STATE OF OHIO, Plаintiff-Appellee, vs. JONATHAN HEARN, Defendant-Appellant.
CASE NO. 20CA7
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
DATE JOURNALIZED: 2-22-21
[Cite as State v. Hearn, 2021-Ohio-594.]
ABELE, J.
Ryan Shepler, Logan, Ohio for Appellant.1
Nicole Coil, Washington County Prosecuting Attorney, and Allison L. Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT
{¶ 1} This is an appeal from a Washington County Common Pleas Court judgment of conviction and sentence. Jonathan Hearn, defendant below and appellant herein, assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT DID NOT HAVE JURISDICTION TO RESENTENCE DEFENDANT-APPELLANT.”
SECOND ASSIGNMENT OF ERROR:
THIRD ASSIGNMENT OF ERROR:
“THE INDEFINITE SENTENCING SCHEME ADOPTED BY THE REAGAN TOKES ACT IS AN UNCONSTITUTIONAL VIOLATION OF SEPARATION OF POWERS, SUCH THAT DEFENDANT’S SENTENCE MUST BE VACATED.”
{¶ 2} In December 2019, a Washington County Grand Jury returned an indictment that charged appellant with (1) two counts of fеlonious assault, in violation of
{¶ 3} On February 12, 2020, appellant pleaded guilty to two felonious assault counts in violation of
{¶ 4} The February 21, 2020 sentencing entry provides:
“[U]pon Defendant’s Guilty plea to the crimes of FELONIOUS ASSAULT, a felony of the second degree, in violation of the Ohio Revised Code section
2903.11(A)(1) &(D)(1)(a) , as charged in Count One; and FELONIOUS ASSAULT, a felony of the second degree, in violation of Ohio Revised Code section2903.11(A)(1) &(D)(1)(a) , as charged in Count Two of the indictment, the Defendant
is sentenced to a mandatory sentence of fourteen (14) years in the Orient Correctional Reception Center. The maximum possible sentence is a prison term of seventeen and a half (17 ½) years under the new law:”
{¶ 5} The February 21, 2020 entry also indicated that the court notified appellant that “he will be subject to a period of mandatory postrelease control for three (3) years,” and included the consequences for a postrelease control violation. Appellant filed a timely pro se notice of appeal on March 5, 2020.
{¶ 6} On May 6, 2020, the trial court issued an amended entry to correct an error in the February 21, 2020 entry and states:
* * *
the Defendant is sentenced to prison for seven (7) years in Count One, and seven (7) years in Count Two, running consecutively to each other, with maximum possible term of ten and a half (10 ½) years, for an aggregate of seventeen and a half (17 ½ years). The mandatory sentenсe term is fourteen (14) years. The maximum possible sentence is a prison term of seventeen and a half (17 ½) years under the new law:
{¶ 7} On June 22, 2020, the trial court issued a second amended entry and states:
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the Defendant is sentenced to prison for a definite sentence of seven (7) years for the offense of FELONIOUS ASSAULT, as charged in Count One, with a maximum possible term of ten and a half (10 ½) years, and a definite sentence of seven (7) years for the offense of FELONIOUS ASSAULT, as charged in Count Two, to run consecutively to each other. The total sentence imposed is a prison term of fourteen (14) years, with a maximum possible term of seventeen and a half (17 ½) years under the new law:
I.
{¶ 8} In his first assignment of error, appellant asserts that the trial court did not have
{¶ 9} Although trial courts generally lack the authority to reconsider their own valid final judgments in criminal cases, they do retain continuing jurisdiction to correct clerical errors in judgments to reflect what the court actually decided. State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010 (corrected sentencing entry to spеcify three years, not five years of postrelease control permissible). See also
{¶ 10} Pursuant to
{¶ 11} Other Ohio appellate courts have detеrmined that, although
{¶ 12} Further, in State v. Schrader, 12th Dist. Fayette Nos. CA2019-12-025 & CA2019-12-026, 2020-Ohio-3925, after the defendant pleaded guilty pursuant to a negotiated рlea, the trial court accepted the pleas and sentenced the defendant to serve two concurrent six month prison terms. However, the sentencing entries ordered Schrader to serve consecutive prison terms. After Schrader filed his notice of appeal, the trial court filed amended sentencing entries to order concurrent prison terms. Id. at ¶ 3-4.
{¶ 13} The Twelfth District concluded in Schrader that the trial court lacked jurisdiction to file amended entries while the appeal was pending, and, thus, the amended entries had no legal effect. Id. at ¶ 11. The court also observed that other appellate districts have held that a trial court cannot file a nunc pro tunc entry while a case is pending on appeal. Schrader at ¶ 10, citing State v. Erlandsen, 3d Dist Allen No. 1-02-46, 2002-Ohio-4884, (nunc pro tunc entry correcting jail time
{¶ 14} This court has also held that a trial court‘s ability to correct a sentenсing error is inconsistent with an appellate court’s jurisdiction to reverse, modify, or affirm the judgment. In State v. Triplett, 4th Dist. Lawrence No. 11CA3, 2011–Ohio–5431, Triplett pleaded guilty to two counts of aggravated robbery, filed a notice of appeal, and argued that the trial court failed to inform him of mandatory postrelease control at his sentencing hearing. Id. at ¶ 3. This court remanded for a new sentencing hearing, but during the pendency of the original appeal, the trial court resentenced Triplett, notified him of postrelease control, and issued a new judgment of conviction. Id. However, this court held that the trial court had no jurisdiction to correct an error concerning
{¶ 15} In the case sub judice, because the trial court issued its May 6, 2020 entry and June 22, 2020 entry after appellant filed his notice of appeal, the entries are inconsistent with the appellate court’s jurisdiction to reverse, modify or affirm the trial court judgment. As such, the amended entries are legal nullities. We note, however, that generally nothing precludes a trial court from filing amended entries after a remand. See Schrader, supra, at ¶ 11.
{¶ 16} Accordingly, based upon the foregoing reasons, we sustain appellant’s first assignment of error.
II.
{¶ 17} In his second assignment of error, appellant asserts that his plea must be vacated because the trial court did not strictly comply with
{¶ 18} In deciding whether to accept a guilty plea, a court must determine whether a defendant made the plea knowingly, intelligently, and voluntarily. State v. McDaniel, 4th Dist. Vinton No. 09CA677, 2010–Ohio–5215, ¶ 8. “ ‘In considering whether a guilty plea was entered knowingly, intelligently and voluntarily, an appellate court examines the totality of the circumstances through a de novo review of the record to ensure that the trial court complied with constitutional and procedural safeguards.’ ” (Emphasis sic.) Id., quoting State v. Eckler, 4th Dist. Adams No. 09CA878, 2009–Ohio–7064, ¶ 48; State v. Barner, 4th Dist. Meigs No. 10CA9, 2012-Ohio-4584, ¶ 8.
{¶ 19} “Before accepting a guilty plea, the trial court should engage in a dialogue with the
In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the naturе of the charges and of the maximum penalty involved and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
* * *
{¶ 20} Substantial compliance with
{¶ 21} As the Supreme Court of Ohio explained in State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶ 32:
When the trial judge does not substantially comply with
Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine whether the trial court partially complied or failed to comply with the rule. If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial effect. The test for prejudice is “whether the plea would have otherwise been made.” If the trial judge completely failed to comply with the rule, e.g., by not informing the defendant of a mandatory period of postrelease control, the plea must be vacated. “A complete failure to comply with the rule does not implicate an analysis of prejudice.” (Emphasis sic.) (Citations omitted.)
{¶ 22} Appellant points out that, after he questioned whether the Reagan Tokes Law applied to him, his counsel advised him incorrectly. The transcript reflects:
You understand the agreement is - - is seven years on each?
THE DEFENDANT: I - - yes. I know - - yeah, the seven years on each.
THE COURT: Okay. And your attorney’s explained to you that at some point here, we’re going to talk about the Reagan Tokes and the three-and-a-half years. That particular statute is - -
THE DEFENDANT: Does that even apply to me?
THE COURT: It’s currently being litigated, as to its Constitutionality. Your attorney’s going to raise that issue here, but I’ve got to make sure that you understand, the deal here is fourteen years. I don’t have anything to do with the future and what the Parole Board -
THE DEFENDANT: My behavior here.
MR. BAUMGARTEL: They can add three-and-a-half years.
THE COURT: - – and what – - what the DRC would do while you’re in prison. Okay? You understand that?
MR. BAUMGARTEL: This is the part we talked about, you get - - you’re going to get fourteen years from this judge, but that also means that if you don’t behave yourself, basically, the way the system - - prison system wants you to, they could add three-and-a-half years to your sentence. That’s the part I’ve told you, that’s, they’re arguing it in the courts - -
THE DEFENDANT: So like, if I refuse to - -
MR. BAUMGARTEL: Whatever.
THE DEFENDANT: - - follow - -
MR. BAUMGARTEL: I - - for the record, Your Honor, I - - I’ve explained to my
THE COURT: Right. None of us can guarantee what’s going to happen with the future of that particular law. But as it stands right now, if you are bad in prison, they could add three-and-a-half years of additional prison for being bad. Do you understand that?
THE DEFENDANT: Yeah.
THE COURT: Okay.
THE DEFENDANT: But you’re, being a judge, couldn’t you make the ruling on that?
THE COURT: I can’t make it now, because it’s something that until you’re in prison and you’re serving your time and you’re either being a good prisoner or a bad prisoner, only sometime in the future will they determine whether that - - and we’re - - we’re not here - -
THE DEFENDANT: By whose standards?
THE COURT: - - we’re not here today to determine whether Reagan Tokes is Constitutional.
MR. BAUMGARTEL: Those - - the questions you have, are the reason we’re arguing it’s not Constitutional, and that will be decided a year or two from now.
THE COURT: Yeah.
MR. BAUMGARTEL: The Ohio Supreme Court’s going to hear thаt?
THE COURT: The Court of Appeals and the Supreme Court are ultimately going to decide whether Reagan Tokes is a valid law. I’m not going to decide it here today. But your attorney’s going to make a record during the sentencing part of this, objecting to the Reagan Tokes application. Nothing I can do about it until the higher courts make that decision.
MR. BAUMGARTEL: But the sentence he’s giving you today is what we agreed on, which is fourteen years.
THE DEFENDANT: Yeah. All right.
{¶ 23} Appellant points to the portion of the transcript where his attorney concludes, “[b]ut
{¶ 24} Accordingly, based upon the foregoing reasons, we overrule appellant’s second assignment of error.
III.
{¶ 25} In his third assignment of error, appellant asserts thаt we must vacate his sentence because the Reagan Tokes Law’s indefinite sentencing scheme violates the separation of powers doctrine. The Reagan Tokes Law, enacted in 2018, became effective on March 22, 2019.
{¶ 26} The Reagan Tokes Law requires that a court imposing a prison term under
{¶ 27} Appellant argues that in State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000), the Supreme Court of Ohio held that former
{¶ 28} The constitutionality of a statute presents a question of law we review de novo. Hayslip v. Hanshaw, 2016-Ohio-3339, 54 N.E.3d 1272, ¶ 27 (4th Dist.)
{¶ 29} As we outlined in State v. Ramey, 4th Dist. Washington Nos. 20CA1, 20CA2, 2020-Ohio-6733, at least five appellate districts hаve addressed the constitutionality of the Reagan Tokes Law:
In our district and in the Eighth District Court of Appeals, the defendant failed to raise constitutional objections in the trial court and both appellate courts refused to conduct a plain error analysis of the issue. State v. Conant, 4th Dist. Adams No. 20CA1108, 2020-Ohio-4319, ¶ 40 (“we decline to construct a plain error argument on his behalf, particularly when
R.C. 2967.271(C)(1) has not been and might never be applied to him, and he has not responded to the state’s standing argumеnt”); State v. Young, 8th Dist. Cuyahoga No. 108868, 2020-Ohio-4135, ¶ 21 (“Young failed to raise a constitutional challenge to the Reagan Tokes Act in the trial court, and we decline to
address the issue for the first time on appeal”).
The Fifth District Court of Appeals has twice held that constitutional challenges to the Reagan Tokes Law are not yet ripe for review because the appellant has not yet been subject to the application of those provisions. It determined that the appropriate method to challenge the constitutionаlity of the Reagan Tokes Law is by filing a petition for a writ of habeas corpus if the defendant is not released at the conclusion of the minimum term of incarceration. State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227, ¶ 7-12; State v. Manion, 5th Dist. Tuscarawas No. 2020AP030009, 2020-Ohio-4230, ¶ 7-12.
{¶ 30} In State v. Oneal, Hamilton C.P. No. 1903562, 2019 WL 7670061 (Nov. 20, 2019) (currently pending in the First District Court of Appeals), the Hamilton County Court of Common Pleas Court found the Reagan Tokes Law violates the separation of powers doctrine and the lack of due process “causes S.B. 201 [Reagan Tokes Law] to аppear far worse than the previous ‘Bad Time’ statute.” Id. at 7. However, the Second, Third, and Twelfth Districts have upheld the Reagan Tokes Law as constitutional without addressing the ripeness issue. State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153 (specifically discussing the State v. Oneal, supra, decision from the Hamilton County Court of Common Pleas); State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150 (conducting a plain error review of the Reagan Tokes Law’s constitutionality and rejecting State v. Oneal’s reasoning); State v. Hacker, 2020-Ohio-5048, __ N.E.3d __ (3d. Dist.)(conducting a de novo review of the Reagan Tokes Law’s constitutionality and rejecting O’Neal’s reasoning).
{¶ 31} On October 9, 2020, the Sixth District certified a conflict to the Supreme Court of Ohio on the issue of whеther the Reagan Tokes Law is ripe for review in a direct appeal, and cited the Second and Twelfth Districts as implicitly determining the issue to be ripe for review and finding the law constitutional based on separation of powers and due process. State v. Velliquette, 6th Dist.
{¶ 32} Further, on December 28, 2020, the Supreme Court of Ohio accepted a certified conflict in State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2020-Ohio-4702 (Supreme Court Case Number 2020-1266), in which the court ordered the parties to brief the following issue:
“Is the constitutionality of the provisions of the Reagan Tokes Act, which allow the Department of Rehabilitation and Correctio[n] to administratively extend a criminal defendant’s prison term beyond the presumptive minimum term, 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?”
{¶ 33} In Ramey, supra, although this court found the analysis of the Second, Third, and Twelfth District Courts of Appeals persuаsive on the merits, we did not reach the merits because, like the analysis of the Fifth District, this court found the issue not yet ripe for review. Ramey at ¶ 20. “The appellant ‘has not yet been subject to the application of these provisions, as he has not yet served his minimum term, and therefore has not been denied release at the expiration of his minimum term of incarceration.” Ramey at ¶ 16, quoting Downard at ¶ 7; Manion at ¶ 7.
{¶ 34} As such, in the case sub judice because we conclude that the constitutionality of the Reagаn Tokes Law is not yet ripe for review, we overrule appellant’s third assignment of error.
IV.
{¶ 35} In conclusion, based on the foregoing, we sustain appellant’s first assignment of error, reverse appellant’s sentence and remand the matter for purposes of re-sentencing. In all other
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
It is ordered that the judgment be affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Appellant shall recover of appellee the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sеc. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.