State v. Foster ( 2023 )

[Cite as State v. Foster, 2023-Ohio-728.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2021-CA-50
:
v. : Trial Court Case No. 21-CR-0408E
:
REGAN FOSTER : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on March 10, 2023
...........
IAN A. RICHARDSON, Attorney for Appellee
ADAM JAMES STOUT, Attorney for Appellant
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TUCKER, J.
{¶ 1} Appellee, the State of Ohio, concedes that the trial court erred at Regan
Foster’s sentencing hearing on several first- and second-degree felonies, because it
failed to inform her of the Reagan Tokes Law notifications set forth in R.C.
2929.19(B)(2)(c). Based upon this concession, the trial court’s judgment is reversed, and
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the case is remanded to the trial court for the sole purpose of resentencing Foster in
accordance with R.C. 2929.19(B)(2)(c).
Facts and Procedural History
{¶ 2} In June 2021, a Clark County grand jury issued a 122-count indictment
involving eight individuals; Foster was one of the defendants. Following plea
negotiations, Foster pleaded guilty to engaging in a pattern of corrupt activity in violation
of R.C. 2923.32(A)(1), a first-degree felony, three counts of aggravated trafficking in drugs
in violation of R.C. 2925.03(A)(2), all second-degree felonies, and trafficking in fentanyl,
also a second-degree felony. The remaining counts involving Foster were dismissed.
The parties further agreed that two pending charges would not be presented to the grand
jury and that Foster’s prison sentence would be 18-21 years, to be served consecutively
to a prison term Foster was serving in a separate case. Finally, it was agreed that Foster
would forfeit cash in the amount of $240.
{¶ 3} Upon completing the plea hearing, the trial court immediately conducted the
sentencing hearing. The trial court imposed the agreed-upon prison term, ordered
forfeiture of the $240, and imposed a $7,500 fine on each trafficking count. The next
day, the trial court filed a judgment entry of conviction. This appeal followed.
Analysis
{¶ 4} Foster was sentenced under the Reagan Tokes Law which, at R.C.
2929.19(B)(2)(c), provides in relevant part as follows:
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[I]f the sentencing court determines at the sentencing hearing that a prison
term is necessary or required, the court shall do all of the following:
***
(c) If the prison term is a non-life felony indefinite prison term, notify the
offender of all of the following:
(i) That it is rebuttably presumed that the offender will be released from
service of the sentence on the expiration of the minimum prison term
imposed as part of the sentence or on the offender's presumptive earned
early release date, as defined in section 2967.271 of the Revised Code,
whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut the
presumption described in division (B)(2)(c)(i) of this section if, at a hearing
held under section 2967.271 of the Revised Code, the department makes
specified determinations regarding the offender's conduct while confined,
the offender's rehabilitation, the offender's threat to society, the offender's
restrictive housing, if any, while confined, and the offender's security
classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the
department at the hearing makes the specified determinations and rebuts
the presumption, the department may maintain the offender’s incarceration
after the expiration of that minimum term or after that presumptive earned
early release date for the length of time the department determines to be
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reasonable, subject to the limitation specified in section 2967.271 of the
Revised Code;
(iv) That the department may make the specified determinations and
maintain the offender's incarceration under the provisions described in
divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to
the limitation specified in section 2967.271 of the Revised Code;
(v) That if the offender has not been released prior to the expiration of the
offender's maximum prison term imposed as part of the sentence, the
offender must be released upon the expiration of that term.
{¶ 5} We have concluded that the above language requires the trial court to
provide the R.C. 2929.19(B)(2)(c) notifications at the sentencing hearing. State v.
Massie, 2d Dist. Clark No. 2020-CA-50, 2021-Ohio-3376, ¶ 22. We have further
concluded that a trial court’s failure to provide the R.C. 2929.19(B)(2)(c) advisements at
the sentencing hearing requires reversal of the judgment and a remand to the trial court
for resentencing in accordance with R.C. 2929.19(B)(2)(c). Id. at ¶ 23, 25; State v.
Thompson, 2d Dist. Clark No. 2020-CA-60, 2021-Ohio-4027, ¶ 29; State v. McMahon, 2d
Dist. Montgomery No. 29268, 2022-Ohio-2806, ¶ 14.
{¶ 6} Foster’s only assignment of error asserts that the trial court failed to provide
the R.C. 2929.19(B)(2)(c) notifications at the sentencing hearing. And, as noted, the State
concedes this error. Given this, Foster’s assignment of error will be sustained.
Conclusion
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{¶ 7} The judgment of the trial court is reversed, and the matter is remanded to the
trial court for the sole purpose of resentencing Foster consistent with R.C.
2929.19(B)(2)(c).
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WELBAUM, P.J. and EPLEY, J., concur.