State v. Downard

[Cite as State v. Downard, 2020-Ohio-4227.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2019-0079
DAMON K. DOWNARD
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2019-0370
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: August 26, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX JAMES A. ANZELMO
Prosecuting Attorney 446 Howland Drive
Muskingum County, Ohio Gahanna, Ohio 43230
TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
P.O. Box 189
Zanesville, Ohio 43701
Muskingum County, Case No. CT2019-0079 2
Hoffman, P.J.
{¶1} Appellant Damon K. Downard appeals the judgment entered by the
Muskingum County Common Pleas Court convicting him of robbery (2911.02(A)(1)) and
assault on a peace officer (2903.13(A)) following his pleas of guilty, and sentencing him
to an aggregate minimum prison term of nine years and an aggregate indefinite maximum
prison term of thirteen years. Appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On July 10, 2019, Appellant was indicted by the Muskingum County Grand
Jury on one count of aggravated robbery, a first degree felony, and one count of assault
on a peace officer, a fourth degree felony. On September 18, 2019, Appellant entered
guilty pleas to an amended charge of robbery, a second degree felony, and assault on a
peace officer, a fourth degree felony, and was convicted of both charges.
{¶3} The case proceeded to sentencing on September 23, 2019. Appellant was
sentenced pursuant to Am.Sub.S.B. No. 201, otherwise known as the Reagan Tokes Act.
On the robbery conviction, the trial court sentenced Appellant to a stated minimum prison
term of eight years. The trial court sentenced Appellant to a stated prison term of twelve
months for assault on a peace officer. The trial court ordered the sentences to be served
consecutively, for an aggregate minimum prison term of nine years and an aggregate
indefinite maximum prison term of thirteen years.
{¶4} It is from the September 25, 2019, judgment of the Muskingum County
Common Pleas Court Appellant prosecutes this appeal, assigning as error:
1 A rendition of the facts is not necessary for our resolution of the issues raised on appeal.
Muskingum County, Case No. CT2019-0079 3
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.
II. DAMON DOWNARD 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., II.
{¶5} In his first assignment of error, Appellant challenges the presumptive
release feature of R.C. 2967.271, arguing it violates his constitutional rights to trial by jury
and due process of law, and further violates the constitutional requirement of separation
of powers. In his second assignment of error, Appellant argues his trial counsel was
ineffective by failing to raise the constitutionality of R.C. 2967.271 in the trial court.
{¶6} R.C. 2967.271 provides in pertinent part:
(B) When an offender is sentenced to a non-life felony indefinite
prison term, there shall be a presumption that the person 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.
Muskingum County, Case No. CT2019-0079 4
(C) The presumption established under division (B) of this section is
a rebuttable presumption that the department of rehabilitation and
correction may rebut as provided in this division. Unless the department
rebuts the presumption, the 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. The
department may rebut the presumption only if the department determines,
at a hearing, that one or more of the following applies:
(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
Muskingum County, Case No. CT2019-0079 5
in extended restrictive housing at any time within the year preceding the
date of the hearing.
(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.
(D)(1) If the department of rehabilitation and correction, pursuant to
division (C) of this section, rebuts the presumption established under
division (B) of this section, the department may maintain the offender's
incarceration in a state correctional institution under the sentence after the
expiration of the offender's minimum prison term or, for offenders who have
a presumptive earned early release date, after the offender's presumptive
earned early release date. The department may maintain the offender's
incarceration under this division for an additional period of incarceration
determined by the department. The additional period of incarceration shall
be a reasonable period determined by the department, shall be specified by
the department, and shall not exceed the offender's maximum prison term.
(2) If the department maintains an offender's incarceration for an
additional period under division (D)(1) of this section, there shall be a
presumption that the offender shall be released on the expiration of the
offender's minimum prison term plus the additional period of incarceration
specified by the department as provided under that division or, for offenders
who have a presumptive earned early release date, on the expiration of the
additional period of incarceration to be served after the offender's
Muskingum County, Case No. CT2019-0079 6
presumptive earned early release date that is specified by the department
as provided under that division. The presumption is a rebuttable
presumption that the department may rebut, but only if it conducts a hearing
and makes the determinations specified in division (C) of this section, and
if the department rebuts the presumption, it may maintain the offender's
incarceration in a state correctional institution for an additional period
determined as specified in division (D)(1) of this section. Unless the
department rebuts the presumption at the hearing, the offender shall be
released from service of the sentence on the expiration of the offender's
minimum prison term plus the additional period of incarceration specified by
the department or, for offenders who have a presumptive earned early
release date, on the expiration of the additional period of incarceration to be
served after the offender's presumptive earned early release date as
specified by the department.
The provisions of this division regarding the establishment of a
rebuttable presumption, the department's rebuttal of the presumption, and
the department's maintenance of an offender's incarceration for an
additional period of incarceration apply, and may be utilized more than one
time, during the remainder of the offender's incarceration. If the offender
has not been released under division (C) of this section or this division prior
to the expiration of the offender's maximum prison term imposed as part of
the offender's non-life felony indefinite prison term, the offender shall be
released upon the expiration of that maximum term.
Muskingum County, Case No. CT2019-0079 7
{¶7} Appellant argues the portions of the statute which allow the Department of
Rehabilitation and Corrections (DRC) to administratively extend his prison term beyond
his presumptive minimum prison term violate the United States and Ohio Constitutions.
However, Appellant has not yet been subject to the application of these provisions, as he
has not yet served his minimum term, and therefore has not been denied release at the
expiration of his minimum term of incarceration.
{¶8} The Ohio Supreme Court discussed the concept of ripeness for review in
State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 1998-Ohio-366, 694
N.E.2d 459:
Ripeness “is peculiarly a question of timing.” Regional Rail
Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42
L.Ed.2d 320, 351. The ripeness doctrine is motivated in part by the desire
“to prevent the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative
policies * * *.” Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 148, 87
S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691. As one writer has observed:
“The basic principle of ripeness may be derived from the conclusion
that ‘judicial machinery should be conserved for problems which are real or
present and imminent, not squandered on problems which are abstract or
hypothetical or remote.’ * * * [T]he prerequisite of ripeness is a limitation on
jurisdiction that is nevertheless basically optimistic as regards the prospects
of a day in court: the time for judicial relief is simply not yet arrived, even
Muskingum County, Case No. CT2019-0079 8
though the alleged action of the defendant foretells legal injury to the
plaintiff.” Comment, Mootness and Ripeness: The Postman Always Rings
Twice (1965), 65 Colum. L.Rev. 867, 876.
{¶9} Id. at 89, 694 N.E.2d at 460.
{¶10} In State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-Ohio-171, the
defendant argued because the Parole Board, pursuant to R.C. 2967.28, could extend his
sentence by up to an additional five years for violation of post-release control, the statute
was unconstitutional. The Eighth District Court of Appeals concluded because McCann
was not currently the subject of such action by the Parole Board, the issue was not yet
ripe for review. Id. at ¶6.
{¶11} Likewise, in the instant case, while R.C. 2967.271 allows the DRC to rebut
the presumption Appellant will be released after serving his nine year minimum sentence
and potentially continue his incarceration to a term not exceeding thirteen years,
Appellant has not yet been subject to such action by the DRC, and thus the constitutional
issue is not yet ripe for our review.
{¶12} In State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000),
the Ohio Supreme Court held the former R.C. 2967.11, which allowed executive branch
officials to try, convict, and add bad time to a prisoner’s term for a criminal violation
occurring during the course of the prisoner's stated term of incarceration, violated the
constitutional doctrine of separation of powers and was therefore unconstitutional The
case involved three prisoners who had been subject to application of the “bad time”
provision. One prisoner had filed a writ of habeas corpus in the Court of Appeals for
Muskingum County, Case No. CT2019-0079 9
Warren County, which denied the writ, and he appealed. A second prisoner filed a writ
of habeas corpus in the Court of Appeals for Trumbull County, which granted the writ,
and the State appealed. A third prisoner filed an original petition for a writ of habeas
corpus in the Ohio Supreme Court. Although the Bray court did not specifically discuss
the necessity of the use of a writ of habeas corpus to challenge the constitutionality of the
bad time provisions of the statute, the court ruled on the merits of the writs, finding the
statute violated the constitutional doctrine of separation of powers. Id. at 136, 729 N.E.2d
at 362. We thus infer the appropriate method for Appellant to challenge the
constitutionality of the presumptive release portions of R.C. 2967.271 is by filing a writ of
habeas corpus if he is not released at the conclusion of his eight year minimum term of
incarceration.
{¶13} We find the issues raised in this appeal are not yet ripe for review. The
assignments of error are overruled.
{¶14} The appeal is dismissed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur