State v. Gates

[Cite as State v. Gates, 2022-Ohio-1666.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110616
v. :

MARK GATES, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED
RELEASED AND JOURNALIZED: May 19, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-652009-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jamielle Lamson-Buscho, Assistant
Prosecuting Attorney, for appellee.

The Law Office of Jaye M. Schlachet and Eric M. Levy, for
appellant.

EMANUELLA D. GROVES, J.:

Appellant, Mark Gates (“Gates”), appeals his convictions, assigning the

following errors for review:
 Assignment of Error No. 1

The trial court erred and abused its discretion when it only applied
credit for jail time served to the misdemeanor conviction and not the
concurrent felonies.

Assignment of Error No. 2

The trial court erred when it imposed a sentence upon appellant for
count two, felonious assault, without accepting a plea of guilty.

Assignment of Error No. 3

Appellant’s indefinite sentence imposed under the Regan [sic] Tokes
sentencing scheme violates appellant rights under the United States
constitution applied to the state of Ohio through the Fourteenth
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 to [sic] much authority to the Ohio Department of
Rehabilitation and Correction (“ODRC”).

Assignment of Error No. 4

Appellant’s sentence is contrary to law where the trail [sic] court failed
to comply with the required notices contained in R.C. 2929.19(B)(2)(c)
when imposing sentence.

For the reasons that follow, we affirm in part, reverse in part, and

remand for a calculation of jail-time credit and for resentencing on Count 2 so that

the court may give a proper advisement pursuant to R.C. 2929.19(B)(2)(c).
I. Factual and Procedural History

Gates entered guilty pleas to resolve his criminal case so the factual

basis for the convictions in the record is sparse.1 However, at a hearing evidenced

in the transcript, Michelle Haas (“Haas”) testified that she dated Gates for about 15

months. (Tr. 12.) They were no longer seeing each other in early July 2020. On

July 19, 2020, at approximately 1:30 a.m., an incident occurred at the residence of

John Hilde (“Hilde”), a person with whom Haas shares a child. (Tr. 82.) The

altercation resulted in the hospitalization of Hilde with significant injuries.

On August 11, 2020, a three-count indictment was filed charging Gates

with aggravated burglary, a first-degree felony violation of R.C. 2911.11(A)(1);

felonious assault, a second-degree felony violation of R.C. 2903.11(A)(1); and

domestic violence, a first-degree misdemeanor violation of R.C. 2919.25(A). The

case proceeded through several pretrials, discovery, and delays caused by the

COVID-19 Pandemic. On May 12, 2021, the trial court held a change of plea hearing

using video conferencing technology, to which no one objected. As part of a

negotiated plea agreement, the state amended Count 1 from aggravated burglary to

burglary, a fourth-degree felony violation of R.C. 2911.12(B). Gates entered guilty

pleas to amended Count 1 and the other two counts as charged in the indictment.

1The state attached a copy of a police report to its appellate brief submitted in this
case and then cited to it in the statement of the facts contained in the brief. This is not a
proper means to supplement the record on appeal and a court cannot consider materials
attached to a brief that do not appear in the appellate record. Trabuco Homes, L.L.C., v.
Brewer, 8th Dist. Cuyahoga No. 109595, 2021-Ohio-1964, ¶ 13.
Count 2, a second-degree felony, constituted a qualifying offense for an indefinite

sentence under the Reagan Tokes Sentencing Law.

A sentencing hearing commenced on June 23, 2021. After hearing

from the state, Hilde, Gates and Gates’ attorney, the court imposed an 18-month

sentence on Count 1, a minimum sentence of 4 years on Count 2, and time served on

Count 3. The court informed Gates that the indefinite sentence imposed on Count

2 had a maximum sentence of six years with a rebuttable presumption of release

after four years. Gates objected to the imposition of an indefinite sentence. This

timely appeal followed.

II. Law and Analysis

A. Jail-time Credit

Gates argues, and the state concedes, that the trial court erred in

applying credit for pretrial confinement to his misdemeanor conviction but not his

felony convictions. Gates was sentenced to time served for his misdemeanor

sentence. The transcript and journal entry of sentence are otherwise silent on the

trial court’s calculation of jail-time credit. At one point during the sentencing

hearing, the trial court indicated that “Count 1 and Count 2 will run concurrent to

one another.” (Tr. 89.) The journal entry of sentence states the same. However,

this does not mean that Count 3 must be served consecutive to these counts. Gates’s

argument in his brief focuses on the assertion that the trial court’s sentence on the

misdemeanor constitutes a consecutive sentence. However, concurrent sentences

are the default. State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d
164, ¶ 21. Unless an exception applies, a failure to state that sentences are to be

served consecutive to each other generally means that they are presumed

concurrent. State v. Simmons, 8th Dist. Cuyahoga No. 107144, 2019-Ohio-459, ¶ 17.

Gates has not pointed to anything in the record that supports the

proposition that sentences were imposed consecutively or that the trial court

misapplied jail-time credit. This is because nowhere in the record does the trial

court actually calculate and apply jail-time credit.2 This alone constitutes error.

Pursuant to R.C. 2929.19(B)(2)(g)(i), “[i]t is the duty of the trial judge

to determine the amount of jail-time credit to which a prisoner is entitled.” State v.

Williams, 8th Dist. Cuyahoga No. 105903, 2018-Ohio-1297, ¶ 14, citing State ex rel.

Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d

1286, ¶ 7. This information must be present in the sentencing entry so the ODRC

can properly apply credit to any prison sentence. Id. See also R.C.

2929.19(B)(2)(g)(i), 2949.12, and 2967.191. The failure to do so constitutes plain

error. Id. at ¶ 15. This may be corrected by filing a motion with the trial court or on

direct appeal. State v. Thompson, 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882,

¶ 23; R.C. 2929.19(B)(2)(g)(iii). A jail sentence of “time served” does not obviate a

trial court’s duty to calculate jail-time credit where prison sentences are also

imposed. R.C. 2929.19(B)(2)(g)(i) gives clear direction to a court to calculate jail-

time credit any time a prison sentence is imposed.

2 Gates’s counsel does indicate that Gates may have spent 20 days in jail prior to
sentencing. (Tr. 69.)
 Therefore, we remand this case to the trial court to calculate and apply

jail-time credit, if appropriate, notify Gates of the result of that calculation, and issue

a new sentencing entry setting forth the amount of credit, if any. This assignment

of error is sustained.

B. Acceptance of Guilty Pleas

Gates claims that the trial court failed to properly accept a guilty plea

on Count 2, felonious assault. Gates continues to argue that any plea to this count

must be construed as not guilty and the trial court erred in imposing a sentence on

a count where a valid guilty plea or finding of guilty does not exist.

The trial court started off the change-of-plea hearing listing the

charges: “[t]he defendant has been indicted in a three-count indictment. Count 1,

aggravated burglary, a felony of the first degree in violation of 2911.11(A)(1). Count

2 is felonious assault, felony of the second degree in violation of 2903.11(A)(1).

Count 3, domestic violence, a misdemeanor of the first degree in violation of

2919.25(A).” (Tr. 44.) After a thorough Crim.R. 11 plea colloquy, where the trial

court personally advised Gates of the rights he was giving up by pleading guilty and

inquiring if Gates understood those rights, the following exchange occurred on the

record,

THE COURT: All right. Based upon the statements of the prosecuting
attorney and your lawyer, I believe it is your intention to plead guilty to
an amended indictment. I believe it's your intention to plead guilty to
amended Count 1, amending it to burglary in violation of 2911.12(B),
making it a felony of the fourth degree. Is that your understanding?

THE DEFENDANT: Yes, Your Honor.
 THE COURT: And that you will be pleading guilty to Count 2, felonious
assault, a felony of the second degree which would be subject to Reagan
Tokes, and do you understand that?

***

THE DEFENDANT: Yes, Your Honor, I do understand.

THE COURT: Okay. And Count 3, domestic violence, a misdemeanor
of the first degree in violation of 2919.25(A). Do you understand that?

THE DEFENDANT: Yes, Your Honor.

(Tr. 50-51.)

The court then went through the potential penalties Gates faced, the

intricacies of a minimum and maximum sentence required by the Reagan Tokes

Law, as well as postrelease control, restitution, and other penalties. The court then

stated,

So, Mr. Gates, how do you plead to Count 1 as it’s been amended. It’s
been amended to burglary, a felony of the fourth degree in violation of
2911.12(B). How do you plead?

THE DEFENDANT: Guilty.

THE COURT: I do accept your plea of guilty to Count 1 as it’s been
amended and I find you guilty thereon.

How do you plead to Count 2, Count 2 as indicted, felonious assault, a
felony of the second degree in violation of 2903.11(A)(1), how do you
plead?

THE DEFENDANT: Guilty.

THE COURT: And Count 3, domestic violence, a misdemeanor of the
first degree in violation of 2919.25(A), how do you plead?

THE DEFENDANT: Guilty.
 THE COURT: Okay. Thank you. I accept your plea of guilty to Count
3 as it’s been charged and indicted and I find you guilty thereon.

(Tr. 58-59.) The plea colloquy quoted above demonstrates that Gates pled guilty to

Count 2, felonious assault.

Gates argues the court was required to affirmatively accept this plea

as it did with his pleas to Counts 1 and 3.

Crim.R. 11(B)(3) provides, “[w]hen a plea of guilty or no contest is

accepted pursuant to this rule, the court, except as provided in division (C)(3) and

(4) of this rule, shall proceed with sentencing under Crim.R. 32.” There is no specific

provision addressing how a court may indicate its acceptance of a plea. Crim.R.

11(G) contains steps necessary to reject a plea. It states, “[i]f a court refuses to accept

a plea of guilty or no contest, the court shall enter a plea of not guilty on behalf of

the defendant.” Gates claims that because the court did not explicitly accept his plea

to Count 2, it necessarily refused to accept it. In support, Gates cites to federal cases

interpreting Fed. Crim.R. 11, such as United States v. Battle, 499 F.3d 315 (4th

Cir.2007), and United State v. Head, 340 F.3d 628 (8th Cir.2003). However, Gates

recognizes that the reviewing courts in these cases examined the record to determine

whether the trial court implicitly accepted a guilty plea.

Here, the record demonstrates that the trial court implicitly accepted

the plea. The first indication of this is that the trial court did not reject the plea. The

journal entry memorializing Gates’s pleas also indicates that Gates pled guilty to

Count 2, and states that “court accepts defendant’s guilty plea” after a recitation of
the charges and pleas entered by Gates. At the sentencing hearing, the trial court

moved forward with sentencing on all counts, including Count 2, indicating

acceptance of the plea. The court began the hearing, stating,

We are here today for a sentencing. On a previous day the defendant
pled guilty to Count 1, as it was amended to burglary, in violation of
2911.12(B), a felony of the fourth degree.

The defendant, as you pled guilty to Count 2, felonious assault, in
violation of 2903.11(A)(1), a felony of the second degree.

And the defendant pled guilty to Count 3, domestic violence, a
misdemeanor of the first degree, in violation of 2919.25.

So we are here today for a sentencing.

(Tr. 62.)

The trial court then asked if there was any reason why the court

should not go forward with sentencing. Gates, through counsel, indicated there was

not. Gates did not object or otherwise raise a claim that his plea was not accepted.

All parties, including the trial judge, proceeded as though Gates’s guilty plea to

Count 2 was accepted.

Based on the above evidence, we conclude that the trial court

implicitly accepted Gates’s guilty plea as to Count 2 of the indictment. There is no

indication in the record to the contrary. In Head, a defendant filed a motion to

withdraw guilty pleas entered in a case. At the time he entered his guilty pleas the

trial judge stated, “‘If [the plea agreement] is vacated or rejected at the time of

sentencing — as I go over this and think about it in the weeks ahead and decide that

the agreement is not appropriate, that ten years isn’t enough or whatever, then you
would go back to trial on all of the original charges.’” (Brackets and emphasis sic.)

Head at 631, quoting Change of Plea Tr. at 41. The appellate court examined the

record and found that this conditional statement meant that the trial judge did not

implicitly accept the plea.

In Battle, a trial judge provisionally accepted a guilty plea dependent

on the receipt of a presentence investigation report. Battle, 499 F.3d at 317. The

defendant sought to withdraw his plea, and the Fourth Circuit Court of Appeals

found that the trial court did not err in denying the motion to withdraw because the

plea, even with this provisional language, had been accepted. Id.

As the Battle Court noted, an unambiguous statement such as “I

accept your guilty plea,” is a best practice and can ensure that there is no confusion.

Id. at 322. But in the case before this court, it is clear from the record that the trial

court implicitly accepted Gates’s guilty plea and sentenced him accordingly.

There is no similar conditional statement to the statement in Head,

or any statement for that matter, that would lead this court to believe that the trial

judge did not accept Gates’s guilty plea to Count 2.

Gates claims the silence of the trial court amounts to violations of the

state and federal constitutions. Even if we did not find that the trial court impliedly

accepted Gates’s guilty plea to Count 2, Gates never raised this issue with the trial

court when it could have been corrected. “An argument is forfeited when it is not

timely asserted.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d

860, ¶ 21. “The purpose of the forfeiture rule is to encourage parties to call the
court’s attention to an error at a time when the error can be ‘“avoided or corrected.”’”

State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 10, quoting

State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v.

Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus.

Therefore, even constitutional violations can be forfeited if not raised. Assuming

Gates is correct that this constitutes error, he never brought this alleged error to the

trial court’s attention when it could have been easily remedied.

Therefore, we overrule this assignment of error.

C. Reagan Tokes Sentence

Gates also claims that his indefinite sentence under the Reagan Tokes

Law is unconstitutional. Citing to our previous decisions in 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.),

Gates challenges his sentence based on violations of due process, the right to a jury

trial, and violation of the separation of powers doctrine. However, these issues were

resolved in the district’s en banc holding in State v. Delvallie, 8th Dist. Cuyahoga

No. 109315, 2022-Ohio-470. The challenges Gates advanced against the

constitutional validity of the Reagan Tokes Act have been overruled, Id. at ¶ 17-54.

Therefore, we find that Gates’s sentence pursuant to the Reagan Tokes Law was not

a violation of his constitutional rights.
 D. Improper Advisement of Indefinite Sentence

Finally, Gates claims that the trial court failed to properly give all

advisements found in R.C. 2929.19(B)(2)(c) prior to imposing sentence pursuant to

the Reagan Tokes Law. The state concedes that the trial court did not give the

notification required by R.C. 2929.19(B)(2)(c). If a nonlife felony indefinite prison

term is imposed, this statute mandates that a court give the following notifications:

(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.
 No specific language is required, but the court must impart this

information to a defendant at the time of sentencing. The state concedes that while

this information was relayed to Gates at the time of the plea, it was not given at the

time of sentencing. Gates and the state agree that this constitutes reversible error.

The state asks that this case be remanded for the sole purpose of giving the required

advisements. Gates does not address the scope of the hearing required.

When faced with a similar issue, the Twelfth District remanded so

that the trial court could give the proper advisement. State v. Pope, 12th Dist. Butler

No. CA2021-05-057, 2022-Ohio-426. The court limited the scope of the hearing,

stating,

[the] sentence must be reversed, and this matter is remanded for the
sole purpose of providing Pope with the required notifications as set
forth in R.C. 2929.19(B)(2)(c). However, we emphasize that our
reversal and remand are only for the purpose of complying with the
foregoing statute and in no way affect the validity of the underlying
conviction or any other aspect of the sentence imposed by the trial
court. In other words, Pope is not entitled to be sentenced anew and
the matter is remanded to the trial court for the sole and limited
purpose of providing the mandatory notifications of R.C.
2929.19(B)(2)(c).

Id. at ¶ 23. See also State v. Thompson, 2d Dist. Clark No. 2020-CA-60, 2021-Ohio-

4027, ¶ 33 (case remanded “for the sole purpose of resentencing [the defendant]

pursuant to R.C. 2929.19(B)(2)(c)).”) The Fourth District did not explain the scope

of proceedings on remand when it found a similar failure to properly notify a

defendant pursuant to R.C. 2929.19(B)(2)(c). State v. Long, 4th Dist. Pickaway No.

20CA9, 2021-Ohio-2672, ¶ 29. The Fifth District has remanded for resentencing for
what appears to be a de novo resentencing hearing on the affected count. State v.

Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501.

We conclude that the prudent approach is the one taken by the

Twelfth District in Pope. We, therefore, reverse the sentence on Count 2 and remand

this case to the trial court for the sole purpose of providing Gates with the

notifications required by R.C. 2929.19(B)(2)(c).

Judgment affirmed in part, reversed in part, and remanded for a

calculation of jail-time credit and for resentencing on Count 2 so that the court may

give proper advisement pursuant to R.C. 2929.19(B)(2)(c).

It is ordered that appellant and appellee share costs herein taxed.

This court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

_________________________
EMANUELLA D. GROVES, JUDGE

ANITA LASTER MAYS, P.J., and
KATHLEEN ANN KEOUGH, 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.

Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision. For
a full explanation of her analysis, see State v. Delvallie, 8th Dist. Cuyahoga
No. 109315, 2022-Ohio-470 (Laster Mays, J., concurring in part and dissenting in
part).