State v. Scott , 2023 Ohio 1091 ( 2023 )

[Cite as State v. Scott, 2023-Ohio-1091.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2022-T-0084
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
MATTHEW LARRY SCOTT,
Trial Court No. 2019 CR 00650
Defendant-Appellant.
OPINION
Decided: March 31, 2023
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Mandy J. Gwirtz, Gwirtz Law, LLC, 20050 Lakeshore Boulevard, Euclid, OH 44123
(For Defendant-Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Matthew Larry Scott, appeals from the judgment of the Trumbull
County Court of Common Pleas, sentencing him to serve an indefinite prison term of four
to six years. Appellant challenges the trial court’s imposition of the prison term as well as
the constitutionality of Ohio’s indefinite sentencing statutory scheme, i.e., the Reagan
Tokes Act. For the reasons discussed in this opinion, we affirm the trial court.
{¶2} Appellant was indicted on two counts of rape, in violation of R.C.
2907.02(A)(1)(c) and (B), felonies of the first degree; and two counts of rape, in violation
of R.C. 2907.02(A)(2) and (B), felonies of the first degree. On May 4, 2022, appellant
waived his rights and entered a guilty plea to a bill of information on one count of felonious
assault, in violation of R.C. 2903.11(A)(1) and (D)(1)(a), a felony of the second degree;
and one count of abduction, in violation of R.C. 2905.02(A)(2) and (C), a felony of the
third degree. The trial court ordered a presentence investigation report. After a hearing,
appellant was sentenced to serve an indefinite prison term of four to six years on the
felonious assault count and a prison term of 24 months on the abduction count. The trial
court ordered the sentences to be served concurrently. This appeal follows.
{¶3} Appellant assigns five errors. Because the initial four are related, we shall
address them together. They provide:
{¶4} “[1.] The defendant-appellant’s indeterminate prison sentence of four to six
years that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, must
be reversed as the Reagan Tokes Act is unconstitutionally void for vagueness.
{¶5} “[2.] The defendant-appellant’s indeterminate prison sentence of four to six
years that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, must
be reversed as the Reagan Tokes Act unconstitutionally violates the doctrine of
separation of powers.
{¶6} “[3.] The defendant-appellant’s indeterminate prison sentence of four to six
years that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, violates
his constitutional right to trial by jury as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Section 5 of the Ohio
Constitution.
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{¶7} “[4.] The defendant-appellant’s indeterminate prison sentence of four to six
years that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, violates
his constitutional rights to fair trial and due process as guaranteed by the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution and Article I, Sections 5 & 10
of the Ohio Constitution.”
{¶8} Although he does not specifically identify the nature of his constitutional
challenges, because his presumptively minimum prison term has yet to be extended, they
must be generally construed as facial challenges to the Reagan Tokes Act. See State v.
Stenson, 2022-Ohio-2072, 190 N.E.3d 1240, ¶ 31 (6th Dist.) (the “ODRC has not sought
to extend [appellant’s] term beyond the presumptive minimum sentence * * * [and his]
challenge to the Reagan Tokes Law is necessarily a facial challenge”). “A facial
challenge to a statute is the most difficult to bring successfully because the challenger
must establish that there exists no set of circumstances under which the statute would be
valid.” (Citation omitted.) Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836
N.E.2d 1165, ¶ 37. “The fact that a statute might operate unconstitutionally under some
plausible set of circumstances is insufficient to render it wholly invalid.” (Citation
omitted.) Id.{¶9} With this standard in mind, appellant did not raise any objections or
constitutional challenges to the statutory scheme in the trial court. “‘[T]he question of the
constitutionality of a statute must generally be raised at the first opportunity and, in a
criminal prosecution, this means in the trial court.’” State v. Quarterman, 140 Ohio St.3d
464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting State v. Awan, 22 Ohio St.3d 120,
122, 489 N.E.2d 277 (1986). Still, a reviewing court has “discretion to consider a forfeited
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constitutional challenge to a statute” and “may review the trial court decision for plain
error, but we require a showing that but for a plain or obvious error, the outcome of the
proceeding would have been otherwise, and reversal must be necessary to correct a
manifest miscarriage of justice.” (Citations omitted.) Quarterman at ¶ 16. “The burden of
demonstrating plain error is on the party asserting it.” (Citation omitted.) Id. The Supreme
Court of Ohio has also “stated that a forfeited constitutional challenge to a statute is
subject to review ‘where the rights and interests involved may warrant it.’” Id., quoting In
re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.
{¶10} This court, in State v. Reffitt, 11th Dist. Lake No. 2021-L-129, 2022-Ohio-
3371, previously concluded the Reagan Tokes Act (1) is not unconstitutionally void for
vagueness, id. at ¶ 29-42; (2) does not unconstitutionally violate the doctrine of
separation of powers, id. at ¶ 44-50; (3) does not violate a defendant’s right to a trial by
jury, id. at ¶ 52-58; and (4) does not violate a defendant’s right to a fair trial and due
process, id. at ¶ 60-72. See also State v. Abdullah, 2022-Ohio-3977, 200 N.E. 3d 627,
¶ 62 (11th Dist.). Nevertheless, there are several points raised by appellant’s assigned
errors that were not directly covered in Reffitt. We shall therefore touch on those points
to ensure a comprehensive analysis.
{¶11} First, under his void-for-vagueness challenge, appellant points out that,
pursuant to R.C. 2967.271(C)(1)(a), he can be held in prison beyond the presumptive
release date if the Department of Rehabilitation and Correction (“DRC”) determines he
committed a violation of the law that was not prosecuted while he was incarcerated.
Appellant reasonably points out the lack of clarity in the phrase “a violation of law that
was not prosecuted.” If an act goes unprosecuted, it is unclear who determines the action
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was a violation of law. And, if an act is deemed by a functionary of the DRC (likely the
Rules Infraction Board set forth in Ohio Adm.Code 5120-9-08) as an unprosecuted
violation, appellant expresses concern that relying upon the act to extend his prison term
would essentially negate certain fundamental rights a criminal defendant would ordinarily
enjoy, e.g., the right to counsel, right to a jury trial, and the right to compulsory process.
{¶12} In State v. Maddox, 168 Ohio St.3d 292, 2022-Ohio-764, 198 N.E.3d 797,
the Supreme Court of Ohio determined the Reagan Tokes Act is fit for facial constitutional
challenges on a defendant’s direct appeal. Id. at ¶ 19. This is so, in part, “because no
additional factual development is necessary * * *” to address the merits of the challenges.
Id. The perils appellant identifies, however, relate to the necessity of additional facts
which cannot be foreseen at this point. In other words, if and when the concerns appellant
raises materialize, he may then raise a constitutional “as-applied” challenge to the
statutory scheme. “An as[-]applied challenge of an infraction received under [the Rules
Infraction Board] would have to be raised through a separate writ upon imposition of the
infraction.” Abdullah at ¶ 62. Accordingly, any challenges to the vagueness of the
enforcement of the statute by the Rules Infraction Board must be pursued through a
petition for an extraordinary writ, such as mandamus or perhaps habeas corpus. Id.,
citing State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536, ¶ 87 (8th Dist.). In this respect,
appellant’s as-applied challenge is not yet ripe.
{¶13} Next appellant identifies similar language in R.C. 2967.271(C)(1)(a) that
permits an offender to be held beyond the presumptive release date if any of the alleged
infractions or violations demonstrate that the offender has not been rehabilitated.
Appellant again contends the phrase “demonstrate that the offender has not been
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rehabilitated” is unconstitutionally vague. Appellant notes that the phrase is hopelessly
dependent upon value-laden subjective assessments and therefore unclear what may or
may not trigger this statutory condition. Much like appellant’s previous argument, this
challenge requires additional facts which have not developed (and may never occur). It
is therefore unripe and the subject of an as-applied challenge if and when appellant has
cause to raise it.
{¶14} Appellant additionally takes issue with R.C. 2967.271(C)(1)(b). That
subsection permits the DRC to rebut the presumption that appellant be released after the
minimum time if his behavior demonstrates he “continues to pose a threat to society.”
Appellant recognizes that his behavior while incarcerated will be measured against
institutional rules; the statute, however, indicates that other, unlisted potential or arguable
infractions may be used as a metric to determine whether he continues to pose a threat
to society. This argument, while potentially worth exploring if appellant is subjected to
additional incarceration beyond the minimum term, is nevertheless an as-applied
challenge. He must therefore wait to assert the challenge if and when such facts manifest
themselves.
{¶15} Appellant makes two final arguments related to unconstitutional vagueness:
(1) Under R.C. 2967.271(C)(2), the DRC may invoke the indeterminate portion of his
sentence if he is placed in restrictive housing at any time within a year before his hearing;
and (2) Pursuant to R.C. 2967.271(C)(3), the indeterminate portion of the sentence may
be imposed if he is classified as a level three, four, five, or higher security level. Appellant
points out that each designation is dependent upon the discretion of the DRC and thus is
not simply vague (because no standards are articulated for their implementation), but also
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potentially violative of due process and an inmate’s equal protection rights. As with
appellant’s previous arguments, these points will be ripe if and when they are used as a
means of keeping appellant in prison beyond the minimum sentence. At this point, these
as-applied challenges are not yet justiciable and cannot be reviewed.
{¶16} With respect to appellant’s separation of powers argument, this court, in
Reffitt, thoroughly examined the nuances of the challenge and rejected the same. The
Reffitt panel concluded:
In Reagan Tokes sentences, the court imposes both
presumptive minimum and possible maximum prison
terms in its sentence. Thereafter, the ODRC determines
whether the offender's conduct warrants more than the
minimum imposed. However, the ODRC cannot exceed
the judiciary’s maximum imposed sentence.
Therefore, [State ex rel.] Bray [v. Russell, 89 Ohio St.3d
132, 729 N.E.2d 359 (2000)] does “not compel the
conclusion that the Reagan Tokes Law violates the
separation of powers doctrine.” Id.Reffitt, 2022-Ohio-3371, at ¶ 49; see also Abdullah, 2022-Ohio-3977, at ¶ 68; State v.
Taylor, 2022-Ohio-3611, 198 N.E.3d 956, ¶ 55 (11th Dist.).
{¶17} Similarly, in Reffitt, this court fully addressed the trial-by-jury challenge
alleged by appellant. In doing so, this court rejected the challenge and held:
Because R.C. 2967.271 requires the trial court to
impose a minimum and maximum indefinite term, the
only discretion granted to the trial court is the minimum
term. The court is not imposing a term greater than the
maximum as prohibited under Apprendi[ v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)].
Further, the court is not imposing a sentence longer
than the minimum term prescribed by statute based on
findings of facts in addition to those considered by the
jury in Blakely[ v. Washington, 542 U.S. 296, 124 S.Ct.
2531, 159 L.Ed.2d 403 (2004)] or [State v. ]Foster[, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470]. We do
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not find that R.C. 2967.271(C) or (D) is unconstitutional
under Apprendi or its progeny.
Reffitt at ¶ 57; see also Abdullah at ¶ 71.
{¶18} Finally, this court has previously and fully treated the due process argument
advanced by appellant. In Reffitt, this court rejected the due process challenge, pointing
out it requires an as-applied analysis. The panel determined:
Appellant’s challenges to the Reagan Tokes Law are
facial in nature and he must therefore establish that
there exists no set of circumstances under which the
statute would be valid. Harrold v. Collier, 107 Ohio
St.3d 44 at ¶ 37. Appellant's arguments relating to a
future hearing to rebut his presumptive release are a
challenge to the due process safeguards that will be
afforded in the future under R.C. 2967.271 through a
hearing to rebut his presumption of release. “The fact
that a statute might operate unconstitutionally under
some plausible set of circumstances is insufficient to
render it wholly invalid.” Id., citing Belden v. Union
Cent. Life Ins. Co., 143 Ohio St. 329, paragraph four of
the syllabus, and United States v. Salerno, 481 U.S.
739, 745. “Should the Law ultimately be applied in a
manner that is unconstitutional, an offender would not
be precluded from challenging the Law as
applied.” State v. Stenson, 6th Dist. No. L-20-1074,
2022-Ohio-2072, 190 N.E.3d 1240, ¶ 33. (Emphasis
original).
Reffitt at ¶ 67; Abdullah, 2022-Ohio-3977, at ¶ 79; Taylor, 2022-Ohio-3611, at ¶ 85.
{¶19} In light of the foregoing, appellant’s first, second, third, and fourth
assignments of error are without merit.
{¶20} Appellant’s fifth assignment of error provides:
{¶21} “The individual prison terms imposed by the trial court on counts one and
two were unsupported by the record with respect to the factors the court must consider
pursuant to R.C. 2929.12 and thus, are contrary to law.”
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{¶22} Pursuant to R.C. 2929.11(A), “[a] court that sentences an offender for a
felony shall be guided by the overriding purposes of felony sentencing,” and it “shall
consider the factors * * * relating to the seriousness of the conduct” and “to the likelihood
of the offender’s recidivism.” R.C. 2929.12(A).
{¶23} R.C. 2953.08(G) governs our review of felony sentences, and provides, in
relevant part, that after an appellate court’s review of the record, and it “may increase,
reduce, or otherwise modify a sentence that is appealed under this section or may vacate
the sentence and remand * * * if it clearly and convincingly finds * * * [t]hat the sentence
is * * * contrary to law.” R.C. 2953.08(G)(2)(b); State v. Meeks, 11th Dist. Ashtabula No.
2022-A-0060, 2023-Ohio-988, ¶ 11.
{¶24} “A sentence is contrary to law when it is ‘in violation of statute or legal
regulations’ * * *.” Meeks at ¶ 11, quoting State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-
6729, 169 N.E.3d 649, ¶ 34. Thus, “‘[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.’” State v. Shannon, 11th Dist. Trumbull No. 2020-T-0020, 2021-
Ohio-789, ¶ 11, quoting State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705, 2012-
Ohio-199, ¶ 74; see also State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-
7127, ¶18. The Supreme Court has further held that a sentence is contrary to law if “it is
imposed ‘based on factors or considerations that are extraneous to those [seriousness
and recidivism factors] that are permitted by R.C. 2929.11 and 2929.12.’” Meeks at ¶ 11,
quoting State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 22. “But
an appellate court’s determination that the record does not support a sentence does not
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equate to a determination that the sentence is ‘otherwise contrary to law’ as that term is
used in R.C. 2953.08(G)(2)(b).” Jones at ¶ 32.
{¶25} Further, this court has frequently noted that “even though a trial court is
required to consider the R.C. 2929.11 and R.C. 2929.12 factors, it is not required to make
specific findings on the record to comport with its statutory obligations.” Shannon at ¶ 17,
citing State v. Parke, 11th Dist. Ashtabula No. 2011-A-0062, 2012-Ohio-2003, ¶ 24; State
v. Blake, 11th Dist. Lake No. 2003-L-196, 2005-Ohio-686, ¶ 16.
{¶26} Appellant essentially argues that the record does not support the severity
of his sentence. Specifically, he notes that he was young at the time of the offense, 23-
years old and had matured significantly while the case was pending. After posting bond,
he was gainfully employed and had no violations prior to his conviction. And, while he
recognizes he had “some prior misdemeanor offenses,” he had never been convicted of
a felony prior to this case.
{¶27} Regardless of appellant’s attempts to justify his position on appeal, as
outlined above, we cannot assess whether, under R.C. 2929.12, his sentence was
unsupported by the record. We must simply look to whether it was within the statutory
range (it was), and whether the trial court considered the purposes and principles of felony
sentencing (it did).
{¶28} At the sentencing hearing, the trial court stated:
The problem in this case is you were drinking and so
was the victim in the case and it led to behavior that
caused serious, serious psychological harm. And while
some of the principles in sentencing are whether or not
you can be rehabilitated, also some are you don’t want
to demean the seriousness of the offense, and your
conduct here involved some very outrageous injuries to
the victim.
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The court will incorporate the pre-sentence investigation
into this sentencing hearing and I’m going to find that
the presumption in favor of prison has not been rebutted
because the instant offense had serious consequences
and the victim suffered physical and great psychological
harm and the crime here was facilitated by drinking to
excess along with a combination of drug consumption.
The defendant also has a history of violent offenses not
on a scale that is so severe, but it still demonstrates
some violent history on your part involving domestic
violence. And also you had an incident while you were
incarcerated that involved some violence.
{¶29} This court has frequently noted that even though a trial court is required to
consider the R.C. 2929.11 and R.C. 2929.12 factors, it is not required to make specific
findings on the record to comport with its statutory obligations. Shannon, 2021-Ohio-789,
¶ 17, citing State v. Parke, 11th Dist. Ashtabula No. 2011-A-0062, 2012-Ohio-2003,
¶ 24; State v. Blake, 11th Dist. Lake No. 2003-L-196, 2005-Ohio-686,
¶ 16. Nevertheless, at the sentencing hearing, the trial court pointed to the significant
harm appellant caused the victim; the severity of the nature of the conduct that led to the
charges; appellant’s criminal history; the fact that the crime was facilitated by drug and
alcohol use; the court also underscored appellant was involved in an incident of violence
which occurred while he was incarcerated in this case. These determinations relate to
the statutory factors which must be considered under R.C. 2929.12.
{¶30} Furthermore, in its judgment entry, the trial court stated it had considered
the record, oral statements and any victim impact statements, as well as the purposes
and principles of felony sentencing under R.C. 2929.11 and balanced the seriousness
and recidivism factors of R.C. 2929.12. Given the record as well as our standard of
review, appellant’s sentence is not contrary to law.
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{¶31} Appellant’s final assignment of error lacks merit.
{¶32} For the reasons discussed in this opinion, the judgment of the Trumbull
County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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