State v. Dennison , 2022 Ohio 1961 ( 2022 )

[Cite as State v. Dennison, 2022-Ohio-1961.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-42
:
v. : Trial Court Case No. 2021-CR-148
:
CHANCE CHRISTOPHER DENNISON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 10th day of June, 2022.
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SAMANTHA B. WHETHERHOLT, Atty. Reg. No. 0092010, Assistant Prosecuting
Attorney, Champaign County Prosecutor’s Office, Appellate Division, 200 North Main
Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
GLENDA A. SMITH, Atty. Reg. No. 0070738, P.O. Box 15353, Wyoming, Ohio 45215
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Chance Christopher Dennison appeals from his conviction, following guilty
pleas, to one count of rape in violation of R.C. 2907.02(A)(1)(c)(B), a felony of the first
degree (Count 1), and one count of pandering sexually oriented matter involving a minor
or impaired person in violation of R.C.2907.322(A)(1)(C), a felony of the second degree
(Count 4). The court imposed a mandatory minimum term of eight years and a maximum
term of 12 years on Count 1, and a minimum term of four years and a maximum term of
six years on Count 4, to be served consecutively, for an aggregate sentence of 12 to 16
years. We affirm the judgment of the trial court.
{¶ 2} After initially being charged by way of complaint in Champaign County
Municipal Court, Dennison was bound over and indicted in the Champaign County Court
of Common Pleas on the above offenses, as well as additional charges of rape, gross
sexual imposition, pandering sexually oriented matter involving a minor or impaired
person, and possessing criminal tools. After initially pleading not guilty, on September
27, 2021, Dennison entered pleas of guilty to Counts 1 and 4, in exchange for which the
other charges were dismissed.
{¶ 3} At the plea hearing, the trial court explained at length the potential sentences
Dennison faced and the concept of indefinite sentencing, including how the minimum and
maximum sentence would be determined under the Reagan Tokes Law, with examples.
It also explained that both of the offenses to which Dennison was pleading guilty carried
the potential for an indefinite sentence, but that if he were convicted of both, the indefinite
sentence would only be imposed on the more serious offense. The court described the
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potential sentences in detail, including that his “total maximum sentence, worst case
scenario, [was] 19 years to 24 and a half years.” Dennison indicated that he understood
the court’s explanations and the potential sentences.
{¶ 4} The judgment entry of conviction states that, at the time of the offenses,
Dennison was on probation in Champaign County M.C. Case No. 2021 TRC 511 for
operating a vehicle while under the influence (OVI), and in Case No. 2021 CRB 295 for
possession of marijuana. He was also on bond or personal recognizance in Champaign
C.P. Case No. 2021-CR-118 for: having weapons while under disability, a felony of the
third degree; possession of marijuana, a minor misdemeanor; illegal use or possession
of marijuana drug paraphernalia, a minor misdemeanor; and failure to comply with
underage alcohol laws, a misdemeanor of the first degree.
{¶ 5} The court also stated that it had considered the recidivism factors in R.C.
2929.12. Specifically, it stated:
Upon evaluation of the above factors set forth in R.C. 2929.12, the Court
finds that, notwithstanding the mandatory requirement for imprisonment on
Count One, the Court finds that a term of imprisonment is consistent with
R.C. 2929.11 * * * to wit:
●Defendant was attending an underage gathering of teenage girls
consuming alcohol at his neighbor’s house, while he was on probation for a
marijuana offense and on bond for an alcohol and marijuana offense, when
he elected to subsequently enter the room of the intoxicated and sleeping
teenage victim and not only have vaginal intercourse with her without her
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consent, but photograph and disseminate a picture of his fingers on her
vagina.
●Defendant’s dissemination of the photograph demonstrates a cruel and
calculated trophy of Defendant’s conquest that had the potential for long
lasting psychological impact upon the Victim if it was shared on social
media.
●Prior to the sexual assault of the Victim, the Defendant smoked marijuana
with an eighteen year old female.
***
●Defendant engaged in the sexual assault to ejaculation without a condom,
thereby posing a risk to the physical health of the Victim.
●In a companion case that was unrelated to the fact pattern in the case at
bar and which was dismissed as part of the plea agreement, the Defendant
possessed marijuana and alcohol and a firearm approximately 1.5 months
after being placed on probation for OVI and Possession of Marijuana in
Champaign County Municipal Court and approximately six months after
completing a juvenile delinquency residential rehabilitation program for an
adjudication of Felonious Assault, a felony of the second degree.
●Defendant lacks insight as to why he treated the female victim as he did,
suggesting to the Court that the Defendant poses a danger of committing
similar offenses against female victims.
●Defendant shows no genuine remorse for the offense.
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●Defendant failed to follow multiple Court orders to abide by conditions of
probation, bond, and pre-sentence investigation, suggesting to the Court
that the Defendant will not respond favorably to sanctions imposed for his
committed offenses.
{¶ 6} The court made the requisite findings for the imposition of consecutive
sentences. The court also explained that it was “rebuttably presumed” that Dennison
would be released at the expiration of the minimum sentence imposed, but that the Ohio
Department of Rehabilitation and Correction (ODRC) may rebut the presumption at a
hearing on several specific bases, such that he would serve more than the minimum
sentence, but mot more than the maximum sentence.
{¶ 7} Dennison appeals from his conviction, challenging his sentence. He raises
three assignments of error. His first assignment of error states:
THE TRIAL COURT ERRED IN NOT COMPLYNG WITH THE
RECIDIVISM FACTORS.
{¶ 8} Dennison asserts that the trial court erred in finding that there “were not
substantial grounds to mitigate Dennison’s conduct,” citing R.C. 2929.12. Dennison
asserts that the trial court did not adequately consider his youth, his mental health, and
his “prior very minor, typical, short-lived criminal behavior” in sentencing him.
{¶ 9} In State v. Litteral, 2d Dist. Clark No. 2021-CA-10, 2022-Ohio-1187, we
recently stated:
When reviewing felony sentences, appellate courts must apply the
standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146
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Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under that statute,
an appellate court may increase, reduce, or modify a sentence, or it may
vacate the sentence and remand for resentencing, only if it clearly and
convincingly finds either: (1) the record does not support the sentencing
court's findings under certain statutes; or (2) the sentence is otherwise
contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).
To the extent that Litteral seeks to have this Court modify his
sentence, we emphasize that the Supreme Court of Ohio has clarified an
appellate court's review of a felony sentence under R.C. 2953.08(G)(2).
State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39.
The Supreme Court determined that R.C. 2953.08(G)(2)(a) “clearly does
not provide a basis for an appellate court to modify or vacate a sentence if
it concludes that the record does not support the sentence under R.C.
2929.11 and R.C. 2929.12 because * * * R.C. 2929.11 and R.C. 2929.12
are not among the statutes listed in the provision.” Id. at ¶ 31. Thus, the
Supreme Court concluded that an appellate court may not modify or vacate
a felony sentence based upon a finding by clear and convincing evidence
that the record does not support the trial court's “findings” under R.C.
2929.11 and R.C 2929.12. Id. at ¶ 42 (“Nothing in R.C. 2953.08(G)(2)
permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the
sentence that best reflects compliance with R.C. 2929.11 and 2929.12.”).
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In Jones, the Supreme Court also confirmed that R.C.
2953.08(G)(2)(b) does not provide a mechanism for an appellate court to
modify or vacate a felony sentence based upon a finding that the sentence
is “contrary to law” because it clearly and convincingly is not supported by
the record under R.C. 2929.11 and R.C. 2929.12. Id. at ¶ 32-39. “As a
result of the Supreme Court's holding in Jones, when reviewing felony
sentences that are imposed solely after considering the factors in R.C.
2929.11 and R.C. 2929.12, we shall no longer analyze whether those
sentences are unsupported by the record. We simply must determine
whether those sentences are contrary to law.” State v. Dorsey, 2d Dist.
Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A sentence is contrary to
law when it does not fall within the statutory range for the offense or if the
trial court fails to consider the purposes and principles of felony sentencing
set forth in R.C. 2929.11 and the sentencing factors set forth in R.C.
2929.12.” Id., citing State v. Brown, 2017-Ohio 8416, 99 N.E.3d 1135 (2d
Dist.).
Id. at ¶ 20-22.
{¶ 10} Contrary to Dennison’s assertion, the trial court’s judgment clearly reflects
that it considered the factors set forth in R.C. 2929.12. Based upon the Ohio Supreme
Court’s holding in Jones, Dennison’s first assignment of error lacks merit, and it is
overruled.
{¶ 11} We will consider Dennison’s second and third assignments of error
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together. They are as follows:
THE TRIAL COURT ERRED IN VIOLATING STATUTE AND DUE
PROCESS RIGHTS DURING SENTENCING.
THE TRIAL COURT ERRED IN APPLYING THE REAGAN TOKES
ACT TO SENTENCING BECAUSE IT VIOLATES A SEPARATION OF
POWERS.
{¶ 12} In his second assignment of error, Dennison asserts that an indefinite
sentence violated his “statutory rights to appeal, right to trial by jury, right to counsel and
due process rights.” In his third assignment of error, he asserts that the trial court
violated the Separation of Powers doctrine when it delegated its sentencing authority to
the ODRC pursuant to the Reagan Tokes Act. Dennison asserts that, pursuant to Article
III of the United States Constitution, the trial court should have refused to apply the
Reagan Tokes Law.
{¶ 13} We have discussed the Reagan Tokes Act as follows:
On March 22, 2019, the Reagan Tokes Law (S.B. 201) became
effective in Ohio. This law requires sentencing courts to impose indefinite
prison sentences for felonies of the first or second degree that are
committed on or after the law's effective date. The law specifies that the
indefinite sentences will consist of a minimum term selected by the
sentencing judge from a range of terms set forth in R.C. 2929.14(A), and a
maximum term determined by formulas set forth in R.C. 2929.144. The
law also establishes a presumption that the offender will be released at the
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end of the minimum term. R.C. 2967.271(B). The Ohio Department of
Rehabilitation and Correction (“ODRC”), however, may rebut that
presumption. R.C. 2967.271(C). In order to rebut the presumption for
release at the end of the minimum term, the ODRC must conduct a hearing
and determine whether certain statutory factors are applicable. R.C.
2967.271(C)(1), (2) and (3). If the presumption is rebutted, the ODRC may
maintain the offender's incarceration beyond the minimum term for a
reasonable period of time not to exceed the maximum term imposed by the
sentencing judge. R.C. 2967.271(D).
State v. Massie, 2d Dist. Clark No. 2020-CA-50, 2021-Ohio-3376, ¶ 6.
{¶ 14} Thus, under the Reagan Tokes Act, Dennison is presumed to be entitled to
release after serving 12 years of his sentence, but the ODRC may rebut that presumption
and hold him in prison for 16 years, the full maximum term.
{¶ 15} In State v. Thompson, 2d Dist. Clark No. 2020-CA-60, 2021-Ohio-4027, we
addressed the arguments that the Reagan Tokes Act violates the separation of powers
doctrine and due process, and that it violates the right to a trial by jury. We noted that
we had previously found the law to be constitutional. Thompson at ¶ 18, citing State v.
Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, State v. Leet, 2d Dist.
Montgomery No. 28670, 2020-Ohio-4592, and State v. Ferguson, 2d Dist. Montgomery
No. 28644, 2020-Ohio-4153.
{¶ 16} In Leet, which also involved guilty pleas, we stated:
In order to satisfy due process, a defendant's guilty plea must be
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knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 243,
89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Nero, 56 Ohio St.3d 106,
107, 564 N.E.2d 474 (1990). A trial court's compliance with Crim.R. 11
“ensures that a plea meets this constitutional mandate.” State v.
Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211, ¶ 5, citing
State v. Cole, 2d Dist. Montgomery No. 26122, 2015-Ohio-3793, ¶ 12.
Leet's due process argument implicates Crim.R. 11(C)(2)(a) which, among
other things, requires the trial court at the plea hearing to determine the
defendant's understanding of the maximum penalty involved. The trial
court's careful advisement of the maximum penalty Leet faced under
Reagan Tokes, and Leet's acknowledgement that he understood the
maximum penalty discussion, more than satisfied due process.
Id. at ¶ 21.
{¶ 17} As in Leet, we conclude that the trial court satisfied due process at the plea
hearing. The court carefully advised Dennison that he was subject to an indefinite
sentence and of the maximum penalty he faced under the Reagan Tokes Law, and
Dennison acknowledged his understanding.
{¶ 18} In State v. Compton, 2d Dist. Montgomery No. 28912, 2021-Ohio-1513,
¶ 11, we noted:
We recently considered the constitutionality of the Reagan Tokes
Law in State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153and concluded that it does not violate the separation-of-powers doctrine.
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We reached this conclusion because we found that the Law's scheme is
consistent with established authority from the Supreme Court of Ohio, which
held that “when the power to sanction is delegated to the executive branch,
a separation-of-powers problem is avoided if the sanction is originally
imposed by a court and included in its sentence.” Ferguson at ¶ 23, citing
Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301,
¶ 18-20, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817
N.E.2d 864, ¶ 19, citing Woods v. Telb, 89 Ohio St.3d 504, 512-513, 733
N.E.2d 1103 (2000).
{¶ 19} Dennison’s minimum and maximum terms were imposed by the trial court,
and since the Reagan Tokes Law does not allow the ODRC to lengthen an offender’s
sentence beyond the maximum sentence imposed by the trial court, we once again hold
that the Law does not violate the separation-of-powers doctrine. See Compton at ¶ 12,
citing Ferguson at ¶ 23, and Barnes at ¶ 36.
{¶ 20} We further addressed due process in the context of an ODRC hearing in
Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, as follows:
“[T]he fundamental requisite of due process of law is the opportunity
to be heard in a meaningful time and in a meaningful manner.” Woods [v.
Telb, 89 Ohio St.3d 504, 513, 733 N.E.2d 1103 (2000)] citing Goldberg v.
Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The
Reagan Tokes Law satisfies these requirements. The Law states that, in
order to rebut the presumption of the minimum term, the [O]DRC must make
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a particular statutory determination “at a hearing.” R.C. 2967.271(C) and
(D). The Law does not give the [O]DRC unfettered discretion to require an
offender to serve more than the minimum term. And it affords an offender
notice and an opportunity to be heard before more than the minimum may
be required.
Ferguson at ¶ 25.
{¶ 21} In Compton, we noted that Compton suggested that “when undergoing a
hearing pursuant to R.C. 2967.271(C), an offender should be entitled to due process
rights that are associated with criminal trials.” Id. at ¶ 16. We rejected this argument,
stating:
* * * “[T]he fact that prisoners retain rights under the Due Process
Clause in no way implies that these rights are not subject to restrictions
imposed by the nature of the regime to which they have been lawfully
committed.” (Citations omitted.) Wolff v. McDonnell, 418 U.S. 539, 556,
94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). For example, “[p]rison disciplinary
proceedings are not part of a criminal prosecution, and the full panoply of
rights due a defendant in such proceedings does not apply.” Id.This court has noted that “[r]equiring a defendant to remain in prison
beyond the presumptive minimum term is akin to the decision to grant or
deny parole[.]” Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, at
¶ 17. “In the context of parole proceedings, the United States Supreme
Court has held that the required due process procedures are minimal.
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Specifically, the court has found that a prisoner subject to parole receives
adequate due process when he is allowed an opportunity to be heard and
is provided a statement of the reasons why parole was denied.” Wilburn
at ¶ 30, citing Swarthout v. Cooke, 562 U.S. 216, 220, 131 S.Ct. 859, 178
L.Ed.2d 732 (2011), citing Greenholtz v. Inmates of Nebraska Penal & Corr.
Complex, 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). “ ‘The
Constitution * * * does not require more.’ ” Id., quoting Swarthout at 220.
Because the procedures employed under the Reagan Tokes Law
provide for notice of a hearing at which an offender has an opportunity to
be heard, and because the Reagan Tokes Law does not give the ODRC
unfettered discretion to decide when an offender must serve more than the
minimum term, we once again hold that the Law does not violate an
offender's right to due process.
Id. at ¶ 16-18.
{¶ 22} Based upon the foregoing, we cannot conclude that the trial court violated
Dennison’s right to appeal, right to counsel, right to trial by jury, right to due process, or
the separation of powers in imposing an indefinite sentence pursuant to the Reagan
Tokes Law. His second and third assignments of error are accordingly overruled.
{¶ 23} Having overruled all of Dennison’s assigned errors, the judgment of the trial
court is affirmed.
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EPLEY, J. and LEWIS, J., concur.
Copies sent to:
Samantha B. Whetherholt
Glenda A. Smith
Hon. Nick A. Selvaggio