STATE OF OHIO v. KATRON GRAYS
No. 111600
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
January 26, 2023
[Cite as State v. Grays, 2023-Ohio-221.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-663463-A
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: January 26, 2023
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Carl M. Felice, Assistant Prosecuting Attorney, for appellee.
The Law Office of Jaye M. Schlachet and Eric M. Levy, for appellant.
EILEEN T. GALLAGHER, J.:
{1} Defendant-appellant, Katron Grays (“Grays“), appeals from his convictions and sentence. He raises the following assignments of error for review:
The trial court erred when it found Grays‘s plea was voluntary, knowing, and intelligent and that he was aware of the maximum penalty involved where at the time of his change of plea he was given inaccurate information about prison reduction where the trial court imposed a mandatory prison sentence. - Grays‘s indefinite sentence imposed under the Reagan Tokes sentencing scheme violates Grays‘s rights under the United States Constitution applied to the state of Ohio through the Fourteenth Amendment and the Ohio constitutions as it denies Grays due process of law; violates the Sixth Amendment right to a jury trial; violates the separation of powers doctrine; does not provide fair warning of the dictates of the statute to ordinary citizens; and the statute conferred too much authority to the Ohio Department of Rehabilitation and Correction.
- Grays‘s sentence is contrary to law where the trial court failed to comply with the required notices contained in
R.C. 2929.19(B)(2)(c) when imposing sentence.
{2} After careful review of the record and relevant case law, we affirm in part, reverse in part, and remand for the trial court to make the necessary advisements under
I. Factual and Procedural History
{3} On October 15, 2021, Grays was named in a four-count indictment, charging him with aggravated-vehicular assault in violation of
{4} On March 15, 2022, Grays withdrew his previously entered pleas of not guilty and expressed his desire to accept the terms of a negotiated plea agreement with the state. At the conclusion of a
{5} At sentencing, the trial court imposed an indefinite prison term of 8 to 12 years on Count 1 in accordance with the Reagan Tokes Law (enacted through S.B. 201). Grays was also sentenced to six months in jail on Count 3, to run concurrently with the sentence imposed on Count 1.
{6} Grays now appeals from his convictions and sentence.
II. Law and Analysis
A. Crim.R. 11
{7} In the first assignment of error, Grays argues his guilty pleas were not knowingly, voluntarily, and intelligently made because the trial court inaccurately advised him that he was entitled to good-time credit on a mandatory, minimum
{8} “Ohio‘s
(a) Determin[e] that the defendant is making the plea voluntarily, with understanding of the nature 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.
(b) Inform[ ] the defendant of and determin[e] that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Inform[ ] the defendant and determin[e] that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{9} “When a criminal defendant seeks to have his conviction reversed on appeal, the traditional rule is that he must establish that an error occurred in the trial court proceedings and that he was prejudiced by that error.” Dangler at ¶ 13.
{10} The traditional rule is subject to two limited exceptions. Id. at ¶ 14-16. Under these two exceptions, no showing of prejudice is required (1) when a trial court fails to explain the constitutional rights set forth in
{11} When reviewing a trial court‘s compliance with
(1) has the trial court complied with the relevant provision of the rule?
(2) if the court has not complied fully with the rule, is the purported failure of a type that excuses a defendant from the burden of
demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant met that burden?
Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286 at ¶ 17.
{12} In this case, there is no dispute that the trial court properly explained the constitutional rights Grays would be waiving by pleading guilty.
{13} As stated, Grays pleaded guilty to aggravated-vehicular assault in violation of
(1) The court shall impose a mandatory prison term, as described in division (D)(4) of this section, on an offender who is convicted of or pleads guilty to a violation of division (A)(1) of this section.
* * *
(4) A mandatory prison term required under division (D)(1) or (2) of this section shall be a definite term from the range of prison terms provided in division (A)(2)(b) of section 2929.14 of the Revised Code for a felony of the second degree * * * except that if the violation is a felony of the second degree committed on or after the effective date of this amendment, the court shall impose as the minimum prison term for the offense a mandatory prison term that is one of the minimum terms prescribed for a felony of the second degree in division (A)(2)(a) of section 2929.14 of the Revised Code.
{14} In turn,
For a felony of the second degree committed on or after the effective date of this amendment, the prison term shall be an indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code, except that if the section that criminalizes the conduct constituting the felony specifies a different minimum term or penalty for the offense, the specific language of that section shall control in determining the minimum term or otherwise sentencing the offender but the minimum term or sentence imposed under that specific language shall be considered for purposes of the Revised Code as if it had been imposed under this division.
Id.
{15} A review of the record establishes that the trial court advised Grays of the maximum penalties associated with the second-degree felony offense of aggravated-vehicular assault and the first-degree misdemeanor offense of driving while under the influence. Relevant to the arguments posed in this case, the trial court advised Grays that he was subject to a mandatory prison term on his second-degree felony offense and could be sentenced to a maximum prison term of 8 to 12 years. The trial court then explained to Grays his postrelease-control obligations and the implications of the indefinite sentencing scheme enacted by the Reagan
Further, you may earn a reduction on the minimum term in increments of five to 15 percent if you demonstrate exceptional conduct or adjustment to incarceration.
(Tr. 8.)
{16} On appeal, Grays suggests the trial court‘s advisement concerning his eligibility for “good-time credit” was made pursuant to
{18} After careful review of the plea colloquy, however, we find the trial court‘s advisement, which was made during the court‘s discussion of the Reagan Tokes Law, concerned
{19} With that said, we note that Grays has acknowledged the relevance of
Grays recognizes that under
R.C. 2967.271 the Reagan Tokes Act which changed Ohio‘s sentencing scheme under S.B. 201 for felonies of the first and second degree did authorize an earned reduction of theminimum prison term with a presumptive earned early release date. If said law is applicable to mandatory prison sentences permitting a reduction of the mandatory term then Grays‘s instant assignment of error might be moot where the trial court would have accurately advised him of the reduction. The crux of the issues that this court must decide is if the sentencing reduction contemplated in R.C. 2967.271 is applicable to mandatory sentences. This legal holding is necessary to determine if the trial court accurately advised Grays of the law prior to accepting his guilty plea and, as such, if the plea was knowingly, intelligently, and voluntarily made.
(Grays‘s brief p. 6.)
{20} Thus, in reviewing whether Grays‘s plea was knowingly, voluntarily, and intelligently made, we must first determine whether Grays was eligible for “earned reduction of [his] minimum prison term” (hereinafter referred to as “ERMPT“) under
The question before the court is a question of statutory interpretation. De novo review applies to questions of statutory interpretation. Ceccarelli v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8. A court‘s main objective is to determine and give effect to the legislative intent. State ex rel. Solomon v. Police & Firemen‘s Disability & Pension Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 1995-Ohio-172, 647 N.E.2d 486 (1995). “The question is not what did the general assembly intend to enact, but what is the meaning of that which it did
enact.” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. “When the statutory language is plain and unambiguous, and conveys a clear and definite meaning, we must rely on what the General Assembly has said,” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, and apply the statute as written, Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 18, citing Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 11.
State v. Jones, Slip Opinion No. 2022-Ohio-4485, ¶ 24.
{21} The Reagan Tokes Law, effective as of March 22, 2019, implemented a system of indefinite sentencing for nonlife felonies of the first- and second-degree committed on or after the effective date.
{22} As briefly mentioned above, the Reagan Tokes Law also authorizes the trial court to approve ERMPT for “exceptional conduct while incarcerated or the offender‘s adjustment to incarceration.”
do not apply with respect to an offender serving a non-life felony indefinite prison term for a sexually oriented offense, and no offender serving such a prison term for a sexually oriented offense is eligible to be recommended for or granted, or may be recommended for or granted, a reduction under those divisions in the offender‘s minimum prison term imposed under that non-life felony indefinite prison term.
Id. Interpreting
{23} In this case, there is no dispute that the trial court was required to impose an indefinite prison sentence on Grays‘s second-degree felony offense pursuant to
{24} Moreover, when viewed in its entirety,
{26}
(F) Notwithstanding divisions (A) to (E) of this section, the court shall impose a prison term or terms under * * * section 2929.14 * * * of the Revised Code and except as specifically provided in section 2929.20, divisions (C) to (I) of section 2967.19, or section 2967.191 of the Revised Code or when parole is authorized for the offense under section 2967.13 of the Revised Code shall not reduce the term or terms pursuant to * * * section 2967.193, or any other provision of Chapter 2967* * * for any of the following offenses:
* * *
(4) A felony violation of section * * * 2903.08 * * *of the Revised Code if the section requires the imposition of a prison term[.]
(Emphasis added.)
{27} Here, the plain language of
{28} Under the foregoing circumstances, we find the broad exclusory language contained in
{29} “It is a well-settled principle of statutory construction that when an irreconcilable conflict exists between two statutes that address the same subject matter, one general and the other special, the special provision prevails as an exception to the general statute.” State v. Pribble, 158 Ohio St.3d 490, 2019-Ohio-4808, 145 N.E.3d 259, ¶ 13, quoting State v. Conyers, 87 Ohio St.3d 246, 248, 719 N.E.2d 535 (1999).
[i]f the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.
Id. As explained by the Ohio Supreme Court,
The rationale behind the general/specific canon is that “the particular provision is established upon a nearer and more exact view of the subject than the general, of which it may be regarded as a correction.” Or think of it this way: the specific provision comes closer to addressing the very problem posed by the case at hand and is thus more deserving of credence.
Pribble at ¶ 13, quoting Scalia & Garner, Reading Law: The Interpretation of Legal Texts, 183 (2012), quoting Jeremy Bentham, General View of a Complete Code of Laws, reprinted in 3 The Works of Jeremy Bentham, 210 (John Bowring Ed.1843).
{30} Applying the foregoing to the competing statutes, we are unable to construe
{31} Similarly, even if this court were to deem
* * *
incentivize[s] socially acceptable conduct by offering inmates a tangible way to reduce their overall sentences through buying into the social contract — a tacit agreement to live together in accordance to the socially established rules of behavior. * * * The Reagan Tokes Law offers inmates the opportunity to demonstrate their willingness to reform and, in the process, to receive lesser sentences based on their behavior, instead of serving definite terms. Reagan Tokes case spurs Ohio legislation to change incarceration guidelines. * * * These changes provide the inmate the opportunity to reduce the overall prison term below what would be served under the pre-S.B. 201 definite sentencing structure. Id. Under the pre-S.B. 201 definite sentencing law, Ohio focused on the punitive nature of the
* * *
imprisonment system. The Reagan Tokes Law offers an albeit small, but beginning, step away from that draconian approach.
Id. at ¶ 1 and 6. Thus, the Reagan Tokes Law, including the provisions governing an offender‘s ability to reduce his or her minimum prison term by 5 to 15 percent, reflects the General Assembly‘s manifest intent “to return Ohio to its core sentencing approach, implementing the reformative incentive for offenders that was lost to the definite sentencing structure.” Id. at ¶ 12. Given the breadth of felony offenses listed under
{32} Based on the foregoing, we find “the incentive-based, rehabilitative prison process” implemented under the Reagan Tokes Law applies to Grays‘s second-degree felony offense in this case. Because the exception set forth under
{33} The first assignment of error is overruled.
B. The Reagan Tokes Law
{34} In the second assignment of error, Grays argues the trial court erred by imposing an indefinite sentence pursuant to the Reagan Tokes Law. He contends the Reagan Tokes Law is unconstitutional because it violates his right to a trial by jury, the separation-of-powers doctrine, and his right to due process5 under the Ohio and United States Constitutions. Grays alternatively suggests that trial counsel rendered ineffective assistance of counsel by failing to object to the constitutionality of the indefinite sentence.
{35} Consistent with the well-establish precedent of this court, we find no merit to the constitutional challenges raised within this assigned error. The question of whether the Reagan Tokes Law is constitutional was decided in this court‘s en banc opinion in Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.).
{36} Moreover, we are unable to conclude that trial counsel rendered ineffective assistance of counsel by failing to challenge the constitutionality of Grays‘s prison term at the time of sentencing.
{37} A criminal defendant has the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Sixth Amendment to the United States Constitution guarantees a defendant the effective assistance of counsel at all “critical stages” of a criminal proceeding, including sentencing. State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 7 (“sentencing is a critical stage in which a felony offender has a right to counsel“), citing State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d 1033, ¶ 15, and Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).
{38} As a general matter, to establish ineffective assistance of counsel, a defendant must demonstrate (1) deficient performance by counsel, i.e., that counsel‘s performance fell below an objective standard of reasonable
{39} As stated, this court has routinely rejected the constitutional challenges to the Reagan Tokes Law that are presented in this appeal. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). Therefore, even if trial counsel had challenged the constitutional validity of Grays‘s indefinite prison term, the objection would have proven to be unsuccessful. Under these circumstances, Grays cannot establish the requisite level of prejudice to warrant a finding of ineffective assistance of counsel. See State v. Waters, 8th Dist. Cuyahoga No. 110821, 2022-Ohio-2667, ¶ 45; see also State v. Debose, 8th Dist. Cuyahoga No. 109531, 2022-Ohio-837, ¶ 26 (“The failure to perform a futile act does not constitute ineffective assistance of counsel.“), citing State v. Scarton, 8th Dist. Cuyahoga No. 108474, 2020-Ohio-2952, ¶ 95; State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 37 (“[T]he failure to do a futile act cannot be the basis for claims of ineffective assistance of counsel, nor could such a failure be prejudicial.“).
{40} The second assignment of error is overruled.
{41} In the third assignment of error, Grays argues his sentence is contrary to law because the trial court failed to comply with the notice requirements of
{42} When reviewing felony sentences, appellate courts must apply the standard of review set forth in
{43} Pursuant to
[I]f the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
* * *
(c) If the prison term is a non-life felony indefinite prison term, notify the offender of all of the following:
(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 section 2967.271 of the Revised Code, 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 section 2967.271 of the Revised Code, 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 division (B)(2)(c)(ii) of this section, 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 section 2967.271 of the Revised Code;
(iv) That the department may make the specified determinations and maintain the offender‘s incarceration under the provisions described in divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to the limitation specified in section 2967.271 of the Revised Code;
(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.
{44} “No specific language is required, but the court must impart this information to a defendant at the time of sentencing.” State v. Gates, 8th Dist. Cuyahoga No. 110615, 2022-Ohio-1666, ¶ 21. “When trial courts have failed to provide the notifications required by
{45} In this case, the trial court made the following statement at the time of sentencing:
Reagan Tokes does apply to this case. So the minimum sentence in this matter is eight [years], and the maximum sentence is 12 years. There is a presumption that you are released after eight years; however, the ODRC has the legal right under Senate Bill 201 to rebut that presumption and to extend your period of confinement for 50 percent of the term I have imposed.
If ODRC makes that decision, you will be released after the additional time is served. The decision to extend your term in this county is the sole authority of the ODRC, and they alone made the determination based on such criteria as your conduct while incarcerated, your rehabilitation, the threat they believe you pose to the community, whether any restrictive housing sanctions were imposed on you during your incarceration, as well as your security classification.
(Tr. 30-31.)
{46} After careful review of the sentencing colloquy in its entirety, we find the trial court partially complied with the requirements of
{47} Based on the foregoing, we find the trial court failed to fully comply with the requirements of
{48} Judgment affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellee and appellant share 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 common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and LISA B. FORBES, J., CONCUR
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that
Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation, see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (Forbes, J., dissenting).