State v. Bentley , 2022 Ohio 1914 ( 2022 )

[Cite as State v. Bentley, 2022-Ohio-1914.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 21CA1147
v. :
SCOTTIE BENTLEY, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant.1
C. David Kelley, Adams County Prosecuting Attorney, and Kris D.
Blanton, Assistant Prosecuting Attorney, West Union, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:5-27-22
ABELE, J.
{¶1} This is an appeal from an Adams County Common Pleas Court
judgment of conviction and sentence. Scottie Bentley, defendant
below and appellant herein, assigns two errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE REAGAN TOKES ACT, AS ENACTED BY THE OHIO
LEGISLATOR (SIC) IS UNCONSTITUTIONAL, AND THE
TRIAL COURT COMMITTED PLAIN ERROR BY SENTENCING
MR. BENTLEY UNDER THAT ACT.”
1
Different counsel represented appellant during the trial
court proceedings.
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SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.
BENTLEY BY FAILING TO COMPLY WITH THE
SENTENCING REQUIREMENTS CONTAINED IN R.C.
2929.19(B)(2)(c).”
{¶2} In March 2021, an Adams County Grand Jury returned an
indictment that charged appellant with one count of aggravated drug
possession in violation of R.C. 2925.11(A), a second-degree felony.
Subsequently, appellant entered a not guilty plea. The trial court
also denied appellant’s motion to suppress evidence.
{¶3} On August 5, 2021, appellant pleaded guilty to aggravated
drug possession as charged in the indictment. At the change of
plea hearing, the trial court notified appellant about post-release
control and the consequences of a post-release control violation.
The trial court then sentenced appellant to: (1) serve a mandatory
four to six-year prison term, (2) serve up to a mandatory three-
year post-release control term, (3) pay court costs, and (4) submit
to DNA testing.
{¶4} This appeal followed.
I.
{¶5} We initially address appellant’s second assignment of
error wherein appellant asserts that the trial court erred by
failing to comply with the R.C. 2929.19(B)(2)(c) sentencing
requirements.
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{¶6} Appellate courts review felony sentences under the
standard outlined in R.C. 2953.08(G)(2):
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or
may vacate the sentence and remand the matter to the
sentencing court for resentencing. The appellate court’s
standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any
action authorized by this division if it clearly and
convincingly finds either of the following:
(a) That the record does not support the sentencing court’s
findings under division (B) or (D) of section 2929.13,
division (B)(2) (e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶7} Thus, an appellate court may vacate or modify a sentence
if the court clearly and convincingly finds that the record does
not support the trial court’s findings. State v. Long, 4th Dist.
Pickaway No. 20CA9, 2021-Ohio-2672, ¶ 26, citing State v. Layne,
4th Dist. Adams No. 20CA1116, 2021-Ohio-255, ¶ 6. “‘This is an
extremely deferential standard of review.’” Layne at ¶ 8, quoting
State v. Pierce, 4th Dist. Pickaway No. 18CA4, 2018-Ohio-4458, ¶ 8.
Moreover, clear and convincing evidence is proof that is more than
a “mere preponderance of the evidence” but not of such certainty as
“beyond a reasonable doubt,” and produces in the mind a “firm
belief or conviction” as to the facts sought to be established.
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State v. Conant, 4th Dist. Adams No. 20CA1108, 2020-Ohio-4319, ¶
42; Long at ¶ 8.
{¶8} R.C. 2929.19(B)(2)(c) outlines notifications the trial
court must provide pursuant to subsections (B)(1) and (2) which
require the court to notify the offender at the sentencing hearing
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 the 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
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)
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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.
{¶9} In the case sub judice, appellee concedes that, although
the trial court informed appellant that he would be subject to the
indefinite sentence, the court did not provide appellant the
remainder of the required R.C. 2929.19(B)(2)(c) notifications. Our
review of the transcript reveals that the trial court did consider
the R.C. 2929.11 purposes and principles of felony sentencing, the
R.C. 2929.12 “seriousness of recidivism factors”, and the R.C.
2929.13 “guidance factors.” The court further found that appellant
is not amenable to community control sanctions and “is subject to a
mandatory sentencing, a prison sentence is appropriate. I’m going
to impose a sentence of four to six years mandatory incarceration.”
In addition, the court informed appellant (1) he will be subject to
mandatory post release control for up to three years but not less
than 18 months, and (2) the consequences of violating post-release
control. However, as appellee acknowledges, the court did not
provide all of the R.C. 2929.19(B)(2)(c) notifications.
{¶10} As appellee observes, this court held in State v. Long,
supra, 2021-Ohio-2672, that if a trial court fails to provide
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notice of all R.C. 2929.19(B)(2)(c) notifications at a sentencing
hearing, the sentence is contrary to law. Long at ¶ 29; citing
State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501,
¶ 33-37.
{¶11} Therefore, based upon the foregoing reasons, we sustain
appellant’s second assignment of error, vacate appellant’s sentence
and remand the matter for resentencing.
II.
{¶12} In his first assignment of error, appellant asserts that
(1) the Reagan Tokes Act is unconstitutional, and (2) the trial
court’s sentence under that Act constitutes plain error. In
particular, appellant contends that the Act violates the separation
of powers doctrine and appellant’s procedural due process rights.
{¶13} The Reagan Tokes Law requires that a court imposing a
prison term under R.C. 2929.14(A)(1)(a) or (2)(a) for a first or
second-degree felony committed on or after March 22, 2019, impose a
minimum prison term under that provision and a maximum prison term
determined under R.C. 2929.144(B). R.C. 2929.144(C). A
presumption exists that an 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.” R.C. 2967.271(B). A presumptive earned
early release date is determined under procedures described in R.C.
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2967.27(F), which allows the sentencing court to reduce the minimum
prison term under certain circumstances. R.C. 2967.271(A)(2). The
Department of Rehabilitation and Correction (DRC) may rebut the
presumption if it determines that one or more statutorily numerated
factors apply. R.C. 2967.271(C). If DRC rebuts the presumption,
it may maintain the offender’s incarceration after the expiration
of the minimum prison term, or the presumptive earned early release
date, for a reasonable period, determined and specified by DRC,
that “shall not exceed the offender’s maximum prison term.” R.C.
2967.271(D)(1). See Conant, supra, 2020-Ohio-4319 at ¶ 36; State
v. Hearn, 4th Dist. Washington No. 20CA7, 2021-Ohio-594, ¶ 26.
{¶14} Until recently, there had been uncertainty as to whether
Reagan Tokes Act constitutional challenges are ripe for review.
However, in State v. Maddox, Ohio St.3d , 2022-Ohio-764,
N.E.3d , at ¶ 21, the Supreme Court of Ohio found the issue of
the constitutionality of an indeterminate sentence imposed under
R.C. 2967.271 ripens at the time of sentencing and, thus may be
challenged on direct appeal.
{¶15} Although the constitutionality of a statute presents a
question of law the appellate courts review de novo, Hayslip v.
Hanshaw, 2016-Ohio-3339, 54 N.E.3d 1272, ¶ 27 (4th Dist.), in light
of our resolution of appellant’s second assignment of error and
remand for resentencing, we need not reach the merits of this
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assigned error. See App.R. 12(A)(1)(c). Therefore, we conclude
that appellant’s first assignment of error is moot.
{¶16} Accordingly, based upon the foregoing reasons, we reverse
the trial court’s judgment and remand for resentencing consistent
with this opinion.
JUDGMENT REVERSED AND CAUSE
REMANDED FOR RESENTENCING
CONSISTENT WITH THIS OPINION.
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JUDGMENT ENTRY
It is ordered that the judgment be reversed and the matter be
remanded for resentencing consistent with this opinion. Appellant
shall recover of appellee the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Adams County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
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commences from the date of filing with the clerk.