[Cite as State v. Lear,
2023-Ohio-3442.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220485
TRIAL NO. B-2105646
Plaintiff-Appellee, :
O P I N I O N.
vs. :
MARVIN LEAR, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 27, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Alana Van Gundy, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Presiding Judge.
{¶1} Defendant-appellant Marvin Lear appeals his convictions, following
guilty pleas, for having a weapon while under a disability and aggravated trafficking in
drugs. In a single assignment of error, he argues that the trial court failed to comply
with Crim.R. 11 because it did not notify him that he was pleading to a charge that
carried a mandatory prison term, and that consequently his pleas were not entered
knowingly, intelligently, and voluntarily. Because Lear entered into agreed pleas with
a recommended aggregate sentence, and because the trial court imposed the sentence
recommended by Lear and the state, we find his argument to be without merit. We
hold that Lear entered his pleas knowingly, intelligently, and voluntarily, and we
affirm the trial court’s judgment.
I. Lear Pleads Guilty and is Sentenced
{¶2} Lear was indicted for eight felony offenses in November of 2021. The
offenses included in the indictment were having a weapon while under a disability, a
third-degree felony; aggravated trafficking in drugs, a second-degree felony;
aggravated possession of cocaine, a second-degree felony; trafficking in cocaine, a
second-degree felony; possession of cocaine, a third-degree felony; trafficking in
marijuana, a fifth-degree felony; and two counts of aggravated trafficking in drugs,
both fourth-degree felonies.
{¶3} In August of 2022, Lear pled guilty to having a weapon while under a
disability, aggravated trafficking in drugs as a second-degree felony, and trafficking in
cocaine. The plea agreement included a jointly-recommended aggregate sentence of
five years of imprisonment. After accepting Lear’s guilty pleas, the trial court imposed
the recommended sentence. This sentence included 12 months of imprisonment for
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OHIO FIRST DISTRICT COURT OF APPEALS
the offense of having a weapon while under a disability, to be served concurrently with
a sentence of five years of imprisonment imposed for the offense of aggravated
trafficking in drugs. The offense of trafficking in cocaine was merged at sentencing,
resulting in an aggregate sentence of five years’ imprisonment.
{¶4} Lear now appeals.
II. Crim.R. 11 Analysis
{¶5} In his sole assignment of error, Lear argues that the trial court violated
Crim.R. 11 because it failed to notify him that he was pleading to a charge with a
mandatory prison term, and that consequently he did not make knowing, intelligent,
and voluntary pleas.
{¶6} “Before accepting a guilty or no-contest plea, the court must make the
determinations and give the warnings required by Crim. R. 11(C)(2)(a) and (b) and
notify the defendant of the constitutional rights listed in Crim.R. 11(C)(2)(c).” State v.
Veney, 120 Ohio St.3d 176,
2008-Ohio-5200,
897 N.E.2d 621, ¶ 13. A defendant’s
decision to enter a plea must be knowing, intelligent, and voluntary. State v. Dangler,
162 Ohio St.3d 1,
2020-Ohio-2765,
164 N.E.3d 286, ¶ 10. Crim.R. 11(C)(2) provides
that:
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 either in-person or by remote
contemporaneous video in conformity with Crim.R. 43(A) 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
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OHIO FIRST DISTRICT COURT OF APPEALS
involved, and, if applicable, that the defendant is not eligible for
probation or for the imposition of community control sanctions at the
sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and
sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury
trial, to confront witnesses against him or her, to have compulsory
process for obtaining witnesses in the defendant’s favor, and to require
the state to prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify against
himself or herself.
{¶7} In Dangler, the Supreme Court of Ohio expressed frustration with its
prior caselaw that had “muddled” the analysis used to determine whether a trial court
had complied with the requirements of Crim.R. 11(C)(2). Dangler at ¶ 17. It recognized
that:
The court has, in some instances, said that “partial” compliance is
sufficient absent a showing of prejudice from the failure to
“substantially” comply. Elsewhere, the court has indicated that when a
trial court has “substantially” complied, the defendant must show
prejudice from the failure to “strictly” or “literally” adhere to the rule.
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OHIO FIRST DISTRICT COURT OF APPEALS
But those formulations have served only to unduly complicate what
should be a fairly straightforward inquiry.
(Internal citations omitted.) Id.
{¶8} The Dangler court held that except where a trial court fails to explain
the constitutional rights in Crim.R. 11(C)(2)(c) or where a trial court completely fails
to comply with a portion of Crim.R. 11(C), “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).” Id. at ¶ 14-16. Prejudice is established by
showing that the plea would not have otherwise been made. Id. at ¶ 16. It is not
necessary for a defendant to establish prejudice in the two exceptions previously
noted, specifically where the constitutional rights in Crim.R. 11(C)(2)(c) are not
explained and where there has a been a complete failure to comply with a portion of
Crim.R. 11(C). Id. at ¶ 14 and 15.
A. Failure to Inform that Sentence was Mandatory
{¶9} Lear contends that the trial court failed to comply with Crim.R. 11(C)
because it failed to notify him that he was pleading to a charge (aggravated trafficking
in drugs) that required a mandatory prison term and that he was ineligible for
probation. This argument implicates Crim.R. 11(C)(2)(a).
{¶10} At the plea hearing, Lear and the state informed the court that they were
requesting the court impose a recommended sentence of five years in the Ohio
Department of Rehabilitation and Correction.
{¶11} During the plea colloquy, the trial court discussed with Lear the
maximum sentence that he faced for each offense. With respect to the offense of having
a weapon while under a disability, the court informed Lear that he faced a potential
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OHIO FIRST DISTRICT COURT OF APPEALS
sentence of nine to 36 months’ imprisonment and a maximum fine of $10,000. The
court additionally told Lear that it could place him on community control for up to five
years instead of sending him to prison. With respect to the offenses of aggravated
trafficking in drugs and trafficking in cocaine, the court informed Lear that he faced
for each offense a potential sentence of two to eight years’ imprisonment and a
maximum fine of $15,000. Notably, it did not tell Lear that he was ineligible for
probation or for community control for the offense of aggravated trafficking in drugs.
The court also discussed the potential periods of postrelease control that Lear faced
for each offense.
{¶12} Lear’s assertion that he faced a mandatory prison term for the offense
of aggravated trafficking in drugs is correct. The indictment alleged with respect to
this offense that he “knowingly prepared for shipment, shipped, transported,
delivered, prepared for distribution, or distributed a Schedule II controlled substance,
to wit: METHAMPHETAMINE, … in an amount that equaled or exceeded 5 times
the bulk amount was but was less than 50 times the bulk amount.” R.C.
2925.03(C)(1)(d) provides that “if the amount of the drug involved equals or exceeds
five times the bulk amount but is less than fifty times the bulk amount, aggravated
trafficking in drugs is a felony of the second degree, and the court shall impose as a
mandatory prison term a second degree felony mandatory prison term.”
{¶13} “A defendant who is required to serve a mandatory prison term is
ineligible for probation or community control.” State v. Foster, 2018-Ohio-4006,
121
N.E.3d 76, ¶ 17 (1st Dist.), citing R.C. 2929.16(A). Pursuant to Crim.R. 11(C)(2)(a),
where a defendant is not eligible for probation or for the imposition of community-
control sanctions, the trial court must ensure that the defendant is aware of such
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OHIO FIRST DISTRICT COURT OF APPEALS
ineligibility prior to accepting the defendant’s plea. Id. Therefore, when applicable, the
trial court must inform a defendant that the mandatory nature of the sentence faced
rendered the defendant ineligible for probation or community control. Id.; State v.
Kinney,
2018-Ohio-404,
105 N.E.3d 603, ¶ 24 (1st Dist.); State v. Grove, 5th Dist.
Tuscarawas No. 2018AP100033,
2019-Ohio-1627, ¶ 13 (“a trial court must, before
accepting the plea, determine the defendant’s understanding that the defendant is
subject to a mandatory sentence and that the mandatory sentence renders the
defendant ineligible for probation or community control sanctions”).
{¶14} The trial court in this case failed to inform Lear that he faced a
mandatory sentence for the offense of aggravated trafficking in drugs and that he was
ineligible to be placed on probation or community control. Following our review of the
record, however, we find that Lear suffered no prejudice from the trial court’s
omission. Lear and the state asked the trial court to impose a recommended sentence
of five years’ imprisonment. Lear thus had no expectation that he would be placed on
community control instead of serving a prison term. Additionally, the entry
withdrawing his pleas of not guilty and entering guilty pleas, which was signed by Lear,
indicated that Lear faced a mandatory prison term for the offense of aggravated
trafficking in drugs. Under these circumstances, we cannot hold that Lear would not
have entered the pleas but for the trial court’s failure to inform him that he faced a
mandatory sentence.
B. Failure to Impose a Sentence in Accordance with Reagan Tokes
{¶15} Lear also raises in this assignment of error an argument concerning the
trial court’s failure to comply with the Reagan Tokes Law.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Lear argues in his issue presented for review that “[a]dditionally, the
Court is required to include indefinite sentencing per Reagan Tokes. The Court failed
to notify him there was a mandatory term, place that in the sentencing entry, or
provide an indefinite sentence per Reagan Tokes.” In his appellate brief, he asserts
that “Mr. Lear was sentenced to a definite sentence for an F2 offense, thus violating
Reagan Tokes.”
{¶17} Lear’s argument seemingly attacks the sentence imposed, rather than
the trial court’s compliance with Crim.R. 11. Lear, however, has raised no assignment
of error challenging his sentence. The role of an appellate court is to “rule[] on
assignments of error, not mere arguments.” Mun. Tax Invest. LLC v. Northup
Reinhardt Corp., 10th Dist. Franklin No. 19-AP-26, 2019-Ohio-4867, ¶ 24, quoting
Huntington Natl. Bank v. Burda, 10th Dist. Franklin No. 08AP-658,
2009-Ohio-1752,
¶ 21. This role is clearly set forth in App.R. 12(A)(1)(b), which provides that a court of
appeals shall “[d]etermine the appeal on its merits on the assignments of error set
forth in the briefs.” Because Lear has raised no assignment of error challenging his
sentence, we decline to consider his Reagan Tokes argument so far as it asserts that
the trial court erred in the imposition of sentence. See Mun. Tax Invest.
LLC at ¶ 24;
Kellard v. Cincinnati,
2021-Ohio-1420,
171 N.E.3d 868, ¶ 43 (1st Dist.), fn. 2; App.R.
12(A)(1)(b).
{¶18} Insofar as Lear’s argument can be interpreted as a contention that the
trial court failed to comply with Crim.R. 11 by failing to inform him that he faced an
indefinite sentence under the Reagan Tokes Law, we consider his argument. When a
defendant pleads to an offense that is subject to indefinite sentencing under the
Reagan Tokes Law, the trial court must, when informing the defendant of the
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OHIO FIRST DISTRICT COURT OF APPEALS
maximum sentence faced, inform the defendant that the maximum penalty includes
an indefinite sentence. State v. Lee, 1st Dist. Hamilton No. C-210001, 2021-Ohio-3918,
¶ 11-13; State v. Tackett, 8th Dist. Cuyahoga No. 111998,
2023-Ohio-2298, ¶ 20; State
v. Gabbard, 12th Dist. Butler No. CA2020-12-125,
2021-Ohio-3646, ¶ 16.
{¶19} Lear is correct that the offenses of aggravated trafficking in drugs and
trafficking in cocaine were second-degree felonies for which the trial court was
required to impose an indefinite sentence under the Reagan Tokes Law. See R.C.
2929.14(A)(2)(a). He is also correct in his assertion that the trial court failed to inform
Lear that he faced an indefinite sentence for these offenses.
{¶20} However, we hold that Lear suffered no prejudice from the trial court’s
failure to inform him that the maximum sentence he faced included an indefinite
sentence. This is not a situation in which the trial court imposed an indefinite sentence
after failing to inform a defendant that an indefinite sentence was required to be
imposed. See Lee at ¶ 12; State v. Fikes, 1st Dist. Hamilton No. C-200221, 2021-Ohio-
2597, ¶ 11-13. Rather, the trial court imposed the recommended aggregate sentence of
five years’ imprisonment that was requested by Lear and the state. Under these
circumstances where the trial court in fact imposed the recommended sentence, we
cannot find that Lear would not have entered the pleas but for the trial court’s failure
to notify him of the maximum sentence faced under the Reagan Tokes Law.
{¶21} Lear’s assignment of error is overruled.
III. Conclusion
{¶22} Lear entered his pleas knowingly, intelligently, and voluntarily. The
judgment of the trial court is accordingly affirmed.
Judgment affirmed.
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OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS and BOCK, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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