[Cite as State v. Bigbee,
2025-Ohio-4587.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114647
v. :
COREY BIGBEE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 2, 2025
Criminal Appeal from the Cuyahoga County Common Pleas Court
Case No. CR-23-687542-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carla B. Neuhauser, Assistant Prosecuting
Attorney, for appellee.
Law Office of John T. Forristal and John T. Forristal, for
appellant.
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant Corey Bigbee (“Bigbee”) appeals his guilty plea
and asks this court to vacate the plea and sentence. After thorough review, we
affirm.
{¶2} Bigbee pleaded guilty to an amended indictment, including burglary, a
second-degree felony, in violation of R.C. 2911.12(A)(1); and assault, a first-degree
misdemeanor, in violation of R.C. 2903.13(A). Counts 1 and 4 were nolled in their
entirety. Bigbee agreed to no contact with the victim and restitution that would be
determined. The trial court sentenced Bigbee to two years’ imprisonment, up to a
maximum of three years under the Reagan Tokes Law on the burglary count; and
30 days in jail on the assault count, with credit for time served.
I. Facts and Procedural History
{¶3} On December 9, 2023, the victim alleged that Bigbee followed her into
an elevator and then out to a hallway as she walked to her apartment and forced
his way into her apartment. Bigbee began accusing the victim of stealing his DVD
reader. 1 Tr. 25. Bigbee physically attacked a neighbor, while she fought back using
a baseball bat and forced Bigbee into the hallway, out of her apartment. Another
neighbor and his friend, hearing the commotion, started to fight with Bigbee. This
gave the victim an opportunity to escape and call the police. Bigbee stated that he
was going to get a firearm. Id. Upon the arrival of the police, Bigbee was arrested
holding a hammer, broomstick, and screwdriver. Tr. 24.
{¶4} Bigbee was indicted on one count of aggravated burglary; one count of
burglary; one count of assault; and one count of menacing. The case was placed
on the mental-health docket, Bigbee was found competent, and it was determined
1 We note the difference regarding what item was alleged stolen. During
sentencing, defendant stated, “Somebody said she broke in my house and took my TV.”
Tr. 30.
that he was able to assist in his own defense. On June 17, 2024, Bigbee’s trial
counsel stipulated to the competency report. Tr. 3. The trial court discussed plea
offers made by the State to Bigbee to ensure he understood his rights. Tr. 3-7. The
trial court also adjourned the proceedings so Bigbee could speak to his attorney
regarding any questions he needed answered and to give Bigbee a chance to meet
with a mental-health team for resources such as medication, housing, or
employment. Tr. 8-9.
{¶5} On July 31, 2024, Bigbee accepted the plea offer made by the State.
The trial court advised Bigbee of his rights and asked: “Do you have any questions
at this time regarding any of the rights that you’re giving up or the potential
consequences that you face by entering this plea?” Tr. 18-19. Bigbee replied, “No.”
Tr. 19. The trial court then stated:
I’m satisfied as well that your plea today will be knowingly,
voluntarily, and intelligently given after I advised you of your
constitutional rights and the potential consequences that you face.
Knowing all that, sir, how do you now plead to count two, burglary, a
felony of the second degree; guilty or not guilty?
...
And to count three, assault, a misdemeanor of the first degree; guilty or
not guilty?
Id.
{¶6} Bigbee pleaded guilty to both counts. The trial court accepted Bigbee’s
pleas and scheduled the sentencing hearing for a future date.
{¶7} On August 28, 2024, at the sentencing hearing, the trial court asked
Bigbee if there was anything he wanted to say. Bigbee responded: “That lady is not
the same lady that I had the altercation with. I don’t know her at all. I don’t know
who this lady is. That’s not the same lady.” Tr. 30. The trial court sentenced
Bigbee to two years’ imprisonment, up to a maximum of three years under the
Reagan Tokes Law on the burglary count; and 30 days in jail on the assault count,
with credit for time served.
{¶8} Bigbee filed this appeal and assigned three errors for our review:
1. Bigbee’s guilty pleas are unconstitutional and must be vacated
as they were not entered knowingly, intelligently, and
voluntarily because he professed his innocence and the trial
court failed to comply with the Alford mandates by conducting
the required inquiry prior to accepting the guilty pleas;
2. Bigbee’s trial counsel was ineffective for failing to make a
motion to withdraw Bigbee’s guilty plea during the sentencing
hearing; and
3. Ohio’s indefinite sentencing law, the Reagan Tokes Act, is
unconstitutional because it violates the Sixth Amendment,
constitutional guarantees of separation of powers and due
process.
II. Alford Plea
A. Standard of Review
{¶9} “In considering whether a plea was entered knowingly, intelligently,
and voluntarily, ‘an appellate court examines the totality of the circumstances
through a de novo review of the record.’” State v. Alvelo, 2017-Ohio-742, ¶ 21 (8th
Dist.), quoting State v. Spock,
2014-Ohio-606, ¶ 7 (8th Dist.).
B. Law and Analysis
{¶10} In Bigbee’s first assignment of error, he argues that his guilty pleas
were not made knowingly, intelligently, and voluntarily and that the trial court
failed to comply with the North Carolina v. Alford, 400 U.S. 25 (1970) mandates.
“‘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.’” Id. at ¶ 20, quoting State v. Engle,
74
Ohio St.3d 525, 527 (1996); see also State v. Veney,
2008-Ohio-5200, ¶ 7.
{¶11} When taking a guilty plea, the trial court must comply with Crim.R.
11(C)(2), which states:
In felony cases the court may refuse to accept a plea of guilty, or a plea
of no contest and shall not accept a plea of guilty or no contest without
first addressing the defendant personally either in-person or by
remote contemporaneous video in conformity with Crim.R. 43(A) 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
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.
{¶12} At the plea hearing, the trial court fully complied with Crim.R. 11, and
that fact is not disputed. However, at the sentencing hearing, Bigbee claimed that
the woman in the courtroom was not the woman he had the altercation with, and
thus the trial court should have complied with the Alford mandates. “An Alford
plea exists where a defendant enters a guilty plea contemporaneously with a
‘protestation of innocence.’” Alvelo, 2017-Ohio-742, at ¶ 23, citing Alford v. North
Carolina,
400 U.S. 25, 37-38 (1970). “Where a defendant enters an Alford plea,
the trial court must inquire into the factual basis surrounding the charges to
determine whether the defendant is making an intelligent and voluntary guilty
plea.”
Id. “The trial court may accept the guilty plea only if a factual basis for the
guilty plea is evidenced by the record.”
Id.
{¶13} “To constitute an Alford plea, the defendant ‘must enter a guilty plea
and at the same time protest innocence.’” State v. Smith, 2024-Ohio-1979, ¶ 10
(8th Dist.), quoting State v. Johnson,
2016-Ohio-2840, ¶ 27 (8th Dist.). It is well
understood that Alford will not apply if the protestation of innocence is made after
and not contemporaneously with the guilty plea. Id. at ¶ 11.
{¶14} On July 31, 2024, when Bigbee accepted the plea offer, he did not
enter his guilty plea while protesting his innocence. A valid Alford plea exists
where the defendant enters a guilty plea while proclaiming his innocence on the
record. See State v. Nevels, 2020-Ohio-915, ¶ 25 (8th Dist.). A review of the record
reveals that Bigbee never claimed he was innocent of the altercation; rather, he
argued that the victim was someone else. Bigbee stated, “That lady is not the same
lady that I had the altercation with. I don’t know her at all.” Tr. 30. Bigbee went
on to state that he was in a confrontation with a lady named “Rita, that’s not her.”
Id. Bigbee described the altercation with a man, being hit with a mini bat and being
arrested with a hammer and screwdriver, but never protested his innocence. Tr.
31. Bigbee went on to state “if the lady in the court states it was me, I am sorry.”
Id. Moreover, these statements were made during sentencing and not during his
plea hearing. Therefore, we cannot say that Bigbee’s guilty pleas were not made
knowingly, intelligently, and voluntarily. The trial court did not fail to comply with
the Alford’s mandates.
{¶15} Bigbee’s first assignment of error is overruled.
II. Ineffective Assistance of Counsel
{¶16} In Bigbee’s second assignment of error, he argues that his trial
counsel was ineffective for failing to make a motion to withdraw his guilty plea
because of his profession of innocence. In line with our decision in the first
assignment of error, Bigbee did not profess his innocence at either the plea or
sentencing hearing. Thus, trial counsel was not mandated to make a motion to
withdraw Bigbee’s guilty pleas. See Cleveland v. Bates, 2023-Ohio-3627, ¶ 32 (8th
Dist.), quoting State v. Witherspoon,
2011-Ohio-704, ¶ 33 (8th Dist.) (“Counsel’s
failure to make a futile or frivolous motion ‘cannot be the basis for claims of
ineffective assistance of counsel and is not prejudicial.’”).
{¶17} Therefore, Bigbee’s second assignment of error is overruled.
III. Reagan Tokes Law
{¶18} In Bigbee’s third assignment of error, he argues that the Reagan
Tokes Act Law is unconstitutional because it violates the separation of powers as
guaranteed by the United States Constitution and Ohio Constitution and his due-
process rights.
{¶19} In State v. Delvallie, 2022-Ohio-470 (8th Dist.), this court, sitting en
banc, held that the indefinite sentencing provisions of the Reagan Tokes Law did
not violate the separation-of-powers doctrine, a defendant’s right to a jury trial, or
due process of law. The Ohio Supreme Court rejected similar constitutional
challenges to the Reagan Tokes Law’s indefinite sentencing scheme in State v.
Hacker,
2023-Ohio-2535. The Ohio Supreme Court thereafter affirmed this
court’s judgment in Delvallie on the authority of Hacker. The arguments
presented in this case do not present novel issues or theories challenging the
constitutional validity of any aspect of the Reagan Tokes Law left unaddressed by
the Ohio Supreme Court’s decision in Hacker.
{¶20} Accordingly, pursuant to Hacker, we overrule Bigbee’s third
assignment of error.
{¶21} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
_____________________________
ANITA LASTER MAYS, JUDGE
EILEEN A. GALLAGHER, A.J., and
MICHAEL JOHN RYAN, J., CONCUR
