Opinion
WD-21-002 WD-21-003
10-22-2021
State of Ohio Appellee v. Phillip Michael Brown Appellant
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.
Trial Court Nos. 2019CR0385, 2019CR0585
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
DECISION AND JUDGMENT
OSOWIK, J.
{¶ 1} This is a consolidated appeal from the August 5, 2020 judgments of the Wood County Court of Common Pleas, sentencing appellant to an aggregate term of incarceration, ranging from a minimum term of five years to a maximum term of seven and one-half years, following appellant's guilty pleas to one count of burglary with a forfeiture specification, in violation of R.C. 2911.12, a felony of the second degree, one count of receiving stolen property with a forfeiture specification, in violation of R.C. 2913.51, a felony of the fifth degree, and two counts of theft, both with forfeiture specifications, in violation of R.C. 2913.02, felonies of the fifth degree.
{¶ 2} For sentencing purposes, the receiving stolen property conviction was merged into the theft convictions, and all sentences were ordered to be served concurrently with the burglary sentence. The cases were consolidated for this appeal. For the reasons set forth below, this court dismisses the instant appeal.
{¶ 3} Appellant, Phillip Michael Brown, sets forth the following two assignments of error:
I. Indefinite sentencing under the Reagan Tokes Act is unconstitutional under the 14th amendment of the United States Constitution and the applicable sections of the Ohio Constitution.
II. Appellant received ineffective assistance of counsel [].
{¶ 4} The following undisputed facts are relevant to this appeal. On July 24, 2019, the Perrysburg Police Department responded to a call from the Perrysburg Kohl's Department Store. Appellant had just stolen $1,232.99 of assorted merchandise from the store by loading a cart full of merchandise, and absconding from the store without paying for the merchandise. Appellant was arrested.
{¶ 5} On December 4, 2019, the Bowling Green Police Department responded to a call from the Bowling Green Walmart Department Store. Appellant had similarly stolen $2,601.00 of assorted merchandise from the store; including drones, seven Fitibit fitness devices, two X-Box game consoles, a smart projector, and assorted tool kits, by loading a cart full of merchandise, and absconding from the store without paying for the merchandise. Appellant was arrested.
{¶ 6} In the course of the ensuing investigation into the Walmart theft, officers further discovered that earlier on December 4, 2019, prior to the above-discussed Walmart theft, appellant had likewise stolen $2,584.61 in assorted merchandise, using the same modus operandi as was used in the other incidents, from the Rossford Home Depot Store.
{¶ 7} In total, appellant stole approximately $6,418.60 in merchandise from the above-listed Wood County retailers.
{¶ 8} On September 19, 2019, appellant was indicted on one count of theft, in violation of R.C. 2913.02, a felony of the fifth degree, arising from the July 24, 2019 Kohl's theft.
{¶ 9} On January 23, 2020, appellant was indicted on one count of theft, with a forfeiture specification, in violation of R.C. 2913.02, a felony of the fifth degree, one count of burglary, with a forfeiture specification, in violation of R.C. 2911.12, a felony of the second degree, one count of theft, with a forfeiture specification, in violation of R.C. 2913.02, a felony of the firth degree, and one count of receiving stolen property, with a forfeiture specification, in violation of R.C. 2913.51, a felony of the fifth degree, arising from the December 4, 2019 Walmart and Home Depot thefts.
{¶ 10} On July 30, 2020, appellant's posted bond of $15,000.00 was revoked and a statewide capias warrant was issued due to appellant's failure to appear at court proceedings. On July 31, 2020, appellant was arrested.
{¶ 11} On August 4, 2020, appellant pled guilty to the offenses. The receiving stolen property count was merged with the theft offenses and all sentences were ordered to be served concurrently with the burglary sentence.
{¶ 12} Accordingly, appellant's total aggregate sentence arising from the five underlying felony convictions ranged from a minimum sentence of five years to a maximum sentence of seven and one-half years. This appeal ensued.
{¶ 13} In the first assignment of error, appellant argues that the sentence imposed on the burglary conviction was unlawful. Specifically, appellant asserts that the sentence was unconstitutional, in violation of the separation of powers doctrine, due to the sentencing applicability of the 2018 Reagan Tokes Act ("Tokes").
{¶ 14} Tokes restored indefinite sentencing in Ohio for first and second degree felonies committed subsequent to March 22, 2019, such as the second degree felony burglary sentence underlying this appeal. See R.C. 2929.144.
{¶ 15} Specifically, appellant submits that, "Despite a rebuttable presumption that a defendant will be released upon completion of the minimum sentence * * * ODRC can order a defendant to serve the maximum term for violation of any law that demonstrates that the defendant has not been rehabilitated."
{¶ 16} As recently reiterated by this court, in response to analogous constitutional claims submitted upon appeal, "Our controlling precedent as to the [] issue raised, the constitutionality of the provisions for indefinite sentencing in the Reagan Tokes law, as codified at R.C. 2967.271, requires dismissal of the appeal. See State v. Stenson, 6th Dist. Lucas N. L-20-1074, 2021-Ohio-2256, ¶ 14; citing State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2020-Ohio-4702." State v. Figley, 6th Dist. Lucas No. L-20-1167, 2021-Ohio-2622, ¶ 4.
{¶ 17} Subsequent to Maddox, we have uniformly held that a Tokes constitutional challenge is not ripe for appellate consideration until the defendant/appellant has completed the minimum term of the indefinite sentence imposed, and thereafter is denied release.
{¶ 18} On December 28, 2020, the Ohio Supreme Court determined that a conflict exists between Maddox and State v. Leet, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; and State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837.
{¶ 19} The question of law certified by the Ohio Supreme Court posits, in relevant part, "Is the constitutionality of the Reagan Tokes Act * * * ripe for review on direct appeal from sentencing, or only after the defendant has served the minimum term and been subject to extension by application of the Act?" State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150.
{¶ 20} Accordingly, we dismiss the first assignment of error under Maddox, as the constitutional challenge submitted by appellant is not ripe for review, while also noting the conflict has been certified to the Ohio Supreme Court, pursuant to Article IV, Section 3(B)(4) of the Ohio Constitution.
{¶ 21} In appellant's second assignment of error, appellant alleges ineffective assistance of counsel due to counsel's failure to make a constitutional sentencing objection based upon Tokes.
{¶ 22} It is well-established that in order to prevail on an ineffective assistance of counsel claim, it must be demonstrated both that trial counsel's performance fell below an objective standard of reasonableness, and that, but for the established deficiency, the outcome of the case would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
{¶ 23} Appellant's second assignment of error is wholly premised upon a favorable determination on the merits by this court in response to appellant's first assignment of error.
{¶ 24} Appellant argues that, "[C]ounsel was ineffective in this matter by failing to properly preserve the issue addressed in Appellant's First Assignment of Error."
{¶ 25} Given our determination above, dismissing appellant's first assignment of error, appellant cannot demonstrate that the outcome in this case would have been different based upon trial counsel tendering a sentencing objection on the basis of a claim not yet ripe for appellate review, and awaiting a determination by the Ohio Supreme Court.
{¶ 26} Accordingly, given that dismissal of the first assignment of error was required, we likewise dismiss appellant's corollary second assignment of error.
{¶ 27} Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Appeal dismissed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J., Gene A. Zmuda, P.J., Myron C. Duhart J. CONCUR.