State v. FendersonState v. Fenderson
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Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Derek A. Farmer, for appellant.
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MAYLE, J.
{1} Defendant-appellant, Shakill Fenderson, appeals the July 5, 2022 judgment of the Erie County Court of Common Pleas, convicting him of involuntary manslaughter, with a repeat violent offender specification, and sentencing him to an aggregate prison term of a minimum of 21 years and a maximum of 26 and one-half years. For the following reasons, we affirm, in part, and reverse, in part.
{2} On July 10, 2021, E.C. died after sustaining multiple gunshot wounds to his head and neck. Shakill Fenderson was charged with his murder. On August 6, 2021, he was indicted on charges of aggravated murder, a violation of
{3} Fenderson entered a plea of guilty to amended Count 1, involuntary manslaughter, a violation of
{4} At the sentencing hearing, on the conviction for involuntary manslaughter, the trial court ordered Fenderson to serve a minimum prison term of 11 years and a maximum prison term of 16 and one-half years. It also found that the criteria were met for imposition of a sentence for a repeat violent offender. It imposed an additional, consecutive ten-year prison term. Fenderson‘s aggregate prison term totaled 21 years to 26 and one-half years.
Assignment of Error #1: The trial court erred to the prejudice of Mr. Fenderson and in violation of the 14th Amendment to the United States Constitution and Art. I, Sec. 16 of the Ohio Constitution when it used a Pre-Sentence Investigation Report which contained unsubstantiated and false information in arriving at its sentence.
Assignment of Error #2: The trial court erred in violation of the 14th Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution in sentencing Mr. Fenderson above the minimum sentence on the involuntary manslaughter count where no predicate offense exists to support it.
Assignment of Error #3: The trial court violated Mr. Fenderson‘s rights under the Sixth Amendment by engaging in judicial fact-finding to increase his maximum sentence by 10 years on a RVO specification where the facts were not admitted to by him nor found by a jury.
Assignment of Error #4: Mr. Fenderson‘s right to due process under the 14th Amendment to the United States Constitution and Art. I, Sec. 16 of the Ohio Constitution was violated as a result of the trial court‘s
consideration, at sentencing, of an undisclosed victim‘s correspondence to the court which was not provided to defense counsel. Assignment of Error #5: Mr. Fenderson‘s sentence must be reversed because the S.B. 201 indeterminate sentencing scheme under which he was sentenced violates the Sixth Amendment and Article I, Section 5 of the Ohio Constitution because a defendant‘s imprisonment is dependent upon a factual finding not made by the jury beyond a reasonable doubt or admitted by the defendant.
Assignment of Error #6: The S.B. 201 indeterminate sentencing scheme under which Mr. Fenderson was sentenced violates separation of powers by delegating to the executive branch discretion to keep the defendant in prison beyond the judicially imposed presumptive minimum sentence.
Assignment of Error #7: The S.B. 201 indeterminate sentencing scheme violates substantive due process because it (1) fails to provide a defendant with adequate notice of what conduct can enable the ODRC to keep the defendant in prison beyond the presumptive minimum term; and (2) it allows the ODRC to keep a defendant in prison beyond the presumptive minimum sentence on the basis of prison housing and
classification decisions that need to be the result of any misconduct by the defendant. Assignment of Error #8: The S.B. 201 indeterminate sentencing scheme under which Appellant was sentenced violates procedural due process by allowing for the extension of a prison sentence based on findings made at a hearing where the prisoner has no guaranteed right to be present, have counsel, confront witnesses, subpoena witnesses or to offer testimony of his own.
Assignment of Error #9: Appellant‘s sentence is contrary to law and must be reversed because the court failed to provide notice of the
R.C. 2929.19(B)(2)(c) notifications at his sentencing.
II. Law and Analysis
{6} In his first assignment of error, Fenderson argues that the trial court violated his right to due process when it considered his PSI at sentencing, which he claims contained false and unsubstantiated information. In his second assignment of error, he argues that the trial court violated his right to due process when it imposed a sentence above the minimum sentence because, he claims, there was no predicate offense to support his conviction for involuntary manslaughter. In his third assignment of error, he argues that the trial court violated his Sixth Amendment rights because it engaged in judicial fact-finding to increase his sentence by ten years on the RVO specification. In
{7} We consider each of Fenderson‘s assignments in turn.
A. Information Contained in the PSI
{8} In his first assignment of error, Fenderson argues that the PSI upon which the trial court relied when it sentenced him contained false, incomplete information and consisted only of police reports. He maintains that he was denied due process because the trial court refused to allow him to present evidence to demonstrate the falsity of the information. Although he acknowledges that under Ohio case law, courts may consider allegations of uncharged conduct contained in a PSI, he insists that this practice violates the principles established in Apprendi v. New Jersey, 530 U.S. 466 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 298, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He also complains that because a court is not obligated to explain the reason for its sentence, a defendant cannot know what information the court specifically relied upon in imposing a sentence, and, therefore, cannot know for sure whether the court relied on inaccurate information. Finally, Fenderson insists that PSIs
{9} Fenderson highlights specific examples that he claims demonstrate his concerns. For instance, he notes that one of the police reports references information from a witness who “heard through neighborhood gossip” that another witness told yet another witness that she believed Fenderson committed the crime because “she heard” that he and the victim “had a beef.” That witness also mentioned that she heard that Fenderson had stolen a car last year. He suggests that this information led to a greater sentence than would otherwise have been imposed. Additionally, Fenderson complains that police reports did not include videos where the victim is seen taunting, stalking, and provoking him and his family members while brandishing firearms, and he insists that the PSI included inaccurate statements from a state trooper and a jailhouse informant. Fenderson also maintains that there were statements in the PSI indicating that he shot the victim in Detroit in a separate incident, which Fenderson denies.
{10} The state responds that Fenderson had an opportunity to correct any alleged inaccuracies in the PSI and to present his own version of the events, but he refused to participate in the presentence investigation process. It points out that Fenderson did, however, file a detailed sentencing memorandum, which the trial court considered. And the state insists that Fenderson was not entitled to call witnesses at sentencing. Rather, under
{11} The state maintains that Fenderson has failed to establish that the trial court specifically relied on allegedly erroneous information in the PSI when it sentenced him in this matter. It stresses, in particular, that in sentencing Fenderson, the trial court assured Fenderson that it did not intend to take anything into account that happened in Michigan.
{12} Under
{13} At his sentencing hearing, Fenderson‘s attorney expressed that he wanted to call Detective Costante and Fenderson‘s mother and sister to testify. The court said it would allow testimony from the detective, but would allow only statements from the family members. Fenderson chose not to call the detective because the court would not allow all his desired witnesses to testify. Instead, he proffered the information that would have been provided by the witnesses.
{14} Briefly stated, Fenderson indicated that his mother and sister would have testified (1) that E.C. threatened to kill them, and out of fear, they moved from Sandusky to Atlanta, Georgia; (2) E.C. had threatened other members of the community, so there were multiple people with motive to kill E.C; and (3) Fenderson was not in Sandusky when E.C. was killed. After proffering this information, counsel said: “So with that being said, I‘ve made my record. I proffered what the witnesses were going to say * * *.” Fenderson, although permitted to do so, specifically declined to question Detective Costante, but indicated that the detective would have testified that he interviewed a little girl who said that E.C. said he was going to shoot her dad. He also told the court that
{15} In essence, Fenderson sought to establish from his family that the victim had a history of threatening and intimidating people, including the Fenderson family. Although they were not permitted to testify, Fenderson‘s mother and sister included this information in the statements they made to the court. It was well-understood by the trial court that Fenderson‘s family felt threatened by the victim.
{16} Fenderson also sought to establish that he was not present at the time of the shooting and others had motive to harm the victim. These purported facts were no longer at issue given that Fenderson entered a plea of guilty to involuntary manslaughter. What‘s more, Fenderson successfully conveyed these points without examining witnesses at the sentencing hearing. Additionally, there were no inaccuracies in the PSI itself that Fenderson sought to challenge—it was the content of police reports attached to the PSI. Certainly, the trial court understood that the police reports merely chronicled efforts by the police to develop suspects, theories, and a chronology of events; undoubtedly, the trial court did not interpret every assertion contained in the reports as fact. And in any event, the state‘s eventual theory of the case was that Fenderson was “the architect” of the murder—not the gunman. Its theory was described at the sentencing hearing: “This was an execution-style murder. It was a hit. * * * [T]he evidence shows[] that about
{17} It is within the sentencing court‘s discretion whether to allow a defendant to introduce testimony relating to alleged factual inaccuracies contained in the PSI. The court allowed defense counsel to speak at length at the sentencing hearing. Fenderson opted not to call Detective Costante to testify even though the trial court said he could. Fenderson‘s mother and sister were permitted to speak at sentencing and were given the opportunity to fully express that they feared the victim. The trial court made clear that it was not taking into account any allegations that Fenderson had previously shot the victim in a separate incident in Detroit. The trial court undoubtedly understood that the information contained in the police reports was the work product of police trying to solve a homicide and not assertions of fact. And the only inaccuracies Fenderson identifies are not at odds with the state‘s version of events. We find no abuse of discretion in the trial court‘s decision denying him the opportunity to examine witnesses at the sentencing hearing.
{18} Finally, although Fenderson believes defendants should be permitted to receive a copy of the PSI instead of merely having an opportunity to review it then return it, this is not what Ohio law requires. Compare
{19} We find Fenderson‘s first assignment of error not well-taken.
B. Predicate Offense to Involuntary Manslaughter
{20} Fenderson entered a plea of guilty to involuntary manslaughter under
{22} Under
{23} Here, when Fenderson entered a plea of guilty to involuntary manslaughter—and specifically, involuntary manslaughter under
{24} As to Fenderson‘s claim that the trial court was obligated to impose the minimum possible sentence here or find certain facts to support a greater sentence, this is simply wrong. Under
{26} In Alleyne, a jury convicted the defendant of using or carrying a firearm in relation to a crime of violence. The term of imprisonment for using or carrying a firearm in relation to a crime of violence was a minimum of five years. The term of imprisonment increased to a minimum of seven years if the firearm was brandished. And the term of imprisonment increased to a minimum of ten years if the firearm was discharged. The jury found that the defendant used or carried a firearm during and in relation to a crime of violence, but it made no finding that the firearm was brandished. Nevertheless, the presentence report recommended a seven-year sentence. The defendant argued that because the jury did not find beyond a reasonable doubt that he brandished the firearm, he was subject only to the five-year minimum. The district court concluded that “brandishing” was a sentencing factor that it could find by a preponderance of evidence. After determining that the evidence supported a finding of brandishing, it sentenced the defendant to seven years’ imprisonment. The Court of Appeals affirmed.
{27} The U.S. Supreme Court acknowledged that the Sixth Amendment provides an accused the right to a trial by an impartial jury. “This right, in conjunction
{28} The Court explained that a fact that increases the prescribed range of penalties to which a criminal defendant is exposed is an element of the crime, which a jury must find beyond a reasonable doubt. By extension, a fact that increases the range—i.e., either the floor or the ceiling—of a potential sentence produces a new penalty and is an element of the offense. As such, “the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.” Id. at 114. The Court concluded that “because the fact of brandishing aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury” beyond a reasonable doubt. Id. at 115.
{29} The Court took care to clarify that its holding—i.e., that a fact that increases a mandatory minimum sentence must be submitted to the jury—does not mean that a jury must find any fact that influences judicial discretion. Rather, it explained, “broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment.” Id. at 116.
{31} We now turn to Mejia, 2020-Ohio-6870, 164 N.E.3d 1177. In Mejia, the defendant was charged with engaging in sexual conduct with a 12-year-old girl. He was indicted on three counts: (1) rape in violation of
{32}
(a) Except as otherwise required in division (B)(1)(b) or (c) of this section, a minimum term of ten years and a maximum term of life imprisonment.
(b) If the victim was less than ten years of age, a minimum of fifteen years and a maximum of life imprisonment.
(c) If the offender purposely compels the victim to submit by force or threat of force, or if the offender previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the Revised Code or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of that section, or if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, a minimum term of twenty-five years and a maximum of life imprisonment.
(Emphasis added.)
{34} On appeal, we were left to resolve “whether a defendant who pleads guilty to rape under
{35} In Bowers, as in Mejia, the defendant pled guilty to rape under
{36} Consistent with Bowers, we concluded that Mejia‘s sentence was contrary to law because neither the court nor the parties mentioned force at either the plea hearing or the sentencing hearing and the indictment was silent as to the issue of force under the count to which the defendant pled. Mejia at ¶ 34. Importantly, Count 2 contained a “force or threat of force” specification; Count 1 did not. The defendant entered a plea only to Count 1, therefore, he did not admit that he used force or threat of force. We reversed and remanded the case for resentencing.
{37} Here, Fenderson entered a guilty plea to involuntary manslaughter under
{¶ 38} Certainly, if Fenderson had not entered a plea of guilty and the matter had been tried to a jury, the state would have been required to prove that an underlying felony occurred (and that it caused the victim‘s death), which would necessarily have required it to identify the alleged felony. But the state was relieved of this duty when Fenderson voluntarily entered a guilty plea to the charge and admitted that he committed a felony that proximately caused E.C.‘s death.
{¶ 39} Finally, Fenderson contends that “no basis exists to sentence a defendant to 11 years as opposed to 3 years if the predicate offense is unknown.” He insists that without knowing the underlying predicate offense, a sentencing court “does not have sufficient facts to arrive at any sentence within the range above the minimum.” Fenderson acknowledges that the trial court has discretion to impose a sentence using factors set forth in
{¶ 40} In essence, Fenderson is challenging the length of his sentence—he believes he should have been sentenced to a minimum term of three years and a maximum term of four-and-a-half years. We review sentencing challenges under
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code , whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{¶ 41}
{¶ 42} Importantly, the Ohio Supreme Court has made clear that “neither
{¶ 43} Here, we know that the trial court considered
C. Repeat Violent Offender Specification
{¶ 45} In his third assignment of error, Fenderson argues that because he did not admit to any facts under
{¶ 46} In essence, the state does not disagree that the factors challenged by Fenderson require judicial fact-finding. It contends however that these factors—subdivisions (iv) and (v)—were excised from the statute by the Ohio Supreme Court in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, and findings under these factors are no longer required in order to impose a sentence on an RVO
{¶ 47}
(i) The offender is convicted of or pleads guilty to a specification of the type described in section
2941.149 of the Revised Code that the offender is a repeat violent offender.(ii) The offense of which the offender currently is convicted or to which the offender currently pleads guilty is * * * any felony of the first degree that is an offense of violence and the court does not impose a sentence of life imprisonment without parole * * *.
(iii) The court imposes the longest prison term for the offense or the longest minimum prison term for the offense, whichever is applicable, that is not life imprisonment without parole.
(iv) The court finds that the prison terms imposed pursuant to division (B)(2)(a)(iii) of this section and, if applicable, division (B)(1) or (3) of this section are inadequate to punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a greater likelihood of recidivism outweigh the applicable factors under that section indicating a lesser likelihood of recidivism.(v) The court finds that the prison terms imposed pursuant to division (B)(2)(a)(iii) of this section and, if applicable, division (B)(1) or (3) of this section are demeaning to the seriousness of the offense, because one or more of the factors under section
2929.12 of the Revised Code indicating that the offender‘s conduct is more serious than conduct normally constituting the offense are present, and they outweigh the applicable factors under that section indicating that the offender‘s conduct is less serious than conduct normally constituting the offense.
(Emphasis added.)
{¶ 48} In State v. Oller, 10th Dist. Franklin No. 16AP-429, 2017-Ohio-7575, the state claimed that the trial court was not required to make findings under
{¶ 49} The Tenth District agreed with the state that the inclusion of “preexisting language declared unconstitutional by the Supreme Court” that “survives its codified section‘s subsequent legislative amendment, is not tantamount to an intent by the legislature to reenact the language notwithstanding its declared unconstitutionality.” Oller at ¶ 8. It also noted that later caselaw, including Oregon v. Ice, 555 U.S. 160, 163, 172 L.Ed.2d 517, 129 S.Ct. 711 (2009), and State v. Hunter, 123 Ohio St.3d 164, 2009-Ohio-4147, 915 N.E.2d 292, paragraph two of the syllabus, significantly diluted the effect of Foster, suggesting that “it is constitutionally permissible for a trial judge, rather than a jury, to consider an offender‘s offense, his or her prior record, and the factual circumstances necessary for sentencing consecutively which may support inferences concerning the seriousness of the offender‘s conduct and the danger the offender poses to the public.” Oller at ¶ 9. It expressed its view that if the Ohio General Assembly were to specify an intent to do so,
{¶ 50} Since Oller, the Tenth District has continued to find that an RVO sentence may be ordered without the trial court making any findings under
{¶ 51} Consistent with these decisions, we conclude that findings under
{¶ 52} We find Fenderson‘s third assignment of error not well-taken.
{¶ 53} Although we find Fenderson‘s third assignment of error not well-taken, and although not raised by the parties, we do note two errors in the sentencing judgment. On page two, the July 5, 2022 judgment mistakenly cites
D. Undisclosed Correspondence from the Victim
{¶ 54} In his fourth assignment of error, Fenderson argues that he was deprived of a fair sentencing proceeding in violation of his due process rights because the trial court relied on a letter from the victim‘s mother, which was not provided to defense counsel and was not read into the record. He claims that due process required that he be afforded the opportunity to rebut any materially false, derogatory information relied upon by the sentencing judge. He maintains that the only way to protect himself from being sentenced based upon false information was to provide him with notice and an opportunity to respond to the information upon which the sentencing court relied. And because Fenderson was not provided a copy of the letter, he claims that he was unable to rebut the statement or determine if it contained materially false information.
{¶ 55} The state responds that Fenderson failed to object or otherwise raise this issue before the trial court, therefore, he has waived all but plain error. It maintains that the trial court properly considered the letter from E.C.‘s mother under
{¶ 56} The state correctly observes that Fenderson did not object to the victim‘s mother‘s letter being provided to the court and not read aloud without allowing defense counsel to read it. We, therefore, review for plain error. Plain error is error that affects substantial rights.
{¶ 57} In State v. Shackleford, 2d Dist. Montgomery No. 24303, 2011-Ohio-4722, the court at the sentencing hearing read part of a letter that the victim had written describing the crime‘s impact on her physically, psychologically, and emotionally. The court cited the crime‘s impact on the victim when explaining its sentencing decision. On appeal, the defendant complained that before the hearing, neither he nor trial counsel saw
{¶ 58} The Second District Court of Appeals obtained the letter from the trial court and reviewed its contents. It described that the letter was essentially a rewording of the victim impact portion of the PSI, which alone did not result in a different outcome. But the court went on to say that even if the letter had been fully disclosed to him before the sentencing hearing, the defendant‘s ability to challenge its validity would have been limited because “[a] defendant does not have the right to respond to a victim‘s statement unless the statement includes new material facts and the court relies on those facts.” Id. at ¶ 25, citing
{¶ 60} We find Fenderson‘s fourth assignment of error not well-taken.
E. Constitutionality of S.B. 201
{¶ 61} In his fifth through eighth assignments of error, Fenderson challenges the constitutionality of the sentencing scheme under which he was sentenced. He claims that S.B. 201—commonly referred to as the Reagan Tokes Law—violates the Sixth Amendment and Article I, Section 5 of the Ohio Constitution because a defendant‘s imprisonment is dependent upon a factual finding not made by the jury beyond a reasonable doubt or admitted by the defendant. He claims that it violates the doctrine of separation of powers because it delegates to the executive branch discretion to keep the defendant in prison beyond the judicially-imposed presumptive minimum sentence. He claims that it violates substantive due process because it fails to provide a defendant with
{¶ 62} This court has addressed these challenges to the constitutionality of S.B. 201 on many occasions. In State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2022-Ohio-2606, ¶ 21-23, we found that S.B. 201 does not violate the constitutional right to a trial by jury because there are no circumstances under which ODRC may increase punishment beyond the maximum term permitted by statute or imposed by the sentencing court. See also State v. Williams, 6th Dist. Lucas No. L-21-1152, 2022-Ohio-2812, ¶ 14-16. In State v. Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio-1620, ¶ 23-36, we held that S.B. 201 does not violate principals of separation of powers because the trial court—not the executive branch—imposes both the minimum and maximum sentences. See also State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072, ¶ 7-20; and Bothuel at ¶ 7-20; State v. Lamar, 6th Dist. Wood No. WD-21-055, 2022-Ohio-2979, ¶ 125; State v. Blanton, 6th Dist. Lucas No. L-22-1225, 2023-Ohio-2242, ¶ 31. In Williams at ¶ 24-28, we rejected arguments similar to Fenderson‘s substantive due process challenge and held
{¶ 63} The Ohio Supreme Court has now considered—and rejected—most of Fenderson‘s constitutional challenges to the Reagan Tokes Law. In State v. Hacker, Slip Opinion No. 2023-Ohio-2535, the Ohio Supreme Court held that the Reagan Tokes Law does not violate the separation of powers doctrine, does not violate the right to a jury trial, is not void for vagueness, and on its face, does not violate due process.
{¶ 64} First, the court rejected the position that the Reagan Tokes Law violates the separation-of-powers doctrine based on the authority granted to DRC—the executive
{¶ 65} The court explained the role of the three branches under S.B. 201:
[T]he legislative branch “define[s] crimes,” “fixes the penalty,” and “provide[s] such discipline and 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, 647-648, 4 N.E. 81, 85 (1885).] Thus, with the Reagan Tokes Law, the General Assembly established indefinite sentencing for offenders convicted of eligible felonies and a scheme for offender discipline by the DRC. The judicial branch determines whether a person is guilty of an offense and, after a finding of guilt, imposes a prison sentence within the bounds established by the legislature. Id. at 647-648, 4 N.E. 81; see also State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 136, 729 N.E.2d 359 (2000). And “[p]rison discipline is an exercise of executive power.” Id.
Hacker at ¶ 15, quoting Peters at 647-648.
{¶ 66} The court emphasized that “[o]nce the trial court imposes minimum and maximum prison terms under
{¶ 67} In reaching this conclusion, the Ohio Supreme Court relied on Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000), superseded by statute on other grounds as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, where the court held that the postrelease-control statute did not violate the separation-of-powers doctrine or the right to Due Process even though it vested the parole board with authority to determine whether and how long an offender would be subject to postrelease control and authorized it to sanction offenders for violating the conditions of their postrelease control. In Woods, the court reasoned that the conditions of postrelease control were part of the sentence imposed by the trial court, “the power to determine the duration of postrelease control and the sanctions for an offender‘s violation of postrelease-control conditions was consistent with the authority that had been delegated to the APA in the past under a prior system of parole,” and “the authority of the judiciary was not impeded by the APA‘s performance of its disciplinary function.” Hacker at ¶ 22.
{¶ 68} In sum, the Ohio Supreme Court determined that the Reagan Tokes Law was analogous to that of the post-release control statute that it found constitutional in Woods. It stressed that under the Reagan Tokes Law, “[s]hould the DRC determine that
{¶ 69} Second, the court disagreed that
{¶ 70} Third, the court concluded that S.B. 201 is not void for vagueness. It found that the Law gives adequate notice of what is prohibited conduct—“‘infractions or violations [that] demonstrate that the offender has not been rehabilitated.‘” Hacker at ¶ 31, quoting
{¶ 71} Finally, the Ohio Supreme Court concluded that the Reagan Tokes Law does not, on its face, violate the right to due process. As an initial matter, it recognized that offenders have a liberty interest in not being held beyond the minimum prison term imposed by a trial court. It explained that because “DRC‘s discretion to maintain an offender‘s incarceration beyond the minimum prison term imposed by the trial court is curtailed by
{¶ 72} The court observed that
{¶ 73} For the reasons explained in our various decisions, and as recently pronounced by the Ohio Supreme Court in Hacker, we find Fenderson‘s fifth, sixth, seventh, and eighth assignments of error not well-taken.
R.C. 2929.19(B)(2)(c) Notifications
{¶ 74} In his ninth assignment of error, Fenderson argues that the trial court erred by failing to advise him of the
{¶ 75} The state emphasizes that the trial court provided the required notifications at the plea hearing, they were included in the judgment entry of plea, and Fenderson signed a notice of having been advised under
{¶ 76} Under
(i) That it is rebuttably presumed that the offender will be released from service of the sentence on the expiration of the minimum prison term imposed as part of the sentence or on the offender‘s presumptive earned early release date, as defined in [
R.C.] 2967.271 * * *, whichever is earlier;(ii) That the department of rehabilitation and correction may rebut the presumption described in division (B)(2)(c)(i) of this section if, at a
hearing held under [ R.C.] 2967.271 * * *, the department makes specified determinations regarding the offender‘s conduct while confined, the offender‘s rehabilitation, the offender‘s threat to society, the offender‘s restrictive housing, if any, while confined, and the offender‘s security classification;(iii) That if, as described in [
R.C. 2929.19 ](B)(2)(c)(ii) * * *, the department at the hearing makes the specified determinations and rebuts the presumption, the department may maintain the offender‘s incarceration after the expiration of that minimum term or after that presumptive earned early release date for the length of time the department determines to be reasonable, subject to the limitation specified in [R.C.] 2967.271 * * *;(iv) That the department may make the specified determinations and maintain the offender‘s incarceration under the provisions described in [
R.C. 2929.19 ](B)(2)(c)(i) and (ii) * * * more than one time, subject to the limitation specified in [R.C.] 2967.271 * * *;(v) That if the offender has not been released prior to the expiration of the offender‘s maximum prison term imposed as part of the sentence, the offender must be released upon the expiration of that term.
{¶ 77} Ohio courts agree that a trial court errs where it fails to make these mandatory advisements at the sentencing hearing. Because the trial court failed to make
{¶ 78} Accordingly, we find Fenderson‘s ninth assignment of error well-taken.
III. Conclusion
{¶ 79} The trial court did not abuse its discretion in denying Fenderson‘s request to elicit testimony at the sentencing hearing concerning alleged inaccuracies contained in the PSI. The court allowed him to call the detective to testify—he chose not to. It allowed Fenderson‘s mother and sister to provide statements; those statements included the information Fenderson‘s attorney proffered at the hearing. And Fenderson had an opportunity to provide information concerning his contention that the PSI contained inaccurate information. We, therefore, find Fenderson‘s first assignment of error not well-taken.
{¶ 80} The state was relieved of its duty to identify and prove a predicate offense when Fenderson entered a guilty plea under
{¶ 82} The trial court did not commit plain error when it considered a letter from the victim‘s mother, which it did not provide to Fenderson. The letter did not allege new facts. It was also irrebuttable to the extent that it described the impact the victim‘s death had on the victim‘s family. Disclosure of the letter would not have changed the outcome of the proceedings. We, therefore, find Fenderson‘s fourth assignment of error not well-taken.
{¶ 83} S.B. 201 does not on its face violate the right to a trial by jury, principles of separation of powers, substantive due process, or procedural due process. We, therefore, find Fenderson‘s fifth through eighth assignments of error not well-taken.
{¶ 84} The trial court erred when it failed to make the notifications required by
{¶ 85} On remand, the trial court should also enter a nunc pro tunc entry correcting two errors in the July 5, 2022 Judgment Entry. On page two, the judgment mistakenly cites
{¶ 86} We affirm the judgment of the Erie County Court of Common Pleas, in part, and reverse in part. The matter is remanded to the trial court for the limited purpose of permitting the sentencing court to provide the notifications required by
Judgment affirmed, in part,
and reversed, in part,
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to
Christine E. Mayle, J.
JUDGE
Myron C. Duhart, P.J.
JUDGE
Charles E. Sulek, J.
CONCUR.
JUDGE
State of Ohio
v. Shakill Fenderson
E-22-034
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.