[Cite as State v. Johnston, 2026-Ohio-3716.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
DOUGLAS R. JOHNSTON,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 26 BE 0009
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 25 CR 288
BEFORE:
Katelyn Dickey, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Jacob A. Manning, Assistant Prosecuting Attorney, for Plaintiff-Appellee and
Atty. Michael P. Dunham, for Defendant-Appellant.
Dated: September 11, 2026
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DICKEY, J.
{¶1} Appellant, Douglas R. Johnston, appeals his conviction, maximum ten-year sentence, maximum fine in the amount of $10,500, and the imposition of court costs in the amount of $439, following his plea to one count of operating a vehicle while intoxicated (“OVI”). Appellant’s conviction constitutes his fifth felony OVI conviction (2010, 2012, 2017, 2021), and his eleventh OVI conviction (misdemeanor convictions in 1997, 1998, 1999, 2005, 2006, 2008). When he committed the crime at issue in this appeal, he was under two previous lifetime license suspensions.
{¶2} Appellant advances four assignments of error. First, Appellant contends his right to due process was violated because he appeared by videoconference at his plea hearing without notice or a waiver to appear in person. Second, he argues his plea was neither knowingly nor intelligently made because he misunderstood that he would receive a six-year sentence. Third, Appellant asserts his sentence and fine were both contrary to law as they constitute cruel and unusual punishment. Finally, he contends he received ineffective assistance of counsel due to the public defender’s failure to: (1) object to Appellant’s attendance by videoconference at the plea; (2) inform Appellant of the possibility of a ten-year sentence, and (3) object to the imposition of the maximum sentence, a “bankrupting fine,” and court costs based on Appellant’s indigent status. Finding no reversible error, we affirm the sentencing judgment entry of the trial court.
FACTS AND PROCEDURAL HISTORY
{¶3} According to a police report attached to the presentence investigation report (“PSI”), law enforcement was dispatched to a single-vehicle crash involving an all-terrain vehicle (“ATV”) in Wayne Township, Belmont County on November 1, 2025. Medical treatment was being administered to Appellant in an ambulance when law enforcement arrived on the scene. Appellant reported he had consumed “a lot” of alcohol and it was “fair to say [he was] drunk.”
{¶4} The crash scene investigation established the ATV went off the road, struck a fence post and a section of barbed wire fencing, traveled down an embankment, and overturned onto its left side. Two coolers and several empty beer cans were found in near proximity to the overturned ATV. Appellant suffered a broken shoulder and clavicle.
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{¶5} Appellant was indicted for one count of OVI in violation of R.C. 4511.19(A)(1)(a) and (G)(1)(e), a felony of the third degree, with a repeat offender specification pursuant to R.C. 2941.1413(A). Appellant appeared by videoconference from the Justice Center at his arraignment on December 11, 2025, where he entered a plea of not guilty to the sole count in the indictment. The public defender’s office was appointed to represent Appellant, but the public defender declined the opportunity to communicate privately with Appellant at the arraignment.
{¶6} In a docket and journal entry filed on December 12, 2025, the trial court scheduled a “plea agreement deadline hearing” for January 12, 2026. A docket and journal entry filed on January 9, 2026 reflected the hearing remained on the schedule for January 12, 2026, but neither entry provided notice that Appellant would appear at the hearing by videoconference.
{¶7} At the plea agreement deadline hearing on January 12, 2026, the trial court stated “[Appellant] is appearing today in custody electronically from the Justice Center; he has a no-bond hold.” (1/12/26 Plea Hrg., p. 2). The public defender, who was present in the courtroom, represented Appellant’s intent to enter into a plea agreement with the state to the sole count in the indictment and the specification.
{¶8} We glean from the record that Appellant discussed the terms of the plea agreement during a private discussion with his counsel. In exchange for the plea, the state agreed to stand silent at sentencing, that is, the state would not recommend a sentence or challenge the sentence recommended by Appellant.
{¶9} During the plea colloquy, the trial court informed Appellant of the sentencing range of the OVI charge, that is, a minimum of sixty days and a maximum of five years, a fine ranging from a minimum of $1,540 and a maximum of $10,500, and a Class II license suspension ranging from a minimum of three years to a maximum life suspension. The trial court further explained the imposition of a prison sentence, fine, and a license suspension were mandatory. The trial court also explained the specification carried a range of one to five years, which would be served consecutively to the sentence on the OVI conviction, therefore the “worst case scenario, the absolute maximum . . . is 10 years in the penitentiary.” (Id. at p. 3). Appellant stated on the record that he understood the potential sentence.
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{¶10} Appellant, who was fifty years of age, warranted he was entering his plea voluntarily, that is, his plea was the result of his own free will rather than any promise, threat, or coercion. (Id. at p. 7). The trial court confirmed Appellant’s understanding that there was no agreed sentence, and although the public defender would recommend a sentence, the trial court was not bound by the recommendation. Specifically, the trial court stated:
You have heard the attorneys indicate that there is no agreement
here for what's called a stipulated sentence. So what that means is we will
schedule a later sentencing hearing probably next week or the week after.
And at that hearing, the attorneys can make a recommendation of what they
think the sentence ought to be, but you have to understand I'm not bound
by those recommendations; subject to the law of the State of Ohio, I make
the sentencing decision. Do you understand?
(Id. at p. 7-8). Appellant responded, “yes.” (Id. at p. 8).
{¶11} The trial court asked, “[h]as your attorney explained everything to you, gone over all the possible evidence with you, answered all of your questions?” Appellant responded, “yeah.” Appellant further warranted his satisfaction with trial counsel’s advice and competence. (Id.)
{¶12} Appellant stated he read and reviewed the plea of guilty petition. When he was asked if he had any questions for the trial court or his counsel regarding the contents of the plea of guilty petition, he responded, “no.” (Id. at p. 14). Appellant had previously executed the plea of guilty petition.
{¶13} The matter was set for a sentencing hearing and a PSI was ordered by the trial court. Appellant refused to participate in the preparation of the PSI.
{¶14} At the sentencing hearing on January 20, 2026, which Appellant attended by videoconference, substitute counsel from the public defender’s office appeared due to the unavailability of the public defender who appeared at the plea hearing. On sentencing, the substitute counsel from the public defender’s office advanced the following argument:
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Your Honor, you are very familiar with [Appellant’s] background.
There are multiple OVI offenses, including multiple felony offenses. A long
time ago in Akron, Ohio, a person whose name went by Bill met a physician
in Akron, a Doctor Silkworth. And this is recorded in the Big Book for
Alcoholics Anonymous, and it was determined at that time that alcoholism
was called an allergy to alcohol. Since that time, science has developed and
determined that alcoholism is a disease.
When we find people who come into court like this, it is a disease
that they have not acknowledged or a disease that they have not sought
treatment for. And it is obvious that [Appellant] suffers from the disease of
alcoholism, and I’m not going to try to cover it up. He has either not sought
treatment or he has failed miserably with regard to any treatment that he
participated in.
We would ask the court, with regard to the specification, that he serve
a one-year sentence on that specification. Given his prior sentences, it
would not surprise me if the court sentenced him to the maximum on the
underlying offense without the specification. We’ve spoken to [Appellant]
and understand that it is very possible for him to receive a six-year sentence
and that is what we're asking the court to do, a six-year sentence or less,
with the one year being imposed on the specification.
(1/20/2026 Sentencing Hrg., p. 3-4).
{¶15} Next, the trial court asked Appellant if he wanted to speak on his own behalf. Appellant responded:
That I have a problem and I’m sorry for it. I just can’t get away from
it. . . . Everything that I’ve tried in the past has not worked. I do want help.
I just don’t know what to do anymore. You know what I mean? I just want to
get away from it. Thank you.
(Id. at p. 5).
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{¶16} Prior to the imposition of the maximum sentence and fine, the trial court observed:
The factors that I’m going to consider that indicate more serious
conduct, more likelihood of recidivism include that, fortunately, he was the
only one who sustained any physical injuries as the result of the ATV
accident. He has not been rehabilitated or responded favorably to prior
sanctions and/or convictions. There is a pattern of alcohol abuse that’s
related to this offense.
I understand his comments today that he needs help, but there is no
indication from the pre-sentence investigation or the record that when he’s
not in prison he ever seeks that help. There's been no showing of genuine
remorse on his part.
Again, I have to consider what you’re saying, [Appellant], about you
can’t get off of it, and I have to balance that against the risk of or the potential
risk of harm to everybody else who is in any way in the vicinity when you
are operating your vehicle.
Your record, and this is over the last 28, 29 years, the misdemeanor
violations are not too significant, with the exception of all of the OVI charges
which stayed as misdemeanors. Again, there was some time in between
some of them, and so I can understand that decision on the part of the lower
courts. But again, 1997, 1998, 1999, OVI convictions. 2005, 2006, 2008,
OVI convictions. All of those were misdemeanors.
Then they started to become felonies, 2010, 2012, 2017, 2021, and
then we get to this one, which is your 11th total conviction for OVI.
Now, there is three prior prison sentences that you served and didn’t
seem to work to help you not to continue to reoffend. While you were on
community control, nonprison, for some of your violations or probation for
some of your violations, on at least two occasions you violated the terms for
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good behavior that the courts had set. And so, again, it places doubt in my
mind about whether you would ever comply with any kind of restrictions that
I would impose.
Altogether, according to the pre-sentence investigation, you have
had 26 driving under suspension charges -- or let’s say suspensions, I
should say, and two of those are lifetime suspensions. So twice in the past,
in fact I was one of them, the court told you that your license was suspended
for the rest of your life and, obviously, it had no effect, or, as you put it today,
you could net [sic] help yourself.
I'm also not so naive, [Appellant], to believe that, although this is your
11th conviction, it's not the 11th time that you have consumed beverages
containing alcohol and then operated a motor vehicle. It is simply a case
where you’ve only been caught 11 times. It boggles the mind to imagine
how many times this probably has occurred in the past. All right.
But again, considering all of these factors, and I also mentioned the
factors on the other end of the scale, so to speak, of justice, meaning factors
that indicate less serious conduct, less likelihood of recidivism, are
completely absent from the record here. All of my findings, I believe, are in
accordance with statutory and case law of the State of Ohio.
And so, [Appellant], I’m sorry, not just to prevent you from further
harming yourself, but, more importantly, to prevent you from harming
anyone else by this record of conduct continuing, you will be sentenced on
the OVI charge to serve 5 years in the penitentiary. On the specification for
repeat offender, you will be sentenced to serve 5 years in the penitentiary.
These sentences will be served consecutive to each other such that the
aggregate sentence is 10 years in the penitentiary. You do have credit for
69 days served through and including today's date.
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The court is also -- I imposed a fine before. Again, that was of no
avail in helping you to reform your conduct. So I am going to impose the
maximum fine here of $10,500. I am going to impose what looks like your
third lifetime license suspension.
(Id. at p. 5-8). The trial court also imposed court costs.
{¶17} The sentence was memorialized in a sentencing judgment entry filed on January 23, 2026. On April 9, 2026, the trial court overruled a motion to stay execution of judgment and sentence pending this appeal. This timely appeal followed.
ANALYSIS
ASSIGNMENT OF ERROR NO. 1
[APPELLANT] WAS DENIED HIS RIGHT TO BE PHYSICALLY
PRESENT AT THE CHANGE OF PLEA HEARING IN VIOLATION OF HIS
RIGHT TO BE PHYSICALLY PRESENT, DUE PROCESS OF LAW, AND,
FOR A SPEEDY AND PUBLIC TRIAL UNDER US CON. AMEND. V, US
CON. AMEND. VI, US CON. AMEND. XIV, OHIO CON. ART. I, ORC
2945.12, AND, CRIM.R. 43.
{¶18} Appellant contends the trial court committed structural error because “[he] was convicted and given a maximum sentence without ever stepping foot in a courtroom.” (Reply Brf., p. 1). He argues in the alternative that “[t]his caused prejudice because he did not have the opportunity to talk to counsel, and he was rushed to make a decision due to the trial court ordering him to, on that day, either plead to the charge or take the matter to trial.” (Id.) Appellant concludes, “[i]t is dystopian to send a man to prison without ever stepping foot in a courtroom.” (Id.) “Structural error occurred when an entire criminal proceeding occurred remotely.” (Id. at p. 3).
{¶19} More specifically, Appellant argues the trial court violated Crim.R. 43 because it provided no notice of his appearance by videoconference at the plea hearing, he did not waive his right to personally appear, and he was given no opportunity to consult privately with the public defender. Appellant contends he would have asked the public
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defender about the presumption against maximum and consecutive sentences – whether it was rebuttable or conclusive – if he was present in the courtroom and permitted to confer privately with counsel.
{¶20} It is axiomatic that a criminal defendant has a fundamental right to be present at all critical stages of his or her criminal trial. See, e.g., State v. Hale, 2008-Ohio-3426, ¶ 100. See also, Ohio Const., art. I, § 10. In Ohio, Crim.R. 43 governs the presence of a criminal defendant in the courtroom, and provides in relevant part:
(A) Defendant’s Presence.
(1) Except as provided in Crim.R. 10 and divisions (A)(2) and (A)(3)
of this rule, the defendant must be physically present at every stage of the
criminal proceeding and trial, including the impaneling of the jury, the return
of the verdict, and the imposition of sentence, except as otherwise provided
by these rules. In all prosecutions, the defendant’s voluntary absence after
the trial has been commenced in the defendant's presence shall not prevent
continuing the trial to and including the verdict. A corporation may appear
by counsel for all purposes.
(2) Notwithstanding the provisions of division (A)(1) of this rule, the
court may permit the remote presence and participation of a defendant if all
of the following apply:
(a) The court gives appropriate notice to all the parties;
(b) The video arrangements allow the defendant to hear and see the
proceeding;
(c) The video arrangements allow the defendant to speak, and to be
seen and heard by the court and all parties;
(d) The court makes provision to allow for private communication
between the defendant and counsel. The court shall inform the defendant
on the record how to, at any time, communicate privately with counsel.
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Counsel shall be afforded the opportunity to speak to defendant privately.
Counsel shall be permitted to appear with defendant at the remote location
if requested.
(e) The proceeding may involve sworn testimony that is subject to
cross examination, if counsel is present, participates and consents.
(3) A court may conduct a trial by jury, a trial to the court, a
sentencing proceeding or other substantive proceeding with a defendant
appearing remotely if the defendant has waived in writing or orally on the
record the right to be physically present and agreed to appear by remote
presence in accordance with division (A)(2) of this rule subject to the
approval of the court.
{¶21} Accordingly, an accused’s absence does not necessarily result in prejudicial or constitutional error because “ ‘[t]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.’ ” State v. Davis, 2008-Ohio-2, ¶ 90, quoting Snyder v. Massachusetts, 291 U.S. 97, 107-08 (1934), overruled on other grounds, Duncan v. Louisiana, 391 U.S. 145 (1968), and Malloy v. Hogan, 378 U.S. 1, 2 (1964). The ultimate question is whether the presence of the defendant in the courtroom has a “ ‘reasonably substantial’ ” relationship to “ ‘the fullness of his opportunity to defend against the charge.’ ” State v. Hale, 2008-Ohio-3426, ¶ 100, quoting Snyder.
{¶22} An alleged error may be raised for the first time on appeal where an appellant can demonstrate structural or plain error. Structural error is characterized by the entire trial from beginning to end being clearly affected. State v. Alexander, 2004-Ohio-5525, ¶ 27 (7th Dist.), citing Arizona v. Fulminante, 499 U.S. 270, 309-10 1991). “Structural error is a constitutional deprivation which affects the framework of the whole trial rather than simply an error in the trial process itself.” Alexander at ¶ 27. Structural error affects a defendant's substantial rights, even absent a showing of prejudice, and therefore automatically requires reversal. State v. Martin, 2004-Ohio-5471, ¶ 53.
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{¶23} In the absence of structural error, appellate courts may notice “[p]lain errors or defects affecting substantial rights . . . although they were not brought to the attention of the [trial] court.” Crim. R. 52(B). “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. Plain error is an obvious deviation from a legal rule that affects the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). The appellant must show the outcome would have been different absent the plain error. Id.; State v. Whitaker, 2022-Ohio-2840.
{¶24} We have previously found a defendant’s appearance by videoconference at his plea/sentencing hearing did not constitute plain error in State v. Evans, 2024-Ohio5330 (7th Dist.). We limited our review to plain error because Evans, like Appellant, did not object to his appearance by videoconference. While we have yet to consider the structural argument advanced here, the conclusion that a Crim.R. 43 violation does not constitute structural error is implicit in our decision in Evans. Moreover, both the Fifth and Eighth Districts have found a violation of Crim.R 43 is not a structural error. State v. Wood, 2020-Ohio-4251, ¶ 22 (5th Dist.); State v. Sherels, 2011-Ohio-3392, ¶ 7 (8th Dist.).
{¶25} In the absence of a waiver in the record, the Evans panel concluded the trial court committed a Crim.R. 43 violation, but ultimately found Evans suffered no outcomedeterminative prejudice as a result of the statutory violation:
Appellant's counsel appeared and represented him throughout the
proceeding and ensured Appellant's right to due process was protected,
such that there was nothing indicating that the fairness of the proceedings
was undermined. This was the third hearing held during which Appellant
participated remotely.
Appellant was able to hear and communicate with the court and
counsel, albeit remotely. Appellant's attorney indicated he and Appellant
had discussed the plea agreement earlier that day. Further, the trial court
adopted the parties’ jointly recommended plea agreement and sentence
and did so in Appellant's presence with his cooperation and agreement.
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While we agree Appellant's physical presence at these critical
proceedings was required, he fails to allege actual prejudice as a result of
the error.
Examples of actual prejudice include where a court modifies a
defendant's sentence outside her presence, including the addition of
probation conditions. Another example is where there was a discrepancy
between the sentencing judgment and the sentence pronounced at the
sentencing hearing resulting in an unclear sentence. See State v. Taylor,
2017-Ohio-9270, ¶ 6-8 (8th Dist.).
Although the trial court failed to comply with Crim.R. 43(A), its failure
to comply in this case does not rise to the level of plain error. Appellant did
not object and has failed to demonstrate that the outcome of his case would
have been different had he been physically present at the combined plea
hearing and sentencing. State v. Toney, 2020-Ohio-5044, ¶ 17 (7th Dist.).
Evans at ¶ 22-26.
{¶26} Similarly, in State v. Elmore, 2017-Ohio-925 (7th Dist.), Elmore challenged the constitutionality of a limited resentencing hearing, which Elmore attended telephonically. We found no plain error where:
[D]efense counsel was able to present arguments. Elmore himself
gave a statement when the trial court specifically addressed him. He did not
complain of any connection problems at that time and he was able to hear
and understand the trial court’s questions of him and converse with the court
during an extended colloquy.
The outcome would not have been any different had Elmore been
present in open court or video conferencing instead of by phone. There was
ample evidence in the record to support the imposition of consecutive
sentences; the case was simply remanded for the trial court to properly
articulate all of the required findings on the record pursuant to R.C.
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2929.14(C)(4). Elmore I at ¶ 36-62. It is undisputed that the trial court
complied and made all of the required findings.
Elmore at ¶ 26-27.
{¶27} There is no dispute that a Crim.R. 43 violation occurred in this case because there is no notice and no waiver in the record of Appellant’s statutory right to personally appear at the plea hearing. However, Appellant’s argument that he suffered prejudice as a result of his appearance by videoconference is predicated on facts outside of the record. In his appellate brief, Appellant argues he was unaware he could demand to appear in person and he felt compelled to enter a plea. Given the opportunity to consult privately with the public defender, Appellant asserts he would not have entered a plea. As Appellant relies on facts outside the record to establish prejudice, we find Appellant’s due process challenge cannot be considered on direct appeal. See State v. Brown, 2019-Ohio-2717, ¶ 12 (7th Dist.) (defendant may overcome res judicata where he relies on evidence outside the record).
{¶28} In the alternative, we find Appellant’s statements at the plea hearing establish he suffered no prejudice as a consequence of his appearance by videoconference. At the plea hearing, Appellant warranted without qualification that: (1) he had discussed the plea with the public defender and he was satisfied with her representation, (2) he was aware the trial court could reject the public defender’s sentencing recommendation and impose the maximum sentence on both the OVI and the specification; (3) his plea was the result of his own free will rather than any promise, threat, or coercion; and (4) when he was asked by the trial court if he had any questions for his counsel or the trial court, Appellant responded “no.” Further, Appellant was ably represented by the substitute public defender, who argued Appellant suffered from alcoholism and should receive the minimum sentence on the specification. Appellant also advocated on his own behalf. Based on existing Seventh District case law and the fact that Appellant’s factual representations in his appellate brief directly contradict his representations at the plea hearing, we find Appellant has failed to demonstrate he suffered prejudice as a consequence of his appearance by videoconference at his plea hearing.
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{¶29} In summary, we find the trial court committed a violation of Crim.R. 43 when it failed to provide notice that Appellant would appear by videoconference at the plea hearing, and did not place Appellant’s waiver of his right to personally appear on the record. Nonetheless, we find Appellant has not demonstrated prejudice, because his arguments in this direct appeal are predicated on facts outside the record, or in the alternative, the facts as asserted in his appellate brief are belied by Appellant’s representations at the plea hearing. Accordingly, we find Appellant’s first assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 2
[APPELLANT’S] PLEA WAS NOT MADE KNOWINGLY, VOLUNTARILY,
AND INTELLIGENTLY, IN VIOLATION OF HIS RIGHT TO DUE
PROCESS OF LAW AND TO A FAIR TRIAL UNDER THE US
CONSTITUTION. AMEND. V, US CON. AMEND. VI, US CON. AMEND.
XIV, OHIO CON. ART. I, ORC 2945.12, AND, CRIM.R. 43.
{¶30} In his second assignment of error, Appellant contends his plea was neither knowingly nor intelligently made because “he was not aware that the presumption against maximum consecutive sentences was rebuttable and not conclusive.” Appellant asserts “he thought that the state remaining silent at sentencing would mean that the trial court would adopt [trial counsel’s] proposed sentence.” (Appellant’s Brf., p. 9).
{¶31} The United States and the Ohio Constitutions require a defendant's plea to be made knowingly, intelligently, and voluntarily. Boykin v. Alabama, 395 U.S. 238, 243 (1969); State v. Engle, 74 Ohio St.3d 525, 527 (1996). Crim.R. 11(C)(2) requires the trial court in felony cases to personally address the defendant and determine that he understands delineated constitutional and non-constitutional rights and their waiver before accepting a guilty plea. This includes the non-constitutional right to receive notice of the maximum penalty for the offenses to which he is pleading guilty. Crim.R. 11(C)(2)(a). A defendant seeking to invalidate his plea based on the trial court's failure to fully inform him of non-constitutional rights must show prejudice resulting from this
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failure. State v. Sarkozy, 2008-Ohio-509, ¶ 22. Prejudice is established by showing that the plea would not have otherwise been made. State v. Dangler, 2020-Ohio-2765, ¶ 16.
{¶32} The recommendation at issue in this appeal was made by the public defender and the state remained silent. A trial court is not bound by a recommended sentence, even a sentence jointly recommended by the state and defendant. State v. Fields, 2026-Ohio-867, ¶ 52 (7th Dist.), citing State v. Underwood, 124 Ohio St.3d 365 (2010). However, before imposing a longer prison sentence than jointly-recommended, the court must inform the defendant of the applicable penalties and the possibility of imposing a sentence greater than that recommended. Fields at ¶ 52 (rejecting argument that a defendant should be given the opportunity to withdraw his plea after sentence greater than jointly-recommended term is imposed).
{¶33} During the plea colloquy, the trial court plainly stated Appellant could receive a maximum sentence of ten years and it was under no obligation to accept the recommendation of the public defender regarding sentence. Likewise, the plea of guilty petition executed by Appellant plainly reads he faced maximum potential sentences of five years for the OVI and five years for the specification, and the sentences, regardless of the length of the terms, were both mandatory and consecutive. A handwritten portion of the petition summarizing the substance of the plea negotiations reads, “[s]tate will stand silent. Defendant will make argument regarding sentence to include less than maximum.”
{¶34} Appellant asserts the Eighth District’s recent decision in State v. Gilree, 2026-Ohio-3026 (8th Dist.), informs our resolution of the second assignment of error. However, the Eighth District found Gilree’s plea was not knowing, intelligent, and voluntary because he was not informed prior to entering his plea that the trial court was not bound by the agreed recommended sentence of probation. The same is not true here.
{¶35} Accordingly, we find the trial court fully informed Appellant that: (1) the trial court was not obligated to impose trial counsel’s recommended sentence; and (2) the trial court could impose maximum five-year sentences on both the OVI and the specification, for an aggregate ten-year sentence. Therefore, we find Appellant’s second assignment of error has no merit.
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ASSIGNMENT OF ERROR NO. 3
[APPELLANT’S] SENTENCE AND FINE WAS AN ABUSE OF
DISCRETION, CONTRARY TO LAW, NOT SUPPORTED BY THE
RECORD, AN EXCESSIVE FINE, AND, CRUEL AND USUAL
PUNISHMENT IN VIOLATION OF HIS RIGHTS UNDER THE US
CONSTITUTION. AMEND. VIII, US CON. AMEND. XIV, AND, OHIO CON.
ART. I.
{¶36} Appellant argues his maximum consecutive sentences and maximum fine are not supported by the record and constitute cruel and unusual punishment because he was the only person harmed and he was driving an ATV, not an automobile. R.C. 2953.08(G) provides the appellate standard of review in all felony sentencing appeals. State v. Michaels, 2019-Ohio-497, ¶ 2 (7th Dist.), citing State v. Marcum, 2016-Ohio1002, ¶ 1. R.C. 2953.08(G) reads in relevant part:
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.
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.
R.C. 2953.08(G)(2)(a)-(b).
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{¶37} Although trial courts have complete discretion to impose any term of imprisonment within the statutory range, they must consider the sentencing purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. R.C. 2929.11(A) provides that the overriding purposes of felony sentencing are (1) “to protect the public from future crime by the offender and others”; and (2) “to punish the offender . . . using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.” Further, the sentence imposed shall be “commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.” R.C. 2929.11(B).
{¶38} R.C. 2929.12 provides a nonexhaustive list of sentencing factors the trial court must consider when determining the seriousness of the offense and the likelihood that the offender will commit future offenses. The court that imposes a felony sentence “has discretion to determine the most effective way to comply with the purposes and principles of sentencing.” R.C. 2929.12(A). The factors a trial court may consider include the “more serious” factors, such as “[t]he physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim” and “[t]he victim of the offense suffered serious physical, psychological, or economic harm” as a result of the offense. R.C. 2929.12(B)(1) and (2). The court may also consider the “less serious” factors, any recidivism factors, and any mitigating factors listed in R.C. 2929.12(C)-(F).
R.C. 2929.11 does not require the trial court to make any specific
findings as to the purposes and principles of sentencing. State v. Wilson,
129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Similarly, R.C.
2929.12 does not require the trial court to “use specific language or make
specific findings on the record in order to evince the requisite consideration
of the applicable seriousness and recidivism factors.” State v. Arnett, 88
Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).
State v. Shaw, 2017-Ohio-1259, ¶ 36 (7th Dist.).
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{¶39} “ ‘The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences.’ ” State v. Burkhart, 2019-Ohio-2711, ¶ 16 (7th Dist.), quoting State v. King, 2013-Ohio-2021, ¶ 45 (2d Dist.).
{¶40} In State v. Jones, 2020-Ohio-6729, the Supreme Court of Ohio indicated Marcum should not be read to provide for appellate review of a sentence based on the trial court’s analysis under R.C. 2929.11 and 2929.12. Jones at ¶ 27. (“The statements in Marcum at ¶ 23 suggesting that it would be ‘fully consistent’ with R.C. 2953.08(G) for an appellate court to modify or vacate a sentence when the record does not support the sentence under R.C. 2929.11 or 2929.12 were made only in passing and were not essential to this court's legal holding.”) In Jones, the Court held that “R.C. 2953.08(G)(2)(b) . . . does not provide a basis for an appellate court to modify or vacate a sentence based on its view that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” Id. at ¶ 39. The Court explained that “an appellate court's determination that the record does not support a sentence does not equate to a determination that the sentence is ‘otherwise contrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Thus, under Jones, an appellate court errs if it relies on the dicta in Marcum and modifies or vacates a sentence “based on the lack of support in the record for the trial court's findings under R.C. 2929.11 and 2929.12.” Id. at ¶ 29; see also State v. Dorsey, 2021-Ohio-76, ¶ 17 (2d Dist.).
{¶41} Pursuant to Jones, when reviewing a felony sentence imposed solely after considering the factors in R.C. 2929.11 and R.C. 2929.12, appellate courts no longer analyze whether the sentence is unsupported by the record, but simply whether it is contrary to law.
A sentence is considered to be contrary to law if it falls outside of the
statutory range for the particular degree of offense; if the trial court failed to
properly consider the purposes and principles of felony sentencing as
enumerated in R.C. 2929.11 and the seriousness and recidivism factors set
forth in R.C. 2929.12; or if the trial court orders consecutive sentences and
does not make the necessary consecutive sentence finding.
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Burkhart, 2019-Ohio-2711, at ¶ 12 (7th Dist.).
{¶42} Appellant contends the imposition of the maximum sentence is contrary to law because he did not commit the “worst form the offense.” Earlier this year, the Eleventh District addressed the same argument, advanced by appellate counsel in this case on behalf of another appellant, as follows:
Mr. White appears to argue that the trial court erred in sentencing
him to the maximum terms on the offenses to which he pleaded guilty. In
doing so, he argues that the trial court did not find the crimes were “the
worst forms of the offense.” Appellant's brief at p. 10.
Initially, prior to the Supreme Court of Ohio's decision in State v.
Foster, 2006-Ohio-856, trial courts were required to make a finding pursuant
to former R.C. 2929.14(C) that the offender committed the “worst form of
the offense,” and, inter alia, the offender “posed the greatest likelihood of
committing future crimes[.]” Former R.C. 2929.14(C), however, was
declared unconstitutional, because it required “judicial fact-finding before
imposition of a sentence greater than the maximum term authorized by a
jury verdict or admission of the defendant.” Foster, at paragraph one of the
syllabus. To remedy the unconstitutional nature of the statute, the Supreme
Court of Ohio severed R.C. 2929.14(C). Foster, at paragraph two of the
syllabus. Following severance, “[t]rial courts have full discretion to impose
a prison sentence within the statutory range and are no longer required to
make findings or give their reasons for imposing maximum . . . sentences.”
Id. at paragraph seven of the syllabus.
To the extent Mr. White argues the trial court could not impose the
maximum sentences without finding they represented the worst form of the
offense, his argument relies upon outdated and severed statutory
provisions which have had no effect for nearly two decades. His argument
must fail.
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State v. White, 2026-Ohio-2253, ¶ 19-21 (11th Dist.); see also State v. Watt, 2026-Ohio2844, fn. 2 (7th Dist.) (consecutive sentencing statute does not use language such as “worst form of the offense” as was in the former maximum sentence statute).
{¶43} There is no dispute that the sentence falls within the statutory range for the conviction and the trial court considered the purposes and principles of felony sentencing as enumerated in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12. The record reflects the trial court’s imposition of the maximum sentences was predicated upon Appellant’s criminal history and his admission that he is powerless over both his disease and his desire to operate motor vehicles while under the influence. Accordingly, we find the maximum sentence is not clearly and convincingly not supported by the record.
{¶44} The Eighth Amendment provides: “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Ohio Const., art. I, § 9 contains language identical to the Eighth Amendment's Excessive Fines Clause. State v. O'Malley, 2022-Ohio-3207. In Bowling Green v. Coble, 2023-Ohio-1308 (6th Dist.), the Sixth District held that the analysis set forth in O'Malley for the federal constitutional challenge applies equally to a state constitutional challenge under art. I, § 9.
{¶45} “ ‘A key component of the Constitution’s prohibition against cruel and unusual punishment is the “precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” ’ ” State v. Anderson, 2017-Ohio-5656, ¶ 27, quoting State v. Moore, 2016-Ohio-8288, ¶ 31, quoting Weems v. United States, 217 U.S. 349, 367 (1910). “To constitute cruel and unusual punishment, ‘the penalty must be so greatly disproportionate to the offense as to shock the sense of justice of the community.’ ” Anderson at ¶ 27, quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 70 (1964). “ ‘As a general rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual punishment.’ ” State v. Hairston, 2008-Ohio-2338, ¶ 21, quoting McDougle at 69.
{¶46} Appellant’s sentence falls within the statutory range of punishment, and the trial court considered the appropriate factors when imposing sentence. Accordingly, we find the sentence is not “grossly disproportionate or shocking to a reasonable person or
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to the community’s sense of justice” as to “constitute cruel and unusual punishment.” See Hairston at ¶ 22.
{¶47} R.C. 4511.19(G)(1)(e)(iii) provides that a mandatory fine of not less than one thousand five hundred forty nor more than ten thousand five hundred dollars must be imposed for a second felony OVI conviction. Mandatory fines imposed pursuant to R.C. 4511.19 are not waivable due to indigency. See State v. Small, 2015-Ohio-3640 (10th Dist.); State v. Kirchgessner, 2022-Ohio-3944, ¶ 44 (2d Dist.); State v. Wright, 137 Ohio App.3d 737 (2000).
{¶48} When reviewing a trial court's decision regarding mandatory fines, “an appellate court must first examine the sentencing court’s compliance with applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” State v. Smith, 2017-Ohio-7740, ¶ 44 (10th Dist.). “However, in determining whether a fine is unconstitutionally excessive – applying the constitutional standard to supported facts – the appellate court conducts a de novo review.” State v. O'Malley, 2022-Ohio-3207, ¶ 33.
{¶49} The applicable constitutional test is whether the sanction is grossly disproportional to the gravity of the offense. The O'Malley Court identified multiple factors relevant to this analysis, drawn from earlier Ohio and federal precedent: (1) the moral gravity of the crime and the nature of its harmful reach; (2) the personal benefit reaped by the defendant; (3) the defendant’s motive and culpability; (4) the extent to which the defendant’s interest is tainted by criminal conduct; (5) the dollar volume of loss caused; (6) whether the defendant caused, threatened, or risked physical harm; (7) the severity of collateral consequences; and (8) any other punishment imposed for the offense. The court also referenced the United States v. Bajakajian, 524 U.S. 321, 336 (1998) factors: the type of crime, whether the crime was related to other criminal activity, whether the defendant fits the class of persons the statute targets, the sentence that could be imposed, the degree of harm caused, and a comparison between the fine and the forfeiture. Critically, the O'Malley Court emphasized legislative judgments about appropriate punishment are entitled to substantial deference, and the General Assembly’s determination of the fit between crime and penalty should not be lightly overridden.
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{¶50} Typically, appellants in OVI cases assert constitutional challenges based on the Eighth Amendment with respect to the mandatory vehicle forfeiture provisions of R.C. 4511.19, rather than the amount of a mandatory fine. As a consequence, no Ohio court has sustained an excessive fine challenge to the imposition of a maximum fine in an OVI case. Ohio courts have routinely affirmed vehicle forfeitures under the same statute, which are substantially greater in value to the corresponding maximum fines. Given the relatively modest amounts of the R.C. 4511.19 monetary fines compared to the value of motor vehicles, the serious societal harm caused by impaired driving, and Appellant’s criminal history, we find the maximum fine is not grossly disproportionate to the gravity of the OVI.
{¶51} Finally, Appellant contends the trial court abused its discretion when it imposed court costs without considering his ability to pay. By statute, the imposition of court costs on all convicted defendants is mandatory. R.C. 2947.23(A)(1)(a) reads: “In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under section 2947.231 of the Revised Code, and render a judgment against the defendant for such costs.” The strict statutory language “requires a court to assess costs against all convicted defendants,” indigent or not. State v. White, 2004-Ohio-5989, ¶ 8.
{¶52} However, R.C. 2947.23(C) authorizes a trial court to “waive, suspend, or modify the payment of the costs of prosecution . . . at the time of sentencing or at any time thereafter.” So, while the court must impose costs, it may also waive, suspend, or modify them. Appellant never requested the waiver, suspension, or modification of court costs before the trial court.
{¶53} Pursuant to statute, Appellant may file a motion to waive, suspend, or modify the payment of court costs before the trial court at any time. Accordingly, we find the issue is not ripe as Appellant has yet to argue before the trial court that the mandatory imposition of court costs should have been waived, suspended, or modified.
{¶54} For the foregoing reasons, we find Appellant’s third assignment of error has no merit, and affirm the maximum sentence and fine imposed by the trial court.
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ASSIGNMENT OF ERROR NO. 4
[APPELLANT] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
IN VIOLATION OF HIS RIGHTS UNDER US CON. AMEND. VI, US CON.
AMEND. XIV, AND, OHIO CON. ART. I.
{¶55} A claim of ineffective assistance of counsel requires a showing of both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Consequently, if the performance was not deficient, then there is no need to review for prejudice and vice versa. State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).
{¶56} In evaluating alleged deficient performance, a reviewing court must determine whether there was “a substantial violation of any of defense counsel’s essential duties to his client” so that “counsel’s representation fell below an objective standard of reasonableness.” State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989), citing Strickland at 687-688. A properly licensed attorney in Ohio is presumed competent. State v. Pettress, 2019-Ohio-2692, ¶ 11 (7th Dist.). Appellate review is highly deferential to counsel’s decisions as there are “countless ways to provide effective assistance in any given case” and there are strong presumptions that the decisions fell within the wide range of reasonable professional assistance. Id. at 142, citing Strickland at 689. A reviewing court must refrain from second-guessing the strategic decisions of counsel. State v. Carter, 72 Ohio St.3d 545, 558 (1995).
{¶57} With respect to prejudice, an appellant must show there is a reasonable probability the result of the proceedings would have been different but for the serious errors committed by counsel. Id. at 557-558. Prejudice from defective representation justifies reversal only where the results were unreliable or the proceeding was fundamentally unfair due to the performance of trial counsel. Id., citing Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). Lesser tests of prejudice have been rejected: “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Bradley at 142, fn. 1, quoting Strickland at 693.
{¶58} Appellant contends he received ineffective assistance of counsel due to the public defender’s failure to: (1) object to Appellant’s attendance at the plea by videoconference; (2) inform Appellant of the possibility of a ten-year sentence, and (3)
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object to the imposition of the maximum sentence, a “bankrupting fine,” and court costs based on Appellant’s indigent status.
{¶59} As stated in the analysis of the substantive claims, Appellant has offered no evidence in the record to substantiate his claim that he suffered prejudice as a consequence of the public defender’s alleged deficient performance. While it is clear the trial court violated Crim.R. 43, there is no evidence in the record that Appellant suffered any prejudice as a consequence of appearing remotely at the plea hearing. To the extent Appellant contends he would not have entered his plea if he was given an opportunity to confer with counsel, he relies on evidence outside the record. In the alternative, Appellant was asked at the plea hearing if he had any questions for the trial court or the public defender, and Appellant responded, “no.” To the extent he argues his plea was not knowingly and intelligently entered due to his misunderstanding of the potential sentence, the trial court plainly stated Appellant could receive a maximum sentence of ten years, and the trial court had complete discretion to reject the sentence recommended by the public defender. Finally, we find the maximum sentence is not contrary to law and the fine is not constitutionally infirm given Appellant’s criminal history and his confessed inability to curtail his criminal conduct.
{¶60} In summary, we find Appellant has failed to establish prejudice as a consequence of the public defender’s alleged deficient performance. Accordingly, we find Appellant’s fourth assignment of error has no merit.
CONCLUSION
{¶61} For the foregoing reasons, the sentencing judgment entry of the trial court is affirmed.
Waite, P.J., concurs.
Hanni, J., concurs.
Case No. 26 BE 0009
[Cite as State v. Johnston, 2026-Ohio-3716.]
For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.