State v. Tutt
2023 Ohio 2819
Ohio Ct. App.2023Background
- In Sept. 2019, Devin Tutt pleaded guilty to two first-degree rape counts and was sentenced to consecutive indefinite terms totaling 22 to 27.5 years under the Reagan Tokes Act.
- Tutt appealed; this court affirmed in Jan. 2021.
- Tutt later sought reopening of his direct appeal, claiming appellate counsel was ineffective for not arguing the trial court failed to give the R.C. 2929.19(B)(2)(c) (Reagan Tokes) notifications. This court granted reopening and remanded for the limited purpose of giving the required notifications.
- On remand the trial court conducted the notification hearing and provided the Reagan Tokes advisements. Tutt’s counsel attempted to preserve objections to the constitutionality of Reagan Tokes and to the imposition of consecutive sentences.
- The trial court later entered a sentencing entry supplying the notifications. Tutt moved for a full Crim.R. 32(C) entry and then appealed, raising two assignments of error: that consecutive sentences were contrary to law and that the Reagan Tokes Act is unconstitutional.
- The Twelfth District held those issues were outside the scope of the limited remand and barred by res judicata, and affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consecutive sentences were contrary to law | Tutt: consecutive sentences were improper and should be vacated | State: claim could and should have been raised earlier and is outside the limited remand; res judicata bars relitigation | Overruled — claim barred by res judicata and outside remand scope |
| Whether the Reagan Tokes Act is unconstitutional | Tutt: Reagan Tokes indefinite sentence scheme is unconstitutional | State: constitutionality could have been raised on direct appeal; remand limited to giving notifications only | Overruled — claim barred by res judicata and outside remand scope |
Key Cases Cited
- State v. Wilson, 129 Ohio St.3d 214 (2011) (scope of a remand for Reagan Tokes notifications is limited to issues arising from the notification hearing)
- State v. Saxon, 109 Ohio St.3d 176 (2006) (res judicata bars claims that were or could have been raised at trial or on direct appeal)
- State v. Griffin, 138 Ohio St.3d 108 (2013) (explaining public-policy rationale for finality of judgments and res judicata)
- Daloia v. Franciscan Health Serv., 79 Ohio St.3d 98 (1997) (trial court retains jurisdiction to act in ways not inconsistent with a reviewing court's jurisdiction on remand)