[Cite as State v. Glenn,
2025-Ohio-3121.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 24CA4082
v. :
MICAH ERIN GLENN, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Harry R. Reinhart, Columbus, Ohio, for appellant1.
Brigham M. Anderson and Andrea M. Kratzenberg, Special Prosecuting
Attorneys, Ironton, Ohio, for appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:8-26-25
ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas Court
judgment of conviction and sentence. Micah Glenn, defendant below
and appellant herein, raises one assignment of error for review:
“A WAIVER OF RIGHTS PURSUANT TO A PLEA OF
GUILTY IS NOT VOLUNTARY, KNOWING, AND
INTELLIGENT WITHIN THE MEANING OF THE STATE AND
FEDERAL CONSTITUTIONS WHERE THE DEFENDANT IS
TOLD THAT SHE WOULD BE ELIGIBLE TO APPLY FOR
JUDICIAL RELEASE DURING A MANDATORY PRISON
SENTENCE FOR ENGAGING IN A PATTERN OF CORRUPT
ACTIVITY IN VIOLATION OF R.C. 2923.32(A)(1).”
1
Different counsel represented appellant during the trial
court proceedings.
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{¶2} A Scioto County Grand Jury returned a 305-count
indictment that charged appellant with (1) 36 counts of drug
trafficking in violation of R.C. 2925.03(A)(1), fifth-degree
felonies, (2) 116 counts of aggravated drug trafficking in
violation of R.C. 2925.03(A)(1), fourth-degree felonies, (3) 36
counts of deception to obtain dangerous drugs in violation of R.C.
2925.22(A), fifth-degree felonies, (4) 116 counts of deception to
obtain dangerous drugs in violation of R.C. 2925.22(A), fourth-
degree felonies, and (5) one count of engaging in a pattern of
corrupt activity in violation of R.C. 2923.31(A)(1), a second-
degree felony. Appellant entered not guilty pleas.
{¶3} On April 23, 2024, the trial court held a combined plea
and sentencing hearing and the court recited the parties’ plea
agreement. The court conducted a Crim.R. 11 colloquy and advised
appellant of her rights and the effects of her decision to plead
guilty. The court advised and reviewed with appellant the
constitutional rights she waived with her plea, including (1) the
right to a jury trial, (2) the right to confront one’s accusers,
(3) the right to compulsory process to obtain witnesses, (4) the
right to require appellee to prove guilt beyond a reasonable doubt,
and (5) the privilege against compulsory self-incrimination. The
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court also explained the mandatory nature of appellant’s prison
term, advised her of post-release control, and indicated,
“[t]here’s been an agreement between the parties about judicial
release at two years assuming that there’s no problems.”
{¶4} Appellant entered a plea of guilty to: (1) Count 153, a
fifth-degree felony count of deception to obtain a dangerous drug
in violation of R.C. 2925.22(A), (2) Count 189, a fifth-degree
felony count of deception to obtain a dangerous drug in violation
of R.C. 2925.22(A), and (3) Count 305, a second-degree felony count
of engaging in a pattern of corrupt activity in violation of R.C.
2923.32(A)(1).
{¶5} After accepting appellant’s plea, the trial court
sentenced appellant to (1) serve an 11-month prison term on Count
153, (2) serve a 17-month prison term on Count 189, (3) serve an
indefinite 3-year minimum to 4 ½ year maximum prison term on Count
305, with 3 years being mandatory, (4) serve all counts
concurrently to each other for a total sentence of 3 years to 4 ½
years, with 3 years being mandatory, (5) serve a mandatory 18-month
to 3-year postrelease control term, and (6) pay costs. The court
concluded the sentencing hearing by stating, “[m]y file is marked
for judicial release at two years with no problems.” This appeal
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followed.
I.
{¶6} In her sole assignment of error, appellant asserts that a
waiver of rights pursuant to a guilty plea is not voluntary,
knowing, and intelligent when a defendant is informed that she
would be eligible to apply for judicial release during a mandatory
prison sentence for engaging in a pattern of corrupt activity in
violation of R.C. 2923.32(A)(1). In particular, appellant
identifies her judicial release eligibility as a material factor in
her plea bargain, and contends that she would not have waived her
right to jury trial but for this provision of the plea agreement.
Standard of Review
{¶7} When reviewing felony sentences, appellate courts apply
the standard of review outlined in R.C. 2953.08(G)(2). State v.
Prater, 2019-Ohio-2745, ¶ 12 (4th Dist.), citing State v. Graham,
2018-Ohio-1277, ¶ 13 (4th Dist.). Under R.C. 2953.08(G)(2), “[t]he
appellate court's standard for review is not whether the sentencing
court abused its discretion.” Instead, R.C. 2953.08(G)(2)
specifies that an appellate court may increase, reduce, modify, or
vacate and remand a challenged felony sentence if the court clearly
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and convincingly finds either:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13,
division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶8} “[C]lear and convincing evidence is that measure or
degree of proof which is more than a mere ‘preponderance of the
evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
Thus, an appellate court may vacate or modify any sentence that is
not clearly and convincingly contrary to law if the appellate court
concludes, by clear and convincing evidence, that the record does
not support the sentence.
{¶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. Veney, 2008-Ohio-5200, ¶ 7, quoting
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State v. Engle, 74 Ohio St.3d 525, 527 (1996); accord State v.
Montgomery,
2016-Ohio-5487, ¶ 40; State v. Barker,
2011-Ohio-4130,
¶ 9. “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 consequence.’ ” Montgomery at ¶ 40, quoting Boykin v.
Alabama,
395 U.S. 238, 244 (1969); State v. Conley,
2019-Ohio-4172,
¶ 34 (4th Dist.).
{¶10} “To ensure the finality of a proper guilty plea, Crim.R.
11(C) provides a framework for informing a defendant of his or her
constitutional rights.” State v. Ballard, 66 Ohio St.2d 473, 479
(1981). Under Crim.R. 11(C)(2), in felony cases, “the court may
refuse to accept a plea of guilty ... and shall not accept a plea
of guilty ... without first addressing the defendant personally ...
and doing all of the following:”
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the
charges and of the maximum penalty involved, and if
applicable, that the defendant is not eligible for
probation or for the imposition of community control
sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or
no contest, and that the court, upon acceptance of the
plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
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waiving the rights to jury trial, to confront witnesses
against him or her, to have compulsory process for
obtaining witnesses in the defendant's favor, and to
require the state to prove the defendant's guilt beyond a
reasonable doubt at a trial at which the defendant cannot
be compelled to testify against himself or herself.
Crim.R. 11(C)(2)(a)-(c)
{¶11} The Supreme Court of Ohio has instructed that the
underlying purpose of Crim.R. 11(C) is to convey certain
information to allow the defendant to make a voluntary and
intelligent decision whether to plead guilty. Ballard at 479-480;
State v. Woodworth,
2024-Ohio-2756, ¶ 12 (6th Dist.).
{¶12} In the case at bar, appellant does not challenge the
trial court's compliance with Crim.R. 11, but rather argues that
the court incorrectly advised her that she is eligible for judicial
release after two years. Consequently, appellant asserts that she
did not enter a knowing, intelligent, and voluntary plea. In State
v. Engle, supra, the Supreme Court of Ohio held that when a
defendant enters and a court accepts a guilty plea with both acting
on the erroneous understanding of the applicable law, the defendant
does not enter the plea knowingly and intelligently.
Id.,74 Ohio
St.3d at 527-28. Engle entered her plea based on the erroneous
understanding that she could appeal the trial court’s rulings that
prevented her from submitting evidence regarding duress and
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battered woman’s syndrome. Id. at 528. Thus, the court concluded
that Engle did not enter her plea knowingly or intelligently.
Id.
{¶13} In a similar case, the judgment entry included the
following language: “I understand that if I am sentenced to prison
terms I am eligible for judicial release upon serving not less than
30 days nor more than 90 days, after entering a state correctional
institution.” The entry also stated that the court found that
appellant “is eligible for judicial release.” State v. Bush, 2002-
Ohio-6146, ¶ 4 (3d Dist.). The trial court overruled Bush’s R.C.
2929.20 judicial release motion, his pro se motion to modify the
sentence from consecutive to concurrent prison terms, and his
Crim.R. 32.1 motion to withdraw the guilty pleas. Id. at ¶ 6-7.
On appeal, the Third District held that because Bush and the trial
court acted on an erroneous assumption that Bush would be eligible
to apply for judicial release, but applicable law at the time
precluded it, Bush did not enter his guilty plea knowingly and
intelligently, which created a manifest injustice that warranted
withdrawal of his pleas. Id. at ¶ 11.
{¶14} In a similar case from the Third District, at the
sentencing hearing, counsel requested that the court “grant a
number of years, no more than five, so that he would at least be
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eligible for judicial release after six months in jail.” State v.
Cook, 2002-Ohio-2846, ¶ 3 (3d Dist.). At the hearing, the trial
court did not address whether Cook would be eligible for judicial
release; however, the sentencing entry stated the sentence length
and stated, “of which none has been ordered as a mandatory term.”
Id. at ¶ 4. The statute governing Cook’s sentence, R.C.
2929.13(F)(5), required a mandatory term without possibility of
judicial release. Id. at ¶ 12. Thus, the Third District
concluded, “it appears that there was a specific misunderstanding
and mistake of law by court and counsel as to whether Cook was
eligible for judicial release.” The court determined that the
fundamental error, corroborated by the record, constituted both a
sufficient reason to void the plea and a manifest injustice under
Crim.R. 32.1. Id.
{¶15} In State v. Johnson, 2009-Ohio-1871, (4th Dist.), the
defendant initially pleaded not guilty, but later agreed to plead
guilty to two possession counts in exchange for (1) dismissal of a
trafficking charge, (2) imposition of a three-year prison term in
one case and a four-year prison sentence in another case, to be
served consecutively, and (3) judicial release eligibility after
four years. Id. at ¶ 5. This court noted that the change-of-plea
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hearing transcript revealed that as part of the agreement, the
trial court informed Johnson that, “there [would] be no objection
to a judicial release at the end of four years in the
penitentiary,” and that it “anticipated” that he would be given
judicial release within that time frame. Id. at ¶ 12. The parties
did not dispute that they based their assurances on a
misinterpretation of Ohio law. Id. at ¶ 13.
{¶16} This court observed, however, that, “[g]enerally, if the
parties and the trial court have made a mutual mistake regarding
the terms of a plea agreement, the proper remedy is to rescind it.”
Id. at ¶ 14, citing State v. Hart, 2005-Ohio-107, ¶ 12 (8th Dist.);
State v. Wintrow,
2005-Ohio-3447, ¶ 21 (12th Dist.). We noted:
there is no question that everyone involved in the case
sub judice misunderstood the law. We also recognize that
the complexity of the felony-sentencing statutes
contributed greatly to this misunderstanding. Thus, as in
any other contractual situation, no ‘meeting of the minds’
existed, and the appropriate recourse is to rescind the
plea agreement.
Id. at ¶ 14. Compare State v. Farley, 2003-Ohio-7338, ¶ 22 (4th
Dist.)(no abuse of discretion when the only mention of judicial
release occurred after the trial court imposed sentence, when it
noted that the state would not oppose judicial release at the end
of appellant serving three years).
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{¶17} In the case sub judice, at the change-of-plea hearing the
trial court stated:
THE COURT: Ms. Glenn today is going to enter a plea to
count 305, Engaging in [a] pattern of corrupt activity.
It’s a felony of the 2nd degree. The sentence in that
case will be on that count with be a 3 to 4 ½ year sentence
on the felony 2. That will be a mandatory sentence.
There’s been an agreement between the parties about
judicial release at two years assuming that there’s no
problems. And what that means is I can’t let an individual
go to prison and start raising hell in the institution. I
can put up with some minor adjustment problems but I don’t
want fighting with guards and new crimes in the
institution, okay? The sentence uh, and then also plea to
count 189, Deception to obtain a dangerous drug, a felony
of the 4th degree, that’ll be a 17-month sentence on that.
Count 153, Deception to Obtain a Dangerous Drug, that is a
felony 5, it will be an 11-month sentence, however, they’ll
all be run concurrent for a total intended sentence of 3
to 4 ½. We need to make sure that language is in there
that the mandatory time is served first, Kari. (Emphasis
added.)
Later, the court stated:
THE COURT: Alright. Ms. Glenn, you’re entering a plea
today to a felony 2. That carries a mandatory sentence.
A felony 4 and a felony 5. On the felony 2, the maximum
prison term would be a sentence of 8 years mandatory to 12
years under Ohio’s Indefinite Sentencing Law. Do you have
any questions about Ohio’s Indefinite Sentencing Law?
You’ve been explained that? And it’s going to be based
upon your behavior in the institution, okay?
DEFENDANT GLENN: Yes.
THE COURT: On the felony of the 4th degree, the maximum
prison sentence is 18 months. On the felony 5, it is 12
months. In addition, I can impose Court costs, order
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restitution or impose other financial sanctions which are
probation fees. Do you have any questions so far? . . .
DEFENDANT GLENN: No.
{¶18} The trial court then explained post-release control and
consequences of violating it, and the concept of community control.
THE COURT: Ms. Glenn, your maximum sentence would be uh,
10 ½ to 14 ½ years. However, we’re limiting it here to a
sentence of 3-4 ½ years. Do you understand that?
DEFENDANT GLENN: Yes.
{¶19} The trial court reviewed the rights appellant waived with
her plea, asked if she was satisfied with her representation, and
proceeded to sentencing. Counsel stated:
MR. STRATTON: Your Honor, I just ask that you follow the
joint recommendation of 3 to 4 ½ years running the F4 and
F5 concurrent, uh, there’s an agreement note that in your
record in [sic.] agreement for judicial release at two
years as long as there’s no problems and 60 days stay of
execution. (Emphasis added.)
When the trial court imposed sentence, the court stated:
THE COURT: Micah Glenn 23-CR-666(D) it’s going to be the
sentence of this Court as to count 305, a Felony of the 2nd
degree, that you be sentenced to 3 to 4 ½ years in the
custody of the Ohio Department of Rehabilitation and
Correction. That three-year sentence is a mandatory
sentence. I’m going to assess no fine. On count 189, I’m
going to sentence you to 17 months in prison. Count 5,
I’m going to sentence you to 11 months in prison. I’m
going to order all these counts run concurrent to each
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other for a total intended sentence of 3 to 4 ½ years. My
file is marked for judicial release at two years with no
problems. (Emphasis added.)
{¶20} Although the sentencing entry does not address judicial
release, both counsel and the trial court mentioned it multiple
times at the combined plea/sentencing hearing as noted above.
Appellee, however, contends that the trial court may still grant
judicial release pursuant to R.C. 2929.20(J). We disagree.
{¶21} In State v. Platt, 2024-Ohio-1331, (4th Dist.), this
court held:
Pursuant to R.C. 2929.20 a court shall not grant a judicial
release under this section to an eligible offender who is
imprisoned for a felony of the first or second degree, or
to an eligible offender who committed an offense under
Chapter 2925 or 3719 of the Revised Code and for whom there
was a presumption under section 2929.13 of the Revised Code
in favor of a prison term, unless the court makes certain
findings. See R.C. Section 2929.20(J)(1).
Id. at ¶ 7. However, as appellant points out, R.C. 2929.20(J)
requires the judicial release applicant to be an “eligible
offender,” and appellant is not an eligible offender for two
reasons. First, R.C. 2929.20(A)(1)(a) defines eligible offender:
Except as provided in division (A)(1)(b) of this section,
“eligible offender” means any person who, on or after April
7, 2009, is serving a stated prison term that includes one
or more nonmandatory prison terms.
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R.C. 2929.20(A)(4) defines nonmandatory prison term, “
‘Nonmandatory prison term’ means a prison term that is not a
mandatory prison term.” As appellant points out, the trial court
sentenced her to serve a three-to-four-and-a-half-year sentence,
with three years being a mandatory prison term. Thus, appellant is
ineligible for judicial release during the three-year mandatory
prison term, despite counsel and the trial court informing her that
she is eligible for judicial release after two years.
{¶22} Second, appellant is ineligible for judicial release
after two years because she is serving a disqualifying prison term.
R.C. 2929.20(A)(1) defines “disqualifying prison term,” as: “(A) As
used in this section: (10) “Disqualifying prison term” means any of
the following: (f) a prison term imposed for engaging in a pattern
of corrupt activity in violation of section 2923.32 of the Revised
Code” (Emphasis added.). Because appellant is serving a 3-year
mandatory prison term for violating R.C. 2923.32(A)(1), engaging in
a pattern of corrupt activity, she is not an “eligible offender”
under R.C. 2929.20(A)(1).
{¶23} As appellant highlights, counsel and the trial court did
not promise appellant that she would be granted judicial release,
but they informed her that she could be released after two years.
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Pursuant to Johnson, supra,2009-Ohio-1871, at ¶ 17, we believe
that this incorrect statement of the law ostensibly induced
appellant to enter a guilty plea in exchange for the promise that
she would be eligible for judicial release after serving two years
of her sentence, which is earlier than what the law allows. Thus,
we do not believe that this misunderstanding can form the basis of
a valid plea agreement. See
Johnson at ¶ 17.
{¶24} Accordingly, based upon the foregoing reasons, we sustain
appellant's assignment of error, reverse the trial court's
judgment, vacate the plea agreement, and remand the cause for
further proceedings.
JUDGMENT REVERSED AND CAUSE
REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
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JUDGMENT ENTRY
It is ordered that the judgment be reversed and the matter be
remanded for further proceedings consistent with this opinion.
Appellant shall recover of appellee the 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 Scioto 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 the 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 that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
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final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.
