State v. Cencebaugh

[Cite as State v. Cencebaugh, 2023-Ohio-1309.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29531
:
v. : Trial Court Case No. 2021 CR 03291
:
BRYANT M. CENCEBAUGH : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on April 21, 2023
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee
MATTHEW M. SUELLENTROP, Attorney for Appellant
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EPLEY, J.
{¶ 1} Bryant M. Cencebaugh appeals from his convictions for aggravated
possession of drugs (methamphetamine), two counts of possession of a fentanyl-related
compound, and two counts of aggravated possession of drugs (Schedule I or II). He
claims that the trial court failed to properly provide the Reagan Tokes Act notifications
required by R.C. 2929.19(B)(2)(c) at sentencing. The State concedes error. For the
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following reasons, the trial court’s judgment will be reversed, and the matter will be
remanded for the sole purpose of conducting a new sentencing hearing in compliance
with R.C. 2929.19(B)(2)(c).
I. Facts and Procedural History
{¶ 2} According to the presentence investigation report, on February 8, 2021,
Kettering police officers received a report from Cencebaugh’s mother that he was “very
high,” had active warrants, and was at home. After confirming that Cencebaugh had an
active warrant, officers observed Cencebaugh seated in his vehicle in his driveway and
ordered him out of the vehicle; Cencebaugh did not comply, threw items, and yelled
incoherently. The officers ultimately removed him from his vehicle with the assistance
of a canine officer. Afterward, they searched Cencebaugh’s person and vehicle, locating
suspected drugs, drug paraphernalia, approximately $9,000 in cash, and a wall safe.
{¶ 3} On November 24, 2021, Cencebaugh was indicted on five offenses: (1)
aggravated possession of drugs (methamphetamine) (amount equal to or more than five
times the bulk amount, but less than 50 times bulk amount), a second-degree felony; (2)
possession of a fentanyl-related compound (amount equal to or more than 5 grams, but
less than 10 grams), a third-degree felony; (3) aggravated possession of drugs (Schedule
I or II: Clonazolam), a fifth-degree felony; (4) aggravated possession of drugs (Schedule
I or II: Psilocyn), a fifth-degree felony; and (5) possession of a fentanyl-related compound,
a fifth-degree felony. Cencebaugh ultimately pled guilty to the charged offenses.
{¶ 4} After a presentence investigation, the trial court sentenced Cencebaugh to
an indefinite mandatory prison term of a minimum of three years to a maximum of four
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and a half years on Count 1, to a definite term of 36 months on Count 2, and to definite
terms of 12 months each on Counts 3, 4, and 5. All of the counts were to be served
concurrently to each other and to Cencebaugh’s three-year mandatory prison sentence
in Warren C.P. No. 21-CR-37832, which he was already serving. The court ordered
Cencebaugh to pay court costs.
{¶ 5} Cencebaugh appealed from his convictions. His original appellate counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), stating that he could find no non-frivolous issues for appeal. Upon an initial
review, we found that a non-frivolous issue existed and rejected the Anders brief. We
appointed new counsel for Cencebaugh.
{¶ 6} Cencebaugh now raises one assignment of error, claiming that the trial court
erred when it failed to properly provide the notifications required by R.C. 2929.19(B)(2)(c).
II. Notifications under the Reagan Tokes Act
{¶ 7} R.C. 2929.19(B)(2) states that, if the trial court determines at the sentencing
hearing that a prison term is necessary or required, the court must do all seven
enumerated actions specified in that subsection. Of relevance here, R.C.
2929.19(B)(2)(c) identifies notifications that the trial court must provide if it imposes a non-
life felony indefinite prison term pursuant to the Reagan Tokes Act. “Those notifications
generally pertain to the offender’s minimum and maximum prison term and to the
existence and operation of a rebuttable presumption of release from service of the
sentence upon expiration of the minimum term.” State v. Clark, 2d Dist. Montgomery
No. 29295, 2022-Ohio-2801, ¶ 7. Specifically, the trial court must notify the offender:
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(i) That it is rebuttably presumed that the offender will be released from
service of the sentence on the expiration of the minimum prison term
imposed as part of the sentence or on the offender’s presumptive earned
early release date, as defined in section 2967.271 of the Revised Code,
whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut the
presumption described in division (B)(2)(c)(i) of this section if, at a hearing
held under section 2967.271 of the Revised Code, the department makes
specified determinations regarding the offender’s conduct while confined,
the offender’s rehabilitation, the offender’s threat to society, the offender’s
restrictive housing, if any, while confined, and the offender’s security
classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the
department at the hearing makes the specified determinations and rebuts
the presumption, the department may maintain the offender’s incarceration
after the expiration of that minimum term or after that presumptive earned
early release date for the length of time the department determines to be
reasonable, subject to the limitation specified in section 2967.271 of the
Revised Code;
(iv) That the department may make the specified determinations and
maintain the offender’s incarceration under the provisions described in
divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to
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the limitation specified in section 2967.271 of the Revised Code;
(v) That if the offender has not been released prior to the expiration of the
offender’s maximum prison term imposed as part of the sentence, the
offender must be released upon the expiration of that term.
R.C. 2929.19(B)(2)(c)(i)-(v).
{¶ 8} We previously held that an indefinite prison sentence under the Reagan
Tokes Act is contrary to law when the trial court fails to notify the offender at the
sentencing hearing of the information set forth in R.C. 2929.19(B)(2)(c). E.g., State v.
Greene, 2d Dist. Montgomery No. 29274, 2023-Ohio-389, ¶ 7; State v. Massie, 2d Dist.
Clark No. 2020-CA-50, 2021-Ohio-3376, ¶ 23. In Massie, we rejected the State’s
argument that the trial court sufficiently notified the offender of all the information in R.C.
2929.19(B)(2)(c) by simply including the information in the judgment entry of conviction.
Massie at ¶ 20-22.
{¶ 9} In this case, Count 1 was the only offense subject to the Reagan Tokes Act.
See R.C. 2929.14(A). When sentencing Cencebaugh on that count, the trial court told
him: “In regards to Count I, the Court is going to sentence you to a minimum term of three
years and a maximum term of four and a half years. That is a mandatory sentence.”
Although the trial court had briefly explained indefinite sentencing under the Reagan
Tokes Act at the plea hearing, it did not provide the notifications required by R.C.
2929.19(B)(2)(c) at sentencing. The State agrees with Cencebaugh – as do we – that
his sentence is contrary to law and that he must be resentenced in accordance with R.C.
2929.19(B)(2)(c).
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III. Conclusion
{¶ 10} The trial court’s judgment will be reversed, and the matter will be remanded
to the trial court for the sole purpose of conducting a new sentencing hearing in
compliance with R.C. 2929.19(B)(2)(c).
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WELBAUM, P.J. and LEWIS, J., concur.