State v. Dames , 2020 Ohio 4991 ( 2020 )


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  • [Cite as State v. Dames, 
    2020-Ohio-4991
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    STATE OF OHIO,                                    :
    Plaintiff-Appellee,               :
    No. 109090
    v.                                :
    ANTHONY DAMES,                                    :
    Defendant-Appellant.              :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: AFFIRMED
    RELEASED AND JOURNALIZED: October 22, 2020
    Criminal Appeal from the Cuyahoga County Court of Common Pleas
    Case No. CR-19-639052-A
    Appearances:
    Michael C. O’Malley, Cuyahoga County Prosecuting
    Attorney, and Daniel T. Van, Amanda Hall, and Gregory
    Ochocki, Assistant Prosecuting Attorneys, for appellee.
    Mark A. Stanton, Cuyahoga County Public Defender, and
    John T. Martin, Assistant Public Defender, for appellant.
    MARY EILEEN KILBANE, J.:
    Defendant-appellant, Anthony Dames (“Dames”), appeals his
    sentence imposed pursuant to the Reagan Tokes Act. The sole issue before us is the
    constitutionality of the statute; we find that Dames has not preserved this issue for
    appeal, and for the following reasons, we affirm.
    The Reagan Tokes Act
    Senate Bill 201, commonly known as the Reagan Tokes Act, became
    effective on March 22, 2019.1 The statute returns an indefinite sentencing scheme
    to Ohio for certain qualifying offenses.         All first- and second-degree felonies
    committed after March 22, 2019, that are not already carrying a life sentence are
    considered qualifying offenses. When confronting a nonconsecutive or concurrent
    sentence, the Reagan Tokes Act first requires the sentencing judge to impose an
    indefinite sentence with a minimum term selected by the judge. The judge must also
    impose a maximum term predetermined pursuant to a statutory formula set forth
    in R.C. 2929.144. The maximum term is 50% of the minimum term plus the
    minimum term. An offender sentenced under Reagan Tokes has a rebuttable
    presumption of release at the conclusion of his minimum term. However, at the
    conclusion of his minimum term, the Ohio Department of Rehabilitation and
    Correction (“ODRC”), must hold a hearing and may rebut the presumption of
    release.
    At the hearing, the ODRC must make specific findings to justify
    keeping the offender beyond the presumptive release date up to the maximum
    1The bill is named after a young woman, Reagan Tokes, a 21-year-old senior at the Ohio
    State University. She was raped and murdered on February 8, 2017. Her assailant had
    recently been released from prison on parole after serving six years on a rape conviction;
    he had over fifty institutional violations from five different prisons over the course of his
    incarceration.
    sentence. In the instant case, Dames has a minimum sentence of seven years, and a
    maximum sentence of ten and a half years, the ODRC may make specific findings
    and hold Dames up to three and a half years more than his minimum term until the
    conclusion of the maximum term.
    Pursuant to R.C. 2967.271(C), the ODRC must find that one of the
    following three conditions applies in order to hold an offender beyond the minimum
    term:
    (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.
    While the ODRC may exercise its discretion to keep an offender
    imprisoned, it also may exercise its discretion to demonstrate that the offender
    merits early release, as long as the offender is not disqualified due to his security
    level. Under the Reagan Tokes Act, the ODRC must draft administrative rules that
    credit inmates who demonstrate appropriate conduct with “earned reduction of
    minimum prison term” (“ERMPT”).          ERMPT can reduce the minimum term
    between 5 and 15%. There is a rebuttable presumption that the offender gets the
    ERMPT credit once the ODRC requests it for the inmate.
    The trial court will hold a hearing where the victim of the crime and
    the state of Ohio can present arguments that the offender should stay in prison. The
    trial court must then make findings to rebut the presumption; otherwise the ERMPT
    is considered earned.
    We turn now to the particulars of Dames’s case.
    Facts
    This appeal arises from the arrest of Anthony Dames on April 12,
    2019, a period following the effective date of the Reagan Tokes Act. As a result,
    Dames is one of the first individuals in Cuyahoga County to qualify for sentencing
    under the statute.
    On April 29, 2019, the Grand Jury returned a six-count indictment
    for Dames. On May 2, 2019, Dames pled not guilty to the indictment. On July 22,
    2019, Dames retracted his not guilty plea and pled guilty to four counts: felonious
    assault, a second-degree felony in violation of R.C. 2903.11(A)(1); felonious assault,
    a second-degree felony in violation of R.C. 2903.11(A)(2); attempted felonious
    assault, a third-degree felony in violation of R.C. 2923.02 and 2903.11(A)(2) as
    amended in the indictment; and domestic violence, a fourth-degree felony in
    violation of R.C. 2919.25(A). All counts merged and the state elected to proceed to
    sentencing on count 1, second-degree felonious assault.
    On September 9, 2019, the court sentenced Dames pursuant to the
    Reagan Tokes Act. The trial court judge informed Dames that he was being
    sentenced under the new indefinite sentencing scheme to a minimum term of seven
    years with an indefinite maximum term of ten and a half years. Pursuant to the
    statute, the court accurately advised Dames that there was a rebuttable presumption
    that he would be released at the end of his minimum term, but that the ODRC would
    hold a hearing and could exercise its discretion to continue to keep Dames
    imprisoned up to three and a half years until the end of the maximum term.
    Dames did not object to his sentence nor raise any constitutional
    challenge to the Reagan Tokes Act at any point during his sentencing hearing. He is
    now appealing the constitutionality of the statute, presenting a single assignment of
    error.
    Assignment of Error I
    As amended by the Reagan Tokes Act, the Revised Code’s sentences for
    first and second degree qualifying felonies violate the constitutions of
    the United States and the state of Ohio.
    Analysis
    After careful consideration, we find that Dames has failed to preserve
    his claim challenging the constitutionality of the Reagan Tokes Act, and we decline
    to review his challenge as a result.
    “[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. Buttery, Slip Opinion No. 
    2020-Ohio-2998
    , ¶ 7, quoting State v.
    Awan, 
    22 Ohio St.3d 120
    , 122, 
    489 N.E.2d 277
     (1986). Dames’s failure to raise a
    constitutional challenge at the trial court level forfeits the argument. Buttery at ¶ 7,
    see also State v. Alexander, 12th Dist. Butler No. CA2019-12-204, 
    2020-Ohio-3838
    .
    Further, Dames failed to make an argument that plain error occurred.
    Even if the appellant failed to object to the constitutionality of the
    statute at the trial-court level, appellate courts may still review a trial court decision
    for plain error. State v. Quarterman, 
    140 Ohio St.3d 464
    , 
    2014-Ohio-4034
    , 
    19 N.E.3d 900
    , ¶ 16. However, in order to review for plain error “we require a showing
    that there was an error, that the error was plain or obvious, that but for the error the
    outcome of the proceeding would have been otherwise, and that reversal must be
    necessary to correct a manifest miscarriage of justice.” Buttery at ¶ 7. Dames did
    not make any plain error showing for this court to review.
    Despite Dames’s forfeiture and his lack of a plain error showing, we
    may still review this challenge; appellate courts have the discretion to consider
    constitutional challenges to the application of statutes despite forfeiture “where the
    rights and interests involved may warrant it.” Quarterman at ¶ 16, quoting In re
    M.D., 
    38 Ohio St.3d 149
    , 
    527 N.E.2d 286
     (1988), syllabus. The Second District has
    reviewed a challenge to Reagan Tokes where the defendant failed to object at the
    trial level; nevertheless the court exercised its discretion and found Reagan Tokes
    constitutional. State v. Barnes, 2d Dist. Montgomery No. 28613, 
    2020-Ohio-4150
    .
    However, while we recognize that we have the authority to review Dames’s
    challenge, we decline to exercise our discretion for three reasons.
    First, we are conscious that when considering the constitutionality of
    a statute, we presume constitutionality. Harrold v. Collier, 
    107 Ohio St.3d 44
    , 2005-
    Ohio-5334, 
    836 N.E.2d 1165
    , ¶ 36, citing State v. Thompkins, 
    75 Ohio St.3d 558
    ,
    560, 
    664 N.E.2d 926
     (1996). We note as an aside that our sister courts, presuming
    constitutionality, have reviewed challenges to the Reagan Tokes Act and found that
    the statute did not violate due process rights or infringe on the separation of powers.
    See State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 
    2020-Ohio-3837
    ; State
    v. Ferguson, 2d Dist. Montgomery No. 28644, 
    2020-Ohio-4153
    ; State v. Leet, 2d
    Dist. Montgomery No. 28670, 
    2020-Ohio-4592
    .
    Second, the Ohio Supreme Court has observed that justice is better
    served when there is a lower court decision to consider. Sizemore v. Smith, 
    6 Ohio St.3d 330
    , 333, 
    453 N.E.2d 632
     (1983), fn. 2. Dames did not object, so the lower
    court did not have the opportunity to rule on the constitutionality of the statute.
    Third, Dames did not raise any plain error arguments for us to
    address.
    Given the lack of presentment to the trial court and the absence of
    plain error arguments, we decline to address the constitutionality of the Reagan
    Tokes Act as to this case.
    Finally, we note that some of our sister courts have found that
    challenges to the Reagan Tokes Act are not yet ripe for review. See State v.
    Downard, 5th Dist. Muskingum No. CT2019-0079, 
    2020-Ohio-4227
    ; State v.
    Manion, 5th Dist. Tuscarawas No. AP 03 0009, 
    2020-Ohio-4230
    ; State v. Kibler,
    5th Dist. Muskingum No. CT2020-0026, 
    2020-Ohio-4631
    ; State v. Maddox, 6th
    Dist. Lucas No. CL-19-1253, 
    2020-Ohio-4702
    ; see also State v. Conant, 4th Dist.
    Adams No. 20CA1108, 
    2020-Ohio-4319
     (declining to review a Reagan Tokes Act
    challenge where the defendant did not present a plain error argument and the
    defendant did not address whether his challenge was ripe.) Inherent in a challenge
    to the Reagan Tokes Act is a challenge to the executive branch’s authority to hold
    defendants beyond the end of the minimum term and the presumption of release.
    The Fifth and Sixth Districts have found that because the defendant had not yet
    served their minimum term and been imprisoned for all or a portion of the
    maximum term by the executive branch, there was no injury and therefore nothing
    for the courts to do.
    The state argued that this issue was not yet ripe for our review.
    However, we decline to rule on that issue because we have already found that it is
    not proper for us to review Dames’s constitutional challenge for alternative reasons.
    Judgment affirmed.
    It is ordered that appellee recover from appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue of this court directing the common
    pleas court to carry this judgment into execution. The defendant’s conviction having
    been affirmed, any bail pending is terminated. Case remanded to the trial court for
    execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27
    of the Rules of Appellate Procedure.
    MARY EILEEN KILBANE, JUDGE
    EILEEN A. GALLAGHER, P.J., and
    RAYMOND C. HEADEN, J., CONCUR
    

Document Info

Docket Number: 109090

Citation Numbers: 2020 Ohio 4991

Judges: Kilbane

Filed Date: 10/22/2020

Precedential Status: Precedential

Modified Date: 10/22/2020

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