State v. Moore ( 2022 )


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  • [Cite as State v. Moore, 
    2022-Ohio-845
    .]
    COURT OF APPEALS
    MUSKINGUM COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO,                              :       JUDGES:
    :       Hon. Craig R. Baldwin, P.J.
    Plaintiff - Appellee                :       Hon. W. Scott Gwin, J.
    :       Hon. John W. Wise, J.
    -vs-                                        :
    :
    JUSTIN MOORE,                               :       Case No. CT2021-0025
    :
    Defendant - Appellant               :       OPINION
    CHARACTER OF PROCEEDING:                            Appeal from the Muskingum County
    Court of Common Pleas, Case No.
    CR2020-0375
    JUDGMENT:                                           Affirmed
    DATE OF JUDGMENT:                                   March 16, 2022
    APPEARANCES:
    For Plaintiff-Appellee                              For Defendant-Appellant
    RON WELCH                                           CHRIS BRIGDON
    Prosecuting Attorney                                8138 Somerset Rd
    Muskingum County                                    Thornville, Ohio 43076
    By: JOHN CONNOR DEVER
    Assistant Prosecuting Attorney
    27 North Fifth St., P.O. Box 189
    Zanesville, Ohio 43702
    Muskingum County, Case No. CT2021-0025                                                     2
    Baldwin, J.
    {¶1}   Appellant, Justin Moore, appeals from the decision of the Muskingum County Court
    of Common Pleas sentencing him to an aggregate minimum prison term of eight years and an
    aggregate indefinite maximum prison term of twelve years. Appellee is the State of Ohio.
    STATEMENT OF FACTS AND THE CASE
    {¶2}   Moore appeared before the Muskingum County Court of Common Pleas on March
    1, 2021 and entered a plea of guilty to two counts of Pandering Obscenity Involving a Minor, a
    felony of the second degree, in violation of R.C. 2907.321(A)(1). On April 19, 2021 he appeared
    before the court for sentencing and he was ordered to serve a sentence of a minimum prison term
    of eight years and an indefinite maximum prison term of twelve years for one count and a stated
    prison term of eight years for the other count with the periods of incarceration being served
    concurrently for an aggregate minimum prison term of eight years and an aggregate indefinite
    maximum prison term of twelve years.
    {¶3}   The record contains no evidence that Moore requested that the court merge the
    offenses prior to sentencing. Instead the parties stipulated that the counts did not merge.
    (Transcript, Sentencing Hearing, Apr. 19, 2021, p. 5, lines 1-2).
    {¶4}   Moore filed an appeal and submitted three assignments of error:
    {¶5}   “I.   AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED
    CODE'S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES
    VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF
    OHIO.”
    {¶6}   “II. THE TRIAL COURT ERRED BY FAILING TO MERGE MOORE'S
    OFFENSES.”
    Muskingum County, Case No. CT2021-0025                                                         3
    {¶7}    “III. MOORE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
    VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
    AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
    ANALYSIS
    I.
    {¶8}    Moore’s first assignment of error challenges the constitutionality of the Regan
    Tokes Act which codified hybrid indefinite prison terms for first and second degree felonies. Moore
    challenges the presumptive release feature of the act, R.C. 2967.271, advancing several
    arguments including that it violates his constitutional rights to trial by jury and due process of law,
    and further violates the constitutional requirement of separation of powers and equal protection.
    {¶9}    R.C. 2967.271 provides in relevant 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:
    (1)     Regardless of the security level in which the offender is classified at the
    time of the hearing, both of the following apply:
    Muskingum County, Case No. CT2021-0025                                                          4
    (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 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.
    Muskingum County, Case No. CT2021-0025                                                    5
    (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 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
    Muskingum County, Case No. CT2021-0025                                                       6
    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.
    {¶10} Appellant argues these portions of R.C 2967.271 permitting 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. However, as
    the state points out, appellant 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. This matter is not ripe for review as a result.
    {¶11} We addressed the concept of ripeness for review in regard to the Regan Tokes
    Act in State v. Downard, 5th Dist. Muskingum, CT2019, 
    2020-Ohio-4227
    , 
    2020 WL 5056878
    :
    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
    , 
    694 N.E.2d 459
     [(1998)]:
    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 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
    Muskingum County, Case No. CT2021-0025                                                      7
    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. In State v. McCann, 8th Dist. Cuyahoga No. 85657,
    
    2006-Ohio-171
    , the defendant argued that because the Parole Board, pursuant to
    R.C. 2967.28, could extend his sentence by up to an additional five years for
    violation of post-release control, the statute was unconstitutional. The Eighth
    District Court of Appeals concluded because McCann was not currently the subject
    of such action by the Parole Board, the issue was not yet ripe for review. Id. at ¶ 6.
    Likewise, in the instant case, while 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 ¶ 8-11. See also, State v. Buckner, 5th Dist., 
    2020-Ohio-7017
    , 
    166 N.E.3d 588
    ; State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 
    2020-Ohio-5501
    , 
    2020 WL 7054428
    ; State v. Cochran, 5th Dist. Licking No. 2019 CA 00122, 
    2020-Ohio-5329
    , 
    2020 WL 6779731
    ; State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 
    2020-Ohio-5013
    , 
    2020 WL 6193957
    ; State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-
    4230, 
    2020 WL 5056838
    ; State v. Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-
    Ohio-4631, 
    2020 WL 5757596
    .
    {¶12} Moore does not dispute he had not yet been subject to the provisions of R.C.
    2967.271. We find here as we did in Downard, Moore's constitutional challenges are not yet ripe
    for review and therefore deny his first assignment of error.
    Muskingum County, Case No. CT2021-0025                                                    8
    II.
    {¶13} In his second assignment of error, Moore argues the trial court erred by failing to
    merge the offenses before sentencing. Moore was found guilty of two counts of Pandering
    Obscenity Involving a Minor, a second degree felony, in violation of R.C. 2907.321 arising from
    two different images involving different prepubescent children engaging in sexual acts. He
    contends that the offenses should have merged because he committed them on the same day,
    with the same animus and that the images were saved on the same memory card.
    {¶14} Appellate review of an allied-offense question is de novo. State v. Miku, 5th Dist.
    No. 2017 CA 00057, 
    2018-Ohio-1584
    , ¶ 70, appeal not allowed, 
    154 Ohio St.3d 1479
    , 2019-Ohio-
    173, 
    114 N.E.3d 1207
     (2019), quoting State v. Williams,
    134 Ohio St.3d 482
    , 
    2012-Ohio-5699
    ,
    
    983 N.E.2d 1245
    , ¶ 12.
    {¶15} Revised Code 2941.25 protects a criminal defendant's rights under the Double
    Jeopardy Clauses of the United States and Ohio Constitutions by prohibiting convictions of allied
    offenses of similar import:
    Where the same conduct by defendant can be construed to constitute two
    or more allied offenses of similar import, the indictment or information may contain
    counts for all such offenses, but the defendant may be convicted of only one.
    Where the defendant's conduct constitutes two or more offenses of
    dissimilar import, or where his conduct results in two or more offenses of the same
    or similar kind committed separately or with a separate animus as to each, the
    indictment or information may contain counts for all such offenses, and the
    defendant may be convicted of all of them.
    {¶16} The application of R.C. 2941.25 requires a review of the subjective facts of the
    case in addition to the elements of the offenses charged. State v. Hughes, 5th Dist. Coshocton
    No. 15CA0008, 
    2016-Ohio-880
    , ¶ 21. In a plurality opinion, the Ohio Supreme Court modified the
    Muskingum County, Case No. CT2021-0025                                                       9
    test for determining whether offenses are allied offenses of similar import. State v. Johnson,
    128 Ohio St.3d 153
    , 
    2010-Ohio-6314
    , 
    942 N.E.2d 1061
    . The Court directed us to look at the elements
    of the offenses in question and determine “whether it is possible to commit one offense and the
    other with the same conduct.” (Emphasis sic). Id. at ¶ 48. If the answer to such question is in the
    affirmative, the court must then determine whether or not the offenses were committed by the
    same conduct. Id. at ¶ 49. If the answer to the above two questions is yes, then the offenses are
    allied offenses of similar import and will be merged. Id. at ¶ 50. If, however, the court determines
    that commission of one offense will never result in the commission of the other, or if there is a
    separate animus for each offense, then the offenses will not merge. Id. at ¶ 51.
    {¶17} Johnson's rationale has been described by the Court as “incomplete.” State v.
    Earley, 
    145 Ohio St.3d 281
    , 
    2015-Ohio-4615
    , 
    49 N.E.3d 266
    , ¶ 11. The Supreme Court of Ohio
    has further instructed us to ask three questions when a defendant's conduct supports multiple
    offenses: “(1) Were the offenses dissimilar in import or significance? (2) Were they committed
    separately? and (3) Were they committed with separate animus or motivation? An affirmative
    answer to any of the above will permit separate convictions. The conduct, the animus, and the
    import must all be considered.” State v. Ruff, 
    143 Ohio St.3d 114
    , 
    2015-Ohio-995
    , 
    34 N.E.3d 892
    ,
    ¶ 31.
    {¶18} Moore acknowledges that he did not address the issue of merger with the trial
    court, presumably because the parties stipulated that the charges did not merge. Thus we are
    limited to searching for plain error. Plain error is often construed to encompass “error[s] of law or
    other defect[s] evident on the face of the magistrate's decision,” which prohibit the adoption of a
    magistrate's decision even in the absence of objections. Ohio Civ.R. 53(D)(4)(c). McConkey v.
    Roberts, 5th Dist. Guernsey No. 06 CA 35, 
    2007-Ohio-6102
    , ¶ 22. “[T]he plain error doctrine is
    not favored and may be applied only in the extremely rare case involving exceptional
    circumstances where error, to which no objection was made at the trial court, * * * seriously affects
    the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the
    Muskingum County, Case No. CT2021-0025                                                      10
    legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 
    79 Ohio St.3d 116
    ,
    
    1997-Ohio-401
    , 
    679 N.E.2d 1099
     (1997).
    {¶19} We find no error in this case as this court has previously rejected the argument
    posited by Moore, finding each individual image constitutes a separate offense:
    We find the multiple offenses of pandering sexually oriented matter
    involving a minor in the case do not merge. We thus join with multiple other Ohio
    appellate court districts which have found that “multiple convictions are allowed for
    each individual image because a separate animus exists every time a separate
    image or file is downloaded and saved.” State v. Duhamel, 8th Dist. Cuyahoga
    No. 102346, 
    2015-Ohio-3145
     [
    2015 WL 4656547
    ], ¶ 62, citing State v. Mannarino,
    8th Dist. Cuyahoga No. 98727, 
    2013-Ohio-1795
     [
    2013 WL 1859026
    ], ¶ 53; see
    also, State v. Eal, 10th Dist. Franklin No. 11AP-460, 
    2012-Ohio-1373
     [
    2012 WL 1078331
    ], ¶ 93. The selection of each individual video or image is a separate
    decision. 
    Id.
    State v. Starcher, 5th Dist. Stark No. 2015CA00058, 
    2015-Ohio-5250
    , 
    2015 WL 9078463
    ,
    ¶ 35.
    {¶20} We find the trial court did not err in failing to merge the offenses, as each count
    represented an image or video, and a separate animus exists every time a separate image or file
    is downloaded or saved. State v. Ryan, 5th Dist. No. 18 CAA 01 0011, 
    2018-Ohio-4739
    , 
    116 N.E.3d 170
    , ¶¶ 65-67 cause dismissed,
    154 Ohio St.3d 1448
    , 
    2018-Ohio-4977
    , 
    113 N.E.3d 555
    ,
    ¶¶ 65-67.
    {¶21} Moore’s second assignment of error is overruled.
    III.
    {¶22} In his third assignment of error, Moore contends he received ineffective assistance
    of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must
    Muskingum County, Case No. CT2021-0025                                                        11
    demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell below an
    objective standard of reasonable representation, and (2) that counsel's errors prejudiced the
    defendant, i.e., a reasonable probability that but for counsel's errors, the result of the trial would
    have been different. Strickland v. Washington, 
    466 U.S. 668
    , 687–688, 694, 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984); State v. Bradley, 
    42 Ohio St.3d 136
    , 
    538 N.E.2d 373
     (1989), paragraphs two
    and three of the syllabus. "Reasonable probability" is "probability sufficient to undermine
    confidence in the outcome." Strickland at 694.
    {¶23} Moore argues trial counsel was ineffective because he failed to argue against the
    Regan Tokes Act. We have found that the issue is not ripe for review and therefore reject Moore’s
    argument because, under the current state of the law, there is not a reasonable probability that
    the outcome would have been different had trial counsel presented the argument. Likewise,
    Moore’s contention that his trial counsel was ineffective for failing to argue that the offenses did
    not merge must fail as we have found that the charges of Pandering Obscenity Involving a Minor
    do not merge as they were based upon separate images.
    Muskingum County, Case No. CT2021-0025                                            12
    {¶24} Moore’s third assignment of error is denied and the decision of the Muskingum
    County Court of Common Pleas is affirmed.
    By: Baldwin, J.
    Wise, John, J. concur.
    Gwin, P.J. concurs in part,
    Dissents in part.
    Muskingum County, Case No. CT2021-0025                                             13
    Gwin, J., concurs in part; dissent in part.
    {¶25} I concur in the majority’s disposition of Appellant’s Second and Third
    Assignments of Error.
    {¶26} I respectfully dissent from the majority’s opinion concerning ripeness and
    Appellant’s First Assignment of Error for the reasons set forth in my dissenting opinion in
    State v. Wolfe, 5th Dist., Licking No. 2020 CA 00021, 
    2020-Ohio-5501
    .
    {¶27} I further note that the Ohio Supreme Court has accepted a certified conflict
    on the issue of whether the constitutionally of the Reagan Tokes Act is ripe for review on
    direct appeal or only after the defendant has served the minimum term and been subject
    to extension by application of the Act. See, State v. Maddox, 6th Dist. Lucas No. L-19-
    1253, 
    2020-Ohio-4702
    , order to certify conflict allowed, State v. Maddox, 
    160 Ohio St.3d 1505
    , 
    2020-Ohio-6913
    , 
    159 N.E.3d 1150
    (Table) The conflict cases are State v. Leet, 2d
    Dist. Montgomery No. 28670, 
    2020-Ohio-4592
    ; State v. Ferguson, 2d Dist. Montgomery
    No. 28644, 
    2020-Ohio-4153
    ; State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-
    Ohio-4150; and State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 
    2020-Ohio-3837
    ;
    See also, State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 
    2020-Ohio-4227
    ,
    appeal accepted on Appellant’s Proposition of Law No. II, State v. Downard, 
    160 Ohio St.3d 1507
    , 
    2020-Ohio-6835
    , 
    159 N.E.3d 1507
     (Table)(Sua sponte, cause held for the
    decision in 2020-1266, State v. Maddox). The Ohio Supreme Court heard oral arguments
    on that case on June 29, 2021.