State v. Harris

[Cite as State v. Harris, 2026-Ohio-1368.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                   BELMONT COUNTY

                                             STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                      v.

                                         ALAN HARRIS, JR.,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                             Case No. 25 BE 0022


                                             Application to Reopen

                                           BEFORE:
                   Katelyn Dickey, Cheryl L. Waite, Carol Ann Robb, Judges.


                                                 JUDGMENT:
                                                   Denied.



Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Jacob A. Manning,
Assistant Prosecuting Attorney, for Plaintiff-Appellee (No Response Filed) and

Atty. Rhys B. Cartwright-Jones, for Defendant-Appellant.


                                             Dated: April 15, 2026
                                                                                         –2–


PER CURIAM.

       {¶1}    On January 6, 2026, Appellant, Alan Harris, Jr., filed an App.R. 26(B)
application to reopen his direct appeal in State v. Harris, 2025-Ohio-4664 (7th Dist.). The
State of Ohio did not file a response. Appellant filed a supplement to the application to
reopen on February 23, 2026.
       {¶2}    In his direct appeal, Appellant challenged the trial court’s imposition of
maximum, consecutive sentences for his convictions for one count of attempted
pandering     obscenity   involving    a   minor   or   impaired   person   in   violation   of
R.C. 2907.321(A)(1)(C) and R.C.2923.02(A) (attempt), a felony of the third degree, and
two counts of pandering obscenity in violation of R.C. 2907.32(A)(5), felonies of the fifth
degree, following his guilty plea to a bill of information. In his sole assignment of error,
Appellant argued for the first time on appeal that his pandering obscenities charges
should have merged as they were allied offenses of similar import. He further argued his
consecutive sentences were contrary to law. We found no merit in either argument and
affirmed the trial court’s judgment.

               App.R. 26(B)(1) and (2)(b) require applications to reopen based on
       ineffective assistance of appellate counsel to be filed within ninety days from
       journalization of the decision. App.R. 26(B)(1), (2)(b); State v. Gumm, 103
       Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861. The ninety-day
       requirement applies to all appellants. State v. Buggs, 7th Dist. Mahoning
       Nos. 06 MA 28, 07 MA 187, 2009-Ohio-6628, ¶ 5.

               If an application for reopening is not filed within the ninety day time
       period, an appellant must make a showing of good cause justifying the delay
       in filing. State v. Dew, 7th Dist. Mahoning No. 08 MA 62, 2012-Ohio-434.

State v. Frazier, 2020-Ohio-993, ¶ 5-6 (7th Dist.).

               Claims of ineffective assistance of appellate counsel under App.R.
       26(B) are subject to the two-pronged analysis enunciated in Strickland v.
       Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See



Case No. 25 BE 0022
                                                                                      –3–


      State v. Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719, 172 N.E.3d 97,
      ¶ 14, Id. at ¶ 23 (O'Connor, C.J., concurring), Id. at ¶ 28 (Fischer, J.,
      concurring); State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996);
      see also 1993 Staff Notes to App.R. 26 (“The term ‘ineffective assistance of
      counsel’ is intended to comprise the two elements set forth in Strickland”).

             In accordance with the Strickland analysis, an applicant must show
      that (1) appellate counsel’s performance was objectively unreasonable, Id.
      at 687, 104 S.Ct. 2052, and (2) there is “a reasonable probability that, but
      for counsel's unprofessional errors, the result of the proceeding would have
      been different,” Id. at 694, 104 S.Ct. 2052. See Smith v. Robbins, 528 U.S.
      259, 285-286, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

State v. Leyh, 2022-Ohio-292, ¶ 17-18.

             Under App.R. 26(B), an applicant must set forth “[o]ne or more
      assignments of error or arguments in support of assignments of error that
      previously were not considered on the merits in the case by any appellate
      court or that were considered on an incomplete record because of appellate
      counsel’s deficient representation.” App.R. 26(B)(2)(c).

State v. Hackett, 2019-Ohio-3726, ¶ 9 (7th Dist.).

             [Furthermore] [i]t should finally be noted that appellate counsel need
      not raise every possible issue in order to render constitutionally effective
      assistance. [State v.] Tenace, 109 Ohio St.3d 451 at ¶ 7, 849 N.E.2d 1,
      citing State v. Sanders (2002), 94 Ohio St.3d 150, 151-152, 761 N.E.2d 18.
      “Experienced advocates since time beyond memory have emphasized the
      importance of winnowing out weaker arguments on appeal and focusing on
      one central issue if possible, or at most on a few key issues.” Jones v.
      Barnes (1983), 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987.

State v. Jones, 2008-Ohio-3352, ¶ 6 (7th Dist.).




Case No. 25 BE 0022
                                                                                            –4–


       {¶3}   Appellant advances two proposed assignments of error in his application to
reopen. First, he contends his sentence was predicated upon conduct charged in the
superseding indictment, which the state agreed to nolle in exchange for his plea to the
bill of information. Second, Appellant argues his plea was not knowing, intelligent, and
voluntary because the trial court mistakenly characterized him as a Tier 1 sex offender at
the plea hearing, then corrected its own error later in the plea colloquy without sufficient
explanation. Appellant does not cite a single case in support of his arguments.
       {¶4}   Appellant    filed   the   supplement    to   his      motion   to   reopen    on
February 23, 2026. It asserts a new claim for reopening, rather than supplementing a
proposed assignment of error advanced in the application to reopen.                Appellant’s
supplement was filed more than 90 days after the journalization of our decision on
October 8, 2025. He does not argue good cause to include the argument in his application
to reopen. As the supplement states a new claim and was filed more than 90 days after
the journalization of our decision, we find it was untimely filed.
       {¶5}   Assuming arguendo the new claim was timely filed, Appellant asserts his
plea was not knowing, intelligent, and voluntary as it was entered “without adversarial
testing of the sole evidentiary foundation of the prosecution.” (Supp., p. 2). In essence,
Appellant argues his plea is invalid because his trial counsel provided ineffective
assistance when he failed to file a motion to suppress.
       {¶6}   Appellant does not set forth the new claim in a proposed assignment of error
and ultimately concedes the argument is better-suited to a petition for postconviction relief
or a motion to vacate his pleas, as it is predicated on evidence outside of the record. He
explains he filed the supplement to defeat any res judicata argument.
       {¶7}   A voluntary, knowing, and intelligent guilty plea waives any alleged
constitutional violations unrelated to the entry of the guilty plea and any nonjurisdictional
defects in the proceedings. State v. Ketterer, 2006-Ohio-5283. A guilty plea thus
“ ‘effectively waives all appealable errors’ at trial unrelated to the entry of the plea.”
Ketterer at ¶ 105, quoting State v. Kelley, 57 Ohio St.3d 127 (1991), paragraph two of the
syllabus. Trial counsel’s failure to file a motion to suppress has been determined to be
waived by a guilty plea. See State v. Weimert, 2022-Ohio-3416, ¶ 12 (5th Dist.); State v.
Kitzler, 2002-Ohio-5253, ¶ 13 (3d Dist.); State v. Huddleson, 2005-Ohio-4029, ¶ 14 (2d



Case No. 25 BE 0022
                                                                                         –5–


Dist.) (“Since [the defendant] pled guilty to the charged offenses, he has waived any
argument that his attorneys were ineffective in not filing a motion to suppress.”).
       {¶8}   We have specifically held the waiver by plea “includes the right to claim that
the accused was prejudiced by constitutionally ineffective counsel, ‘except to the extent
the defects complained of caused the plea to be less than knowing and voluntary.’ ” State
v. Snyder, 2004-Ohio-3366, ¶ 13 (7th Dist.), quoting State v. Barnett, 73 Ohio App.3d
244, 249 (2d Dist. 1991).         Appellant’s argument presupposes the search was
unconstitutional and concedes the argument relies on evidence outside of the record.
See State v. Anderson, 2025-Ohio-1044, ¶ 11 (9th Dist.); State v. Stitt, 2024-Ohio-3401,
¶ 21 (8th Dist.) (rejecting defendant’s claim that counsel was ineffective for not properly
advising him of what was provided by the State in discovery is “too speculative absent a
record affirmatively demonstrating the facts of the case.”).
       {¶9}   The Eighth District provided the following analysis regarding Stitt’s
ineffective assistance of counsel claim on direct appeal. With respect to the procedural
posture of the case, the Eighth District opined:

       Stitt has not raised these issues in a postconviction or postsentence motion
       that permits the defendant to attach evidence that was not in the initial
       record for the trial court’s consideration. See, e.g., State v. Stumpf, 32 Ohio
       St.3d 95, 104 (1987) (To withdraw a guilty plea after sentencing, “a
       defendant must show that such withdrawal is necessary to correct manifest
       injustice” under Crim.R. 32, and a motion made pursuant to Crim.R. 32 “is
       addressed to the sound discretion of the trial court.”); State v. McMichael,
       2012-Ohio-3166, ¶ 22 (10th Dist.) (In a postsentence motion to withdraw
       plea, defendant bears “the burden of establishing his case based on specific
       facts either contained in the record or supplied through affidavits attached
       to the motion.”). This also gives the trial court an opportunity to review and
       consider arguments and evidence before we endeavor to review them. See,
       e.g., Sizemore v. Smith, 6 Ohio St.3d 330, 333, fn. 2 (1983) (“[J]ustice is far
       better served when it has the benefit of briefing, arguing, and lower court
       consideration before making a final determination.”).



Case No. 25 BE 0022
                                                                                       –6–


Stitt at ¶ 16. The same rationale applies here.
       {¶10} In summary, the claim asserted by Appellant for the first time in his
supplement was untimely filed. Even assuming the new claim was timely filed, we find
the record before us forecloses our ability to consider the claim.

                    PROPOSED FIRST ASSIGNMENT OF ERROR

       THE TRIAL COURT IMPOSED A SENTENCE CONTRARY TO LAW AND
       DENIED      DUE      PROCESS      WHEN      IT    SELECTED       MAXIMUM,
       CONSECUTIVE PRISON TERMS BASED ON DISMISSED AND
       UNPROVEN ALLEGATIONS RATHER THAN THE OFFENSES OF
       CONVICTION.

       {¶11} In his proposed first assignment of error, Appellant contends his maximum,
consecutive sentences were predicated upon descriptions of “a ‘domestic violence
allegation,’ ” “an effort to hide devices from law enforcement,” and “homemade videos of
torture; snuff films . . . adult males having sex with toddlers, babies being raped.”
(Appellant’s App., p. 3). He argues “the court’s comments tracked allegations from the
earlier indictment [which was nolled as a part of the plea agreement] and PSI narrative,
not the facts admitted in the plea to the bill of information,” and “due process forbids
sentencing that punishes a defendant for dismissed charges as though the court had
adjudicated them.” (Id.).
       {¶12} Appellant argues his sentence must be predicated upon “the facts admitted
at the plea to the bill of information.” To the contrary, when a guilty plea is made on an
offense that is not specified in Crim.R. 11(C)(1)-(3), the trial court “need not take
testimony,” as is the case here. Crim.R. 11(C)(4). Crim.R. 11(B)(1) provides that “[t]he
plea of guilty is a complete admission of the defendant’s guilt.” Therefore, neither the
state nor the trial court was required to establish facts supporting Appellant’s convictions
at the plea hearing. Further, Crim.R. 7(B) requires that a bill of information contain
sufficient statements to provide the defendant with notice of all of the elements of the
offense for which the defendant is charged. Consequently, to the extent it is predicated




Case No. 25 BE 0022
                                                                                         –7–


upon a dearth of facts contained in the bill of information or established at the plea
hearing, Appellant’s proposed first assignment of error is without merit.
       {¶13} Next, Appellant contends his maximum, consecutive sentences were based
on allegations from the superseding indictment and the PSI narrative. In so arguing,
Appellant quotes the trial court’s response to Appellant’s allocution at the sentencing
hearing that he suffers from dissociative identity disorder and “[f]rom one day to the next,
[he’s] somebody completely different and [he doesn’t] remember 95 percent of [his] life.”
(4/21/25 Sent. Hrg., p. 10). The trial court responded:

               You were initially arrested in this case on a domestic violence
       allegation. You sat here today and told me you really don't remember what
       was going on back then, but yet, you had the wherewithal to contact your
       girlfriend or your wife to explain to her, “Get out the computer and my phone
       so law enforcement can't find them.”

               And what was found on them after a search warrant? Homemade
       videos of torture; snuff films, juveniles engaging in sex acts with adults;
       macrophilia [sexual paraphilia involving giants or the concept of being
       significantly smaller in comparison to a sexual partner]; sexual violence;
       adult males having sex with toddlers; babies being raped. That's what was
       on your computer.

               You're telling me today you had no idea and don’t remember what
       was on there, but you had the wherewithal to try to destroy it before it was
       found by authorities.

               During your interview with the evaluator, you said the first conviction
       in [Pennsylvania] wasn’t you; it was somebody else and you just plead guilty
       to get the case over. You also said it wasn’t you here. You also said you’re
       not attracted to children. Then why on earth do you have image after image
       of babies being raped?

(Id. at p. 12-13).



Case No. 25 BE 0022
                                                                                         –8–


      {¶14} Prior to imposing sentence, the trial court stated:

              [Appellant] has a history of criminal convictions. As a juvenile, he was
      convicted of aggravated assault, possession or consumption of alcohol,
      criminal trespass and unruly habitual. As an adult, he has misdemeanor
      convictions for expired license, driving under suspension, stop sign, seat
      belt,   persistent   disorderly   conduct,    controlled   substance,    public
      drunkenness, and DUI. He has felony convictions of dissemination of
      photographs, videotapes and computer depictions and films; sexual abuse
      of children; possession of child pornography.

              He has served a prior prison term; he has not responded favorably
      to sanctions previously imposed. He’s previously been convicted of similar
      offenses, and is a registered sex offender; does not – does not demonstrate
      any genuine remorse, and the present offenses are sex offenses.

              In accord with 2929.12(E), the Court finds that no additional
      mitigating factors exist which suggest that recidivism is less likely.

              In view of the above-stated findings and considering the purposes
      and principles of sentencing, this Court finds that community control
      sanctions, or a combination of them, or the minimum sentence, would not
      adequately punish the [Appellant] and protect the public from future crime.
      And a community control sanction, or combination of them, would demean
      the seriousness of the offenses, and that factors decreasing seriousness
      are greatly outweighed by those increasing seriousness, and there is more
      likelihood of recidivism if the [Appellant] is placed on community control or
      given a shorter sentence.

              The Court also finds that consecutive sentences are necessary to
      protect the public and to punish the offender. Consecutive sentences are
      also not disproportionate to the seriousness of the [Appellant’s] conduct,
      and the danger posed to the public.



Case No. 25 BE 0022
                                                                                          –9–


               Additionally, [Appellant’s] criminal history shows that consecutive
       sentences are needed to protect the public.

(Id. at p. 14-16).

       {¶15} Contrary to Appellant’s argument, his sentence was not predicated upon
allegations from the superseding indictment or the PSI narrative. Therefore, to the extent
it is based on his argument that the trial court relied on improper evidence in fashioning
his sentences, we find Appellant’s first proposed assignment of error is without merit.

                     PROPOSED SECOND ASSIGNMENT OF ERROR

       THE TRIAL COURT DID NOT SECURE A KNOWING, INTELLIGENT,
       AND VOLUNTARY GUILTY PLEA UNDER CRIM.R. 11(C)(2)(a), WHEN
       IT GAVE AN INCORRECT SEX-OFFENDER TIER ADVISEMENT AND
       THEN ACCEPTED THE PLEA WITHOUT A CLEAR CURE OF THE
       CONFUSION ON THE RECORD.

       {¶16} In his second proposed assignment of error, Appellant contends his plea
was not knowing, intelligent, and voluntary based on the trial court’s bifurcated notice
regarding Appellant’s sex offender registration requirements. After reviewing the
maximum sentences for each count in the bill of information, the trial court provided the
following notice:

       THE COURT:           [I]f you enter pleas of guilty to these offenses, you
                            would be labeled a Tier I sex offender; you would have
                            to register once a year for up to 15 years; do you
                            understand that?

       THE DEFENDANT: Yes, Your Honor.

       THE COURT:           And there would be also certain restrictions where you
                            reside and other restrictions in place that if you violated
                            them, do you understand that would constitute a new
                            felony offense?


Case No. 25 BE 0022
                                                                                             – 10 –


(3/24/25 Plea Hrg., p. 10).

       {¶17} Prior to Appellant’s execution of the written plea agreement, the trial court
provided the following additional notice:

       THE COURT:             Mr. Miller, before your client executes the Plea
                              Agreement, the Court advised him that a conviction to
                              Counts II and III [fifth degree felonies] would make him
                              a Tier I sex offender, requiring him to register once a
                              year for 15 years. Do you have an opinion as to what
                              the conviction for Count I [third degree felony] would
                              be?

       MR. MILLER:            Your Honor, I believe under the situation, that would be
                              a Tier II offender, which will require him to register twice
                              a year for 25 years. So, I just didn't want there to be
                              any confusion, if that is, in fact, the case.

       THE COURT:             What is the State of Ohio’s opinion in regards to a
                              conviction for Count I?

       MR. VAVRA:             I agree with defense counsel, Judge. I do believe that
                              is a Tier II offense. The underlying offense, Felony 2
                              [sic] pandering, is Tier II, and that does not get changed
                              or modified with the attempt; it will still remain the Tier
                              II offense.

       THE COURT:             All right.

                              So Mr. Harris, I want to make sure you understand. I
                              only advised you about the Tier I for Counts II and III;
                              that would be registering once a year for 15 years.

                              What your attorney and the State of Ohio are providing
                              that a conviction for Count I would make you a Tier II


Case No. 25 BE 0022
                                                                                      – 11 –


                            sex offender; that means you would register twice a
                            year. That is every 180 days for the next 25 years. Do
                            you understand that?

       THE DEFENDANT: Yes, Your Honor.

       THE COURT:           Okay.

(Id. at p. 14-15).

       {¶18} Based on Appellant’s testimony that he suffers from dissociative identity
disorder, he argues “[the plea colloquy] supported a substantial-compliance challenge
because the record shows an initial material misadvisement on a mandatory
consequence followed by a limited correction.” (Appellant’s App., p. 5).
       {¶19} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527 (1996).
Crim.R. 11 was adopted in order to ensure a record exists for a reviewing court to assess
whether the plea has these qualities. See State v. Nero, 56 Ohio St.3d 106, 107 (1990).
Pursuant to Crim.R. 11, the trial court cannot accept a guilty plea in a felony case “without
first addressing the defendant personally and . . . determining that the defendant is making
the plea voluntarily, with understanding of . . . the maximum penalty involved . . .” Crim.R.
11(C)(2)(a) (and any ineligibility for probation or community control).
       {¶20} Typically, an appellant attempting to vacate his guilty plea must show that
he suffered prejudice as a consequence of the trial court’s failure to comply with Crim.R.
11(C)(2)(a).   The traditional rule requiring prejudice for reversal of a plea has two
exceptions: (1) the failure to explain the constitutional rights being waived upon a plea;
and (2) the complete failure to comply with a non-constitutional part of Crim.R. 11(C).
State v. Dangler, 2020-Ohio-2765, ¶ 14-15. “Aside from these two exceptions, the
traditional rule continues to apply: a defendant is not entitled to have his plea vacated
unless he demonstrates he was prejudiced by a failure of the trial court to comply with the
provisions of Crim.R. 11(C).” Id. at ¶ 16. The test for prejudice is “whether the plea would
have otherwise been made.” Id. quoting Nero at 108.




Case No. 25 BE 0022
                                                                                        – 12 –


       {¶21} With respect to the maximum penalty (a non-constitutional right), the trial
court has a duty to provide some notice on sex offender registration, if applicable, at the
plea hearing. The Dangler Court “encourage[d] trial courts to be thorough in reviewing
consequences of a defendant’s decision to enter a plea, including those stemming from
classification as a sex offender: the duty to register and provide in-person verification, the
community-notification provisions, and the residency restrictions.” Dangler at ¶ 25.
Nonetheless, the Ohio Supreme Court opined the statutory sex offender scheme as a
whole is punitive, but each separate aspect of the scheme is not a discrete criminal
“penalty” for purposes of Crim.R. 11(C)(2)(a). Id. at ¶ 18-22. Accordingly, a reviewing
court must determine: “(1) has the trial court complied with the relevant provision of the
rule? (2) if the court has not complied fully with the rule, is the purported failure of a type
[constitutional right or complete failure] that excuses a defendant from the burden of
demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant
met that burden?” Id. at ¶ 17.
       {¶22} Appellant contends the trial court’s initial notice regarding the registration
requirements constitutes a “material misadvisement.” Just the opposite, the trial court
first provided the required notice with respect to the two fifth-degree felonies. Prior to
Appellant’s execution of the written plea agreement, the trial court supplemented (not
corrected) the initial notice with the registration requirements related to the third-degree
felony. Even assuming arguendo that the trial court’s bifurcated notice violated Crim.R.
11(C)(2)(a), Appellant has not asserted he would not have entered his plea had the sex
offender registration notice for all three counts been provided at the same time.
       {¶23} Accordingly, we find the trial court complied fully with the notice
requirements of Crim.R. 11(C)(2)(a), and in the alternative, Appellant has not
demonstrated any prejudice. Therefore, Appellant’s second proposed assignment of
error is without merit.
       {¶24} Upon consideration, we fail to see any ineffective assistance of appellate
counsel warranting a reopening. Accordingly, Appellant's pro se App.R. 26(B) application
to reopen his direct appeal is hereby denied.




Case No. 25 BE 0022
                                                              – 13 –



JUDGE KATELYN DICKEY


JUDGE CHERYL L. WAITE


JUDGE CAROL ANN ROBB




                             NOTICE TO COUNSEL

This document constitutes a final judgment entry.


TO THE CLERK: PLEASE SERVE COPIES OF THIS ORDER TO ALL COUNSEL OF
RECORD AND ANY SELF-REPRESENTED PARTIES




Case No. 25 BE 0022