Opinion
22 BE 0004
12-19-2022
STATE OF OHIO, Plaintiff-Appellee, v. ROGER ALLEN RUNNER, Defendant-Appellant.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Jacob A. Manning, Assistant Prosecuting Attorney, for Plaintiff-Appellee and Atty. Dennis W. McNamara, for Defendant-Appellant.
Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 21 CR 73
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Jacob A. Manning, Assistant Prosecuting Attorney, for Plaintiff-Appellee and
Atty. Dennis W. McNamara, for Defendant-Appellant.
BEFORE: David A. D'Apolito, Gene Donofrio, Cheryl L. Waite, Judges.
OPINION AND JUDGMENT ENTRY
D'Apolito, J.
{¶1} Appellant, Roger Allen Runner, appeals the judgment entry of the Belmont County Court of Common Pleas overruling his motion to dismiss based on the alleged denial of his statutory right to a speedy trial. Appellant entered a plea of no contest to one count of aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(2)(C)(1)(e), a felony of the first degree, with a forfeiture specification pursuant to R.C. 2941.1417(A).Appellant likewise challenges the trial court's imposition of an indefinite sentence of seven to ten-and-a-half years, as he alleges that Ohio's indefinite sentencing law is unconstitutional. For the following reasons, both the judgment entry of the trial court overruling Appellant's motion to dismiss and Appellant's indefinite sentence are affirmed.
At the same plea hearing, Appellant entered a plea of guilty to a bill of information alleging one count of having a weapon under a disability in violation of R.C. 2923.13(A)(3)(b), a felony of the third degree, in Case No. 21 CR 337. The trial court imposed a sentence of three years, to be served concurrently with the sentence imposed in the above-captioned appeal. Appellant's plea and sentence in Case No. 21 CR 337 are not before us on appeal.
FACTS AND PROCEDURAL HISTORY
{¶2} During the execution of a search warrant on March 4, 2021 at a residence titled in the name of Appellant's deceased mother, officers of the Belmont County Sheriff's Department seized 201.7 grams of methamphetamine and $9,420.00 in cash. A vial of methamphetamine weighing roughly seven grams was found on Appellant's person and he was arrested the same day. Appellant was released on bond on March 7, 2021.
{¶3} On March 9, 2021, a complaint was filed in the Belmont County Court, Northern Division, charging Appellant with one count of aggravated trafficking of drugs in violation of R.C. 2925.03(A)(2)(C)(1)(E), a felony of the first degree, with a forfeiture specification. On April 13, 2021, a pro se motion for discovery was filed pursuant to Crim. R. 16(A), despite the fact that Appellant was represented by counsel.
{¶4} At the hearing on the motion to dismiss, Appellant disavowed any knowledge or participation in the preparation and filing of the pro se motion. Appellant speculated that an acquaintance, who had inquired shortly before the motion was filed whether Appellant had received discovery from the state, had forged Appellant's signature and filed the pro se motion.
{¶5} The pro se motion was set to be heard at a bindover hearing originally scheduled for July 12, 2021. Based on the State's expressed intent at the July 12th hearing to present the case to the Grand Jury, the hearing was continued to August 23, 2021, then September 20, 2021.
{¶6} On September 2, 2021, Appellant was indicted on one count of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1)(C)(1)(e), a felony of the first degree, with a forfeiture specification pursuant to R.C. 2941.1417(A); one count of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2)(C)(1)(e), a felony of the first degree, with a forfeiture specification pursuant to R.C. 2941.1417(A); and one count of receiving stolen property in violation of R.C. 2913.51 (A)(C). At the arraignment on September 9, 2021, Appellant's bond was continued and the matter was set for trial on January 6, 2022.
{¶7} Likewise, on September 9, 2021, the State filed a pleading captioned "Response to Defendant's Request for Discovery." The pleading contains a list of materials provided to defense counsel including written and oral statements made by Appellant, police reports, Appellant's criminal record, the indictment, a list of evidence to be offered at trial, and a list of potential witnesses. The State also filed a bill of particulars and a demand for discovery.
{¶8} At the hearing on the motion to dismiss, the State conceded that it was unaware of the pro se motion, having never received it. The State further conceded that it provides discovery in a criminal case following arraignment as a matter of course and by way of a computer program, without any request from the defendant.
{¶9} According to defense counsel at the hearing on the motion to dismiss, Appellant was arrested on October 15, 2021, then released on his own recognizance on October 16, 2021. On October 28, 2021, the State filed a motion to revoke Appellant's bond.
{¶10} According to the memorandum in support of the motion to revoke bond, a bench warrant was issued when Appellant failed to appear at an arraignment in Case No. 21 CRB 625N. Appellant was apprehended at the same address where the search warrant was executed in this case. Drug paraphernalia, two firearms, $2,490.21 in cash, and a substance that field-tested positive for methamphetamine were found at the scene. The revocation hearing was set for November 2, 2021, then continued to November 10, 2021 and November 15, 2021. At the hearing on November 15, 2021, the trial court sustained the State's motion and revoked Appellant's bond.
{¶11} At a status conference on November 29, 2021, the trial court rescheduled the trial from January 6, 2022 to December 14, 2021, based on argument advanced by defense counsel at the revocation hearing alleging a speedy trial violation. The State filed a notice that supplemental discovery was provided to defense counsel, as well as a second request for discovery, on December 2, 2021.
{¶12} On December 10, 2021, Appellant filed the motion to dismiss based on speedy trial grounds, which is the subject of Appellant's first assignment of error. An evidentiary hearing on the motion to dismiss was held on December 13, 2021.
{¶13} At the hearing, Appellant's counsel argued that 285 days had elapsed from the date of Appellant's arrest, without any tolling of the speedy trial statute. Appellant's counsel further argued that the pro se motion for discovery was a nullity, insofar as Appellant was represented by counsel throughout the proceedings, in both the county court and the court of common pleas.
{¶14} Because defense counsel had not requested discovery pursuant to Crim.R. 16, he reasoned that his failure to respond to the State's demand for discovery did not toll the speedy trial clock. At the hearing, defense counsel explained that "[discovery was given by Assistant Prosecutor Scott Lloyd to Aaron Miller [Appellant's original counsel] back in March and discovery was sent to [defense counsel], including supplemental discovery about two additional witnesses as recent as a week or two ago," however he warranted that "there was never a request for it made." (12/13/2022 Mot. Hrg., p. 5.)
{¶15} Nonetheless, defense counsel conceded that "[t]here was one time when I received a copy of a search warrant and inventory from Mr. Gagin, and I wrote him and said, 'Can I have a copy of the application, the affidavit that goes with it?' And within a couple of days, it showed up. He said, 'Sure. Here.'" (Id., p. 6.) Defense counsel argued, "I don't think that constitute [sic] a demand for discovery, but I did ask for that and that would have probably been October, but I'm sure [Gagin] has the date." (Id.)
{¶16} In turn, the State offered the correspondence from defense counsel to the State, which was dated July 20, 2021. According to the hearing transcript, the correspondence reads, in relevant part, "[o]n the day we were in court earlier this month, I obtained discovery that Mr. Lloyd had given to Aaron Miller. The information included a search inventory, but it did not include [a] search warrant application and affidavit. Could you please send those documents to me?" (Id., p. 9-10.) The State represented that the requested discovery was sent to defense counsel by U.S. Mail on July 22, 2021. (Id., p. 10.)
{¶17} The State argued that the July 20, 2021 correspondence constituted a written request for discovery, which imposed upon Appellant a reciprocal duty to disclose under Crim.R. 16. As a consequence, the State filed its demand for discovery on September 9, 2021.
{¶18} Appellant did not file a response to the State's demand for discovery within thirty days. Therefore, the State argued that the speedy trial clock was tolled on October 9, 2021, thirty-one days after the motion was filed, and the clock never resumed based on Appellant's obligation and subsequent failure to respond.
{¶19} The trial court summarily overruled Appellant's motion to dismiss at the hearing, which was memorialized in a judgment entry on December 16, 2021. The trial was scheduled to commence on December 14, 2021, at which time Appellant entered a plea of no contest to the second count of the indictment. The written plea agreement reads, in relevant part, "Agreed sentence of [seven] years, mandatory time, (plus possible 3 ½ additional years from ODRC)." At a sentencing hearing conducted on January 10, 2022, the trial court imposed a sentence of seven to ten-and-a-half years. This timely appeal followed.
ANALYSIS
{¶20} Appellant advances two assignments of error:
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO DISMISS. (1/14/21 TR. 31, JOURNALIZED [DECEMBER] 16, 2021)
{¶21} The right to a speedy trial is a fundamental right guaranteed by the Sixth Amendment to the United States Constitution, made obligatory on the states by the Fourteenth Amendment. Article I, Section 10 of the Ohio Constitution guarantees an accused this same right. State v. MacDonald, 48 Ohio St.2d 66, 68, 357 N.E.2d 40 (1976). Although the United States Supreme Court declined to establish the exact number of days within which a trial must be held, it recognized that states may prescribe a reasonable period of time consistent with constitutional requirements. Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
{¶22} In response to this authority, Ohio enacted R.C. 2945.71, which designates specific time requirements for the state to bring an accused to trial. Pursuant to R.C. 2945.71 (C)(2), the state must bring a defendant to trial on felony charges within 270 days of arrest. The statutory speedy-trial period begins to run on the date the defendant is arrested, although the date of arrest is not counted when calculating speedy-trial time. State v. Savors, 7th Dist. Columbiana No. 21 CO 0007, 2022-Ohio-894, ¶ 20.
{¶23} Once the statutory limit has expired, the defendant has established a prima facie case for dismissal. State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). At that point, the burden shifts to the state to demonstrate that sufficient time was tolled pursuant to R.C. 2945.72. Brecksville v. Cook, 75 Ohio St.3d 53, 55-56, 661 N.E.2d 706 (1996). If the state has violated a defendant's right to a speedy trial, then the court must dismiss the charges against the defendant. R.C. 2945.73(B).
{¶24} Speedy-trial time is tolled by certain events listed in R.C. 2945.72. Such tolling events include "[a]ny period of delay occasioned by the neglect or improper act of the accused," any period of delay "necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused, and any continuances granted upon the accused's own motion," and a "period of any reasonable continuance granted" upon any other party's motion. R.C. 2945.72(D), (E), and (H).
{¶25} A defendant's demand for discovery tolls the speedy-trial time until the state responds to the discovery, or for a reasonable time. Savors, supra, ¶ 22; R.C. 2945.72(E). Thus, the tolling period for a motion filed by the accused provides a "reasonable time" for the state to respond to motions and the court to rule on them. Courts have held that thirty days is a reasonable time. Id., State v. Crawford, 6th Dist. Lucas No. L-17-1297, 2019-Ohio-2660, ¶ 30; State v. Shelby, 4th Dist. Lawrence No. 15CA20, 2016-Ohio-5721, ¶ 53; State v. Walker, 8th Dist. Cuyahoga No. 99239, 2013-Ohio-3522, ¶ 15, citing State v. Byrd, 8th Dist. Cuyahoga No. 91433, 2009-Ohio-3283.
{¶26} According to Crim. R. 16(A), the purpose of the Rule is as follows:
[To] provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large. All duties and remedies are subject to a standard of due diligence, apply to the defense and the prosecution equally, and are intended to be reciprocal. Once discovery is initiated by demand of the defendant, all parties have a continuing duty to supplement their disclosures.
{¶27} Crim. R. 16(B) sets forth the obligations of the State upon receipt of a written request for discovery by the defendant:
[T]he prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule:
(1) Any written or recorded statement by the defendant or a co-defendant, including police summaries of such statements, and including grand jury testimony by either the defendant or co-defendant;
(2) Criminal records of the defendant, a co-defendant, and the record of prior convictions that could be admissible under Rule 609 of the Ohio Rules of Evidence of a witness in the state's case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal;
(3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places;
(4) Subject to division (D)(4) and (E) of this rule, results of physical or mental examinations, experiments or scientific tests;
(5) Any evidence favorable to the defendant and material to guilt or punishment;
(6) All reports from peace officers, the Ohio State Highway Patrol, and federal law enforcement agents, provided however, that a document prepared by a person other than the witness testifying will not be considered to be the witness's prior statement for purposes of the cross examination of that particular witness under the Rules of Evidence unless explicitly adopted by the witness;
(7) Any written or recorded statement by a witness in the state's case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal.
{¶28} Crim. R. 16(H), captioned, "Discovery: Right to Copy or Photograph," reads, in relevant part: "If the defendant serves a written demand for discovery or any other pleading seeking disclosure of evidence on the prosecuting attorney, a reciprocal duty of disclosure by the defendant arises without further demand by the state." The subsection further reads that a public records request shall be treated as a written request for discovery if the request is made to an agency involved in the prosecution or investigation of that case.
{¶29} Finally, Crim. R. 16(M), captioned "Time of Motions," reads, in relevant part, "[a] defendant shall make his demand for discovery within twenty-one days after arraignment or seven days before the date of trial, whichever is earlier, or at such reasonable time later as the court may permit."
{¶30} Following a written request for discovery by the defendant, he or she has an affirmative duty to disclose the requested discovery, or in the alternative provide written notice to the State if there is no information to disclose. The Ohio Supreme Court has opined that the defendant's failure to respond to the State's request for reciprocal discovery within thirty days constitutes neglect, and results in a tolling of the speedy-trial clock pursuant to R.C. 2945.72(D) until the defendant's response is filed. State v. Palmer, 112 Ohio St.3d 457, 2007-Ohio-374, 860 N.E.2d 1011, ¶ 22.
{¶31} Under the "triple-count provision" contained in R.C. 2945.71(E), each day a defendant is held in jail in lieu of bail counts as three days in the speedy-trial time calculation. However, in MacDonald, 48 Ohio St.2d 66, 357 N.E.2d 40, the Ohio Supreme Court held the triple-count provision applies "only to those defendants held in jail in lieu of bail solely on the pending charge." Id. at paragraph one of the syllabus. Accordingly, when an accused is also being held in jail on another charge, the triple-count provision does not apply.
{¶32} When reviewing a statutory speedy-trial question, an appellate court must count the number of delays chargeable to each side and then determine whether the number of days not tolled exceeded the time limits under R.C. 2945.71. Savors, supra, ¶ 25. Furthermore, the reviewing court must construe the statutes strictly against the State when reviewing the legal issues in a speedy-trial claim. Cook, 75 Ohio St.3d at 57, 661 N.E.2d 70.
{¶33} Review of a speedy-trial claim involves a mixed question of law and fact. Therefore, a reviewing court must defer to the trial court's factual findings if they are supported by competent, credible evidence, but review the application of the law to those facts de novo. State v. Long, 163 Ohio St.3d 179, 2020-Ohio-5363, ¶ 15, 168 N.E.3d 1163.
{¶34} As a general rule, "a criminal defendant has the right to representation by counsel or to proceed pro se with the assistance of standby counsel," but "these two rights are independent of each other and may not be asserted simultaneously." State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, paragraph one of the syllabus. Consistent with this general rule, Ohio courts of appeal have held that a trial court may disregard pro se motions filed when the defendant is represented by counsel and counsel does not join in the motion. State v. Walters, 9th Dist. No. 23795, 2008-Ohio-1466, ¶ 19, citing State v. Brown, 9th Dist. No. 23759, 2007-Ohio-7028, ¶ 4, fn. 1; State v. Thomas, 8th Dist. No. 103759, 2016-Ohio-4961, ¶ 24; State v. Boyce, 10th Dist. Franklin No. 19AP-313, 2021-Ohio-712, ¶ 13, cause dismissed, 163 Ohio St.3d 1507, 2021-Ohio-2472, 170 N.E.3d 895, ¶ 13.
{¶35} Here, defense counsel did not join in the pro se motion. However, he submitted a written request to the State to supplement the discovery originally provided by the State to Appellant's original trial counsel.
{¶36} Ohio courts have rejected efforts by defendants to circumvent the reciprocal discovery obligation imposed by Crim R. 14(H). For instance, the Criminal Rule prohibits a defendant from avoiding the reciprocal discovery obligation by acquiring discovery through a public records request to an agency involved in the prosecution or investigation of the case against the defendant. Moreover, a 2010 amendment to the statute imposes the reciprocal discovery obligation on the defendant without further demand from the State.
{¶37} Appellant argues that we should not characterize the July 20, 2021 correspondence as a Crim. R. 16 request for discovery because it was untimely. However, Crim. R. 16(M) reads, in relevant part, "[a] defendant shall make his demand for discovery within twenty-one days after arraignment or seven days before the date of trial, whichever is earlier, or at such reasonable time later as the court may permit" (Emphasis added.)
{¶38} Assuming that the July 20, 2021 correspondence is a Crim. R. 16 request for discovery, Appellant argues that the provision of discovery by the State pre-dated Appellant's request. Appellant cites State v. Knight, 2nd Dist. Greene No. 03-CA-014, 2005-Ohio-3179, a case in which the State provided discovery without prompting from the defendant. The Second District held:
Pursuant to Crim.R. 16(C), the State's right to request and receive discovery from the defendant accrues only after the Defendant has both requested and obtained discovery from the State. While the State's effort to meet its basic discovery obligations at an early date is laudable, the fact remains that Defendant did not file his discovery request until May 6, 2002. Accordingly, on May 1, 2002, the State had no right to demand discovery
from Defendant when it did, and its request therefore did not toll the speedy trial time.Id., ¶ 15.
{¶39} The same is not true here. While the State provided discovery to Appellant prior to the July 20, 2021 correspondence requesting additional discovery, the State's demand for discovery was filed after the July 20, 2021 correspondence requesting supplemental discovery. Accordingly, Knight is inapposite.
{¶40} Therefore, we find that defense counsel's written request for supplemental discovery, coupled with the State's subsequent demand for discovery, imposed an obligation on Appellant pursuant to Crim. R. 16(H) to provide reciprocal discovery to the State, or in the alternative, to notify the State that no discovery was forthcoming, within a reasonable time.
{¶41} In State v. Palmer, 112 Ohio St.3d 457, 2007-Ohio-374, 860 N.E.2d 1011, the Ohio Supreme Court held that "a defendant's failure to respond within a reasonable time to a prosecution request for reciprocal discovery constitutes neglect that tolls the running of speedy-trial time pursuant to R.C. 2945.72(D)." Id. at ¶ 24. In Palmer, the Court further held that "a trial court shall determine the date by which the defendant should reasonably have responded to a reciprocal discovery request based on the totality of facts and circumstances of the case, including the time established for response by local rule, if applicable." Id. Therefore, we further find that Appellant's failure to timely respond to the State's request for discovery tolled the speedy trial clock on the thirty-first day after the State's request was filed.
{¶42} Finally, we find that 270 days did not elapse from the day after Appellant was arrested to the day that the motion to dismiss was filed:
April 5 (day after arrest) to April 7 (bond set) - Appellant is in jail; triple count applied - 9 days elapsed;
April 7 to July 20 (request for supplemental discovery by Appellant) - 105 days elapse; total 114 days elapsed;
July 20 to July 22 (discovery provided by the State) - speedy trial clocked tolled;
July 22 to September 9 (demand for discovery filed by the State) - 50 days elapse; total 164 elapsed;
September 10 to October 9 (reasonable time allotted for Appellant to respond to demand for discovery) - 30 days; total 194 elapsed;
October 10 to December 10 (motion to dismiss) - speedy trial clock tolled; total 194 elapsed.
{¶43} In summary, we find that no speedy trial violation occurred in this case, as Appellant's failure to respond to the State's request for reciprocal discovery tolled the running of the clock. Accordingly, we find that Appellant's first assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN PURSUANT TO REAGAN TOKES, IT SENTENCED APPELLANT TO AN INDEFINITE LONGER SENTENCE OF IMPRISONMENT. (1/10/22, TR. 7, 12 JOURNALIZED JANUARY 12, 2022).
{¶44} In State v. Maddox, 2022-Ohio-764, -- N.E.3d --, the Ohio Supreme Court held that a facial challenge to R.C. 2967.271 is ripe for review on direct appeal of a defendant's conviction and prison sentence. Id. at ¶ 11, 21. The Court further held that Appellant's facial challenge is ripe for review, even though he may later bring an as-applied challenge to the law based on future factual development.
{¶45} The Reagan Tokes Law, which was enacted in 2018 and became effective March 22, 2019, amended fifty sections of the Revised Code and adopted four new sections. In general, the law provides that first-degree and second-degree felonies not carrying a life sentence are subject to an indefinite sentencing scheme. Specifically, when imposing prison terms for offenders with first or second-degree felony offenses, sentencing courts are to impose an indefinite sentence, that is, a stated minimum sentence as provided in R.C. 2929.14(A)(2)(a) and an accompanying maximum term as provided in R.C. 2929.144.
{¶46} Once an offender serves the required minimum term of incarceration, the law provides that the offender is presumed to be released. R.C. 2967.271(B). However, the presumption of release may be rebutted by the Ohio Department of Rehabilitation and Correction ("ODRC"), which may maintain the offender in custody for a reasonable period of time, not to exceed the maximum term of incarceration imposed by the sentencing court. R.C. 2967.271(D). The statute provides that the presumption of release may be overcome only if the ODRC conducts a hearing and finds that one or more of the following apply:
(1)(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, [and]
(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).
{¶47} In his second assignment of error, Appellant asserts that Ohio's indefinite sentencing structure violates the doctrine of the separation of powers, as well as his constitutional rights to due process of law and a trial by jury. "To prevail on a facial constitutional challenge, the challenger must prove the constitutional defect, using the highest standard of proof, which is also used in criminal cases, proof beyond a reasonable doubt." State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 21. "A facial challenge alleges that a statute, ordinance, or administrative rule, on its face and under all circumstances, has no rational relationship to a legitimate governmental purpose." Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21, citing Jaylin Invest, Inc. v. Moreland, 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d 903, ¶ 11.
{¶48} "Facial challenges to the constitutionality of a statute are the most difficult to mount successfully, since the challenger must establish that no set of circumstances exists under which the act would be valid." Id., citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). "If a statute is unconstitutional on its face, the statute may not be enforced under any circumstances." Id. "When determining whether a law is facially invalid, a court must be careful not to exceed the statute's actual language and speculate about hypothetical or imaginary cases." Id., citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008).
{¶49} In reviewing a claim of unconstitutionality, we must presume the constitutionality of a statute enacted by the legislature. Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25. To find that a statute is unconstitutional, we must determine "'beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.'" State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, ¶ 10, quoting, State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. Moreover, doubts are resolved in favor of the constitutionality of the statute. State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, ¶ 5, quoting State v. Gill, 63 Ohio St.3d 53, 55, 584 N.E.2d 1200 (1992).
{¶50} Appellant argues that R.C. 2967.271 violates due process and the doctrine of separation of powers. Appellant first contends that R.C. 2967.271 does not provide him adequate notice of the conduct that triggers ODRC to maintain his incarceration after the expiration of his minimum prison term and it does not provide a structure as to the hearing to rebut the presumption established under division (B).
{¶51} "When a state creates a liberty interest, the Due Process Clause requires fair procedures for its vindication - and courts will review the application of those constitutionally required procedures." Swarthout v. Cooke, 562 U.S. 216, 220, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). Assuming, without deciding that Appellant has a cognizable liberty interest in a presumptive minimum term release date, the issue to be determined then is whether the Reagan Tokes Law impermissibly infringes on that interest.
{¶52} The Reagan Tokes Law provides for sentencing courts to impose an indefinite sentence on offenders committing qualifying offenses. We find there is no functional difference between Appellant's indefinite sentences and those indefinite sentences that were common prior to the adoption of sentencing reforms pursuant to S.B. 2. Further, both the Second and the Eighth District Courts of Appeals have recently observed that requiring a defendant to remain in prison beyond the presumptive minimum term is akin to the decision to grant or deny parole, which in Ohio is an executive function that does not involve the judiciary. State v. Wilburn, 8th Dist. Cuyahoga, 2021-Ohio-578, 168 N.E.3d 873, at ¶ 30, quoting State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, 2020 WL 5743293, ¶ 17.
{¶53} In the context of parole proceedings, the United States Supreme Court has found that adequate due process is met when there is an opportunity to be heard and the offender is provided a statement of the reasons that parole was denied. Swarthout, citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The Ohio Supreme Court has held that "the fundamental requisite of due process of law is the opportunity to be heard in a meaningful time and in a meaningful manner." Woods, 89 Ohio St.3d at 513, 733 N.E.2d 1103, citing Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
{¶54} As a consequence, the Eighth District held that the Reagan Tokes Law provides due process that comports with constitutional requirements. Wilburn at ¶ 36-37. Pursuant to R.C. 2967.271(E):
The [ODRC] 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.
{¶55} Further, the Eighth District recognized that the ODRC is constrained in its ability to hold an offender past the minimum term. R.C. 2967.271(C)(1), (2) and (3) set forth very specific factors for the ODRC to consider in determining whether an inmate may be imprisoned beyond his minimum release date, thereby limiting its discretion. Inmates are given notice of the conduct that will lead to rule infractions or restrictive housing assignments, factors that trigger the ODRC to extend an inmate's minimum term of incarceration. Ohio Adm. Code 5120-9-06 sets forth inmate rules of conduct. Ohio Adm. Code 5120-9-08 provides detailed disciplinary procedures for inmate rule violations, with a hearing before the Rules Infraction Board and notice to the inmate of the hearing and an opportunity to appeal the decision of the board. Ohio Adm. Code 5120-9-10 sets forth the procedures for when and under what circumstances an inmate may be placed in and/or transferred to a restrictive housing assignment. Accordingly, the Eighth District opined that the foregoing provisions provide adequate notice and an opportunity to be heard. Wilburn, supra, at ¶ 36.
{¶56} The Ohio Supreme Court has observed that "for as long as parole has existed in Ohio, the executive branch (the APA and its predecessors) has had absolute discretion over that portion of an offender's sentence." Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000). In Simmons, the Eighth District found no reason to distinguish between the exercise of its discretion in determining parole matters and the ODRC's discretion in determining whether an offender's minimum term of incarceration should be extended. Accordingly, we join the Second and Eighth Districts in concluding that the Reagan Tokes Law does not violate due process.
{¶57} Next, Appellant argues that R.C. 2967.271 is unconstitutional because it permits ODRC, not the trial court, to make factual determinations as to whether he is eligible for a reduction of his minimum prison term (his presumptive-release date) or to maintain his incarceration after the expiration of his minimum prison term for a period not exceeding his maximum prison term. The separation-of-powers doctrine "recognizes that the executive, legislative, and judicial branches of our government have their own unique powers and duties that are separate and apart from the others." State v. Thompson, 92 Ohio St.3d 584, 586, 752 N.E.2d 276 (2001). As to the separation-of-powers doctrine, the legislature has the preeminent role in determining sentencing schemes. "[I]t is among the admitted legislative powers to define crimes; to prescribe the mode of procedure for their punishment; to fix by law the kind and manner of punishment, and to provide such disciplinary regulations for prisoners, not in conflict with the fundamental law, as the legislature deems best." State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 647, 4 N.E. 81 (1885).
{¶58} Appellant's separation-of-powers argument is based on the holdings in State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000) and State v. Oneal, Hamilton C.P. No. 1903 562, 2019 WL 7670061 (Nov. 20, 2019). In Bray, the Supreme Court of Ohio addressed the constitutionality of R.C. 2967.11, which has since been repealed. Bray, 89 Ohio St.3d at 132, 729 N.E.2d 359; R.C. 2967.11, repealed in A.m.Sub.H.B. No. 130, 2008 Ohio Laws 173. R.C. 2967.11, stated in pertinent part, that:
[a]s part of a prisoner's sentence, the parole board may punish a violation committed by the prisoner by extending the prisoner's stated prison term for a period of fifteen, thirty, sixty, or ninety days in accordance with this section. If a prisoner's stated term is extended under this section, the time by which it is so extended shall be referred to as 'bad time.'R.C. 2967.11(B), repealed in A.m.Sub.H.B. No. 130, 2008 Ohio Laws 173.
{¶59} A "violation" was defined as "an act that is a criminal offense under the law of this state or the United States, whether or not a person is prosecuted for the commission of the offense." R.C. 2967.11(A), repealed in A.m.Sub.H.B. No. 130, 2008 Ohio Laws 173. Other sections in R.C. 2967.11 set forth the procedures that were to be followed to determine whether a violation had been committed. Bray at 135, 729 N.E.2d 359.
{¶60} The Court in Bray held, "[i]n short, R.C. 2967.11(C), (D), and (E) enable[d] the executive branch to prosecute an inmate for a crime, to determine whether a crime has been committed, and to impose a sentence for that crime." Id. The Court in Bray further held that the statute improperly permitted the executive branch to act "as judge, prosecutor, and jury * * * [and thereby] intrude[ ] well beyond the defined role of the executive branch as set forth in our Constitution." Id. Consequently, the Bray Court concluded the statute unconstitutional because it violated the doctrine of separation of powers. Id. at 136.
{¶61} The trial court in Oneal, citing Bray, concluded R.C. 2967.271 is unconstitutional because it surrenders judicial powers to the executive branch. The trial court noted, "[t]he conditions that the [O]DRC may consider in determining whether an offender should not be released upon the end of [his] minimum prison term may include a 'violation of law'" which, like the bad time statute "is synonymous with a criminal offense." Oneal, Hamilton C.P. No. 1903 562, at *5. Moreover, the trial court in Oneal determined that R.C. 2967.271 violates procedural-due process because it does not provide for a judicial hearing prior to the extension of a prison term beyond the minimum term. Id. at *6.
{¶62} In State v. Hacker, 3rd Dist. No. 8-20-01, 2020-Ohio-5048, 161 N.E.3d 112, appeal allowed in part, 161 Ohio St.3d 1449, 2021-Ohio-534, 163 N.E.3d 585, ¶ 22, the Third District opined that Hacker's reliance on Bray and Oneal was flawed because there is a significant distinction between the imposition of "bad time," which was permitted under R.C. 2967.11, and the structure for extension of a prison term beyond the minimum term under R.C. 2967.271. Id. at ¶ 22. The Third District reasoned that, "[u]nlike [R.C. 2967.11], [R.C. 2967.271] does not permit ODRC (the executive branch) to maintain [the defendant] beyond the maximum prison term imposed by the trial court." Accordingly, the Third District concluded that R.C. 2967.271 does not violate the doctrine of separation of powers. Id., citing State v. Barnes, 2nd Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 36, (concluding "that Bray and Oneal do not compel the conclusion that the Reagan Tokes Law violates the separation of powers doctrine.") We join the Third and Eighth Districts in concluding that the Reagan Tokes Law does not allow the Executive Branch to usurp the authority of the Judicial Branch.
{¶63} Finally, Appellant contends that the Reagan Tokes Law violates his Sixth Amendment right to a jury trial. The Eighth District sitting en banc, analyzed a Sixth Amendment challenge to the Reagan Tokes Law in State v. Delvallie, 8th Dist. No. 109315, 2022-Ohio-470, 185 N.E.3d 536, appeal allowed, 166 Ohio St.3d 1496, 2022-Ohio-1485, 186 N.E.3d 830 (held for decisions in Simmons and Hacker).
{¶64} The Eighth District recognized that the 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 v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the Supreme Court held that, in order to sentence a defendant to a term of imprisonment in excess of the statutory maximum, the factual circumstances justifying the enhanced sentence must be found by the jury beyond a reasonable doubt. Id.; see also Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
{¶65} In Alleyne, the Supreme Court concluded that the element of the offense included brandishing a firearm, as it raised the level of the offense from one subject to a 5-year term to one subject to a 7-year term, and therefore, brandishing a firearm was an element of the offense that must be determined by the trier of fact. Id. at 114, 133 S.Ct. 2151.
{¶66} The Eighth District in Delvallie opined:
No provision under the Reagan Tokes Law authorizes a sentencing court, or ODRC for that matter, to impose a sentence beyond the maximum set forth in the sentencing statutes or to elevate the minimum term beyond the ranges set forth in R.C. 2929.14(A)(1)(a) and (A)(2)(a). R.C. 2929.144 and 2929.14(A)(1)(a)-(A)(2)(a) provide no discretion to the trial court in imposing the maximum term based on the offender having pleaded or been found guilty of the underlying qualifying felony offense. The only discretion lies with the imposition of the minimum term, which is no different than the
discretion to sentence within the definite sentencing range for nonqualifying felony offenses.Id. at ¶ 41. Here, Appellant does not contend that his sentence exceeds the statutory maximum.
{¶67} Based on the foregoing analysis, we conclude that Ohio's indefinite sentencing structure does not violate the doctrine of the separation of powers, nor does it violate Appellant's constitutional rights to due process of law or a trial by jury. Accordingly, we conclude that Appellant's second assignment of error has no merit.
CONCLUSION
{¶68} For the foregoing reasons, both the judgment entry of the trial court overruling Appellant's motion to dismiss and Appellant's indefinite sentence are affirmed.
Donofrio, P. J., concurs
Waite, J., concurs
For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgments of the Court of Common Pleas of Belmont County, Ohio, are affirmed. Costs to be taxed against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.