[Cite as State v. Bush, 2026-Ohio-3652.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: C.A. No. 2025-CA-78
Appellee :
: Trial Court Case No. 22-CR-0812(A)
v. :
: (Criminal Appeal from Common Pleas
ARIEL BUSH : Court)
:
Appellant : FINAL JUDGMENT ENTRY &
: OPINION
Pursuant to the opinion of this court rendered on September 18, 2026, the judgment
of the trial court is reversed and remanded for further proceedings consistent with the
opinion.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
send a copy of the court’s ruling to each party and note that action on the docket.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
RONALD C. LEWIS, PRESIDING JUDGE
TUCKER, J., and HANSEMAN, J., concur.
OPINION
CLARK C.A. No. 2025-CA-78
JACOB S. SEIDL, Attorney for Appellant
JOHN M. LINTZ, Attorney for Appellee
LEWIS, P.J.
{¶ 1} Defendant-appellant Ariel Bush appeals from his convictions in the Clark
County Common Pleas Court, challenging his guilty pleas to engaging in a pattern of corrupt
activity, trafficking in a fentanyl-related compound, and having weapons while under
disability. For the following reasons, we reverse the judgment of the trial court and remand
the cause for further proceedings consistent with this opinion.
I. Course of Proceedings
{¶ 2} On November 1, 2022, in Clark C.P. No. 22-CR-0812, a Clark County grand
jury returned a 21-count indictment against Bush, Richard Blankenship, and Todd Frye.
The first ten counts of the indictment applied to Bush and alleged that he engaged in drug
trafficking from October 2020 to November 8, 2021. The following three counts of the
indictment are relevant to this appeal: Count 1 engaging in a pattern of corrupt activity, a
first-degree felony in violation of R.C. 2923.32(A)(1); Count 4 trafficking in a fentanyl-related
compound in an amount greater than or equal to 100 grams, a first-degree felony in violation
of R.C. 2925.03(A)(2); and Count 9 having weapons while under disability, a third-degree
felony in violation of R.C. 2923.13(A)(3). Count 4 contained a major drug offender
specification. The indictment also contained forfeiture specifications. Bush pleaded not
guilty to the charges.
{¶ 3} A jury trial was scheduled for January 30, 2023. A few days before the trial,
the State filed a motion to consolidate Case No. 22-CR-0812 and Clark C.P. No. 23-CR2
0033 for the purposes of trial. According to the State, Case No. 23-CR-0033 was “merely
to correct the specifications in Counts 4 (Bush) 13 (Blankenship) and 20 (Frye) to state the
substance was a fentanyl-related compound.” The State further explained that Case No.
23-CR-0033 is a reindictment of Count 4 of the indictment in Case No. 22-CR-0812.
Apparently, the trial court granted the motion to consolidate. Notably, however, the record
before us does not contain a copy of the indictment in Case No. 23-CR-0033.
{¶ 4} Bush did not appear for the January 2023 trial, and a capias was issued for his
arrest. Bush was finally arrested in December 2024. The trial was rescheduled for March
11, 2025. But Bush requested a continuance of the trial, which the trial court ultimately
granted.
{¶ 5} On April 10, 2025, the State moved to consolidate Case No. 22-CR-0812 with
Clark C.P. No. 25-CR-0287. According to the State, the conduct alleged in the indictment
filed in Case No. 25-CR-0287 stemmed from the same nucleus of operative facts. The trial
court granted the motion to consolidate. The indictment from Case No. 25-CR-0287 is not
in the record before us.
{¶ 6} The trial was rescheduled for April 29, 2025. Following a motion to continue
the trial filed by Bush, the trial court rescheduled the trial for May 5, 2025. Bush filed
another motion to continue the trial, but it was denied.
{¶ 7} On May 5, 2025, the day the trial was scheduled to begin, the State explained
to the trial court that a plea offer had been made to Bush. According to the prosecutor,
Bush would plead “guilty to count 1, that being engaging as a felony of the first degree for
an agreed term of 11 to 16 and a half years, Count 4 trafficking as a felony in the first degree
for a fentanyl-related compound. That is mandatory time for a term of 8 to 12 years, and
also count 9, having weapons while under disability as a felony of the third degree for a term
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of 1 year.” Plea Tr. 3-4. Bush’s counsel stated that the terms of the State’s offer were that
“8 years would be mandatory, 12 years would be non-mandatory.” Id. at 6. After the trial
court and counsel for the parties discussed more details of the criminal charges pending
against Bush, the court took a short recess while defense counsel consulted with Bush about
the offer from the State.
{¶ 8} After the short recess, the trial court was presented with a signed, written plea
form. Pursuant to the plea agreement, Bush agreed to plead guilty to Counts 1, 4, and 9 of
the indictment in return for the State recommending the dismissal of the remaining counts
of the three indictments and the parties jointly recommending the following prison sentences:
11 to 16½ years for Count 1 (engaging in pattern of corrupt activity), 8 to 12 years for Count 4
(trafficking in a fentanyl-related compound), and 1 year for Count 9 (weapons under
disability). The sentences would be served consecutively, for “a total agreed term of 20
years or a PSI.” Bush also agreed to forfeit several items listed in the forfeiture
specification. The written plea form noted that the maximum penalty on Count 4 was 11 to
16½ years but did not state that the maximum penalty was mandatory.
{¶ 9} The trial court asked the State to put into the record the terms of the plea
agreement and a factual statement about the charges against Bush. The prosecutor stated,
in pertinent part:
Thank you, Your Honor. The terms of the plea agreement are that the
Defendant will plead guilty to the following counts in the Case Number
22CR0812A, count 1, engaging in a pattern of corrupt activity as a felony of
the first degree for an agreed term of 11 to 16 and a half years. Count 4,
trafficking in a fentanyl related compound, a felony in the first degree. This is
mandatory time in the amount of 8 to 12 years.
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Count 9, weapons under disability as a felony in the third degree for a
total of 1 year. Each of the mentioned counts 1, 4, and 9 are to be served
consecutively for a total agreed term of 20 years incarceration. The
remaining counts and specifications related to Mr. Bush on all three case
numbers would then be dismissed.
Plea Tr. 12-13. Defense counsel agreed that this was a fair statement of the plea
agreement. The trial court then asked Bush whether he understood that the agreement
included a jointly recommended sentence of 20 years in prison. Bush responded,
“8 mandatory, 12 non-mandatory, right? 8 mandatory, 12 non-mandatory?” Id. at 15.
The trial court stated, “Yeah. I believe that’s correct, yeah.” Id. The court then began its
plea colloquy with Bush. As part of its plea colloquy, the trial court gave the following
explanation of the maximum sentences Bush faced on each count to which he was pleading
guilty:
THE COURT: The engaging in a pattern of corrupt activity, that is a
felony of the first degree. The maximum penalty for that offense is an
indefinite sentence of 11 to 16 and a half years in prison and a $20,000 fine.
The trafficking in a fentanyl related compound is a first degree felony. The
maximum penalty is an indefinite prison term of 11 to 16 and a half years in
prison, a $20,000 fine, and up to a 5 year driver’s license suspension. There’s
also a mandatory minimum fine and prison is mandatory for that offense.
Id. at 16. The trial court did not inform Bush that it was required to impose the maximum
prison sentence on Count 4. The court then explained to Bush the concept of indefinite
sentencing and stated that the plea agreement contemplated “an indefinite sentence of 20
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to 25 and a half years in prison with the presumption that you would be released after serving
20 years.” Id. at 18.
{¶ 10} The trial court finished its plea colloquy and Bush pleaded guilty to counts 1,
4, and 9 of the indictment. The trial court found him guilty of these three counts and stated
that it would dismiss all the remaining counts and specifications according to the terms of
the plea agreement, which “includes the counts in, remaining counts in 22CR812A and
23CR33A. And then I’ll also dismiss the new indictment, 25CR287 all pursuant to the terms
of the plea agreement.” Id. at 20. The court then proceeded directly to sentencing.
{¶ 11} At the sentencing hearing, the trial court stated that it would impose the
sentences agreed to in the plea agreement. The court explained, in pertinent part:
THE COURT: I will follow the joint recommendation in count 1,
engaging in a pattern of corrupt activity, a felony of the first degree. The Court
will order the Defendant be sentenced to an indefinite prison term of 11 to 16
and a half years in prison. On count 4, trafficking in a fentanyl related
compound, a felony of the first degree, the Court will impose a sentence of 8
to 12 years in prison.
On count 9, having weapons under disability, the Court will impose a
sentence of 1 year in prison. All of these sentences will run consecutively.
So the total sentence will be 20 to 25 and a half years in prison.
Id. at 21.
{¶ 12} In its sentencing entry, the trial court ordered Bush to serve the following prison
terms: (1) an indefinite prison term of 11 to 16½ years for engaging in a pattern of corrupt
activity in violation of R.C. 2923.32(A)(1) as set forth in count 1 of the indictment; (2) an
indefinite prison term of 8 to 12 years for trafficking in fentanyl in violation of
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R.C. 2925.03(A)(2) “as set forth in count four of the indictment;” and (3) a definite prison
term of 1 year for having weapons while under disability in violation of R.C. 2923.13(A)(3)
as set forth in count 9 of the indictment. The trial court ran the sentences consecutive to
each other and stated that it “hereby adopts the joint recommendation, finding the aggregate
prison term of twenty (20) to twenty-five and one-half (25½) year prison term to be an
appropriate, fair, and just disposition given the facts and circumstances of the case and law.”
{¶ 13} Bush filed an appeal from the trial court’s judgment.
II. The Guilty Pleas Must Be Vacated Because They Were Not Made Knowingly
and Voluntarily
{¶ 14} Bush’s first assignment of error states:
THE SENTENCE IMPOSED ON COUNT 4 IS CONTRARY TO LAW AND
NOT AUTHORIZED BY LAW BECAUSE THE INDICTMENT CHARGED
TRAFFICKING IN 100 GRAMS OF A FENTANYL-RELATED COMPOUND
WITH A MAJOR-DRUG-OFFENDER SPECIFICATION, THE JUDGMENT
ENTRY SENTENCED APPELLANT “AS SET FORTH IN COUNT FOUR OF
THE INDICTMENT,” AND THE MANDATORY INDEFINITE TERM UNDER
R.C. 2925.03(C)(9)(h) IS 11 TO 16.5 YEARS—NOT THE 8 TO 12 YEARS
THE COURT IMPOSED.
{¶ 15} Bush contends that the sentence imposed on him was contrary to law because
the trial court was required to impose a mandatory maximum sentence of 11 to 16½ years
on Count 4 of the indictment rather than the 8 to 12 years imposed by the trial court.
Further, Bush argues that the sentence on Count 4 of the indictment was the centerpiece of
the plea agreement and the fact that the contemplated 8-to-12-year term was not authorized
7
by law rendered the plea bargain illusory. Therefore, Bush asks us to vacate the trial court’s
judgment and his guilty pleas and remand the cause for further proceedings.
{¶ 16} The State does not concede that the sentence imposed on Count 4 is contrary
to law. Instead, the State contends that the trial court was not required to impose a
maximum sentence on Count 4 because Bush pleaded guilty to a violation of R.C.
2925.03(A)(2), the major drug offender specification in Count 4 was dismissed, and Bush
did not specifically plead guilty to having an amount greater than or equal to 100 grams of
fentanyl-related compound. However, the State proposes that if we were to conclude that
the trial court was required to impose a maximum sentence on Count 4, we should simply
remand the cause for resentencing and allow the trial court and the parties to change the
sentences for counts 1 and 4 in a way that would reflect the total 20-to-25½-year sentence
to which Bush had agreed.
{¶ 17} In 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, ¶ 22. Under
this statute, an appellate court may increase, reduce, or otherwise modify a sentence, or it
may vacate the sentence and remand for resentencing, only if it “clearly and convincingly”
finds either: (1) that the record does not support certain specified findings or (2) that the
sentence imposed is otherwise contrary to law. R.C. 2953.08(G)(2).
{¶ 18} The sentence imposed by the trial court was jointly recommended by the
parties. “A sentence imposed upon a defendant is not subject to review under
[R.C. 2053.08] if the sentence is authorized by law, has been recommended jointly by the
defendant and the prosecution in the case, and is imposed by a sentencing judge.”
R.C. 2953.08(D)(1). “[A] sentence is ‘authorized by law’ and is not appealable within the
meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions.”
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State v. Underwood, 2010-Ohio-1, ¶ 20. “A trial court does not have the discretion to
exercise its jurisdiction in a manner that ignores mandatory statutory provisions.” Id., citing
State v. Simpkins, 2008-Ohio-1197, ¶ 27 (“Every judge has a duty to impose lawful
sentences”); accord State v. Adams, 2017-Ohio-8245, ¶ 11 (2d Dist.) (“There is simply no
case law that allows a trial court to enter a sentence that is contrary to law.”).
{¶ 19} This appeal hinges on the plain language in Count 4 of the indictment, which
provides:
TRAFFICKING IN A FENTANYL RELATED COMPOUND (F1)
That as a continuous course of conduct from on or about October 20, 2020 to
on or about November 8, 2021, at Clark County, Ohio, ARIEL JOSIA BUSH . . .
did knowingly prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute fentanyl or a compound, mixture, preparation, or
substance containing fentanyl, in an amount greater than or equal to onehundred grams, knowing or having reasonable cause to believe that the
controlled substance is intended for sale or resale by the offender or another
person, in violation of Section 2925.03(A)(2) of the Ohio Revised Code, and
against the peace and dignity of the State of Ohio.
(Emphasis in original.)
{¶ 20} Count 4 identified R.C. 2925.03(A)(2) as the statute Bush had violated.
R.C. 2925.03(A)(2) prohibits any person from knowingly doing the following: “Prepare for
shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled
substance . . . when the offender knows or has reasonable cause to believe that the
controlled substance . . . is intended for sale or resale by the offender or another person.”
Further, R.C. 2925.03(C) identifies the potential penalties for a violation of
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R.C. 2925.03(A)(2). Notably, 2925.03(C)(9)(h) provides:
(9) If the drug involved in the violation is a fentanyl-related compound
or a compound, mixture, preparation, or substance containing a fentanylrelated compound and division (C)(10)(a) of this section does not apply to the
drug involved, whoever violates division (A) of this section is guilty of trafficking
in a fentanyl-related compound. The penalty for the offense shall be
determined as follows:
(h) If the amount of the drug involved . . . equals or exceeds one
hundred grams . . . , trafficking in a fentanyl-related compound is a felony of
the first degree, the offender is a major drug offender, and the court shall
impose as a mandatory prison term the maximum prison term prescribed for a
felony of the first degree.
(Emphasis added.)
{¶ 21} R.C. 2929.14 covers the range of prison sentences for felonies. For a felony
of the first degree committed on or after March 22, 2019, a trial court generally has the
discretion to impose a prison term with a stated minimum term selected by the court of “three,
four, five, six, seven, eight, nine, ten, or eleven years” and a maximum term that is
determined pursuant to R.C. 2929.144.
{¶ 22} Count 4 of the indictment plainly states that Bush violated R.C. 2925.03(A)(2)
by trafficking in a fentanyl-related compound in an amount greater than or equal to 100
grams, which triggers the mandatory maximum sentencing provision of
R.C. 2925.03(C)(9)(h). The trial court stated that it was sentencing Bush for a criminal
violation “as set forth in count four of the indictment.” Therefore, the trial court was required
to sentence Bush to a mandatory indefinite prison sentence of 11 to 16½ years on Count 4.
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Instead, the trial court sentenced Bush to an indefinite prison term of 8 to 12 years on
Count 4. The trial court’s failure to impose a mandatory maximum sentence on Count 4
resulted in a sentence that is clearly and convincingly contrary to law.
{¶ 23} We also conclude that Bush’s guilty pleas were not entered knowingly and
voluntarily. “Due process requires that a defendant’s plea be made knowingly, intelligently,
and voluntarily; otherwise, the defendant’s plea is invalid.” State v. Bishop, 2018-Ohio5132, ¶ 10, citing State v. Clark, 2008-Ohio-3748, ¶ 25. The written plea form signed by
Bush and the oral explanation of the plea agreement at the plea hearing reflect the fact that
Bush was induced into pleading guilty, in part, by the State’s promise to recommend to the
trial court that Bush receive a prison sentence of 8 to 12 years on Count 4 despite the fact
that such a sentence would be a statutorily proscribed act. As the Ohio Supreme Court has
explained, a guilty plea “can be viewed neither as voluntary where induced by a promise,
the very essence of which is nonperformable, nor as knowing where the fact of illegality was
insufficiently delineated and, therefore, is void.” State v. Bowen, 52 Ohio St.2d 27, 29-30
(1977), citing Machibroda v. United States, 368 U.S. 487, 493 (1962).
{¶ 24} Although the trial court informed Bush at his plea hearing that the maximum
sentence on Count 4 was 11 years, Bush was not informed prior to his plea that the court
was required to impose a maximum sentence on Count 4. Rather, the parties were clearly
under the impression that Bush could, and likely would, receive a prison sentence of 8 to
12 years on Count 4. Moreover, the trial court made it plain that it was adopting the
sentence stated in the parties’ plea agreement. Because the trial court was required to
impose a prison sentence of 11 to 16½ years on Count 4 of the indictment, Bush’s guilty
pleas that were entered on the understanding that he could, and likely would, receive a
prison sentence of 8 to 12 years on Count 4 were not entered knowingly and voluntarily.
11
Consequently, we must reverse the trial court’s judgment. Bowen at 29-30; accord State v.
Barajas-Larios, 2008-Ohio-5460, ¶ 18-19 (2d Dist.) (holding that the voluntary and knowing
character of defendant’s guilty plea was negated where the trial court agreed to impose a
sentence that would not exceed seven years when the law plainly required a mandatory tenyear prison term); State v. Figueroa-Benitez, 2025-Ohio-1146, ¶ 10-12 (10th Dist.) (holding
that the trial court should vacate the judgment entry and plea agreement where the trial court
had imposed a jointly recommended sentence that did not conform to the mandatory
sentence required by law); Adams, 2017-Ohio-8245, at ¶ 11 (2d Dist.) (stating that the trial
court “had no choice but to vacate the guilty plea and start over” where nine years in prison
was the minimum sentence the trial court could legally impose and the trial court had
previously prompted defendant’s guilty plea by its representation that it would sentence
defendant to seven years in prison); State v. Tartleton, 2014-Ohio-5820, ¶ 24 (7th Dist.)
(holding that the State could not offer, and the defendant could not knowingly and
intelligently accept, a plea agreement based on a proposed hybrid sentence that was a legal
impossibility).
{¶ 25} The first assignment of error is sustained.
III. Bush’s Remaining Assignments of Error Are Overruled as Moot
{¶ 26} Bush’s second and third assignments of error state:
APPELLANT’S GUILTY PLEA WAS NOT KNOWING, INTELLIGENT,
AND VOLUNTARY BECAUSE THE CIRCUMSTANCES SURROUNDING
THE PLEA DEPRIVED HIM OF A MEANINGFUL CHOICE.
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
IN CONNECTION WITH HIS GUILTY PLEA.
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{¶ 27} In these two assignments of error, Bush contends that his guilty pleas should
be vacated because he made them under “immediate pressure” and his trial counsel
rendered ineffective assistance. Based on our resolution of Bush’s first assignment of error,
his remaining assignments of error are moot. Therefore, Bush’s second and third
assignments of error are overruled. App.R. 12(A)(1)(c).
IV. Conclusion
{¶ 28} Having sustained Bush’s first assignment of error, we reverse the judgment of
the trial court and remand the cause for further proceedings consistent with this opinion.
TUCKER, J., and HANSEMAN, J., concur.
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