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Date: 10-11-2019

Case Style:

STATE OF OHIO vs. PATRICK CONLEY

Case Number: 19CA1091

Judge: Peter B. Abele

Court: COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

Plaintiff's Attorney: Kris D. Blanton, Assistant Adams County Prosecuting Attorney

Defendant's Attorney:

Description:

Call 888-354-4529 if you need a Criminal Defense Attorney in Ohio.





This is an appeal from an Adams County Common Pleas Court judgment of
conviction and sentence. After Patrick Conley, defendant below and appellant herein, entered a
guilty plea, the trial court found him guilty of (1) second-degree-felony aggravated possession of
drugs in violation of R.C. 2925.11(A), and (2) first-degree-misdemeanor operating a vehicle
while intoxicated in violation of R.C. 4511.19(A)(1)(a).
{¶ 2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CONLEY BY IMPROPERLY DENYING HIS MOTION TO
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SUPPRESS EVIDENCE BASED ON AN ILLEGAL SEARCH OF HIS PERSON.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CONLEY BY IMPROPERLY DENYING HIS MOTION TO SUPPRESS ANY STATEMENTS MADE WHILE HE WAS IN CUSTODY.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CONLEY BY ACCEPTING HIS GUILTY PLEA WHEN THE COURT FAILED TO DETERMINE THAT HE UNDERSTOOD THE MAXIMUM PENALTIES INVOLVED.”

FOURTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY INCLUDING IN THE SENTENCING ENTRY THAT MR. CONLEY SHALL BE RESERVED FOR DENIAL FOR TRANSITIONAL CONTROL AND IPP.”

{¶ 3} On October 8, 2018, an Ohio State Highway Patrol Trooper Steve Rabold stopped
appellant’s vehicle for speeding. The ensuing traffic stop led to the discovery of a large amount
of methamphetamine and resulted in appellant being charged with aggravated possession of
drugs and operating a motor vehicle while under the influence.
{¶ 4} Appellant subsequently filed a motion to suppress the evidence obtained as a result
of the traffic stop, as well as any incriminating statements that he made during the stop.
{¶ 5} On January 7, 2019, the trial court held a hearing to consider appellant’s motion to
suppress evidence. Trooper Rabold testified that after he stopped appellant and approached the
vehicle from the passenger side, appellant was “rocking back and forth in the chair and talking to
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himself.” Rabold stated that he “just stood there for a couple moments and just watched
[appellant] just to make sure he wasn’t reaching for a weapon or anything like that.”
{¶ 6} After watching appellant for a moment, Trooper Rabold walked around his patrol
car and approached the vehicle from the driver’s side. Appellant informed Rabold that appellant
did not know who owned the vehicle and that he did not have a driver’s license. Rabold then
asked appellant to exit the vehicle. Rabold explained that he intended to ask appellant “where
he was going, why he was driving so fast, just things of that nature.”
{¶ 7} During the conversation, Trooper Rabold informed appellant about a pat-down
check for weapons. However, immediately after Rabold advised appellant about the pat-down,
appellant stated that he had methamphetamine in his right front pocket. Appellant also
immediately reported that the vehicle contained additional drugs.
{¶ 8} After Trooper Rabold conducted a series of field sobriety tests, he arrested
appellant. After the arrest, Rabold searched the vehicle and discovered methamphetamine,
marijuana, drug paraphernalia, and some clear plastic bags. Shortly thereafter a sheriff’s deputy
arrived on the scene and Trooper Rabold advised appellant of the Miranda1 warnings.
{¶ 9} Appellant testified at the hearing and explained that he believed that he had been
placed under arrest “the moment that [he] got out of the car.”
{¶ 10} On January 30, 2019, the trial court denied appellant’s motion to suppress
evidence. Appellant subsequently entered a no contest plea to second-degree-felony aggravated
possession of drugs and to first-degree-misdemeanor operating a vehicle while intoxicated. At
1 Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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the change-of-plea hearing, the court informed appellant that, because appellant is on postrelease
control, any sentence imposed for violating postrelease control “may be required to be served in
addition to or consecutive to any other prison term imposed” for the felony offense. Appellant
stated that he understood. The court additionally advised appellant that the court “typically
require[s]” offenders who violate postrelease control to serve the sentence for the postrelease
control violation consecutively to any prison sentence imposed for the underlying felony offense.
Appellant stated that he understood and that he did not have any questions.
{¶ 11} The trial court found appellant guilty and sentenced him to serve five years in
prison for the aggravated drug possession offense and to serve 180 days of local incarceration for
the operating a vehicle while intoxicated offense. The court also ordered the two terms to be
served concurrently to one another. The court also imposed an additional 902 days for violating
postrelease control and ordered that appellant serve the postrelease control sentence
consecutively to the others. The court further recited that it “reserved for denial” appellant’s
transfer to a transitional control program and his placement in an intensive program prison upon
notification that the Ohio Department of Rehabilitation and Correction desires consideration of
appellant for either. This appeal followed.
I
{¶ 12} Appellant’s first and second assignments of error challenge the trial court’s
decision to deny his motion to suppress evidence. Because the same standard of review applies
to both assignments of error, for ease of analysis we combine our review of the two assignments
of error.
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{¶ 13} In his first assignment of error, appellant asserts that the trial court erred by
denying his motion to suppress all evidence uncovered as a result of the traffic stop. In
particular, appellant contends that Trooper Rabold did not have any lawful basis to conduct a
pat-down search for weapons. Appellant contends that the evidence presented at the motion to
suppress hearing fails to show that the trooper had a legitimate concern that appellant possessed a
weapon so as to justify a pat-down search for weapons. Appellant claims that “[t]he only
plausible reason the trooper could have suspected [appellant] had weapons on him was because
of the movements with his hands.” Appellant thus alleges that the testimony presented at the
hearing fails to show that the movements appellant made with his hands led the trooper to believe
that appellant might be carrying a weapon.
{¶ 14} Appellant further argues that any consent that he may have given did not validate
the pat-down search. Appellant claims that any consent that he may have given occurred after
Trooper Rabold had conducted the invalid pat-down search. Appellant also asserts that he did
not consent to a search of his vehicle and that the evidence obtained from the search must be
suppressed.
{¶ 15} In his second assignment of error, appellant asserts that the trial court erred by
denying his motion to suppress the incriminating statements that he made during the traffic stop.
Appellant contends that he was “in custody” during the traffic stop and that Trooper Rabold
should have advised appellant of his Fifth Amendment right against self-incrimination.
A
STANDARD OF REVIEW
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{¶ 16} Appellate review of a trial court’s ruling on a motion to suppress evidence
involves a mixed question of law and fact. E.g., State v. Castagnola, 145 Ohio St.3d 1,
2015-Ohio-1565, 46 N.E.3d 638, ¶ 32; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
797 N.E.2d 71, ¶ 8; State v. Moore, 2013-Ohio-5506, 5 N.E.3d 41 (4th Dist.), ¶ 7. Appellate
courts “‘must accept the trial court’s findings of fact if they are supported by competent, credible
evidence.’” State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12, quoting
Burnside at ¶ 8. Accepting those facts as true, reviewing courts “‘independently determine as a
matter of law, without deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard.’” Id., Burnside at ¶ 8.
B
FOURTH AMENDMENT
{¶ 17} The Fourth and Fourteenth Amendments to the United States Constitution, as well
as Section 14, Article I of the Ohio Constitution, protect individuals against unreasonable
governmental searches and seizures. Delaware v. Prouse, 440 U.S. 648, 662, 99 S.Ct. 1391,
1400, 59 L.Ed.2d 660 (1979); State v. Gullett, 78 Ohio App.3d 138, 143, 604 N.E.2d 176 (1992).
“[S]earches [and seizures] conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347,
357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); e.g., State v. Roberts, 110 Ohio St.3d 71,
2006-Ohio-3665, 850 N.E.2d 1168, ¶ 98. Once the defendant demonstrates that he was
subjected to a warrantless search or seizure, the burden shifts to the state to establish that the
warrantless search or seizure was constitutionally permissible. State v. Banks-Harvey, 152 Ohio
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St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 18; Maumee v. Weisner, 87 Ohio St.3d 295, 297,
720 N.E.2d 507 (1999); Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988), paragraph
two of the syllabus.
1
TRAFFIC STOPS
{¶ 18} A traffic stop initiated by a law enforcement officer constitutes a seizure within
the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809–810, 116
S.Ct. 1769, 135 L.Ed.2d 89 (1996); Prouse, 440 U.S. at 653. Thus, a traffic stop must comply
with the Fourth Amendment’s general reasonableness requirement. Whren, 517 U.S. at 810.
“[T]he decision to stop an automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred.” Id. (citations omitted); accord Dayton v. Erickson,
76 Ohio St.3d 3, 11–12, 665 N.E.2d 1091 (1996). Consequently, “[p]robable cause is * * * a
complete justification for a traffic stop * * *.” State v. Mays, 119 Ohio St.3d 406,
2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23; accord Bowling Green v. Godwin, 110 Ohio St.3d 58,
2006-Ohio-3563, 850 N.E.2d 698, ¶ 11.
{¶ 19} In the case sub judice, appellant does not challenge the constitutionality of the
stop. We, therefore, do not address it. Instead, appellant contests the constitutionality of the
events that transpired after the officer stopped his vehicle. Appellant first complains that
Trooper Rabold lacked any reason to conduct a pat-down search for weapons.
2
PAT-DOWN SEARCH FOR WEAPONS
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{¶ 20} During a traffic stop, a law enforcement officer may conduct a limited pat-down
search for weapons “if the officer reasonably concludes that the driver ‘might be armed and
presently dangerous.’” Arizona v. Johnson, 555 U.S. 323, 330–31, 129 S.Ct. 781, 786, 172
L.Ed.2d 694 (2009); e.g., State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162 (1993); State v.
Collins, 4th Dist. Hocking No. 18CA12, 2019-Ohio-1724, 2019 WL 2004219, ¶ 22. “The
pat-down search is limited to discovering weapons that might be used to harm the officer.”
State v. Fowler, 4th Dist. Ross No. 17CA3599, 2018-Ohio-241, ¶ 17. Thus, an officer cannot
conduct a pat-down “to search for evidence of the crime.” Evans, 67 Ohio St.3d at 414.
{¶ 21} In the case sub judice, even if the trooper arguably lacked a reasonable belief that
appellant might possess a weapon, the suppression hearing testimony reveals that appellant
volunteered the information that he had methamphetamine in his front pocket before the trooper
even began the pat-down search. We also observe that the state introduced the video recording
of the traffic stop. Although the video recording did not capture any images of the pat-down
search and when it began, appellant volunteered that he had methamphetamine in his pocket
immediately after the trooper advised appellant that the trooper intended to conduct a pat-down
check for weapons.
3
CONSENT TO SEARCH
{¶ 22} Appellant next asserts that he did not consent to a search of his vehicle.
However, when a law enforcement officer has probable cause to believe that a vehicle contains
contraband, the officer may search a validly stopped motor vehicle based upon the
well-established automobile exception to the warrant requirement. State v. Moore, 90 Ohio
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St.3d 47, 51, 734 N.E.2d 804 (2000), citing Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct.
2013, 144 L.Ed.2d 442 (1999); see State v. Lang, 117 Ohio App.3d 29, 36, 689 N.E.2d 994 (1st
Dist.1996) (holding that discovery of cocaine in a vehicle in plain view provided probable cause
to search the remainder of the vehicle for contraband). Additionally, “Ohio courts have held that
the production of drugs by an occupant of a vehicle independently provides an officer with
additional probable cause to believe that the vehicle contains evidence of contraband.” State v.
Donaldson, 6th Dist. Wood No. WD-18-034, 2019-Ohio-232, 2019 WL 337010, ¶ 29; State v.
Young, 12th Dist. Warren No. CA2011-06-066, 2012-Ohio-3131, ¶ 32-33 (concluding that once
driver admitted that he possessed marijuana, officers obtained probable cause to search vehicle).
Thus, once appellant volunteered that he possessed methamphetamine, the officer had probable
cause to search the vehicle.
{¶ 23} Accordingly, the issue of whether appellant consented to a search of his vehicle is
irrelevant. Instead, Trooper Rabold possessed probable cause to search appellant’s vehicle.
Consequently, we do not agree with appellant that the trial court erred by overruling his motion
to suppress the evidence.
{¶ 24} Accordingly, based upon the foregoing reasons, we overrule appellant’s first
assignment of error.
C
FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION
{¶ 25} The Fifth Amendment to the United States Constitution provides that no person
“shall be compelled in any criminal case to be a witness against himself.” In order to safeguard
a suspect’s Fifth Amendment privilege against self-incrimination, law enforcement officers
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seeking to perform a custodial interrogation must warn the suspect “that he has the right to
remain silent, that anything he says can be used against him in a court of law, that he has the right
to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.” Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966). In the absence of these warnings, a suspect’s incriminatory
statements made during a custodial interrogation are inadmissible at trial. Michigan v. Mosley,
423 U.S. 96, 99–100, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (footnote and citation omitted)
(“[U]nless law enforcement officers give certain specified warnings before questioning a person
in custody, and follow certain specified procedures during the course of any subsequent
interrogation, any statement made by the person in custody cannot over his objection be admitted
in evidence against him as a defendant at trial, even though the statement may in fact be wholly
voluntary.”); Miranda, 384 U.S. at 479 (stating that no evidence stemming from result of
custodial interrogation may be used against defendant unless procedural safeguards employed);
State v. Maxwell, 139 Ohio St.3d 12, 2014–Ohio–1019, 9 N.E.3d 930, ¶ 113 (stating that “the
prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.”).
{¶ 26} We note that the Miranda rule does not protect every person who is subjected to
police questioning; the rule protects only individuals subjected to “custodial interrogation.”
Miranda defined “custodial interrogation” as “questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his freedom of action in any
significant way.” 384 U.S. at 444, 86 S.Ct. at 1611, 16 L.Ed.2d 694; see also Stansbury v.
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California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528, 128 L.Ed.2d 293 (1994); Oregon v.
Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (stating that the
Miranda protection attaches “only where there has been such a restriction on a person’s freedom
as to render him in ‘custody’”). Thus, “the requirement that police officers administer Miranda
warnings applies only when a suspect is subjected to both custody and interrogation.” State v.
Dunn, 131 Ohio St.3d 325, 2012–Ohio–1008, 964 N.E.2d 1037, ¶ 24.
{¶ 27} “Determining whether questioning is ‘a custodial interrogation requiring Miranda
warnings demands a fact-specific inquiry that asks whether a reasonable person in the suspect’s
position would have understood himself or herself to be in custody while being questioned.’”
State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 57, quoting Cleveland
v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, ¶ 21. We observe that the custody
determination “depends on the objective circumstances of the interrogation, not on the subjective
views harbored by either the interrogating officers or the person being questioned.” State v.
Henry, 12th Dist. Preble No. CA2008-04-006, 2009-Ohio-434, 2009 WL 243094, ¶ 13. “[T]he
only relevant inquiry is how a reasonable man in the suspect's position would have understood
his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317
(1984).
{¶ 28} Moreover, determining whether an individual “has been ‘interrogated,’ * * *
focuses on police coercion, and whether the suspect has been compelled to speak by that
coercion.” State v. Tucker, 81 Ohio St.3d 431, 436, 692 N.E.2d 171 (1998). An individual may
feel compelled to speak not only “by express questioning, but also * * * by the ‘functional
equivalent’ of express questioning, i.e., ‘any words or actions on the part of the police (other than
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those normally attendant to arrest and custody) that the police should know are reasonably likely
to elicit an incriminating response from the suspect.’” Id. at 436, quoting Rhode Island v. Innis,
446 U.S. 291, 300–301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Consequently, a suspect who
volunteers information without being asked any questions is not subject to a custodial
interrogation and is not entitled to Miranda warnings. Id. at 483; State v. McGuire, 80 Ohio
St.3d 390, 401, 686 N.E.2d 1112 (1997); accord Miranda, 384 U.S. at 478 (stating that
“[v]olunteered statements of any kind are not barred by the Fifth Amendment and their
admissibility is not affected by our holding today”). “Moreover, there is no requirement that
officers interrupt a suspect in the course of making a volunteered statement to recite the Miranda
warnings.” Tucker, 81 Ohio St.3d at 483.
{¶ 29} Roadside questioning of a motorist detained pursuant to a routine traffic stop
ordinarily does not constitute “custodial interrogation.” Berkemer v. McCarty, 468 U.S. 420,
440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). If, however, the motorist “thereafter is subjected
to treatment that renders him ‘in custody’ for practical purposes, he will be entitled to the full
panoply of protections prescribed by Miranda.” Id.; accord State v. Farris, 109 Ohio St.3d 519,
2006-Ohio-3255, 849 N.E.2d 985.
{¶ 30} In the case at bar, our review of the record reveals that appellant readily
volunteered that he possessed methamphetamine immediately after Trooper Rabold stated that he
intended to conduct a pat-down search for weapons. Thus, in light of the evidence adduced at
the hearing, Miranda does not apply to appellant’s voluntary statement. See State v. Drake, 10th
Dist. No. 16AP-258, 2017-Ohio-755, 85 N.E.3d 1055, 2017 WL 823757, ¶ 21 (determining that
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even though defendant in custody, defendant volunteered incriminating statements and thus was
not subjected to interrogation).
{¶ 31} Additionally, after appellant freely admitted that he possessed methamphetamine
on his person, he then continued to talk and informed Trooper Rabold that he had drugs in the
vehicle. Appellant expressed himself freely and without any coercion or elements of
interrogation. Thus, because appellant was not subjected to a custodial interrogation, Trooper
Rabold was not required to advise appellant of the Miranda warnings.
{¶ 32} Accordingly, based upon the foregoing reasons, we overrule appellant’s second
assignment of error.
II
{¶ 33} In his third assignment of error, appellant asserts that the trial court erred by
accepting appellant’s no-contest plea without ensuring that he understood the maximum penalties
for the various offenses. In particular, appellant contends that the trial court failed to advise him
that any sentence imposed for violating his postrelease control must be served consecutively to
the sentence imposed for the underlying offense.
{¶ 34} “‘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, 120 Ohio St.3d 176, 2008–Ohio–5200, 897 N.E.2d 621, ¶ 7, quoting State v.
Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996); accord State v. Montgomery, 148 Ohio
St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 40; State v. Barker, 129 Ohio St.3d 472,
2011-Ohio-4130, 953 N.E.2d 826, ¶ 9. “It is the trial court’s duty, therefore, to ensure that a
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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, 89 S.Ct. 1709, 23 L.Ed.2d
274 (1969).
{¶ 35} In general, an appellate court that is evaluating whether a criminal defendant
knowingly, intelligently, and voluntarily entered a guilty plea must independently review the
record to ensure that the trial court complied with the constitutional and procedural safeguards
contained within Crim.R. 11. State v. Leonhart, 4th Dist. Washington No. 13CA38,
2014–Ohio–5601, ¶ 36; State v. Eckler, 4th Dist. Adams No. 09CA878, 2009-Ohio-7064, 2009
WL 5199324, ¶ 48; accord Veney at ¶ 13 (“Before accepting a guilty or no-contest plea, the court
must make the determinations and give the warnings required by Crim.R. 11(C)(2)(a) and (b) and
notify the defendant of the constitutional rights listed in Crim.R. 11(C)(2)(c).”); State v. Kelley,
57 Ohio St.3d 127, 128, 566 N.E.2d 658 (1991) (“When a trial court or appellate court is
reviewing a plea submitted by a defendant, its focus should be on whether the dictates of Crim.R.
11 have been followed.”); State v. Shifflet, 2015–Ohio–4250, 44 N.E.3d 966 (4th Dist.), ¶ 13,
citing State v. Davis, 4th Dist. Scioto Nos. 13CA3589 and 13CA3593, 2014–Ohio–5371, 2014
WL 6876680, ¶ 31, citing State v. Smith, 4th Dist. Washington No. 12CA11, 2013–Ohio–232,
2013 WL 314369, ¶ 10. Pursuant to Crim.R. 11(C)(2), a trial court should not accept a guilty
plea without first addressing the defendant personally and:
(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.
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(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.

{¶ 36} Thus, before accepting a guilty plea, a “trial court must inform the defendant that
he is waiving his privilege against compulsory self-incrimination, his right to jury trial, his right
to confront his accusers, and his right of compulsory process of witnesses.” State v. Ballard, 66
Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the syllabus; see also Crim.R.
11(C)(2)(c). “In addition to these constitutional rights, the trial court must determine that the
defendant understands the nature of the charge, the maximum penalty involved, and the effect of
the plea.” Montgomery at ¶ 41.
{¶ 37} The purpose of Crim.R. 11(C) is “to convey to the defendant certain information
so that he can make a voluntary and intelligent decision whether to plead guilty.” Ballard, 66
Ohio at 479–80. Although literal compliance with Crim.R. 11(C) is preferred, it is not required.
State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶ 29, citing State v.
Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 19. A reviewing court therefore
ordinarily will affirm a trial court’s acceptance of a guilty plea if the record reveals that the trial
court engaged in a meaningful dialogue with the defendant and explained, “in a manner
reasonably intelligible to that defendant,” the consequences of pleading guilty. Ballard at
paragraph two of the syllabus; accord State v. Barker, 129 Ohio St.3d 472, 2011–Ohio–4130,
953 N.E.2d 826, ¶ 14; Veney at ¶ 27.
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{¶ 38} Moreover, a defendant who seeks to invalidate a plea on the basis that the trial
court partially, but not fully, informed the defendant of his non-constitutional rights must
demonstrate a prejudicial effect. Veney at ¶ 17; Clark at ¶ 31. To demonstrate that the
defendant suffered prejudice as a result of the court’s failure to fully inform the defendant of his
non-constitutional rights, a defendant must illustrate that he would not have pled guilty but for
the trial court’s failure. Clark at ¶ 32, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d
474 (1990) (stating that “[t]he test is ‘whether the plea would have otherwise been made’ ”).
When, however, a trial court completely fails to inform a defendant of non-constitutional rights,
“the plea must be vacated.” Id. “‘A complete failure to comply with the rule does not implicate
an analysis of prejudice.’” Id., quoting State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509,
881 N.E.2d 1224, ¶ 22. Additionally, when a defendant seeks to invalidate a plea on the basis
that the trial court failed to properly inform the defendant of his constitutional rights, the “plea is
invalid.” Veney at ¶ 30; Nero; see Clark at ¶ 31, quoting State v. Griggs, 103 Ohio St.3d 85,
2004–Ohio–4415, 814 N.E.2d 51, ¶ 12 (stating that the plea is invalid “‘under a presumption that
it was entered involuntarily and unknowingly.’”).
{¶ 39} In the case sub judice, appellant contends that the trial court failed to ensure that
appellant understood the maximum penalties that the court could impose. He asserts that under
State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, the court is required to
inform him that any prison sentence imposed for violating postrelease control must be served
consecutively to any sentence imposed for the underlying felony offense.
{¶ 40} In Bishop, it appears that the trial court completely failed to mention that the court
would be required to impose the postrelease control sentence consecutively to the underlying
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felony offense sentence. Id. at ¶ 20. On appeal to the Ohio Supreme Court, the defendant
argued that the Crim.R. 11(C)(2)(a) requirement that a trial court inform a defendant of the
maximum penalty involved includes notifying the defendant that any prison term imposed for
violating post release control must be served consecutively to the sentence imposed for the
underlying felony offense. The supreme court agreed with the defendant and explained:
Sentences imposed under R.C. 2929.141(A) cannot stand alone. The court may impose the sentence only upon a conviction for or plea of guilty to a new felony, making the sentence for committing a new felony while on postrelease control and that for the new felony itself inextricably intertwined. By any fair reading of Crim.R. 11(C)(2), the potential R.C. 2929.141(A) sentence was part of the “maximum penalty involved” in this case.

Id. at ¶ 17. The court therefore concluded that “Crim.R. 11(C)(2)(a) requires a trial court to
advise a criminal defendant on postrelease control for a prior felony, during his plea hearing in a
new felony case, of the trial court’s authority under R.C. 2929.141 to terminate the defendant’s
existing postrelease control and to impose a consecutive prison sentence for the
postrelease-control violation.” Id. at ¶ 21.
{¶ 41} In the case at bar, we do not agree with appellant that Bishop requires that we
vacate his plea. Instead, the facts in the case at bar are distinguishable from those in Bishop. In
Bishop, the trial court completely failed to mention imposing a consecutive sentence for violating
postrelease control. In the present case, by contrast, the trial court advised appellant of the
possibility of imposing the postrelease control sentence consecutively to the underlying felony
sentence. Although the trial court did not ensure that appellant understood that the two
sentences would be required to be served consecutively to one another, the court did ensure
appellant understood that consecutive sentences were possible and also extremely likely. The
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court advised appellant that the court “typically require[s]” postrelease control and underlying
felony sentences to run consecutively to one another.
{¶ 42} Thus, although the trial court may not have fully complied with Crim.R.
11(C)(2)(a), as interpreted in Bishop, the court partially complied. Appellant, therefore, must
show prejudice. We point out that appellant did not argue in his appellate brief that he would
not have entered his no-contest plea if he knew that consecutive sentences would be definite, as
opposed to likely. Moreover, he raises no other suggestion that he would have chosen not to
plead no-contest if he knew that consecutive sentences would be mandatory and not merely
possible. Consequently, we do not agree with appellant that we must vacate his plea.
{¶ 43} Additionally, we do not believe that State v. Nix, 8th Dist. Cuyahoga No. 106894,
2019-Ohio-1640, 2019 WL 1970236, mandates a different result. In Nix, the defendant filed an
application to reopen his appeal and argued that appellate counsel performed ineffectively by
neglecting to argue on direct appeal that the trial court failed to ensure that the defendant was
aware that the court would be required to order the defendant’s sentence for violating postrelease
control to be served consecutively to the sentence imposed for the underlying felony offense.
Instead, the trial court informed the defendant that “his plea ‘may’ result in a consecutive
sentence.” Id. at ¶ 7.
{¶ 44} In Nix, the appellate court granted the application to reopen. The court concluded
that based upon Bishop, the defendant had raised a colorable claim regarding appellate counsel’s
ineffectiveness. We believe, however, that Nix is distinguishable from the case at bar. Nix
involved reopening an appeal on the basis of ineffective assistance of appellate counsel. In
granting the application to reopen, the court concluded that “a reasonable probability [exists] that
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had appellate counsel presented this assigned error, the results of the appeal may have been
different.” Thus, the court did not definitively conclude that the trial court failed to comply with
Crim.R. 11(C)(2)(a). Instead, the court allowed appellant the opportunity to reopen his appeal
and argue the merits of the issue. We therefore disagree with appellant that Nix supports his
argument that the trial court failed to comply with Crim.R. 11(C)(2)(a) as interpreted in Bishop.
{¶ 45} Accordingly, based upon the foregoing reasons, we overrule appellant’s third
assignment of error.
III
{¶ 46} In his fourth assignment of error, appellant contends that the trial court erred by
including a statement in the sentencing entry that “reserved for denial” his placement into a
transitional control program or an intensive program prison. Appellant asserts that the trial court
could not deny his placement into either program until the Ohio Department of Rehabilitation
and Correction notified the court that it was considering placing appellant into one of the
programs.
A
STANDARD OF REVIEW
{¶ 47} R.C. 2953.08(G)(2) defines appellate review of felony sentences and provides in
relevant part:
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court. The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action
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authorized by this division if it clearly and convincingly finds either of the following: (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.

{¶ 48} The statute thus indicates that “appellate courts may not apply the
abuse-of-discretion standard” when reviewing felony sentences. State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10. Instead, “an appellate court may vacate or
modify a felony sentence on appeal only if it determines, by clear and convincing evidence, that
the record does not support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” Id. at ¶ 1.
{¶ 49} Clear 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, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Id. at ¶ 22.
{¶ 50} Thus, our standard of review “‘is * * * extremely deferential.’” State v. Butcher,
4th Dist. Athens Nos. 15CA33 and Athens Nos. 15CA34, 2017-Ohio-1544, 2017, 2017 WL
1507209, ¶ 84, quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992
N.E.2d 453, ¶ 20–21; see Marcum at ¶ 23.
{¶ 51} In the case sub judice, as we explain below, we do not believe that the trial court
abused its discretion by reserving appellant’s transfer to transitional control or placement in an
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intensive program prison for denial. We also do not believe that the trial court’s reservation of
denial into either program is contrary to law under the facts of this case.
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B
TRANSITIONAL CONTROL
{¶ 52} R.C. 2967.26(A)(1) allows the Department of Rehabilitation and Correction to
transfer inmates into a transitional control program during the final 180 days of incarceration “for
the purpose of closely monitoring a prisoner’s adjustment to community supervision * * *.”
Before the transfer, the parole authority must provide the trial court with an opportunity to
disapprove the transfer and must send the court a report on the prisoner’s conduct in the
institution covering the prisoner’s participation in school, vocational training, work, treatment,
and other rehabilitative activities and any disciplinary action taken against the prisoner. R.C.
2967.25(A)(2).
{¶ 53} Our colleagues in the Second and Fifth Districts concluded that a trial court errs
when it disapproves a transfer to transitional control as part of the offender’s sentencing entry.
For example, in State v. Spears, 5th Dist. Licking No. 10–CA–95, 2011–Ohio–1538, the court
concluded that denying transitional control in the sentencing entry “clearly thwarts the design and
purpose of the [transitional-control] statute,” which is “to promote prisoner rehabilitation effort
and good behavior while incarcerated.” Id. at ¶ 37. The Second District determined that a trial
court lacks the authority to disapprove the transfer to transitional control until “the adult parole
authority sends a notice to the trial court indicating that it intends to grant transitional control
under R.C. 2967.26(A).” State v. Howard, 190 Ohio App.3d 734, 2010–Ohio–5283, 944 N.E.2d
258, ¶ 2 (2d Dist.); e.g., State v. Bailey, 2nd Dist. Greene No. 2014-CR-569, 2016-Ohio-2957,
2016 WL 2841397, ¶ 11; State v. Chaffin, 2nd Dist. Montgomery No. 25220, 2014-Ohio-2671,
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2014 WL 2810831, ¶¶ 52-53; accord State v. Hempfield, 5th Dist. Licking No. 11-CA-103,
2012-Ohio-2619, 2012 WL 2127335, ¶ 29.
{¶ 54} The First District took a different approach in State v. Brown, 1st Dist. Hamilton
No. C-130120, 2016-Ohio-310, 2016 WL 524350, ¶¶ 13-16. The Brown court observed “that
the trial court has the statutory authority and wide discretion to disapprove and ultimately block
[the defendant]’s participation in the program as part of its sentencing powers.” Id. at ¶ 16.
The court also noted that the defendant “agreed that he would not be able to participate in this
program as a condition of his 12–year prison term.” The court thus concluded that “R.C.
2967.26 permits the restriction as part of the sentence under these circumstances.” Id. at ¶ 16.
{¶ 55} The Twelfth District concluded that nothing prohibits a “trial court from
predetermining that transitional control is inapplicable during sentencing.” State v. Toennisson,
12th Dist. Butler No. CA2010-11-307, 2011-Ohio-5869, 2011 WL 5516072, ¶ 34. The court
explained:
The statutory language does not require the trial court to await a decision by the adult parole authority in order to pass on transitional control, or, for that matter, intensive prison programs. Instead, the statute simply grants an undecided court additional discretion to consider a prisoner’s good behavior, if and when the adult parole authority files notice and a report. R.C. 2967.26(A)(2).
Id.
{¶ 56} This court previously considered a trial court’s sentencing entry that denied
transitional control in State v. Riley, 4th Dist. Athens No. 11CA14, 2012-Ohio-1086, 2012 WL
914923, ¶ 14. In Riley, the defendant asserted that the trial court erred by including a statement
in its sentencing entry that disapproved his transfer to transitional control. We did not agree.
We explained:
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Normally, whether a prisoner would be eligible for transitional control is
uncertain because his eligibility is partially based upon his behavior while
incarcerated. The APA would assess the prisoner’s eligibility when his
remaining sentence nears 180 days. Ohio Adm.Code 5120–12–01(F) provides,
“In order to be eligible for transitional control transfer pursuant to section 2967.26
of the Revised Code, a prisoner must meet all of the following minimum criteria:
* * * (8) Prisoners shall not have a designated security level of level 3, level 4 or
level 5. (9) Prisoners shall not be currently confined in any institution control
status as a result of any disciplinary action.” (Emphasis added.) Thus, on appeal,
whether a prisoner would qualify for a transitional control transfer at a later date
would be uncertain because his designated security level and whether he was
confined in institutional control at that later date are unknown. Without knowing
whether a prisoner is eligible for transitional control, this Court cannot determine
whether the trial court’s entry disapproving of the prisoner’s transfer to
transitional control has resulted in prejudice to the prisoner; the issue would be
unripe for review. See State v. Moss, 186 Ohio App.3d 787, 2010–Ohio–1135,
930 N.E.2d 838 (discussing ripeness).
Riley at ¶ 14.
{¶ 57} In Riley, we further noted that the Ohio Administrative Code provisions made the
defendant ineligible to participate in the transitional control program. The defendant had been
convicted of disqualifying offenses: aggravated vehicular assault and aggravated vehicular
homicide. We thus concluded that the defendant’s argument was moot.
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{¶ 58} In the case at bar, we do not believe that the trial court erred by including a
directive that “reserved for denial” appellant’s transfer to transitional control “upon notification
that ODRC desires consideration of the defendant for transitional control.” Our interpretation of
the court’s language is that the trial court did not expressly deny appellant’s transfer to
transitional control. Instead, the language suggests that the court held its decision in abeyance
until it received notice of the pendency of the transfer. Thus, the court did not outright
disapprove appellant’s transfer to transitional control. Instead, the court appears to have
“retained the power to reconsider and, if prudent, overturn its initial objection to transitional
control. As a result, the court could still review appellant’s conduct upon receiving notice and a
report from the adult parole authority.” State v. Toennisson, 12th Dist. Butler No.
CA2010-11-307, 2011-Ohio-5869, 2011 WL 5516072, ¶ 33.
{¶ 59} Consequently, we disagree with appellant that the trial court erred by reserving his
transfer to transitional control for denial.
C
INTENSIVE PROGRAM PRISON
{¶ 60} Intensive program prisons (IPP) focus on “‘educational achievement, vocational
training, alcohol and other drug abuse treatment, community service and conservation work, and
other intensive regimens or combinations of intensive regimens.’” State v. Howard, 190 Ohio
App.3d 734, 2010–Ohio–5283, 944 N.E.2d 258, ¶ 10 (2d Dist.), quoting R.C. 5120.032. Trial
courts have discretion to recommend placement of an offender into an IPP pursuant to R.C.
5120.032. State v. Turner, 8th Dist. Cuyahoga No. 103610, 2016-Ohio-3325, 2016 WL
3199943, ¶ 28. Only eligible prisoners may participate in an IPP, however. R.C.
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5120.032(B)(2)(a) and (b) specifically exclude individuals serving prison terms for
second-degree felonies and individuals serving mandatory prison terms.
{¶ 61} In the case sub judice, the trial court sentenced appellant to serve a mandatory
prison term for a second-degree felony. Thus, appellant is not eligible to participate in an IPP.
Consequently, any error that the trial court may have made by reserving appellant’s placement
into an IPP for denial is harmless. State v. Walz, 2nd Dist. Montgomery No. 23783,
2012-Ohio-4627, 2012 WL 4762080, ¶¶ 24-28 (concluding any error court made by disapproving
placement in IPP harmless when defendant ineligible for IPP).

Outcome: Accordingly, based upon the foregoing reasons, we overrule appellant’s fourth
assignment of error and affirm the trial court’s judgment.

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