State v. Smith

[Cite as State v. Smith, 2022-Ohio-3629.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210449
TRIAL NO. B-2100060
Plaintiff-Appellee, :
O P I N I O N.
vs. :
SHERRY SMITH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 12, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Angela J. Glaser, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Sherry Smith appeals from the trial court’s
judgment convicting her, upon no-contest pleas, of aggravated vehicular homicide and
aggravated vehicular assault. In this appeal she challenges the indefinite sentence
imposed by the trial court for the offense of aggravated vehicular homicide, arguing in
four assignments of error that the indefinite sentencing provisions of the Reagan
Tokes Law, enacted through 2018 Am.Sub.S.B. 201, are unconstitutional and that her
constitutional challenges are ripe for review. Finding that Smith’s constitutional
challenges to the Reagan Tokes Law are ripe for review but are without merit, we
affirm the trial court’s judgment.
Factual and Procedural Background
{¶2} Smith entered no contest pleas to (1) aggravated vehicular homicide, a
second-degree-felony offense in violation of R.C. 2903.06(A)(1)(a), (2) aggravated
vehicular homicide, a third-degree-felony offense in violation of R.C.
2903.06(A)(2)(a), (3) aggravated vehicular assault, a third-degree-felony offense in
violation of R.C. 2903.08(A)(1)(a), and (4) vehicular assault, a fourth-degree-felony
offense in violation of R.C. 2903.08(A)(2)(b). The offenses occurred on or about
December 24, 2020, subjecting Smith to the indefinite sentencing provisions of the
Reagan Tokes Law, effective March 22, 2019.
{¶3} Smith filed a motion to strike the indefinite sentencing provisions of the
Reagan Tokes Law, arguing that the law was unconstitutional because it violated the
separation-of-powers doctrine and deprived an offender of adequate procedural due
process. The trial court rejected Smith’s constitutional challenges.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} At sentencing, the trial court merged the two counts of aggravated
vehicular homicide as well as the two vehicular-assault counts. For the second-degree-
felony offense of aggravated vehicular homicide, the court imposed an indefinite
sentence of a minimum term of five years in prison and a maximum term of seven and
a half years in prison. For the third-degree-felony offense of aggravated vehicular
assault, the court imposed a sentence of two years in prison. These sentences were
made consecutive, resulting in an aggregate sentence of seven years to nine and a half
years of imprisonment.
Constitutional Challenges are Ripe for Review
{¶5} Smith argues in her first assignment of error that constitutional
challenges to the Reagan Tokes Law are ripe for review. We agree. In State v. Maddox,
Slip Opinion No. 2022-Ohio-764, ¶ 11, the Supreme Court of Ohio held that challenges
to the constitutionality of the Reagan Tokes Law were ripe for review on direct appeal.
See State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, ¶ 10. We
sustain Smith’s first assignment of error and consider her remaining three
assignments of error facially challenging the constitutionality of the Reagan Tokes
Law.
Due Process and Separation of Powers
{¶6} In her second assignment of error, Smith argues that the Reagan Tokes
Law violates her due-process rights guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution and Article 1, Section 10 of the Ohio
Constitution. And in her fourth assignment of error, she argues that the Reagan Tokes
Law violates the separation-of-powers doctrine.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} This court addressed similar challenges to the Reagan Tokes Law in
Guyton. In Guyton, we determined that the Reagan Tokes Law did not violate
substantive- and procedural-due-process rights or the separation-of-powers doctrine.
Id. at ¶ 28, 37 and 57. On the authority of Guyton, we overrule Smith’s second and
fourth assignments of error.
Right to Trial by Jury
{¶8} In her third assignment of error, Smith argues that the Reagan Tokes
Law violates her right to a trial by jury guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and Article 1, Section 5 of the Ohio
Constitution.
{¶9} Smith directs us to the provision in the Reagan Tokes Law that allows
the Ohio Department of Rehabilitation and Correction (“ODRC”) to hold an individual
beyond her or his presumptive release date if any of the following occur:
(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.
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OHIO FIRST DISTRICT COURT OF APPEALS
(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.
(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.
R.C. 2967.271(C)(1), (2), and (3).
{¶10} She contends that the Reagan Tokes Law violates her right to a trial by
jury because it permits the ODRC, when determining whether to hold an individual
beyond the presumptive release date, to engage in fact-finding endeavors that are
intended to be addressed by a jury, specifically by requiring the ODRC to present facts
demonstrating that the criteria in R.C. 2967.271(C)(1),(2), or (3) have been met. Smith
argues that this provision in the Reagan Tokes Law is contrary to the holding in
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),
that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”
{¶11} Several of our sister districts have considered and rejected similar
constitutional challenges. In State v. Rogers, 12th Dist. Butler No. CA2021-02-010,
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OHIO FIRST DISTRICT COURT OF APPEALS
2021-Ohio-3282, the court noted that the sentencing scheme in the Reagan Tokes Law
is unlike that involved in Apprendi. It explained that:
Under the Reagan Tokes Law, the trial court imposes both a minimum
and a maximum term, and the indefinite prison sentence must be
included in the final entry of conviction. R.C. 2929.14 and 2929.144.
The only sentencing discretion provided to the trial court lies with the
length of the minimum term under R.C. 2929.14(A)(1)(a) and (A)(2)(a);
the maximum term is determined based upon a mathematical formula
as applied to the minimum term of imprisonment. The maximum
prison term component of a Reagan Tokes indefinite sentence is
therefore authorized by the jury’s guilty verdict and is not based upon
factors not submitted to the jury. The defendant is not exposed to
greater punishment than that authorized by the jury’s verdict.
Once imposed by the trial court, the indefinite sentence is then
implemented by ODRC. ODRC simply enforces the sentence imposed
by the trial court and its review is limited to determining the offender’s
release date. R.C. 2967.271 establishes a presumptive release date upon
completion of the minimum term. Once the minimum term is served,
ODRC may rebut the presumption of release under certain conditions
and enforce the remainder of the maximum term already imposed by
the trial court. R.C. 2967.271(B). However, “[t]hat codified process
does not alter the fact that the trial court imposed a maximum term as
calculated under R.C. 2929.144.” State v. Gamble, 8th Dist. Cuyahoga
No. 109613, 2021-Ohio-1810, ¶ 35. In rebutting the presumption of
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OHIO FIRST DISTRICT COURT OF APPEALS
release, ODRC “is not extending the defendant’s prison term or
imposing its own sentence for violations that occur while the offender is
serving the imposed term of imprisonment.” Id. at ¶ 7. In other words,
ODRC does not “increase” a penalty based upon facts not found by a
jury but merely administers the sentence already imposed by the trial
court for conviction of an offense for which the offender has the right to
a jury trial.
Id. at ¶ 17-18. Applying this reasoning, the court held that the Reagan Tokes Law did
not violate the right to a trial by jury. Id. at ¶ 20.
{¶12} The Eighth District reached the same conclusion in State v. Delvallie,
2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). The Delvallie court held that the Reagan
Tokes Law did not violate the right to a trial by jury or run afoul of Apprendi because:
[T]he trial court must impose a minimum and a maximum indefinite
term under R.C. 2929.14 and 2929.144. The only discretion lies with
the length of the minimum term, and therefore, the trial court is not
imposing a sentence “in excess of the maximum” term as expressly
prohibited under Apprendi. And the trial court is also not imposing a
sentence beyond the minimum term prescribed by statute based on any
findings of facts.
Id. at ¶ 44.
{¶13} We agree with the reasoning employed in Rogers and Delvallie and
similarly hold that because the Reagan Tokes Law does not permit the ODRC to
increase a penalty based upon facts not found by a jury, it does not violate an offender’s
right to a trial by jury. See State v. Thompson, 2d Dist. Clark No. 2020-CA-60, 2021-
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Ohio-4027, ¶ 24-25; State v. Drennen, 4th Dist. Gallia No. 21CA10, 2022-Ohio-3413,
¶ 25; State v. Householder, 5th Dist. Muskingum No. CT2021-0026, 2022-Ohio-1542,
¶ 6; State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2022-Ohio-2606, ¶ 23; State v.
Reffitt, 11th Dist. Lake No. 2021-L-129, 2022-Ohio-3371, ¶ 57.
{¶14} Smith’s third assignment of error is accordingly overruled.
Conclusion
{¶15} While Smith’s facial constitutional challenges to the Reagan Tokes Law
are ripe for review, they are without merit. The Reagan Tokes Law does not violate
the separation-of-powers doctrine, an offender’s due-process rights, or an offender’s
right to a jury trial. Having overruled Smith’s challenges to the Reagan Tokes Law, we
affirm the trial court’s judgment.
Judgment affirmed.
WINKLER and BOCK, JJ, concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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