State v. Johnson

[Cite as State v. Johnson, 

.]



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


STATE OF OHIO,                               :   APPEAL NOS. C-240142
                                                             C-240143
         Plaintiff-Appellee,                 :   TRIAL NOS.  B-2201011
                                                             B-2103844
   vs.                                       :

DOMICO JOHNSON,                              :
                                                       OPINION
         Defendant-Appellant.                :



Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: January 22, 2025



Connie Pillich, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Jon R. Sinclair, for Defendant-Appellant.
[Cite as State v. Johnson, 

.]


CROUSE, Judge.

        {¶1}     Defendant-appellant Domico Johnson accepted a plea deal to four

third-degree felony offenses—two counts each in two separate cases. The agreed-upon,

recommended sentence on each count was one year in prison, with three of those years

to run concurrently and one to run consecutively, for a total of 24 months in prison.

        {¶2}     In one assignment of error, Johnson challenges the voluntariness of his

pleas, asserting (1) that the trial court failed to inform him during the plea colloquy

that one of his prison sentences was required to run consecutively to his other prison

sentences and (2) that the trial court incorrectly informed him about the mandatory

driver’s license suspension required by one of his convictions.

        {¶3}     Johnson is correct; the trial court erred in both respects during his plea

colloquy. However, because the trial court at least partially complied with Crim.R.

11(C), and because Johnson has failed to show that he was prejudiced by the error, we

overrule Johnson’s sole assignment of error and affirm his convictions.

                                         I. BACKGROUND

        {¶4}     On August 4, 2021, Domico Johnson was charged in a four-count

indictment with one count each of having a weapon under a disability,

R.C. 2923.13(A)(3); tampering            with   evidence,   R.C. 2921.12(A)(1); aggravated

trafficking in methamphetamine, R.C. 2925.03(A)(2); and aggravated possession of

methamphetamine, R.C. 2925.11(A). All four offenses were charged as third-degree

felonies, and all were alleged to have occurred “on or about” July 27, 2021.

        {¶5}     On March 11, 2022, Johnson was indicted again on seven more

charges—two counts of first-degree felony trafficking in a fentanyl-related compound

under R.C. 2925.03(A)(2), two counts of first-degree felony possession of a fentanyl-

related compound under R.C. 2925.11(A), one count of second-degree felony
                 OHIO FIRST DISTRICT COURT OF APPEALS


trafficking in heroin under R.C. 2925.03(A)(2), one count of second-degree felony

possession of heroin under R.C. 2925.11(A), and one count of failing to comply with

an order or signal of a police officer under R.C. 2921.331(B), charged as a third-degree

felony. The failure-to-comply charge stemmed from an incident on October 5, 2021,

while the other six arose out of conduct occurring “on or about” September 21, 2021.

       {¶6}    Then began this case’s long and somewhat tortured pretrial history.

Following two and a half years of revolving-door appointed counsel, allegations of

deficiency, a period of self-representation, and repeatedly continued proceedings,

Johnson entered into a negotiated plea agreement and, on the eve of his trial in

February 2024, twice attempted to plead guilty.

       {¶7}    The first of Johnson’s two plea hearings took place on a Friday. During

that hearing, Johnson had suggested he did not wish to plead, but was doing so

because he lacked faith that his attorneys would fight for him. He said he was willing

to plead guilty if his alternative was going to trial with his then-current counsel, but

only because he felt trapped by his inability to find counsel he trusted. Based on these

and similar conflicting statements, the trial court was not confident that Johnson’s

waiver of his trial rights was knowing, intelligent, and voluntary, and so it refused to

accept his guilty pleas.

       {¶8}    The following Monday, Johnson appeared in court once again to plead

guilty. When asked what had changed over the weekend, Johnson replied, “Just the

conversation with my kids and my mother and my girlfriend. Just family members

told me to make a better decision.” Johnson did not raise any of his previously-voiced

concerns with his attorneys.

       {¶9}    Counsel for the State explained the plea agreements that Johnson had

signed. Under the agreements, the State agreed to dismiss 7 of the 11 pending charges,


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                 OHIO FIRST DISTRICT COURT OF APPEALS


and Johnson agreed to plead guilty to the remaining four. In the case numbered B-

2103844, he pled guilty to the weapons-under-a-disability charge and the aggravated-

methamphetamine-trafficking charge, both felonies of the third degree. And in the

case numbered B-2201011, Johnson pled guilty to one count of trafficking in a

fentanyl-related compound, which the State agreed to reduce to a third-degree felony,

and one count of failure to comply with an order or signal of an officer, also a third-

degree felony. Johnson and the State agreed to a recommended sentence of one year

on each of the four counts, three to run concurrently, and the fourth (for the failure-

to-comply charge) to run consecutively, for a total of two years in prison.

       {¶10} During the plea colloquy, the trial court made sure that Johnson

understood that it had the power to sentence him to more prison time than the parties

agreed to in the plea agreements. It also advised him that “the maximum penalty on

each count on each case is 36 months in prison and a $10,000 fine,” and that “[o]n the

failure to comply charge on the B22 case, there is an additional potential penalty, a

suspension of your driver’s license, between five months and six years.” The trial court

confirmed that Johnson understood the constitutional rights he was waiving, and that

he had read and understood his signed plea-agreement forms. After finding that

Johnson had “made a knowing, intelligent, and voluntary waiver” of his rights, the trial

court accepted his guilty pleas.

       {¶11} The parties waived the presentence investigation, and the trial court

imposed the aggregate 24-month sentence agreed upon by the parties, crediting

Johnson for time-served—125 days in the case numbered B-2103844 and 115 days in

the case numbered B-2201011. The court then stayed execution of its judgment for

about a month, to give Johnson time to make arrangements for the care of his children

and to attend his girlfriend’s graduation.


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                 OHIO FIRST DISTRICT COURT OF APPEALS


       {¶12} This appeal timely followed.

                               II. CRIM.R. 11 ANALYSIS

       {¶13} In his sole assignment of error, Johnson contends that his guilty pleas

were not knowing, intelligent, and voluntary. First, he argues that the trial court failed

to inform him that, under R.C. 2921.331, he was required to serve any prison term

imposed for his failure-to-comply violation consecutively to all other prison sentences.

Second, he argues that the trial court failed to inform him that suspension of his

driver’s license was mandatory and misstated the length of the suspension. He argues

that these failures caused him to plead without “understanding . . . the maximum

penalty involved,” in violation of Crim.R. 11(C)(2)(a).

       {¶14} “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

Dist.); see Boykin v. Alabama, 

 (1969). “To determine whether a plea was

entered knowingly, voluntarily, and intelligently, an appellate court examines the

totality of the circumstances through a de novo review of the record.” (Cleaned up.)

State v. Davis, 

 (1st Dist.).

       {¶15} “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).

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


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                   OHIO FIRST DISTRICT COURT OF APPEALS


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.

       {¶17} 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. Johnson argues that the trial court

failed to comply with Crim.R. 11 by failing to determine that he understood the

maximum penalties involved. The maximum-penalty provision in Crim.R. 11(C)(2)(a)

is   one   of   the    rule’s   nonconstitutional   requirements,    State    v.     Dangler,

, and requires a trial court to “determin[e] that the defendant is

making the plea voluntarily, with understanding of the nature of the charges and of

the maximum penalty involved.” Crim.R. 11(C)(2)(a).

       {¶18} We recently clarified the procedure for assessing a trial court’s

compliance with Crim.R. 11’s nonconstitutional requirements in State v. Walker,

 (1st Dist.):

       [I]f 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.) [

]; 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


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                 OHIO FIRST DISTRICT COURT OF APPEALS


       guilty before it can be overturned. See 

.

       {¶19} Walker also clarified the sometimes-murky line between a complete

failure to comply and partial compliance in the maximum-penalty context. A violation

of that provision constitutes a complete failure to comply if it “‘involves a trial court’s

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

maximum penalty.’” (Bracketed text in original.) 

, quoting State v.

Cook, 

 (1st Dist.). Thus, we said, “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.” (Emphasis added.) 

 For example, if a trial court

completely fails to mention the maximum prison term a defendant is facing, or that

the defendant may be subject to a fine or postrelease control, then that is considered

a complete failure to comply with the maximum-penalty provision. 

 citing State v.

Wilson, 

 (1st Dist.), State v. Rogers, 

 (12th

Dist.), and State v. Sarkozy, 

, ¶ 22. But a trial court is deemed to have

partially complied with Crim.R. 11(C)(2)(a) if it mentions all components of the

maximum penalty during the plea colloquy, even if the advisement as to any one is

incomplete or inaccurate. 

 at ¶ 30 and 39.

                       Mandatory Consecutive Sentences

       {¶20} Johnson contends he was “not informed that if he was sentenced to a

prison term” for his failure-to-comply offense under R.C. 2921.331(B), that prison

term would have to “run consecutive to any other prison term.” He argues that the

trial court thus failed to uphold its responsibility under Crim.R. 11(C) to ensure he

understood “the maximum penalty involved” in entering his pleas, rendering his pleas

involuntary.

       {¶21} Johnson was convicted under the 2021 version of Ohio’s failure-to-


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                   OHIO FIRST DISTRICT COURT OF APPEALS


comply     statute,    with    a    harmful/dangerous         conduct     enhancement        under

R.C. 2921.331(C)(5).1 With this enhancement, his offense became a third-degree

felony and had to be served “consecutively to any other prison term.” Former

R.C. 2921.331(D). Ohio courts have held that this “consecutive service mandate

applies where,” as here, “a defendant is being sentenced in two or more separate

cases.” State v. Smith, 

 (8th Dist.); accord, e.g., State v. Jeffery,

 (5th Dist.) (holding that “R.C. 2921.331(D) mandates a sentence

consecutive to appellee’s prior sentences” imposed for other cases in other counties).

        {¶22} We hold that the trial court’s failure to inform Johnson that any prison

sentence for the failure-to-comply charge must be served consecutively to any other

prison sentence violated Crim.R. 11(C)(2)(a)’s maximum-penalty provision. This

result is dictated by our recent decision in Cook, 

 (1st Dist.),

in which we held “that the failure to advise a defendant that a guilty plea to a failure to

comply charge carries a mandatory consecutive sentence under R.C. 2921.331(D)

violates Crim.R. 11(C).” The Cook rule is rooted in the qualitative difference between,

on the one hand, a sentence that may be “up to 36 months” and, on the other, a

sentence that could run for “up to 36 months, to be served consecutively with any

other sentence.” Thus, we have held that a “defendant who does not understand that

a mandatory prison term will be added to any other term of incarceration cannot

understand the maximum sentence created by a guilty plea.” Id. at ¶ 38, citing State v.



1 The crimes to which Johnson pleaded guilty occurred between July 2021 and October 2021, but

the relevant sentencing statutes and provisions have changed slightly since that date. Unless
otherwise stated, the amendment of a statute will not “[a]ffect any violation thereof or penalty,
forfeiture, or punishment incurred in respect thereto, prior to the amendment,” unless that
“penalty, forfeiture, or punishment for any offense is reduced by” the amendment. R.C. 1.58(A)(3)
and (B). Because the amended versions of the statutes dictating Johnson’s sentences in this case do
not purport to be retroactive, and because they do not lighten the penalty, punishment, or forfeiture
imposed, we apply the sentencing provisions in effect on the dates in the indictment.


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                 OHIO FIRST DISTRICT COURT OF APPEALS


Norman, 

, ¶ 12 (8th Dist.).

       {¶23} Despite failing to mention the mandatory consecutive character of the

failure-to-comply sentence, the trial court in this case did not entirely fail to mention

a class of penalties that could come with Johnson’s maximum sentence. Under Cook,

the maximum prison term a defendant faces on a failure-to-comply charge is not

merely the number of years he might be incarcerated, but also the fact that those years

must run consecutively to any other sentence. See id. at ¶ 38. Thus, the failure to

disclose that a sentence must run consecutively misses a part of the maximum prison

term a defendant may face. So, by otherwise “discussing [Johnson’s] maximum

potential prison exposure [on the failure-to-comply charge]—however inaccurately or

incompletely—the trial court at least partially complied with the rule.” See Walker,

 (1st Dist.).

       {¶24} “[W]here 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.” Id. at ¶ 31, quoting Clark, 

, at

¶ 32. This means that Johnson must show that, “but for the violation of Crim.R. 11,”

he would not have entered his guilty pleas. See 

 citing Sarkozy, 

, at

¶ 20. “If the defendant was prejudiced, then his plea must be vacated as involuntary

under Crim.R. 11.” 

       {¶25} Johnson asserts that he would not have pled guilty and would have

proceeded to trial, had he been properly apprised of the fact that his failure-to-comply

sentence would have to run consecutively. But Johnson offers no explanation of why

this fact would have altered his decision, and points to no other evidence of prejudice.

       {¶26} In fact, the record contains evidence that Johnson had actual knowledge

that any prison sentence for his failure-to-comply charge had to run consecutively to


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                   OHIO FIRST DISTRICT COURT OF APPEALS


his remaining charges. During a plea hearing just three days prior, at which the court

rejected Johnson’s guilty pleas, Johnson himself explained that, if he were to go to trial

and be found guilty of all counts, his minimum prison exposure would have been

“three years and nine months.” The most obvious way for Johnson to have reached

this total would have been to run all of his possible sentences concurrently, except for

one third-degree felony—like the failure-to-comply offense.2 If this is how Johnson

understood his minimum term, it suggests he knew at least one third-degree felony

carried a mandatory consecutive prison term. In addition, the record demonstrates

instances during prior hearings when Johnson’s lawyer referenced the mandatory

consecutive sentence for the failure-to-comply offense explicitly.

        {¶27} The agreed sentences recommended in Johnson’s plea-change forms

also suggest that Johnson knew about the mandatory consecutive sentence for the

failure-to-comply charge. Johnson’s pleas involved four charges in two cases. On the

two change-of-plea forms, both of which bear Johnson’s signature, Johnson agreed to

a cumulative 24-month sentence, comprised of three 12-month sentences to run

concurrently, and one 12-month sentence to run consecutively. The agreements

specified the failure-to-comply sentence as the one running consecutively.

        {¶28} Ultimately, the burden falls on Johnson to show that he suffered

prejudice from the trial court’s failure to follow Crim.R. 11 precisely. See Walker,

 (1st Dist.) (“Walker bears the burden of demonstrating that,

but for [the violation of Crim.R. 11(C)], he would not have pled guilty.”). Johnson has


2 Johnson’s indictments, prior to the pleas, contained several first-degree felonies, which carried

mandatory minimum terms of three years each. See former R.C. 2929.14(A)(1)(a). As such, if
Johnson received all minimum sentences, and if those sentences ran concurrently, then his term
would have been three years. However, because the failure-to-comply charge had to be run
consecutively, Johnson had stacked its minimum sentence of nine months on top of the three years,
see former R.C. 2929.14(A)(3)(b), and thereby arrived at his total minimum term of three years and
nine months.


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                 OHIO FIRST DISTRICT COURT OF APPEALS


not offered such evidence. Instead, the record suggests that he had actual knowledge

of the mandatory consecutive sentence he faced, and Johnson has offered nothing to

refute that inference. We therefore hold that Johnson has failed to demonstrate that

the trial court’s partial deficiency prejudiced his decision to plead guilty.

       {¶29} This     conclusion    does   not   contradict    our   holding    in   Cook,

 (1st Dist.). In that case, we held that the trial court had “entirely failed

to advise Cook of the mandatory consecutive sentence that attached to his failure to

comply guilty plea.” Id. at ¶ 39. At first blush, this language might suggest that we held

the trial court in Cook had completely failed to comply with Crim.R. 11(C). However,

further examination of Cook reveals that we actually found partial compliance.

       {¶30} After concluding in Cook that the trial court’s plea colloquy had been

deficient, we proceeded to note that “[n]either the plea form Cook executed nor the

trial court at sentencing” had mentioned the mandatory consecutive sentence, before

holding that, “based on the record before us, Cook was not able to fully comprehend

the sentencing consequences created by his guilty plea.” Id. We do not examine plea

agreements to assess a trial court’s compliance with Crim.R. 11(C), partial or

otherwise. See Wilson, 

 (1st Dist.) (“Although the plea form he

signed included the maximum sentence, Crim.R. 11 requires the trial court to

personally address the defendant and inform him of the maximum sentence during

the plea colloquy.”); see also State v. Gipson, 

, *9-10 (1st

Dist. Sept. 30, 1998) (describing how this court “examine[s] compliance with Crim.R.

11 by examining the trial court’s communication to the defendant, not the defendant’s

subjective understanding of his rights”). Our examination of the plea agreement in

Cook, therefore, was done to determine whether Cook had suffered prejudice. And our

further discussion of how the trial court had miscalculated Cook’s aggregate sentence


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                 OHIO FIRST DISTRICT COURT OF APPEALS


likewise served to illustrate the prejudice he suffered from this omission. See 

.

        {¶31} Reaching the question of prejudice in Cook means that we did not

believe that the trial court had completely failed to comply with Crim.R. 11(C).

Because, in Cook, we had no evidence of the defendant’s actual knowledge, we found

it relatively easy to see how a failure to mention a mandatory-consecutive-sentence

requirement would have prejudiced the defendant’s plea decision.

        {¶32} Thus, we hold that the trial court in this case partially complied with its

duty under Crim.R. 11(C) by informing Johnson of the maximum duration of his

sentences, despite failing to inform him that the sentence for his failure-to-comply

charge had to run consecutively. And we further hold that Johnson has not

demonstrated that he was prejudiced by this deficiency.

                           Period of License Suspension

        {¶33} Johnson also argues that his pleas were involuntary because he was not

“correctly advised of a mandatory driving suspension” for the failure-to-comply

charge.

        {¶34} Under the then-current version of R.C. 2921.331, “[i]n addition to any

other sanction imposed for a felony violation of [R.C. 2921.331(B)], the court shall

impose a class two suspension from the range specified in [R.C. 4510.02(A)(2)].”

(Emphasis added.) Former R.C. 2921.331(E). R.C. 4510.02(A)(2), in turn, allows a

court to suspend a driver’s license for “a definite period of three years to life.”

        {¶35} A suspension of the defendant’s driver’s license is part of “the maximum

penalty involved” in entering a guilty plea, which the court must ensure the defendant

understands under Crim.R. 11(C)(2)(a). See, e.g., State v. Walz, 

(2d Dist.) (holding that trial court failed to comply with Crim.R. 11(C) by not informing


                                            12
                 OHIO FIRST DISTRICT COURT OF APPEALS


defendant of mandatory license suspension); State v. Hendershot, 

 (5th Dist.) (describing the defendant’s “license suspension” as “a component of

the maximum penalty for the charges”); see generally State v. Fry-McMurray,

, ¶ 20-26 (7th Dist.) (summarizing several cases addressing license

suspensions under Crim.R. 11).

       {¶36} During the plea colloquy, the trial court advised Johnson as follows:

              THE COURT: On the failure to comply charge on the B22 case,

       there is an additional potential penalty, a suspension of your driver’s

       license, between five months and six years; do you understand that

       potential penalty?

              THE DEFENDANT: Yes, Ma’am.

This description was doubly wrong. First, it was wrong because the court referred to

the suspension twice as a “potential penalty,” when the statute uses mandatory

language: “the court shall impose . . . a suspension.” (Emphasis added.) Former

R.C. 2921.331(E). Second, it was wrong because the range of suspension durations did

not reflect the range from which the court was permitted to choose—the court said the

suspension could range from five months to six years, while the relevant statutory

provision set the range at “three years to life.” R.C. 4510.02(A)(2).

       {¶37} However, the trial court’s failure of compliance was not “complete.” The

trial court attempted to inform Johnson of the driver’s license penalties; it was just

wrong about what those penalties were. Compare 

, citing

Sarkozy, 

, at ¶ 22-23 (“There is a difference between a complete failure

to mention something like postrelease control and when there is some mention of it.”);

accord Walker, 

 (1st Dist.). Because the trial court partially

complied, we turn to the prejudice prong.


                                            13
                OHIO FIRST DISTRICT COURT OF APPEALS


       {¶38} Under the peculiar facts of this case, Johnson cannot show prejudice.

True, the trial court’s reference to license suspension was seriously inaccurate, both

because it claimed that the suspension was discretionary and because it provided an

inaccurate temporal range for that suspension. But the force of Johnson’s objection is

dampened when one realizes that the trial court did not impose the usually-mandatory

driver’s license suspension in his case. Nor did the State challenge that sentence or

seek such a suspension—Johnson’s signed plea agreements make no reference to any

driver’s-license suspension. And the trial court ultimately made no mention of any

license suspension when it announced Johnson’s sentences from the bench, nor in its

journal entry imposing the sentences.

                                        …

       {¶39} For the foregoing reasons, Johnson’s sole assignment of error is

overruled and the judgments of the trial court are affirmed.

                                                                  Judgments affirmed.

BOCK, 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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