State v. Kibler , 2020 Ohio 4631 ( 2020 )

[Cite as State v. Kibler, 2020-Ohio-4631.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. CT2020-0026
:
VINCENT KIBLER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2019-0690
JUDGMENT: DISMISSED
DATE OF JUDGMENT ENTRY: September 25, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX TODD W. BARSTOW
MUSKINGUM COUNTY PROSECUTOR 261 W. Johnstown Rd., Suite 204
Columbus, OH 43230
GERALD V. ANDERSON, II
27 N. 5th St., P.O. Box 189
Zanesville, OH 43701
Muskingum County, Case No. CT2020-0026 2
Delaney, J.
{¶1} Defendant-Appellant Vincent Kibler appeals the April 30, 2020 sentencing
entry of the Muskingum County Court of Common Pleas. Plaintiff-Appellee is the State of
Ohio.
STATEMENT OF THE CASE1
{¶2} On November 20, 2019, Defendant-Appellant Vincent Kibler was indicted
by the Muskingum County Grand Jury on one count of Aggravated Burglary, a first-degree
felony; Theft, a fourth-degree felony; Improper Handling of a Firearm in a Motor Vehicle,
a fourth-degree felony; and Having a Weapon while Under Disability, a third-degree
felony. The Burglary charge included a firearm specification and a repeat violent offender
specification. Kibler entered a plea of not guilty to the charges.
{¶3} On March 23, 2020, the trial court held a change of plea hearing. Kibler
pleaded guilty to: Count One, an amended charge of Burglary, a second-degree felony in
violation of R.C. 2911.12(A)(1), with a firearm and repeat violent offender specifications;
Count Two, Theft, a fourth-degree felony in violation of R.C. 2913.02(A)(1); Count Three,
Improper Handling of a Firearm in a Motor Vehicle, a fourth-degree felony in violation of
R.C. 2923.16(B); and Count Four, Having a Weapon while Under a Disability, a third-
degree felony in violation of R.C. 2923.13(A)(2). The trial court accepted Kibler’s guilty
pleas and set the matter for a sentencing hearing.
{¶4} The trial court held a sentencing hearing on April 27, 2020. Kibler was
sentenced pursuant to Am.Sub.S.B. No. 201, otherwise known as the Reagan Tokes Act.
Via sentencing entry filed on April 30, 2020, Kibler was sentenced to the following:
1 A recitation of the underlying facts is unnecessary for the disposition of this appeal.
Muskingum County, Case No. CT2020-0026 3
Count One: a stated minimum prison term of eight (8) years; an indefinite
prison term of twelve (12) years;
Firearm Specification: a mandatory prison term of one (1) year;
Count Two: a stated prison term of twelve (12) months;
Count Three: a stated prison term of twelve (12) months; and
Count Four: a stated prison term of thirty (30) months.
Provided however, the periods of incarceration imposed herein shall be
served concurrently with one another and the mandatory one (1) year prison
term for the gun specification shall be served prior to the stated minimum
prison term of eight (8) years and the indefinite prison term of twelve (12)
years for an aggregate minimum prison term of nine (9) years and an
aggregate indefinite prison term of thirteen (13) years.
{¶5} On April 30, 2020, the trial court filed a “Notice of Non-Life Felony Indefinite
Prison Term.”
{¶6} It is from the April 30, 2020 sentencing entry that Kibler now appeals.
ASSIGNMENTS OF ERROR
{¶7} Kibler raises two Assignments of Error:
{¶8} “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.
Muskingum County, Case No. CT2020-0026 4
{¶9} “II. APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE, THEREBY
DENYING HIM HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS
GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.”
ANALYSIS
I., II.
{¶10} In his first Assignment of Error, Kibler challenges the presumptive release
feature of R.C. 2967.271, arguing it violates his constitutional rights to due process of law.
In his second Assignment of Error, Kibler argues his trial counsel was ineffective by failing
to raise the constitutionality of R.C. 2967.271 in the trial court.
{¶11} R.C. 2967.271 provides in pertinent part:
(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.
(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:
Muskingum County, Case No. CT2020-0026 5
(1) Regardless of the security level in which the offender is classified
at the time of the hearing, both of the following apply:
(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.
(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.
(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.
(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.
(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
Muskingum County, Case No. CT2020-0026 6
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.
(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 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
Muskingum County, Case No. CT2020-0026 7
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.
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.
{¶12} Kibler argues 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.
Kibler, however, has not yet been subject to the application of these provisions, as he has
not yet served his minimum term, and therefore has not been denied release at the
expiration of his minimum term of incarceration.
{¶13} 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. In Downward, the appellant entered a plea of guilty to robbery, a
Muskingum County, Case No. CT2020-0026 8
second-degree felony, and assault on a peace officer, a fourth-degree felony. The trial
court sentenced the appellant on September 23, 2019, pursuant to the Reagan Tokes
Act. On the robbery conviction, the trial court sentenced the appellant to a stated minimum
prison term of eight years. The trial court sentenced the appellant to a stated prison term
of twelve months for assault on a peace officer. The trial court ordered the sentences to
be served consecutively, for an aggregate minimum prison term of nine years and an
aggregate indefinite maximum prison term of thirteen years. Id. at ¶ 2. The appellant
appealed the sentence, arguing the Reagan Tokes Act violated his constitutional rights
to due process and trial by jury. Id. at ¶ 5.
{¶14} In Downward, we first discussed 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
present and imminent, not squandered on problems which are abstract or
Muskingum County, Case No. CT2020-0026 9
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.
Id. at 89, 694 N.E.2d at 460.
Downard, at ¶¶ 8-9.
{¶15} We next found the appellant’s appeal of the constitutionality of the Reagan
Tokes Act was not ripe for review. “* * * [W]hile R.C. 2967.271 allows the DRC to rebut
the presumption Appellant will be released after serving his nine year minimum sentence
and potentially continue his incarceration to a term not exceeding thirteen years,
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 “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.
{¶16} We find the issues presented in the current case are identical to those in
Downard. On April 30, 2020, Kibler was sentenced to an aggregate minimum prison term
of nine years and an aggregate indefinite prison term of thirteen years. There is no dispute
that Kibler has not yet been subject to R.C. 2967.271, which allows the DRC to rebut the
presumption that Kibler will be released after serving his nine year minimum sentence
Muskingum County, Case No. CT2020-0026 10
and potentially continuing his incarceration to a term not exceeding thirteen years. The
constitutional issues argued by Kibler, pursuant to Downard, are not yet ripe for review.
{¶17} The two Assignments of Error are overruled.
CONCLUSION
{¶18} The appeal of the April 30, 2020 sentencing entry issued by the Muskingum
County Court of Common Pleas is dismissed.
By: Delaney, J.,
Wise, John, P.J. and
Wise, Earle, J., concur.