State v. Thompson , 2021 Ohio 4027 ( 2021 )

[Cite as State v. Thompson, 2021-Ohio-4027.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-60
:
v. : Trial Court Case No. 2020-CR-59
:
JACOB THOMPSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 12th day of November, 2021.
...........
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
R. JESSICA MANUNGO, Atty. Reg. No. 0094077, Office of the Ohio Public Defender,
250 East Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Jacob Thompson was found guilty, following a jury trial, of one count of rape,
in violation of R.C. 2907.02(A)(1)(c), a felony of the first degree, and one count of sexual
battery, in violation of R.C. 2907.03(A)(2), a felony of the third degree. The trial court
merged the offenses, and the State elected to proceed to sentencing on the rape offense;
the court sentenced Thompson to 10 to 15 years in prison and designated him a Tier
Three sex offender. Thompson’s appeals from his conviction, challenging only the
imposition of sentence pursuant to the Reagan Tokes Act. Because the trial court failed
to properly advise Thompson at sentencing of the notifications set forth in R.C.
2929.19(B)(2)(c), we affirm in part, reverse in part, and remand the matter solely for
resentencing pursuant to R.C. 2929.19(B)(2)(c).
{¶ 2} At sentencing, the trial court advised Thompson as follows:
The offense having occurred in December of 2019, the Court finds
that a sentencing would be subject to the new sentencing law for first and
second degree felonies. That the Court is required to impose a minimum
term of ten (10) years in the Ohio State Penitentiary, up to a maximum term
of fifteen (15) years.
There is a presumption, Mr. Thompson, that you will be released
after serving the minimum term of ten years. * * *
{¶ 3} The trial court’s judgment entry of conviction stated:
A. Findings
The Court considered the record, oral statements of counsel, the
defendant’s statement, the defendant’s criminal history, and the principles
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and purposes of sentencing under Ohio Revised Code Section 2929.11,
and then balanced the seriousness and recidivism factors under Ohio
Revised Code Section 2929.12.
The Court finds that the rape is a qualifying felony of the first degree
because it was committed on or after March 22, 2019, which is the effective
date of Ohio Revised Code Section R.C. 2929.144(A).
Since the defendant is being sentenced for one qualifying felony, and
that is a felony of the first degree, the maximum prison term for that offense
shall be equal to the minimum term imposed on the defendant plus fifty
percent (50%) of that term.
B. Sentence
IT IS HEREBY ORDERED that the defendant serve an indefinite
prison term of ten (10) to fifteen (15) years in the Ohio Department of
Rehabilitation and Correction (ODRC) with jail credit from February 4, 2020
to February 7, 2020 and June 25, 2020 until conveyance to the penitentiary.
***
D. Rebuttable Presumption
The Court has notified the defendant that, pursuant to Ohio Revised
Code Section 2967.271(B), it is presumed that, on the indefinite sentence
of ten (10) to fifteen (15) years, he will be released from prison upon the
expiration of the minimum prison term imposed, which is ten (10) years.
The Court has further notified the defendant that, pursuant to Ohio
Revised Code Section 2967.271(C), ODRC may rebut the presumption at
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a hearing. If the presumption is rebutted, the defendant may remain in
prison after the expiration of the minimum prison term for a period of time
up to the maximum term, which is fifteen (15) years.
ODRC may rebut the presumption only if it determines, at a hearing,
that one or more of the following applies:
(I) Regardless of the security level in which the defendant is
classified at the time of the hearing, both of the following apply:
(a) During the defendant’s incarceration, he 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 he has not been rehabilitated.
(b) The defendant’s behavior while incarcerated demonstrates that
he continues to pose a threat to society.
(2) Regardless of the security level in which the defendant is
classified at the time of the hearing, he has been placed by ODRC in
extended restrictive housing at any time within the year preceding the date
of the hearing.
(3) At the time of the hearing, the defendant is classified by the
department as a security level three, four, or five, or at a higher security
level.
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{¶ 4} The judgment entry further set forth several statutory provisions in the
Revised Code by means of which Thompson’s prison term could potentially be reduced,
and it informed him that post-release control was mandatory for five years and of the
possible sanctions if he violated post-release control.
{¶ 5} In November 2020, Thompson filed a motion for leave to file a delayed
appeal, which this court granted in December 2020. On appeal, Thompson’s first
assignment of error is as follows:
BECAUSE THE REAGAN TOKES ACT VIOLATES THE OHIO AND
UNITED STATES CONSTITUTIONS, MR. THOMPSON’S SENTENCE IS
CONTRARY TO LAW. R.C. 2953.08(g)(2); SIXTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION; ARTICLES I,
II, AND III OF THE UNITED STATES CONSTITUTION; ARTICLE I,
SECTION 5, 10 AND 16 OF THE OHIO CONSTITUTION; CITY OF S.
EUCLID V. JEMISON, 28 OHIO ST.3D 157, 158-59, 503 N.E.2D 136
(1986).
{¶ 6} Thompson asserts that the Reagan Tokes Act is “facially unconstitutional.”
First, he asserts that the Act violates the separation of powers in two ways: 1) by allowing
the ODRC to extend the sentence imposed by a sentencing court, “the executive branch
interferes with and amends a final judgment of a trial court, thereby usurping the
judiciary’s inherent authority to sentence and issue final judgments”; and (2) by allowing
ODRC to act “as judge, prosecutor, and jury,” i.e., to make a factual determination,
charge, judge, convict, and sentence him for the commission of a new act, the executive
branch would be “performing inherently judicial functions.” He cites State ex rel. Bray v.
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Russell, 89 Ohio St.3d 132, 729 N.E.2d 259 (2000). He asserts that the “absence of
judicial involvement is fatal” to ODRC’s ability to impose an extended term of incarceration
upon an inmate.
{¶ 7} Thompson further argues that the Reagan Tokes Act violates the
constitutional right to trial by jury. He directs our attention to Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584,
122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403. Thompson asserts that “[o]nly with ‘bad behavior’ ” can
ODRC unilaterally decide to continue incarceration, and this “bad behavior or ‘bad time’
structure” has already been deemed unconstitutional in Russell. Thompson argues a
Reagan Tokes sentence can only be extended if ODRC finds facts to rebut the
presumption, and therefore the “hybrid sentence” is unconstitutional because “an
increase in punishment beyond the presumptive minimum sentence is dependent upon,
and triggered by, one or more findings of fact made” by ODRC, not by a jury.
{¶ 8} Thompson further asserts that Reagan Tokes Act violates due process
requirements: “while R.C. 2967.271 provides for a[n] [O]DRC hearing before the
additional prison time is imposed, the Reagan Tokes [Act] provides no structure as to how
the hearing will be conducted or the rights the defendant will have at that hearing.” He
asserts that ODRC’s ability to rebut the presumed minimum term “raises a myriad of due
process questions and concerns” by failing to give notice, set parameters on executive
branch discretion, and establish adequate guarantees for fair hearings. He also argues
that “people serving hybrid sentences are not under adequate notice as to what conduct
will trigger an increase in a sentence under R.C. 2967.271.”
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{¶ 9} The State responds that, because the minimum and maximum prison terms
are originally imposed by the trial court and included as part of the trial court’s sentence,
the Reagan Tokes Act does not allow permit the executive branch, via ODRC, to lengthen
the sentence beyond the maximum sentence imposed by the trial court. The State notes
that this Court and others have consistently held that the Reagan Tokes Act does not
violate the separation of powers doctrine and is not unconstitutional.
{¶ 10} The State also asserts that it is impossible to know if a defendant will commit
violations in the future that would prompt an ODRC hearing to potentially extend his
presumptive release date, such that the harm that the defense’s argument alleges is
speculative, and any claim that the Act violates the right to trial by jury “is not ripe for
adjudication.” The State further asserts that the Reagan Tokes Act does not violate a
defendant’s right to a jury trial because the conviction on which the indefinite sentence is
based could have been tried to a jury.
{¶ 11} Finally, the State asserts that the Act does not violate due process because
it provides for notice of a hearing at which the defendant has an opportunity to be heard.
{¶ 12} In reply, Thompson argues that, at the expiration of the minimum sentence,
he has “no options to appeal” the ODRC’s decision to impose a portion of his maximum
term under Reagan Tokes. He argues that the finality of his judgment entry of conviction
“means the penalty can be challenged by direct appeal and is therefore ripe for review.”
Regarding separation of powers, Thompson asserts that this Court should reconsider
State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, in which we held
that the Reagan Tokes Act does not violate the separation of powers doctrine and is not
unconstitutional.
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{¶ 13} Regarding due process and notice, Thompson argues that incarcerated
offenders “have a protected, state-created liberty interest in avoiding restrictive conditions
of confinement” and “an inherent liberty interest in being released from confinement on
their presumptive release date.” He argues that “the procedural protections accorded
that liberty interest must be constitutionally sufficient, including a hearing before a neutral
magistrate and notice,” and that ODRC is not a neutral magistrate because it has “an
adversarial relationship with incarcerated individuals.” Thompson argues that without
“an opportunity to receive sufficient notice and be heard in a meaningful manner by a
neutral magistrate, the sentencing provisions of Reagan Tokes fail to adequately protect”
a defendant’s due process rights.
{¶ 14} It is well-settled that “[a]s a threshold matter, we are to presume that the
state statute is constitutional, and the burden is on the person challenging the statute to
prove otherwise beyond a reasonable doubt.” State v. Lowe, 112 Ohio St.3d 507, 2007-
Ohio-606, 861 N.E.2d 512, ¶ 17, citing Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779,
795 N.E.2d 633, ¶ 4. A statute may be challenged as unconstitutional on the basis that
it is invalid on its face or as applied to a particular set of facts. Id., citing, e.g., United
States v. Eichman, 496 U.S. 310, 312, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990). As
noted above, Thompson asserts that the Reagan Tokes Act is unconstitutional on its face.
{¶ 15} This Court has recently noted:
On March 22, 2019, the Reagan Tokes Law (S.B. 201) became
effective in Ohio. This law requires sentencing courts to impose indefinite
prison sentences for felonies of the first or second degree that are
committed on or after the law's effective date. The law specifies that the
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indefinite sentences will consist of a minimum term selected by the
sentencing judge from a range of terms set forth in R.C. 2929.14(A), and a
maximum term determined by formulas set forth in R.C. 2929.144. The
law also establishes a presumption that the offender will be released at the
end of the minimum term. R.C. 2967.271(B). The Ohio Department of
Rehabilitation and Correction (“ODRC”), however, may rebut that
presumption. R.C. 2967.271(C). In order to rebut the presumption for
release at the end of the minimum term, the ODRC must conduct a hearing
and determine whether certain statutory factors are applicable. R.C.
2967.271(C)(1), (2) and (3). If the presumption is rebutted, the ODRC may
maintain the offender's incarceration beyond the minimum term for a
reasonable period of time not to exceed the maximum term imposed by the
sentencing judge. R.C. 2967.271(D).
State v. Massie, 2d Dist. Clark No. 2020-CA-50, 2021-Ohio-3376, ¶ 6.
{¶ 16} In this case, Thompson is presumed to be entitled to release after serving
10 years of his sentence, but the ODRC may rebut that presumption and hold him in
prison for up to 15 years (the full maximum term).
{¶ 17} We will first address Thompson’s arguments that the Reagan Tokes Act
violates the separation of powers doctrine and due process, and then address his
argument that the Act violates his right to a trial by jury.
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{¶ 18} As noted by the Sixth District Court of Appeals:1
* * * [O]ther jurisdictions have implicitly determined the issue to be
ripe for review by addressing the constitutional challenge to the Re[a]gan
Tokes provisions regarding future, possible extensions of a prison term
beyond the presumed minimum term. The Second District Court of
Appeals found the law constitutional in State v. Barnes, 2d Dist.
Montgomery No. 28613, 2020-Ohio-4150, State v. Leet, 2d Dist.
Montgomery No. 28670, 2020-Ohio-4592, andState v. Ferguson, 2d Dist.
Montgomery No. 28644, 2020-Ohio-4153.
State v. Velliquette, 2020-Ohio-4855, 160 N.E.3d 414, ¶ 30 (6th Dist.).
{¶ 19} In State v. Compton, 2d Dist. Montgomery No. 28912, 2021-Ohio-1513,
¶ 11, we stated:
We recently considered the constitutionality of the Reagan Tokes
Law in State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153and concluded that it does not violate the separation-of-powers doctrine.
We reached this conclusion because we found that the Law's scheme is
1
We note that the Ohio Supreme Court recognized a conflict between appellate districts
on December 28, 2020. State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159
N.E.3d 1150. The Court accepted the following question for review: “Is the
constitutionality of the provisions of the Reagan Tokes Act, which allow the Department
of Rehabilitation and Correctio[n] to administratively extend a criminal defendant's prison
term beyond the presumptive minimum term, ripe for review on direct appeal from
sentencing, or only after the defendant has served the minimum term and been subject
to extension by application of the Act?” The conflicting cases cited by the Court 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.
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consistent with established authority from the Supreme Court of Ohio, which
held that “when the power to sanction is delegated to the executive branch,
a separation-of-powers problem is avoided if the sanction is originally
imposed by a court and included in its sentence.” Ferguson at ¶ 23, citing
Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301,
¶ 18-20, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817
N.E.2d 864, ¶ 19, citing Woods v. Telb, 89 Ohio St.3d 504, 512-513, 733
N.E.2d 1103 (2000).
{¶ 20} As in Compton, Thompson’s minimum and maximum terms were imposed
by the trial court and included as part of the trial court’s sentence. “Because the Reagan
Tokes Law does not allow the ODRC to lengthen an offender's sentence beyond the
maximum sentence imposed by the trial court, we once again hold that the Law does not
violate the separation-of-powers doctrine.” Compton at ¶ 12, citing Ferguson at ¶ 23 and
State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 36. .
{¶ 21} Regarding due process, we stated in Ferguson:
“[T]he fundamental requisite of due process of law is the opportunity
to be heard in a meaningful time and in a meaningful manner.” Woods at
513, citing Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d
287 (1970). The Reagan Tokes Law satisfies these requirements. The
Law states that, in order to rebut the presumption of the minimum term, the
[O]DRC must make a particular statutory determination “at a hearing.”
R.C. 2967.271(C) and (D). The Law does not give the [O]DRC unfettered
discretion to require an offender to serve more than the minimum term.
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And it affords an offender notice and an opportunity to be heard before more
than the minimum may be required.
Ferguson at ¶ 25.
{¶ 22} This Court further determined in Compton:
While Compton acknowledges that R.C. 2967.271(C) requires a
hearing and statutory findings before additional prison time is imposed, he
nevertheless contends that the statute is vague in that it provides no
structure as to how the hearing will be conducted or what rights the
defendant will have at the hearing. In so arguing, Compton suggests that
when undergoing a hearing pursuant to R.C. 2967.271(C), an offender
should be entitled to due process rights that are associated with criminal
trials. However, “the fact that prisoners retain rights under the Due
Process Clause in no way implies that these rights are not subject to
restrictions imposed by the nature of the regime to which they have been
lawfully committed.” (Citations omitted.) Wolff v. McDonnell, 418 U.S.
539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). For example, “[p]rison
disciplinary proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not apply.” Id.This court has noted that “[r]equiring a defendant to remain in prison
beyond the presumptive minimum term is akin to the decision to grant or
deny parole[.]” Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, at
¶ 17. “In the context of parole proceedings, the United States Supreme
Court has held that the required due process procedures are minimal.
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Specifically, the court has found that a prisoner subject to parole receives
adequate due process when he is allowed an opportunity to be heard and
is provided a statement of the reasons why parole was denied.” Wilburn at
¶ 30, citing Swarthout v. Cooke, 562 U.S. 216, 220, 131 S.Ct. 859, 178
L.Ed.2d 732 (2011), citing Greenholtz v. Inmates of Nebraska Penal & Corr.
Complex, 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). “ ‘The
Constitution * * * does not require more.’ ” Id., quoting Swarthout at 220.
Because the procedures employed under the Reagan Tokes Law
provide for notice of a hearing at which an offender has an opportunity to
be heard, and because the Reagan Tokes Law does not give the ODRC
unfettered discretion to decide when an offender must serve more than the
minimum term, we once again hold that the Law does not violate an
offender's right to due process.
Compton at ¶ 16-18.
{¶ 23} Based upon the foregoing, we decline Thompson’s request to reconsider
Ferguson, and we again conclude that the Reagan Tokes Act does not violate a
defendant’s due process rights.
{¶ 24} Finally, regarding Thompson’s assertion that the Reagan Tokes Act violates
the Sixth Amendment right to a trial by jury, we note that the Twelfth District recently
addressed this issue in State v. Rogers, 12th Dist. Butler No. CA2021-02-010, 2021-Ohio-
3282. The Twelfth District conducted the following analysis, which we find persuasive:
In [Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000),] a jury convicted the defendant of a firearm crime that
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carried a maximum prison sentence of ten years. However, a judge
subsequently sought to impose a longer sentence pursuant to a statute that
authorized him to do so if he found, by a preponderance of the evidence,
that the defendant had committed the crime with racial bias. Apprendi held
this scheme unconstitutional: “[A]ny fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt” or admitted by the defendant.
Apprendi at 490. Nor may a state evade this traditional restraint on the
judicial power by simply calling the process of finding new facts and
imposing a new punishment a judicial “sentencing enhancement.” Id. at 495.
“[T]he relevant inquiry is one not of form, but of effect – does the required
[judicial] finding expose the defendant to a greater punishment than that
authorized by the jury's guilty verdict?” Id. at 494.
“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.” (Emphasis sic.) Blakely v.
Washington, 542 U.S. 296, 303, 122 S.Ct. 2428 (2004). “In other words, the
relevant ‘statutory maximum’ is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may impose
without any additional findings.” (Emphasis sic.) Id. at 303-304; State v.
Setty, 12th Dist. Clermont Nos. CA2013-06-049 and CA2013-06-050, 2014-
Ohio-2340, ¶ 121.
In Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556],
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a jury convicted the defendant of felony murder, a crime that carried a
maximum sentence of life imprisonment. However, a state statute allowed
the trial judge to impose the death penalty if he found, independent of the
jury, at least one aggravating factor. Extending the rule of Apprendi to
capital punishment, the United States Supreme Court found the sentencing
scheme violative of the Sixth Amendment right to a jury trial because the
required judicial finding of an aggravated circumstance exposed the
defendant to greater punishment than authorized by the jury's verdict.
Ring, 536 U.S. at 609; State v. McKelton, 12th Dist. Butler No. CA2017-07-
106, 2018-Ohio-1357, ¶ 8.
The Reagan Tokes sentencing scheme is unlike those involved in
Apprendi, Ring, and Blakely. Under the Reagan Tokes Law, the trial court
imposes both a minimum and a maximum term, and the indefinite prison
sentence must be included in the final entry of conviction. R.C. 2929.14 and
2929.144. The only sentencing discretion provided to the trial court lies
with the length of the minimum term under R.C. 2929.14(A)(1)(a) and
(A)(2)(a); the maximum term is determined based upon a mathematical
formula as applied to the minimum term of imprisonment. The maximum
prison term component of a Reagan Tokes indefinite sentence is therefore
authorized by the jury's guilty verdict and is not based upon factors not
submitted to the jury. The defendant is not exposed to greater punishment
than that authorized by the jury's verdict.
Once imposed by the trial court, the indefinite sentence is then
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implemented by ODRC. ODRC simply enforces the sentence imposed by
the trial court and its review is limited to determining the offender's release
date. R.C. 2967.271 establishes a presumptive release date upon
completion of the minimum term. Once the minimum term is served,
ODRC may rebut the presumption of release under certain conditions and
enforce the remainder of the maximum term already imposed by the trial
court. R.C. 2967.271(B). However, “[t]hat codified process does not alter
the fact that the trial court imposed a maximum term as calculated under
R.C. 2929.144.” State v. Gamble, 8th Dist. Cuyahoga No. 109613, 2021-
Ohio-1810, ¶ 35. In rebutting the presumption of release, ODRC “is not
extending the defendant's prison term or imposing its own sentence for
violations that occur while the offender is serving the imposed term of
imprisonment.” Id. at ¶ 7. In other words, ODRC does not “increase” a
penalty based upon facts not found by a jury but merely administers the
sentence already imposed by the trial court for conviction of an offense for
which the offender has the right to a jury trial.
In a concurring opinion in State v. Wolfe, 5th Dist. Licking No.
2020CA00021, 2020-Ohio-5501, Judge Gwin rejected a challenge to the
Reagan Tokes Law as violative of the right to a jury trial, reasoning that
Under the Reagan Tokes Law, the judge imposes both a
minimum and a maximum sentence. Judicial fact-finding is not
required. In Ohio, “trial courts have full discretion to impose a
prison sentence within the statutory range and are no longer
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required to make findings or give their reasons for imposing
maximum, consecutive, or more than the minimum sentences.”
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, paragraphs 1
and 11. The Department of Rehabilitation and Correction (“DRC”)
is not permitted to extend a sentence imposed by the trial court
beyond the maximum sentence imposed by the trial court.
Further, the facts which postpone an inmate's release date are
facts found as a result of prison disciplinary proceedings, not the
underlying crime. To extend Wolfe's argument to its logical end it
would be necessary for the courts to invalidate punishment as a
result of internal prison disciplinary proceedings entirely, or require
all rule infractions to be tried before a jury.
It is evident that Apprendi and its progeny have no
application in a prison disciplinary setting where the DRC does not
have the authority to extend the inmate's sentence beyond the
maximum sentence imposed by the trial judge.
Id. at ¶ 61-62.
Unlike the sentencing scheme in Apprendi and Ring, there is “no
discretion exercised by the trial court in imposing the maximum term” under
the Reagan Tokes Law, and “nothing within any provision codified under
the Reagan Tokes Law permits any branch of government to impose a
sentence beyond the maximum term as defined under R.C. 2929.144.”
Gamble, 2021-Ohio-1810 at ¶ 44. The Reagan Tokes Law therefore does
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not violate an offender's constitutional rights to trial by jury. Id.; contra
State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2021-Ohio-1809.
Rogers at ¶ 14-20.
{¶ 25} Based upon the foregoing, we conclude that the Reagan Tokes Act does
not violate the Sixth Amendment right to trial by jury. Since Thompson failed to establish
that the Reagan Tokes Act is facially unconstitutional in this respect, his first assigned
error is overruled.
{¶ 26} Thompson’s second assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT SENTENCED MR.
THOMPSON TO AN INDEFINITE PRISON TERM IN CONTRAVENTION
OF THE SENTENCING STATUTES, IN VIOLATION OF MR.
THOMPSON’S RIGHTS TO DUE PROCESS. R.C. 2929.19(b)(2)(c);
ARTICLE I, SECTION I, OHIO CONSTITUTION.
{¶ 27} In his second assignment of error, Thompson asserts that the trial court
failed to comply with R.C. 2929.19(B)(2)(c) in imposing the indefinite prison term of 10 to
15 years, because the court “did not provide the required statutory notifications” at
Thompson’s sentencing hearing, and a defendant who fails to timely object “will be limited
to plain error review.” He asserts that, even if we reject his first assignment of error, we
should nonetheless remand this matter to the trial court for resentencing “in accordance
with the notification requirements set forth in R.C. 2929.19(B)(2)(c).”
{¶ 28} The State responds that the trial court did notify Thompson of the operation
of the rebuttable presumption in its judgment, which was filed the same day as the
sentencing hearing, “listing the parameters of R.C. 2929.19(B)(2)(c).” According to the
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State, Thompson “was sufficiently notified of R.C. 2929.19(B)(2)(c).” The State further
asserts:
Although the court determines that a prison term is necessary at the
sentencing hearing, and this determination triggers the court’s duty to notify
the defendant of the parameters of the rebuttable presumption listed in
subsection (c), the statute does not require that the defendant is orally
notified at the sentencing hearing itself – merely that the court shall notify
the defendant. At least two other district courts of appeals have found that
Defendant must be notified orally of these parameters at the sentencing
hearing itself, and that notification in the judgment entry is insufficient, but
this Court has not made such a determination yet. See State v. Whitehead,
8th Dist. Cuyahoga No. 109599, 2021-Ohio-847, ¶ 432; State v. Miles, 11th
Dist. Portage No. 2020-P-0032, 2020-Ohio-6921, ¶ 203.
{¶ 29} In Massie, 2d Dist. Clark No. 2020-CA-50, 2021-Ohio-3376, this Court
2
“Besides noting Whitehead's objection to the Reagan Tokes Act being applied to his
sentence, the trial court failed to mention the act again at the sentencing hearing. The
trial court also improperly told Whitehead at the sentencing hearing that his ‘total
sentence’ was 36 years in prison without informing Whitehead that 36 years would be the
minimum amount of time he would spend in prison and without calculating Whitehead's
maximum prison term or informing him of the maximum prison term. It is not sufficient
to simply include this information in the sentencing entry. R.C. 2929.144(C). The trial
court also failed to inform Whitehead of any of the other required notifications set forth in
R.C. 2929.19(B)(2)(c).” Id. at ¶ 45. The Eighth District remanded the matter for
resentencing and instructed the trial court to comply with the requirements of the Reagan
Tokes Act. Id. at ¶ 46.
3
“The state concedes the trial court failed to properly calculate and inform Miles of his
maximum prison term. Further, the state concedes the trial court failed to provide the
required notices under R.C. 2929.19(B)(2)(c)(i) and (v). Accordingly, the matter must be
remanded for the limited purpose of conducting a resentencing hearing. See State v.
Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501, ¶37.” Miles at ¶ 27.
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recently noted:
When reviewing felony sentences, appellate courts must apply the
standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under that statute,
an appellate court may increase, reduce, or modify a sentence, or it may
vacate the sentence and remand for resentencing, only if it clearly and
convincingly finds either: (1) the record does not support the sentencing
court's findings under certain statutes; or (2) the sentence is otherwise
contrary to law. (Emphasis added.) Id. at ¶ 9, citing R.C. 2953.08(G)(2).
Several of our sister districts have held that a sentence is contrary to
law if a trial court sentences an offender to an indefinite prison term under
the Reagan Tokes Law and fails advise the offender of all the notifications
set forth in R.C. 2929.19(B)(2)(c) at the sentencing hearing. See, e.g.,
State v. Wolf, 5th Dist. Licking No. 2020 CA 00021, 2020-Ohio-5501, ¶ 36-
37; State v. Miles, 11th Dist. Portage No. 2020-P-0032, 2020-Ohio-6921,
¶ 20, 27-31; State v. Long, 4th Dist. Pickaway No. 20CA9, 2021-Ohio-2672,
¶ 27-29; State v. Whitehead, 8th Dist. Cuyahoga No. 109599, 2021-Ohio-
847, ¶ 43, 45-46; State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048,
2021-Ohio-1353, ¶ 24-25.
Massie at ¶ 17-18.
{¶ 30} R.C. 2929.19 governs sentencing hearings, and R.C. 2929.19(B)(2)(c)
provides:
(2) Subject to division (B)(3) of this section, if the sentencing court
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determines at the sentencing hearing that a prison term is necessary or
required, the court shall do all of the following:
***
(c) If the prison term is a non-life felony indefinite prison term, notify
the offender of all of the following:
(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;
(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
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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.
(Emphasis added.)
{¶ 31} In Massie, as in this case, the State argued that “the trial court sufficiently
notified Massie of all the information in R.C. 2929.19(B)(2)(c) by simply including the
information in the judgment entry of conviction,” but this Court disagreed. Id. at ¶ 20.
We found:
In this case, when reading the language in R.C. 2929.19(B)(2) as a
whole, it becomes clear that the notification requirement at issue in section
(B)(2)(c) relates to notice that must be given at the sentencing hearing. We
reach this conclusion by looking at the language in the preceding sections
of the statute, i.e., (B)(2)(a) and (B)(2)(b). Section (B)(2)(a) provides that
the sentencing court shall “notify the offender that the prison term is a
mandatory prison term,” without specifically stating that the notification
should be given at the sentencing hearing. Section (B)(2)(b), however,
instructs the sentencing court to “include in the sentencing entry * * *
whether the sentence or sentences contain mandatory prison terms[.]”
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When considering the language in sections (B)(2)(a) and (B)(2)(b) together,
it becomes clear that the phrase “notify the offender” in (B)(2)(a) necessarily
refers to notice that should be given at the sentencing hearing, since section
(B)(2)(b) instructs the trial court to include the same information in the
sentencing entry.
Like section (B)(2)(a), section (B)(2)(c) simply instructs the
sentencing court to “notify the offender” of the specific information listed
thereunder without specifically mentioning the sentencing hearing.
Because the phrase “notify the offender” as used in (B)(2)(a) refers to
notification given at the sentencing hearing, we find that the same meaning
should apply to the phrase “notify the offender” in section (B)(2)(c).
Therefore, we agree with our sister districts and find that the trial court was
required to notify the offender of all the information set forth in R.C.
2929.19(B)(2)(c) at the sentencing hearing in order to fulfill the requirements
of the statute. Accordingly, because the trial court in this case failed to
notify Massie of any of the information set forth in R.C. 2929.19(B)(2)(c) at
the sentencing hearing, we sustain Massie's second argument and find that
Massie's sentence is contrary to law.
Id. at ¶ 22-23. In Massie, we remanded the matter to the trial court for the sole purpose
of resentencing the defendant in accordance with R.C. 2929.19(B)(2)(c). Id. at ¶ 25.
{¶ 32} While the court in this case advised Thompson at the sentencing hearing
that it was required to impose an indefinite sentence, and that was a presumption that he
would be released after serving the minimum term of ten years, the court neglected to
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advise him of the rebuttable nature of the presumption or to advise him of the remaining
notifications set forth in R.C. 2929.19(B)(2)(c). Accordingly, consistent with Massie,
Thompson’s sentence was contrary to law, and his second assignment of error is
sustained.
{¶ 33} The judgment of the trial court is affirmed in part and reversed in part, and
the matter is remanded to the trial court for the sole purpose of resentencing Thompson
pursuant to R.C. 2929.19(B)(2)(c).
.............
TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Ian A. Richardson
R. Jessica Manungo
Hon. Douglas M. Rastatter