State v. Bice

[Cite as State v. Bice, 2022-Ohio-122.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Earle E. Wise, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
AMBER BICE : Case No. CT2021-0022
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2020-0526
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 19, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH JAMES A. ANZELMO
Anzelmo Law
Prosecuting Attorney 446 Howland Drive
Muskingum County, Ohio Gahanna, Ohio 43230
JOHN CONNOR DEVER
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2021-0022 2
Baldwin, J.
{¶1} Defendant-appellant Amber Bice appeals her sentence from the
Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 7, 2020, the Muskingum County Grand Jury indicted appellant
on one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1),
a felony of the first degree, one count of possession of drugs (a fentanyl-related
compound) in violation of R.C. 2925.11(A), a felony of the first degree, one count of
trafficking in drugs (a fentanyl-related compound) in violation of R.C. 2925.03(A)(2), a
felony of the first degree, two counts of unlawful transaction of weapons in violation of
R.C. 2923.20(A)(1), felonies of the fourth degree, one count of possession of drugs (a
fentanyl-related compound) in violation of R.C. 2925.11(A), a felony of the first degree,
and one count of tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of
the third degree. The indictment also contained major drug offender, forfeiture and firearm
specifications relating to appellant. At her arraignment on October 14, 2020, appellant
entered a plea of not guilty to the charges.
{¶3} Thereafter, on February 22, 2021, appellant withdrew her former not guilty
plea and entered a plea of guilty to possession of drugs (fentanyl-related compound) as
amended, a felony of the second degree, along with a forfeiture specification.
{¶4} Appellant, on March 29, 2021, filed a Motion to Waive Mandatory Fines
allowed under R.C. 2929.18(B)(1) due to her indigent status. As memorialized in an Entry
filed on April 1, 2021, appellant was ordered to serve a mandatory minimum term of eight
years and an indefinite maximum prison term of twelve years in prison and fined the
Muskingum County, Case No. CT2021-0022 3
mandatory sum of $7,500.00. The trial court declined to waive the fine. In addition, the
trial court ordered that currency that was seized be forfeited and the firearms seized be
forfeited and destroyed. The remaining counts and specifications were dismissed via a
Nolle Prosequi filed on April 2, 2021.
{¶5} The trial court, pursuant to an Entry filed on April 6, 2021, determined that
appellant was indigent and unable to employ counsel and appointed appellate counsel
for appellant.
{¶6} Appellant now appeals, raising the following assignments of error on
appeal:
{¶7} “I. AS AMENDED BY THE 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.”
{¶8} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING BICE
TO PAY A FINE, IN VIOLATION OF HER DUE PROCESS RIGHTS UNDER THE FIFTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶9} “III. BICE 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.”
I, III
{¶10} Appellant was sentenced pursuant to the Reagan Tokes Act, as codified by
R.C. 2967.271. In her first assignment of error, appellant challenges the constitutionality
Muskingum County, Case No. CT2021-0022 4
of the Regan Tokes Act, which codified hybrid indefinite prison terms for first and second
degree felonies. Specifically, appellant argues the presumptive release feature of the act
violates her constitutional rights to trial by jury and due process of law, and further violates
the constitutional requirement of separation of powers and equal protection. In her third
assignment of error, she asserts that trial counsel was ineffective for failing to raise a
constitutional challenge to the Act in the trial court.
{¶11} This Court has previously addressed whether a challenge to the
constitutionality of the Reagan Tokes Law is ripe for appellate review where the defendant
has yet to serve the minimum term and yet to be subjected to the application of the
Reagan Tokes Law, and has repeatedly held the issue is not ripe for review. See State v.
Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-Ohio-5013; State v. Downard, 5th Dist.
Muskingum No. CT2019-0079, 2020-Ohio-4227; State v. Manion, 5th Dist. Tuscarawas
No. 2020 AP 03 0009, 2020-Ohio-4230; State v. Kibler, 5th Dist. Muskingum No. CT2020-
0026, 2020-Ohio-4631, State v. Wolfe, 5th Dist. Licking No. 2020-CA-0021, 2020-Ohio-
5501; State v. Buckner, 5th Dist. Muskingum CT2020-0023, 2020-0024, 2020-Ohio-7017;
and State v, King, 5th Dist. Stark No. 2020 CA 00064, 2021-Ohio-1636. See also State
v. Williams, Muskingum App No. CT2021-0009, 2021-Ohio-4203.
{¶12} The Sixth District has reached the same conclusion in State v. Maddox, 6th
Dist. Lucas No. CL-19-1253, 2020-Ohio-4702, and State v. Velliquette, 6th Dist. Lucas
No. L-19-1232, 2020-Ohio-4855. Likewise, the Fourth District found the issue not ripe for
review in State v. Ramey, 4th Dist. Washington Nos. CA 1 and 20 CA 2, 2020-Ohio-6733.
{¶13} We note that the Ohio Supreme Court has accepted a certified conflict on
the issue of whether the constitutionally of the Reagan Tokes Law is ripe for review on
Muskingum County, Case No. CT2021-0022 5
direct appeal or only after the defendant has served the minimum term and been subject
to extension by application of the law. See, State v. Maddox, 6th Dist. Lucas No. L-19-
1253, 2020-Ohio-4702, order to certify conflict allowed, State v. Maddox, 160 Ohio St.3d
1505, 2020-Ohio-6913, 159 N.E.3d 1150 (Table). See also, State v. Downard, 5th Dist.
Muskingum No. CT2019-0079, 2020-Ohio-4227, appeal accepted on appellant's
Proposition of Law No. II, State v. Downard, 160 Ohio St.3d 1507, 2020-Ohio-6835, 159
N.E.3d 1507 (Table) (Sua sponte, cause held for the decision in 2020-1266, State v.
Maddox).
{¶14} For the reasons set forth in this Court's prior opinions, we find appellant's
constitutional challenges to the Reagan Tokes Act and her trial counsel's failure to raise
the same are not yet ripe for review.
{¶15} Appellant's first and third assignments of error are, therefore, overruled.
II
{¶16} Appellant, in her second assignment of error, argues that the trial court
abused its discretion by ordering her to pay a fine. We disagree.
{¶17} We 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). To find an abuse
of discretion, we must determine the trial court's decision was unreasonable, arbitrary, or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶18} R.C. 2929.18(B)(1) establishes a procedure for avoiding imposition of
mandatory fines applicable to certain felony drug offenses. That section provides:
Muskingum County, Case No. CT2021-0022 6
{¶19} “If 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.”
{¶20} This Court addressed a trial court's duties when imposing a financial
sanction in State v. Perry, 5th Dist. Stark No. 2004-CA-00066, 2005-Ohio-85:
{¶21} “ ‘[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).”
{¶22} Perry at ¶ 27.
{¶23} The statute places the burden “upon the offender to affirmatively
demonstrate that he or she is indigent and is unable to pay the mandatory fine.”
(Emphasis original) State v. Gipson, 80 Ohio St.3d 626, 635, 687 N.E.2d 750 (1998).
Additionally, a trial court need not affirmatively find that an offender is able to pay. Id.Muskingum County, Case No. CT2021-0022 7
Instead, the fine is mandatory unless the offender establishes current indigence and an
inability to pay. Id.{¶24} In the case sub judice, the trial court denied appellant’s request to waive the
$7,500.00 fine based on the “money you [appellant] was going through and the amount
of drugs you [appellant] were trafficking in,…” Transcript of March 29, 2021 hearing at 14.
The court noted that appellant sold over $43,000,00 worth of drugs in two months and
had been selling drugs for quite a while. The court further noted that appellant had not
worked for the last three or four years and was selling drugs to pay her bills. Other than
filing a financial disclosure form, indigency, appellant has failed to demonstrate her
inability to pay the fine. Upon review of appellant's financial disclosure form, the same
does not provide sufficient information to support a finding of indigency with respect to
the mandatory fine.
{¶25} Under these circumstances, we find the trial court did not abuse its
discretion in imposing the mandatory fine.
{¶26} Appellant’s second assignment of error is, therefore, overruled.
Muskingum County, Case No. CT2021-0022 8
{¶27} Accordingly, the judgment of the Muskingum County Court of Common
Pleas is affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Hoffman, J. concur.