Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 08-19-2020
Case Style:
STATE OF OHIO - vs - JAMES PATRICK ROGERS aka JAMES P. RODGERS
Case Number: CA2019-11-194
Judge: Michael E. Powell
Court: IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
Plaintiff's Attorney: Michael T. Gmoser, Butler County Prosecuting Attorney
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer.
Description:
 |
{¶ 1} Appellant, James Patrick Rogers, appeals his conviction and sentence in the
Butler County Court of Common Pleas following his guilty plea to aggravated drug
trafficking, having weapons while under disability, and cocaine possession.
{¶ 2} Rogers was indicted in August 2019 on six felony offenses, including three
felony drug offenses, and one misdemeanor offense. All three felony drug offenses were
Butler CA2019-11-194
- 2 -
accompanied by firearm and forfeiture specifications.
{¶ 3} On October 31, 2019, pursuant to plea negotiations, Rogers agreed to plead
guilty to one count of aggravated drug trafficking, a second-degree felony, along with a
forfeiture specification (Count 2), one count of having weapons while under disability, a
third-degree felony (Count 4), and one count of cocaine possession, amended to a fifthdegree felony (Count 6). In exchange for Rogers' guilty plea, the state dismissed three
felony offenses, the misdemeanor offense, and the firearm specifications. The guilty plea
and jury waiver form signed by Rogers plainly indicated that Rogers faced an optional
driver's license suspension on Counts 2 and 6, a maximum fine and their respective amount
on all three counts, and a mandatory fine of $7,500 on Count 2 as a result of pleading guilty.
{¶ 4} During the plea hearing, the trial court engaged Rogers in a Crim.R. 11
colloquy. The trial court advised Rogers that Count 2 carried an indefinite prison term with
a minimum term from within the applicable sentencing range and a maximum term of an
additional 50 percent of the minimum term imposed, Count 4 carried a definite mandatory
36-month prison term, and Count 6 carried a definite maximum 12-month prison term.
Rogers indicated he understood the prison terms he faced on all three counts. The trial
court advised Rogers it intended to impose a minimum prison term of four years on Count
2, which meant that the maximum prison term on that count would be six years, a
consecutive 36-month prison term on Count 4, and a concurrent 12-month prison term on
Count 6. The trial court explained that the longest minimum prison term Rogers was facing
was thus seven years and the longest maximum prison term was nine years. Rogers
indicated he understood.
{¶ 5} The trial court next reviewed the guilty plea and jury waiver form with Rogers.
Specifically, the trial court asked Rogers whether he had signed the plea form, whether he
had read it before signing it, and whether he understood it. Rogers replied affirmatively
Butler CA2019-11-194
- 3 -
each time. The trial court then informed Rogers of the constitutional rights set forth in
Crim.R. 11(C)(2)(c). Rogers indicated he understood those rights. He then proceeded to
plead guilty on Counts 2, 4, and 6. At no time during the plea colloquy did the trial court
advise Rogers of the maximum fines, the $7,500 mandatory fine, or the potential license
suspension he faced.
{¶ 6} The matter proceeded immediately to sentencing. At the beginning of the
sentencing hearing, defense counsel advised the trial court that he had filed a motion to
waive the $7,500 mandatory fine on Count 2 on the ground Rogers was indigent and unable
to pay. The record shows that the motion was filed on October 31, 2019, the day of the
plea and sentencing hearings. The trial court sentenced Rogers to prison on all three
counts and imposed a mandatory fine of $7,500 on Count 2. The trial court did not impose
a license suspension.
{¶ 7} Rogers now appeals, raising two assignments of error.
{¶ 8} Assignment of Error No. 1:
{¶ 9} MR. ROGERS['] PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY MADE.
{¶ 10} Rogers argues that he did not knowingly, intelligently, or voluntarily enter his
guilty plea because the trial court failed to comply with Crim.R. 11(C)(2)(a) when it did not
advise him of the mandatory fine on Count 2 during the plea colloquy.1
{¶ 11} When a defendant enters a guilty plea in a felony criminal case, the plea must
1. Rogers also briefly argues that the trial court failed to advise him of the possible maximum fines on all
three counts and the possible driver's license suspension on Counts 2 and 6. Unlike the mandatory fine,
however, those penalties were not imposed by the trial court. Therefore, any issue relating to these
unimposed components of the penalty are moot. See State v. Bostic, 8th Dist. Cuyahoga No. 84842, 2005-
Ohio-2184, ¶ 24 ("Finally, appellant also claims that the trial court failed to properly inform him about the
consequences of violating post-release control, causing him to enter a guilty plea without full knowledge of all
the potential penalties he was subject to, in violation of Crim.R. 11. [T]he record indicates that appellant was
ultimately never subjected to post-release control. * * * Thus, this final assignment of error is moot[.]").
Consequently, our analysis will focus solely on the trial court's failure to advise Rogers of the mandatory fine
on Count 2.
Butler CA2019-11-194
- 4 -
be knowingly, intelligently, and voluntarily made. State v. Smith, 12th Dist. Warren Nos.
CA2019-10-113 and CA2019-11-121, 2020-Ohio-3074, ¶ 7. Failure on any of those points
renders enforcement of the plea unconstitutional under both the United States and Ohio
Constitutions. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶ 22. To ensure that
a defendant's guilty plea is knowingly, intelligently, and voluntarily made, the trial court must
engage the defendant in a plea colloquy pursuant to Crim.R. 11(C). Specifically, the court
must notify the defendant of the constitutional rights set forth in Crim.R. 11(C)(2)(c) and
make the determinations and give the warnings that Crim.R. 11(C)(2)(a) and (b) require.
State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, ¶ 11.
{¶ 12} As pertinent here is Crim.R. 11(C)(2)(a), which provides:
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 and
doing all of the following:
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.
(Emphasis added.)
{¶ 13} The term "maximum penalty" refers to "[t]he heaviest punishment permitted
by law." Black's Law Dictionary 1314 (10th Ed.2014). "Accordingly, the plea is the
defendant's response to a charge filed alleging an offense, and the maximum penalty is the
heaviest punishment prescribed by statute for that offense." Bishop, 2018-Ohio-5132 at ¶
42 (Kennedy, J., dissenting). "Crim.R. 11(C)(2)(a) therefore requires the trial court to advise
the defendant of the maximum penalty for each of the charges that the accused is resolving
with the plea." Id. Because Rogers was pleading guilty to Count 2, a second-degree felony
offense, a $7,500 fine was a mandatory element of his sentence pursuant to R.C.
Butler CA2019-11-194
- 5 -
2925.03(D)(1) and 2929.18(B)(1). See State v. Johnson, 5th Dist. Ashland No. 16-COA010, 2017-Ohio-577; State v. Luciano, 6th Dist. Wood No. WD-14-023, 2015-Ohio-1264. It
was therefore a component of the maximum penalty under Crim.R. 11(C)(2)(a).
{¶ 14} Pursuant to Crim.R. 11(C)(2), a trial court's determination that a defendant
entering a guilty plea understands the maximum penalty involved must precede the court's
acceptance of the plea. This is accomplished by the trial court "addressing the defendant
personally." Neither post-colloquy events nor a plea form signed by a defendant are
relevant in reviewing whether a trial court has complied with Crim.R. 11(C)(2). The trial
court's failure to advise Rogers of the mandatory fine during the plea colloquy does not
comply with the requirement of Crim.R. 11(C)(2)(a) that a trial court "first" determine a
defendant's understanding of the maximum penalty before accepting the plea. Neither does
Rogers' mere execution of the plea form satisfy the requirement of Crim.R. 11(C)(2)(a) that
the trial court "personally address" a defendant to determine that the plea is entered with
an understanding of the maximum penalty involved.
{¶ 15} We note that Rogers and the state both discuss whether the trial court
substantially complied with Crim.R. 11(C)(2) during the plea colloquy. In particular, the
state cites a case for the proposition that a trial court's acceptance of a guilty plea without
advising the defendant that a fine could be imposed constitutes substantial compliance with
Crim.R. 11(C)(2)(a) where the defendant signs a plea agreement before entering his guilty
plea that informs him of the fine. See State v. Mohr, 3d Dist. Van Wert No. 15-98-05, 1999
Ohio App. LEXIS 4299 (Sept. 16, 1999). This reflects the law that was applicable at the
time the parties filed their briefs. However, a recent decision of the Ohio Supreme Court
reveals that whether a trial court substantially complies with Crim.R. 11(C)(2) is no longer
part of the analysis in reviewing a trial court's plea colloquy. See State v. Dangler, Slip
Opinion No. 2020-Ohio-2765.
Butler CA2019-11-194
- 6 -
{¶ 16} In Dangler, the supreme court once again addressed a trial court's compliance
with Crim.R. 11(C) and how best to review a trial court's plea colloquy to ensure that a
defendant's plea is knowing and voluntary. The supreme court reiterated that "[a]side from
* * * 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)." Id. at ¶ 16. "The test for prejudice is
whether the plea would have otherwise been made." Id. A showing of prejudice is,
however, excepted in two instances, (1) "[w]hen a trial court fails to explain the constitutional
rights [set forth in Crim.R. 11(C)(2)(c)] that a defendant waives by pleading guilty or no
contest," and (2) as a result of "a trial court's complete failure to comply with a portion of
Crim.R. 11(C)[.]" (Emphasis sic.) Id. at ¶ 14-15.
{¶ 17} Noting that its caselaw has "muddled" the analysis that should apply when
reviewing a defendant's guilty or no contest plea "by suggesting different tiers of compliance
with the rule" such as "partial" or "substantial" compliance, the supreme court then set forth
the following "inquiry": "Properly understood, the questions to be answered are simply: (1)
has the trial court complied with the relevant provision of the rule? (2) if the trial 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, 2020-Ohio-2765 at ¶ 17.
{¶ 18} We recently addressed what constitutes a trial court's "complete failure to
comply" with Crim.R. 11 as the supreme court has never explicitly defined the term. See
State v. Fabian, 12th Dist. Warren No. CA2019-10-119, 2020-Ohio-3926. Upon reviewing
the supreme court's decisions in Dangler and Sarkozy, we found that
It is plain that a complete failure to comply with Crim.R. 11(C)
may involve something less than a failure to advise of all the
notifications enumerated in Crim. R. 11(C)(2)(a). Sarkozy
Butler CA2019-11-194
- 7 -
makes this clear as the supreme court found a complete failure
to comply even though the trial court did advise about the prison
terms involved. The Sarkozy holding of a complete failure to
comply was founded upon the trial court's failure to provide any
advice concerning a distinct component of the maximum
penalty, i.e., postrelease control, during the plea colloquy. The
supreme court hinted that Sarkozy might have been decided
differently if the trial court had provided at least some advice
concerning postrelease control during the plea colloquy: "The
trial court did not merely misinform Sarkozy about the length of
his term of postrelease control. Nor did the court merely
misinform him as to whether postrelease control was mandatory
or discretionary. Rather, the court failed to mention postrelease
control at all during the plea colloquy." By contrast, Dangler
found there was not a complete failure to comply where a trial
court provided incomplete advice concerning a distinct
component of the maximum penalty (i.e., sex offender
registration and notification requirements and duties).
Fabian at ¶ 19, quoting Sarkozy, 2008-Ohio-509 at ¶ 4.
{¶ 19} A criminal sentence consists of several distinct components, including a
prison sentence, a fine, sex offender registration and notification requirements and duties,
and postrelease control.2 "The upshot of Sarkozy and Dangler is that a trial court's total
failure to inform a defendant of a distinct component of the maximum penalty during a plea
colloquy constitutes a complete failure to comply with Crim.R. 11(C)(2)(a), thereby requiring
the vacation of the defendant's guilty or no contest plea." Fabian at ¶ 20. "Or stated
differently, a complete failure to comply with Crim.R. 11(C)(2)(a) involves a trial court's
complete omission in advising about a distinct component of the maximum penalty. By
contrast, a trial court's mention of a component of the maximum penalty during a plea
colloquy, albeit incomplete or perhaps inaccurate, does not constitute a complete failure to
comply with Crim.R. 11(C)(2)(a)." Id.
{¶ 20} At issue is whether the trial court complied with Crim.R. 11(C)(2)(a) when it
2. In addition to the sex offender registration and notification ("SORN") requirements, there are also registries
for violent offenders pursuant to R.C. 2903.43 and for those convicted of arson pursuant to R.C. 2909.14.
However, unlike the SORN requirements under the Adam Walsh Act, the Ohio Supreme Court has never
determined that these other criminal statutory registration and notification requirements are punitive.
Butler CA2019-11-194
- 8 -
did not inform Rogers it would impose a mandatory fine of $7,500 on Count 2 before
accepting his guilty plea. Applying the Dangler three-question inquiry, we find that Rogers'
guilty plea must be vacated.
{¶ 21} As stated above, the $7,500 fine was a mandatory element of Rogers'
sentence on Count 2 and a component of the maximum penalty pursuant to Crim.R.
11(C)(2)(a). Because the trial court did not inform Rogers of this mandatory fine before he
entered his plea, the trial court did not comply with Crim.R. 11(C)(2)(a), thereby answering
the first question in the negative.
{¶ 22} Because "[t]he maximum-penalty advisement is not a constitutional
requirement," the second question asks us to determine whether the trial court's failure to
advise Rogers of the mandatory fine under Crim.R. 11(C)(2)(a) constituted "a trial court's
complete failure to comply with a portion of Crim.R. 11(C)" pursuant to the second exception
to the prejudice requirement. Dangler, 2020-Ohio-2765 at ¶ 15, 23.
{¶ 23} As discussed above, pursuant to Sarkozy/Dangler, the failure of a trial court
to provide any advice concerning a distinct component of the maximum penalty during a
plea colloquy is a complete failure to comply with Crim.R. 11(C)(2)(a). As was the case in
Sarkozy, while the trial court advised Rogers of the prison terms related to the offenses to
which he was pleading guilty, it did not inform Rogers that the mandatory fine of $7,500
would be part of his sentence on Count 2 before accepting his plea. The trial court did not
simply misinform Rogers about the fine, such as the amount or whether it was mandatory
or discretionary. Rather, the court made no mention of the fine during the plea colloquy.
Consequently, the trial court's total failure to inform Rogers of the mandatory $7,500 fine,
which was a part of the maximum penalty, before it accepted the guilty plea constituted "a
trial court's complete failure to comply with a portion of Crim.R. 11(C)" pursuant to the
second exception to the prejudice requirement. (Emphasis sic.) Sarkozy, 2008-Ohio-509
Butler CA2019-11-194
- 9 -
at ¶ 22.
{¶ 24} Having answered the second question of Dangler in the affirmative, no
showing of prejudice is required and we therefore do not reach the third question.
Considering the favorable plea deal Rogers negotiated, his motion to waive the mandatory
fine filed on the day of the plea and sentencing hearings, and defense counsel informing
the trial court of the filing of the motion at the beginning of the sentencing hearing, the record
does not suggest that Rogers was prejudiced by the trial court's failure to advise him of the
mandatory fine during the plea colloquy, in the sense he would not otherwise have entered
the plea. Nevertheless, the three-question inquiry adopted by the Ohio Supreme Court in
Dangler does not allow a reviewing court to address whether a defendant was prejudiced
when a trial court either fails to explain the constitutional rights set forth in Crim.R.
11(C)(2)(c) or completely fails to comply with a portion of Crim.R. 11(C). Dangler, 2020-
Ohio-2765 at ¶ 14-17. We are bound by and constrained to follow the decisions of the Ohio
Supreme Court. State v. Sheets, 12th Dist. Clermont No. CA2006-04-032, 2007-Ohio1799, ¶ 16.
{¶ 25} The record further suggests that Rogers was aware he faced a mandatory
$7,500 fine based upon the plea form he signed which plainly indicated a mandatory fine of
$7,500 on Count 2. However, while "[a] written acknowledgment of a guilty plea and a
waiver of trial rights executed by an accused can, in some circumstances, reconcile
ambiguities in the oral colloquy that Crim.R. 11(C) prescribes, * * * the writing does not
substitute for an oral exchange when it is wholly omitted." State v. Dixon, 2d Dist. Clark
No. 01CA17, 2001 Ohio App. LEXIS 5930, *7 (Dec. 28, 2001). "Crim.R. 11(C) requires that
form of exchange to insure that the defendant makes a voluntary and intelligent decision
whether to plead guilty." Id. "This court examines compliance with Crim.R. 11 by examining
the trial court's communication to the defendant, not the defendant's subjective
Butler CA2019-11-194
- 10 -
understanding of his rights." State v. Gipson, 1st Dist. Hamilton No. C-970891, 1998 Ohio
App. LEXIS 4687, *9-10 (Sept. 30, 1998).
{¶ 26} In light of all of the foregoing, we find that the trial court completely failed to
comply with Crim.R. 11(C)(2)(a) and Rogers' guilty plea was not knowingly, intelligently,
and voluntarily made. Rogers' first assignment of error is well-taken and sustained.
{¶ 27} Assignment of Error No. 2:
{¶ 28} THE TRIAL COURT IMPROPERLY PRESUMED THAT OHIO REVISED
CODE 2967.271 IS CONSTITUTIONAL.
{¶ 29} Following his guilty plea, Rogers was sentenced to prison pursuant to R.C.
2967.271. This statutory provision is part of the Reagan Tokes Law, Am. Sub. S.B. No.
201, 2018 Ohio Laws 157, which took effect on March 22, 2019. Rogers challenges the
constitutionality of R.C. 2967.271, arguing it violates the separation of powers doctrine and
the Due Process Clauses of the United States and Ohio Constitutions. However, based
upon our resolution of Rogers' first assignment of error, his second assignment of error is
moot.3
Outcome: Rogers' conviction and sentence for aggravated drug trafficking and the
accompanying forfeiture specification, having weapons while under disability, and cocaine
possession are hereby reversed and his plea to those offenses is vacated. This matter is
remanded to the trial court for further proceedings consistent with law and in accordance
with this opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: