State v. Slye , 2021 Ohio 1581 ( 2021 )

[Cite as State v. Slye, 2021-Ohio-1581.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
:
JOSHUA SLYE, : Case No. CT2020-0051
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2020-166
JUDGMENT: Dismissed
DATE OF JUDGMENT: May 5, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH TODD W. BARSTOW
Prosecuting Attorney 261 West Johnstown Road
Muskingum County Suite 204
Columbus, Ohio 43230
By: TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43701
Muskingum County, Case No. CT2020-0051 2
Baldwin, J.
{¶1} Defendant-appellant Joshua Slye appeals his sentence from the
Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 5, 2020, a customer later identified as appellant entered a Cricket
Wireless store. An employee of the store gave appellant an Apple iPhone 11 so that he
could read the information on the box. Appellant then walked out of the door with the
phone. When an employee ran after appellant and attempted to grab the phone, appellant
punched her with a closed fist in the arm and then the face. Appellant then took off in a
red Ford Fusion that was in the parking lot.
{¶3} Later on, Licking County Deputies were sent to an address in Newark in
reference to a suspicious male in a red Ford Fusion who was taking trash bags out of his
car and urinating on them. Detectives confirmed that the man was appellant.
{¶4} Appellant provided false information, was aggressive, and attempted to
reach into his pocket where he had knives. He was taken to the Licking County Sheriff’s
Office where his identification was verified.
{¶5} Appellant has a prior 2014 conviction for robbery, a felony of the second
degree, out of Franklin County.
{¶6} On March 18, 2020, the Muskingum County Grand Jury indicted appellant
on one count of robbery in violation of R.C. 2911.02(A)(2), a felony of the second degree,
one count of theft (less than $1,000.00) in violation of R.C. 2913.02(A)(1), a misdemeanor
of the first degree, one count of possession of criminal tools in violation of R.C.
2923.24(A), a felony of the fifth degree, and one count of aggravated robbery in violation
Muskingum County, Case No. CT2020-0051 3
of R.C. 2911.01(A)(1), a felony of the first degree. The indictment also contained two
repeat violent offender specifications. At his arraignment on August 5, 2020, appellant
entered a plea of not guilty to the charges.
{¶7} Thereafter, on October 5, 2020, appellant withdrew his former not guilty plea
and entered a plea of guilty to robbery with a repeat violent offender specification. The
remaining counts and specification were dismissed. Pursuant to an Entry filed on October
20, 2020, appellant was sentenced to a minimum prison term of eight (8) years and an
indefinite maximum prison term of twelve (12) years. The trial court also found appellant
in contempt and ordered a period of incarceration of thirty (30) days to be served
consecutively to the sentence in this case and to any other prison sentence that appellant
was serving. The trial court elected not to impose a sentence on the repeat violent
offender specification.
{¶8} Appellant now appeals, raising the following assignment of error on appeal:
{¶9} “I. THE TRIAL COURT SENTENCED APPELLANT TO INDEFINITE
TERMS OF INCARCERATION PURSUANT TO A STATUTORY SCHEME THAT
VIOLATES APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.”
I
{¶10} Appellant, in his sole assignment of error, challenges the constitutionality of
the Reagan Tokes Act, specifically R.C. 2967.271, which codified hybrid indefinite prison
terms for first- and second-degree felonies. Appellant argues that the Act violates the
separation of powers doctrine, the constitutional right to trial by jury, and due process.
{¶11} Revised Code 2967.271 provides in pertinent part:
Muskingum County, Case No. CT2020-0051 4
{¶12} (B) When an offender is sentenced to a non-life felony indefinite prison term,
there shall be a presumption that the person shall be released from service of the
sentence on the expiration of the offender's minimum prison term or on the offender's
presumptive earned early release date, whichever is earlier.
{¶13} (C) The presumption established under division (B) of this section is a
rebuttable presumption that the department of rehabilitation and correction may rebut as
provided in this division. Unless the department rebuts the presumption, the offender shall
be released from service of the sentence on the expiration of the offender's minimum
prison term or on the offender's presumptive earned early release date, whichever is
earlier. The department may rebut the presumption only if the department determines, at
a hearing, that one or more of the following applies:
{¶14} (1) Regardless of the security level in which the offender is classified at the
time of the hearing, both of the following apply:
{¶15} (a) During the offender's incarceration, the offender committed institutional
rule infractions that involved compromising the security of a state correctional institution,
compromising the safety of the staff of a state correctional institution or its inmates, or
physical harm or the threat of physical harm to the staff of a state correctional institution
or its inmates, or committed a violation of law that was not prosecuted, and the infractions
or violations demonstrate that the offender has not been rehabilitated.
{¶16} (b) The offender's behavior while incarcerated, including, but not limited to
the infractions and violations specified in division (C)(1)(a) of this section, demonstrate
that the offender continues to pose a threat to society.
Muskingum County, Case No. CT2020-0051 5
{¶17} (2) Regardless of the security level in which the offender is classified at the
time of the hearing, the offender has been placed by the department in extended
restrictive housing at any time within the year preceding the date of the hearing.
{¶18} (3) At the time of the hearing, the offender is classified by the department
as a security level three, four, or five, or at a higher security level.
{¶19} (D)(1) If the department of rehabilitation and correction, pursuant to division
(C) of this section, rebuts the presumption established under division (B) of this section,
the department may maintain the offender's incarceration in a state correctional institution
under the sentence after the expiration of the offender's minimum prison term or, for
offenders who have a presumptive earned early release date, after the offender's
presumptive earned early release date. The department may maintain the offender's
incarceration under this division for an additional period of incarceration determined by
the department. The additional period of incarceration shall be a reasonable period
determined by the department, shall be specified by the department, and shall not exceed
the offender's maximum prison term.
{¶20} (2) If the department maintains an offender's incarceration for an additional
period under division (D)(1) of this section, there shall be a presumption that the offender
shall be released on the expiration of the offender's minimum prison term plus the
additional period of incarceration specified by the department as provided under that
division or, for offenders who have a presumptive earned early release date, on the
expiration of the additional period of incarceration to be served after the offender's
presumptive earned early release date that is specified by the department as provided
under that division. The presumption is a rebuttable presumption that the department may
Muskingum County, Case No. CT2020-0051 6
rebut, but only if it conducts a hearing and makes the determinations specified in division
(C) of this section, and if the department rebuts the presumption, it may maintain the
offender's incarceration in a state correctional institution for an additional period
determined as specified in division (D)(1) of this section. Unless the department rebuts
the presumption at the hearing, the offender shall be released from service of the
sentence on the expiration of the offender's minimum prison term plus the additional
period of incarceration specified by the department or, for offenders who have a
presumptive earned early release date, on the expiration of the additional period of
incarceration to be served after the offender's presumptive earned early release date as
specified by the department.
{¶21} The provisions of this division regarding the establishment of a rebuttable
presumption, the department's rebuttal of the presumption, and the department's
maintenance of an offender's incarceration for an additional period of incarceration apply,
and may be utilized more than one time, during the remainder of the offender's
incarceration. If the offender has not been released under division (C) of this section or
this division prior to the expiration of the offender's maximum prison term imposed as part
of the offender's non-life felony indefinite prison term, the offender shall be released upon
the expiration of that maximum term.
{¶22} Appellant argues that the portions of the statute which allow the Department
of Rehabilitation and Corrections (DRC) to administratively extend his prison term beyond
his presumptive minimum prison term violate the United States and Ohio Constitutions.
Appellant, however, has not yet been subject to the application of these provisions, as he
Muskingum County, Case No. CT2020-0051 7
has not yet served his minimum term, and therefore has not been denied release at the
expiration of his minimum term of incarceration.
{¶23} This Court recently analyzed an appeal of a sentence imposed pursuant to
the Reagan Tokes Act. See State v. Downard, 5th Dist. Muskingum No. CT2019-0079,
2020-Ohio-4227 and State v. Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-
4631. The appellants in Downard and Kibler entered guilty pleas and were sentenced,
with the sentences in both cases affected by the Reagan Tokes Act. Both appellants
appealed, arguing the Reagan Tokes Act violated their constitutional rights to due process
and trial by jury.
{¶24} In both Downard and Kibler we considered the legal concept of “ripeness
for review:”
The Ohio Supreme Court discussed the concept of ripeness for
review in State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d
88, 1998-Ohio-366, 694 N.E.2d 459:
Ripeness “is peculiarly a question of timing.” Regional Rail
Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42
L.Ed.2d 320, 351. The ripeness doctrine is motivated in part by the desire
“to prevent the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative
policies * * *.” Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 148, 87
S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691. As one writer has observed:
“The basic principle of ripeness may be derived from the conclusion
that ‘judicial machinery should be conserved for problems which are real or
Muskingum County, Case No. CT2020-0051 8
present and imminent, not squandered on problems which are abstract or
hypothetical or remote.’ * * * [T]he prerequisite of ripeness is a limitation on
jurisdiction that is nevertheless basically optimistic as regards the prospects
of a day in court: the time for judicial relief is simply not yet arrived, even
though the alleged action of the defendant foretells legal injury to the
plaintiff.” Comment, Mootness and Ripeness: The Postman Always Rings
Twice (1965), 65 Colum. L.Rev. 867, 876. *4 Id. at 89, 694 N.E.2d at 460.
Downard, at ¶¶ 8-9.
{¶25} We found the appellants’ appeals of the constitutionality of the Reagan
Tokes Act were not ripe for review. “* * * [W]hile R.C. 2967.271 allows the DRC to rebut
the presumption Appellant will be released after serving his **** minimum sentence and
potentially continue his incarceration to a term not [exceeding the maximum time],
Appellant has not yet been subject to such action by the DRC, and thus the constitutional
issue is not yet ripe for our review.” Downard, at ¶ 11. We determined the appropriate
action for the appellant was “to challenge the constitutionality of the presumptive release
portions of R.C. 2967.271 is by filing a writ of habeas corpus if he is not released at the
conclusion of his eight year minimum term of incarceration.” Downard, at ¶ 12.
{¶26} We find that the issues presented in the current case are identical to those
in Downard and Kibler. On October 19, 2020, appellant was sentenced to a minimum
prison term of eight years and an indefinite prison term of twelve years. There is no
dispute that appellant has not yet been subject to R.C. 2967.271, which allows the DRC
to rebut the presumption that he will be released after serving his eight year minimum
sentence and potentially continuing his incarceration to a term not exceeding twelve
Muskingum County, Case No. CT2020-0051 9
years. The constitutional issues argued by appellant pursuant to Downard and Kibler are
not yet ripe for review. See also State v. Cochran, 5th Dist. Licking No. 2019 CA 00122,
2020-Ohio-5329 and State v. Maddox, 6th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702.
{¶27} Appellant’s appeal is, therefore, dismissed.
By: Baldwin, P.J.
Wise, John, J. concurs and
Gwin, J., dissents
Muskingum County, Case No. CT2020-0051 10
Gwin, dissents
{¶28} I respectfully dissent from the majority’s opinion concerning ripeness and
Appellant’s First of Error for the reasons set forth in my dissenting opinion in State
v. Cochran, 5th Dist., Licking No. 2019-Ohio-122. Accord, State v. Wilburn, 8th
Dist. Cuyahoga No. 109507, 2021-Ohio-578.
{¶29} I further note that the Ohio Supreme Court has accepted a certified conflict
on the issue of whether the constitutionally of the Reagan Tokes Act is ripe for review
on direct appeal or only after the defendant has served the minimum term and been
subject to extension by application of the Act. See, State v. Maddox, 6th Dist. Lucas
No. L-19- 1253, 2020-Ohio-4702, order to certify conflict allowed, State v. Maddox, 160
Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150(Table) The conflict cases are
State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592; State v. Ferguson, 2d
Dist. Montgomery No. 28644, 2020-Ohio-4153; State v. Barnes, 2d Dist. Montgomery
No. 28613, 2020- Ohio-4150; and State v. Guyton, 12th Dist. Butler No. CA2019-12-
203, 2020-Ohio-3837; See also, State v. Downard, 5th Dist. Muskingum No. CT2019-
0079, 2020-Ohio-4227, appeal accepted on Appellant’s Proposition of Law No. II,
State v. Downard, 160 Ohio St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1507(Table)(Sua sponte, cause held for the decision in 2020-1266, State v. Maddox).