[Cite as State v. Clouser,
2025-Ohio-834.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114094
v. :
DAVID CLOUSER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 13, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-686387-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and James D. May, Assistant Prosecuting
Attorney, for appellee.
Wegman Hessler Valore and Matthew O. Williams, for
appellant.
EILEEN T. GALLAGHER, P.J.:
Defendant-appellant, David Clouser (“Clouser”), appeals his
convictions and sentence. He claims the following errors:
1. Appellant’s plea was not knowingly, voluntarily, and intelligently
entered.
2. The trial court’s imposition of a consecutive sentence is not
supported by the record.
3. The trial court committed reversible error prejudicing appellant
when it imposed an unconstitutional sentence upon appellant pursuant
to the “Reagan Tokes Law,” which is unconstitutional on its face.
We affirm the trial court’s judgment.
I. Facts and Procedural History
Clouser was charged in a 21-count indictment with six counts of identity
theft, one count of aggravated possession of drugs, two counts of grand theft, one
count of attempted grand theft, three counts of falsification in a theft offense, two
counts of fraudulent actions concerning a vehicle identification number (“VIN”),
two counts of improper use of certificate of title, one count of tampering with
evidence, one count of telecommunications fraud, and two counts of money
laundering. The charges included firearm and forfeiture specifications.
At a plea hearing on April 24, 2024, Clouser pleaded guilty to one count
of identity fraud in violation of R.C. 2913.49(B)(2), a felony of the second degree;
one count of drug possession in violation of R.C. 2925.11(A), a felony of the fifth
degree; two counts of grand theft in violation of R.C. 2913.02(A)(3), a felony of the
fourth degree; one count of attempted grand theft in violation of R.C. 2923.02 and
2913.02(A)(3), a felony of the fifth degree; one count of falsification in violation of
R.C. 2921.13(A)(9), a felony of the fourth degree; two count of fraudulent actions
concerning VINs, violations of R.C. 4549.62(D)(1), felonies of the fifth degree; one
count of tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the
third degree; and one count of additional money-laundering prohibitions in
violation of R.C. 1315.55(A)(1), a felony of the third degree. Many of the charges
carried forfeiture specifications resulting in the forfeiture of any interest in the items
involved in the alleged offenses, including guns, ammunition, and vehicles. At the
conclusion of the plea hearing, the judge who accepted Clouser’s guilty pleas on
behalf of the assigned judge stated that a sentencing hearing was scheduled for May
22, 2024, before the assigned judge.
At the sentencing hearing on May 22, 2024, the court sentenced Clouser
to an indefinite sentence of six to nine years on his identity-fraud conviction in
Count 1. The court imposed nine-month sentences on Clouser’s drug-possession,
attempted-theft, grand-theft, and fraudulent-actions-concerning-VIN convictions
set forth in Counts 7-10, 13, and 15. The court also sentenced Clouser to 30 months
on his tampering-with-evidence and money-laundering convictions set forth in
Counts 18 and 20.
The court ordered the sentences imposed on Counts 7-10, 13, and 15 to
run concurrently to each other and to Count 1. The court also ordered that the 30-
month sentences on Counts 18 and 20 run concurrently to each other but
consecutively to the indefinite prison term imposed on Count 1. Clouser now
appeals his convictions and sentence.
II. Law and Analysis
A. Guilty Pleas
In the first assignment of error, Clouser argues the trial court erred in
accepting his guilty pleas. He contends his guilty pleas were not knowingly,
intelligently, and voluntarily made because the court failed to inform him that it
could proceed immediately to sentencing after the court accepted his guilty pleas.
A defendant’s guilty plea must be entered knowingly, intelligently, and
voluntarily for the plea to be constitutional under the United States and Ohio
Constitutions. State v. Engle, 74 Ohio St.3d 525, 527 (1996). “Ohio 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,
56
Ohio St.3d 106, 107 (1990). Crim.R. 11(C) requires the trial court to convey certain
information to a defendant so that he or she can make a voluntary and intelligent
decision regarding whether to plead guilty or no contest. State v. Poage, 2022-Ohio-
467, ¶ 9 (8th Dist.), citing State v. Ballard,
66 Ohio St.2d 473, 479-480 (1981). As
an appellate court, we review the trial court’s adherence to Crim.R. 11(C) de novo
and consider the totality of the circumstances to determine whether the trial court
complied with the rule at the plea hearing. State v. Cardwell,
2009-Ohio-6827, ¶ 26
(8th Dist.).
Under Crim.R. 11(C)(2), a trial court shall not accept a guilty plea to a
felony offense without first addressing the defendant personally and doing all 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.
“When a criminal defendant seeks to have his conviction reversed on
appeal, the traditional rule is that he must establish that an error occurred in the
trial-court proceedings and that he was prejudiced by that error.” State v. Dangler,
2020-Ohio-2765, ¶ 13, citing State v. Perry,
2004-Ohio-297, ¶ 14-15, and State v.
Stewart,
51 Ohio St.2d 86, 93 (1977); Crim.R. 52. A limited exception exists when
the trial court fails to explain the constitutional rights waived by the defendant when
pleading guilty as outlined in Crim.R. 11(C)(2)(c).
Dangler at ¶ 14, citing State v.
Clark,
2008-Ohio-3748, ¶ 31, and State v. Veney,
2008-Ohio-5200, syllabus. A trial
court’s complete failure to comply with a portion of Crim.R. 11(C) also eliminates
the defendant’s burden to show prejudice. Id. at ¶ 15, citing State v. Sarkozy, 2008-
Ohio-509, ¶ 22.
“Aside from these two exceptions, the traditional rule continues to
apply: a defendant is not entitled to have his plea vacated unless he demonstrates
he was prejudiced by a failure of the trial court to comply with the provisions of
Crim.R. 11(C).” Dangler at ¶ 16, citing Nero, 56 Ohio St. at 108. This includes
instances where the trial court fails to fully cover the “nonconstitutional” aspects of
the plea colloquy. Id. at ¶ 14, citing
Veney at ¶ 17 (distinguishing the
nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and (b) from the
constitutional rights notifications required by Crim.R. 11(C)(2)(c)). “The test for
prejudice is ‘whether the plea would have otherwise been made.’” Id. at ¶ 16, quoting
Nero at 108.
[T]he questions to be answered are simply: (1) has the trial court
complied with the relevant provision of the rule? (2) if the court has not
complied fully with the rule, is the purported failure of a type that
excuses a defendant from the burden of demonstrating prejudice? and
(3) if a showing of prejudice is required, has the defendant met that
burden?
Dangler at ¶ 17.
Clouser argues he did not enter his guilty pleas knowingly,
intelligently, and voluntarily because the trial court failed to inform him that it could
proceed immediately to sentencing after accepting his guilty pleas. Crim.R.
11(C)(2)(b) states that the court must “[inform] the defendant of and [determine]
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.”
The right to be informed that the court could proceed immediately to judgment and
sentence is not a constitutional right. And because the court otherwise complied
with the requirements of Crim.R. 11, Clouser must demonstrate that he was
prejudiced by the court’s failure to explain that it could proceed immediately to
judgment and sentence. This he cannot do.
At the plea hearing on April 24, 2024, the court informed Clouser
before he entered any guilty pleas that the parties agreed sentencing would occur at
a later date. The judge who took Clouser’s pleas was substituting for the assigned
judge, and he informed Clouser that the assigned judge would be available to
sentence him on May 22, 2024. (Tr. 4-5.) It is undisputed that the trial court
complied with Crim.R. 11 in all other respects, and the record is clear that Clouser
understood the consequences of his guilty pleas. Although the court did not
expressly state that it could, theoretically, proceed directly to judgment and sentence
at the plea hearing, the court’s statements regarding a later sentencing date
indicated that sentencing was not going to occur at the time of the plea hearing.
Therefore, the court’s failure to advise Clouser that it could proceed directly to
judgment and sentence at the time of the plea hearing had no bearing on Clouser’s
decision to plead guilty, and Clouser cannot demonstrate that he was prejudiced by
the omission.
The first assignment of error is overruled.
B. Consecutive Sentences
In the second assignment of error, Clouser argues the trial court’s
imposition of consecutive sentences is not supported by the record.
We review felony sentences under the standard of review set forth in
R.C. 2953.08(G)(2). State v. Marcum, 2016-Ohio-1002, ¶ 21. Under
R.C. 2953.08(G)(2), an appellate court may increase, reduce, or otherwise modify a
sentence or vacate a sentence and remand for resentencing if it “clearly and
convincingly” finds that (1) the record does not support the sentencing court’s
findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I) or
(2) the sentence is “otherwise contrary to law.”
“In Ohio, sentences are presumed to run concurrent to one another
unless the trial court makes the required findings under R.C. 2929.14(C)(4).” State
v. Gohagan, 2019-Ohio-4070, ¶ 28 (8th Dist.). R.C. 2929.14(C)(4) provides that in
order to impose consecutive sentences, the trial court must find that consecutive
sentences are (1) necessary to protect the public from future crime or to punish the
offender; (2) that such sentences would not be disproportionate to the seriousness
of the conduct and to the danger the offender poses to the public; and (3) that one
of the following applies:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
Compliance with R.C. 2929.14(C)(4) requires the trial court to make the statutory
findings at the sentencing hearing, which means “‘the [trial] court must note that it
engaged in the analysis’ and that it ‘has considered the statutory criteria and
specifie[d] which of the given bases warrants its decision.’” State v. Bonnell, 2014-
Ohio-3177, ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324 (1999).
A reviewing court must be able to ascertain from the record evidence
to support the trial court’s findings. Bonnell at ¶ 29. “A trial court is not, however,
required to state its reasons to support its findings, nor is it required to [recite
verbatim] the statutory language, ‘provided that the necessary findings can be found
in the record and are incorporated in the sentencing entry.’” State v. Sheline, 2019-
Ohio-528, ¶ 176 (8th Dist.), quoting Bonnell at ¶ 37.
In this case, the trial court made the following findings on the record
while imposing consecutive sentences:
I do find that consecutive sentences are necessary to punish you, and
they are not disproportionate to the seriousness of your conduct and to
the danger you pose to the public.
Your criminal history simply demonstrates that consecutive sentences
are necessary and this course of conduct. [sic] You got caught. Okay.
Fine. Eat it. But no. You went that extra step to get ahold of your wife,
drag her into your mess and have her go and start deleting stuff.
Again, that level of sophistication, I will say, is impressive. I wouldn’t
know the first step on how to delete my information other than throw
it in Lake Erie. I’m sure I could figure it out. That’s not how I think.
So I am going to run those two 30-month sentences consecutive to each
other.
(Tr. 94-95.)
Clouser does not dispute that the trial court made the findings
required by R.C. 2929.14(C)(4). He argues instead that the trial court’s findings are
not supported by the record. However, before the consecutive sentences were
imposed, the prosecutor outlined Clouser’s course of conduct and applied it to the
factors set forth in R.C. 2929.14(C)(4). Referring to R.C. 2929.14(C)(4)(a), the
prosecutor explained that Clouser “committed a whole lot of offenses because he was
awaiting trial, and we had to reindict just to accommodate the new stuff.” Referring
to R.C. 2929.14(C)(4)(b), the prosecutor observed that
at least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so . . . unusual that no single prison
term for any of the offenses committed as part of any of the courses of
conduct adequately reflects the seriousness of the offender’s conduct.
Regarding the multiple offenses, the prosecutor explained:
We find these bank accounts and subpoena the records from the bank
accounts, and there are checks going in and money is going out of the
account, and then the checks are dishonored, because they’re bogus,
and it moves from account to account to account, and it moves all
around. We can’t even explain it.
It’s someone who is trying to hide the money but doing a weird job of
it, because it’s not even that much money, but it’s compounding the
problem because it’s going into this account and same day it going into
that account. It makes no sense whatsoever.
So once again, we have these crimes, and you’re kind of left going,
what? And the best example of that, your Honor, is that Jeep, that
original Jeep. We seized that Jeep a second time when it comes back
from Michigan. We get a search warrant for that Jeep.
It has one of those add-on customizable safes that bolted right into the
floor. Inside that safe is the original paperwork for the Jeep before the
VIN was flipped. What? Why not throw it in the trash? I don’t know.
This is one of the reasons the State was wondering about a psych eval.
But it comes back. He’s fine. He’s just doing it.
...
The fact is, I don’t see him stopping. I don’t see that he has any reason
to stop unless he can’t[.]
(Tr. 78.) The trial court also noted that Clouser had committed similar crimes as
those involved in this case in other states. (Tr. 93.)
Finally, regarding the factor listed in R.C. 2929.14(C)(4)(c), involving
a defendant’s criminal history, the State informed the court:
He can’t not commit crime. He can’t not commit crime even after he’s
sentenced — I mean even after he’s pled guilty. What else is going on?
There’s always other stuff going on, it seems like. There’s always the
next thing to revert to.
So it doesn’t seem like he’s a bad person, but he does bad things, a lot
of them, at the expense of others, at the expense of his own family.
He gave his dad one of those lawn mowers that he got from Ag-Pro.
That is a really nice thing to do. Dad didn’t know it was stolen.
The only reason we found out about it is because he went down to see
Dad. The Detective went all the way into Pennsylvania, so the diligence
of the Detective has exposed this crazy web of craziness that definitely
has intent behind it and then misguided or paranoid weird stuff after
that.
...
Those VINs — that motorcycle VIN was scraped out. That Jeep, the
first Jeep, the VIN was popped. Okay. So we went looking for the other
VIN. That VIN sticker, pulled. Okay. Well, guess what? There are still
more VINs hidden. There’s one hidden under the driver’s seat under
the carpet. That was gone. That means someone had to remove the
driver’s seat to pull the carpet to get that sticker, and yet, you leave the
paperwork in the safe. I don’t know.
He likes guns. Is he dangerous? I don’t know. He uses the same stolen
identity information again to commit further crimes.
(Tr. 79-80.) The prosecutor further stated that Clouser has a substance-abuse
problem and a “life of crime problem.” (Tr. 82.) In short, the prosecutor described
Clouser as someone addicted to criminal behavior. (Tr. 81-82.)
The record clearly and convincingly shows that Clouser engaged in
various courses of conduct that caused harm to many people including members of
his own family. The scope of his criminal conduct was wide ranging and, considered
in the aggregate, demonstrates that consecutive sentences are not disproportionate
to the seriousness of his misconduct and that consecutive sentences are necessary
to punish Clouser and to protect the public. The record also clearly and convincingly
shows that Clouser committed several of these offenses while he was awaiting trial.
Therefore, the trial court’s findings are supported by the record.
The second assignment of error is overruled.
C. Reagan Tokes
In the third assignment of error, Clouser argues the indefinite
sentence imposed pursuant to the Reagan Tokes Law on the identity fraud
conviction in Count 1 is unconstitutional. He contends the Reagan Tokes Law is
facially unconstitutional because it violates his constitutional rights to due process
and a jury trial, and because it violates the separation-of-powers doctrine.
However, in State v. Delvallie, 2022-Ohio-470 (8th Dist.), we held
that “the Reagan Tokes Law, as defined under R.C. 2901.011, is not
unconstitutional,” and reaffirmed the principles established in State v. Gamble,
2021-Ohio-1810 (8th Dist.); State v. Simmons,
2021-Ohio-939 (8th Dist.); and State
v. Wilburn,
2021-Ohio-578 (8th Dist.). See
Delvallie at ¶ 17. Because Clouser does
not advance any novel argument left unaddressed by the Delvallie decision, we
overrule this assignment of error.
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. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
WILLIAM A. KLATT, J.,* CONCUR
(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of
Appeals.)
