State v. Hatchell

[Cite as State v. Hatchell, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellee,                 :
                                                              No. 112331
                 v.                                  :

OCTAVIA HATCHELL,                                    :

                 Defendant-Appellant.                :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED IN PART, VACATED IN PART,
                           REVERSED IN PART, AND REMANDED

                 RELEASED AND JOURNALIZED: October 12, 2023


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                   Case Nos. CR-21-660777-A and CR-22-668870-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Halie Turigliatti, Assistant Prosecuting
                 Attorney, for appellee.

                 Scott J. Friedman, for appellant.


MARY EILEEN KILBANE, P.J.:

                   Defendant-appellant Octavia Hatchell (“Hatchell”) appeals his

sentencing for two criminal cases. For the following reasons, we affirm in part,
vacate in part, reverse in part, and remand for further proceedings consistent with

this opinion.

Factual and Procedural History

                On June 29, 2021, in Cuyahoga C.P. No. CR-21-660777-A, a Cuyahoga

County Grand Jury indicted Hatchell on Count 1, kidnapping in violation of R.C.

2905.01(A)(3); Count 2, burglary in violation of R.C. 2911.12(A)(1); Count 3,

aggravated menacing in violation of R.C. 2903.21(A); Count 4, assault in violation

of R.C. 2903.13(A); Count 5, improperly discharging into a habitation with one- and

three-year firearm specifications and a five-year drive-by shooting firearm

specification; Count 6, discharge of a firearm on or near prohibited premises in

violation of R.C. 2923.162(A)(3), with one- and three-year firearm specifications;

and Count 7, having weapons while under disability in violation of R.C.

2923.13(A)(2). The charges arose from two separate incidents. The first incident

occurred on June 6, 2021, when Hatchell allegedly abducted and physically

assaulted T.B., a woman with whom Hatchell had a prior intimate relationship, and

the second incident occurred on June 8, 2021, when Hatchell allegedly shot a

firearm into T.B.’s home. On July 14, 2021, Hatchell pleaded not guilty to the

indictment.

                On March 28, 2022, in Cuyahoga C.P. No. CR-21-668870-A, a

Cuyahoga County Grand Jury indicted Hatchell on Count 1, attempted murder in

violation of R.C. 2923.02(A); Count 2, felonious assault in violation of R.C.

2903.11(A)(1); Count 3, felonious assault in violation of R.C. 2903.11(A)(2); and
Count 4, having weapons while under disability in violation of R.C. 2923.13(A)(2).

Counts 1, 2, and 3 also charged Hatchell with one- and three-year firearm

specifications and a five-year drive-by shooting firearm specification. The charges

arose from an incident on March 17, 2022, when Hatchell allegedly shot into the

vehicle of T.W., a woman with whom Hatchell had a prior intimate relationship,

causing her injuries. Upon the arrival of the police, T.W. allegedly identified

Hatchell as the shooter. Ballistic testing from the bullets recovered from the

shootings of T.W.’s vehicle and T.B.’s home allegedly showed the bullets came from

the same firearm. On March 31, 2022, Hatchell pleaded not guilty to the charges.

              On May 16, 2022, Hatchell’s defense counsel, who represented

Hatchell in both cases, made an oral motion to withdraw; the trial court granted the

motion. On the same date, the trial court assigned new defense counsel to represent

Hatchell.

              On December 5, 2022, the trial court conducted a plea hearing. At

the hearing, Hatchell stated that he was not under the influence of any medication,

drugs, or alcohol that impacted his understanding of the proceedings. Hatchell

denied anyone threatened or promised him a certain outcome upon his entering a

plea. Hatchell confirmed he had adequate time to consult with his attorney, and he

was satisfied with his representation. Hatchell also stated that he understood the

allegations contained in each indictment; that a plea of guilty was a complete

admission of his guilt; and that the court could proceed to sentencing upon

submission of his plea. The trial court provided Hatchell with the statutory Reagan
Tokes advisements. The trial court outlined minimum and maximum sentences

associated with the charges, including the mandatory prison sentence related to the

one-year firearm specification, and advised Hatchell on postrelease control and

court costs. The trial court incorrectly stated the potential maximum sentence on

the burglary offense was 36 months rather than 60 months.1 The trial court

personally addressed Hatchell and advised him of his constitutional rights pursuant

to Crim.R. 11. The trial court stated Hatchell was making a knowing, intelligent, and

voluntary decision to withdraw his prior pleas.

               In regard to Cuyahoga C.P. No. CR-21-660777, Hatchell pleaded

guilty to amended Count 1, abduction, a felony of the third degree in violation of R.C.

2905.02(A)(1); amended Count 2, burglary, a felony of the third degree in violation

of R.C. 2911.12(A)(3); and amended Count 5, improperly discharging into a

habitation, a felony of the second degree in violation of R.C. 2923.161(A)(1). The

trial court nolled Counts 3, 4, 6, and 7 and Count 5’s firearm specifications. In

Cuyahoga C.P. No. CR-21-668870, Hatchell pleaded guilty to amended Count 2,

felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(1)

with a three-year firearm specification and Count 4, having weapons while under

disability, a felony of the third degree in violation of R.C. 2923.13(A)(2). The court

nolled Counts 1 and 3. The trial court referred Hatchell to the county probation

department and court psychiatric clinic.




      1 See R.C. 2929.14(A)(3)(a).
              On December 27, 2022, Hatchell filed a pro se motion to withdraw

his guilty pleas. On January 9, 2023, the trial court conducted a hearing where it

initially heard from Hatchell and his counsel regarding Hatchell’s motion to

withdraw his guilty pleas. The trial court denied the motion and proceeded to

sentencing.

              The trial court sentenced Hatchell in Cuyahoga C.P. No. CR-21-

660777 to 48 months on amended Count 1, abduction, and 48 months on amended

Count 2, burglary. Amended Count 5, improperly discharging into a habitation, was

subject to the Reagan Tokes Law, and the trial court imposed a total aggregate

sentence of seven to ten and one-half years on that count. The sentences on Counts

1 and 2 were to run concurrent to each other and concurrent to the sentence imposed

in Cuyahoga C.P. No. CR-21-668870-A.

              In Cuyahoga C.P. No. CR-21-668870-A, on Count 2, felonious assault,

the trial court sentenced Hatchell to three years on the firearm specification to be

served prior to and consecutive to the underlying offense. On Count 2’s underlying

offense that was subject to the Reagan Tokes Law, the trial court imposed a sentence

of seven years to ten and one-half years. On Count 4, having weapons while under

disability, the trial court sentenced Hatchell to 48 months. The sentences on the

two counts were to run concurrent to each other and concurrent to the sentence

imposed in Cuyahoga C.P. No. CR-21-660777-A. The trial court also imposed

postrelease control.
              During the sentencing hearing, the trial court provided some, but not

all, of the Reagan Tokes advisements required under R.C. 2929.19(B)(2)(c)(iv).

              On January 17, 2023, appellant filed a timely appeal, presenting these

assignments of error for our review:

      Assignment of Error 1: The appellant’s sentence was contrary to law
      and should be reversed because the trial court failed to provide all
      advisements required by R.C. 2929.19(B)(2)(c).

      Assignment of Error 2: As amended by the Reagan Tokes Act, the
      Revised Code’s sentences for first- and second-degree qualifying
      felonies violate the Constitutions of the United States and State of Ohio.

      Assignment of Error 3: The trial court abused its discretion when it
      denied the appellant’s motion to withdraw his guilty plea.

      Assignment of Error 4: The trial court imposed unlawful sentences for
      third-degree felonies.

              On September 5, 2023, this court sua sponte ordered the parties to

provide supplemental briefing on whether the trial court afforded Hatchell a plea

hearing in compliance with Crim.R. 11 so that his plea was made knowingly,

intelligently, and voluntarily. The parties filed supplemental briefing that raised an

additional assignment of error:

      Assignment of Error 5: The appellant’s plea must be vacated because
      the trial court failed to substantially comply with Crim.R. 11.

Legal Analysis

Reagan Tokes Statutory Advisements

              In his first assignment of error, Hatchell argues that his sentences

were contrary to law and subject to reversal because the trial court failed to provide
the Reagan Tokes advisements specified in R.C. 2929.19(B)(2)(c)(iv). The state

argues that the trial court substantially complied with the statutory advisements or,

alternatively, the proper remedy is remand for the sole purpose of providing the

required notifications.

              When a trial court imposes a non-life felony indefinite sentence

pursuant to the Reagan Tokes Law, R.C. 2929.19(B)(2)(c) requires that the court

notify the offender of the following advisements:

      (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.

               The trial court must provide these notices at the time of sentencing.

State v. Gates, 8th Dist. Cuyahoga No. 110616, 

. “A trial court

is not required to use the precise wording of the statute but must convey the

information required by these notice provisions.” State v. Bradley, 8th Dist.

Cuyahoga No. 110882, 

.

               Although the trial court informed Hatchell of the statutory

advisements at the plea hearing, we must look to the advisements provided at the

sentencing hearing. A review of the sentencing hearing transcript demonstrates that

the trial court did not notify Hatchell of all the required advisements under R.C.

2929.19(B)(2)(c). The state concedes in its appellee brief that the trial court did not

specifically comply with the R.C. 2929.19(B)(2)(c) advisement requirements.

               This court has held that a failure to fully notify an offender of the

Reagan Tokes statutory advisements does not undermine the conviction. State v.

Laws, 8th Dist. Cuyahoga No. 111591, 

. Absent the full statutory

advisements, the proper remedy is to remand the case for the limited purpose of

providing the offender with the required R.C. 2929.19(B)(2)(c) notifications. Gates

at ¶ 27. Thus, we sustain Hatchell’s first assignment of error and remand so that the

trial court can provide Hatchell with the required Reagan Tokes statutory

advisements.
Reagan Tokes Law

              In his second assignment of error, Hatchell argues that the Reagan

Tokes Law, enacted under S.B. 201 and R.C. 2901.011, is unconstitutional and,

therefore, the sentences imposed under that law are invalid. Specifically, Hatchell

argues that his indefinite sentences under the Reagan Tokes Law violate his

constitutional right to a jury trial, the separation-of-powers doctrine, and his due

process rights.

              In State v. Hacker, Slip Opinion No. 

, the Ohio

Supreme Court recently upheld the constitutionality of the Reagan Tokes Law,

thereby overruling Hatchell’s arguments.

              Thus, we overrule Hatchell’s second assignment of error.

Presentence Motion to Withdraw Guilty Plea

              In his third assignment of error, Hatchell argues that the trial court

abused its discretion when it denied his presentence motion to withdraw his guilty

plea. Specifically, Hatchell argues that the trial court should have granted his

motion because he presented the motion prior to sentencing and courts should

freely and liberally grant such motions pursuant to State v. Xie, 

, 

 (1992).

              “We review a trial court’s ruling on a motion to withdraw a guilty plea

for abuse of discretion.” State v. Hines, 8th Dist. Cuyahoga No. 108326, 2020-Ohio-

663, ¶ 7, citing 

. The term abuse of discretion “implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 

, 

 (1983). An abuse of discretion occurs when a

court exercises its judgment in an unwarranted way regarding a matter over which

it has discretionary authority. Johnson v. Abdullah, 

, 2021-Ohio-

3304, 

.

                 A motion to withdraw a guilty plea is governed by Crim.R. 32.1, which

reads:

         A motion to withdraw a plea of guilty or no contest may be made only
         before sentence is imposed; but to correct manifest injustice the court
         after sentence may set aside the judgment of conviction and permit the
         defendant to withdraw his or her plea.

While a presentence motion to withdraw a guilty plea “should be freely and liberally

granted,” a defendant does not have an absolute right to withdraw a plea prior to

sentencing. 

. “[I]t is within the sound discretion of the trial court to

determine what circumstances justify granting such a motion.” State v. Westley,

8th Dist. Cuyahoga No. 97650, 

, citing 

. Prior to ruling

on a presentence motion to withdraw a plea, the trial court must conduct a hearing

to determine whether there is a reasonable and legitimate basis for withdrawal of

the plea. Xie at paragraph one of the syllabus.

                 This court has held that a trial court’s denial of a motion to withdraw

a guilty plea was not an abuse of discretion where the record demonstrates

         “(1) the accused is represented by competent counsel;
         (2) the accused was afforded a full hearing, pursuant to Crim.R. 11,
         before he entered the plea;
         (3) after the motion to withdraw is filed, the accused is given a complete
         and impartial hearing on the motion; and
        (4) the court gives full and fair consideration to the plea withdrawal
        request.”

State v. Griffin, 8th Dist. Cuyahoga No. 112204, 

, ¶ 15, quoting State

v. Read-Bates, 8th Dist. Cuyahoga Nos. 108848, 108849, 108850, and 108851,

, citing State v. Peterseim, 

, 

 (8th Dist.1980).

                Trial courts have also considered this non-exhaustive list of

additional factors in its determination of a presentence motion to withdraw a guilty

plea:

        “(5) whether the motion was made timely; (6) whether the motion
        states specific reasons for withdrawal; (7) whether the defendant
        understood the nature of the charges and the possible penalties; (8)
        whether the defendant was perhaps not guilty or had a complete
        defense; and (9) whether the state would suffer prejudice if the
        defendant is allowed to withdraw the plea.”

(Citations omitted.) State v. Balducci, 8th Dist. Cuyahoga No. 109262, 2020-

Ohio-5334, ¶ 30, quoting Hines, 8th Dist. Cuyahoga No. 108326, 2020-Ohio-

663, at ¶ 10.

                On December 27, 2022, while being represented by counsel, Hatchell

filed a pro se presentence motion to withdraw his guilty plea. In the motion,

Hatchell argued he wanted to withdraw his guilty plea because it was entered under

duress and to avoid any accidental or intentional spoliation of evidence.

                It is well settled that a criminal defendant has the right to counsel or

the right to act pro se; however, a defendant does not have the right to both

simultaneously or “hybrid representation.” State v. Mongo, 8th Dist. Cuyahoga No.
100926, 

, ¶ 13, citing State v. Martin, 

, 2004-

Ohio-5471, 

, paragraph one of the syllabus; State v. Thompson, 

, 

 (1987). The right to counsel and the right to act

pro se “are independent of each other and may not be asserted simultaneously.”

Martin at paragraph one of the syllabus. Where a defendant, who is represented by

counsel, files pro se motions, “and there is no indication that defense counsel joins

in those motions or indicates a need for the relief sought by the defendant pro se,”

the pro se motions are not proper and the trial court may strike them from the

record. State v. Davis, 10th Dist. Franklin No. 05AP-193, 

.

               Here, Hatchell filed a motion to withdraw his guilty plea prior to

sentencing. Defense counsel did not file a formal motion on Hatchell’s behalf and

there was no indication that counsel joined Hatchell in his motion or believed there

were grounds for Hatchell to withdraw his guilty plea. On this basis alone, the trial

court was entitled to strike Hatchell’s pro se motion without further consideration.

However, the trial court determined it was appropriate to conduct a complete and

impartial hearing and to give full and fair consideration to Hatchell’s presentence

motion to withdraw his guilty plea.

               Hatchell argued to the trial court that he sought to withdraw his guilty

plea that was entered under duress. Hatchell argued that he is not a violent

individual, a flight risk, nor a threat to society and he had hoped by entering a guilty

plea that he would be released from jail. Hatchell stated his interest in visiting with

his son who was in town prior to an overseas deployment and seeing his mother after
the recent death of her two sisters. Hatchell also argued that while he understood

the nature of the charges against him, he had not been provided access to all the

evidence the state had against him. Hatchell argued the evidence did not support

the charges against him.

                Defense counsel conceded several pieces of evidence could not be

reviewed by Hatchell because the documents were restricted to viewing by counsel

but stated he met with Hatchell numerous times; he attempted to answer all

questions posed by his client; and he “shared with Hatchell each and every thing

[he] had” on the case. Tr. 37. Defense counsel stated he negotiated a favorable plea

agreement on Hatchell’s behalf. Defense counsel acknowledged that he and his

client disagreed about the characterization of some of the evidence, but he felt

Hatchell understood the evidence and the related charges.

                A review of the record demonstrates that Hatchell was represented by

extremely experienced counsel when he entered his plea, and Hatchell has not

presented any counter arguments that he was not represented by competent

counsel. In contrast, Hatchell stated during the hearing on his motion to withdraw

that “I know and I heard [that my attorney] is a great attorney.” Tr. 28. The trial

court provided Hatchell with a full Crim.R. 11 hearing prior to Hatchell entering his

plea.2 Hatchell acknowledged that he understood the nature of the charges and the

possible penalties. The record does not support a finding that Hatchell was not



       2 The plea hearing’s compliance with Crim.R. 11 is addressed and confirmed in this

court’s discussion of Hatchell’s fifth assignment of error.
guilty or had a complete defense to the charges. The trial court provided a complete

and impartial hearing on Hatchell’s motion to withdraw his guilty plea and full and

fair consideration of the plea-withdrawal request.

              Hatchell’s motion to withdraw his guilty plea had no substantive basis

but indicated he had a change of heart. This court has held a change of heart

regarding a guilty plea and the possible sentence does not justify withdrawal of a

guilty plea. State v. Peak, 8th Dist. Cuyahoga No. 107479, 

,

citing State v. Norman, 8th Dist. Cuyahoga No. 105218, 

.

              We find that the trial court did not abuse its discretion when it denied

Hatchell’s presentence motion to withdraw his guilty plea. Thus, we overrule

Hatchell’s third assignment of error.

Unlawful Sentences

              In his fourth assignment of error, Hatchell argues that the trial court’s

48-month sentences on the abduction, burglary, and having weapons while under

disability convictions — felonies of the third degree — were contrary to law.

Specifically, Hatchell contends that under R.C. 2929.14(A)(3)(b), convictions of

third-degree felonies carry maximum potential prison terms of 36 months. Thus,

the trial court’s imposition of 48-month sentences on these felonies was contrary to

law. The state concedes the trial court erroneously sentenced Hatchell to 48 months

on the abduction and having weapons while under disability convictions, pursuant

to R.C. 2929.14(A)(3)(b). The state does not concede that the burglary sentence was

contrary to law. We find the trial court’s sentences on the abduction and having
weapons while under disability convictions are contrary to law, but the burglary

sentence complied with R.C. 2929.14(A)(3)(a).

                R.C. 2929.14(A)(3) addresses basic prison terms for felonies of the

third degree:

      (a) For a felony of the third degree that is a violation of section 2903.06,
      2903.08, 2907.03, 2907.04, 2907.05, 2907.321, 2907.322, 2907.323,
      or 3795.04 of the Revised Code, that is a violation of division (A) of
      section 4511.19 of the Revised Code if the offender previously has been
      convicted of or pleaded guilty to a violation of division (A) of that
      section that was a felony, or that is a violation of section 2911.02 or
      2911.12 of the Revised Code if the offender previously has been
      convicted of or pleaded guilty in two or more separate proceedings to
      two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12
      of the Revised Code, the prison term shall be a definite term of twelve,
      eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fiftyfour, or sixty months.

      (b) For a felony of the third degree that is not an offense for which
      division (A)(3)(a) of this section applies, the prison term shall be a
      definite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six
      months.

                When sentencing an offender on a felony of the third degree, the trial

court assesses R.C. 2929.14(A)(3) and determines whether subsection (a) or

subsection (b) applies to the convictions. The potential prison term varies between

the two subsections. Qualifying offenses under subsection (A)(3)(a) are subject to a

maximum definite term of 60 months whereas qualifying offenses under subsection

(A)(3)(b) are subject to a definite term no greater than 36 months.

                A trial court must sentence an offender pursuant to subsection

(A)(3)(a) when the offender pleads guilty to a violation of R.C. 2911.12 and the

offender “previously has been convicted of or pleaded guilty in two or more separate
proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12

of the Revised Code … .” R.C. 2929.14(A)(3)(a). In the instant matter, Hatchell

pleaded guilty to burglary in violation of R.C. 2911.12(A)(3) and, therefore, the trial

court had to look to his prior convictions or guilty pleas to determine if his burglary

conviction was a qualifying offense under R.C. 2929.14(A)(3)(a).

               In Cuyahoga C.P. No. CR-96-343125, Hatchell previously pleaded

guilty to burglary in violation of R.C. 2911.12, and in Cuyahoga C.P. No. CR-12-

561888, Hatchell previously pleaded guilty to attempted robbery in violation of R.C.

2923.02/2911.02(A)(3). Hatchell’s prior guilty pleas in two separate proceedings to

violations of R.C. 2911.12 and 2911.02, respectively, required Hatchell’s current

burglary offense to be subject to sentencing under R.C. 2929.14(A)(3)(a), with a

maximum potential sentence of 60 months.3 Therefore, the court’s imposed 48-

month sentence on the burglary conviction was not contrary to law.

               Hatchell’s convictions on abduction in violation of R.C. 2905.02 and

having weapons while under disability in violation of R.C. 2929.13(A)(2) were

qualifying offenses under R.C. 2929.14(A)(3)(b) and were subject to a maximum

sentence of 36 months. Thus, the trial court’s sentences of 48 months on these two

offenses were contrary to law.

               Because the sentences for abduction and having weapons while under

disability were contrary to law, we sustain Hatchell’s fourth assignment of error as


      3 The trial court’s misstatement during the plea hearing that the maximum sentence

associated with the burglary conviction was 36 months will be discussed under Hatchell’s
fifth assignment of error.
to those convictions, reverse the sentences on those convictions, and remand the

case so that the trial court can resentence Hatchell on those two offenses. See State

v. Thompson, 8th Dist. Cuyahoga No. 110785, 

.

Crim.R. 11 Plea Colloquy

              In his fifth assignment of error, Hatchell argues that the trial court

failed to comply with Crim.R. 11 when the court incorrectly stated during the plea

hearing that the maximum sentence associated with his burglary conviction was 36

months. Pursuant to R.C. 2929.14(A)(3)(a), the maximum potential sentence on the

burglary conviction was actually 60 months. Due to the court’s misstatement,

Hatchell argues that his plea should be vacated. The state argues that Hatchell was

not prejudiced by the court’s misstatement and, therefore, the trial court’s

misstatements amount to harmless error.

              When a criminal defendant seeks on appeal a reversal of his

conviction, the general rule is that the defendant must demonstrate (1) an error in

the proceedings and (2) the error caused prejudice to the defendant. State v.

Dangler, 

, 

, 

. In the criminal-

plea context, Ohio courts recognize two exceptions to that general rule where a

defendant is entitled to have his or her plea vacated without a showing of prejudice.

Id. at ¶ 14. The first exception occurs when “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. Under such circumstances, it is

presumed that the defendant entered a plea involuntarily and unknowingly, and no
showing of prejudice to the defendant is required. The second exception occurs if

there is a complete failure by the trial court to comply with a portion of Crim.R.

11(C)(2)(a) — the nonconstitutional aspects of the plea colloquy. Id. at ¶ 15, citing

State v. Sarkozy, 

, 

, 

. When

a trial court completely fails to comply with Crim.R. 11(C)(2)(a), the defendant need

not show prejudice. 

               Aside from these two exceptions, a defendant must affirmatively

show prejudice to invalidate a plea. Id. at ¶ 14, citing State v. Veney, 

, 

, 

. “The test for prejudice is ‘whether the

plea would have otherwise been made.’” Dangler at ¶ 16, quoting State v. Nero, 

, 

 (1990).

               Ohio case law has muddled the criminal-plea analysis by “suggesting

different tiers of compliance with the rule” such as partial or substantial adherence

or strict or literal compliance. 

. “But those formulations have served

only to unduly complicate what should be a fairly straightforward inquiry.” 

 The

applicable standard when determining whether a defendant’s plea was made

understandingly and voluntarily in compliance with Crim.R. 11(C) is no longer one

of strict or substantial compliance. Instead, the Dangler Court identified the

questions to be asked when reviewing a trial court’s Crim.R. 11(C) plea colloquy:

      (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.

               The Ohio Supreme Court has not explicitly defined a trial court’s

“complete failure to comply” under a Crim.R. 11 analysis. In Dangler, the court

determined there was not a complete failure to comply with the maximum sentence

portion of Crim.R. 11(C)(2)(a) where the trial court advised the defendant of sex

offender registration duties but did not inform the defendant of the residential

restrictions and community notification requirements of sex offender classification.

Dangler at ¶ 22. In Sarkozy, 

, 

, 

,

the court found a complete failure to comply with the maximum penalty portion of

Crim.R. 11(C)(2)(a) where a trial court “failed to mention postrelease control at all

during the plea colloquy … before it accepted the guilty plea.” Id. at ¶ 22.

       The [Ohio S]upreme [C]ourt hinted that Sarkozy might have been
       decided differently if the trial court had provided at least some advice
       concerning postrelease control during the plea colloquy: “The trial
       court did not merely misinform Sarkozy about the length of his term of
       postrelease control. Nor did the court merely misinform him as to
       whether postrelease control was mandatory or discretionary. Rather,
       the court failed to mention postrelease control at all during the plea
       colloquy.” [Sarkozy at ¶ 4.] By contrast, Dangler found there was not a
       complete failure to comply where a trial court provided incomplete
       advice concerning a distinct component of the maximum penalty (i.e.,
       sex offender registration and notification requirements and duties).

State v. Fabian, 12th Dist. Warren No. CA2019-10-119, 

.

               During Hatchell’s plea hearing, the trial court advised Hatchell that

the maximum penalty associated with his burglary charge, a felony of the third

degree, was 36 months in prison:
      With the other case, there’s two counts. Count 1 is abduction, a felony
      of the third degree, and then Count 2 is burglary, a felony of the third
      degree. They are both punishable by anywhere from 9 to 36 months in
      prison and a fine of up to $10,000.

Tr. 19.   The parties agree Hatchell’s burglary conviction, pursuant to R.C.

2929.14(A)(3)(a), was subject to a maximum sentence of 60 months. The trial court

did not completely fail to address the maximum sentence associated with the

burglary conviction, but incorrectly stated the maximum prison term was 36 months

rather than 60 months. We find the trial court’s incorrect recitation of the maximum

penalty was not a complete failure to comply with Crim.R. 11(C) and, therefore,

Hatchell must show prejudice to establish his plea was less than knowingly,

intelligently, and voluntarily rendered.

              “Prejudice must be established “‘on the face of the record.’”” Dangler,

, 

, 

, quoting Hayward v.

Summa Health Sys./Akron City Hosp., 

, 

, 

, quoting Wagner v. Roche Laboratories, 

,

 (1999).

              There is nothing within the record that indicates Hatchell would not

have entered his plea had he been correctly informed about the maximum sentence

associated with his burglary charge. If all a defendant needed to establish prejudice

was the argument that the trial court did not properly advise him of a maximum

prison sentence during the plea hearing,

      the prejudice requirement would all but be eliminated to the point
      where it was essentially nonexistent. See 

 (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
       “traditional rule” requiring a defendant to establish prejudicial error
       before the defendant’s conviction may be reversed on appeal. Id. at
       ¶ 13.

State v. Gabbard, 12th Dist. Butler No. CA2020-12-125, 

.

Hatchell presented no arguments whatsoever regarding prejudice. See State v.

Fisher, 8th Dist. Cuyahoga No. 109276, 

 (no prejudice

demonstrated where Fisher offered no arguments on the issue). Thus, Hatchell has

not proven prejudice necessary to vacate his guilty plea.

                The instant case is distinguishable from State v. Tackett, 8th Dist.

Cuyahoga No. 111998, 

, where this court found the defendant was

prejudiced by the trial court’s plea colloquy. In Tackett, the trial court provided

contradictory information during the plea colloquy about the potential maximum

sentence, initially stating each underlying felonious assault offense was punishable

up to a potential maximum of 12 years and then stating the “worst case scenario”

was a total of 16 years in prison. Tackett at ¶ 11-12. The trial court also failed to state

the convictions were eligible for an indefinite sentence pursuant to the Reagan Tokes

Law. Id. at ¶ 14. The trial court initially sentenced Tackett to 8 years on each count

to be served consecutively and then resentenced Tackett to an indefinite sentence of

16-18.5 years in prison, which reflected a sentence “two and one-half years more

than the court had informed Tackett he could receive if he accepted the state’s plea

offer.” Id. at ¶ 13.
              This court also found the defendant demonstrated prejudice in State

v. Cammon, 8th Dist. Cuyahoga No. 105124, 

, where the trial court

incorrectly informed the defendant of the maximum sentence he faced. During the

plea hearing, the trial court initially informed Cammon that a guilty plea to having

weapons while under disability carried a maximum sentence of 36 months and then

stated the maximum potential sentence was 30 months. The trial court also advised

Cammon that the maximum potential sentence for drug possession was 12 months.

The trial court informed Cammon that it could order him to serve the two sentences

consecutively, which would result in a maximum sentence of 30 months. The trial

court sentenced Cammon to 36 months on the having weapons while under

disability conviction and 10 months on the drug possession conviction, with the

sentences to be served concurrently. Cammon appealed the convictions and argued

the trial court did not comply with Crim.R. 11 during the plea hearing. This court

held “that Cammon suffered prejudice” where it “[ could not] say that Cammon

would have still entered his guilty plea had he known that he could be subjected to

a longer term than 30 months of imprisonment.” Cammon at ¶ 23.

              In both Tackett and Cammon, the trial courts’ sentences resulted in

the defendant being subject to a longer period of imprisonment than the plea

hearing indicated. Here, while the trial court sentenced Hatchell to 48-months on

the burglary conviction rather than the 36-month maximum he was told about at

the plea hearing, Hatchell’s aggregate sentence does not exceed that which he was

advised about during the plea hearing. Due to the multiple-count plea agreement,
Hatchell’s sentences on the improper discharge of a firearm and felonious assault

convictions were subject to seven to ten and one-half years, far exceeding the 48-

month maximum penalty associated with the burglary conviction.

                 Accordingly, we find Hatchell’s fifth assignment of error is without

merit.

                 Judgment affirmed in part, vacated in part, reversed in part, and

remanded for sentencing solely to provide the Reagan Tokes advisements required

under R.C. 2929.19(B)(2)(c) and to properly sentence Hatchell on the third-degree

felony offenses of abduction and having weapons while under disability.

         It is ordered that appellee recover from appellant costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.             The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY EILEEN KILBANE, PRESIDING JUDGE

EMANUELLA D. GROVES, J., and
MARY J. BOYLE, J., CONCUR