[Cite as State v. Clark,
2024-Ohio-4930.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 23CA20
:
v. :
:
CHRISTOPHER M. CLARK, : DECISION AND JUDGMENT
AKA: ROBERT L. HUDGINS, : ENTRY
AKA: ROBERT LOUIS CLARK, :
AKA: CHRISTOPHER CLARK, :
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Chris Brigdon, Thornville, Ohio, for Appellant.
Judy C. Wolford, Pickaway County Prosecutor, Heather M.J. Carter,
Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Christopher M. Clark appeals the August 4, 2023 Entry of
Sentence of the Pickaway County Court of Common Pleas. Clark entered
guilty pleas to Count One, Trafficking in a Fentanyl-Related Compound, a
violation of R.C. 2925.03(A)(2)/(C)(9)(e), a felony of the second degree, and
Count Three, possession of cocaine, a violation of R.C.
2925.11(A)/(C)(4)(b), a felony of the fourth degree. Herein, Clark contends
Pickaway App. No. 23CA20 2
that his plea to Count One, Trafficking in a Fentanyl-Related Compound
was not knowingly, voluntarily, and intelligently given because the
maximum penalty was not explained and because the indefinite nature of his
sentence under the Reagan Tokes Act was not explained. Upon review, we
find no merit to Clark’s assignments of error. Accordingly, we overrule
both assignments of error and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} Subsequent to a traffic stop, on September 1, 2022, Clark was
indicted on three counts:
Count One: Trafficking in a fentanyl related compound, R.C.
2925.03(A)(2)(C)(9)(e), a felony of the second
degree;
Count Two: Possession of a fentanyl related compound, R.C.
2925.11(A)(C)(11)(d), a felony of the second
degree;
Count Three : Possession of cocaine, R.C. 2925.11(A)(C)(4)(b), a
felony of the fourth degree.
The counts also contained forfeiture specifications related to the U.S.
currency discovered during the stop.
{¶3} On May 8, 2023, Clark entered guilty pleas to Counts One and
Three. On August 2, 2023, the trial court imposed a mandatory term of 6 to
9 years as to Count One, and 16 months as to Count Three, to run
concurrently.
Pickaway App. No. 23CA20 3
{¶4}Clark later filed a motion for delayed appeal which has been
granted.
ASSIGNMENTS OF ERROR
I. DID THE TRIAL COURT ERROR [SIC] WHEN
FAILING TO ACCURATELY EXPLAIN THE
MAXIMUM POTENTIAL SENTENCE ASSOCIATED
WITH R.C. 2925.03(A)(2)(C)(9)(e)?
II. DID THE TRIAL COURT ERROR [SIC] WHEN
FAILING TO ACCURATELY EXPLAIN THE
MAXIMUM PENALTY ASSOCIATED WITH R.C.
2929.14 AND R.C.2929.144?
{¶5} Without explicitly citing the Reagan Tokes Act in his assignments
of error, Clark’s arguments thereunder concern whether or not the trial court
properly informed him of the Reagan Tokes Act as relates to his plea to
Count One, Trafficking in a Fentanyl-Related Compound. Thus, we
consider them jointly.
{¶6} Clark contends that his guilty plea to Count One of the indictment
was not knowingly, intelligently, and voluntarily made because the trial
court did not accurately set forth the maximum penalty during the court’s
colloquy with him. The maximum penalty associated with Trafficking in a
Fentanyl-Related Compound, R.C. 2925.03(A)(2)/(C)(9)(e), is eight years.
Additionally, pursuant to R.C. 2929.144(B)(1), the Reagan Tokes Act, Clark
Pickaway App. No. 23CA20 4
was subject to an indefinite sentence. Clark concludes that the trial court’s
explanation at his change of plea hearing was a “Cliff-notes version” of the
maximum potential penalty.
{¶7} In response, the State of Ohio points out that Clark did not interpose
any objection to the alleged deficient notification. The State asserts that a
review of the record in its totality demonstrates that the trial court
substantially complied with the requirements of Crim.R. 11(C)(2). The State
also points out that at the plea hearing Clark, with the assistance of counsel,
executed a plea waiver form. The State argues that at the plea hearing Clark
was informed that he faced a maximum possible penalty of 8 to 12 years,
and that if he were to be sentenced to an 8-year term in prison, his sentence
would be 8 to 12 years “due to the four (4) year Reagan Tokes tail required
by law.” The State also argues that if this court determines that the trial
court only partially complied with Crim.R. 11, the sentence should be
affirmed because Clark has failed to show prejudice.
A. STANDARD OF REVIEW
{¶8} Appellate courts apply a de novo standard of review when
evaluating a plea's compliance with Crim.R. 11(C). State v. Estep, 2024-
Ohio-58, ¶ 47 (4th Dist.); State v. Nero, 56 Ohio St.3d 106, 108-109 (1990).
Pickaway App. No. 23CA20 5
B. LEGAL ANALYSIS
1. Legal Requirements of Pleas
{¶9} “ ‘When a defendant enters a plea in a criminal case, the plea must
be made 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. Jones,
2024-Ohio-2034, ¶ 17 (11th Dist.), quoting State v. Engle,
74 Ohio St.3d
525, 527 (1996). See also State v. Tolle,
2022-Ohio-2839, ¶12 (4th Dist.).
“Ohio's Crim.R. 11 outlines the procedures that trial courts are to follow
when accepting pleas.” State v. Dangler,
2020-Ohio-2765, ¶ 11. “The
purpose of Crim.R. 11(C) is ‘to convey to the defendant certain information
so that he can make a voluntary and intelligent decision whether to plead
guilty.’ ” Tolle, ¶ 17, quoting State v. Ballard,
66 Ohio St.2d 473, 479-480
(1981). “ ‘ “It is the trial court’s duty, therefore, to ensure that a defendant
has a full understanding of what the plea connotes and of its consequences.”
’ ” Tolle, ¶ 13, quoting State v. Montgomery,
2016-Ohio-5487, ¶ 40, quoting
Boykin v. Alabama,
395 U.S. 238, 244 (169).
{¶10} Clark’s assigned errors involve Crim.R. 11(C)(2)(a), which
provides, in relevant part, “In felony cases the court … shall not accept a
plea of guilty … without first addressing the defendant personally …
Pickaway App. No. 23CA20 6
and … [d]etermining that the defendant is making the plea voluntarily,
with understanding … of the maximum penalty involved ….”
(Emphasis added.) The Reagan Tokes Act relates to a defendant’s
maximum penalty. The Supreme Court of Ohio has held that “when a trial
court fails to fully cover … ‘nonconstitutional’ aspects of the plea
colloquy,” such as the maximum penalty involved, “a defendant must
affirmatively show prejudice to invalidate a plea.” Jones, ¶ 19. (Emphasis
added.) Dangler at ¶ 14. However, “a trial court's complete failure to
comply with a portion of Crim.R. 11(C) eliminates the defendant's burden to
show prejudice.”
Dangler at ¶ 15. (Emphasis added.)
{¶11} “Thus, ‘the questions to be answered are simply: (1) has the trial
court complied with the relevant provision of the rule? (2) if the 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?’ ”
Jones, ¶ 20, quoting Dangler at ¶ 17.
2. Reagan Tokes Act
{¶12} The Reagan Tokes Act, effective as of March 22, 2019,
implemented a system of indefinite sentencing for non-life felonies of the
first and second degree committed on or after the effective date. Jones at
Pickaway App. No. 23CA20 7
¶ 22, citing State v. Joyce, 2022-Ohio-3370, ¶ 8 (11th Dist.). Under the
Reagan Tokes Act, a trial court imposing a sentence upon an offender for a
second-degree felony must impose “an indefinite prison term with a stated
minimum term selected by the court of two, three, four, five, six, seven, or
eight years and a maximum term that is determined pursuant to [R.C.
2929.144].” R.C. 2929.14(A)(2)(a). “If the offender is being sentenced for
one felony and the felony is a qualifying felony of the … second degree,
the maximum prison term shall be equal to the minimum term imposed on
the offender under [R.C. 2929.14(A)(1)(2)(a)] plus 50 per cent of that term.”
R.C. 2929.144(B)(1).
{¶13} An offender sentenced under the Act has a rebuttable presumption
of release at the conclusion of the offender's minimum term. See R.C.
2967.271(B). However, the Ohio Department of Rehabilitation and
Correction (ODRC) may rebut that presumption and keep the offender in
prison for an additional period not to exceed the maximum term imposed by
the sentencing judge. R.C. 2967.271(C). See State v. Tutt, 2021-Ohio-96,
¶ 11 (12th Dist.). Because the Reagan Tokes Act, when applicable, allows
the ODRC to extend a defendant's sentence beyond the minimum term upon
satisfaction of statutory criteria, trial courts must abide by R.C.
2929.19(B)(2)(c) and notify the defendant of the five notifications as it
Pickaway App. No. 23CA20 8
relates to their indefinite prison term. Estep, supra, ¶ 57; State v. Greene,
2022-Ohio-4536, ¶ 11 (1st Dist.).
{¶14} To be clear, R.C. 2929.19(B)(2)(c) provides that if the prison term
is a non-life felony indefinite prison term, the trial court must notify the
offender of all of the following:
(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
Pickaway App. No. 23CA20 9
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.
{¶15} At sentencing, the trial court addressed Clark explaining as
follows, the notifications required by the Reagan Tokes Act:
Well, for the offense of Trafficking in a Fentanyl-Related
Compound with Specification, a felony of the second
degree, it will be the order of the court, Mr. Clark stand
committed for a period of six to nine years on that one.
That is a mandatory sentence. For the Possession of
Cocaine, a felony of the fourth degree, it will be the order
of the court he stand committed for 16 months. I’ll run
those concurrent….. Mr. Clark, it’s presumed you will be
released from prison on the expiration of the six-year
sentence. The department of rehabilitation and corrections
may rebut the presumption by holding a hearing and
making a specified determination regarding your conduct
and demeanor while confined. If the department that the
hearing makes the specified determination and rebuts the
presumption, the department may maintain your
incarceration beyond the expiration of six years, but not
beyond nine years. The department may hold hearing to
make a specified determination and maintain your
incarceration more than once. You must be released upon
the expiration of your maximum term of nine years.
{¶16} However, Clark challenges the knowing, intelligent, and voluntary
nature of his plea due to the alleged deficient notification, not the lawfulness
of his sentence due to alleged deficient notification. (Emphasis added.) This
Pickaway App. No. 23CA20 10
court has taken up the latter challenge in State v. Long, 2021-Ohio-2672,
¶¶27-29, wherein we held that a sentence is contrary to law if a trial court
sentences an offender to an indefinite prison term under the Reagan Tokes
Act and fails to advise the offender of all the notifications set forth in R.C.
2929.12(B)(2)(c) at the sentencing hearing: State v. Estep, supra, wherein
we remanded the matter for sentencing due to the trial court’s advisement to
Estep of some of the sentencing requirements but not of the presumption of
release, the ODRC’s burden to rebut the presumption, that the process may
be repeated multiple times, or that Estep would be released at the end of the
maximum term; and State v. Price,
2024-Ohio-1641, ¶ 10, wherein we found
Price’s sentence contrary to law and remanded for resentencing because the
trial court failed to provide required notice at sentencing of ODRC’s rebuttal
of presumption. However, the issue of whether or not a defendant’s plea is
invalidated due to alleged deficient Reagan Tokes Act notifications appears
to be a matter of first impression in our district.
{¶17} As with all challenges to the knowing, intelligent, and voluntary
nature of pleas, we turn to review of the transcript. At Clark’s change of
plea hearing held on May 8, 2023, the transcript indicates that the trial court
asked Clark about his educational level and whether or not he was under the
influence of alcohol or drugs. Clark stated that he had graduated from high
Pickaway App. No. 23CA20 11
school and denied being under the influence of alcohol or drugs. The Court
further inquired if he had signed a form captioned “Petition to Enter Plea of
Guilty,” indicating he wished to plead guilty to the two counts as discussed.
Clark verified that he had signed the petition. Under Part 7, Maximum
Penalty, the petition indicates that the maximum stated prison term for
Count One is 8-12 years. It also indicates that the prison sentence is
mandatory.
{¶18} Next, the trial court inquired:
You understand that Count One is Trafficking in a fentanyl
related compound, a felony of the second degree, it carries
a maximum penalty of eight to twelve years in
prison,…Any prison sentence is mandatory, which means
you wouldn’t be eligible for any type of early release.
Count Three is possession of cocaine, a felony of the
fourth degree. It carries a maximum possible penalty of
eighteen months in state prison, $5,000 fine. Any sentence
you receive can be concurrent or consecutive. Concurrent
means you serve them both at the same time. Consecutive
means you have to serve each one separately. Do you
understand what you’re charged with and the maximum
possible penalty?
At this point, Clark expressed affirmance of his understanding of the
maximum possible penalty.
{¶19} The hearing transcript demonstrates that the trial court next
discussed Clark’s constitutional rights before turning to a further discussion
of the penalties. The court stated as follows:
Pickaway App. No. 23CA20 12
A felony of the second degree carries a presumption of
prison. Also, upon finishing your prison sentence, you
will be subject to mandatory post release control for a
period of time not to exceed three years, but not less than
eighteen months. You would be under the supervision of
the Ohio Department of Rehabilitation and Corrections.
They would have a parole officer watching over you, they
would have rules and regulations concerning your
conduct. If you violate their rules and regulations they can
send you back to prison to serve additional time.
Additional time could equal one half, add up to one half of
the original sentence you receive from me, unless one of
the violations is a new felony conviction. If you get
convicted of a new felony while on post release control,
you could be made to return to prison under this case to
serve the greater of one year or time remaining on post
release control, which could be up to three years,
whichever is greater. And, by law, that has to be served
consecutive with any new felony conviction, the sentence
you receive while on post release control. Do you have any
questions you wish to ask me about any of your rights?
{¶20} Clark answered “No, Sir.” Clark thereafter entered pleas to Counts
One and Three. The trial court made a finding that Clark was entering his
plea knowingly, voluntarily, and intelligently. Count Two was dismissed
and the court referred the matter for presentence investigation.
{¶21} Recently in State v. Boulware, 2024-Ohio-1388 (2d Dist.),
appellant appealed denial of his motion to withdraw his guilty plea on the
basis that his plea to voluntary manslaughter was not knowingly,
intelligently, and voluntarily entered because the trial court did not advise
him of the Reagan Tokes Act notifications set forth in R.C.
Pickaway App. No. 23CA20 13
2929.19(B)(2)(c). Specifically, the Second District Court of Appeals noted
that R.C. 2929.19 governs sentencing hearings and that R.C.
2929.19(B)(2)(c) specifically indicates that the notifications in question must
be given at the offender’s sentencing hearing. (Emphasis added.) The
appellate court further noted that Boulware failed to present any authority
supporting the notion that the R.C. 2929.19(B)(2)(c) notifications must be
given at the plea hearing in order to comply with Crim.R. 11(C)(2)(a). The
Boulware court observed as follows at ¶¶ 18-20:
In fact, case law from this state suggests that the failure to
give the R.C. 2929.19(B)(2)(c) notifications at the plea
hearing does not invalidate a guilty plea. For example, in
State v. Hodgkin, 2021-Ohio-1353, the Twelfth District
Court of Appeals noted that it was “immaterial” that the
trial court did not provide all of the R.C. 2929.19(B)(2)(c)
notifications at the plea hearing because “[t]he trial court
is required to advise an offender of the 2929.19(B)(2)(c)
notifications at the sentencing hearing[.]” (Emphasis sic.)
Id. at fn. 3. In State v. Searight, 2023-Ohio-3584, the First
District Court of Appeals noted that although the
defendant had argued that the trial court's failure to apprise
him of the Reagan Tokes Act notifications under R.C.
2929.19(B)(2)(c) rendered his guilty pleas invalid, “the
substance of his argument and his request for proper
notifications … stick to the sentence, not the pleas.” Id.
at ¶ 6. In State v. Conner, 2021-Ohio-1769, the Third
District Court of Appeals specifically held that the trial
court did not err by failing to advise the defendant, at the
plea hearing, of one of the notifications under R.C.
2929.19(B)(2)(c), i.e., that the ODRC could rebut the
presumption of his release once the defendant completed
the minimum prison term imposed. Id. at ¶ 14. Despite the
trial court's failure to give that notification, the Third
Pickaway App. No. 23CA20 14
District held that the trial court had substantially complied
with Crim.R. 11(C)(2)(a) in its explanation of the
maximum penalty. Id. at ¶ 16.
{¶22} The Boulware court ultimately held that res judicata barred
Boulware’s challenge to his plea. However, the court also found that even if
the challenge was not barred, overruling Boulware’s post-sentence motion to
withdraw his guilty plea was not an abuse of discretion because the trial
court was only required to give the R.C. 2929.19(B)(2)(c) notifications at the
sentencing hearing. The record reflected that the trial court sufficiently
advised Boulware of his maximum possible penalty at the plea hearing as
required by Crim.R. 11(C)(2)(a). See also State v. Mathews, 2024-Ohio-
1863, ¶ 20 ( 1st Dist.) (No obligation that trial court provide Reagan Tokes
notifications at plea hearing).1
{¶23} At Clark’s hearing, the trial court discussed the Petition to Enter
Plea of Guilty form, indicating that the maximum prison term for Count One
is 8-12 years and also indicating that the prison sentence is mandatory.
Without referencing the Reagan Tokes Act or the indefinite nature of the
sentence, the trial court then addressed Clark and explained the maximum
1
But see State v. Amin, 2023-Ohio-3761, (11th Dist.), wherein the appellate court found merit to
Amin’s argument that his plea was not knowing, intelligent, or voluntary when entered, in part,
because the trial court failed to personally review the potential penalties involved and instead
relied upon the prosecutor’s deficient statement of such. Id. at ¶ 16.
Pickaway App. No. 23CA20 15
penalty of 8-12 years and the mandatory sentence. Based upon the
foregoing case law from our sister districts―the First, Second, Third, and
Twelfth―we find that while the trial court was required to give the Reagan
Tokes notifications to Clark at sentencing, nothing mandates that these
notifications be given prior to Clark’s entrance of his plea. The underlying
record reflects that the trial court substantially complied with its duty to
provide an explanation of the maximum sentence. Therefore, Clark’s
argument that his plea was not entered knowingly, intelligently, or
voluntarily based solely upon the lack of the Reagan Tokes notifications is
without merit. Accordingly, both assignments of error are overruled and the
judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Pickaway App. No. 23CA20 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed 60 days upon the bail previously posted. The purpose of a continued
stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the
expiration of the 60-day period, or the failure of the Appellant to file a notice
of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of
Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior
to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J. concur in Judgment and Opinion.
For the Court,
_____________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
