State v. McFadden

[Cite as State v. McFadden, 2021-Ohio-2204.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 20AP-179

v. : (C.P.C. No. 19CR-1890)

Terry J. McFadden, : (REGULAR CALENDAR)

Defendant-Appellant. :

State of Ohio, :

Plaintiff-Appellant/ :

Cross-Appellee,

:

v. No. 20AP-375

: (C.P.C. No. 19CR-1890)

Terry J. McFadden,

: (REGULAR CALENDAR)

Defendant-Appellee/

Cross-Appellant. :

D E C I S I O N

Rendered on June 29, 2021

On brief: G. Gary Tyack, Prosecuting Attorney, Barbara A.

Farnbacher, and Sheryl L. Prichard, for State of Ohio.

Argued: Sheryl L. Prichard.

On brief: Yeura R. Venters, Public Defender, and George M.

Schumann, for Terry J. McFadden. Argued: George M.

Schumann.

APPEALS from the Franklin County Court of Common Pleas

Nos. 20AP-179 and 20AP-375 2

SADLER, J.

{¶ 1} In case No. 20AP-375, plaintiff-appellant/cross-appellee, State of Ohio,

appeals from a March 3, 2020 judgment of the Franklin County Court of Common Pleas

convicting defendant-appellee/cross-appellant, Terry J. McFadden, of 2 counts of rape, in

violation of R.C. 2907.02, and imposing an aggregate prison term of 22 years. In the cross-

appeal, McFadden alleges the trial court did not comply with Crim.R. 11 in accepting his

guilty plea and convicting him of rape.

{¶ 2} In case No. 20AP-179, defendant-appellant, Terry J. McFadden, appeals from

a March 5, 2020 judgment of the Franklin County Court of Common Pleas convicting him

of 2 counts of rape, in violation of R.C. 2907.02, and imposing an aggregate prison term of

22 to 27.5 years.

{¶ 3} For the reasons that follow, we reverse the judgment in case No. 20AP-375

and vacate the judgment in case No. 20AP-179.

I. FACTS AND PROCEDURAL HISTORY

{¶ 4} The facts underlying McFadden's convictions were set forth by the prosecutor

at the January 9, 2020 plea hearing as follows:

This occurred on or about April 5th, 2019. On April 7, 2019,

the Grandview Heights Police received a call from Children

Services regarding potential sex abuse of two minors located

at 795 Gladden Road, Columbus, Ohio, here in Franklin

County. The referral referenced two juvenile females who

attended an in-home daycare at 795 Gladden Road. It was run

by the homeowner, Carol McFadden, along with the help of

her husband, the defendant, Terry McFadden. The complaint

referenced that on one occasion Terry -- the defendant placed

his hands down the pants of both juvenile females and

touched their vaginas.

Your Honor, on April 8th, 2019, Grandview Heights Police

Detectives interviewed the suspect about these allegations.

He voluntarily submitted to the interview at police

headquarters and he did admit to the sexual contact and the

conduct as reported. Both juvenile females were interviewed

by a forensic interviewer at the Nationwide Children's, Center

for Family Safety and Healing and they disclosed the incidents

that did occur.

(Jan. 9, 2020 Plea Hearing Tr. at 9-10.)

Nos. 20AP-179 and 20AP-375 3

{¶ 5} On April 17, 2019, a Franklin County Grand Jury indicted McFadden on four

counts of rape, in violation of R.C. 2907.02. Counts 1 and 2 of the indictment alleged

offenses against a child victim that occurred on April 5, 2019. Count 3 of the indictment

alleged an offense against the same child victim that occurred on or about January 1 to

April 4, 2019. Count 4 alleged an offense against a second child victim that occurred on or

about May 1 to September 30, 2018. All charges in the indictment were first-degree

felonies.

{¶ 6} McFadden initially pleaded not guilty to the charges in the indictment.

However, on January 9, 2020, McFadden executed a plea form wherein he expressed his

desire to withdraw his previously entered general plea of not guilty and to plead guilty to

the charges in Counts 1 and 4 of the indictment. At the January 9, 2020 plea hearing, the

following exchange occurred:

THE COURT: So you know when you signed this [plea] form

you're changing your previously entered not guilty plea,

you're pleading guilty to two F1 rape counts, the maximum

sentence for which you could receive is an indefinite sentence

of 22 years to 27-and-a-half years, and conversely the

minimum sentence for which you could receive is an

indefinite sentence of 3 years to 4-and-a-half years, and the

maximum fine you could receive on each count is $20,000; do

you understand that?

THE DEFENDANT: Yes, Your Honor.

(Emphasis added.) (Jan. 9, 2020 Plea Hearing Tr. at 5-6.)

{¶ 7} The trial court found McFadden guilty of two counts of rape and scheduled a

sentencing hearing for March 3, 2020. Counts 2 and 3 were nolled. The sentencing hearing

transcript reads as follows:

THE COURT: Mr. McFadden, you have been convicted of or

pleaded guilty to a sexually oriented child victim offense, as

such you will be a Tier III registrant for your lifetime with in

person verification every 90 days. Failure to register, failure

to verify residence address at the specified times, or failure to

provide notice of a change in resident address or other

required information as described above will result in

criminal prosecution.

***

On Count One, I am sending you to prison for 11 years. On

Count Four, I am sending you to prison for 11 years, they will

Nos. 20AP-179 and 20AP-375 4

be consecutive to each other for a total of 22 years. You have

32 days jail credit.

(Mar. 3, 2020 Sentencing Hearing Tr. at 23-24.)

{¶ 8} The trial court subsequently issued a judgment entry on March 3, 2020,

convicting McFadden of 2 counts of rape and imposing a definite prison term of 11 years as

to each count. The trial court ordered McFadden to serve the 2 prison terms consecutively,

for an aggregate prison term of 22 years. The trial court also imposed Tier III sex offender

registration requirements pursuant to R.C. Chapter 2950.

{¶ 9} On March 4, 2020, the trial court issued a warrant ordering the Franklin

County Sheriff to convey McFadden to the Ohio Department of Rehabilitation and

Correction ("ODRC") to begin serving his sentence. On that same day, however, the trial

court scheduled a hearing for March 5, 2020. The parties agreed McFadden was not

conveyed to ODRC on March 4, 2020, and he was present in the courtroom and represented

by counsel at the March 5, 2020 hearing.

{¶ 10} As a result of the hearing, the trial court issued an "Amended Judgment

Entry" on March 5, 2020. In the amended judgment entry, the trial court changed

McFadden's prison term as to Count 1 from a definite prison term of 11 years to an

"indeterminate" prison term of 11 to 16.5 years. The trial court imposed a definite prison

term of 11 years as to Count 4 and ordered McFadden to serve the 2 prison terms

consecutively for an aggregate prison term of 22 to 27.5 years.

{¶ 11} McFadden timely appealed to this court in case No. 20AP-179 from the

March 5, 2020 judgment entry. The state of Ohio subsequently appealed to this court, in

case No. 20AP-375, from the March 3, 2020 judgment entry. McFadden filed a cross-

appeal in case No. 20AP-375, with leave of court. On September 1, 202o, this court issued

a journal entry coordinating case Nos. 20AP-179 and 20AP-375 "for purposes of oral

argument and determination." (Sept. 1, 2020 Journal Entry.) Accordingly, we shall

determine both cases in a single decision.

II. ASSIGNMENTS OF ERROR

{¶ 12} In case no. 20AP-375, the state of Ohio assigns the following as trial court

error:

THE TRIAL COURT ERRED IN INITIALLY IMPOSING A

DEFINITE PRISON TERM FOR DEFENDANT'S

Nos. 20AP-179 and 20AP-375 5

CONVICTION ON COUNT ONE, IN CONTRAVENTION OF

THE REAGAN TOKES ACT.

{¶ 13} McFadden assigns the following as trial court error:

[1.] The trial court erred by entering a judgment of conviction

for sex offenses based upon guilty pleas that were not

knowing, intelligent and voluntary, because the trial court

completely failed to substantially comply with Crim.R.

11(C)(2)(a) by completely failing to inform the defendant-

appellant that the maximum penalty involved on both count

one and count four included Tier III sex offender registration

duties.

[2.] The trial court erred by entering a judgment of conviction

for a sex offense based upon a guilty plea that was not

knowing, intelligent and voluntary, because the trial court

completely failed to substantially comply with Crim.R.

11(C)(2)(a) by completely failing to inform the defendant-

appellant that the maximum penalty on count one included an

indeterminate prison term that contained a presumptive

release date subject to rebuttal by the ODRC.

[3.] The trial court erred by entering a judgment of conviction

for a sex offense based upon a guilty plea that was not

knowing, intelligent and voluntary, because the trial court

completely failed to substantially comply with Crim.R.

11(C)(2)(a) by completely failing to inform the defendant-

appellant that the maximum penalty on count four included a

determinate prison term of 11 years, and by incorrectly

informing him that the maximum penalty involved an

indeterminate sentence.

[4.] The trial court erred in imposing consecutive terms of

imprisonment on count one and count four, where the trial

court failed to make all of the required finding mandated by

R.C. 2929.14(C)(4) at the sentencing hearing and further

failed to incorporate all of the findings mandated by R.C.

2929.14(C)(4) into its sentencing entry.

{¶ 14} In case no. 20AP-179, McFadden assigns the following as trial court error:

[1.] The trial court did not have jurisdiction or legal authority

to resentence the defendant-appellant after the trial court had

caused the entry of final judgment of conviction on the journal

by the clerk pursuant to Crim.R. 32(C); the resentencing

judgment entered on the journal is void and must be vacated.

[2.] The trial court violated the defendant-appellant's

constitutional rights to due process under Section 10, Article

I, Ohio Constitution and the Fourteenth Amendment to the

Nos. 20AP-179 and 20AP-375 6

U.S. Constitution, and violated Crim.R. 43(A)(1) when it

resentenced him outside of his physical presence and in the

absence of a valid waiver of his right to be present.1

[3.] The mandatory indeterminate prison term imposed

pursuant to the statutory scheme set forth in R.C.

2929.14(A)(1)(a), R.C. 2929.144(B)(1), R.C. 2967.271(C) and

R.C. 2967.271(D) violates the defendant-appellant's rights to

a jury trial under Section 10, Article I, Ohio Constitution and

the Sixth and Fourteenth Amendments to the U.S.

Constitution, because the statutes provide for a presumptive

release date of the minimum term but allow for the

presumption to be rebutted with findings of fact after the

initial guilt determination and unrelated to the facts necessary

for the imposition of punishment for the commission of the

offense.

[4.] The mandatory indeterminate prison term imposed

pursuant to the statutory scheme set forth in R.C.

2929.14(A)(1)(a), R.C. 2929.144(B)(1), R.C. 2967.271(C) and

R.C. 2967.271(D) violates the principle of separation of

powers under the Ohio Constitution, because the statutes

provide for a legislative delegation of judicial sentencing

power to the executive branch, by allowing the ODRC to

increase the defendant-appellant's punishment after the

initial guilt determination in the trial court based on facts

unrelated to the imposition of punishment for the commission

of the offense.

[5.] The mandatory indeterminate prison term imposed

pursuant to the statutory scheme set forth in R.C.

2929.14(A)(1)(a), R.C. 2929.144(B)(1), R.C.2967.271(C) and

R.C. 2967.271(D) violates the defendant-appellant's rights to

due process of law under Sections 10 and 16, Article I, Ohio

Constitution and the Fifth and Fourteenth Amendments to

the U.S. Constitution, because the statutes operate to deprive

the defendant-appellant of a vested liberty interest by

providing for a guilt determination by the executive branch on

facts unrelated to the commission of the offense of conviction

authorizing an increase in the defendant-appellant's imposed

punishment, but without providing the defendant-appellant

with notice of the allegations against him, without providing

the defendant with an opportunity to defend against the

allegations, without providing a neutral and detached

factfinder, without the benefit of counsel, without the benefit

of a guilt determination beyond a reasonable doubt, and

1 McFadden has withdrawn his second assignment of error in case No. 20AP-179. (Nov. 9, 2021 Notice.)

Nos. 20AP-179 and 20AP-375 7

without the benefit of judicial review of the executive branch's

deprivation of the defendant-appellant's liberty interest.

[6.] The trial court erred in imposing an indeterminate prison

term on count one without giving the defendant-appellant any

of the mandatory statutory notifications required by R.C.

2929.19(B)(2)(c), (d), (f), and (h) when the court imposes an

indeterminate prison term.

III. LEGAL ANALYSIS

A. McFadden's Cross-Appeal in Case No. 20AP-375

{¶ 15} In McFadden's first, second, and third assignments of error in his cross-

appeal, he contends the trial court erred when it accepted his guilty plea as to Counts 1 and

4 of the indictment without first ensuring that McFadden's plea was knowing, voluntary,

and intelligent. Accordingly, we will consider these assignments of error before addressing

the sentencing issues raised in the two appeals.

1. McFadden's First Assignment of Error

{¶ 16} In his cross-appeal in case No. 20AP-375, McFadden argues, for various

reasons, the trial court erred in convicting him of rape because his guilty pleas were not

knowing, voluntary, and intelligent due to the trial court's failure to substantially comply

with Crim.R. 11.

{¶ 17} "A trial court must comply with Crim.R. 11 when it accepts a guilty plea.

Among other requirements, the rule requires a trial court to determine that the defendant

is making the plea voluntarily, with understanding of the nature of the charges and of the

maximum penalty involved, and, to inform the defendant of and determine that the

defendant understands the effect of the plea of guilty." State v. Green, 10th Dist. No. 10AP-

934, 2011-Ohio-6451, ¶ 10, citing Crim.R. 11(C)(2)(a) and (b). See also State v. Engle, 74

Ohio St.3d 525, 527 (1996); State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7. "A

trial court need only substantially comply with these non-constitutional requirements of

Crim.R. 11." Green at ¶ 10, citing State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12.

"Substantial compliance means that under the totality of the circumstances the defendant

subjectively understands the implications of his plea and the rights he is waiving." State v.

Nero, 56 Ohio St.3d 106, 108 (1990).

{¶ 18} Here, the plea form executed by McFadden on January 9, 2020 provides that

he is pleading guilty to the "stipulated lesser included offense to Count One - Rape (F-1) @

Nos. 20AP-179 and 20AP-375 8

2907.02(A)(2) of R.C." and the "stipulated lesser included offense to Count Four - Rape (F-

1) @ 2907.02(A)(2) of R.C." The form further indicates that "[t]he maximum sentence for

which the Defendant could receive is an indefinite sentence: 22 years to 27.5 years

incarceration in ODRC."

{¶ 19} McFadden makes the following acknowledgment in the plea form: "I

understand that mandatory prison term(s) * * * are required for the following offenses * * *

and that I will not be eligible for community control sanctions, judicial release, or earned

days of credit in relation to * * * these term(s): Count One - Rape (F-1) @ 2907.02(A)(2) of

R.C. [and] Count Four - Rape (F-1) @ 2907.02(A)(2) of R.C." The plea form also provides:

The maximum sentence for which the Defendant could

receive is an indefinite sentence: 22 years to 27.5 years

incarceration in ODRC.

Conversely, the minimum sentence for which the Defendant

could receive is an indefinite sentence: 3 years to 4.5 years

incarceration in ODRC.

*Defendant will also register as a TIER III (3) sex offender and

must comply with all requirements, including residency.

(Jan. 9, 2020 Entry of Guilty Plea at 1.)

{¶ 20} At the plea hearing, the trial court engaged in the following colloquy with

McFadden:

[PROSECUTOR:] All of the parties have electronically signed

this entry of guilty plea form, and upon acceptance of this, we

would ask the Court to enter a Nolle prosequi as to Count Two

and Count Three of the indictment. Thank you.

***

THE COURT: So you know when you signed this form you're

changing your previously entered not guilty plea, you're

pleading guilty to two F1 rape counts, the maximum sentence

for which you could receive is an indefinite sentence of 22

years to 27-and-a-half years, and conversely the minimum

sentence for which you could receive is an indefinite sentence

of 3 years to 4-and-a-half years, and the maximum fine you

could receive on each count is $20,000; do you understand

that?

THE DEFENDANT: Yes, Your Honor.

(Emphasis added.) (Jan. 9, 2020 Plea Hearing Tr. at 4-6.)

Nos. 20AP-179 and 20AP-375 9

{¶ 21} In his third cross-assignment of error, McFadden argues that his plea did not

constitute a knowing, voluntary, and intelligent waiver of his non-constitutional rights due

to the trial court's failure to ensure his understanding of the maximum penalty. More

particularly, McFadden contends the trial court completely failed to inform him that a

conviction of the sexually oriented offenses to which he was pleading guilty subjected him

to Tier III reporting requirements pursuant to R.C. Chapter 2950. We disagree.

{¶ 22} This very issue was the subject of a recent decision of the Supreme Court of

Ohio in State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765. In that case, Dangler sought

to have his no contest plea to rape vacated on the ground the trial court had not complied

with Crim.R. 11(C)(2)(a). Id. at ¶ 6. Prior to accepting Dangler's plea, the trial court

informed him that he would be classified as a Tier III sex offender with lifetime registration

requirements but did not inform him of residency restrictions and community notification

requirements associated with his status as a sex offender. Id. at ¶ 1, 6-7. In his appeal,

Dangler argued his plea did not constitute a knowing, voluntary, and intelligent waiver of

his non-constitutional rights due to the trial court's failure to ensure his understanding of

the maximum penalty. The Sixth District Court of Appeals held the trial court erred in

accepting Dangler's plea because the trial court completely failed to inform Dangler of the

statutorily mandated registration and verification requirements, community notification

requirements, and residential restrictions under R.C. Chapter 2950. The Sixth District

further found a showing of prejudice is not required when the trial court completely fails to

comply with Crim.R. 11.

{¶ 23} Recognizing that a sex-offender classification constitutes a penalty for

purposes of Crim.R. 11, the Supreme Court agreed with the Sixth District that the trial

court's advisement did not substantially comply with Crim.R. 11(C)(2)(a). Id. at ¶ 2. The

Supreme Court concluded, however, that because the trial court did advise Dangler that he

would be subject to the registration requirements, the trial court did not "completely fail"

to ensure Dangler's understanding of the maximum penalty. Id. at ¶ 23. The Supreme

Court further concluded Dangler was "entitled to have his conviction vacated for lack of a

more complete explanation only if he demonstrates prejudice." Id. at ¶ 2. Because Dangler

did not establish prejudice, the Supreme Court held he was not entitled to have his no

contest plea vacated due to non-compliance with Crim.R. 11(C)(2)(a). Id. at ¶ 24.

Nos. 20AP-179 and 20AP-375 10

{¶ 24} Here, the transcript of the January 9, 2020 plea hearing contains the

following statement by the prosecutor:

Your Honor, the maximum sentence -- penalty for this is an

indefinite sentence in this case. If you were to sentence

consecutively on both counts, the indefinite sentence would

be anywhere between 22 years to 27-and-a-half years of

incarceration in the Ohio Department of Rehabilitations and

Corrections. This is a mandatory sentence on both counts.

Conversely, Your Honor, if you were to give a minimum on

this case, that minimum sentence would be in -- would be an

indefinite sentence of 3 years to 4-and-a-half years of

incarceration in ODRC.

Additionally, Your Honor, the defendant must register as a

Tier III sex offender and comply with all of the requirements,

including those pertaining to residency.

(Emphasis added.) (Jan. 9, 2020 Plea Hearing Tr. at 3.)

{¶ 25} The prosecutor's reference to the Tier III registration requirements is the only

mention of the sex-offender classification scheme in the plea hearing transcript. The trial

court never personally advised McFadden of any of the Tier III requirements prior to

accepting his guilty pleas. In our view, a more detailed explanation of the registration

requirements was required in this case in order for the trial court to ensure McFadden

understood the maximum penalty included sex-offender registration. Though the

prosecutor informed the trial court McFadden was to register as a Tier III sex offender and

comply with all the requirements, including those pertaining to residency, McFadden was

not told of the residency restrictions and community-notification requirements associated

with his status as a sex offender. Thus, the trial court did not substantially comply with the

requirements of Crim.R. 11(C)(2)(a) with regard to the Tier III sex-offender registration

requirements. The question for this court, then, is whether the trial court completely failed

to comply with Crim.R. 11(C)(2)(a).

{¶ 26} The state argues that subsequent to the Dangler decision, the Supreme Court

issued a ruling in a similar case that essentially disposes of this question in the state's favor.

We agree.

{¶ 27} In State v. Dornoff, 6th Dist. No. WD-16-072, 2018-Ohio-3084 ("Dornoff I"),

Dornoff entered a guilty plea to one count of rape with a firearm specification, one count of

felonious assault with a sexual motivation specification, and one count of kidnapping with

Nos. 20AP-179 and 20AP-375 11

a sexual motivation specification. Id. at ¶ 4. Prior to the plea hearing, appellant signed a

plea form containing a notification he would be required to register as a Tier II and Tier III

sex offender. Id. at ¶ 16. The plea form did not provide further detail regarding sex offender

registration. Id.

{¶ 28} At the plea hearing, the prosecutor informed the trial court, in Dornoff's

presence, Dornoff had entered a plea of guilty, and he "will be registered as a Tier III sex

offender." Id. at ¶ 17. The trial judge, however, did not personally advise Dornoff he would

be required to register as a sexual offender or inform him of any of the punitive

consequences of the sex-offender classification scheme. Id. The trial court accepted

Dornoff's guilty plea and sentenced him to an aggregate prison term of 15 years. The trial

court subsequently denied Dornoff's pro se motions to withdraw his guilty plea. Id.

{¶ 29} The Sixth District Court of Appeals in Dornoff I determined the trial court

completely failed to comply with Crim.R. 11(C)(2)(a). Id. at ¶ 18. The Sixth District cited

the following facts in support of that determination:

At the plea hearing, the prosecutor indicated to the trial court

that appellant was entering a guilty plea to three counts and

"will be registered as a Tier III sex offender." However, during

the plea hearing, the trial judge did not advise appellant that he

would have to register as a sexual offender, nor was appellant

informed of any of the punitive consequences of entering a

guilty plea and having a sexual offender classification.

Id. at ¶ 17.

{¶ 30} In Dornoff I, the Sixth District vacated the guilty plea, without a showing of

prejudice, on concluding that "the trial court's failure to comply with Crim.R. 11(C)(2)

renders [Dornoff's] plea involuntary, unknowing and invalid." Id. at ¶ 18. The Sixth District

subsequently certified its decision in Dornoff I to the Supreme Court as being in conflict

with a judgment of the Eighth District Court of Appeals in State v. Creed, 8th Dist. No.

97317, 2012-Ohio-2627. The Sixth District certified the record to the Supreme Court on the

following question:

[D]oes a trial court's failure to inform a defendant about the

residential restrictions imposed on sexual offenders under

R.C. Chapter 2950 render the plea invalid?

Nos. 20AP-179 and 20AP-375 12

(Emphasis added.) Dornoff I at ¶ 23.2

{¶ 31} The Supreme Court in State v. Dornoff, 160 Ohio St.3d 216, 2020-Ohio-3022

("Dornoff II"), issued the following unanimous ruling in the appeal:

The judgment of the court of appeals is reversed, and this

cause is remanded to the court of appeals for application of

State v. Dangler, * * * 2020-Ohio-2765.

Dornoff II at ¶ 1.

{¶ 32} On remand, the Sixth District noted that "[t]his case is before us based on a

remand issued by the Supreme Court of Ohio * * * in which the court reversed our decision

in [Dornoff I], on the authority of * * * Dangler." State v. Dornoff, 6th Dist. No. WD-16-

072, 2020-Ohio-3909, ¶ 1 ("Dornoff III"). The Sixth District proceeded to issue the

following ruling in Dornoff III:

Upon review, we find the trial court, similar to the trial court in

Dangler, failed to completely and separately advise appellant

of the sex-offender registration and in-person verification

requirements, community-notification provisions, and

residence restrictions imposed by the sex-offender registration

scheme when accepting appellant's guilty plea. We further

find, on the authority of the Supreme Court's holding in

Dangler, this failure did not constitute a complete failure to

comply with Crim.R. 11, thus appellant must demonstrate

prejudice in order to have his conviction vacated.

A review of the record reveals appellant has alleged he was

prejudiced, but he has offered no explanation or evidence to

show that he would not have entered the guilty plea but for the

trial court's failure to fully advise him of all of the details of the

sex-offender classification scheme. Therefore, appellant has

not established prejudice, and he is not entitled to have his

guilty plea vacated for a failure of the trial court to comply with

Crim.R. 11(C).

Id. at ¶ 17-18.

{¶ 33} Here, the plea form signed by McFadden includes an acknowledgment by

McFadden that he "will also register as a TIER III (3) sex offender and must comply with

all requirements, including residency." (Jan. 9, 2020 Entry of Guilty Plea at 1.) The

prosecutor stated at the plea hearing that McFadden "must register as a Tier III sex offender

2The Supreme Court determined there was a conflict and ordered the case held for the decision in Dangler.

State v. Dornoff, 153 Ohio St.3d 1502, 2018-Ohio-4288.

Nos. 20AP-179 and 20AP-375 13

and comply with all of the requirements, including those pertaining to residency." (Jan. 9,

2020 Plea Hearing Tr. at 3.) McFadden responded in the affirmative when the trial court

asked him if he read and understood the plea form before he signed it. McFadden also

acknowledged his attorney explained the plea form to him before he signed.

{¶ 34} Thus, the record shows McFadden was provided with the same information

at the plea hearing that the defendant received in Dangler. The difference in this case is

that the information was provided by the prosecuting attorney to the trial court in

McFadden's presence. The trial court did not personally advise McFadden he would be

subject to sex offender registration requirements. McFadden argues the failure of the trial

court to personally inform him he was subject to Tier III sex-offender registration

constitutes a complete failure to comply with Crim.R. 11(C)(2)(a). Accordingly, McFadden

claims he is entitled to have his conviction vacated for lack of compliance with Crim.R.

11(C)(2)(a) without demonstrating prejudice. Dangler, 2020-Ohio-2765, at ¶ 2, 20, 22.

{¶ 35} The Sixth District in Dornoff III rejected the argument McFadden now raises

in his first assignment of error under a nearly identical set of facts. Applying the ruling of

the Supreme Court in Dornoff II, the Sixth District in Dornoff III found Dornoff's execution

of a written plea agreement advising him he would be subject to Tier II and III sex-offender

requirements, combined with the prosecutor's statement at the plea hearing Dornoff would

be subject to Tier II and III sex-offender requirements as a result of his guilty plea,

established partial compliance with Crim.R. 11(C)(2)(a). We agree with the decision in

Dornoff III. Accordingly, we hold that even though the trial court failed to completely and

separately advise McFadden of the Tier III sex-offender registration requirements when

accepting his guilty plea, the record evidences partial compliance with Crim.R. 11(C)(2)(a).

Dornoff II, 2020-Ohio-3022, and Dornoff III, 2020-Ohio-3909, at ¶ 17, citing Dangler.

Because the record evidences partial compliance by the trial court with Crim.R. 11(C)(2)(a),

McFadden is not entitled to have his conviction vacated for lack of a more complete

explanation of the Tier III sex-offender requirements unless he demonstrates prejudice.

Dangler at ¶ 2, 23.

{¶ 36} McFadden argues the remand order issued by the Supreme Court in Dornoff

II does not support the proposition that partial compliance with Crim.R. 11(C)(2)(a) may

be established in the absence of a personal advisement by the trial court. The Sixth District

Nos. 20AP-179 and 20AP-375 14

obviously disagrees and so do we. The Sixth District in Dornoff I conspicuously pointed

out the trial court had not personally informed Dornoff of the Tier II and III requirements.

Dornoff I, 2018-Ohio-3084, at ¶ 17. We do not believe the Supreme Court overlooked this

critical fact when it acknowledged the conflict and issued a ruling in Dornoff II. Moreover,

Crim R. 11(C)(2) provides, in relevant part, as follows:

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:

(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.

{¶ 37} Unlike Crim.R. 11(C)(2)(b) and (c), Crim.R. 11(C)(2)(a) does not require that

the trial court "inform" the defendant of the maximum penalty involved.3 Rather, the rule

simply requires the trial court to address the defendant personally to determine the

defendant is "making the plea voluntarily, with understanding of the nature of the charges

and of the maximum penalty involved." Crim.R. 11(C)(2)(a). Thus, the rulings in Dornoff

II and Dornoff III are consistent with the language of the rule.

{¶ 38} McFadden's first assignment of error concedes he cannot establish prejudice,

and he has made no such claim in his merit brief. Moreover, to establish prejudice,

McFadden must establish he would not have pleaded no contest but for the trial court's

failure to explain the sex-offender classification scheme more thoroughly. Id. at ¶ 23. Our

review of the record reveals no evidence demonstrating McFadden would not have entered

the guilty plea but for the trial court's failure to personally and more fully advise him of the

details of the sex-offender classification scheme.

{¶ 39} Because the trial court partially complied with Crim.R. 11(C)(2)(a) in regard

to the Tier III sex-offender registration requirements and because McFadden failed to show

prejudice arising from the lack of substantial compliance, McFadden is not entitled to an

3 Conversely, Crim.R. 11(C)(2)(b) and (c) use the term "[i]nforming the defendant" rather than "[d]etermining

that the defendant."

Nos. 20AP-179 and 20AP-375 15

order vacating his guilty plea to the rape offenses. Accordingly, we overrule the first

assignment of error in McFadden's cross-appeal.

2. McFadden's Second and Third Assignments of Error

{¶ 40} In his second and third assignments of error in the cross-appeal, McFadden

contends the trial court completely failed to advise him of the maximum prison term that

could be imposed on him for the offenses to which he pleaded guilty. Accordingly, we will

consider these assignments of error jointly.

{¶ 41} The parties agree the maximum prison term for rape, as charged in Count 1

of the indictment, is an indefinite prison term of 11 years plus one-half of that term for a

total of 16.5 years. The maximum prison term for rape, as charged in Count 4, is a definite

prison term of 11 years. When the indefinite prison term on Count 1 and the definite prison

term on Count 4 are served consecutively, as ordered by the trial court, the maximum

aggregate prison term is 22 to 27.5 years.

{¶ 42} The transcript of the plea hearing establishes McFadden was orally informed

by the trial court that he faced a maximum consecutive prison term of 22 to 27.5 years.

McFadden argues, however, Crim.R. 11(C)(2)(a) required the trial court to separately advise

him of the maximum prison term for each of the two rape offenses to which he was pleading

guilty and to explain the divergent sentencing schemes. McFadden claims he is entitled to

have his conviction vacated, without a showing of prejudice, because the trial court

completely failed to comply with Crim.R. 11(C)(2)(a) with respect to the maximum prison

term. We disagree.

{¶ 43} McFadden relies on State v. Johnson, 40 Ohio St.3d 130 (1988), in support

of this assignment of error. In Johnson, the Supreme Court addressed the requirement of

Crim.R. 11(C) that a defendant be informed of the "maximum penalty." In that case,

Johnson pleaded guilty to multiple offenses, and the trial court informed him of the

potential maximum sentence for each offense but not that the sentences could be imposed

consecutively or the total sentence that he faced. The Supreme Court found the trial court's

notification complied with Crim.R. 11(C), stating:

[T]he term "the maximum penalty" which is required to be

explained is also to be understood as referring to a single

penalty. In the context of "the plea" to "the charge," the

reasonable interpretation of the text is that "the maximum

penalty" is for the single crime for which "the plea" is offered.

Nos. 20AP-179 and 20AP-375 16

It would seem to be beyond a reasonable interpretation to

suggest that the rule refers cumulatively to the total of all

sentences received for all charges which a criminal defendant

may answer in a single proceeding.

Id. at 133.

{¶ 44} McFadden claims that Johnson stands for the proposition that, unless the

trial court separately informs the defendant of the maximum penalty for each of the

offenses to which he is pleading guilty, the trial court completely fails to comply with

Crim.R. 11(C)(2)(a). In other words, McFadden claims, under Johnson, partial compliance

with Crim.R. 11(C)(2)(a) cannot be demonstrated in any other way. McFadden overstates

the rule of law applied in Johnson.

{¶ 45} The rule of law established in Johnson is that a "[f]ailure to inform a

defendant who pleads guilty to more than one offense that the court may order him to serve

any sentences imposed consecutively, rather than concurrently, is not a violation of Crim.R.

11(C)(2), and does not render the plea involuntary." Id. at syllabus. Johnson does not speak

to the issue of partial compliance raised in this appeal.

{¶ 46} In Johnson, the Supreme Court relied on Barbee v. Ruth, 678 F.2d 634 (5th

Cir.1982), which found that:

The Constitution does not require that, in order to understand

the consequences of a plea of guilty, the accused must be

informed by the trial court, or must otherwise know, whether

or not sentences imposed for separate crimes will run

consecutively or concurrently. * * *

The consequences of a guilty plea, with respect to sentencing,

mean only that the defendant must know the maximum

prison term and fine for the offense charged. As long as [the

defendant] understood the length of time he might possibly

receive, he was fully aware of his plea's consequences.

(Citations and quotations omitted.) Id. at 635.

{¶ 47} Here, the trial court correctly informed McFadden of the maximum aggregate

prison term he could receive if ordered to serve the two prison terms consecutively. Thus,

the record evidences McFadden's understanding of the length of the prison term he might

possibly receive. The plea colloquy also demonstrates McFadden's understanding that his

sentence included an indefinite prison term, as evidenced by the trial court's statement:

"you're pleading guilty to two F1 rape counts, the maximum sentence for which you could

Nos. 20AP-179 and 20AP-375 17

receive is an indefinite sentence of 22 years to 27-and-a-half years." (Jan. 9, 2020 Plea

Hearing Tr. at 5.)

{¶ 48} As previously noted, Crim.R. 11(C)(2)(a) simply requires the trial court to

address the defendant personally and to determine the defendant is "making the plea

voluntarily, with understanding of the nature of the charges and of the maximum penalty

involved." McFadden knew he was pleading guilty to two rape offenses under the same

statutory provision, and he understood the maximum aggregate prison term the trial court

could impose for the two offenses. Even if we were to agree with McFadden that the record

does not evidence substantial compliance with Crim.R. 11(C)(2)(a), on this record, we

cannot agree the record evidences a complete failure to comply with Crim.R. 11(C)(2)(a)

with regard to the maximum prison term. Though the trial court should have provided

McFadden with a more detailed explanation of the different sentencing schemes applicable

to each count, the trial court's advisement in this case partially complies with Crim.R.

11(C)(2)(a). Thus, McFadden is not entitled to have his conviction vacated for lack of a

more complete explanation of the divergent sentencing schemes unless he demonstrates

prejudice. Dangler, 2020-Ohio-2765, at ¶ 2, 23. McFadden does not claim he would not

have pleaded guilty if the trial court had separately set forth the maximum prison term for

each of the two rape offenses and more thoroughly explained the divergent sentencing

schemes.

{¶ 49} For the foregoing reasons, we overrule McFadden's second and third

assignments of error in his cross-appeal.

B. State's Appeal in Case No. 20AP-375

{¶ 50} In the state's sole assignment of error, the state argues the trial court erred

when it imposed a definite prison term of 11 years as to Count 1 of the indictment in

violation of the Reagan Tokes Law. We agree.

{¶ 51} "Am. Sub. S.B. No. 201, 2018 Ohio Laws 157, known as the 'Reagan Tokes

Law,' was enacted in 2018 and went into effect on March 22, 2019." State v. Jones, 7th Dist.

No. 20 MA 0059, 2021-Ohio-1164, ¶ 18. "The new law, ' "significantly altered the

sentencing structure for many of Ohio's most serious felonies" by implementing an

indefinite sentencing system for those non-life felonies of the first and second degree,

committed on or after the effective date.' " Id. at ¶ 18, quoting State v. Polley, 6th Dist. No.

Nos. 20AP-179 and 20AP-375 18

OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1, quoting The Ohio Criminal Sentencing

Commission, SB 201 - The Reagan Tokes Law Indefinite Sentencing Quick Reference

Guide, July 2019, citing R.C. 2929.144(A). "Under the Reagan Tokes Law, 'first-and

second-degree felonies committed on or after March 22, 2019 are now subject to the

imposition of indefinite sentences.' " Jones at ¶ 18, quoting State v. Barnes, 2d Dist. No.

28613, 2020-Ohio-4150, ¶ 28.

{¶ 52} Under the Reagan Tokes Law, an indefinite prison term must be imposed by

the trial court for qualifying first and second-degree felonies. The prison term "consist[s]

of a stated minimum prison term as selected by the trial court from a range of prison terms

set forth in R.C. 2929.14(A) and a maximum prison term for qualifying first-and second-

degree felonies as determined by the trial court from formulas set forth in R.C. 2929.144."

Jones at ¶ 18, citing Barnes at ¶ 28.

{¶ 53} R.C. 2929.144(B)(1) provides, in relevant part, "[i]f the offender is being

sentenced for one felony and the felony is a qualifying felony of the first or second degree,

the maximum prison term shall be equal to the minimum term imposed on the offender

under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code plus fifty per cent

of that term." The term "qualifying felony of the first or second degree" is defined as "a

felony of the first or second degree committed on or after the effective date of [R.C.

2929.144]." R.C. 2929.144(A).

{¶ 54} Under R.C. 2967.271(B), the offender's presumptive release date is the date

the offender completes the minimum prison term. If, however, ODRC successfully rebuts

the offender's presumptive release date, at an administrative hearing, ODRC may continue

to confine the offender for an additional period not to exceed the maximum prison term

imposed by the trial court. R.C. 2967.271(C).

{¶ 55} R.C. 2953.08 "specifically and comprehensively defines the parameters and

standards—including the standard of review—for felony-sentencing appeals." State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 21. R.C. 2953.08(G)(2) provides, in

relevant part, as follows:

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.

Nos. 20AP-179 and 20AP-375 19

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

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.

(Emphasis added.)

{¶ 56} R.C. 2953.08(G)(2) commands us to employ the clear-and-convincing-

evidence standard. Jones, 2021-Ohio-1164, at ¶ 17, citing Marcum at ¶ 22. The parties

agree the maximum sentence as to Count 1 of the indictment includes a mandatory

indefinite prison term of 11 years plus one-half of that term for a total of 16.5 years.

However, at the March 3, 2020 sentencing hearing, the trial court imposed a definite prison

term of 11 years on each of the 2 counts of rape, to be served consecutively, for a total of 22

years in prison.

{¶ 57} Because the trial court imposed a definite prison term for a first-degree felony

committed after March 22, 2019, we find the sentence is contrary to law. Jones at ¶ 17; R.C.

2953.08(G)(2)(b). Accordingly, we sustain the state's assignment of error. The judgment

of the trial court shall be reversed, and this cause shall be remanded for the trial court to

impose both a minimum and maximum prison term as to Count 1 of the indictment in

conformity with the new indefinite sentencing law.

C. McFadden's Appeal in Case No. 20AP-179

1. McFadden's First Assignment of Error

{¶ 58} In McFadden's first assignment of error in case No. 20AP-179, McFadden

contends the trial court did not have jurisdiction to issue an amended sentencing entry on

March 5, 2020, after having issued final judgment of conviction and sentence on March 3,

2020. We agree.

{¶ 59} Criminal law in Ohio is statutory in nature. State v. Jama, 10th Dist. No.

11AP-210, 2012-Ohio-2466, ¶ 36, citing State v. Moore, 4th Dist. No. 03CA18, 2004-Ohio-

Nos. 20AP-179 and 20AP-375 20

3977, ¶ 10, citing Lynn v. Limbert, 117 Ohio App.3d 236 (7th Dist.1977). Trial courts,

therefore, have only that power which has been conferred by statute or by rule. Jama at

¶ 36, citing Moore at ¶ 10, citing Lynn. See also State ex rel. Leis v. Outcalt, 1 Ohio St.3d

147, 148 (1982) (in Ohio, criminal procedure is governed by statute). " 'A trial court

generally lacks the authority to reconsider its own valid final judgments in a criminal case.' "

State v. Watkins, 10th Dist. No. 20AP-313, 2020-Ohio-5203, ¶ 15, discretionary appeal

not allowed, 161 Ohio St.3d 1450, 2021-Ohio-534, quoting Jama at ¶ 37, citing State ex rel.

Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, ¶ 18; State v. Boles, 2d Dist. No.

23037, 2011-Ohio-3720, ¶ 34. There are two recognized exceptions to this rule: "(1) when

a void sentence has been imposed, and (2) when the judgment contains a clerical error."

State v. Mitchell, 11th Dist. No. 2019-P-0105, 2020-Ohio-3417, ¶ 35, citing State v. Miller,

127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 14.

{¶ 60} Here, the trial court issued a final judgment of conviction and sentence on

March 3, 2020. There is no question the March 3, 2020 judgment entry constituted a final,

appealable order as the state has appealed from that judgment in case No. 20AP-375, and

McFadden has filed a cross-appeal with leave of court. The state agrees the March 5, 2020

judgment entry should be reversed.

{¶ 61} Given our determination of the state's appeal in case No. 20AP-375, it is clear

the amended judgment entry issued March 5, 2020 makes substantive changes to the

prison term the trial court imposed in the final judgment of conviction and sentence of

March 3, 2020.4 Accordingly, we hold the trial court was without jurisdiction to issue the

March 5, 2020 amended judgment entry. Watkins; Mitchell; Miller.

{¶ 62} For the foregoing reasons, McFadden's first assignment of error in case No.

20AP-179 is sustained, and the March 5, 2020 judgment shall be vacated.

D. Remaining Assignments of Error

{¶ 63} Given our determination in the state's appeal in case No. 20AP-375 that the

March 3, 2020 judgment entry must be reversed and the cause remanded to the trial court

for resentencing on Count 1 and given our ruling on McFadden's first assignment of error

in case No. 20AP-179 vacating the amended judgment entry issued March 5, 2020, the

4Pursuant to Crim.R. 36, "[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in

the record arising from oversight or omission, may be corrected by the court at any time."

Nos. 20AP-179 and 20AP-375 21

constitutional challenges to the Reagan Tokes Law raised in McFadden's third, fourth, and

fifth assignments of error in case No. 20AP-179 are moot. App.R. 12(C). Because we are

vacating the March 5, 2020 amended judgment entry, McFadden's sixth assignment of

error in case No. 20AP-179 is also moot. Similarly, our reversal of the March 3, 2020

judgment and remand for resentencing on Count 1 means the trial court will have another

opportunity to make any findings required by R.C. 2929.14(C)(4). Accordingly,

McFadden's challenge to the consecutive prison term raised by the fourth assignment of

error in case No. 20AP-375 is moot.

IV. CONCLUSION

{¶ 64} Having sustained the state's sole assignment of error in case No. 20AP-375,

but having overruled McFadden's first, second, and third assignments of error in the cross-

appeal, and mooted McFadden's fourth assignment of error in the cross-appeal, we reverse

the March 3, 2020 judgment of the Franklin County Court of Common Pleas and remand

this cause for the court to resentence McFadden as to Count 1 of the indictment.

Furthermore, having sustained McFadden's first assignment of error in case No. 20AP-179,

but having mooted McFadden's third, fourth, fifth, and sixth assignments of error, we

reverse and vacate the March 5, 2020 judgment of the Franklin County Court of Common

Pleas.

Judgment reversed, cause remanded with instructions

in case No. 20AP-375;

judgment reversed and vacated

in case No. 20AP-179.

DORRIAN, P.J., and LUPER SCHUSTER, J., concur.

_____________