknowledgment in the plea form: "I
understand that mandatory prison term(s) * * * are required for the following offenses * * *
and that I will not be eligible for community control sanctions, judicial release, or earned
days of credit in relation to * * * these term(s): Count One - Rape (F-1) @ 2907.02(A)(2) of
R.C. [and] Count Four - Rape (F-1) @ 2907.02(A)(2) of R.C." The plea form also provides:
The maximum sentence for which the Defendant could
receive is an indefinite sentence: 22 years to 27.5 years
incarceration in ODRC.
Conversely, the minimum sentence for which the Defendant
could receive is an indefinite sentence: 3 years to 4.5 years
incarceration in ODRC.
*Defendant will also register as a TIER III (3) sex offender and
must comply with all requirements, including residency.
(Jan. 9, 2020 Entry of Guilty Plea at 1.)
{¶ 20} At the plea hearing, the trial court engaged in the following colloquy with
McFadden:
[PROSECUTOR:] All of the parties have electronically signed
this entry of guilty plea form, and upon acceptance of this, we
would ask the Court to enter a Nolle prosequi as to Count Two
and Count Three of the indictment. Thank you.
***
THE COURT: So you know when you signed this form you're
changing your previously entered not guilty plea, you're
pleading guilty to two F1 rape counts, the maximum sentence
for which you could receive is an indefinite sentence of 22
years to 27-and-a-half years, and conversely the minimum
sentence for which you could receive is an indefinite sentence
of 3 years to 4-and-a-half years, and the maximum fine you
could receive on each count is $20,000; do you understand
that?
THE DEFENDANT: Yes, Your Honor.
(Emphasis added.) (Jan. 9, 2020 Plea Hearing Tr. at 4-6.)
Nos. 20AP-179 and 20AP-375 9

{¶ 21} In his third cross-assignment of error, McFadden argues that his plea did not
constitute a knowing, voluntary, and intelligent waiver of his non-constitutional rights due
to the trial court's failure to ensure his understanding of the maximum penalty. More
particularly, McFadden contends the trial court completely failed to inform him that a
conviction of the sexually oriented offenses to which he was pleading guilty subjected him
to Tier III reporting requirements pursuant to R.C. Chapter 2950. We disagree.
{¶ 22} This very issue was the subject of a recent decision of the Supreme Court of
Ohio in State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765. In that case, Dangler sought
to have his no contest plea to rape vacated on the ground the trial court had not complied
with Crim.R. 11(C)(2)(a). Id. at ¶ 6. Prior to accepting Dangler's plea, the trial court
informed him that he would be classified as a Tier III sex offender with lifetime registration
requirements but did not inform him of residency restrictions and community notification
requirements associated with his status as a sex offender. Id. at ¶ 1, 6-7. In his appeal,
Dangler argued his plea did not constitute a knowing, voluntary, and intelligent waiver of
his non-constitutional rights due to the trial court's failure to ensure his understanding of
the maximum penalty. The Sixth District Court of Appeals held the trial court erred in
accepting Dangler's plea because the trial court completely failed to inform Dangler of the
statutorily mandated registration and verification requirements, community notification
requirements, and residential restrictions under R.C. Chapter 2950. The Sixth District
further found a showing of prejudice is not required when the trial court completely fails to
comply with Crim.R. 11.
{¶ 23} Recognizing that a sex-offender classification constitutes a penalty for
purposes of Crim.R. 11, the Supreme Court agreed with the Sixth District that the trial
court's advisement did not substantially comply with Crim.R. 11(C)(2)(a). Id. at ¶ 2. The
Supreme Court concluded, however, that because the trial court did advise Dangler that he
would be subject to the registration requirements, the trial court did not "completely fail"
to ensure Dangler's understanding of the maximum penalty. Id. at ¶ 23. The Supreme
Court further concluded Dangler was "entitled to have his conviction vacated for lack of a
more complete explanation only if he demonstrates prejudice." Id. at ¶ 2. Because Dangler
did not establish prejudice, the Supreme Court held he was not entitled to have his no
contest plea vacated due to non-compliance with Crim.R. 11(C)(2)(a). Id. at ¶ 24.
Nos. 20AP-179 and 20AP-375 10

{¶ 24} Here, the transcript of the January 9, 2020 plea hearing contains the
following statement by the prosecutor:
Your Honor, the maximum sentence -- penalty for this is an
indefinite sentence in this case. If you were to sentence
consecutively on both counts, the indefinite sentence would
be anywhere between 22 years to 27-and-a-half years of
incarceration in the Ohio Department of Rehabilitations and
Corrections. This is a mandatory sentence on both counts.
Conversely, Your Honor, if you were to give a minimum on
this case, that minimum sentence would be in -- would be an
indefinite sentence of 3 years to 4-and-a-half years of
incarceration in ODRC.
Additionally, Your Honor, the defendant must register as a
Tier III sex offender and comply with all of the requirements,
including those pertaining to residency.
(Emphasis added.) (Jan. 9, 2020 Plea Hearing Tr. at 3.)
{¶ 25} The prosecutor's reference to the Tier III registration requirements is the only
mention of the sex-offender classification scheme in the plea hearing transcript. The trial
court never personally advised McFadden of any of the Tier III requirements prior to
accepting his guilty pleas. In our view, a more detailed explanation of the registration
requirements was required in this case in order for the trial court to ensure McFadden
understood the maximum penalty included sex-offender registration. Though the
prosecutor informed the trial court McFadden was to register as a Tier III sex offender and
comply with all the requirements, including those pertaining to residency, McFadden was
not told of the residency restrictions and community-notification requirements associated
with his status as a sex offender. Thus, the trial court did not substantially comply with the
requirements of Crim.R. 11(C)(2)(a) with regard to the Tier III sex-offender registration
requirements. The question for this court, then, is whether the trial court completely failed
to comply with Crim.R. 11(C)(2)(a).
{¶ 26} The state argues that subsequent to the Dangler decision, the Supreme Court
issued a ruling in a similar case that essentially disposes of this question in the state's favor.
We agree.
{¶ 27} In State v. Dornoff, 6th Dist. No. WD-16-072, 2018-Ohio-3084 ("Dornoff I"),
Dornoff entered a guilty plea to one count of rape with a firearm specification, one count of
felonious assault with a sexual motivation specification, and one count of kidnapping with
Nos. 20AP-179 and 20AP-375 11

a sexual motivation specification. Id. at ¶ 4. Prior to the plea hearing, appellant signed a
plea form containing a notification he would be required to register as a Tier II and Tier III
sex offender. Id. at ¶ 16. The plea form did not provide further detail regarding sex offender
registration. Id.
{¶ 28} At the plea hearing, the prosecutor informed the trial court, in Dornoff's
presence, Dornoff had entered a plea of guilty, and he "will be registered as a Tier III sex
offender." Id. at ¶ 17. The trial judge, however, did not personally advise Dornoff he would
be required to register as a sexual offender or inform him of any of the punitive
consequences of the sex-offender classification scheme. Id. The trial court accepted
Dornoff's guilty plea and sentenced him to an aggregate prison term of 15 years. The trial
court subsequently denied Dornoff's pro se motions to withdraw his guilty plea. Id.
{¶ 29} The Sixth District Court of Appeals in Dornoff I determined the trial court
completely failed to comply with Crim.R. 11(C)(2)(a). Id. at ¶ 18. The Sixth District cited
the following facts in support of that determination:
At the plea hearing, the prosecutor indicated to the trial court
that appellant was entering a guilty plea to three counts and
"will be registered as a Tier III sex offender." However, during
the plea hearing, the trial judge did not advise appellant that he
would have to register as a sexual offender, nor was appellant
informed of any of the punitive consequences of entering a
guilty plea and having a sexual offender classification.

Id. at ¶ 17.
{¶ 30} In Dornoff I, the Sixth District vacated the guilty plea, without a showing of
prejudice, on concluding that "the trial court's failure to comply with Crim.R. 11(C)(2)
renders [Dornoff's] plea involuntary, unknowing and invalid." Id. at ¶ 18. The Sixth District
subsequently certified its decision in Dornoff I to the Supreme Court as being in conflict
with a judgment of the Eighth District Court of Appeals in State v. Creed, 8th Dist. No.
97317, 2012-Ohio-2627. The Sixth District certified the record to the Supreme Court on the
following question:
[D]oes a trial court's failure to inform a defendant about the
residential restrictions imposed on sexual offenders under
R.C. Chapter 2950 render the plea invalid?
Nos. 20AP-179 and 20AP-375 12

(Emphasis added.) Dornoff I at ¶ 23.2
{¶ 31} The Supreme Court in State v. Dornoff, 160 Ohio St.3d 216, 2020-Ohio-3022
("Dornoff II"), issued the following unanimous ruling in the appeal:
The judgment of the court of appeals is reversed, and this
cause is remanded to the court of appeals for application of
State v. Dangler, * * * 2020-Ohio-2765.
Dornoff II at ¶ 1.
{¶ 32} On remand, the Sixth District noted that "[t]his case is before us based on a
remand issued by the Supreme Court of Ohio * * * in which the court reversed our decision
in [Dornoff I], on the authority of * * * Dangler." State v. Dornoff, 6th Dist. No. WD-16-
072, 2020-Ohio-3909, ¶ 1 ("Dornoff III"). The Sixth District proceeded to issue the
following ruling in Dornoff III:
Upon review, we find the trial court, similar to the trial court in
Dangler, failed to completely and separately advise appellant
of the sex-offender registration and in-person verification
requirements, community-notification provisions, and
residence restrictions imposed by the sex-offender registration
scheme when accepting appellant's guilty plea. We further
find, on the authority of the Supreme Court's holding in
Dangler, this failure did not constitute a complete failure to
comply with Crim.R. 11, thus appellant must demonstrate
prejudice in order to have his conviction vacated.

A review of the record reveals appellant has alleged he was
prejudiced, but he has offered no explanation or evidence to
show that he would not have entered the guilty plea but for the
trial court's failure to fully advise him of all of the details of the
sex-offender classification scheme. Therefore, appellant has
not established prejudice, and he is not entitled to have his
guilty plea vacated for a failure of the trial court to comply with
Crim.R. 11(C).

Id. at ¶ 17-18.
{¶ 33} Here, the plea form signed by McFadden includes an acknowledgment by
McFadden that he "will also register as a TIER III (3) sex offender and must comply with
all requirements, including residency." (Jan. 9, 2020 Entry of Guilty Plea at 1.) The
prosecutor stated at the plea hearing that McFadden "must register as a Tier III sex offender

2The Supreme Court determined there was a conflict and ordered the case held for the decision in Dangler.
State v. Dornoff, 153 Ohio St.3d 1502, 2018-Ohio-4288.
Nos. 20AP-179 and 20AP-375 13

and comply with all of the requirements, including those pertaining to residency." (Jan. 9,
2020 Plea Hearing Tr. at 3.) McFadden responded in the affirmative when the trial court
asked him if he read and understood the plea form before he signed it. McFadden also
acknowledged his attorney explained the plea form to him before he signed.
{¶ 34} Thus, the record shows McFadden was provided with the same information
at the plea hearing that the defendant received in Dangler. The difference in this case is
that the information was provided by the prosecuting attorney to the trial court in
McFadden's presence. The trial court did not personally advise McFadden he would be
subject to sex offender registration requirements. McFadden argues the failure of the trial
court to personally inform him he was subject to Tier III sex-offender registration
constitutes a complete failure to comply with Crim.R. 11(C)(2)(a). Accordingly, McFadden
claims he is entitled to have his conviction vacated for lack of compliance with Crim.R.
11(C)(2)(a) without demonstrating prejudice. Dangler, 2020-Ohio-2765, at ¶ 2, 20, 22.
{¶ 35} The Sixth District in Dornoff III rejected the argument McFadden now raises
in his first assignment of error under a nearly identical set of facts. Applying the ruling of
the Supreme Court in Dornoff II, the Sixth District in Dornoff III found Dornoff's execution
of a written plea agreement advising him he would be subject to Tier II and III sex-offender
requirements, combined with the prosecutor's statement at the plea hearing Dornoff would
be subject to Tier II and III sex-offender requirements as a result of his guilty plea,
established partial compliance with Crim.R. 11(C)(2)(a). We agree with the decision in
Dornoff III. Accordingly, we hold that even though the trial court failed to completely and
separately advise McFadden of the Tier III sex-offender registration requirements when
accepting his guilty plea, the record evidences partial compliance with Crim.R. 11(C)(2)(a).
Dornoff II, 2020-Ohio-3022, and Dornoff III, 2020-Ohio-3909, at ¶ 17, citing Dangler.
Because the record evidences partial compliance by the trial court with Crim.R. 11(C)(2)(a),
McFadden is not entitled to have his conviction vacated for lack of a more complete
explanation of the Tier III sex-offender requirements unless he demonstrates prejudice.
Dangler at ¶ 2, 23.
{¶ 36} McFadden argues the remand order issued by the Supreme Court in Dornoff
II does not support the proposition that partial compliance with Crim.R. 11(C)(2)(a) may
be established in the absence of a personal advisement by the trial court. The Sixth District
Nos. 20AP-179 and 20AP-375 14

obviously disagrees and so do we. The Sixth District in Dornoff I conspicuously pointed
out the trial court had not personally informed Dornoff of the Tier II and III requirements.
Dornoff I, 2018-Ohio-3084, at ¶ 17. We do not believe the Supreme Court overlooked this
critical fact when it acknowledged the conflict and issued a ruling in Dornoff II. Moreover,
Crim R. 11(C)(2) provides, in relevant part, as follows:
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.
{¶ 37} Unlike Crim.R. 11(C)(2)(b) and (c), Crim.R. 11(C)(2)(a) does not require that
the trial court "inform" the defendant of the maximum penalty involved.3 Rather, the rule
simply requires the trial court to address the defendant personally to determine the
defendant is "making the plea voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved." Crim.R. 11(C)(2)(a). Thus, the rulings in Dornoff
II and Dornoff III are consistent with the language of the rule.
{¶ 38} McFadden's first assignment of error concedes he cannot establish prejudice,
and he has made no such claim in his merit brief. Moreover, to establish prejudice,
McFadden must establish he would not have pleaded no contest but for the trial court's
failure to explain the sex-offender classification scheme more thoroughly. Id. at ¶ 23. Our
review of the record reveals no evidence demonstrating McFadden would not have entered
the guilty plea but for the trial court's failure to personally and more fully advise him of the
details of the sex-offender classification scheme.
{¶ 39} Because the trial court partially complied with Crim.R. 11(C)(2)(a) in regard
to the Tier III sex-offender registration requirements and because McFadden failed to show
prejudice arising from the lack of substantial compliance, McFadden is not entitled to an

3 Conversely, Crim.R. 11(C)(2)(b) and (c) use the term "[i]nforming the defendant" rather than "[d]etermining
that the defendant."
Nos. 20AP-179 and 20AP-375 15

order vacating his guilty plea to the rape offenses. Accordingly, we overrule the first
assignment of error in McFadden's cross-appeal.
2. McFadden's Second and Third Assignments of Error
{¶ 40} In his second and third assignments of error in the cross-appeal, McFadden
contends the trial court completely failed to advise him of the maximum prison term that
could be imposed on him for the offenses to which he pleaded guilty. Accordingly, we will
consider these assignments of error jointly.
{¶ 41} The parties agree the maximum prison term for rape, as charged in Count 1
of the indictment, is an indefinite prison term of 11 years plus one-half of that term for a
total of 16.5 years. The maximum prison term for rape, as charged in Count 4, is a definite
prison term of 11 years. When the indefinite prison term on Count 1 and the definite prison
term on Count 4 are served consecutively, as ordered by the trial court, the maximum
aggregate prison term is 22 to 27.5 years.
{¶ 42} The transcript of the plea hearing establishes McFadden was orally informed
by the trial court that he faced a maximum consecutive prison term of 22 to 27.5 years.
McFadden argues, however, Crim.R. 11(C)(2)(a) required the trial court to separately advise
him of the maximum prison term for each of the two rape offenses to which he was pleading
guilty and to explain the divergent sentencing schemes. McFadden claims he is entitled to
have his conviction vacated, without a showing of prejudice, because the trial court
completely failed to comply with Crim.R. 11(C)(2)(a) with respect to the maximum prison
term. We disagree.
{¶ 43} McFadden relies on State v. Johnson, 40 Ohio St.3d 130 (1988), in support
of this assignment of error. In Johnson, the Supreme Court addressed the requirement of
Crim.R. 11(C) that a defendant be informed of the "maximum penalty." In that case,
Johnson pleaded guilty to multiple offenses, and the trial court informed him of the
potential maximum sentence for each offense but not that the sentences could be imposed
consecutively or the total sentence that he faced. The Supreme Court found the trial court's
notification complied with Crim.R. 11(C), stating:
[T]he term "the maximum penalty" which is required to be
explained is also to be understood as referring to a single
penalty. In the context of "the plea" to "the charge," the
reasonable interpretation of the text is that "the maximum
penalty" is for the single crime for which "the plea" is offered.
Nos. 20AP-179 and 20AP-375 16

It would seem to be beyond a reasonable interpretation to
suggest that the rule refers cumulatively to the total of all
sentences received for all charges which a criminal defendant
may answer in a single proceeding.
Id. at 133.
{¶ 44} McFadden claims that Johnson stands for the proposition that, unless the
trial court separately informs the defendant of the maximum penalty for each of the
offenses to which he is pleading guilty, the trial court completely fails to comply with
Crim.R. 11(C)(2)(a). In other words, McFadden claims, under Johnson, partial compliance
with Crim.R. 11(C)(2)(a) cannot be demonstrated in any other way. McFadden overstates
the rule of law applied in Johnson.
{¶ 45} The rule of law established in Johnson is that a "[f]ailure to inform a
defendant who pleads guilty to more than one offense that the court may order him to serve
any sentences imposed consecutively, rather than concurrently, is not a violation of Crim.R.
11(C)(2), and does not render the plea involuntary." Id. at syllabus. Johnson does not speak
to the issue of partial compliance raised in this appeal.
{¶ 46} In Johnson, the Supreme Court relied on Barbee v. Ruth, 678 F.2d 634 (5th
Cir.1982), which found that:
The Constitution does not require that, in order to understand
the consequences of a plea of guilty, the accused must be
informed by the trial court, or must otherwise know, whether
or not sentences imposed for separate crimes will run
consecutively or concurrently. * * *
The consequences of a guilty plea, with respect to sentencing,
mean only that the defendant must know the maximum
prison term and fine for the offense charged. As long as [the
defendant] understood the length of time he might possibly
receive, he was fully aware of his plea's consequences.
(Citations and quotations omitted.) Id. at 635.
{¶ 47} Here, the trial court correctly informed McFadden of the maximum aggregate
prison term he could receive if ordered to serve the two prison terms consecutively. Thus,
the record evidences McFadden's understanding of the length of the prison term he might
possibly receive. The plea colloquy also demonstrates McFadden's understanding that his
sentence included an indefinite prison term, as evidenced by the trial court's statement:
"you're pleading guilty to two F1 rape counts, the maximum sentence for which you could
Nos. 20AP-179 and 20AP-375 17

receive is an indefinite sentence of 22 years to 27-and-a-half years." (Jan. 9, 2020 Plea
Hearing Tr. at 5.)
{¶ 48} As previously noted, Crim.R. 11(C)(2)(a) simply requires the trial court to
address the defendant personally and to determine the defendant is "making the plea
voluntarily, with understanding of the nature of the charges and of the maximum penalty
involved." McFadden knew he was pleading guilty to two rape offenses under the same
statutory provision, and he understood the maximum aggregate prison term the trial court
could impose for the two offenses. Even if we were to agree with McFadden that the record
does not evidence substantial compliance with Crim.R. 11(C)(2)(a), on this record, we
cannot agree the record evidences a complete failure to comply with Crim.R. 11(C)(2)(a)
with regard to the maximum prison term. Though the trial court should have provided
McFadden with a more detailed explanation of the different sentencing schemes applicable
to each count, the trial court's advisement in this case partially complies with Crim.R.
11(C)(2)(a). Thus, McFadden is not entitled to have his conviction vacated for lack of a
more complete explanation of the divergent sentencing schemes unless he demonstrates
prejudice. Dangler, 2020-Ohio-2765, at ¶ 2, 23. McFadden does not claim he would not
have pleaded guilty if the trial court had separately set forth the maximum prison term for
each of the two rape offenses and more thoroughly explained the divergent sentencing
schemes.
{¶ 49} For the foregoing reasons, we overrule McFadden's second and third
assignments of error in his cross-appeal.
B. State's Appeal in Case No. 20AP-375
{¶ 50} In the state's sole assignment of error, the state argues the trial court erred
when it imposed a definite prison term of 11 years as to Count 1 of the indictment in
violation of the Reagan Tokes Law. We agree.
{¶ 51} "Am. Sub. S.B. No. 201, 2018 Ohio Laws 157, known as the 'Reagan Tokes
Law,' was enacted in 2018 and went into effect on March 22, 2019." State v. Jones, 7th Dist.
No. 20 MA 0059, 2021-Ohio-1164, ¶ 18. "The new law, ' "significantly altered the
sentencing structure for many of Ohio's most serious felonies" by implementing an
indefinite sentencing system for those non-life felonies of the first and second degree,
committed on or after the effective date.' " Id. at ¶ 18, quoting State v. Polley, 6th Dist. No.
Nos. 20AP-179 and 20AP-375 18

OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1, quoting The Ohio Criminal Sentencing
Commission, SB 201 - The Reagan Tokes Law Indefinite Sentencing Quick Reference
Guide, July 2019, citing R.C. 2929.144(A). "Under the Reagan Tokes Law, 'first-and
second-degree felonies committed on or after March 22, 2019 are now subject to the
imposition of indefinite sentences.' " Jones at ¶ 18, quoting State v. Barnes, 2d Dist. No.
28613, 2020-Ohio-4150, ¶ 28.
{¶ 52} Under the Reagan Tokes Law, an indefinite prison term must be imposed by
the trial court for qualifying first and second-degree felonies. The prison term "consist[s]
of a stated minimum prison term as selected by the trial court from a range of prison terms
set forth in R.C. 2929.14(A) and a maximum prison term for qualifying first-and second-
degree felonies as determined by the trial court from formulas set forth in R.C. 2929.144."
Jones at ¶ 18, citing Barnes at ¶ 28.
{¶ 53} R.C. 2929.144(B)(1) provides, in relevant part, "[i]f the offender is being
sentenced for one felony and the felony is a qualifying felony of the first or second degree,
the maximum prison term shall be equal to the minimum term imposed on the offender
under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code plus fifty per cent
of that term." The term "qualifying felony of the first or second degree" is defined as "a
felony of the first or second degree committed on or after the effective date of [R.C.
2929.144]." R.C. 2929.144(A).
{¶ 54} Under R.C. 2967.271(B), the offender's presumptive release date is the date
the offender completes the minimum prison term. If, however, ODRC successfully rebuts
the offender's presumptive release date, at an administrative hearing, ODRC may continue
to confine the offender for an additional period not to exceed the maximum prison term
imposed by the trial court. R.C. 2967.271(C).
{¶ 55} R.C. 2953.08 "specifically and comprehensively defines the parameters and
standards—including the standard of review—for felony-sentencing appeals." State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 21. R.C. 2953.08(G)(2) provides, in
relevant part, as follows:
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
underlying the sentence or modification given by the
sentencing court.
Nos. 20AP-179 and 20AP-375 19

The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its
discretion. The appellate court may take any action
authorized by this division if it clearly and convincingly finds
either of the following:
(a) That the record does not support the sentencing court’s
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
(Emphasis added.)
{¶ 56} R.C. 2953.08(G)(2) commands us to employ the clear-and-convincing-
evidence standard. Jones, 2021-Ohio-1164, at ¶ 17, citing Marcum at ¶ 22. The parties
agree the maximum sentence as to Count 1 of the indictment includes a mandatory
indefinite prison term of 11 years plus one-half of that term for a total of 16.5 years.
However, at the March 3, 2020 sentencing hearing, the trial court imposed a definite prison
term of 11 years on each of the 2 counts of rape, to be served consecutively, for a total of 22
years in prison.
{¶ 57} Because the trial court imposed a definite prison term for a first-degree felony
committed after March 22, 2019, we find the sentence is contrary to law. Jones at ¶ 17; R.C.
2953.08(G)(2)(b). Accordingly, we sustain the state's assignment of error. The judgment
of the trial court shall be reversed, and this cause shall be remanded for the trial court to
impose both a minimum and maximum prison term as to Count 1 of the indictment in
conformity with the new indefinite sentencing law.
C. McFadden's Appeal in Case No. 20AP-179
1. McFadden's First Assignment of Error
{¶ 58} In McFadden's first assignment of error in case No. 20AP-179, McFadden
contends the trial court did not have jurisdiction to issue an amended sentencing entry on
March 5, 2020, after having issued final judgment of conviction and sentence on March 3,
2020. We agree.
{¶ 59} Criminal law in Ohio is statutory in nature. State v. Jama, 10th Dist. No.
11AP-210, 2012-Ohio-2466, ¶ 36, citing State v. Moore, 4th Dist. No. 03CA18, 2004-Ohio-
Nos. 20AP-179 and 20AP-375 20

3977, ¶ 10, citing Lynn v. Limbert, 117 Ohio App.3d 236 (7th Dist.1977). Trial courts,
therefore, have only that power which has been conferred by statute or by rule. Jama at
¶ 36, citing Moore at ¶ 10, citing Lynn. See also State ex rel. Leis v. Outcalt, 1 Ohio St.3d
147, 148 (1982) (in Ohio, criminal procedure is governed by statute). " 'A trial court
generally lacks the authority to reconsider its own valid final judgments in a criminal case.' "
State v. Watkins, 10th Dist. No. 20AP-313, 2020-Ohio-5203, ¶ 15, discretionary appeal
not allowed, 161 Ohio St.3d 1450, 2021-Ohio-534, quoting Jama at ¶ 37, citing State ex rel.
Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, ¶ 18; State v. Boles, 2d Dist. No.
23037, 2011-Ohio-3720, ¶ 34. There are two recognized exceptions to this rule: "(1) when
a void sentence has been imposed, and (2) when the judgment contains a clerical error."
State v. Mitchell, 11th Dist. No. 2019-P-0105, 2020-Ohio-3417, ¶ 35, citing State v. Miller,
127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 14.
{¶ 60} Here, the trial court issued a final judgment of conviction and sentence on
March 3, 2020. There is no question the March 3, 2020 judgment entry constituted a final,
appealable order as the state has appealed from that judgment in case No. 20AP-375, and
McFadden has filed a cross-appeal with leave of court. The state agrees the March 5, 2020
judgment entry should be reversed.
{¶ 61} Given our determination of the state's appeal in case No. 20AP-375, it is clear
the amended judgment entry issued March 5, 2020 makes substantive changes to the
prison term the trial court imposed in the final judgment of conviction and sentence of
March 3, 2020.4 Accordingly, we hold the trial court was without jurisdiction to issue the
March 5, 2020 amended judgment entry. Watkins; Mitchell; Miller.
{¶ 62} For the foregoing reasons, McFadden's first assignment of error in case No.
20AP-179 is sustained, and the March 5, 2020 judgment shall be vacated.
D. Remaining Assignments of Error
{¶ 63} Given our determination in the state's appeal in case No. 20AP-375 that the
March 3, 2020 judgment entry must be reversed and the cause remanded to the trial court
for resentencing on Count 1 and given our ruling on McFadden's first assignment of error
in case No. 20AP-179 vacating the amended judgment entry issued March 5, 2020, the

4Pursuant to Crim.R. 36, "[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in
the record arising from oversight or omission, may be corrected by the court at any time."
Nos. 20AP-179 and 20AP-375 21

constitutional challenges to the Reagan Tokes Law raised in McFadden's third, fourth, and
fifth assignments of error in case No. 20AP-179 are moot. App.R. 12(C). Because we are
vacating the March 5, 2020 amended judgment entry, McFadden's sixth assignment of
error in case No. 20AP-179 is also moot. Similarly, our reversal of the March 3, 2020
judgment and remand for resentencing on Count 1 means the trial court will have another
opportunity to make any findings required by R.C. 2929.14(C)(4). Accordingly,
McFadden's challenge to the consecutive prison term raised by the fourth assignment of
error in case No. 20AP-375 is moot.
IV. CONCLUSION
{¶ 64} Having sustained the state's sole assignment of error in case No. 20AP-375,
but having overruled McFadden's first, second, and third assignments of error in the cross-
appeal, and mooted McFadden's fourth assignment of error in the cross-appeal, we reverse
the March 3, 2020 judgment of the Franklin County Court of Common Pleas and remand
this cause for the court to resentence McFadden as to Count 1 of the indictment.
Furthermore, having sustained McFadden's first assignment of error in case No. 20AP-179,
but having mooted McFadden's third, fourth, fifth, and sixth assignments of error, we
reverse and vacate the March 5, 2020 judgment of the Franklin County Court of Common
Pleas.
Judgment reversed, cause remanded with instructions
in case No. 20AP-375;
judgment reversed and vacated
in case No. 20AP-179.
DORRIAN, P.J., and LUPER SCHUSTER, J., concur.
_____________