State v. Greene , 2022 Ohio 4536 ( 2022 )

[Cite as State v. Greene, 2022-Ohio-4536.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220160
TRIAL NO. B-2001740
Plaintiff-Appellee, :
:
VS. O P I N I O N.
:
TOMMY GREENE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: December 16, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christopher Bazeley, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} After an indictment for murder and felonious assault, defendant-
appellant Tommy Greene entered into a plea agreement with a recommended
sentence of 17 years, and an acknowledgement that he faced a potential sentence range
of 17 to 22 ½ years. Although the trial court entered the 17 to 22 ½ year sentence
consistent with the Reagan Tokes Law, Mr. Greene appeals, claiming that the court
erred in not orally advising him of certain statutorily-required notifications, and he
challenges the constitutionality of the Reagan Tokes Law. We reject Mr. Greene’s
constitutional challenges, consistent with our recent decision in State v. Guyton, 1st
Dist. Hamilton No. C-190657, 2022-Ohio-2962. However, with respect to the
sentencing colloquy, in line with the state’s concession, we conclude that the trial court
neglected to mention certain requirements at the sentencing hearing. We accordingly
reverse the trial court’s judgment in part, remanding this matter solely for
resentencing to allow the court to comply with R.C. 2929.19(B)(2)(c). We otherwise
affirm the trial court’s judgment.
I.
{¶2} After the killing of Fred Spivey in April 2020, Mr. Greene was indicted
in May of that year with one count of murder, under R.C. 2903.02, two counts of
felonious assault, under R.C. 2903.11, and one charge of having a weapon under a
disability, under R.C. 2923.13. Mr. Greene and the state eventually reached an
agreement in which he would plead guilty to the charge of voluntary manslaughter and
an accompanying firearms specification, and the weapons under disability charge. As
part of the agreement, the state agreed to recommend a prison sentence of 17 years.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} At the sentencing hearing, the court walked through the plea colloquy
with Mr. Greene, informing him of his rights and the ramifications of his plea. During
the colloquy, the trial court referenced the “entry withdrawing plea of not guilty and
entering plea of guilty, with an agreed recommended sentence” document, which
embodied the plea agreement signed by Mr. Greene (the “plea entry”). The trial court
proceeded to impose the 17-year sentence recommendation with a maximum sentence
of 22 ½ years pursuant to the Reagan Tokes Law.
{¶4} Mr. Greene appeals three aspects of his sentence: that the trial court
failed to advise him of the R.C. 2929.19(B)(2)(c) notifications at sentencing, even
though they were reflected in the plea entry, that the hearing provision in R.C.
2967.271—an aspect of the Reagan Tokes law—is unconstitutionally vague, and that
the Reagan Tokes law in general fails to withstand constitutional scrutiny.
II.
{¶5} Mr. Greene initially faults the trial court’s failure to advise him of the
R.C. 2929.19(B)(2)(c) notifications at his sentencing hearing, even though the plea
entry included these admonishments. “[I]f a trial court fails to provide notice of all
R.C. 2929.19(B)(2)(c) notifications at a sentence hearing, the sentence is contrary to
law.” State v. Bentley, 4th Dist. Adams No. 21CA1147, 2022-Ohio-1914, ¶ 10; see State
v. Williams, 1st Dist. No. C-081148, 2010-Ohio-1879, ¶ 20, quoting State v. Jordan,
104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23 (“When the trial court fails
to provide the defendant with statutorily-mandated notifications at the sentencing
hearing, “the court has violated a ‘statutory duty’ and ‘any sentence imposed without
such notification is contrary to law’ and void.”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} The statute at issue provides, in pertinent part, “[a]t the sentencing
hearing, the court, before imposing sentence, shall do all of the following * * * [i]f the
prison term is a non-life felony indefinite prison term, notify the offender of all of the
[R.C. 2929.19(B)(2)(c) notifications].” (Emphasis added.) R.C. 2929.19(B)(1) and
(B)(2)(c). Consistent with our own precedent and caselaw from across the state, we
interpret this language as a mandatory directive.
{¶7} These notifications include the salient features of the Regan Tokes
Law—one of the chief purposes of which is to encourage good behavior by inmates in
prison: “(i) [t]hat 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 * * * ; (ii) [t]hat the department of rehabilitation and correction may
rebut the presumption * * * ; (iii) [t]hat if * * * 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 * * *
; (iv) [t]hat the department may make the specified determinations and maintain the
offender’s incarceration * * * ; [and] (v) [t]hat 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.” R.C.
2929.19(B)(2)(c)(i)-(v).
{¶8} Pointing to other appellate districts, Mr. Greene maintains that the term
“shall” mandates that a trial court orally provide each of the notifications to the
defendant at sentencing, and that a failure to do so requires a remand for resentencing.
The state concedes the point, acknowledging the need for a remand for resentencing.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Since the time that the state and Mr. Greene briefed the matter, our
court has now twice confirmed that trial courts must inform criminal defendants of
the notifications set forth in R.C. 2929.19(B)(2)(c) at sentencing hearings. State v.
Jackson, 1st Dist. Hamilton No. C-200332, 2022-Ohio-3449, ¶ 20 (“[T]he trial court
failed to properly inform [defendant] of the notifications set forth in R.C.
2929.19(B)(2)(c) when sentencing him under the Reagan Tokes Law. When
sentencing an offender to a nonlife felony indefinite prison term under the Reagan
Tokes Law, a trial court must advise the offender of the five notifications set forth in
R.C. 2929.19(B)(2)(c)(i)-(v) at the sentencing hearing to fulfill the requirements of the
statute.”); State v. Kelly, 1st Dist. Hamilton No. C-200013, 2022-Ohio-3628, ¶ 9 (“A
trial court must advise a defendant of all five notifications set forth in R.C.
2929.19(B)(2)(c) at the sentencing hearing.”).
{¶10} And our caselaw, coupled with consistent authority from other districts
across the state, convinces us that a resentencing remand is required. Bentley, 4th
Dist. Adams No. 21CA1147, 2022-Ohio-1914, at ¶ 8-10; State v. Whitehead, 8th Dist.
Cuyahoga No. 109599, 2021-Ohio-847, ¶ 43-46; State v. Wolfe, 5th Dist. Licking No.
2020 CA 00021, 2020-Ohio-5501, ¶ 33-37; State v. Gatewood, 2d Dist. Clark No.
2021-CA-20, 2022-Ohio-2513, ¶ 1 (“The trial court failed to orally advise [defendant]
of all of the R.C. 2929.19(B)(2)(c) notifications at the sentencing hearing; therefore,
the matter is remanded for the sole purpose of resentencing [defendant].”); State v.
Hodgkin, 12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353, ¶ 24, quoting R.C.
2929.19(B)(2)(c) (“By indicating that the sentencing court ‘shall do all of the
following,’ and ‘notify the offender of all of the following’ the legislature clearly placed
a mandatory duty upon the trial court rather than granting it discretion. Thus, when
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OHIO FIRST DISTRICT COURT OF APPEALS
sentencing an offender to a non-life felony indefinite prison term under the Reagan
Tokes Law, a trial court must advise the offender of the five notifications set forth in
R.C. 2929.19(B)(2)(c) at the sentencing hearing to fulfill the requirements of the
statute.”).
{¶11} Because the Reagan Tokes Law, when applicable, allows the Ohio
Department of Rehabilitation and Correction (“ODRC”) to extend a defendant’s
sentence beyond the minimum term upon satisfaction of statutory criteria at a
hearing, it is imperative that trial courts abide by R.C. 2929.19(B)(2)(c) and notify the
defendant of the five notifications as it relates to their indefinite prison term. While
the trial court did appropriately inform Mr. Greene of many sentencing requirements,
it neglected to advise him orally of the R.C. 2929.19(B)(2)(c) notifications. Consistent
with Jackson, Kelly, and other rulings issued by our fellow appellate courts, we sustain
Mr. Greene’s first assignment of error, and remand the matter solely for resentencing
so that the trial court may comply with R.C. 2929.19(B)(2)(c).
III.
{¶12} In his second and third assignments of error, Mr. Greene challenges the
constitutionality of the Reagan Tokes Law both generally, and specifically with respect
to procedural due process and vagueness.
{¶13} Beyond the procedural due process argument, Mr. Greene fails to
elucidate the contours of his constitutional argument, but we addressed such matters
at length in Guyton. In Guyton, we determined that the Reagan Tokes Law is
constitutional on its face and rejected claims that the law violates separation of
powers, due process, or equal protection. Guyton, 1st Dist. Hamilton No. C-190657,
2022-Ohio-2962, at ¶ 69; see State v. Reed, 1st Dist. Hamilton No. C-200104, 2022-
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-3986, ¶ 32. Of course, those questions are presently before the Supreme Court
of Ohio, in State v. Hacker, 2020-Ohio-5048, 161 N.E.3d 112 (3d Dist.), appeal
allowed, State v. Hacker, 161 Ohio St.3d 1449, 2021-Ohio-534, 163 N.E.3d 585, and
in State v. Simmons, 2021-Ohio-939, 169 N.E.3d 728 (8th Dist.), appeal allowed,
State v. Simmons, 163 Ohio St.3d 1492, 2021-Ohio-2270, 169 N.E.3d 1273, so we will
receive additional guidance in the near term.
{¶14} Mr. Greene sharpens his attack with respect to R.C. 2967.271, a
provision that he criticizes as “vague.” That section concerns the rebuttable
presumption created under the Reagan Tokes Law that an offender “shall be released
from service of the sentence on the expiration of [their] minimum prison term or on
[their] presumptive earned early release date, whichever is earlier.” R.C. 2967.271(C).
The ODRC may rebut the presumption by demonstrating certain delineated factors “at
[a] hearing[.]” R.C. 2967.271(C)(1). The vagueness and imprecision in the “hearing,”
combined with the lack of any concomitant procedures, attracts Mr. Greene’s ire.
{¶15} Even though we did not address Regan Tokes through the “vagueness”
lens, we rejected this procedural due process argument in Guyton. We fully
considered the procedural due process ramifications of the Reagan Takes Law and
found the facial challenge brought by the defendant there (and Mr. Greene only
advances a facial challenge here) misguided: “[w]e do not discern any provision in the
Reagan Tokes Law that overcomes the strong presumption an offender will be afforded
the requisite process due at all stages of the indeterminate sentencing scheme,
including during any administrative proceedings.” Guyton at ¶ 45. “Ultimately, we
must presume that the ODRC will fill in the ‘gaps’ to execute the law such that
offenders are afforded due process before depriving an offender of the statutory liberty
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OHIO FIRST DISTRICT COURT OF APPEALS
interest created by the Reagan Tokes Law. R.C. 5120.01 [the code section conferring
the duties of the director of the ODRC] authorizes the ODRC to do so, and we must
read that statute in conjunction with R.C. 2967.271.” Id. at ¶ 55. We therefore reject
Mr. Greene’s constitutional challenges to the Reagan Tokes Law, overruling his second
and third assignments of error.
* * *
{¶16} In summary, we overrule Mr. Greene’s second and third assignments of
error and sustain his first assignment of error. The judgment of the trial court is
affirmed in part, reversed in part, and the cause is remanded to the trial court solely
for resentencing, so that the trial court may comply with R.C. 2929.19(B)(2)(c).
Judgment affirmed in part, reversed in part, and cause remanded.
MYERS, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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