[Cite as State v. Medina, 

.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 109693
                 v.                                :

JONATHAN MEDINA,                                   :

                 Defendant-Appellant.              :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 20, 2021


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-19-646338-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kelly N. Mason, Assistant Prosecuting
                 Attorney, for appellee.

                 Rick L. Ferrara, for appellant.


EMANUELLA D. GROVES, J.:

                 Defendant-appellant Jonathan Medina (“Medina”) appeals his

 convictions after entering guilty pleas that he now contends were in violation of

 Crim.R. 11. For the reasons set forth below, we affirm.
                         Procedural and Factual History

              In December 2019, a grand jury indicted Medina1 on four counts of

gross sexual imposition with a sexually violent predator specification attached and

four counts of endangering children. The indictments alleged that Medina sexually

abused his ten-year-old stepson. In February 2020, pursuant to a plea agreement,

Medina pled guilty to all four counts of gross sexual imposition, without the

sexually violent predator specification attached, and a single count of endangering

children. In accordance with the plea agreement, Medina stipulated that none of

the counts were allied offenses.

              In March 2020, the trial court imposed concurrent prison sentences of

three years on the four counts of gross sexual imposition. In addition, the trial court

imposed a prison sentence of seven and a half to ten and a half years for the count

of endangering children.        The trial court ordered Medina to serve the prison

sentence for endangering children consecutively to the concurrent sentences for

gross sexual imposition.       Further, the trial court classified Medina as a Tier II

sexual offender.

              Medina now appeals, assigning the following two errors for review:

                           Assignment of Error No. 1
       The trial court erred in accepting appellant’s guilty plea without first
       finding that it complied with Crim.R. 11 to establish that the plea was
       knowing, intelligent and voluntary.



   1  Medina’s wife, Ashley Havarcik, was also indicted, subsequently pled guilty to
amended charges, and was sentenced to two years of community control. Havarcik is not
part of this appeal and will only be discussed tangentially in the first assignment of error.
                        Assignment of Error No. 2
     The sentencing under Ohio law violated the Separation of Powers
     Doctrine of the Constitution of the state of Ohio and the United States,
     Due Process of Law, are void for vagueness and conflict internally with
     other Ohio law.

                               Law and Analysis

            In the first assignment of error, Medina argues the trial court failed to

comply with Crim.R. 11 when it accepted his pleas.

            Due process requires that a defendant’s plea be made knowingly,

intelligently, and voluntarily; otherwise, the defendant’s plea is invalid. State v.

Bishop, 

, 

, 

, citing State v.

Clark, 

, 

, 

; see also State

v. Engle, 

, 1996-Ohio 179, 

.          (“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.”).

            The purpose of Crim.R. 11(C) is to provide the defendant with relevant

information so that he can make a voluntary and intelligent decision whether to

plead guilty. State v. Ballard, 

, 

 (1981).

Before accepting a guilty plea in a felony case, a court must comply with Crim.R.

11(C) and “conduct an oral dialogue with the defendant to determine that the plea

is voluntary, and the defendant understands the nature of the charges and the
maximum penalty involved, and to personally inform the defendant of the

constitutional guarantees he is waiving by entering a guilty plea.” State v. Martin,

8th Dist. Cuyahoga Nos. 92600 and 92601, 

, ¶ 5.

            Recently, in an effort to simplify an appellate courts’ analysis of Crim.R.

11(C) issues, the Ohio Supreme Court, in State v. Dangler, 

, 2020-

Ohio-2765, 

, reiterated that “[w]hen a criminal defendant seeks to

have his conviction reversed on appeal, the traditional rule is that he must establish

that an error occurred in the trial-court proceedings and that he was prejudiced by

that error.” Id. at ¶ 13, citing State v. Perry, 

, 

,

; Stewart at 93; Crim.R. 52.

            The Dangler court continued that it made a limited exception to the

prejudice component of that rule in the criminal-plea context. Specifically, 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. 

, citing

Clark, 

, 

, 

; Veney at

syllabus.

             Further, the Dangler court created one additional exception to the

prejudice requirement namely: a trial court’s complete failure to comply with a

portion of Crim.R. 11(C) eliminates the defendant’s burden to show prejudice. Id.

at ¶ 15, citing State v. Sarkozy, 

, 

, 

.
              Finally, the Dangler court underscored that aside from these two

exceptions, the traditional rule continues to apply, that is, 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,

citing Nero, 56 Ohio St.3d at 108, 

. The test for prejudice is

“whether the plea would have otherwise been made.” 

              Moreover, to aid our analysis, the Dangler court also provided a three-

question test namely: “(1) has the trial court complied with the relevant provision

of [Crim.R. 11]? (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?” Id. at ¶ 17.

              We now apply the Dangler court’s three-question test to the facts in

the instant matter.

              Within this assignment of error, Medina argues the trial court failed

to ask him whether he understood that he was waiving his right to subpoena

witnesses or to elicit a response that signaled an acknowledgement that he was

waiving that right.

              In this matter, the trial court held a joint plea hearing and alternatively

addressed each defendant, prior to accepting their pleas. The following exchange

took place:
THE COURT: [E]ven though your lawyers have already explained your
rights to you, I must be satisfied you understand your rights. Do you
understand that you’re presumed innocent in this case and that by
entering a plea of guilty to the amended indictment that you admit to
the truth of those facts and your full guilt?

DEFENDANT MEDINA: Yes, Your Honor.

THE COURT: Do you understand that you have a right to a trial, your
choice of either a jury trial or to the Court, at which time the State must
prove your guilt and that you’re giving up that right?

DEFENDANT MEDINA: Yes, Your Honor.

THE COURT: Do you understand that you have the right to confront
and cross-examine witnesses the State must bring forth at such a trial
and that you’re giving up that right?

DEFENDANT MEDINA: Yes, Your Honor.

THE COURT: Do you understand you have the right to subpoena
witnesses to testify in your favor at a trial of your case and that you’re
giving up that right?

DEFENDANT HAVARCIK: Yes.

THE COURT: You don’t understand that?

DEFENDANT HAVARCIK: I didn’t hear you.

THE COURT: Pardon me?

DEFENDANT HAVARCIK: No.

THE COURT: All right. You have the right to, you know, have
witnesses come forward that are -- can testify in your favor. If they
don’t want to, you know, the Court can issue a process to compel them
to come forward and testify on your behalf. That’s what that means. I
can subpoena people. If they don’t comply with the subpoena, I can
have sheriffs go out, pick them up, arrest them, bring them back here,
force them to testify; understand?

DEFENDANT HAVARCIK: Yes.

THE COURT: You have that right; do you understand?
      DEFENDANT HAVARCIK: Yes, I understand.

      THE COURT: Pardon me?

      DEFENDANT HAVARCIK: Yes, Your Honor.

      THE COURT: All right. Do you understand you have the right to have
      the State prove you guilty beyond a reasonable doubt at a trial of your
      case and that you’re giving up that right?

      DEFENDANT MEDINA: Yes, Your Honor.

      THE COURT: Do you understand you have the right to -- not to testify
      at the time of the trial of your case which no one may use against you
      and that you’re giving up that right?

      DEFENDANT MEDINA: Yes, Your Honor.

Tr. 9-12.

             A review of the above colloquy and the sentencing transcript reveals

that the trial court gave the proper advisements, regarding the constitutional rights

enumerated in Crim.R. 11(C)(2)(c), that ensured that Medina understood he was

waiving those rights by pleading guilty. Thus, we can answer the first question in

the affirmative.

             Although the transcript does not contain an affirmative response from

Medina on the issue of his right to subpoena witnesses to testify on his behalf, the

above excerpt clearly indicates that the trial court tracked the language of Crim.R.

11(C), using words in a reasonably intelligible manner. Except for this sole instance,

Medina repeatedly indicated that he understood the rights he was waiving.

             Importantly, when the trial court offered further explanation of the

right to subpoena witnesses, for Havarcik’s benefit, there was no indication that
Medina did not understand. Arguably, Medina could also have benefitted from the

trial court’s additional explanation on this issue.

               In addition, the record reveals that defense counsel had reviewed the

plea offer with Medina, along with his constitutional rights. The record also reveals

that both the prosecutor and defense counsel stated that they were satisfied with

the trial court’s compliance with Crim.R. 11. The record demonstrates that Medina

was informed of and understood the nature of the charges, the maximum penalty

involved, the effect of his guilty pleas, and the constitutional rights he would waive

by pleading guilty.

                As such, the trial court met its duty in carrying out the specific

mandate of Crim.R. 11(C)(2)(c). Because the trial court complied with the relevant

provision of the rule, we need not engage in any further analysis under the Dangler

three-question test. Id. at ¶ 17.

               Following our review of the record, we find that the trial court

complied with Crim.R. 11(C)(2), and that Medina entered his guilty pleas

knowingly, intelligently, and voluntarily.

                Accordingly, we overrule the first assignment of error.

                In his second assignment of error, Medina argues the indefinite

sentencing scheme established by the Regan Tokes Law2 is unconstitutional




     2On March 22, 2019, the Ohio legislature enacted the Reagan Tokes Law that
changed the terms of felony sentencing for qualifying felonies of the first or second
degree. See R.C. 2929.14.
because it violates, among other things, constitutional guarantees of separation of

powers and due process.

              However, Medina failed to preserve any objection because he did not

raise the issue of the constitutionality of the Reagan Tokes Law at his sentencing

hearing. “It is well established that ‘the question of the constitutionality of a statute

must generally be raised at the first opportunity and, in a criminal prosecution, this

means in the trial court.’” State v. Jenkins, 8th Dist. Cuyahoga No. 109323, 2021-

Ohio-123, ¶ 21, citing State v. Alexander, 12th Dist. Butler No. CA2019-12-204,

, quoting State v. Buttery, Slip Opinion No. 

.

              This court has recently declined to address constitutional challenges

to the Reagan Tokes Law when defendants did not object to their sentences or

otherwise raise the constitutionality of the act at their sentencing hearing. See State

v. White, 8th Dist. Cuyahoga No. 109652, 

; State v. Dames, 8th

Dist. Cuyahoga No. 109090, 

; State v. Hollis, 8th Dist.

Cuyahoga No. 109092, 

, ¶ 47-54; and State v. Stone, 8th Dist.

Cuyahoga No. 109322, 

, ¶ 6-10. Therefore, we decline to address

Medina’s constitutional arguments raised for the first time on appeal.

              In taking this path, we have acknowledged that we have discretion to

review arguments that were not raised in the trial court for plain error. Recently,

in Dames, we noted:
      Even if the appellant failed to object to the constitutionality of the
      statute at the trial-court level, appellate courts may still review a trial
      court decision for plain error. State v. Quarterman, 

, 

, 

. However, in order to
      review for plain error “we require a showing that there was an error,
      that the error was plain or obvious, that but for the error the outcome
      of the proceeding would have been otherwise, and that reversal must
      be necessary to correct a manifest miscarriage of justice.” Dames did
      not make any plain error showing for this court to review.

Id. at ¶ 14; see also Hollis at ¶ 50 (“Furthermore, like Dames, appellant failed to raise

a plain error argument in this appeal, and we decline to construct a plain error

argument on appellant’s behalf.”); Stone at ¶ 10 (“In addition to failing to raise a

constitutional challenge of the Reagan Tokes Law in the trial court, Stone also has

not argued plain error in this appeal. Consequently, we decline to address this issue

for the first time on appeal.”). Id.

              Accordingly, we overrule the second assignment of error.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

 common pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


_________________________
EMANUELLA D. GROVES, JUDGE

MARY J. BOYLE, A.J., and
SEAN C. GALLAGHER, J., CONCUR