Opinion
22CA0107 22CA0108
07-24-2023
STATE OF OHIO Plaintiff-Appellee v. TIFFANY BLACK Defendant-Appellant
For Plaintiff-Appellee: JENNY WELLS, LICKING CO. PROSECUTOR, KENNETH W. OSWALT. For Defendant-Appellant: WILLIAM T. CRAMER.
Appeal from the Licking County Court of Common Pleas, case no. 22CR318
JUDGMENT: AFFIRMED
For Plaintiff-Appellee: JENNY WELLS, LICKING CO. PROSECUTOR, KENNETH W. OSWALT.
For Defendant-Appellant: WILLIAM T. CRAMER.
JUDGES: Hon. Patricia A. Delaney, P.J., Hon. Craig R. Baldwin, J., Hon. Andrew J. King, J.
OPINION
DELANEY, J.
{¶1} Appellant Tiffany Black appeals from the October 25, 2022 Judgment of Conviction and Sentence of the Licking County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This is a consolidated appeal arising from two separate indictments before the Licking County Court of Common Pleas. The parties do not dispute the underlying facts or procedural history.
{¶3} In April 2021, appellant was a passenger in a motor vehicle during a traffic stop. She was removed from the car and consented to a search of her purse which yielded 24.9 grams of cocaine, 5.9 grams of fentanyl, and .42 grams of MDMA.
{¶4} As a result of the traffic stop search, appellant was indicted upon one count of cocaine possession in an amount equal to or exceeding 20 grams but less than 27 grams in violation of R.C. 2925.11(A)(C)(4)(d), a felony of the second degree [Count I-A]; one count of possession of fentanyl in an amount equal to or exceeding 5 grams but less than 10 grams in violation of R.C. 2925.11(A)(C)(11)(c), a felony of the third degree [Count II-A; and aggravated drug possession [MDMA] in an amount less than bulk pursuant to R.C. 2925.11(A)(C)(1)(a), a felony of the fifth degree [Count III-A]. The indictment was docketed as Licking County Court of Common Pleas case number 22CR249.
{¶5} In May 2022, police executed a search warrant on a house owned by appellant and found 19.2 grams of fentanyl, 20.7 grams of cocaine, and $1,318 in cash. Appellant admitted engaging in drug trafficking and that the cash constituted proceeds of trafficking. Appellant's 7-year-old brother lived with her and was within 100 feet of the drugs.
{¶6} As a result of the residence search, appellant was charged by indictment with one count of trafficking a fentanyl-related compound in the vicinity of a juvenile in an amount equal to or exceeding 10 grams but less than 20 grams pursuant to R.C. 2925.03(A)(2)(C)(9)(e), a felony of the first degree [Count I-B]; one count of possession of cocaine in an amount equal to or exceeding 20 grams but less than 27 grams in violation of R.C. 2925.11(A)(C)(4)(d), a felony of the second degree [Count II-B]; and one count of possession of a fentanyl-related compound in amounts equal to or exceeding 10 grams but less than 20 grams in violation of R.C. 2925.11(A)(C)(11)(d), a felony of the second degree [Count III-B]. The indictment also contained a forfeiture specification for the cash pursuant to R.C. 2941.1417 and R.C. 2981.02. The indictment was docketed as Licking County Court of Common Pleas case number 22CR318.
{¶7} The parties reached a plea agreement in which appellant pled guilty to all counts in both indictments and admitted the forfeiture. In exchange, appellee agreed to a joint recommendation of a minimum aggregate prison term of 6 years.
{¶8} Appellant appeared before the trial court and changed her pleas of not guilty to ones of guilty. The trial court reviewed the plea agreement, explained appellant's constitutional rights, and correctly summarized the potential maximum punishments. The trial court accepted appellant's pleas and found her guilty.
{¶9} The trial court then imposed sentence in accordance with the parties' agreement, to wit, an aggregate prison term of 6 to 7 and a half years. The trial court also ordered forfeiture of the cash.
{¶10} Appellant now appeals from the trial court's entries of conviction and sentence.
{¶11} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶12} "INDEFINITE PRISON TERMS IMPOSED UNDER THE REAGAN TOKES LAW VIOLATE THE JURY TRIAL GUARANTEE, THE DOCTRINE OF SEPARATION OF POWERS, AND DUE PROCESS PRINCIPLES UNDER THE FEDERAL AND STATE CONSTITUTIONS."
ANALYSIS
{¶13} Appellant argues her indefinite sentence is unconstitutional on three grounds, acknowledging this Court has rejected these arguments; appellant notes she preserves the issues for further review. For the following reasons, we overrule appellant's sole assignment of error.
{¶14} Appellant challenges the constitutionality of the Reagan Tokes Act, specifically R.C. 2967.271, which codified hybrid indefinite prison terms for first- and second-degree felonies. Appellant argues that the Act violates the separation of powers doctrine, the constitutional right to trial by jury, and due process. We disagree.
{¶15} As appellant notes, the constitutionality of the Reagan Tokes Law is pending before the Ohio Supreme Court based upon arguments including separation of powers, access to a jury, and due process in the following cases: State v. Hacker, 3rd Dist. No. 8-20-01, 2020-Ohio-5048, 161 N.E.3d 112, appeal allowed, 161 Ohio St.3d 1449,, 2021-Ohio-534, 163 N.E.3d 585, and State v. Simmons, 8th Dist. No. 109476, 2021-Ohio-939, 169 N.E.3d 728, appeal allowed, 163 Ohio St.3d 1492, 2021-Ohio-2270, 169 N.E.3d 1273.
{¶16} We begin by noting the Ohio Supreme Court found the issue of the constitutionality of an indeterminate sentence imposed under R.C. 2967.271 ripens at the time of sentencing and the law may be challenged on direct appeal. State v. Maddox, 168 Ohio St.3d 292, 2022-Ohio-764, 198 N.E.3d 797, ¶ 21.
{¶17} Appellant's arguments regarding the constitutionality of sentencing pursuant to the Reagan Tokes Act have been rejected by this Court in, e.g., State v. Burris, 5th Dist. Guernsey No. 21CA000021, 2022-Ohio-1481, and State v. Ratliff, 5th Dist. Guernsey No. 21CA000016, 2022-Ohio-1372. For the reasons stated in Judge Gwin's dissent in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501, 2020 WL 7054428, the Reagan Tokes Law does not violate an appellant's constitutional rights to trial by jury and due process of law, and does not violate the constitutional requirement of separation of powers. We have adopted the dissenting opinion in Wolfe as the opinion of this Court. State v. Woods, 5th Dist. No. 2021 CA 00132, 2022-Ohio-3339, 198 N.E.3d 900, ¶ 60; see also, State v. Householder, 5th Dist. Muskingum No. CT2021-0026, 2022-Ohio-1542; State v. Ware, 5th Dist. Richland No. 22CA48, 2023-Ohio-1807.
{¶18} In so holding, we also noted the sentencing law has been found constitutional by the Second, Third, and Twelfth Districts, and by the Eighth District sitting en banc. See e.g., State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153, 2020 WL 4919694; State v. Hacker, 3rd Dist., 2020-Ohio-5048, 161 N.E.3d 112; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, 2020 WL 4279793; State v. Delvallie, 8th Dist., 2022-Ohio-470, 185 N.E.3d 536.
{¶19} Appellant acknowledges our position on her arguments and we will summarily address those arguments as follows.
Violation of right to trial by jury
{¶20} Appellant argues that pursuant to the Act, the Department of Rehabilitation and Correction ("DRC") unilaterally conducts fact-finding which may extend an inmate's sentence, thereby violating her right to trial by jury.
{¶21} Under the Act the judge imposes both a minimum and a maximum sentence; no judicial fact-finding is required. State v. Marcum, 5th Dist. Coshocton No. 2022 CA 0035, 2023-Ohio-2450, ¶ 20. In Ohio, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. The Reagan Tokes Act does not permit the Department of Rehabilitation and Correction ("DRC") to extend a sentence beyond the maximum sentence imposed by the trial court. Burris at ¶ 86. "Further, the facts which postpone an inmate's release date are facts found as a result of prison disciplinary proceedings, not the underlying crime." Id.; State v. Spears, 5th Dist. No. 2021 CA 00030, 2023-Ohio-187, 205 N.E.3d 1261, ¶ 17.
Violation of separation of powers
{¶22} "The Ohio Supreme Court has made it clear that when the power to sanction is delegated to the executive branch, a separation-of-powers problem is avoided if the sanction is originally imposed by a court and included in its sentence." Burris at ¶ 78, citing Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶18-20, internal citation omitted. This is the scheme established by the Reagan Tokes Law. State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶23. The statute does not permit DRC to act outside of the maximum prison term imposed by the court. Id. Accordingly, the Reagan Tokes Act does not violate the separation of powers doctrine. State v. Marcum, supra, 5th Dist. Coshocton No. 2022 CA 0035, 2023-Ohio-2450, ¶ 21.
Violation of due process
{¶23} Procedural requirements are minimal in the context of parole. Burris at ¶ 59. "[P]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (citations omitted). Courts have found the following procedures should be accorded to prisoners in a disciplinary proceeding:
1). A prisoner is entitled to a review unaffected by "arbitrary" decision making. Wolff, 418 U.S. at 557-558, 94 S.Ct. 2963; (See, Ohio Admin. Code 5120-9-08).
2). Advance written notice of the claimed violation. Wolff, 418 U.S. at 563, 94 S.Ct. 2963. (See, Ohio Adm. Code 5120:1-8-12).
3). A written statement of the fact finders as to the evidence relied upon and the reasons for the disciplinary action taken. Wolff, 418 U.S. at 563, 94 S.Ct. 2963. (See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120: 1-11(G)(1)).
4). Prison official must have necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Wolff, 418 U.S. at 566, 94 S.Ct. 2963 (See, Ohio Adm. Code 5120-0-08(E) (3); Ohio Adm. Code 5120-9-08(F)).
5). "Where an illiterate inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff." Wolff, 418 U.S. at 570, 94 S.Ct. 2963. (See, Ohio Adm. Code 5120-9-07(H)(1)).
State v. Burris, 5th Dist. Guernsey No. 21CA000021, 2022-Ohio-1481, ¶ 55.
{¶24} In the case sub judice, the DRC must conduct a hearing to rebut the presumptive release date. Id. at ¶ 66. According to R.C. 2967.271(C) the DRC must determine the applicability of the following factors:
(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 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.
{¶25} The Reagan Tokes Act requires DRC to provide notice of the hearing. R.C. 2967.271(E). The Ohio Administrative code sets forth inmate rules of conduct, disciplinary procedures for violations of the rules, under what circumstances an inmate is transferred to restrictive housing, and procedure for release consideration hearings. Ohio Adm. Code 5120-9-06; Ohio Adm. Code 5120-9-08; Ohio Adm. Code 5120-9-10; Ohio Adm. Code 5120: 1-1-11. Therefore, the DRC gives the inmate notice in advance of behavior which may contribute or result to extending their sentence.
{¶26} The Reagan Tokes Act provides the inmate an opportunity to be heard. State v. Marcum, supra, 5th Dist. Coshocton No. 2022 CA 0035, 2023-Ohio-2450, ¶ 25. The DRC "shall provide notices of hearings to be conducted under division (C) or (D) of this section in the same manner, and to the same persons, as specified in section 2967.12 and Chapter 2930 of the Revised Code with respect to hearings to be conducted regarding the possible release on parole of an inmate." R.C. 2967.271(E).
{¶27} Therefore, we find the Reagan Tokes Act does not violate appellant's right to due process. Marcum, supra, 2023-Ohio-2450, ¶ 26.
CONCLUSION
{¶28} Appellant's sole assignment of error is overruled and the judgment of the Licking County Court of Common Pleas is affirmed.
By: Delaney, P.J., Baldwin, J. and King, J., concur.