State v. Wallace , 2022 Ohio 2352 ( 2022 )

[Cite as State v. Wallace, 2022-Ohio-2352.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Earle E. Wise, Jr., P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. CT2021-0043
JUSTIN WALLACE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2021-0139
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 5, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH JAMES A. ANZELMO
PROSECUTING ATTORNEY 446 Howland Drive
TAYLOR P. BENNINGTON Gahanna, Ohio 43230
ASSISTANT PROSECUTOR
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43701
Muskingum County, Case No. CT2021-0043 2
Wise, John, J.
{¶1} Appellant Justin Wallace appeals his sentence entered in the Muskingum
County Court of Common Pleas. Appellee is the State of Ohio. The relevant facts leading
to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 10, 2021, Appellant was indicted on one count of Possession of
Drugs in violation of R.C. §2925.11(A) with a forfeiture specification, and one count
Resisting Arrest in violation of R.C. §2921.33(A).
{¶3} On June 14, 2021, Appellant entered a plea of guilty to the indictment.
{¶4} On August 11, 2021, the trial court sentenced Appellant to an aggregate
minimum prison term of seven mandatory years, and an aggregate maximum term of ten
and a half years. The court ordered Appellant to forfeit $1,432 of seized U.S. currency.
ASSIGNMENTS OF ERROR
{¶5} Appellant filed a timely notice of appeal. He herein raises the following three
Assignments of Error:
{¶6} “I. AS AMENDED BYTHE [sic] 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.
{¶7} “II. WALLACE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.
Muskingum County, Case No. CT2021-0043 3
{¶8} “III. THE TRIAL COURT ERRED BY DENYING WALLACE’S MOTION TO
WAIVE THE MANDATORY FINE.”
I.
{¶9} In Appellant’s first Assignment of Error, Appellant challenges the
constitutionality of the Reagan Tokes Act, specifically R.C. §2967.271, which codified
hybrid indefinite prison terms for first- and second-degree felonies. Appellant argues that
the Act violates the separation of powers doctrine, the constitutional right to trial by jury,
and due process. We disagree.
{¶10} This Court has previously found this type of challenge to not yet be ripe for
review. State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-4227, appeal
allowed, 160 Ohio St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1152. However, the Ohio
Supreme Court found that the issue of the constitutionality of an indeterminate sentence
imposed under R.C. §2967.271 ripens at the time of sentencing, and that the law may be
challenged on direct appeal. State v. Maddox, 2022-Ohio-764, ¶21.
{¶11} Recently, in State v. Burris, 5th Dist. Guernsey No. 21CA000021, 2022-
Ohio-1481, and State v. Ratliff, 5th Dist. Guernsey No. 21CA000016, 2022-Ohio-1372,
this Court set forth analysis regarding Appellant’s arguments.
Violation of Right to Trial by Jury
{¶12} Appellant argues that the Department of Rehabilitation and Correction
(“DRC”) unilaterally conducts fact finding which may extend an inmate’s sentence, and
that this violates Appellant’s right to trial by jury citing Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We disagree.
Muskingum County, Case No. CT2021-0043 4
{¶13} In Apprendi, a jury convicted the defendant of a gun crime that carried a
maximum prison sentence of 10 years. Id. However, a judge imposed a longer sentence
pursuant to a statute providing him authorization. Id. The judge found, by a
preponderance of the evidence, that the defendant had committed the crime with racial
bias. Apprendi held this scheme unconstitutional. Id. “[A]ny fact that increases the penalty
for a crime beyond the prescribed statutory maximum,” the Court explained, “must be
submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant.
530 U. S. at 490, 120 S.Ct. 2348. A State may not avoid this restraint on judicial power
by simply calling the process of finding new facts and imposing a new punishment a
judicial “sentencing enhancement.” Id., at 495, 120 S.Ct. 2348. “[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, 120
S.Ct. 2348.
{¶14} In Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314(2013), the United States Supreme Court addressed mandatory minimum sentences and
the Sixth Amendment. In Alleyne, the jury relied on victim testimony of an armed robbery
that one of the perpetrators possessed a gun. The trial court relied on the same testimony
to determine that either Alleyne or his accomplice brandished a gun. The testimony was
the same, but the findings were different. The jury found that Alleyne possessed a gun,
but made no finding with regard to whether Alleyne brandished a gun. The court, however
determined that the gun was brandished. The Supreme Court reviewed the statutory
punishment structure, which included a mandatory minimum sentence of five years if a
crime of violence was committed while the offender carried a firearm, seven years if the
Muskingum County, Case No. CT2021-0043 5
firearm was brandished, and ten years if the firearm was discharged during the crime. 18
U.S.C. 924(c)(1)(A). The crime was otherwise punishable by a term of imprisonment not
exceeding 20 years. 18 U.S.C.1951 (a). The Court held that where facts were not found
by a jury that enhanced the mandatory minimum penalty for a crime, the Sixth
Amendment was violated. Specifically, “[b]ecause mandatory minimum sentences
increase the penalty for a crime, any fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury.” Alleyne at 103. See, State v. Fort, 8th Dist.
Cuyahoga No. 100346, 17 N.E.3d 1172, 2014-Ohio-3412, ¶29. However, the majority in
Alleyne held:
In holding that facts that increase mandatory minimum sentences
must be submitted to the jury, we take care to note what our holding does
not entail. Our ruling today does not mean that any fact that influences
judicial discretion must be found by a jury. We have long recognized that
broad sentencing discretion, informed by judicial fact-finding, does not
violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S.
817, ––––, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010) (“[W]ithin
established limits [,] ... the exercise of [sentencing] discretion does not
contravene the Sixth Amendment even if it is informed by judge-found facts”
(emphasis deleted and internal quotation marks omitted)); Apprendi, 530
U.S. at 481, 120 S.Ct. 2348 (“[N]othing in this history suggests that it is
impermissible for judges to exercise discretion—taking into consideration
various factors relating both to offense and offender—in imposing a
judgment within the range prescribed by statute”).
Muskingum County, Case No. CT2021-0043 6
Alleyne, 570 U.S. at 116. See also, State v. Salim, 5th Dist. Guernsey
No. 13 CA 28, 2014-Ohio-357, ¶19.
{¶15} Under the Reagan Tokes Act the judge imposes both a minimum and a
maximum sentence. No judicial fact finding is required. In Ohio, “trial courts have full
discretion to impose a prison sentence within the statutory range and are no longer
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,
896 N.E.2d 124. The Reagan Tokes Act does not permit the Department of Rehabilitation
and Correction (“DRC”) to extend a sentence beyond the maximum sentence imposed by
the trial court. Burris at ¶86. “Further, the facts which postpone an inmate’s release date
are facts found as a result of prison disciplinary proceedings, not the underlying crime.”
Id.Violation of Separate Powers
{¶16} “The Ohio Supreme Court has made it clear 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.” Burris at ¶78, 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. This is the
scheme established by the Reagan Tokes Law. State v. Ferguson, 2nd Dist. Montgomery
No. 28644, 2020-Ohio-4153, ¶23. The statute does not permit DRC to act outside of the
maximum prison term imposed by the court. Id. Accordingly, the Reagan Tokes Act does
not violate the separation of powers doctrine.
Muskingum County, Case No. CT2021-0043 7
Violation of Due Process
{¶17} Procedural requirements are minimal in the context of parole. Burris at ¶59.
“[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. Wolff v. McDonnell,
418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (citations omitted). Courts have
found the following procedures should be accorded to prisoners in a disciplinary
proceeding:
1). a prisoner is entitled to a review unaffected by “arbitrary” decision
making. Wolff, 418 U.S. at 557-558, 94 S.Ct. 2963; (See, Ohio Admin. Code
5120-9-08). 2). Advance written notice of the claimed violation. Wolff, 418
U.S. at 563, 94 S.Ct. 2963. (See, Ohio Adm. Code 5120:1-8-12). 3). A
written statement of the fact finders as to the evidence relied upon and the
reasons for the disciplinary action taken. Wolff, 418 U.S. at 563, 94 S.Ct.
2963. (See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120: 1-
11(G)(1)). 4). Prison official must have necessary discretion to keep the
hearing within reasonable limits and to refuse to call witnesses that may
create a risk of reprisal or undermine authority, as well as to limit access to
other inmates to collect statements or to compile other documentary
evidence. Wolff, 418 U.S. at 566, 94 S.Ct. 2963 (See, Ohio Adm. Code
5120-0-08(E) (3); Ohio Adm. Code 5120-9-08(F)). 5). “Where an illiterate
inmate will be able to collect and present the evidence necessary for an
adequate comprehension of the case, he should be free to seek the aid of
a fellow inmate, or if that is forbidden, to have adequate substitute aid in the
Muskingum County, Case No. CT2021-0043 8
form of help from the staff or from a sufficiently competent inmate
designated by the staff.” Wolff, 418 U.S. at 570, 94 S.Ct. 2963. (See, Ohio
Adm. Code 5120-9-07(H)(1)).
Burris at ¶55
{¶18} In the case sub judice, the DRC must conduct a hearing to rebut the
presumptive release date. Id. at ¶66. According to R.C. §2967.271(C) the DRC must
determine the applicability of the following factors:
(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.
Muskingum County, Case No. CT2021-0043 9
(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.
{¶19} The Reagan Tokes Act requires DRC to provide notice of the hearing. R.C.
§2967.271(E). The Ohio Administrative code sets forth inmate rules of conduct,
disciplinary procedures for violations of the rules, under what circumstances an inmate is
transferred to restrictive housing, and procedure for release consideration hearings. Ohio
Adm. Code 5120-9-06; Ohio Adm. Code 5120-9-08; Ohio Adm. Code 5120-9-10; Ohio
Adm. Code 5120: 1-1-11. Therefore, the DRC gives the inmate notice in advance of
behavior which may contribute or result to extending their sentence.
{¶20} The Reagan Tokes Act provides the inmate an opportunity to be heard. The
DRC “shall provide notices of hearings to be conducted under division (C) or (D) of this
section in the same manner, and to the same persons, as specified in section 2967.12
and Chapter 2930 of the Revised Code with respect to hearings to be conducted
regarding the possible release on parole of an inmate.” R.C. §2967.271(E).
{¶21} Therefore, we find the Reagan Tokes Act does not violate Appellant’s right
to due process.
II.
{¶22} In Appellant’s second Assignment of Error, Appellant argues his trial
counsel rendered ineffective assistance by failing to challenge the constitutionality of R.C.
§2967.271. We disagree.
{¶23} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel’s performance fell
Muskingum County, Case No. CT2021-0043 10
below an objective standard of reasonable representation, and (2) that counsel’s errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel’s errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.” Strickland
at 694, 104 S.Ct. 2052.
{¶24} Because we have found R.C. §2967.271 is constitutional, Appellant cannot
demonstrate prejudice from counsel’s failure to raise the claim in the trial court.
{¶25} Appellant’s second Assignment of Error is overruled.
III.
{¶26} In Appellant’s third Assignment of Error, Appellant argues the trial court
erred in overruling his motion to waive the mandatory fine in the instant case. We
disagree.
{¶27} Appellate courts review a decision to impose a financial sanction for an
abuse of discretion. State v. Ludwig, 5th Dist. Muskingum No. CT2020-0008, 2021-Ohio-
383, ¶22; citing State v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750 (1998).
{¶28} R.C. 2929.18(B)(1) states, in pertinent part, “[i]f an offender alleges in an
affidavit filed with the court prior to sentencing that the offender is indigent and unable to
pay the mandatory fine and if the court determines the offender is an indigent person and
is unable to pay the mandatory fine described in this division, the court shall not impose
the mandatory fine upon the offender.”
Muskingum County, Case No. CT2021-0043 11
{¶29} In State v. Perry, 5th Dist. Stark No. 2004-CA-00066, 2005-Ohio-85, ¶27 this
Court held:
[T]here are no express factors that must be taken into consideration
or findings regarding the offender’s ability to pay that must be made on the
record.” State v. Martin, 140 Ohio App.3d 326, 338, 747 N.E.2d 318, 2000-
Ohio-1942. Although a court may hold a hearing under R.C. 2929.18(E) “to
determine whether the offender is able to pay the [financial] sanction or is
likely in the future to be able to pay it” a court is not required to do so. State
v. Stevens (Sept. 21, 1998), 12th Dist. No. CA98-01-001, unreported
(“although the trial court must consider the offender’s ability to pay, it need
not hold a separate hearing on that issue.” “All that R.C. 2929.19(B)(6)
requires is that the trial court consider the offender’s present and future
ability to pay. State v. Dunaway, 12th Dist. No. CA2001-12-280, 2003-Ohio-
1062, at 36; Martin, 140 Ohio App.3d at 33, 746 N.E.2d 642 (Emphasis
added).
{¶30} R.C. §2929.18(B)(1) places the burden on the offender to demonstrate
indigency and an inability to pay the mandatory fine. State v. Gipson, 80 Ohio St.3d 626,
635, 687 N.E.2d 750 (1998). The trial court does not have to find an offender is able to
pay, but the fine is mandatory unless the offender established indigence and an inability
to pay. Id.{¶31} The trial court denied the motion to waive the mandatory fine, finding that
Appellant is a drug dealer and the amount of money forfeited, it was not unreasonable for
Muskingum County, Case No. CT2021-0043 12
Appellant to be able to pay the mandatory fine. We find the trial court did not abuse its
discretion in overruling Appellant’s motion to waive the mandatory fine.
{¶32} Appellant’s third Assignment of Error is overruled.
{¶33} For the foregoing reasons, the judgment of the Court of Common Pleas of
Muskingum County, Ohio, is hereby affirmed.
By: Wise, John, J.
Wise, Earle, P. J., and
Delaney, J., concur.
JWW/br 0629