State v. Walker

[Cite as State v. Walker, 

.]



                   IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO


STATE OF OHIO,                               :   APPEAL NOS. C-240224
                                                             C-240225
      Plaintiff-Appellee,                    :               C-240226
                                                 TRIAL NOS. B-2303205
  vs.                                        :               B-2003478
                                                             B-2302148-B
MARK WALKER,                                 :
      Defendant-Appellant.                   :
                                                       OPINION
                                             :



Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: December 31, 2024



Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.
                 OHIO FIRST DISTRICT COURT OF APPEALS


CROUSE, Judge.

       {¶1}    Following guilty pleas, defendant-appellant Mark Walker was convicted

on six felony counts across three separate cases. Walker now appeals, arguing (1) that

one of his convictions was invalid because the State failed to recite adequate facts at

his plea hearing, (2) that his guilty pleas were involuntary because the trial court

misstated his aggregate maximum sentence during the plea colloquy, and (3) that the

record did not support the trial court’s sentences.

       {¶2}    However, as we explain below, (1) the prosecution need not have recited

any facts at the plea hearing, (2) Walker was not prejudiced by the trial court’s

misstatement during his plea colloquy, and (3) an appellate court may not modify or

vacate a sentence based on its view that the sentence is not supported by the record.

We therefore overrule all three of Walker’s assignments of error and affirm his

convictions.

                                    I. BACKGROUND

       {¶3}    Walker was indicted on a total of six felony counts in three separate

cases. Although Walker initially pled not guilty in each case, he eventually pled guilty

as charged to all six counts. He now appeals his convictions to this court, and we have

consolidated the cases on appeal.

       {¶4}    In the case numbered C-240224, Walker appeals his convictions for two

counts of forgery in violation of R.C. 2913.31(A)(3) and one count of theft by deception

in violation of R.C. 2913.02(A)(3). These charges resulted from two incidents in which

Walker sought to cash fraudulent checks—one successful, one not.

       {¶5}    In the case numbered C-240225, Walker appeals his conviction for

possession of fentanyl in a quantity of less than one gram, in violation of R.C.

2925.11(A).


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                 OHIO FIRST DISTRICT COURT OF APPEALS


       {¶6}    And in the case numbered C-240226, Walker appeals his convictions for

one count of receiving stolen property and one count of theft in violation of

R.C.2913.51(A) and 2913.02(A)(1), respectively. These charges arose after Walker and

another individual stole books worth $26,300 from D.W., an individual who had

provided the pair with lodging, and resold them at local bookstores. Walker

subsequently apologized to D.W. and helped retrieve some, but not all, of the books.

       {¶7}    At Walker’s plea hearing, the trial court engaged in a Crim.R. 11 plea

colloquy, and the State read facts into the record for each charge. The trial court

accepted Walker’s guilty pleas and scheduled a sentencing hearing.

       {¶8}    At the sentencing hearing, the trial court heard from Walker and D.W.,

the victim of the book-theft offenses. D.W. requested restitution for the bookstores,

who had returned his stolen books to him at a loss, but asked that Walker receive no

prison term for the stolen books. The court also considered the probation office’s

presentence-investigation (“PSI”) report, along with written statements from D.W.,

the arresting officers, and the victim of the check-cashing offenses.

       {¶9}    The trial court ultimately imposed one-year sentences on all charges

(minus the 54 days Walker had served), with all six sentences to run concurrently.

Walker expressed frustration when his sentences were announced, asserting, “I should

have just took all this to trial. I wasn’t even guilty on none of this.” After all the

information about his sentences had been provided, Walker declared, “I want to

appeal it immediately. I was promised probation. That's the only reason why I pled

guilty. I would never have taken it. You know, I was promised probation.”

              II. SUFFICIENCY OF THE STATE’S FACTUAL RECITATIONS

       {¶10} In his first assignment of error, Walker contends that by failing to recite

sufficient facts into the record at his plea hearing, the State failed to carry its burden


                                            3
                 OHIO FIRST DISTRICT COURT OF APPEALS


to satisfy all the elements necessary to convict him of fentanyl possession. Thus,

Walker contends, this court should reverse his conviction and discharge him from

further prosecution on that count.

       {¶11} The State’s complete recitation of the facts underlying the fentanyl-

possession offense was as follows:

       Your Honor, with regard to the case at B2003478, during warrant

       service from the Cincinnati Police Department, had some form of an

       arrest warrant for the Defendant. He was found to be in possession of a

       bindle of heroin less than bulk.

Walker argues that the State failed to recite (1) the name of the offense, (2) the level of

the offense, or (3) any mention of the venue where the unnamed offense had occurred.

He further notes (4) that the controlled substance named in the State’s recitation of

facts (heroin) did not match the substance named in his indictment (fentanyl).

       {¶12} In an ordinary, posttrial context, we would assess the sufficiency of the

State’s evidence by asking whether, viewing the evidence in the light most favorable to

the prosecution, a rational trier of fact could have found the elements of the crime

proven beyond a reasonable doubt. See State v. Jones, 

.

       {¶13} But Walker did not go to trial; he pled guilty. A guilty plea, if valid,

constitutes “a complete admission of the defendant’s guilt that removes any issues of

factual guilt from the case.” State v. Allen, 

 (1st Dist.); accord

Crim.R. 11(B)(1) (“The plea of guilty is a complete admission of the defendant’s guilt.”).

A valid guilty plea waives “all nonjurisdictional defects for the purpose of future

proceedings.” State v. Niepsuj, 

 (9th Dist.), citing State v.

Fitzpatrick, 

, ¶ 78. This includes the defendant’s “‘right to present

manifest-weight-of-the-evidence or sufficiency-of-the-evidence attacks against his


                                            4
                 OHIO FIRST DISTRICT COURT OF APPEALS


convictions.’” State v. Grate, 

, quoting State v. Dalton,

 (2d Dist.); accord State v. Young, 

 (1st Dist.)

(noting that “a guilty plea waives a sufficiency challenge”).

       {¶14} Walker contends that our recent decision in State v. Schuster,

 (1st Dist.), stands for the proposition that the State’s failure to recite

sufficient facts during a plea hearing constitutes grounds for reversal. But Walker’s

argument ignores the context of Schuster, and consequently reads its holding much

too broadly. Unlike Walker, who pled guilty, the defendant in Schuster entered a plea

of “no contest.” See id. at ¶ 4. While a guilty plea “is a complete admission of the

defendant’s guilt,” a “plea of no contest is not an admission of defendant’s guilt, but is

an admission of the truth of the facts alleged in the indictment, information, or

complaint.” (Emphasis added.) Crim.R. 11(B)(1), (2). Thus, at least theoretically, a

judge may enter a judgment of not guilty for a defendant who entered a voluntary plea

of “no contest.” See, e.g., City of Girard v. Giordano, 

, discussing

Springdale v. Hubbard, 

 (1st Dist. 1977).

       {¶15} Further, while Walker pled guilty to a felony, the defendant in Schuster

pled to a misdemeanor and was therefore entitled to the unique procedural protections

of R.C. 2937.07. See 

. That statute offers misdemeanor defendants an

additional “level of procedural protection,” beyond that provided by Crim.R. 11.

. It states, in relevant part, that a judge accepting a plea of “guilty” or

“no contest” in a misdemeanor case “shall call for an explanation of the circumstances

of the offense . . . unless the offense to which the accused is pleading is a minor

misdemeanor,” in which case the call for an explanation is optional. R.C. 2937.07. And

if the defendant pleads no contest, then R.C. 2937.07 permits the trial court to “make

a finding of guilty or not guilty from the explanation of the circumstances of the


                                            5
                 OHIO FIRST DISTRICT COURT OF APPEALS


offense.” 

 Thus, in Schuster, this court determined that the prosecution’s

“explanation of the circumstances” did not include facts to support an element of the

offense. 

. And, because the defendant in Schuster had pled “no

contest” and had not otherwise acknowledged his factual guilt for the acts charged in

the complaint, we reversed the trial court's judgment finding him guilty. Id. at ¶ 21.

       {¶16} But here, Walker pled guilty to a felony. As the Ohio Supreme Court has

acknowledged, “no [explanation-of-circumstances] requirement exists in felony

cases.” 

. Rather, once a trial court has properly accepted a defendant’s

voluntary plea of no contest to an “‘indictment, information, or complaint [that]

contains sufficient allegations to state a felony offense . . . , the court must find the

defendant guilty.’” 

 quoting State v. Bird, 

 (1998), syllabus.

       {¶17} The same principle applies with even greater force to guilty pleas. See

State v. Bowen, 

 (1977), quoting Kercheval v. United States, 

 (1927) (describing how a “‘plea of guilty . . . is itself a conviction,’” and,

“‘[l]ike a verdict of a jury it is conclusive’”). Indeed, even in the context of misdemeanor

pleas, where an explanation of circumstances is mandated, R.C. 2937.07 gives the trial

court no authority to acquit a defendant who has entered a voluntary plea of guilty

(rather than “no contest”) to a valid complaint. And although the trial court “may

refuse to accept a plea of guilty or no contest” in a felony case, Crim.R. 11(C)(2), it may

not acquit a defendant whose guilty plea it has properly accepted, unless and until such

plea is properly withdrawn. See Crim.R. 11(B)(3); Crim.R. 32.1; see also State v. Miller,

 (1st Dist.) (“[O]nce a trial court accepts a guilty plea, it may not

sua sponte withdraw the plea under Crim.R. 32.1.”).

       {¶18} Walker also cites several cases in which this court has reversed a

conviction for failure to prove venue. See State v. Smith, 

 (1st


                                             6
                  OHIO FIRST DISTRICT COURT OF APPEALS


Dist.) (reversing conviction for failure to prove venue “[f]ollowing a bench trial”); State

v. Sullivan, 

 (1st Dist.) (same); State v. Gardner, 

 (1st Dist. 1987) (reversing based on State’s failure to prove venue after

defendant was “convicted . . . in a bench trial”). But these cases are inapposite, as all

concern appeals from convictions following bench trials, where evidentiary-

sufficiency arguments are fair game, rather than appeals from convictions upon guilty

pleas, where they are not.

         {¶19} Thus, Walker’s attempt to challenge the sufficiency of the State’s

explanation of circumstances must fail. In a felony case like Walker’s the trial court

was not required to demand any such explanation from the State in the first instance.

And in any event, when Walker entered a voluntary guilty plea to a valid felony

indictment, he waived his right to put the State to its proof, and the trial court was

obligated to adjudge him guilty. We therefore overrule Walker’s first assignment of

error.

                  III. VOLUNTARINESS OF WALKER’S GUILTY PLEAS

         {¶20} In his second assignment of error, Walker argues that his pleas were not

“knowingly, intelligently, or voluntarily entered pursuant to Crim.R. 11,” because the

trial court “failed to inform him of the maximum penalty” by misstating the maximum

aggregate prison term he could face, should all his sentences run consecutively. We

review the voluntariness of a defendant’s guilty plea de novo. State v. Davis,

 (1st Dist.).

         {¶21} “Because a guilty plea operates as a waiver of several constitutional

rights, the validity of a guilty plea turns on whether that plea was done voluntarily,

knowingly, and intelligently, with sufficient awareness of the relevant circumstances

and likely consequences.” (Cleaned up.) State v. Davis, 

 (1st


                                            7
                     OHIO FIRST DISTRICT COURT OF APPEALS


Dist.); see Boykin v. Alabama, 

 (1969). “Crim. R. 11(C) was adopted in

order to facilitate a more accurate determination of the voluntariness of a defendant’s

plea by ensuring an adequate record for review.” State v. Nero, 

(1990). The Ohio Supreme Court has held that Crim.R. 11 “fully encompasses those

procedural requirements established by the United States Constitution.” State v.

Johnson, 

 (1988), citing State v. Stewart, 

(1977).

          {¶22} When appellants challenge the voluntariness of their pleas under

Crim.R. 11, “reviewing courts must engage in a multitiered analysis to determine

whether the trial judge failed to explain the defendant’s constitutional or

nonconstitutional rights and, if there was a failure, to determine the significance of the

failure and the appropriate remedy.” State v. Clark, 

, ¶ 30.

          {¶23} This analysis includes determining whether the trial court adequately

complied      with    Crim.R.   11’s   constitutional   requirements,   as   well   as   its

nonconstitutional, or rule-based requirements. The constitutional requirements are

generally captured by Crim.R. 11(C)(2)(c) and ensure that the trial court has explained

to the defendant the panoply of rights and protections he waives by pleading guilty.

See State v. Miller, 

; State v. Dangler, 

(“We have identified these constitutional rights as those set forth in Crim.R.

11(C)(2)(c) . . . .”). The nonconstitutional requirements, on the other hand, are listed

in Crim.R. 11(C)(2)(a) and (b). 

. These provisions require the trial court

to provide information and make determinations that help to ensure the defendant’s

decision to plead is knowing, intelligent, and voluntary in a more general sense.

          {¶24} Walker contends that the trial court misstated the maximum aggregate

sentence he faced during his plea colloquy, and that this misstatement violated the


                                              8
                   OHIO FIRST DISTRICT COURT OF APPEALS


maximum-penalty provision of Crim.R. 11(C)(2)(a). He argues that this error

constituted a complete failure to comply with Crim. R. 11, or, in the alternative, that it

constituted a prejudicial failure to “substantially comply” with Crim.R. 11(C)(2)(a).

        {¶25} In discussing this latter point, Walker’s brief understandably employs

language found in many of our recent cases, in which we have restated the old precept

that “with regard to nonconstitutional rights . . . a trial court need only substantially

comply with the substance of Crim.R. 11(C).” (Emphasis added.) See State v. Cook,

 (1st Dist.); see also, e.g., State v. Wilson, 

(1st Dist.); State v. Dailey, 

 (1st Dist.); State v. Harris,

 (1st Dist.).

        {¶26} We must acknowledge, however, that our language in these cases has

fallen out of step with the current state of the law.1 In Dangler, 

, the

Ohio Supreme Court specifically eschewed such “substantial compliance” or “tiers of

compliance” regimes, repudiating and clarifying language in its prior opinions. Id. at

¶ 17. And post-Dangler, the Court has not walked this shift back: no Ohio Supreme

Court decision since has applied substantial compliance in the Crim.R. 11(C) context.

See, e.g., State v. Tancak, 

, ¶ 17 (making no mention of “substantial

compliance”).

        {¶27} We therefore take this opportunity to clarify our own Crim.R. 11 analysis

and bring it in line with the Supreme Court’s, by recognizing “that whether a trial court

substantially complies with Crim.R. 11(C)(2) is no longer part of the analysis in

reviewing a trial court’s plea colloquy.” See State v. Rogers, 

, ¶ 15




1 This district is not alone in continuing to use “substantial compliance” language in the last four
years. See, e.g., State v. Carpenter, 

 (4th Dist.); State v. Tancak,

 (9th Dist.).


                                                 9
                 OHIO FIRST DISTRICT COURT OF APPEALS


(12th Dist.), citing Dangler; see also, e.g., State v. Poage, 

 (8th

Dist.), quoting 

 (reciting Dangler’s formulation of the Crim.R. 11

inquiry with no mention of substantial compliance).

       {¶28} Thus, if we find that the trial court did not comply with a

nonconstitutional provision of Crim.R. 11, then we jump straight to determining

“whether the trial court partially complied . . . with the rule,” or “failed to comply”

with it entirely. (Emphasis sic.) Clark, 

, at ¶ 32; accord State v. Veite,

 (1st Dist.). If the trial court’s advisement amounted to a complete

failure to comply with the rule, then the defendant’s plea will be deemed per se

involuntary. See 

; 

; 

. Otherwise, if the trial

court partially complied, the defendant must show that the error prejudiced his

decision to plead guilty before it can be overturned. See 

.

       {¶29} In the maximum-sentence context, “a complete failure involves a trial

court’s complete omission in advising [the defendant] about a distinct component of

the maximum penalty.” (Cleaned up.) Cook, 

 (1st Dist.). Put

another way, a trial court completely fails to comply with Crim.R. 11(C)(2)(a) when it

neglects to inform a defendant about a class of penalties they may suffer. Thus, courts

have found a complete failure to comply with the maximum-penalty provision where

the trial court utterly fails to inform a defendant that they may be subject to a fine,

, or to postrelease control, State v. Sarkozy, 

, ¶ 22. And

this court recently held that a trial court completely failed to comply with Crim.R.

11(C)(2)(a) when it neglected to “personally address the defendant and inform him of

the” maximum prison term he faced. Wilson, 

 (1st Dist.).

       {¶30} But when “a trial court mentions a component of the maximum penalty

during the plea colloquy, even if the trial court’s advisement is incomplete or even


                                           10
                OHIO FIRST DISTRICT COURT OF APPEALS


inaccurate, the trial court does not completely fail to comply with Crim.R. 11(C).” 

, citing State v. Harris, 

 (2d Dist.). Rather, in such a case

the trial court is deemed to have partially complied with Crim.R. 11(C). Thus, in the

postrelease-control context, the Ohio Supreme Court has described how even a trial

court that “misinform[s]” a defendant “about the length of his term” or about “whether

postrelease control was mandatory or discretionary,” nevertheless partially complies

with Crim.R. 11(C)(2)(a). 

.

       {¶31} Finally, where the trial court has partially complied with the rule’s

nonconstitutional dictates, we must assess whether its partial deficiency had “a

prejudicial effect” on the defendant. See Clark, 

, at ¶ 32. To satisfy

this prejudice requirement, a defendant must show that, but for the violation of

Crim.R. 11, they would not have pled guilty. See 

. If the defendant was

prejudiced, then his plea must be vacated as involuntary under Crim.R. 11.

       {¶32} In the case before us, Walker contends that the trial court failed to

comply with the maximum-penalty provision of Crim.R. 11(C)(2)(a), which prohibits

the trial court from accepting a guilty plea without first “addressing the defendant

personally” and “determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved.”

(Emphasis added.) In State v. Johnson, the Ohio Supreme Court held that the then-

current version of this provision required a trial court to inform a criminal defendant

of the maximum sentence he faced for each charge to which he pled, but did not

require the court to inform him that those sentences might run consecutively.

Johnson, 

. This reasoning has led courts to the further conclusion

that a trial court need not inform a defendant of the total aggregate term that could

result from multiple charges run consecutively, only their individual maxima. See, e.g.,


                                           11
                 OHIO FIRST DISTRICT COURT OF APPEALS


Poage, 

 (8th Dist.).

       {¶33} We note, however, that the current status of the Johnson rule is unclear.

The court rooted its holding in Johnson firmly in the then-current text of Crim.R. 11,

which employed singular terms that commanded trial courts to ensure the defendant

understood “‘the nature of the charge and of the maximum penalty involved.’”

(Emphasis sic.) 

, quoting previous Crim.R. 11(C)(2)(a). This singular

language, the Court held, meant that each “plea” corresponded to an individual charge,

and that compliance with Crim.R. 11(C)(2)(a)—including with the maximum-penalty

provision—should be assessed on a charge-by-charge basis. 

.

       {¶34} However, when Ohio’s Rules of Criminal Procedure were amended ten

years after Johnson, the singular “charge” in Crim.R. 11(C)(2)(a) was transformed into

the plural “charges.” See current Crim.R. 11(C)(2)(a); 

, cix (effective

July 1, 1998); State v. Bishop, 

 (plurality opinion). As a plurality

of the Ohio Supreme Court recognized in State v. Bishop, the text of Crim.R. 11(C)

today suggests “that a single plea can now apply to multiple charges.” 

 And, as

Justice Kennedy acknowledged without rebuttal in her Bishop dissent, if “making the

word ‘charge’ plural” effected “a substantive change” in the Rule’s meaning, then the

1998 amendment effectively abrogated the holding of Johnson. 

(Kennedy, J., dissenting). Just last year, Justice Donnelly, dissenting from a denial of

review, noted that this question remained unsettled. State v. Berry, 

,

¶ 5 (Donnelly, J., dissenting from denial of review).

       {¶35} This court has yet to squarely address the effect of the 1998

amendments on our application of Crim.R. 11(C)(2)(a), though our cases have

generally continued to apply the Johnson rule without addressing the textual change.

See, e.g., State v. Clark, 

, ¶ 5-8 (1st Dist.), overruled on other grounds


                                           12
                OHIO FIRST DISTRICT COURT OF APPEALS


by State v. Brown, 

 (1st Dist.); State v. Cook, 

(1st Dist.); State v. Mack, 

, ¶ 24-25 (1st Dist.). Our sister districts to

have confronted the issue have, for various reasons, rejected the argument that the

amendment abrogated Johnson’s rule. See, e.g., State v. Whitman, 

 (6th Dist.); State v. Berry, 

 (8th Dist.), not accepted

for review, 

; State v. Roberts, 

 (9th Dist.);

State v. Willard, 

 (11th Dist.).

       {¶36} But no party in this case has expressly challenged Johnson’s continuing

vitality. And, in any event, resolution of the Johnson question is unnecessary in this

case, because we hold that Walker’s plea is valid regardless of our answer to the

Johnson question.

       {¶37} To determine whether the trial court complied with Crim.R. 11(C), we

begin by considering its colloquy with Walker at his plea hearing. In that colloquy, the

trial court correctly informed Walker of the sentence ranges for each of the charges to

which he was pleading guilty. However, the record reveals that there was some

confusion regarding the cumulative term Walker could face:

              THE COURT: . . . So if [all the charges] ran one after the other

       consecutively, that would be six?

              [DEFENDANT’S COUNSEL]: Seven.

              THE COURT: Seven? I'm up to nine. If they all ran consecutively,

       the worst that could happen would be nine years in prison. Do you

       understand all of that?

              THE DEFENDANT: Yes.

              THE COURT: And you still wish to plead guilty?

              THE DEFENDANT: Yes.


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                 OHIO FIRST DISTRICT COURT OF APPEALS


Contrary to the trial court’s assertions, Walker’s counsel had the math correct. Walker

faced 6 to 12 months for each of his four fifth-degree felony charges, and 6 to 18

months for each of his two fourth-degree felony charges. If Walker received the

maximum sentence on each count, and if all those sentences ran consecutively, Walker

could have faced a cumulative seven years’ incarceration as a result of his pleas—not

nine years, as the trial court suggested.

       {¶38} Pursuant to Johnson we must determine whether the trial court

correctly informed Walker of the maximum sentence he could face on each of his six

counts. Because it did, the trial court complied with the maximum-penalty

requirement of Crim.R. 11(C)(2)(a) under Johnson.

       {¶39} But even if we assumed, without deciding, that the 1998 amendments

abrogated Johnson’s holding and required the trial court to inform Walker of the

maximum aggregate sentence he could face after pleading guilty, Walker’s pleas would

still stand. Although the trial court clearly miscalculated, we hold that it did not

completely fail to advise Walker regarding some “‘distinct component of the maximum

penalty.’” See Cook, 

 (1st Dist.), quoting Harris,

 (2d Dist.). By discussing Walker’s maximum potential prison

exposure—however inaccurately or incompletely—the trial court at least partially

complied with the rule. We therefore could not vacate Walker’s pleas unless he

demonstrated prejudice.

       {¶40} We further hold that Walker has not shown that the trial court’s alleged

error (if error it was) prejudiced him. The trial court’s misstatement that Walker’s

maximum aggregate sentence was “nine years in prison,” rather than seven, suggested

that Walker’s pleas could subject him to a significantly longer prison term than he

legally could have received. Walker bears the burden of demonstrating that, but for


                                            14
                OHIO FIRST DISTRICT COURT OF APPEALS


the threat of those additional two years, he would not have pled guilty. But Walker has

offered nothing to satisfy that burden. Nor is his the rare case in which prejudice is

evident from the record, as when a trial court imposes a sentence exceeding the

maximum term threatened in the plea colloquy. See, e.g., Davis, 

 (1st Dist.), quoting State v. Tackett, 

, ¶ 22 (8th Dist.) (“‘When a

defendant receives a sentence that exceeds what the trial court previously informed

the defendant was the maximum penalty, the prejudice is apparent on its face.’”).

       {¶41} Walker argues, counter-intuitively and without explanation, that he

would not have pled guilty and would have taken his chances at trial had he known

that the maximum period of imprisonment he risked following his plea was seven

instead of nine years. But Walker’s postsentencing remarks to the court belie this

contention. Immediately after the court announced Walker’s sentences—one year on

all charges, with all sentences to run concurrently—Walker protested that he had been

“promised probation” and explained, “That’s the only reason why I pled guilty. I would

never have taken it. You know, I was promised probation.” This on-the-record

assertion undermines Walker’s argument to this court that the trial court’s

miscalculation prejudiced his decision to plead, and Walker offers no explanation for

this inconsistency. If Walker was indeed “promised probation,” then the maximum

aggregate sentence he faced would have made little or no difference to his decision to

plead guilty.

       {¶42} We therefore hold that, even assuming the trial court failed to comply

with Crim.R. 11 by misstating the maximum aggregate sentence, Walker did not meet

his burden of demonstrating that he suffered prejudice from that error. Thus, Walker’s

challenge to the voluntariness of his guilty pleas is without merit, and we overrule his

second assignment of error.


                                          15
                  OHIO FIRST DISTRICT COURT OF APPEALS


                       IV. VALIDITY OF WALKER’S SENTENCE

       {¶43} In his third and final assignment of error, Walker contends that the

“record [did] not support sentencing [him] to a prison term of 1 year in prison.” He

argues that the “1 year prison sentence imposed by the trial court upon [him] for

Felony 4 and Felony 5 nonviolent offenses was clearly and convincingly not supported

by the record.”

       {¶44} This court has limited jurisdiction to review a criminal defendant’s

sentence. Unless otherwise provided by law, that jurisdiction comes from R.C.

2953.08(A), (B), or (C), and the scope of our review is governed by R.C. 2953.08(G).

Although Walker does not specify his basis for invoking this court’s jurisdiction to

review his aggregate sentence, his brief does contend, without citation, that his

aggregate sentence was “contrary to law.” We therefore construe Walker’s argument

as a challenge under R.C. 2953.08(A)(4), which contains similar “contrary to law”

language. And because Walker does not challenge any of the specific findings

referenced in R.C. 2953.08(G)(2)(a), we may alter or vacate his sentence only if we

“clearly and convincingly find” that it “is otherwise contrary to law.” See R.C.

2953.08(G)(2)(b).

       {¶45} A “sentence is not clearly and convincingly contrary to law” so long as

the sentencing court (1) “considers the R.C. 2929.11 and 2929.12 factors,” (2) “properly

imposes postrelease control,” and (3) “imposes a sentence within the statutory range.”

State v. Hart, 

, ¶ 12 (1st Dist.). In assessing whether a sentencing

court considered the relevant factors, we must be careful not to ask whether the record

supported the imposition of a particular sentence under those factors. See State v.

Jones, 

, ¶ 32 and 39; State v. Smith, 

 (1st Dist.).

To this end, we start from the “well-settled” presumption “that the trial court


                                          16
                 OHIO FIRST DISTRICT COURT OF APPEALS


considered R.C. 2929.11 and 2929.12, absent a clear showing to the contrary.” 

. Thus, a trial court need not make any “specific findings on the record to evince

the requisite consideration of the applicable seriousness and recidivism factors.” 

       {¶46} Walker’s primary complaints regarding his more-than-minimum

sentence are (1) that the trial court failed to consider the lack of harm caused by his

offenses as a mitigating factor under R.C. 2929.12(C)(3) undermined by no

aggravating circumstance in R.C. 2929.12(B), (2) that the trial court “did not appear

to give any consideration of his extensive mitigation information,” (3) that the trial

court disregarded the recommendations in the presentence-investigation (PSI) report,

(4) that the trial court undervalued the testimony of one of Walker’s victims, who

asked the court not to incarcerate Walker, and (5) that the trial court generally failed

to consider Walker’s circumstances, such as his education, his “mostly nonviolent

criminal record,” and the fact that “his life problems [were] due primarily to drug

addiction, for which he was working on healing” and receiving treatment. Walker does

not contend that the trial court imposed sentences outside the legal range or that it

improperly imposed postrelease control. Nor does he suggest that the trial court

considered any impermissible factors. Compare Smith at ¶ 14, citing State v. Brunson,

, and State v. Sanon, 

, ¶ 74 (1st Dist.).

       {¶47} Nor do Walker’s arguments allege that the trial court ignored the

sentencing factors altogether or point to any evidence to that effect. Instead, most of

Walker’s claims suggest that the trial court gave too much or too little weight to one or

more statutory factors or pieces of evidence. Such weight-and-sufficiency arguments,

however, are prohibited under Jones and R.C. 2953.08. See Jones at ¶ 42 (“Nothing in

R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in

the record and substitute its judgment for that of the trial court . . . .”). And to the


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extent Walker argues that we should infer a failure to consider certain mitigating

factors from the trial court’s failure to address them on the record, his argument lacks

merit. Silence does not rebut the presumption that the trial court considered all

relevant factors. See 

.

       {¶48} Because Walker has not “clearly and convincingly” demonstrated that

his sentences were “contrary to law,” as required by Jones and R.C. 2953.08(G)(2)(b),

we overrule his third assignment of error.

                                       …

       {¶49} Having thus overruled Walker’s three assignments of error, we affirm

his convictions.

                                                                  Judgments affirmed.

BERGERON, P.J., and WINKLER, J., concur.



Please note:

       The court has recorded its entry on the date of the release of this opinion.




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