[Cite as State v. Gabbard,
2021-Ohio-3646.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2020-12-125
: OPINION
- vs - 10/12/2021
:
SHANE M. GABBARD, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case Nos. CR2019-05-0695; CR2019-05-0725
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee.
Michele Temmel, for appellant.
S. POWELL, J.
{¶ 1} Appellant, Shane M. Gabbard, appeals his conviction in the Butler County
Court of Common Pleas after he pled guilty to one count of aggravated possession of
drugs.1 For the reasons outlined below, we affirm in part, reverse in part, and remand for
the limited purpose of resentencing.
1. Gabbard was also convicted of having weapons while under disability and failing to comply with an order
or signal of a police officer. Gabbard, however, has not challenged his conviction for either of those two
offenses. This court's review is therefore limited to Gabbard's conviction for aggravated possession of drugs
only.
Butler CA2020-12-125
{¶ 2} On May 29, 2019, the Butler County Grand Jury returned a multi-count
indictment against Gabbard that included one count of aggravated possession of drugs in
violation of R.C. 2925.11(A), a second-degree felony. According to the bill of particulars,
this charge arose after Gabbard was found in possession of 19.34 grams of
methamphetamine while in Butler County, Ohio on March 28, 2019.
{¶ 3} On September 11, 2019, Gabbard entered a guilty plea to the aggravated
possession of drugs offense as charged in the indictment. Prior to accepting Gabbard's
guilty plea, the trial court advised Gabbard that the maximum penalty he faced for that
offense was a "maximum stated prison term of up to eight years and a maximum fine of up
to $15,000." The trial court also advised Gabbard that "[a] prison term with respect to this
charge is mandatory" and that Gabbard would be sent to prison for "anywhere from two to
eight years; two being the minimum." The trial court further advised Gabbard, in pertinent
part, the following:
As I've already indicated, the Court's required to impose a
mandatory sentence on you with respect to the aggravated
possession of drugs charge. But there is a wide sentencing
range. But if I gave you the maximum sentence, I could give
you eight years on that charge.
{¶ 4} Following these advisements, the trial court asked Gabbard if he understood,
to which Gabbard responded, "Yes, Your Honor."
{¶ 5} On October 15, 2019, the trial court sentenced Gabbard on the aggravated
possession of drugs offense to a mandatory, definite five-year prison term. Prior to issuing
its sentencing decision, the trial court stated that the maximum penalty Gabbard faced for
that offense was a prison term of "up to eight years" and that "[t]he sentencing range is two
to eight years." Gabbard now appeals his conviction, raising two assignments of error for
review.
{¶ 6} Assignment of Error No. 1:
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{¶ 7} MR. GABBARD'S SENTENCE WAS CONTRARY TO LAW.
{¶ 8} In his first assignment of error, Gabbard argues the trial court erred by
sentencing him to a mandatory, definite five-year prison term when the trial court should
have instead sentenced him to an indefinite prison sentence pursuant to the then newly
enacted Reagan Tokes Law, Ohio's indefinite sentencing structure as set forth in R.C.
2967.271. The state concedes, and we agree, that the trial court erred by sentencing
Gabbard to a mandatory, definite five-year prison term when the trial court should have
instead sentenced Gabbard to an indefinite prison sentence under the Reagan Tokes Law.
Gabbard committed the offense of aggravated possession of drugs on March 28, 2019, six
days after the Reagan Tokes Law became effective on March 22, 2019, thereby rendering
the offense a qualifying second-degree felony subject to Ohio's indefinite sentencing
structure. Therefore, because the trial court erred by sentencing Gabbard to a mandatory,
definite term rather than an indefinite prison sentence pursuant to the Reagan Tokes Law,
Gabbard's sentence was contrary to law. Accordingly, Gabbard's first assignment of error
has merit and is sustained.
{¶ 9} Assignment of Error No. 2:
{¶ 10} MR. GABBARD'S PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY MADE.
{¶ 11} In his second assignment of error, Gabbard argues the trial court erred by
finding his guilty plea to aggravated possession of drugs was knowingly, intelligently, and
voluntarily entered given the trial court's failure to comply with Crim.R. 11(C)(2)(a) by not
properly advising him that the maximum penalty he faced included an indefinite sentence
of eight to 12 years in prison in accordance with the Reagan Tokes Law rather than a
maximum, mandatory eight-year prison term.
{¶ 12} "'When a defendant enters a plea in a criminal case, the plea must be made
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knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement
of the plea unconstitutional under both the United States Constitution and the Ohio
Constitution.'" State v. Tipton, 12th Dist. Madison No. CA2020-05-011, 2021-Ohio-1128, ¶
10, quoting State v. Engle,
74 Ohio St.3d 525, 527 (1996). "Crim.R. 11(C) prescribes the
process that a trial court must use before accepting a plea of guilty to a felony." State v.
Bishop,
156 Ohio St.3d 156,
2018-Ohio-5132, ¶ 11. The rule "ensures an adequate record
on review by requiring the trial court to personally inform the defendant of his rights and the
consequences of his plea and determine if the plea is understandingly and voluntarily
made." State v. Stone,
43 Ohio St.2d 163, 168 (1975). This requires the trial court to notify
the defendant of the constitutional rights set forth in Crim.R. 11(C)(2)(c). State v. Oliver,
12th Dist. Clermont No. CA2020-07-041,
2021-Ohio-2543, ¶ 41. This also requires the trial
court to make the required determinations and give the necessary warnings set forth in
Crim.R. 11(C)(2)(a) and (b).
Id.
{¶ 13} Specifically, Crim.R. 11(C)(2) provides that, in felony cases, the trial 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 the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
of the maximum penalty involved, and, if applicable, that the
defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights
to jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant's
favor, and to require the state to prove the defendant's guilt
beyond a reasonable doubt at a trial at which the defendant
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cannot be compelled to testify against himself or herself.
{¶ 14} In State v. Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765, "the Ohio Supreme
Court addressed a trial court's compliance with Crim.R. 11(C) and the method of reviewing
a trial court's plea colloquy to ensure that a defendant's plea is knowingly and voluntarily
entered." State v. Broughton, 12th Dist. Clinton No. CA2020-09-011,
2021-Ohio-2987, ¶
16. As the Ohio Supreme Court explained, aside from two exceptions, "a defendant is not
entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of
the trial court to comply with the provisions of Crim.R. 11(C)."
Dangler at ¶ 16. The first
exception occurs "[w]hen a trial court fails to explain the constitutional rights [set forth in
Crim.R. 11(C)(2)(c)] that a defendant waives by pleading guilty or no contest[.]" Id. at ¶ 14.
When this occurs, "we presume that the plea was entered involuntarily and unknowingly,
and no showing of prejudice is required." Id. The second exception occurs as a result of
"a trial court's complete failure to comply with a portion of Crim.R. 11(C)[.]" (Emphasis sic.)
Id. at ¶ 15. This, too, "eliminates the defendant's burden to show prejudice." Id. Therefore,
as set forth in Dangler, the questions to be answered when reviewing a trial court's plea
colloquy under Crim.R. 11(C) are threefold:
(1) has the trial court complied with the relevant provision of the
rule? (2) if the trial court has not complied fully with the rule, is
the purported failure of a type that excuses a defendant from the
burden of demonstrating prejudice? and (3) if a showing of
prejudice is required, has the defendant met that burden?
Id. at ¶ 17.
{¶ 15} In this case, the only dispute is whether Gabbard's guilty plea was knowingly,
intelligently, and voluntarily entered given the trial court's failure to comply with Crim.R.
11(C)(2)(a) by not properly advising Gabbard that the maximum penalty he faced included
an indefinite sentence of eight to 12 years in prison under the Reagan Tokes Law rather
than a maximum, mandatory eight-year prison term. "The maximum-penalty advisement is
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not a constitutional requirement" set forth in Crim.R. 11(C)(2)(c). Dangler, 2020-Ohio-2765
at ¶ 23. Therefore, because this dispute involves the trial court's failure to comply with the
maximum penalty portion of Crim.R. 11(C)(2)(a), the question becomes whether the trial
court "completely" failed to comply with the maximum penalty portion of that rule when it did
not properly advise Gabbard of the maximum penalty he faced, thereby alleviating the need
for him to demonstrate prejudice before his guilty plea could be vacated. See, e.g., Tipton,
2021-Ohio-2987 at ¶ 15-16 (trial court's failure to properly advise appellant that he was
subject to a mandatory term of five years of postrelease control rather than an optional
three-year postrelease control term was not a complete failure to comply with Crim.R.
11[C][2][a] that would alleviate the need for appellant to demonstrate prejudice before his
plea could be vacated).
{¶ 16} Applying the test set forth in Dangler to the case at bar, we find that although
the trial court failed to comply with Crim.R. 11(C)(2)(a) when it did not properly advise
Gabbard that the maximum penalty he faced included an indefinite sentence of eight to 12
years in prison under the Reagan Tokes Law, the trial court's failure was not the type of
failure that would excuse Gabbard from demonstrating prejudice on appeal.
{¶ 17} "A criminal sentence consists of several distinct components, including a
prison sentence, a fine, postrelease control, and where applicable, certain criminal statutory
registration and notification requirements." State v. Fabian, 12th Dist. Warren No. CA2019-
10-119, 2020-Ohio-3926, ¶ 20. "[A] trial court's total failure to inform a defendant of a
distinct component of the maximum penalty during a plea colloquy constitutes a complete
failure to comply with Crim.R. 11(C)(2)(a), thereby requiring the vacation of the defendant's
guilty or no contest plea."
Id. "By contrast, a trial court's mention of a component of the
maximum penalty during a plea colloquy, albeit incomplete or perhaps inaccurate, does not
constitute a complete failure to comply with Crim.R. 11(C)(2)(a)."
Id. Therefore, because
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the trial court advised Gabbard, although inaccurately, the maximum prison sentence he
faced by pleading guilty to aggravated possession of drugs was a maximum, mandatory
eight-year prison term, the trial court's failure to comply with Crim.R. 11(C)(2)(a) was not a
complete failure that alleviated the need for Gabbard to demonstrate prejudice before his
guilty plea could be vacated.
{¶ 18} Having concluded that neither of the two exceptions to the prejudice
requirement set forth in Dangler apply to the case at bar, we next consider whether Gabbard
has met his burden requiring him to demonstrate that he was prejudiced by the trial court's
failure. See Broughton, 2021-Ohio-2987 at ¶ 22. "The test for prejudice is whether the plea
would have otherwise been made." Dangler,
2020-Ohio-2765, at ¶ 16. "Prejudice must be
established 'on the face of the record.'" Id. at ¶ 24, quoting Hayward v. Summa Health
Sys./Akron City Hosp.,
139 Ohio St.3d 238,
2014-Ohio-1913, ¶ 26. Therefore, for Gabbard
to demonstrate prejudice, Gabbard must show, based on the face of the record, that he
would not have entered a guilty plea to aggravated possession of drugs if he had been
properly advised that the maximum penalty he faced included an indefinite sentence of eight
to 12 years in prison under the Reagan Tokes Law rather than a maximum, mandatory
eight- year prison term.
{¶ 19} In this case, however, Gabbard does nothing more than claim that he was
prejudiced by the mere fact that the trial court did not properly advise him of the maximum
prison sentence he faced prior to entering his guilty plea. But, if that was all it took to
demonstrate prejudice, the prejudice requirement would all but be eliminated to the point
where it was essentially nonexistent. See Dangler at ¶ 24 (rejecting appellant's claim that
appellant demonstrated prejudice based solely on the fact that he was challenging his plea
on appeal as that would "be tantamount to eliminating the prejudice requirement
altogether"). The prejudice requirement is there for a reason; to effectuate a return to the
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"traditional rule" requiring a defendant to establish prejudicial error before the defendant's
conviction may be reversed on appeal. Id. at ¶ 13. Therefore, without any evidence
indicating Gabbard's guilty plea would not have been made but for the trial court failing to
properly advise Gabbard of the maximum prison sentence he faced under the Reagan
Tokes Law, Gabbard has not demonstrated the prejudice necessary to vacate his guilty
plea to aggravated possession of drugs.
{¶ 20} In so holding, we note that just as it did for Gabbard's first assignment of error
discussed above, the state also conceded error as it relates to Gabbard's second
assignment of error discussed herein. This court, however, is not required to accept an
improper concession offered by the state. See, e.g., State v. Rarden, 12th Dist. Butler No.
CA2018-03-044, 2018-Ohio-4487, ¶ 13 (rejecting the state's concession of error regarding
appellant's claim the trial court erred in its imposition of postrelease control and refusing the
state's request for this court to remand the issue of postrelease control for a limited
resentencing hearing); State v. Gresham, 8th Dist. Cuyahoga No. 95240,
2011-Ohio-2519,
¶ 17 (rejecting the state's concession of error regarding appellant's claim the trial court erred
by sentencing him to an additional five years in prison after appellant was found guilty of
involuntary manslaughter after having discharged a firearm from a motor vehicle).
Therefore, despite the state's concession, because we find no merit to any of the arguments
raised by Gabbard in support of his second assignment of error, Gabbard's second
assignment of error lacks merit and is overruled.
{¶ 21} Judgment affirmed in part, reversed in part, and remanded for the limited
purpose of resentencing.
M. POWELL, P.J., and BYRNE, J., concur
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