State v. Johnston

[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  –2– 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. Case No. 26 BE 0009  –3– {¶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. Case No. 26 BE 0009  –4– {¶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: Case No. 26 BE 0009  –5– 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). Case No. 26 BE 0009  –6– {¶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 Case No. 26 BE 0009  –7– 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. Case No. 26 BE 0009  –8– 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 Case No. 26 BE 0009  –9– 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. Case No. 26 BE 0009  – 10 – 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. Case No. 26 BE 0009  – 11 – {¶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-Ohio- 5330 (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 outcome- determinative 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. Case No. 26 BE 0009  – 12 – 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. Case No. 26 BE 0009  – 13 – 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. Case No. 26 BE 0009  – 14 – {¶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 Case No. 26 BE 0009  – 15 – 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. Case No. 26 BE 0009  – 16 – 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-Ohio- 1002, ¶ 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). Case No. 26 BE 0009  – 17 – {¶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.). Case No. 26 BE 0009  – 18 – {¶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 o