State v. Mills , 2021 Ohio 1180 ( 2021 )

[Cite as State v. Mills, 2021-Ohio-1180.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
CODY MILLS : Case No. 2020 CA 10
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 19CR0118
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 6, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON W. GIVEN JAMES ANZELMO
318 Chestnut Street 446 Howland Drive
Coshocton, OH 43812 Gahanna, OH 43230
Coshocton County, Case No. 2020 CA 10 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Cody Mills appeals the February 25, 2020 judgment
of conviction and sentence of the Coshocton County Court of Common Pleas. Plaintiff-
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} A recitation of the underlying facts in this matter is unnecessary for our
resolution of this appeal.
{¶ 3} On July 26, 2019, the Coshocton County Grand Jury returned a four-count
indictment charging Mills with aggravated trafficking, a felony of the first degree, two
counts of trafficking in heroin, a felonies of the first degree, and having weapons under
disability, a felony of the third degree.
{¶ 4} On February 19, 2020, following negotiations with the state, Mills elected to
enter pleas of guilty to aggravated trafficking and trafficking in heroin. The state dismissed
the charges of having weapons under disability and one count of trafficking in heroin. The
trial court sentenced Mills to a mandatory indefinite prison term of 10 to 15 years.
{¶ 5} Mills filed an appeal and the matter is now before this court for
consideration. He raises three assignments of error as follow:
I
{¶ 6} "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."
Coshocton County, Case No. 2020 CA 10 3
II
{¶ 7} "CODY MILLS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."
III
{¶ 8} "CODY MILLS DID NOT KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY ENTER HIS GUILTY PLEAS, IN VIOLATION OF HIS DUE PROCESS
RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATE CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO
CONSTITUTION."
I, II
{¶ 9} We address Mills' first and second assignments of error together. In his first
assignment of error, Mills argues the indefinite sentencing provisions contained in R.C.
2967.271 are unconstitutional as they violate the separation of powers and due process
provisions of the United States and Ohio constitutions. In his second assignment of error,
Mills argues his counsel rendered ineffective assistance by failing to object to his
indefinite sentence.
{¶ 10} 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
Coshocton County, Case No. 2020 CA 10 4
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 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)
Coshocton County, Case No. 2020 CA 10 5
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.
Coshocton County, Case No. 2020 CA 10 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.
Coshocton County, Case No. 2020 CA 10 7
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 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.
{¶ 11} Mills 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, Mills 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.
{¶ 12} We addressed the concept of ripeness for review in regard to R.C. 2967.271
in State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-4227:
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:
Coshocton County, Case No. 2020 CA 10 8
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 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 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
Coshocton County, Case No. 2020 CA 10 9
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.
{¶ 13} Downard, at ¶8-11. See also, State v. Buckner, 5th Dist. Muskingum Nos.
CT2020-0023 & CT2020-0024, 2020-Ohio-7017; State v. Wolfe, 5th Dist. Licking No.
2020CA00021, 2020-Ohio-5501; State v. Cochran, 5th Dist. Licking No. 2019 CA 00122,
2020-Ohio-5329; State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-Ohio-5013;
State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-4230; State v.
Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631.
{¶ 14} Mills does not dispute he had not yet been subject to the provisions of R.C.
2967.271. We therefore find here as we did in Downard, Mills' constitutional challenges
and his trial counsel's failure to raise the same are not yet ripe for review.
{¶ 15} Mills' first and second assignments of error are overruled.
III
{¶ 16} In his final assignment of error, Mills argues his pleas was not knowingly,
intelligently and voluntarily made because the trial court failed to inform him that he had
a right to make the state prove his guilt beyond a reasonable doubt. We disagree.
Coshocton County, Case No. 2020 CA 10 10
{¶ 17} An examination of the plea hearing transcript reveals the trial court did not
advise Mills of the right to have the state prove his guilt beyond a reasonable doubt.
However, a review of the record indicates on January 25, 2021, the court reporter present
at Mills' sentencing hearing filed an affidavit indicating that following a review of her notes
from that hearing she realized she had mistakenly deleted the words "beyond a
reasonable doubt" from the text. The court reporter made the correction and reprinted
page 11 of the sentencing transcript to include the trial court's notification to Mills that he
had the right "to require the state to prove your guilt beyond a reasonable doubt at a trial
at which you cannot be compelled to testify against yourself." Transcript of Plea at 11.
We therefore reject Mills' argument.
{¶ 18} The final assignment of error is overruled.
{¶ 19} The judgment of the Coshocton County Court of Common Pleas is affirmed.
By Wise, Earle, J.,
Delaney, J. concur.
Gwin, P.J. concurs in part, dissents in part.
EEW/rw
Coshocton County, Case No. 2020 CA 10 11
Gwin, P.J. concurs in part; dissents in part
{¶20} I concur in the majority’s disposition of Appellant’s Third Assignment of
Error.
{¶21} I respectfully dissent from the majority’s opinion concerning ripeness and
Appellant’s First and Second Assignments 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.
{¶22} 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); 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).