State v. Lasure , 2022 Ohio 650 ( 2022 )

[Cite as State v. Lasure, 2022-Ohio-650.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-21-08
v.
GAVIN L. LASURE, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Trial Court No. 21-CRM-031
Judgment Affirmed
Date of Decision: March 7, 2022
APPEARANCES:
Bryan Scott Hicks for Appellant
Erin M. Minor for Appellee
Case No. 10-21-08
SHAW, J.
{¶1} Defendant-Appellant, Gavin L. Lasure (“Appellant”), appeals a July 27, 2021
judgment of the Mercer County Court of Common Pleas sentencing him to an aggregate
indefinite prison term of eight to ten years pursuant to a negotiated plea agreement to two
counts of sexual battery, felonies of the second degree. On appeal, Appellant argues that
the trial court failed to give accurate post release control notifications at sentencing, that
the indefinite sentence imposed under the Reagan Tokes Law was unconstitutional, and
that his trial counsel provided ineffective assistance of counsel.
Procedural History
{¶2} On February 18, 2021, Appellant was charged in a six-count indictment with
two counts each of rape, in violation of R.C. 2907.02(A)(1)(b), (B), both felonies of the
first degree; sexual battery, in violation of R.C. 2907.03(A)(1), (B), both felonies of the
second degree; and gross sexual imposition, in violation of R.C. 2907.05(A)(4), (C)(2),
both felonies of the third degree. Upon arraignment, Appellant entered a plea of not guilty
to the charges.
{¶3} Appellant subsequently entered a negotiated plea of guilty to two counts of
sexual battery. Pursuant to the plea agreement, the remaining counts against him were
dismissed, the State reserved the right to argue at sentencing, and the State agreed to not
pursue charges in connection with a certain sheriff’s office report. The negotiated plea
agreement dated June 10, 2021, stated the following with regard to post release control:
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[A] period of supervision by the Adult Parole Authority after release
from prison may be mandatory in this case. If I am sentenced to prison
for a * * * felony sex offense, after my prison release I will have a
mandatory 5 years of post release control under conditions determined
by the Parole Board. * * * If I violate conditions of supervision while
under post release control, the Parole Board could return me to prison
for up to nine months for each violation, for a total of ½ of my originally
stated prison term. If the violation is a new felony, I could receive a
prison term of the greater of one year or the time remaining on post
release control, in addition to any other prison term imposed for the
offense.
(Negotiated Plea Agreement Form at p. 3).
{¶4} On July 23, 2021, Appellant appeared for sentencing. The trial court sentenced
Appellant to a mandatory prison term of four years as to each count to be served
consecutively. Pursuant to the Reagan Tokes Law, the total stated prison term imposed by
the trial court was eight to ten years. The trial court also imposed five years of mandatory
post-release control1 and classified Appellant as a Tier III sex offender.
{¶5} Appellant filed this appeal asserting the following three assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE PRC NOTIFICATIONS WERE INACCURATE.
ASSIGNMENT OF ERROR NO. 2
THE IMPOSITION OF AN INDEFINITE SENTENCE UNDER
REAGAN TOKES IS UNCONSTITUTIONAL.
1
A “judgment entry sentencing” was first filed on July 27, 2021. However, the trial court issued a December 3, 2021
“nunc pro tunc judgment entry sentencing” correcting an error in the sentencing entry so that it accurately reflected
the trial court’s statements at the sentencing hearing that for a violation of post release control, defendant could
return to prison for up to two (2) years on each count, or a total of four (4) years (50% of the sentence imposed by
the trial court).
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ASSIGNMENT OF ERROR NO. 3
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL WHICH HARMED MR. LASURE.
First Assignment of Error
{¶6} In his first assignment of error, Appellant contends that, although the trial
court had informed him that he would be subject to mandatory post release control
following his release, it failed to accurately inform him at sentencing of the consequences
of violating post release control. He therefore argues that a new sentencing hearing is
required on the post release control component of his sentence.
Standard of Review
{¶7} “ ‘[A] trial court has a statutory duty to provide notice of post[]release control
at the sentencing hearing.ʼ ” State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, ¶ 8,
quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 23, overruled on other
grounds, State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913. A sentence imposed
without post release control notifications is contrary to law. Id. Because a trial court
speaks through its journal entry, the trial court is required to incorporate notice into its
journal entry imposing sentence. Id.Analysis
{¶8} Pursuant to R.C. 2929.19(B)(2)(d), an offender must be notified at sentencing
that he “will” be supervised under R.C. 2967.28 after he leaves prison if the offender is
being sentenced for a felony. Grimes at ¶ 9. An offender “will” be supervised if he has
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been convicted of a felony subject to mandatory post release control. Id., see also R.C.
2929.19(B)(2)(d) and 2967.28(B). Additionally, the trial court must notify the offender at
the sentencing hearing that if he violates that supervision, the parole board may impose a
prison term of up to one-half of the stated prison term originally imposed upon the offender
as part of his sentence. Id., see also R.C. 2929.19(B)(2)(f).
{¶9} Our review of the record reveals that the trial court issued the following
notification of the consequences of violating post release control at Appellant’s sentencing
hearing:
THE COURT: [W]hen you are released from prison, * * * you, upon
release, will be supervised by the Adult Parole Authority for 5 years
under what is called post-release control. And post-release control has
rules and regulations that you need to comply with. And failure to
comply with post-release control provisions can subject you to further
imprisonment for periods of up to one-half of the stated prison term of
8 years, or an additional 2 years on each one, or 4 years as penalty for
violating post-release control.
And if your violation of any post-release control conditions are [sic] a
new felony, post-release control time can be converted to prison time,
and added to any prison time for the new felony that was the violation
of your post-release control.
(Sentencing, July 23, 2021 Tr. at 30).
{¶10} The trial court incorporated this notification into Appellant’s
sentencing entry, which provided as follows:
The Court informed the Defendant that upon release from prison, the
Defendant will be required to serve a mandatory Five (5) year period of
post-release control pursuant to R.C. 2967.28 under the supervision of
the parole board. For violation of post release control conditions, the
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Adult Parole Authority or Parole Board could under R.C. 2967.28(F)(3)
impose a more restrictive or longer control sanction up to the maximum
post-release control sanction authorized for such offense, or return
defendant to prison for up to Two (2) years on each count, or a total of
Four (4) years (50% of the sentence imposed by the Court). If the
violation is a felony, it also may be prosecuted. In accordance with R.C.
2929.141, in addition to any prison term a court imposes for the new
felony, a court also may impose a prison term for the post release control
violation. The maximum prison term for the violation shall be the
greater of twelve months or the period of post-release control remaining
for the earlier felony.
(Dec. 3, 2021 Nunc Pro Tunc J.E. Sentencing at p. 4).
{¶11} Appellant nonetheless argues that the trial court failed to inform him at his
sentencing hearing of the potential consequences of committing a new felony while on post
release control, as articulated in R.C. 2929.141(A). That section provides, in relevant part:
(A) Upon the conviction of or plea of guilty to a felony by a person on
post-release control at the time of the commission of the felony, the court
may terminate the term of post-release control, and the court may do
either of the following regardless of whether the sentencing court or
another court of this state imposed the original prison term for which
the person is on post-release control:
(1) In addition to any prison term for the new felony, impose a prison
term for the post-release control violation. The maximum prison term
for the violation shall be the greater of twelve months or the period of
post-release control for the earlier felony minus any time the person has
spent under post-release control for the earlier felony. * * * A prison
term imposed for the violation shall be served consecutively to any
prison term imposed for the new felony. * * *
R.C. 2929.141(A).
{¶12} This Court recently examined this issue in State v. Miller, 3d Dist. Mercer
No. 10-18-07, 2018-Ohio-3713. In that case, we noted that the “ ‘preeminent purpose of
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R.C. 2967.28’ is to notify ‘offenders subject to post release control [***] at sentencing
that their liberty could continue to be restrained after serving their initial sentence[.] ʼ ˮ
Id. at ¶ 26, quoting Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, at ¶ 14. We went on to
find the trial court’s post release control notification at sentencing that Appellant could be
placed on post release control when he completed his prison sentence and that if he
violated post release control, he could be returned to prison for six months, or one half of
his original prison sentence, was sufficient pursuant to Grimes. Id.{¶13} It is not disputed that the trial court complied with both of these requirements
in this case—specifically, that Appellant will be subject to five years of mandatory post
release control and that a violation of the conditions of post release control could result in
the imposition of a prison term of up to one-half of the stated prison term originally
imposed. Appellant argues, however, that the trial court was also required to inform him
that a violation of the post release control conditions would result in a new prison sentence
of up to nine months pursuant to R.C. 2943.032. R.C. 2943.032 states the following:
(A) Prior to accepting a guilty plea or a plea of no contest to an
indictment, information, or complaint that charges a felony, the court
shall inform the defendant personally that, if the defendant pleads guilty
or no contest to the felony so charged or any other felony, if the court
imposes a prison term upon the defendant for the felony, and if the
offender violates the conditions of a post-release control sanction
imposed by the parole board upon the completion of the stated prison
term, the parole board may impose upon the offender a residential
sanction that includes a new prison term of up to nine months, subject
to a maximum cumulative prison term for all violations that does not
exceed one-half of the definite prison term that is the stated prison term
originally imposed upon the offender * * *.
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R.C. 2943.032(A).
{¶14} While Appellant attempts to extend the post release control notification
requirements codified in R.C. 2929.19, he fails to point to any statutory requirement that
the trial court notify an offender of the implications of R.C. 2943.032(A) at sentencing. As
reflected above, the record indicates that Appellant’s signed plea form stated that a
violation of post release control could result in re-imprisonment for up to nine months for
each violation, and for repeated violations up to one-half of the originally stated prison
term. See Miller (finding substantial compliance at plea hearing regarding post release
control warnings).
{¶15} In conclusion, the record before us demonstrates that the trial court notified
Appellant at sentencing that his post release control would be a mandatory five-year term
and that if he violated the supervision, the parole board could impose a prison term of up
to one-half of his stated prison term originally imposed. Similarly, consistent with Grimes,
Appellant received the requisite notifications when he was sentenced and such notifications
were incorporated into the trial court’s sentencing entry. See id. at ¶ 26. Accordingly, we
find no error in the trial court’s post release control notifications at Appellant’s sentencing
with regard to the consequences of violating post release control and overrule Appellant’s
first assignment of error.
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Second Assignment of Error
{¶16} In his second assignment of error, Appellant challenges the constitutionality
of his indefinite sentence imposed pursuant to the Reagan Tokes Law because it violates
the Sixth Amendment right to a trial by jury, violates the separation of powers doctrine and
due process. Appellant did not raise these objections before the trial court, but now asserts
plain error for each.
{¶17} As noted, Appellant did not raise the constitutional arguments to the Reagan
Tokes Law in the trial court. The “[f]ailure to raise at the trial court level the issue of the
constitutionality of a statute or its application, which issue is apparent at the time of trial,
constitutes a waiver of such issue and a deviation from this state’s orderly procedure, and
therefore need not be heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120(1986), syllabus.
{¶18} However, we retain the discretion to consider waived constitutional
arguments under a plain-error analysis. State v. Barnhart, 3d Dist. Putnam No. 12-20-08,
2021-Ohio-2874, ¶ 8, citing In re M.D., 38 Ohio St.3d 149, 151 (1988). Crim.R. 52(B)
states that “[p]lain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” Crim.R. 52(B). An error qualifies as
“plain error” only if it is obvious and but for the error, the outcome of the proceeding
clearly would have been otherwise. Barnhart at ¶ 8, citing State v. Yarbrough, 95 Ohio
St.3d 227, 245, 2002-Ohio-2126, ¶ 32. Accordingly, we will consider Appellant’s
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arguments on appeal under a plain error review. Accord id.; State v. Crawford, 3d Dist.
Henry No. 7-20-05, 2021-Ohio-547, ¶ 6.
Reagan Tokes Law
{¶19} The Reagan Tokes Law specifies that where an offender is being sentenced
for more than one felony, if one or more of the felonies is a qualifying felony of the first
or second degree, and some or all of the prison terms imposed are to be served
consecutively, the maximum prison term shall be equal to the sum of the consecutive
minimum and definite terms, plus fifty percent of the longest minimum or definite term for
the most serious felony being sentenced. R.C. 2929.144(B). Here, the trial court sentenced
Appellant to a four-year minimum prison term for both of his qualifying second-degree
felonies. Thus, under the circumstances of this case, Appellant faces a minimum of eight
years to a maximum term of ten years in prison.
Discussion
{¶20} In addressing the separation of powers issue, this Court has already
determined that the indefinite sentencing provisions in the Reagan Tokes Law are not
violative of the separation of powers doctrine. See State v. Hacker, 3d Dist. Logan No. 8-
20-01, 2020-Ohio-5048, ¶ 22. Again, we decline to revisit our prior precedent and
conclude that Appellant’s challenge to the Reagan Tokes Law on the basis that it violates
the separation of powers doctrine is without merit. See Barnhardt at ¶ 12; State v. Floyd,
3d Dist. Marion No. 9-20-44, 2021-Ohio-1935, ¶ 20; Crawford at ¶ 10.
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{¶21} Appellant also asserts that the Reagan Tokes Law violates due process and
his right to a trial by jury. Insofar as this appeal presents a facial challenge to the Reagan
Tokes Law on the basis that its text does not set forth sufficient procedural due process
protections, we rely on our prior holding in Hacker, and find these arguments to be without
merit. Hacker at ¶ 23; see also Barnhardt at ¶ 13; Floyd at ¶ 21; Crawford at ¶ 11.
{¶22} We have also previously addressed similar due process arguments and have
declined to resolve those claims as not being ripe for review. See also Crawford at ¶ 13
(stating “at this time, we do not know if Crawford will ever face such action from the
ODRC” and “[w]e also do not know what administrative guidelines will be in place to
protect the procedural due process rights of offenders in the future if ODRC ever acts to
hold Crawford beyond his presumptive release date”); State v. Kepling, 3d Dist. Hancock
No. 5-20-23, 2020-Ohio-6888, ¶ 14 (stating “at this point, we cannot even determine
whether the ODRC will ever have occasion to hold a hearing to determine whether Kepling
should be held beyond his presumptive release date. Similarly, we cannot now determine
whether the ODRC will provide Kepling with adequate notice and an opportunity to be
heard if a hearing to hold Kepling beyond his presumptive release date is ever held.”).
{¶23} Further, in discussing the issue of the right to a trial by jury as not yet being
ripe for our consideration, we explained: “At this point, we cannot know if [defendant]
will commit violations that might prompt an ODRC hearing to decide whether to hold him
past his presumptive release date. This argument does not address a penalty that
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[defendant] has already received but is based on contingent events that may or may not
arise in the future.” Crawford at ¶ 15.
{¶24} In conclusion, we rely upon our prior precedent upholding the indefinite
sentencing provisions in the Reagan Tokes Law as constitutionally valid and not violative
of the separation of powers. Therefore, Appellant has not established plain error in the trial
court’s determination in this regard. Accord Barnhardt at ¶ 15. Moreover, we conclude
that the procedural due process and right to a jury trial considerations raised by Appellant
are not yet ripe for review. See id. As such, we decline to address these issues at this time.
{¶25} For all these reasons, the second assignment of error is overruled.
Third Assignment of Error
{¶26} In his third assignment of error, Appellant argues that his trial counsel
rendered ineffective assistance by failing to object to the constitutionality of the Reagan
Tokes Law.
Legal Standard
{¶27} “In order to prove an ineffective assistance of counsel claim, the appellant
must carry the burden of establishing (1) that his or her counsel’s performance was
deficient and (2) that this deficient performance prejudiced the defendant.” State v.
McWay, 3d Dist. Allen No. 1-17-42, 2018-Ohio-3618, ¶ 24, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
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Analysis
{¶28} Having examined the constitutional issues that trial counsel was arguably
ineffective for failing to raise, we concluded that Appellant did not identify any defects in
the proceedings before the trial court. Therefore, Appellant “cannot demonstrate how the
outcome of the proceedings below would have been different ‘if his defense counsel had
raised * * * challenge[s] before the trial court that ha[ve] since failed on appeal.’ ˮ
Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-547, at ¶ 21, quoting State v. Lewis, 3d
Dist. Van Wert No. 15-20-04, 2020-Ohio-6894, ¶ 86. For this reason, he cannot carry the
burden under Strickland of demonstrating prejudice. Accord Barnhardt at ¶ 19. Appellant
has not established ineffective assistance of trial counsel and his third assignment of error
is overruled.
{¶29} Based on the foregoing, the assignments of error are overruled and the
judgment and sentence of the Mercer County Court of Common Pleas is affirmed.
Judgment Affirmed
MILLER and WILLAMOWSKI, J.J., concur.
/jlr
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