[Cite as State v. Massie,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2020-CA-50 : v. : Trial Court Case Nos. 2020-CR-184 : ALLAN W. MASSIE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 24th day of September, 2021.

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IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

SAMANTHA L. BERKHOFER, Atty. Reg. No. 0087370, 202 North Limestone Street, Suite 250, Springfield, Ohio 45502 Attorney for Defendant-Appellant

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WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Allan W. Massie, appeals from his conviction in the

Clark County Court of Common Pleas after pleading guilty to one count of robbery. In

support of his appeal, Massie contends that his guilty plea was not knowingly, intelligently,

and voluntarily entered because, at the plea hearing, the trial court failed to explain the

indefinite nature of the maximum possible prison sentence he faced by pleading guilty.

Massie also contends that the 8-to-12-year indefinite prison sentence imposed by the trial

court is contrary to law because, at the sentencing hearing, the trial court failed to provide

statutorily required notices set forth in R.C. 2929.19(B)(2)(c). For the reasons outlined

below, we find that Massie’s guilty plea was knowingly, intelligently, and voluntarily

entered, but that his sentence was contrary to law due to the trial court’s failure to provide

the notifications required under R.C. 2929.19(B)(2)(c). Therefore, the judgment of the

trial court will be affirmed in part, reversed in part, and remanded to the trial court for the

sole purpose of resentencing Massie.

Facts and Course of Proceedings

{¶ 2} On June 11, 2020, Massie entered a guilty plea to one count of robbery in

violation of R.C. 2911.02(A)(2), a felony of the second degree. During the plea hearing,

the trial court engaged Massie in a plea colloquy that included an advisement that the

maximum penalty Massie faced by pleading guilty was “eight to twelve years in the Ohio

State Penitentiary and a $15,000 fine.” Plea Hearing Trans. (June 11, 2020), p. 7.

Following that advisement, the trial court told Massie that the maximum penalty “may be

a little bit confusing.”

Despite this, the trial court did not further explain the maximum

penalty to Massie. Rather, the trial court simply asked Massie if he understood that the -3-

maximum penalty “would be an indefinite sentence of eight to twelve years,” and Massie

indicated that he understood.

Massie also signed a plea form indicating that he

understood the maximum possible penalty was 8 to 12 years in prison and a $15,000 fine.

Neither the plea form nor the trial court’s plea colloquy explained the indefinite sentencing

scheme to Massie.

{¶ 3} After accepting Massie’s guilty plea and finding Massie guilty of robbery, the

trial court ordered a presentence investigation and scheduled the matter for a sentencing

hearing on July 1, 2020. At the sentencing hearing, the trial court sentenced Massie to

the maximum, indefinite sentence of 8 to 12 years in prison. While imposing that

sentence, the trial court did not orally notify Massie of any of the indefinite sentencing

advisements set forth in R.C. 2929.19(B)(2)(c)(i)-(v). The trial court did, however,

include the advisements within its judgment entry of conviction.

{¶ 4} Massie now appeals from his conviction, raising a single assignment of error

for review.

Assignment of Error

{¶ 5} Under his sole assignment of error, Massie raises two distinct arguments.

Massie first argues that his guilty plea was not knowingly, intelligently, and voluntarily

entered because, during the plea hearing, the trial court failed to explain the indefinite

nature of the maximum possible prison sentence he faced by pleading guilty. Massie

additionally argues that the 8-to-12-year indefinite prison sentence imposed by the trial

court is contrary to law because the trial court failed to provide the statutorily required

notices in R.C. 2929.19(B)(2)(c) at the sentencing hearing. For ease of discussion, we -4-

will address the merits of Massie’s two arguments following a brief discussion on Ohio’s

recently enacted indefinite sentencing scheme.

Indefinite Sentencing

{¶ 6} On March 22, 2019, the Reagan Tokes Law (S.B. 201) became effective in

Ohio. This law requires sentencing courts to impose indefinite prison sentences for

felonies of the first or second degree that are committed on or after the law’s effective

date. The law specifies that the indefinite sentences will consist of a minimum term

selected by the sentencing judge from a range of terms set forth in R.C. 2929.14(A), and

a maximum term determined by formulas set forth in R.C. 2929.144. The law also

establishes a presumption that the offender will be released at the end of the minimum

term. R.C. 2967.271(B). The Ohio Department of Rehabilitation and Correction

(“ODRC”), however, may rebut that presumption. R.C. 2967.271(C). In order to rebut

the presumption for release at the end of the minimum term, the ODRC must conduct a

hearing and determine whether certain statutory factors are applicable. R.C.

2967.271(C)(1), (2) and (3). If the presumption is rebutted, the ODRC may maintain the

offender’s incarceration beyond the minimum term for a reasonable period of time not to

exceed the maximum term imposed by the sentencing judge. R.C. 2967.271(D).

Massie’s Guilty Plea

{¶ 7} As previously noted, Massie first argues that his guilty plea was not

knowingly, intelligently, and voluntarily entered because the trial court failed to explain the

indefinite nature of the maximum possible prison sentence. We disagree. -5-

{¶ 8} “Ohio’s Crim.R. 11 outlines the procedures that trial courts are to follow when

accepting pleas.” State v. Dangler,

,

,

. Pursuant to Crim.R. 11(C)(2), the trial court may not accept a defendant’s guilty

plea without first addressing the defendant personally and doing the following:

(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty

involved, and if applicable, that the defendant is not eligible for probation or

for the imposition of community control sanctions at the sentencing hearing.

(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court,

upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant's favor, and to require the state to

prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.

Crim.R. 11(C)(2)(a)-(c).

{¶ 9} A defendant is generally “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).”

, citing State v. Nero,

,

(1990). There are, however, two exceptions to this rule.

{¶ 10} The first exception concerns the constitutional rights advisement under -6-

Crim.R. 11(C)(2)(c). “When a trial court fails to explain the constitutional rights that a

defendant waives by pleading guilty or no contest, we presume that the plea was entered

involuntarily and unknowingly, and no showing of prejudice is required.” Id. at ¶ 14, citing

State v. Clark,

,

,

. (Other

citation omitted.)

{¶ 11} The second exception occurs when a trial court completely fails to comply

with a portion of Crim.R. 11(C), as this also “eliminates the defendant’s burden to show

prejudice.”

, citing State v. Sarkozy,

,

,

. “ ‘[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.’ ” State v. Harris, 2d Dist. Clark No. 2020-CA-29,

, quoting State v. Rogers,

,

(12th Dist.). “ ‘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).’ ”

quoting

.

{¶ 12} “Aside from these two exceptions, the traditional rule continues to apply: a

defendant is not entitled to have his plea vacated unless he demonstrates he was

prejudiced by a failure of the trial court to comply with the provisions of Crim.R. 11(C).”

, citing Nero,

,

. “The test for

prejudice is ‘whether the plea would have otherwise been made.’ ” Id. at ¶ 16, quoting

.

{¶ 13} Although not explicit, Massie’s argument suggests that the trial court failed

to comply with the maximum penalty advisement required under Crim.R. 11(C)(2)(a). -7-

Specifically, Massie argues that the trial court failed to explain the indefinite nature of the

maximum possible prison sentence he faced given that the trial court did not explain the

sentence’s 8-to-12 year variance.

{¶ 14} The record of the plea hearing establishes that the trial court correctly

informed Massie that the maximum possible penalty he faced for second-degree-felony

robbery was an indefinite term of 8 to 12 years in prison and a $15,000 fine. R.C.

2929.14(A)(2)(a); R.C. 2929.144(B); R.C. 2929.18(A)(3)(b). Despite acknowledging that

the maximum penalty “may be a little bit confusing,” the trial court did not further explain

the maximum penalty or Ohio’s indefinite sentencing scheme to Massie. Plea Hearing

Trans. (June 11, 2020), p. 7. Massie nevertheless indicated that he understood the

maximum possible penalty at the plea hearing and signed a plea form acknowledging the

same.

{¶ 15} Given these facts, we do not find that the trial court completely failed to

comply with the maximum penalty advisement required under Crim.R. 11(C)(2)(a). This

is because, as the record indicates, the trial court advised Massie of the correct maximum

penalty he faced, albeit somewhat incompletely. Therefore, in order to have his guilty

plea vacated, Massie must establish that he was prejudiced by the trial court’s

advisement. Massie, however, has failed to argue prejudice in his appellate brief.

There is also nothing in the record indicating that Massie would not have entered his guilty

plea had the trial court explained the indefinite sentencing scheme and the 8-to-12 year

variance in Massie’s sentence. Accordingly, because Massie has not argued or

established prejudice, he is not entitled to have his guilty plea vacated. See State v.

Long, 4th Dist. Pickaway No. 20CA9,

. For this reason, Massie’s -8-

first argument lacks merit.

Massie’s Sentence

{¶ 16} Massie next argues that his 8-to-12-year indefinite prison sentence is

contrary to law because the trial court failed to provide the statutorily required notices set

forth in R.C. 2929.19(B)(2)(c) at the sentencing hearing. We agree.

{¶ 17} When reviewing felony sentences, appellate courts must apply the standard

of review set forth in R.C. 2953.08(G)(2). State v. Marcum,

, 2016-

Ohio-1002,

, ¶ 7. Under that statute, an appellate court may increase,

reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,

only if it clearly and convincingly finds either: (1) the record does not support the

sentencing court’s findings under certain statutes; or (2) the sentence is otherwise

contrary to law. (Emphasis added.) Id. at ¶ 9, citing R.C. 2953.08(G)(2).

{¶ 18} Several of our sister districts have held that a sentence is contrary to law if

a trial court sentences an offender to an indefinite prison term under the Reagan Tokes

Law and fails advise the offender of all the notifications set forth in R.C. 2929.19(B)(2)(c)

at the sentencing hearing. See, e.g., State v. Wolf, 5th Dist. Licking No. 2020 CA 00021,

; State v. Miles, 11th Dist. Portage No. 2020-P-0032, 2020-Ohio-

6921, ¶ 20, 27-31; State v. Long, 4th Dist. Pickaway No. 20CA9,

, ¶ 27-

29; State v. Whitehead, 8th Dist. Cuyahoga No. 109599,

;

State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048,

.

{¶ 19} R.C. 2929.19(B)(2)(c) provides that:

[I]f the sentencing court determines at the sentencing hearing that -9-

a prison term is necessary or required, the court shall do all of the following:

***

(c) If the prison term is a non-life felony indefinite prison term, notify

the offender of all of the following:

(i) That it is rebuttably presumed that the offender will be released

from service of the sentence on the expiration of the minimum prison term

imposed as part of the sentence or on the offender's presumptive earned

early release date, as defined in section 2967.271 of the Revised Code,

whichever is earlier;

(ii) That the department of rehabilitation and correction may rebut the

presumption described in division (B)(2)(c)(i) of this section if, at a hearing

held under section 2967.271 of the Revised Code, the department makes

specified determinations regarding the offender's conduct while confined,

the offender's rehabilitation, the offender's threat to society, the offender's

restrictive housing, if any, while confined, and the offender's security

classification;

(iii) That if, as described in division (B)(2)(c)(ii) of this section, the

department at the hearing makes the specified determinations and rebuts

the presumption, the department may maintain the offender’s incarceration

after the expiration of that minimum term or after that presumptive earned

early release date for the length of time the department determines to be

reasonable, subject to the limitation specified in section 2967.271 of the

Revised Code; -10-

(iv) That the department may make the specified determinations and

maintain the offender's incarceration under the provisions described in

divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to

the limitation specified in section 2967.271 of the Revised Code;

(v) That if the offender has not been released prior to the expiration

of the offender's maximum prison term imposed as part of the sentence, the

offender must be released upon the expiration of that term.

(Emphasis added.) R.C. 2929.19(B)(2)(c)(i)-(v).

{¶ 20} The State argues that the foregoing statutory language does not specifically

require the trial court to give the notifications listed in the statute at the sentencing hearing

because it merely requires the sentencing court to “notify the offender.” According to the

State, the trial court sufficiently notified Massie of all the information in R.C.

2929.19(B)(2)(c) by simply including the information in the judgment entry of conviction.

We disagree.

{¶ 21} “It is a general axiom of statutory construction that once words have

acquired a settled meaning, that same meaning will be applied to a subsequent statute

on a similar or analogous subject.” Brennaman v. R.M.I. Co.,

,

(1994), citing R.C. 1.42 and Goehring v. Dillard,

,

(1945). Therefore, “to determine the legislative intent behind a statute,

courts must read the language in context and must construe related sections together,

since courts normally presume that words carry the same meaning when they appear in

different but related sections of an act.” 85 Ohio Jurisprudence 3d, Meaning of Words

Known from Context, Section 223 (2021), citing Spencer v. Freight Handlers, Inc., 131 -11-

Ohio St. 3d 316,

,

and Kirtsaeng v. John Wiley & Sons,

Inc.,

,

,

(2013).

{¶ 22} In this case, when reading the language in R.C. 2929.19(B)(2) as a whole,

it becomes clear that the notification requirement at issue in section (B)(2)(c) relates to

notice that must be given at the sentencing hearing. We reach this conclusion by looking

at the language in the preceding sections of the statute, i.e., (B)(2)(a) and (B)(2)(b).

Section (B)(2)(a) provides that the sentencing court shall “notify the offender that the

prison term is a mandatory prison term,” without specifically stating that the notification

should be given at the sentencing hearing. Section (B)(2)(b), however, instructs the

sentencing court to “include in the sentencing entry * * * whether the sentence or

sentences contain mandatory prison terms[.]” When considering the language in

sections (B)(2)(a) and (B)(2)(b) together, it becomes clear that the phrase “notify the

offender” in (B)(2)(a) necessarily refers to notice that should be given at the sentencing

hearing, since section (B)(2)(b) instructs the trial court to include the same information in

the sentencing entry.

{¶ 23} Like section (B)(2)(a), section (B)(2)(c) simply instructs the sentencing court

to “notify the offender” of the specific information listed thereunder without specifically

mentioning the sentencing hearing. Because the phrase “notify the offender” as used in

(B)(2)(a) refers to notification given at the sentencing hearing, we find that the same

meaning should apply to the phrase “notify the offender” in section (B)(2)(c). Therefore,

we agree with our sister districts and find that the trial court was required to notify the

offender of all the information set forth in R.C. 2929.19(B)(2)(c) at the sentencing hearing

in order to fulfill the requirements of the statute. Accordingly, because the trial court in -12-

this case failed to notify Massie of any of the information set forth in R.C. 2929.19(B)(2)(c)

at the sentencing hearing, we sustain Massie’s second argument and find that Massie’s

sentence is contrary to law.

{¶ 24} For the foregoing reasons, Massie’s sole assignment of error is sustained

as it relates to Massie’s sentence and overruled as it relates to Massie’s guilty plea.

Conclusion

{¶ 25} The judgment of the trial court is reversed as it pertains to Massie’s

sentence; in all other respects, the judgment is affirmed. The matter shall be remanded

to the trial court for the sole purpose of resentencing Massie in accordance with R.C.

2929.19(B)(2)(c).

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DONOVAN, J. and HALL, J., concur.

Copies sent to:

Ian A. Richardson Samantha L. Berkhofer Hon. Douglas M. Rastatter