State v. Eitzman , 2022 Ohio 574 ( 2022 )


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  • [Cite as State v. Eitzman, 
    2022-Ohio-574
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    HENRY COUNTY
    STATE OF OHIO,
    CASE NO. 7-21-03
    PLAINTIFF-APPELLEE,
    v.
    GARY L. EITZMAN,                                        OPINION
    DEFENDANT-APPELLANT.
    Appeal from Henry County Common Pleas Court
    Trial Court No. 19 CR 0177
    Judgment Affirmed in Part, Reversed in Part and Cause Remanded
    Date of Decision: February 28, 2022
    APPEARANCES:
    Nathan VanDenBerghe for Appellant
    Gwen Howe-Gebers for Appellee
    Case No. 7-21-03
    WILLAMOWSKI, J.
    {¶1} Defendant-appellant Gary L. Eitzman (“Eitzman”) appeals the
    judgment of the Henry County Court of Common Pleas, arguing that his conviction
    is not supported by sufficient evidence; that his conviction is against the manifest
    weight of the evidence; that the trial court committed an error at sentencing; and
    that the Reagan Tokes Law is unconstitutional. For the reasons set forth below, the
    judgment of the trial court is affirmed in part and reversed in part.
    Facts and Procedural History
    {¶2} On October 20, 2019, Grant Adkins (“Adkins”) was going eastbound
    on State Route 65 in his pickup truck. Tr. 8. As he was driving, he saw a blue SUV
    in his mirror that was approaching his vehicle very quickly from behind. Tr. 9, 10.
    Adkins testified that the SUV “was right on my bumper” and “was so close I could
    see the person driving in my rearview mirror, I could see their face * * *.” Tr. 9.
    At this time, there was a car in front of Adkins. Tr. 32, 43. He also did not believe
    that he had space to pull over on the right side of the road to let this SUV pass him.
    Tr. 29. For this reason, he looked to see if there was any oncoming traffic in the
    left lane of the roadway. Tr. 26.
    {¶3} After he determined that there was no oncoming traffic, Adkins began
    pulling into the left lane to allow the SUV to pass him. Tr. 10. However, Adkins
    said, “as soon as I get over and start to slow down, I felt like I was rammed off the
    road. I had no control, my airbags deployed, I didn’t know what was going on, next
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    thing I knew I am through the ditch and out in the field.” Tr. 10. Adkins then got
    back onto the roadway and passed the car that had been in front of him at the time
    of the collision. Tr. 10-11, 49, 62-63. He then pulled into a driveway and waved
    down the driver of that car, Lora Pittman (“Pittman”). Tr. 32, 49, 63.
    {¶4} Pittman pulled into the driveway and let Adkins use her cell phone to
    call 9-1-1. Tr. 32-33, 49. While Adkins was on the phone, the blue SUV drove past
    Pittman and Adkins. Tr. 11, 37, 63. At this point, Adkins “was able to get the plate
    number” of the blue SUV. Tr. 11. He testified that he did not know where the blue
    SUV had been in between the collision and passing him while he was standing on
    the driveway. Tr. 44-45.
    {¶5} Deputy Joshua Cluley (“Deputy Cluley”), who worked for the Henry
    County Sheriff’s Office, responded to Adkins’s 9-1-1 call. Tr. 67-68. After he
    arrived at the scene, he took statements from Adkins and Pittman about the incident.
    Tr. 94, 101. He also took several pictures of the skid marks on the roadway. Ex. 2.
    Adkins gave Deputy Cluley the license plate number of the blue SUV. Tr. 70. This
    license plate number was registered to Eitzman. Tr. 70. Deputy Cluley went to the
    address listed on his vehicle registration, but “it appeared that no one was currently
    living at that residence.” Tr. 71.
    {¶6} However, Deputy Mark Glanz (“Deputy Glanz”) was later brought into
    this investigation and discovered the address where Eitzman was living. Tr. 118.
    When he went to this address, Eitzman’s girlfriend was home. Tr. 119. Behind this
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    house was an attached garage. Tr. 119. Eitzman’s girlfriend opened the garage door
    for Deputy Glanz. Tr. 119-120. Inside was a blue SUV. Tr. 119. Ex. 3. Deputy
    Glanz observed that the vehicle had a “[h]eavily damaged front corner * * *.” Tr.
    121. Further, he also saw that the bumper, front tire, and driver’s side door of the
    vehicle were damaged. Tr. 122.
    {¶7} On January 29, 2020, Eitzman was indicted on one count of felonious
    assault with a deadly weapon in violation of R.C. 2903.11(A)(2), a felony of the
    second degree. Doc. 2. On March 2, 2021, a bench trial was held on the charge
    against Eitzman. Doc. 43. After considering the evidence presented, the trial court
    found Eitzman guilty of the charge of felonious assault with a deadly weapon. Doc.
    43. At a sentencing hearing on May 25, 2021, the trial court, pursuant to the Reagan
    Tokes Law, ordered Eitzman to serve an indefinite prison sentence with a four-year
    minimum term and a six-year maximum term. Sentencing Tr. 11. The trial court
    issued its judgment entry of sentencing on May 26, 2021. Doc. 46.
    {¶8} Eitzman filed his notice of appeal on June 11, 2021. Doc. 49. On
    appeal, he raises the following five assignments of error:
    First Assignment of Error
    The evidence presented at Appellant’s trial was insufficient to
    support the conviction.
    Second Assignment of Error
    The Court’s finding of guilty was against the manifest weight of
    the evidence.
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    Third Assignment of Error
    The Trial Court erred when it stated at the Sentencing Hearing
    that Appellant’s sentence is a mandatory sentence and that
    Appellant is not eligible for judicial release.
    Fourth Assignment of Error
    The Trial Court erred when it stated in its Sentencing Journal
    Entry that Appellant is not eligible for earned credit under R.C.
    2967.193.
    Fifth Assignment of Error
    The Reagan Tokes Act is an unconstitutional Violation of Due
    Process.
    First Assignment of Error
    {¶9} Eitzman argues that his conviction for felonious assault with a deadly
    weapon was not supported by sufficient evidence.
    Legal Standard
    {¶10} A challenge to the sufficiency of the evidence supporting a conviction
    “is a question of law and a ‘test of adequacy rather than credibility or weight of the
    evidence.’” State v. Beaver, 3d Dist. Marion No. 9-17-37, 
    2018-Ohio-2438
    , ¶ 40,
    quoting State v. Berry, 3d Dist. Defiance No. 4-12-03, 
    2013-Ohio-2380
    , ¶ 19. “The
    sufficiency-of-the-evidence analysis addresses the question of whether adequate
    evidence was produced for the case to be considered by the trier of fact and, thus,
    whether the evidence was ‘legally sufficient to support the verdict * * *.’” State v.
    Luebrecht, 3d Dist. Putnam No. 12-18-02, 
    2019-Ohio-1573
    , ¶ 36, quoting State v.
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    Worthington, 3d Dist. Hardin No. 6-15-04, 
    2016-Ohio-530
    , ¶ 12. On appeal, the
    applicable standard
    is whether, after viewing the evidence in the light most favorable
    to the prosecution, any rational trier of fact could have found that
    the essential elements of the crime were proven beyond a
    reasonable doubt.
    State v. Brown, 3d Dist. Hancock No. 5-17-19, 
    2018-Ohio-899
    , ¶ 27, quoting State
    v. Plott, 
    2017-Ohio-38
    , 
    80 N.E.3d 1108
    , ¶ 62 (3d Dist.).
    {¶11} To establish a conviction for the offense of felonious assault in
    violation of R.C. 2903.11(A)(2), the State must prove that the offender “[1]
    knowingly * * * [2] cause[d] or attempt[ed] to cause physical harm to another * * *
    [3] by means of a deadly weapon or dangerous ordinance.” R.C. 2903.11(A)(2).
    A person acts knowingly, regardless of purpose, when the person
    is aware that the person’s conduct will probably cause a certain
    result or will probably be of a certain nature.
    R.C. 2901.22(B). R.C. 2923.11(A) defines a “deadly weapon” as “any instrument,
    device, or thing capable of inflicting death, and designed or specially adapted for
    use as a weapon, or possessed, carried, or used as a weapon.” R.C. 2923.11(A). See
    R.C. 2903.11(E)(1). R.C. 2903.11(D)(4) indicates that a motor vehicle can be used
    as a deadly weapon. R.C. 2903.11(D)(4). See R.C. 2903.11(E)(2).
    Legal Analysis
    {¶12} On appeal, Eitzman argues that the State failed to establish that he
    knowingly attempted to cause physical harm to Adkins. At trial, Adkins said,
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    I looked in my mirror, I saw it [the SUV] coming up and then the
    next thing I knew it was right on my bumper and there was [a]
    short period of time there where it would back off, come back up,
    back off, come back up.
    Tr. 9. He testified that the blue SUV was so close to his pickup truck that he could
    see the driver’s face in his mirror. Tr. 9. The driver “was throwing his hands up in
    the air, shaking, it seems like he was in a rush.” Tr. 11, 38. He then said,
    It got to a point where I wasn’t very comfortable having a car this
    close to me, I thought something was going to happen, there was
    someone in front of me, I was following somebody, I had nowhere
    to go, so, there weren’t any cars coming so I wanted to just get off
    the road or get somewhere where I could let this car by and get
    on with our day, so I got into the oncoming lane * * *.
    Tr. 9. Adkins explained that there was not enough room for him to pull off on the
    right side of the road to let the blue SUV pass him. Tr. 9-10, 29.
    {¶13} While he did not see the blue SUV at the time of the collision, Adkins
    said, “[i]t was a pretty big impact, I mean, it was intense, it was * * * hard.” Tr. 39.
    He indicated that the blue SUV did not merely “swipe” his vehicle. Tr. 39-40. He
    stated that the collision was forceful enough to deploy his airbags and push him off
    the roadway. Tr. 10. Adkins further testified that he had been driving at roughly
    fifty-five miles per hour shortly before the collision, though he was not sure how
    fast he was going at the time of the collision. Tr. 16-17, 27. Using several pictures
    introduced by the State at trial, he also identified Eitzman’s vehicle as the blue SUV
    that struck his pickup truck. Tr. 15. Ex. 3.
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    {¶14} At trial, the prosecutor inquired into what Pittman had observed in her
    rearview mirror:
    Ms. Pittman: I was being followed by a pickup truck, I thought it
    was a little close but not too concerning, and then as the road
    curves I see there was an SUV * * * that was even closer to him
    than he [the pickup] was to me and I kind of kept an eye on it.
    ***
    As we proceeded closer to the Damascus bridge, I saw the truck
    that was right behind me, he pulled over into the left lane,
    oncoming traffic, and I thought, well that’s a little dangerous, you
    know he could get hit.
    [Prosecutor]: Did you see any oncoming traffic?
    Ms. Pittman: No I didn’t, but the vehicle behind him kind of sped
    up like he was going to pass, but then he made a turn, a left turn
    into the truck.
    [Prosecutor]: Okay, so it wasn’t just a swipe, you describe it as a
    left turn into the truck?
    Ms. Pittman: Yes, because it was a sharp enough turn, I thought
    maybe the vehicle, which turned out to be a SUV * * *, could have
    possibly rolled over, to me I thought it was that sharp.
    Tr. 47-48. The State introduced several pictures of Eitzman’s blue SUV at trial. Ex.
    3. Pittman identified the blue SUV in these pictures as the vehicle she saw collide
    with Adkin’s pickup truck. Tr. 50.
    {¶15} Deputy Cluley testified that Eitzman never contacted the police to
    report that he had been involved in a collision. Tr. 71. Rather, Deputy Glanz’s
    testimony indicates that he had to conduct an investigation to locate Eitzman. Tr.
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    117-119. He stated that, once he located Eitzman’s residence, the blue SUV was
    not “out in the open” but was inside “an attached garage * * * at the back side of the
    residence * * * with the garage door closed.” Tr. 119.
    {¶16} Further, Deputy Glanz noted that “the passenger side door of Mr.
    Adkins[’s] vehicle * * * ha[d] a substantial caving in on the door.” Tr. 128. Having
    examined the damage done to both of these vehicles, he then stated the following:
    My experience with handling traffic cases is that you don’t get
    that type of a caving in unless it is more of a direct impact, if it
    was more of a side swipe there would be straight damage all the
    way down the side, I believe by looking at that and Mr. Eitzman’s
    vehicle, the front driver side corner * * * of Mr. Eitzman’s vehicle
    came into the passenger door of Mr. Adkins.
    Tr. 128-129. The State introduced pictures of two sets of skid marks on the roadway
    at the area where the collision occurred. Ex. 2. Deputy Glanz testified that the pair
    of skid marks on the right side of the roadway, which would have been made by the
    blue SUV, did not appear to go gradually into the left lane towards the other set of
    skid marks. Tr. 134.
    {¶17} Thus, the State produced evidence that Eitzman appeared frustrated
    while he was driving; turned his vehicle directly into Adkins’s pickup truck; and
    was driving his motor vehicle at a relatively high rate of speed at the time of the
    collision. Having reviewed the evidence in a light most favorable to the prosecution,
    we conclude that a rational trier of fact could determine that Eitzman knowingly
    attempted to cause physical harm to Adkins. Eitzman has not demonstrated that his
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    conviction is not supported by sufficient evidence.        For this reason, his first
    assignment of error is overruled.
    Second Assignment of Error
    {¶18} Eitzman argues that his conviction for felonious assault is against the
    manifest weight of the evidence.
    Legal Standard
    {¶19} “When ‘deciding whether a conviction is against the manifest weight
    of the evidence, an appellate court determines whether the state has appropriately
    carried its burden of persuasion.’” Brown, 
    2018-Ohio-899
    , supra, at ¶ 8, quoting
    State v. Blanton, 
    121 Ohio App.3d 162
    , 169, 
    699 N.E.2d 136
     (3d Dist. 1997). “In a
    manifest weight analysis, ‘the appellate court sits as a “thirteenth juror” * * *.’”
    State v. Davis, 3d Dist. Seneca No. 13-16-30, 
    2017-Ohio-2916
    , ¶ 17, quoting State
    v. Thompkins, 
    78 Ohio St.3d 380
    , 387, 
    1997-Ohio-52
    , 
    678 N.E.2d 541
    , 546-547
    (1997). Appellate courts “must review the entire record, weigh the evidence and all
    of the reasonable inferences, consider the credibility of witnesses, and determine
    whether in resolving conflicts in the evidence, the factfinder ‘clearly lost its way
    and created such a manifest miscarriage of justice that the conviction must be
    reversed and a new trial ordered.’” State v. Brentlinger, 
    2017-Ohio-2588
    , 
    90 N.E.3d 200
    , ¶ 36 (3d Dist.), quoting Thompkins at 387.
    {¶20} “A reviewing court must, however, allow the trier of fact appropriate
    discretion on matters relating to the weight of the evidence and the credibility of the
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    witnesses.” State v. Sullivan, 
    2017-Ohio-8937
    , 
    102 N.E.3d 86
    , ¶ 38 (3d Dist.),
    quoting State v. Coleman, 3d Dist. Allen No. 1-13-53, 
    2014-Ohio-5320
    , ¶ 7. “[I]t
    is well established that the * * * credibility of the witnesses [is] primarily a matter
    for the trier of fact.” State v. Gervin, 
    2016-Ohio-8399
    , 
    79 N.E.3d 59
    , ¶ 142 (3d
    Dist.), quoting State v. Clark, 
    101 Ohio App.3d 389
    , 409, 
    655 N.E.2d 795
     (8th Dist.
    1995). “Only in exceptional cases, where the evidence ‘weighs heavily against the
    conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
    Little, 
    2016-Ohio-8398
    , 
    78 N.E.3d 323
    , ¶ 27 (3d Dist.), quoting State v. Hunter, 
    131 Ohio St.3d 67
    , 
    2011-Ohio-6524
    , 
    960 N.E.2d 955
    , ¶ 119.
    Legal Analysis
    {¶21} On cross-examination at trial, Adkins could not remember if he had
    activated his turn signal when he began to change lanes. Tr. 30. He also stated that
    he did not see the blue SUV when the collision occurred because he was looking in
    the other direction. Tr. 26, 30, 35. When shown pictures of the skid marks in the
    roadway, he affirmed that it appeared that Eitzman drove in a “sweeping motion
    from the right” but said that he did not believe that the collision occurred because
    he (Adkins) had moved into the left lane on the roadway. Tr. 27, 29.
    {¶22} He also affirmed that he had not interacted with Eitzman previously;
    that he could not recall any other noteworthy occurrence leading up to the collision;
    and that he did not know why someone would try to intentionally hurt him. Tr. 18,
    34-35. However, he had informed the 9-1-1 dispatcher that he had been run off of
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    the road intentionally. Tr. 34. Finally, he said that he could not explain why the
    blue SUV went past the driveway where he was standing several minutes after the
    collision because he did not see where the blue SUV had gone after the collision
    had occurred. Tr. 44-45.
    {¶23} When questioning Pittman, defense counsel noted that the rearview
    window of Adkins’s pickup truck was tinted. Tr. 52. He then inquired into how
    she could see the blue SUV behind Adkins’s vehicle. Tr. 53-55. She explained that
    she went through several curves in the roadway that allowed her to see that two
    vehicles were behind her and that these two vehicles were close together. Tr. 55.
    She further stated that Adkins “was already in the other [left] lane” when the
    collision occurred, though she admitted that the “tail end and back tire” of Adkins’s
    vehicle may not have been entirely in the left lane at that point. Tr. 62.
    {¶24} Pittman also testified that, after the collision, she pulled into a
    driveway next to Adkins. Tr. 63. She stated that Adkins did not indicate that he
    was injured in the collision but noted that he looked “shooken up.” Tr. 64. While
    they were standing on the driveway, she observed the blue SUV drive past them on
    the roadway but said the vehicle was not going particularly fast. Tr. 63-64. Pittman
    testified that she had never met Eitzman or Adkins prior to this incident. Tr. 65.
    {¶25} Deputy Cluley testified that he spent thirty-eight minutes at the scene
    of the accident, investigating the incident and compiling information for his crash
    report. Tr. 110. Ex. A. His report stated that Adkins’s vehicle was struck at an
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    angle rather than having been sideswiped; that Adkins committed a lane violation;
    and that this lane violation was part of a sequence of events that contributed to the
    collision. Tr. 83-84, 89, 91. Ex. A. However, the narrative portion of his report
    also stated that Adkins indicated that the blue SUV “intentionally rammed” his
    vehicle. Tr. 94. On redirect, he testified that nothing in his investigation indicated
    that Pittman was not telling the truth about the incident. Tr. 113.
    {¶26} Deputy Glanz admitted that he did not know where Eitzman’s vehicle
    had been in between the incident and the time at which he located the vehicle. Tr.
    132-133. He also testified that he does not have training in accident reconstruction
    but did have seventeen years of experience in responding to traffic accidents. Tr.
    135, 146, 151.     He stated that, in his investigation, he did not uncover any
    preexisting incident that would have motivated Eitzman to ram Adkins’s vehicle.
    Tr. 144. Deputy Glanz further testified that the damage to the vehicles, the skid
    marks, Pittman’s statements, and Adkins’s statements all fit together. Tr. 128, 149.
    {¶27} Having reviewed the evidence in the record on the basis of its weight
    and credibility, we conclude that Eitzman has not demonstrated that his conviction
    for felonious assault is against the manifest weight of the evidence. For this reason,
    his second assignment of error is overruled.
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    Third Assignment of Error
    {¶28} Eitzman argues that the trial court erred by stating, at his sentencing
    hearing, that he had a mandatory sentence and would not be eligible for judicial
    release.
    Legal Standard
    {¶29} As a general matter, trial courts have broad discretion in imposing
    sentences. State v. Purvis, 3d Dist. Marion No. 9-20-29, 
    2021-Ohio-265
    , ¶ 9.
    However, “[w]hen reviewing felony sentences, appellate courts must apply the
    standard of review set forth in R.C. 2953.08(G)(2).” State v. Delong, 2d Dist. Clark
    Nos. 2021-CA-32, 2021-CA-33, 
    2022-Ohio-207
    , ¶ 8, quoting State v. Houston, 2d
    Dist. Montgomery No. 29114, 
    2021-Ohio-3374
    , ¶ 6.
    If the defendant establishes by clear and convincing evidence that
    his or her sentence is ‘(1) contrary to law and/or (2) unsupported
    by the record,’ an appellate court has the authority, pursuant to
    R.C. 2953.08(G)(2), ‘to increase, reduce, or otherwise modify a
    sentence * * *.’
    State v. Risner, 3d Dist. Wyandot No. 16-20-05, 
    2021-Ohio-342
    , ¶ 39, quoting State
    v. McGowan, 
    147 Ohio St.3d 166
    , 
    2016-Ohio-2971
    , 
    62 N.E.3d 178
    , ¶ 1.
    Clear and convincing evidence is that measure or degree of proof
    which is more than a mere ‘preponderance of the evidence,’ but
    not to the extent of such certainty as is required ‘beyond a
    reasonable doubt’ in criminal cases, and which will produce in the
    mind of the trier of facts a firm belief or conviction as to the facts
    sought to be established.
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    State v. Taflinger, 3d Dist. Logan No. 8-17-20, 
    2018-Ohio-456
    , ¶ 12, quoting Cross
    v. Ledford, 
    161 Ohio St. 469
    , 
    120 N.E.2d 118
    , paragraph three of the syllabus
    (1954).
    {¶30} Further, “the axiomatic rule is that a court speaks through its journal
    entries.” State v. Miller, 
    127 Ohio St.3d 407
    , 
    2010-Ohio-5705
    , 
    940 N.E.2d 924
    , ¶
    12.   “Accordingly, it is the trial court’s judgment entry and not the oral
    pronouncement of a sentence at a sentencing hearing (or a resentencing hearing)
    that is ‘the effective instrument for sentencing a defendant.’” State v. Roscoe, 8th
    Dist. Cuyahoga No. 102191, 
    2015-Ohio-3876
    , ¶ 7, quoting State v. Rodriguez-
    Baron, 7th Dist. Mahoning No. 10-MA-176, 
    2012-Ohio-1473
    , ¶ 13. See State v.
    Brown, 3d Dist. Allen No. 1-06-66, 
    2007-Ohio-1761
    , ¶ 3 (“A trial court speaks only
    through its journal entries and not by oral pronouncement.”).
    {¶31} “[I]f the journal entry and the judge’s comments conflict, the journal
    entry controls.” State v. Potter, 6th Dist. Fulton No. F-21-002, 
    2021-Ohio-3502
    , ¶
    13, quoting State v. Hankins, 
    89 Ohio App.3d 567
    , 569, 
    626 N.E.2d 965
     (3d Dist.
    1993). See also State v. Swiergosz, 
    197 Ohio App.3d 40
    , 
    2012-Ohio-830
    , 
    965 N.E.2d 1070
    , ¶ 49 (6th Dist.) (concluding that “verbal miscues or misstatements in
    open court during sentencing are harmless”).
    Legal Analysis
    {¶32} At the sentencing hearing, the trial court stated it would impose an
    indefinite prison sentence on Eitzman with a four-year minimum term and a six-
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    year maximum term. Sentencing Tr. 13. The trial court then stated that Eitzman
    “would not be eligible for judicial release within the four-year term because that is
    a mandatory sentence.” 
    Id.
     While Eitzman did not object to this statement at the
    sentencing hearing, he argues on appeal that the trial court erroneously stated that
    this four-year minimum prison term was mandatory.
    {¶33} However, in its judgment entry of sentencing, the trial court did not
    impose a mandatory prison term on Eitzman or state that he was ineligible for
    judicial release. Doc. 46. Because the trial court did not impose a mandatory prison
    term, Eitzman has not identified any prejudicial error in this assignment of error.
    See State v. Smith, 1st Dist. Hamilton Nos. C-080712, C-090505, 
    2009-Ohio-6932
    ,
    ¶ 38; Roscoe, 
    supra, at ¶ 9
    ; State v. Casiano, 6th Dist. Wood No. WD-09-009, 2010-
    Ohio-3528, ¶ 28 (“Because the trial court’s misstatement concerning judicial release
    did not prejudice or affect the outcome of this case, it is harmless error.”); State v.
    Draughton, 10th Dist. Franklin Nos. 11AP-703, 11AP-995, 
    2012-Ohio-1917
    , ¶ 30.
    Because Eitzman has not demonstrated that his sentence is clearly and convincingly
    contrary to law with this argument, his third assignment of error is overruled.
    Fourth Assignment of Error
    {¶34} Eitzman argues that the sentencing entry incorrectly states that he is
    not eligible for earned credit under R.C. 2967.193.
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    Case No. 7-21-03
    Legal Standard
    {¶35} As an initial matter, we reincorporate the legal standard for appellate
    challenges to a sentence as set forth in the third assignment of error. Further, R.C.
    2967.193 provides opportunities for inmates to earn credit towards the satisfaction
    of his or her prison term “for participation in certain programs.” R.C. 2967.193.
    Under R.C. 2967.193, the department of rehabilitation and
    correction is charged with determining the amount of credit
    earned and awarding that credit to the prisoner. Likewise, the
    statute authorizes the department to deny the prisoner the right
    to earn credit or withdraw credits previously earned if it
    determines the prisoner has violated prison rules.
    State v. Livingston, 
    2014-Ohio-1637
    , 
    9 N.E.3d 1117
    , ¶ 7 (1st Dist.). “[T]here is
    nothing in R.C. 2967.193 or elsewhere in the law that authorizes a court to limit an
    offender’s ability to earn days of credit.” Id. at ¶ 9.
    Legal Analysis
    {¶36} R.C. 2967.193(A)(1) and R.C. 2967.193(A)(2) set forth earned-credit
    opportunities for inmates.     An inmate is ineligible to earn credit under R.C.
    2967.193(A)(2) if he or she “is serving a * * * a prison term for an offense of
    violence * * *.” R.C. 2967.193(A)(2). In this case, Eitzman received a prison term
    for a conviction for felonious assault, which is listed as an offense of violence in
    R.C. 2901.01(A)(9)(a). Thus, Eitzman is statutorily ineligible to earn credit under
    R.C. 2967.193(A)(2).
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    Case No. 7-21-03
    {¶37} However, R.C. 2967.193(A)(1) does not contain the same eligibility
    requirements as R.C. 2967.193(A)(2). The wording of R.C. 2967.193(A)(1) does
    not disqualify all inmates who are serving a sentence for an offense of violence from
    the earned credit opportunities contained therein. Rather, an inmate is statutorily
    ineligible for earned credit under R.C. 2967.193(A)(1) if he or she has a type of
    sentence or conviction that is listed in R.C. 2967.193(C). Eitzman does not have a
    sentence or conviction of a type that is listed in R.C. 2967.193(C).
    {¶38} Further, the number of days of credit that an eligible inmate can earn
    under R.C. 2967.193(A)(1) is set forth in R.C. 2967.193(D) and is based upon the
    offense for which the inmate received a prison term. R.C. 2967.193(D) sets forth
    the amount of credit that an inmate may earn if the most serious offense for which
    he or she is confined is a conviction for second-degree felonious assault. R.C.
    2967.193(D)(1)(a). In this case, Eitzman was confined for one conviction for
    second-degree felonious assault. Doc. 46. Thus, as the State concedes in its brief,
    Eitzman is not statutorily ineligible to earn the amount of credit that is set forth in
    R.C. 2967.193(D)(1)(a). Appellee’s Brief, 15.
    {¶39} However, the trial court’s judgment entry of sentencing states that
    Eitzman “is not eligible for earned credit per Revised Code 2967.193 * * *”. Doc.
    46. While Eitzman does not meet the eligibility requirements for earned credit
    under R.C. 2967.193(A)(2), he is not statutorily ineligible for earned credit under
    R.C. 2967.193(A)(1). Thus, the portion of the sentencing entry challenged by
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    Case No. 7-21-03
    Eitzman on appeal does not reflect the statutory eligibility standards for earned
    credit as set forth in R.C. 2967.193 and is in need of clarification.
    {¶40} In conclusion, the trial court opted to include a statement in its
    judgment entry about Etizman’s eligibility for earned credit under R.C. 2967.193.
    However, the statement that the trial court chose to include about earned credit under
    2967.193 is inconsistent with the statutory standards set forth in that provision. Doc.
    46. See R.C. 2967.193(A)(1), (C), (D)(1)(a). Since this statement is clearly and
    convincingly contrary to law, we “vacate this portion of his sentence and remand
    this matter to the trial court for the limited purpose of correcting the judgment entry.
    Livingston, 
    supra, at ¶ 10
    . Accordingly, Eitzman’s fourth assignment of error is
    sustained.
    Fifth Assignment of Error
    {¶41} Eitzman asserts that the Reagan Tokes Law is unconstitutional,
    arguing that this provision violates his rights to due process.
    Legal Standard
    {¶42} Under Crim.R. 52(A), “[p]lain errors or defects affecting substantial
    rights may be noticed although they were not brought to the attention of the court.”
    Crim.R. 52(B).
    “In order to find plain error under Crim.R. 52(B), there must be
    an error, the error must be an ‘obvious’ defect in the trial
    proceedings, and the error must have affected ‘substantial
    rights.’” State v. Bowsher, 3d Dist. Union No. 14-07-32, 2009-
    Ohio-6524, ¶ 12, quoting State v. Barnes, 
    94 Ohio St.3d 21
    , 27, 759
    -19-
    Case No. 7-21-
    03 N.E.2d 1240
     (2002). ‘The standard for plain error is whether, but
    for the error, the outcome of the proceeding clearly would have
    been otherwise.’ State v. Hornbeck, 
    155 Ohio App.3d 571
    , 2003-
    Ohio-6897, 
    802 N.E.2d 184
    , ¶ 16 (2d Dist.), citing State v. Long, 
    53 Ohio St.2d 91
    , 
    372 N.E.2d 804
     (1978). Notice of plain error is
    taken “only to ‘prevent a manifest miscarriage of justice.’” State
    v. Davis, 3d Dist. Seneca No. 13-16-30, 
    2017-Ohio-2916
    , ¶ 23,
    quoting Long, supra, at paragraph three of the syllabus.
    Taflinger, supra, at ¶ 17. Under Crim.R. 52(B), “the defendant bears the burden of
    demonstrating that a plain error affected his substantial rights.” (Emphasis sic.)
    State v. Perry, 
    101 Ohio St.3d 118
    , 
    2004-Ohio-297
    , 
    802 N.E.2d 643
    , ¶ 14.
    {¶43} Further, “[i]n order to be justiciable, a controversy must be ripe for
    review.” State v. Loving, 
    180 Ohio App.3d 424
    , 
    2009-Ohio-15
    , 
    905 N.E.2d 1234
    , ¶
    4, quoting Keller v. Columbus, 
    100 Ohio St.3d 192
    , 
    2003-Ohio-5599
    , 
    797 N.E.2d 964
    , ¶ 26.
    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 [(reversed on other grounds in Califano
    v. Sanders, 
    430 U.S. 99
    , 105, 
    97 S.Ct. 980
    , 984, 
    51 L.Ed.2d 192
    (1977))]. * * *.
    “The basic principle of ripeness may be derived from the
    conclusion that ‘judicial machinery should be conserved for
    problems which are real or 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 [has] simply
    -20-
    Case No. 7-21-03
    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.
    State ex rel. Elyria Foundry Co. v. Indus. Comm., 
    82 Ohio St.3d 88
    , 89, 1998-Ohio-
    366, 
    694 N.E.2d 459
    , 460 (1998). “A claim is not ripe for our consideration if it
    rests on contingent future events that may not occur as anticipated or may never
    occur at all.” Loving at ¶ 4, citing Texas v. U.S., 
    523 U.S. 296
    , 300, 
    118 S.Ct. 1257
    ,
    
    140 L.Ed.2d 406
     (1998).
    Legal Analysis
    {¶44} On appeal, Eitzman argues that the Reagan Tokes Law does not
    contain adequate statutory protections for the due process rights of subject
    offenders. He concedes that he did not challenge the constitutionality of the Reagan
    Tokes Law before the trial court and that the plain error standard of review,
    therefore, governs this assignment of error. See State v. Silvas, 3d Dist. Shelby No.
    17-21-03, 
    2021-Ohio-4473
    , ¶ 43.                   He also acknowledges that this Court has
    previously rejected these exact same arguments but asks that this Court reconsider
    its prior precedents in State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-
    547, ¶ 12 and State v. Hacker, 
    2020-Ohio-5048
    , 
    161 N.E.3d 112
    , ¶ 22-23 (3d Dist.).1
    1
    We are aware that the Fourth, Fifth, Sixth, and Eleventh Districts found that separation of powers arguments
    and due process arguments that question the constitutionality of the Reagan Tokes Law are not yet ripe for
    review. See State v. Ramey, 4th Dist. Washington Nos. 20CA1 and 20CA2, 
    2020-Ohio-6733
    , ¶ 22; State v.
    Downard, 5th Dist. Muskingum No. CT2019-0079, 
    2020-Ohio-4227
    , ¶ 5, 12-13; State v. Velliquette, 2020-
    Ohio-4855, 
    160 N.E.3d 414
    , ¶ 30 (6th Dist.); State v. Lavean, 11th Dist. Lake No. 2020-L-045, 2021-Ohio-
    1456, ¶ 12. We are also aware that, on December 28, 2020, the Supreme Court of Ohio accepted a case to
    -21-
    Case No. 7-21-03
    {¶45} In Hacker, the defendant-appellant raised a facial challenge to the
    Reagan Tokes Law, arguing that this provision did not contain adequate due process
    protections. Hacker, supra, at ¶ 18. However, we concluded that Hacker had not
    demonstrated that the Reagan Tokes Law was unconstitutional on its face in the
    aforementioned regards. Id. at ¶ 23. See State v. Kepling, 3d Dist. Hancock No. 5-
    20-23, 
    2020-Ohio-6888
    , ¶ 18; Crawford, supra, at ¶ 11.
    {¶46} In Crawford, the defendant-appellant argued that his due process
    rights might not be adequately protected “in the event that the [Ohio Department of
    Rehabilitation and Corrections] ODRC acts to keep him beyond his presumptive
    release date.” Crawford, supra, at ¶ 13. We noted that, at the time of the appeal,
    we could not determine if Crawford would ever face such action from the ODRC.
    Id. Because this argument was predicated “on contingent future events that may not
    occur as anticipated or may never occur at all,” we concluded that this challenge
    was not yet ripe for review. Id. at ¶ 12-13, quoting Loving, supra, at ¶ 4. See also
    Kepling, 
    supra, at ¶ 13-15
    .
    {¶47} At this time, we decline to revisit our precedents in Hacker and
    Crawford. Hacker, 
    supra, at ¶ 23
    ; Crawford, supra, at ¶ 12-13. We apply the
    holdings of these prior decisions to the due process arguments raised by Eitzman
    determine whether the constitutionality of the Reagan Tokes Law is ripe for review. State v. Maddox, 
    160 Ohio St.3d 1505
    , 
    2020-Ohio-6913
    , 
    159 N.E.3d 1150
    .
    -22-
    Case No. 7-21-03
    herein. For this reason, we conclude that Eitzman has not carried the burden of
    demonstrating plain error. Accordingly, his fifth assignment of error is overruled.
    Conclusion
    {¶48} Having found no error prejudicial to the appellant in the particulars
    assigned and argued in the first, second, third, and fifth assignments of error, the
    judgment of Henry County Court of Common Pleas is affirmed as to these issues.
    {¶49} Having found error prejudicial to the appellant in the particulars
    assigned and argued in the fourth assignment of error, the judgment of the Henry
    County Court of Common Pleas is reversed as to these issues.
    {¶50} Accordingly, this case is remanded to the trial court for further
    proceedings that are consistent with this opinion.
    Judgment Affirmed in Part
    Reversed in Part
    And Cause Remanded
    MILLER and SHAW, J.J., concur.
    /hls
    -23-