State v. Shepard

[Cite as State v. Shepard, 2021-Ohio-1844.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-20-1070
Appellee Trial Court No. CR0201902692
v.
Angela Shepard DECISION AND JUDGMENT
Appellant Decided: May 28, 2021
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Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
*****
DUHART, J.
{¶ 1} This case is before the court on appeal by appellant, Angela Shepard, from the
judgment of the Lucas County Court of Common Pleas journalized on March 20, 2020.
For the reasons that follow, we affirm.
Assignments of Error
1. The sentencing provisions of Senate Bill 201, otherwise known as
the Reagan Tokes Act, are unconstitutional.
2. Appellant’s sentence does not achieve the purposes and principles
of sentencing.
Background
{¶ 2} On September 27, 2019, appellant was charged by way of indictment with
three counts of rape, in violation of R.C. 2907.02(A)(1)(b) and (B), felonies of the first
degree (Counts 1-3), and three counts of unlawful sexual conduct with a minor, in
violation of R.C. 2907.04(A) and (B)(3), felonies of the third degree (Counts 4-6). On
October 2, 2019, appellant was arraigned and pled not guilty. On February 7, 2020,
appellant was additionally charged by way of information with sexual battery, in
violation of R.C. 2907.03(A)(5), a felony of the third degree (Count 7).
{¶ 3} On February 10, 2020, appellant entered a plea of guilty pursuant to North
Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to one amended
count of rape, in violation of R.C. 2907.02(A)(2) and (B), a felony of the first degree
(Count 1), one count of unlawful sexual conduct with a minor, in violation of R.C.
2907.04(A) and (B)(3), a felony of the third degree (Count 4), and one count of sexual
battery, in violation of R.C. 2907.03(A)(5), a felony of the third degree (Count 7).
{¶ 4} Appellant was sentenced on March 16, 2020. With respect to Count 1,
pursuant to Am.Sub.S.B. No. 201, otherwise known as the Reagan Tokes Law, the trial
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court imposed an indefinite sentence with a minimum of ten years and an indefinite
maximum term of 15 years. The trial court also imposed a 54-month sentence with
regard to Count 4, to be served concurrently to Count 1, and a 54 month sentence with
regard to Count 7, to be served consecutively to Count 1. At the state’s request, the court
nolled Counts 2, 3, 5 and 6. The court also notified appellant of her status as a Tier III
child victim offender. The sentence was memorialized in a judgment entry journalized
March 20, 2020.
{¶ 5} Appellant has appealed her sentence to this court.
First Assignment of Error
{¶ 6} In her first assignment of error, appellant argues that the Reagan Tokes Law
is unconstitutional as it violates her right to trial by jury, her right to due process, and the
separations of power doctrine.
{¶ 7} The Reagan Tokes Law “‘significantly altered the sentencing structure for
many of Ohio’s most serious felonies’ by implementing an indefinite sentencing system
for those non-life felonies of the first and second degree, committed on or after
[March 22, 2019].” State v. Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213,
¶ 5, fn. 1.
The [Reagan Tokes] Law specifies that the indefinite prison terms 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 [l]aw establishes a presumptive
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release date from prison at the end of the minimum term, but the Ohio
Department of Rehabilitation and Correction (“ODRC”) may rebut the
presumption if it determines, after a hearing, that one or more factors apply,
including that the offender’s conduct while incarcerated demonstrates that
he continues to pose a threat to society. R.C. 2967.271(B), (C)(1), (2) and
(3). If ODRC rebuts the presumption, the offender may remain
incarcerated for a reasonable, additional period of time, determined by
ODRC, but not to exceed the offender’s maximum prison term. R.C.
2967.271(D). State v. Sawyer, 165 N.E.3d 844, 2020-Ohio-6980, ¶ 18 (6th
Dist.).
{¶ 8} Appellant specifically takes issue with the portions of the Reagan Tokes
Law which allow the ODRC to administratively extend her incarceration beyond her
presumptive minimum prison term of ten years up to a maximum term of 15 years.
However, appellant has not yet served her minimum sentence and has not yet been
subject to the provisions of the Reagan Tokes Law to which she objects.
{¶ 9} The state has argued, inter alia, that the concerns appellant has raised are
merely hypothetical, and thus, the court need not address the constitutional challenges at
this time. Appellant counters that the issue is ripe for review because she is currently
serving her prison sentence and therefore, all of her actions and behaviors are being
judged and could later be used against her to extend her sentence.
4.
{¶ 10} As we 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. 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.3d 1415, 2021-Ohio-120, 161 N.E.3d 708.
Id. at ¶ 10. Accordingly, we find appellant’s first assignment of error not well-taken.
Second Assignment of Error
{¶ 11} In her second assignment of error, appellant contends that her sentence was
excessive and did not achieve the purposes and principles of sentencing. She maintains
that her sentence does not effectively rehabilitate her using the minimum sanctions
necessary to accomplish that purpose without imposing an unnecessary burden on state
and local resources, as required by R.C. 2929.11(A). Instead, she asserts that, as a stay-
at-home mother of four children with no prior criminal history, the most effective way to
comply with the purposes of sentencing set forth in R.C. 2929.11(A) would be to
sentence her to community control with sex offender treatment, or to the statutory
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minimum. She also argues that the trial court did not give sufficient weight to the
mitigating factors in her case.
{¶ 12} We review felony sentences pursuant to R.C. 2953.08(G)(2). State v.
Bothuel, 6th Dist. Lucas No. L-20-1053, 2021-Ohio-875, ¶ 7. R.C. 2953.08(G)(2) allows
an appellate court to increase, reduce, or otherwise modify a sentence, or vacate the
sentence and remand for resentencing if the court finds by clear and convincing evidence
either that the record does not support the sentencing court’s findings under certain
enumerated statutory sections, or that the sentence is contrary to law. Appellant has not
argued that any of the specified statutory sections are applicable, nor has she specifically
argued that her sentence was contrary to law. Rather, appellant argues that her sentence
does not meet the purposes and principles of sentencing set forth in R.C. 2929.11 and that
the trial court did not properly give sufficient weight to the mitigating factors set forth in
R.C. 2929.12.
{¶ 13} We have previously reviewed felony sentences to determine whether the
trial court properly considered the purposes of sentencing set forth in R.C. 2929.11 and
the factors set forth in R.C. 2929.12. In doing so, we relied upon language set forth in
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23 suggesting
that such a review would be consistent with R.C. 2953.08(G).1 See, e.g., State v.
1
Specifically, in Marcum, the court stated that “it is fully consistent for appellate courts
to review those sentences that are imposed solely after consideration of the factors in
R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing
court. That is, an appellate court may vacate or modify any sentence that is not clearly
6.
Buchanan, 6th Dist. Lucas No. L-19-1231, 2020-Ohio-4542, ¶ 11, State v. Torres, 6th
Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 9. However, the Ohio Supreme Court
has recently clarified its language in Marcum, stating that the language was mere dicta
and that R.C. 2953.08(G)(2) does not permit “an appellate court to independently weigh
the evidence in the record and substitute its judgment for that of the trial court concerning
the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.” State v.
Jones, Slip Opinion No. 2020-Ohio-6729, ¶ 27, 42. In so concluding, the court in Jones
found that R.C. 2929.11 and 2929.12 are not among the statutes listed in R.C.
2953.08(G)(2)(a), and that a finding that a sentence is not supported by the record does
not equate to “otherwise contrary to law” under R.C. 2953.08(G)(2)(b). Id. at ¶ 28,
31-32.
{¶ 14} We have found that Jones precludes this court from reviewing a felony
sentence based solely upon an appellant’s contention that the trial court did not properly
consider the factors identified in R.C. 2929.11 and 2929.12 when determining an
appropriate sentence. State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-
985, ¶ 13. As a result of Jones, “assigning error to the trial court’s imposition of sentence
as contrary to law based solely on its consideration of R.C. 2929.11 and 2929.12 is no
longer grounds for this court to find reversible error.” Id. Accordingly, we find
appellant’s second assignment of error not well-taken.
and convincingly contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence.” Marcum at ¶ 23.
7.
Conclusion
{¶ 15} The judgment of the Lucas County Court of Common Pleas is affirmed.
Pursuant to App.R. 24, appellant is hereby ordered to pay the costs incurred on appeal.
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/.
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