State v. Greene , 2023 Ohio 389 ( 2023 )

[Cite as State v. Greene, 2023-Ohio-389.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29274
:
v. : Trial Court Case No. 2021 CR 01793/2
:
KEITH GREENE : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on February 10, 2023
...........
MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee
CARL J. BRYAN, Attorney for Appellant
.............
EPLEY, J.
{¶ 1} Keith Greene appeals from his convictions for aggravated possession of
drugs (methamphetamine) and receiving stolen property. He claims that the trial court
failed to correctly provide the Reagan Tokes Act notifications required by R.C.
2929.19(B)(2)(c) at sentencing. For the following reasons, the trial court’s judgment will
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be reversed, and the matter will be remanded to the trial court for the sole purpose of
conducting a new sentencing hearing in compliance with R.C. 2929.19(B)(2)(c).
I. Procedural History
{¶ 2} Greene pled guilty in the Montgomery County Court of Common Pleas to
receiving stolen property (motor vehicle), a felony of the fourth degree, and aggravated
possession of drugs (equal to or more than 5 times the bulk amount, but less than 50
times the bulk amount), a felony of the second degree. In exchange for the plea, the
State dismissed four additional counts. When the plea occurred, Greene faced the
revocation of his community control in two additional cases: Montgomery C.P. Nos. 19-
CR-4190 and 20-CR-3179. The parties agreed that Greene would receive a minimum
of two years to a maximum of three years in prison “to wrap up both counts here and both
revocation cases.” Plea Tr. 5. The trial court accepted Greene’s guilty plea as knowing,
intelligent, and voluntary.
{¶ 3} After a presentencing investigation, the trial court imposed the agreed
sentence. Specifically, Greene received 12 months in prison for receiving stolen
property and a prison term of a minimum of two years to a maximum of three years for
aggravated possession of drugs, to be served concurrently. The court ordered Greene
to pay court costs. The trial court told Greene that it was suspending his driver’s license
for two years, but the suspension was not included in the court’s judgment entry. The
trial court administratively terminated Greene’s community control in the other two cases.
{¶ 4} Greene appeals from his convictions. His original appellate counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493-3-
(1967), stating that he could find no non-frivolous issues for appeal. We rejected the
Anders brief because the record was incomplete (notably, a transcript of the plea hearing
was not prepared). We appointed new counsel to complete the record and to raise any
issues that counsel believed had arguable merit.
{¶ 5} Greene now raises a single assignment of error, claiming that the trial court
failed to provide the required notifications regarding his indefinite sentence under the
Reagan Tokes Act.
II. Notifications under the Reagan Tokes Act
{¶ 6} R.C. 2929.19(B)(2) states that, if the sentencing court determines at the
sentencing hearing that a prison term is necessary or required, the court must do all seven
enumerated actions specified in that subsection. Of relevance here, R.C.
2929.19(B)(2)(c) identifies notifications that the trial court must provide if it imposes a non-
life felony indefinite prison term pursuant to the Reagan Tokes Act. “Those notifications
generally pertain to the offender’s minimum and maximum prison term and to the
existence and operation of a rebuttable presumption of release from service of the
sentence upon expiration of the minimum term.” State v. Clark, 2d Dist. Montgomery No.
29295, 2022-Ohio-2801, ¶ 7. Specifically, the trial court must notify the offender:
(i) That 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 or on the offender's presumptive earned
early release date, as defined in section 2967.271 of the Revised Code,
whichever is earlier;
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(ii) That the department of rehabilitation and correction may rebut the
presumption described in division (B)(2)(c)(i) of this section if, at a hearing
held under section 2967.271 of the Revised Code, the department makes
specified determinations regarding the offender’s conduct while confined,
the offender’s rehabilitation, the offender's threat to society, the offender's
restrictive housing, if any, while confined, and the offender's security
classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, 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 or after that presumptive earned
early release date for the length of time the department determines to be
reasonable, subject to the limitation specified in section 2967.271 of the
Revised Code;
(iv) That the department may make the specified determinations and
maintain the offender's incarceration under the provisions described in
divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to
the limitation specified in section 2967.271 of the Revised Code;
(v) That 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).
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{¶ 7} We previously have held that an indefinite prison sentence under the Reagan
Tokes Act is contrary to law when the trial court fails to notify the offender at the
sentencing hearing of the information set forth in R.C. 2929.19(B)(2)(c). E.g., State v.
Massie, 2d Dist. Clark No. 2020-CA-50, 2021-Ohio-3376, ¶ 23; State v. Thompson, 2d
Dist. Clark No. 2020-CA-60, 2021-Ohio-4027, ¶ 29; Clark at ¶ 7; State v. McLean, 2d Dist.
Montgomery No. 29268, 2022-Ohio-2806, ¶ 14; State v. Gatewood, 2d Dist. Clark No.
2021-CA-20, 2022-Ohio-2513, ¶ 14. In Massie, we rejected the State’s argument that
the trial court sufficiently notified the offender of all the information in R.C.
2929.19(B)(2)(c) by simply including the information in the judgment entry of conviction.
Massie at ¶ 20-22.
{¶ 8} In this case, Greene claims that the trial court failed to comply with R.C.
2929.19(B)(2)(c)(i)-(iv) by failing to reference R.C. 2967.271 during its Reagan Tokes
notifications. The trial court told Greene at sentencing:
And we do have some advice given the Reagan Tokes indefinite
sentence. Let me indicate for the record, it is rebuttably presumed that Mr.
Greene will be released from service of the prison sentence on the
expiration of the minimum prison term imposed as a part of this sentence or
on his presumptive earned early release date.
The Department of Rehabilitation and Corrections may rebut this
presumption if, at a hearing, the specified determinations regarding Mr.
Greene’s conduct while combined with his rehabilitation, his threat to
society, his restrictive housing, if any, while confined and his security
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clearances if those determinations are made.
If the Department of Rehabilitation and Corrections makes the
specified determinations and rebuts the presumptable (sic) release, the
Department of Rehabilitation and Corrections may maintain Mr. Greene’s
incarceration after the expiration of that minimum term or after that
presumptive earned early release date for the length of time the Department
determines to be reasonable.
The Department of Rehabilitation and Corrections may make the
specified determinations and maintain Mr. Greene’s incarceration more
than one time.
If he’s not been released prior to the expiration of his minimum (sic)
prison term imposed as a part of this sentence, Mr. Greene must be
released upon expiration of that term.
Sentencing Tr. 4-5.
{¶ 9} Upon review of the sentencing transcript, the trial court did not quote R.C.
2929.19(B)(2)(c)(i)-(iv) verbatim, and it did not mention R.C. 2967.271 specifically.
Nevertheless, the court’s advisements closely tracked the language of the statute, and
the trial court adequately complied with its obligation to provide Greene the information
contained in R.C. 2929.19(B)(2)(c)(i)-(iv). As a result of the notifications, Greene was
informed about the rebuttable presumption regarding his release, how the Ohio
Department of Rehabilitation and Correction (ODRC) could rebut the presumption, what
ODRC was permitted to do if it rebutted the presumption, and that ODRC could make the
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specific determinations and maintain his incarceration more than once. The trial court’s
advisements under R.C. 2929.19(B)(2)(c)(i)-(iv) were not contrary to law.
{¶ 10} We note that the trial court misspoke when it told Greene that, if he had not
been released prior to the expiration of the “minimum prison term imposed as part of this
sentence,” he must be released when that term expired. (Emphasis added.) We infer
that the court meant to inform Greene, pursuant to R.C. 2929.19(B)(2)(c)(v), that he must
be released upon the expiration of his maximum term, if he had not already been
released. This misstatement, while perhaps inadvertent, was nevertheless material and
constituted a failure to provide the notification required by R.C. 2929.19(B)(2)(c)(v).
Consequently, the matter must be remanded for resentencing in accordance with R.C.
2929.19(B)(2)(c).
{¶ 11} Greene’s assignment of error is sustained.
III. Conclusion
{¶ 12} The trial court’s judgment will be reversed, and the matter will be remanded
to the trial court for the sole purpose of conducting a new sentencing hearing in
compliance with R.C. 2929.19(B)(2)(c).
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WELBAUM, P.J. and TUCKER, J., concur.