State v. Clark , 2020 Ohio 5013 ( 2020 )

[Cite as State v. Clark, 2020-Ohio-5013.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2020 CA 00017
JASON D. CLARK
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Case No. 2019 CR
00894
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 20, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM C. HAYES KORT GATTERDAM
Licking County Prosecutor ERIK P. HENRY
Carpenter, Lipps & Leland, LLP
PAULA M. SAWYERS 280 Plaza, Suite #1300
Assistant Prosecuting Attorney 280 North High Street
20 S. Second Street, Fourth Floor Columbus, Ohio 43215
Newark, Ohio 43055
Licking County, Case No. 2020 CA 00017 2
Hoffman, P.J.
{¶1} Appellant Jason D. Clark appeals the judgment entered by the Licking
County Common Pleas Court convicting him following his pleas of guilty to aggravated
possession of controlled substances (methamphetamine) (R.C. 2925.11(A)(C)(1)(c)),
aggravated trafficking in drugs (methamphetamine) (R.C. 2925.03(A)(2)(C)(1)(d)),
aggravated possession of controlled substances (fentanyl) (R.C. 2925.11(A)(C)(1)(a)),
aggravated trafficking in drugs (fentanyl) (R.C. 2925.03(A)(1)(C)(1)(a)), and possession
of controlled substances (heroin) (R.C. 2925.11(A)(1)(6)(a)) with a forfeiture specification,
and sentencing him to an aggregate minimum prison term of three years and an
aggregate indefinite maximum prison term of four and one-half years. Appellee is the
state of Ohio.
STATEMENT OF THE CASE1
{¶2} On November 14, 2019, Appellant was indicted by the Licking County
Grand Jury with five offenses: aggravated possession of controlled substances
(methamphetamine), a felony of the second degree; aggravated trafficking in drugs
(methamphetamine), a felony of the second degree; aggravated possession of controlled
substances (fentanyl), a felony of the third degree; aggravated trafficking in drugs
(fentanyl), a felony of the third degree; and possession of controlled substances (heroin),
a felony of the fifth degree. The indictment included a forfeiture specification for $1,356.31
in cash. On November 26, 2019, the State moved to amend counts three and four to
charge a felony of the fifth degree and a felony of the fourth degree, respectively. The
trial court granted the motion on November 27, 2019.
1 A rendition of the facts is not necessary for our resolution of the issues raised on appeal.
Licking County, Case No. 2020 CA 00017 3
{¶3} In anticipation of resolving the case through a plea agreement, on January
13, 2020, Appellant filed a motion to strike the indefinite sentencing provisions of Senate
Bill 201, the Reagan Tokes Act. The court denied the motion.
{¶4} On January 30, 2020, Appellant entered pleas of guilty to the indictment as
amended. He was convicted of all counts and the forfeiture specification. The court
merged counts one and two, with the State electing to have Appellant sentenced on count
one. The court also merged counts three and four, with the State electing to proceed to
sentencing on count three.
{¶5} On count one of aggravated possession of controlled substances, the trial
court sentenced Appellant to a stated minimum term of incarceration of three years and
a maximum indefinite term of incarceration of four and one-half years. The court
sentenced Appellant to twelve months incarceration on count three, and twelve months
incarceration on count five. The court ordered all sentences to run concurrently, for an
aggregate sentence of three to four and one-half years.
{¶6} It is from the January 30, 2020 judgment of the Licking County Common
Pleas Court Appellant prosecutes this appeal, assigning as error:
I. THE TRIAL COURT ERRED IN FINDING THE INDEFINITE
SENTENCING PROVISIONS OF SENATE BILL 201 CONSTITUTIONAL.
I.
{¶7} In his assignment of error, Appellant challenges the presumptive release
feature of R.C. 2967.271, arguing it violates his constitutional rights to trial by jury and
Licking County, Case No. 2020 CA 00017 4
due process of law, and further violates the constitutional requirement of separation of
powers. 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:
(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
Licking County, Case No. 2020 CA 00017 5
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.
Licking County, Case No. 2020 CA 00017 6
(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
Licking County, Case No. 2020 CA 00017 7
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.
{¶8} Appellant 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.
However, 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.
{¶9} 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
Licking County, Case No. 2020 CA 00017 8
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 the defendant foretells legal injury to the
plaintiff.” Comment, Mootness and Ripeness: The Postman Always Rings
Twice (1965), 65 Colum. L.Rev. 867, 876.
{¶10} Id. at 89, 694 N.E.2d at 460.
{¶11} In State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-Ohio-171, the
defendant argued 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.
{¶12} Likewise, in the instant case, while R.C. 2967.271 allows the DRC to rebut
the presumption Appellant will be released after serving his three year minimum sentence
and potentially continue his incarceration to a term not exceeding four and one-half years,
Appellant has not yet been subject to such action by the DRC, and thus the constitutional
Licking County, Case No. 2020 CA 00017 9
issue is not yet ripe for our review. Our conclusion is consistent with our duty not to issue
advisory opinions, as well as “‘the cardinal principle of judicial restraint—if it is not
necessary to decide more, it is necessary not to decide more.’” State ex rel.
LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶51,
quoting PDK Laboratories, Inc. v. United States Drug Enforcement Adm. (C.A.D.C.2004),
362 F.3d 786, 799 (C.A.D.C. 2004)(Roberts, J., concurring in part and in judgment).
{¶13} In State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000),
the Ohio Supreme Court held the former R.C. 2967.11, which allowed executive branch
officials to try, convict, and add bad time to a prisoner's term for a criminal violation
occurring during the course of the prisoner's stated term of incarceration, violated the
constitutional doctrine of separation of powers and was therefore unconstitutional The
case involved three prisoners who had been subject to application of the “bad time”
provision. One prisoner had filed a writ of habeas corpus in the Court of Appeals for
Warren County, which denied the writ, and he appealed. A second prisoner filed a writ of
habeas corpus in the Court of Appeals for Trumbull County, which granted the writ, and
the State appealed. A third prisoner filed an original petition for a writ of habeas corpus in
the Ohio Supreme Court. Although the Bray court did not specifically discuss the
necessity of the use of a writ of habeas corpus to challenge the constitutionality of the
bad time provisions of the statute, the court ruled on the merits of the writs, finding the
statute violated the constitutional doctrine of separation of powers. Id. at 136, 729 N.E.2d
at 362. We thus infer the appropriate method for Appellant to challenge the
constitutionality of the presumptive release portions of R.C. 2967.271 is by filing a writ of
Licking County, Case No. 2020 CA 00017 10
habeas corpus if he is not released at the conclusion of his three year minimum term of
incarceration.
{¶14} See, also, State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-
Ohio-4227; State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-4230(constitutionality of Reagan Tokes Law not ripe for review where defendant was not yet
subject to presumptive release provisions).
{¶15} We find the issue raised in this appeal is not yet ripe for review.
{¶16} The appeal is dismissed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur