State v. Perry

[Cite as State v. Perry, 2021-Ohio-1748.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-20-025
Appellee Trial Court No. 2019CR0278
v.
Keith B. Perry, III DECISION AND JUDGMENT
Appellant Decided: May 21, 2021
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Sarah R. Anjum, for appellant.
*****
OSOWIK, J.
{¶ 1} On June 19, 2019, the Wood County Grand Jury issued an 11-count
indictment against appellant. The enumerated counts are as follows. Count 1:
kidnapping—Fl R.C. 2905.01(A)(3), 2905.01(C); Count 2: pandering sexually-
oriented matter involving a minor—F2 R.C. 2907.322(A)(1), 2907.322(C);
Count 3: pandering sexually-oriented matter involving a minor—F2 R.C.
2907.322(A)(1), 2907.322(C); Count 4: pandering sexually-oriented matter involving
a minor—F2 R.C. 2907.322(A)(1), 2907.322(C); Count 5: pandering sexually-oriented
matter involving a minor—F2 R.C. 2907.322(A)(l), 2907.322(C); Count 6: pandering
sexually-oriented matter involving a minor or impaired person—F2 R.C.
2907.322(A)(l), 2907.322(C); Count 7: pandering sexually-oriented matter involving a
minor or impaired person—F2 R.C. 2907.322(A)(1), 2907.322(C); Count 8:
pandering sexually-oriented matter involving a minor or impaired person—F2 R.C.
2907.322(A)(1), 2907.322(C); Count 9: pandering sexually-oriented matter involving
a minor or impaired person—F2 R.C. 2907.322(A)(1), 2907.322(C); Count 10:
pandering sexually-oriented matter involving a minor or impaired person—F2 R.C.
2907.322(A)(1), 2907.322(C); Count 11: pandering sexually-oriented matter
involving a minor or impaired person—F2 R.C. 2907.322(A)(1), 2907.322(C).
{¶ 2} On December 27, 2019, after the state amended the felony level on each
count, appellant pled guilty to each count of the indictment, as amended.
{¶ 3} Appellant was advised at the time of the plea that he would be sentenced
pursuant to S.B. 201, the Reagan Tokes law. Appellant’s counsel objected to the
application of the statute as being unconstitutional. The trial court overruled the
objections.
{¶ 4} Appellant was sentenced to serve an indefinite term of 28 years minimum to
a maximum term of 32 years under Count 1 and under Counts 2-11. He was sentenced to
serve 24 months on each count of 2-11, to be served consecutive to each other.
2.
{¶ 5} Perry presents a single assignment of error for this court to review.
Assignment of Error I:
AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED
CODE’S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING
FELONIES VIOLATE THE CONSTITUTIONS OF THE UNITED STATES
AND THE STATE OF OHIO.
{¶ 6} In his solitary assignment of error, appellant attacks the constitutionality of
the Reagan Tokes law, aka S.B. 201, arguing that it violates the doctrine of separation of
powers and due process rights afford to him under the Fourteenth Amendment to the
United States Constitution and the Ohio Constitution.
{¶ 7} The Reagan Tokes law (“Law”) went into effect in Ohio on March 22,
2019. R.C. 2901.011. The Law requires a sentencing court imposing a prison term
under R.C. 2929.14(A)(1)(a) or (2)(a), on or after the effective date, to order a minimum
prison term under that provision and a maximum prison term as determined by R.C.
2929.144(B). The Law also sets forth a presumption 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). The offender’s presumptive earned early release date is determined
under R.C. 2967.271(F), which permits the sentencing court to reduce the minimum term
under certain circumstances. R.C. 2967.271(A)(2). The Department of Rehabilitation
and Corrections may rebut the R.C. 2967.271(B) presumption if it determines at a hearing
3.
that certain statutorily enumerated factors apply. R.C. 2967.271(C). If the department
rebuts the presumption, it may maintain the offender’s incarceration after the expiration
of the minimum prison term or presumptive earned early release date for a reasonable
period of time, which “shall not exceed the offender’s maximum prison term.” R.C.
2967.271(D)(1).
{¶ 8} It is appellant’s contention that the portions of the statute which allow the
Department of Rehabilitation and Corrections to administratively extend his prison
term beyond his presumptive minimum prison term of 28 years to as much as 32 years
violate the United States and Ohio Constitutions. Appellant, however, has not yet
served his minimum term, and so he has not become subject to the application of R.C.
2967.271.
{¶ 9} We have previously addressed multiple constitutional challenges to the Reagan
Tokes Law. See State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d
1150; State v. Velliquette, 2020-Ohio-4855, 160 N.E.3d 414 (6th Dist.); State v. Montgomery,
6th Dist. Lucas No. L-19-1202, 2020-Ohio-5552; State v. Sawyer, 2020-Ohio-6980, --- N.E.3d
--- (6th Dist.).
{¶ 10} As we recently stated in State v. Acosta, 6th Dist. Lucas Nos. L-20-1068,
L-20-1069, 2021-Ohio-757:
[T]his court has recently held that the constitutionality of the Reagan
Tokes law is not ripe for review where the appellant’s imprisonment term
has not yet been extended by the ODRC. State v. Velliquette, 6th Dist.
4.
Lucas No. L-19-1232, 2020-Ohio-4855; State v. Maddox, 6th Dist. Lucas
No. L-19-1253, 2020-Ohio-4702. In Velliquette, we explained that the
appellant’s arguments as to the “possibility” of an extended prison term
may never be realized. Id. at ¶ 29. Velliquette and the ripeness issue is
currently before the Supreme Court of Ohio. See State v. Velliquette, 161
Ohio St.3d1415, 2021-Ohio-120, 161 N.E.3d 708. Id. at ¶ 10.
{¶ 11} Accordingly, appellant’s single assignment of error is found not
well-taken.
{¶ 12} We affirm the judgment of the Wood County Court of Common Pleas.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Gene A. Zmuda, P.J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
5.