[Cite as State v. Rogers, 2020-Ohio-4102.]




                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




 STATE OF OHIO,                                    :     CASE NO. CA2019-11-194

         Appellee,                                 :           OPINION
                                                                8/17/2020
                                                   :
   - vs -
                                                   :

 JAMES PATRICK ROGERS aka                          :
 JAMES P. RODGERS,
                                                   :
         Appellant.



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CRI2019-08-1199


Michael T. Gmoser, Butler County Prosecuting Attorney, Michael T. Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for appellee

Michele Temmel, 6 South Second Street, Suite 305, Hamilton, OH, 45011, for appellant



        M. POWELL, J.

        {¶ 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
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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 fifth-

degree 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

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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.
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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.


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2925.03(D)(1) and 2929.18(B)(1). See State v. Johnson, 5th Dist. Ashland No. 16-COA-

010, 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.

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       {¶ 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

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                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.
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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

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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-Ohio-

1799, ¶ 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

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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

         {¶ 30} 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.


         HENDRICKSON, P.J., concurs.

         PIPER, J., dissents.



3. This court recently rejected the same arguments and specifically found that R.C. 2967.271 is constitutional
in State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837.
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       PIPER, J., dissenting.

       {¶ 31} A trial court's lack of explaining the existence of a fine (Rogers already knew

about) when addressing the maximum penalty does not represent a complete failure.

Rogers referenced the fine in a motion filed prior to his plea, and again acknowledged the

fine in his plea form. Additionally, Rogers has not demonstrated any prejudice. Therefore,

I must respectfully dissent from the opinion of my colleagues.

       {¶ 32} As I recently noted in a similar dissent in State v. Fabian, 12th Dist. Warren

No. CA2019-10-119, 2020-Ohio-3926 (Piper, J., dissenting), the Dangler court was clear

that a defendant is not entitled to have his or her plea vacated unless the defendant can

demonstrate prejudice by a failure of the trial court to comply with the provisions of Crim.R.

11(C). The test for prejudice is whether the plea would have otherwise been made.

Dangler. The only exceptions noted within Dangler include a trial court's complete failure

to comply with a portion of Crim.R. 11(C), or a trial court's failure to explain the constitutional

rights that a defendant waives by pleading guilty or no contest. Id. at ¶ 14-15.

       {¶ 33} The Dangler Court simplified appellate review of guilty pleas by elucidating

that prior caselaw quantifying the degree of error was problematic and unnecessary.

"Unfortunately, our caselaw has muddled [the] analysis by suggesting different tiers of

compliance with the rule." Id. at ¶ 17. The exceptions to the prejudice component in the

criminal-plea context are limited. Id. at ¶ 14, citing State v. Clark, 119 Ohio St.3d 239, 2008-

Ohio 3748, ¶ 31; State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, syllabus.

       {¶ 34} The Dangler Court addressed the purpose of Crim.R. 11, and that the court

had "been grappling with how best to review a trial court's colloquy to ensure that a

defendant's plea is knowing and voluntary." Id. at ¶ 12. The court specifically addressed

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that "in keeping with that objective, our focus in reviewing pleas has not been on whether

the trial judge has incanted the precise verbiage of the rule, but on whether the dialogue

between the court and the defendant demonstrates that the defendant understood the

consequences of his plea." Id.

       {¶ 35} Keeping the focus on whether the facts and circumstances of a particular plea

demonstrate that the plea was voluntarily made, the court posed three specific questions

that an appellate court should ask and answer when reviewing a plea. "The questions to

be answered are simply: (1) has the trial court complied with the relevant provision of the

rule? (2) if the 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.

       {¶ 36} The majority opinion suggests that any lack of a complete explanation by the

trial court during its plea colloquy --no matter how inconsequential or even if demonstratively

already known by the defendant -- results in a "complete failure." Such precedent muddles

the simplicity offered to reviewing courts by Dangler and would require a reversal of pleas

that would not have been reversed using pre-Dangler jurisprudence. See State v. Mohr, 3d

Dist. Van Wert No. 15-98-05, 1999 Ohio App. LEXIS 4299 (Sept. 1, 1999) (finding

substantial compliance with Crim.R. 11 requirements despite trial court's failure to fully

inform Mohr of fine during colloquy); State v. Mackey, 8th Dist. Cuyahoga No. 99390, 2013-

Ohio-4698 (finding substantial compliance with Crim.R. 11[C] requirements despite trial

court's failure to fully discuss imposition of a fine); and State v. Martin, 7th Dist. Mahoning

No. 11 MA 2, 2011-Ohio-6408, ¶ 18 (finding substantial compliance despite trial court's

error in discussing the fine where "the advisement as a whole constituted substantial

compliance").

       {¶ 37} Prior to Dangler, if the only error were the lack of referencing a fine, the

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colloquy could still have been considered in "substantial compliance" with Crim.R. 11(C).

Yet, the majority's interpretation of Dangler now compels such an error to be considered a

"complete failure" and requires automatic reversal without any prejudice to the defendant.

It is this result that requires my dissent.4

        {¶ 38} The instructions set forth in Dangler do not render a guilty plea involuntary

upon the slightest mistake or omission of the trial court. The Dangler Court made the

analysis straightforward. Dangler highlighted the need for an appellant to demonstrate that

he or she was prejudiced by an error of the trial court in accepting the plea. The test for

prejudice is whether the trial court's error was of a nature that absent the error, the

defendant would not have entered his or her plea. Dangler requires prejudice as a rule

unless one of the two exceptions apply.              xis

        {¶ 39} The exceptions to the requirement of prejudice are two limited, very narrow,

well-defined instances. Either exception, if applicable, would render a plea involuntary.

First, if a defendant was not informed of a specific constitutional right, then that right could

not have been voluntarily waived. Secondly, if a trial court completely fails to address an

aspect of Crim.R. 11(C), its colloquy can be deemed a complete failure, which is a

significant failure such that no prejudice need be alleged. However, not all omissions or

lacking explanations regarding nonconstitutional rights equate to a complete failure in

regard to Crim.R. 11(C)(2)(a) or (b).

        {¶ 40} In Dangler, the Ohio Supreme Court reversed a decision of the appellate court

that had determined the trial court completely failed to address the maximum penalty when



4. The majority in its first footnote, declines to address Rogers' argument that the trial court also did not tell
Rogers about additional fines, nor the penalty of a driver's license suspension, because those penalties were
never actually imposed. Presumably, this is not addressed in the foregoing opinion because Rogers was not
prejudiced by penalties not imposed even though a Crim.R. 11 colloquy requires the trial court to articulate
the maximum penalty. Pursuant to the majority's analysis, however, the complete absence of their inclusion
in the Crim.R. 11 colloquy would be a "complete failure" despite the lack of prejudice.
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it failed to fully address sexual offender classification requirements. Dangler pled no contest

to sexual battery and the trial court explained during its plea colloquy that Dangler would be

classified as a Tier III sex offender and would be required to register for the rest of his life.

The trial court, however, omitted discussion of additional requirements of the classification,

including "(1) the registration requirements that went with his classification (verifying his

address in-person every 90 days for the rest of his life with the sheriff of any county in which

he resides, works, or attends school), (2) the residency restrictions applicable to his

classification, and (3) the community-notification process by which members of the public

would be made aware of his status as a sex offender." Id. at ¶ 6.

       {¶ 41} On appeal, Dangler argued the omissions were significant. The appellate

court agreed and concluded that the registration and in-person verification requirements,

community-notification provisions, and residency restrictions were punitive sanctions, each

constituting a separate penalty. The appellate court determined that the trial court was

required to address each requirement in order to comply with Crim.R. 11(C)(2)(a)'s

maximum-penalty advisement.

       {¶ 42} The Dangler Court disagreed and reversed the appellate court's decision,

finding that the trial court's colloquy, even when omitting portions of the maximum sentence,

was not a complete failure. While the court recognized that the trial court could have done

more, it did not find that all omissions constituted a complete failure.

              The trial court could have gone further than it did and reviewed
              with Dangler the entirety of his obligations and burdens under
              the sex-offender-classification scheme. And we encourage trial
              courts to be thorough in reviewing consequences of a
              defendant's decision to enter a plea, including those stemming
              from classification as a sex offender: the duty to register and
              provide in-person verification, the community-notification
              provisions, and the residency restrictions.

              But the trial court did not completely fail to comply with Crim.R.
              11(C)(2)(a), and there is nothing in the record to support a

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               conclusion that Dangler would not have entered his plea had the
               trial court been more detailed in its explanation.

Id. at ¶ 25-26.

       {¶ 43} The same principles apply to the case sub judice. While the trial court did not

address the required fine during its colloquy, it did make a determination according to

Crim.R. 11(C)(2)(a) that Rogers' plea was voluntarily made after advising Rogers of the

penalty involved. In light of Dangler, I do not view a lack of reference to the fine as a

complete failure on the trial court's part. Just as the Dangler court did not view the trial

court's failure to explain the complete penalties relating to a sexual offender classification

as a complete failure, the trial court's explanation of the maximum penalty failing to

reference the fine was also not a complete failure. As was stated in Dangler, it is equally

true here: "consequently neither of this court's exceptions to the prejudice requirement

apply * * *." Id. at ¶ 23.

       {¶ 44} The trial court should have mentioned the monetary sanction, yet Rogers is

only entitled to have his conviction vacated if he can demonstrate prejudice; that he would

not have entered the plea but for the incomplete explanation. Upon a review of the record,

no such prejudice can be demonstrated. In exchange for Rogers' guilty plea, the state

dismissed three felony offenses, the misdemeanor offense, and the firearm specifications

and amended some charges, thus very significantly reducing Rogers' potential maximum

sentence.    The trial court explained Rogers' maximum prison sentence and Rogers

expressed no confusion or lack of understanding regarding the possible maximum

sentence. The entirety of the record demonstrates Rogers was aware of the mandatory

fine, as he addressed the fine himself in a motion filed with the court prior to his plea, and

the plea form also references the mandatory fine. Thus, there is no indication in the record

that Rogers would not have pled guilty had the trial court explained the $7,500 fine.


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                                                                       Butler CA2019-11-194

       {¶ 45} I would answer the Ohio Supreme Court’s three questions specifically given

us in Dangler at ¶ 17 as such: (1) the trial court did not fully comply with Crim.R. 11 because

it failed to advise Rogers of a mandatory fine that could be considered part of the maximum

sentence. (2) The trial court's failure is not of the type that excuses the burden of

demonstrating prejudice. (3) Rogers has not met his burden to show he was prejudiced by

the court's failure. Therefore, I would find that Rogers' plea was voluntarily given and would

overrule his assignment of error. Thus, I respectfully dissent from the majority's decision

on Rogers' first assignment of error.

       {¶ 46} I would find Rogers' second assignment of error, in which he challenges the

constitutionality of indeterminate sentencing, meritless. Rogers challenges the trial court's

presumption at sentencing that the statute was constitutional. However, a court rightfully

presumes the constitutionality of a statute unless the opponent can prove the statute's

unconstitutionality beyond a reasonable doubt. Wilson v. Kasich, 134 Ohio St.3d 221,

2012-Ohio-5367. Moreover, this court has already determined that the sentencing statute

is constitutional. State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837.

Thus, I would overrule Rogers' second assignment of error.

       {¶ 47} Based on my inability to join my colleagues in sustaining Rogers' first

assignment of error, I dissent in the disposition of this case.




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