STATE OF OHIO v. TOMMY GREENE
APPEAL NO. C-220160
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 16, 2022
[Cite as State v. Greene, 2022-Ohio-4536.]
TRIAL NO. B-2001740
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: December 16, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christopher Bazeley, for Defendant-Appellant.
BERGERON, Judge.
{1} After an indictment for murder and felonious assault, defendant-appellant Tommy Greene entered into a plea agreement with a recommended sentence of 17 years, and an acknowledgement that he faced a potential sentence range of 17 to 22 1/2 years. Although the trial court entered the 17 to 22 1/2 year sentence consistent with the Reagan Tokes Law, Mr. Greene appeals, claiming that the court erred in not orally advising him of certain statutorily-required notifications, and he challenges the constitutionality of the Reagan Tokes Law. We reject Mr. Greene‘s constitutional challenges, consistent with our recent decision in State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962. However, with respect to the sentencing colloquy, in line with the state‘s concession, we conclude that the trial court neglected to mention certain requirements at the sentencing hearing. We accordingly reverse the trial court‘s judgment in part, remanding this matter solely for resentencing to allow the court to comply with
I.
{2} After the killing of Fred Spivey in April 2020, Mr. Greene was indicted in May of that year with one count of murder, under
{3} At the sentencing hearing, the court walked through the plea colloquy with Mr. Greene, informing him of his rights and the ramifications of his plea. During the colloquy, the trial court referenced the “entry withdrawing plea of not guilty and entering plea of guilty, with an agreed recommended sentence” document, which embodied the plea agreement signed by Mr. Greene (the “plea entry“). The trial court proceeded to impose the 17-year sentence recommendation with a maximum sentence of 22 1/2 years pursuant to the Reagan Tokes Law.
{4} Mr. Greene appeals three aspects of his sentence: that the trial court failed to advise him of the
II.
{5} Mr. Greene initially faults the trial court‘s failure to advise him of the
{6} The statute at issue provides, in pertinent part, “[a]t the sentencing hearing, the court, before imposing sentence, shall do all of the following * * * [i]f the prison term is a non-life felony indefinite prison term, notify the offender of all of the [
{7} These notifications include the salient features of the Regan Tokes Law—one of the chief purposes of which is to encourage good behavior by inmates in prison: “(i) [t]hat 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 * * * ; (ii) [t]hat the department of rehabilitation and correction may rebut the presumption * * * ; (iii) [t]hat if * * * 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 * * * ; (iv) [t]hat the department may make the specified determinations and maintain the offender‘s incarceration * * * ; [and] (v) [t]hat 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.”
{8} Pointing to other appellate districts, Mr. Greene maintains that the term “shall” mandates that a trial court orally provide each of the notifications to the defendant at sentencing, and that a failure to do so requires a remand for resentencing. The state concedes the point, acknowledging the need for a remand for resentencing.
{9} Since the time that the state and Mr. Greene briefed the matter, our court has now twice confirmed that trial courts must inform criminal defendants of the notifications set forth in
{10} And our caselaw, coupled with consistent authority from other districts across the state, convinces us that a resentencing remand is required. Bentley, 4th Dist. Adams No. 21CA1147, 2022-Ohio-1914, at ¶ 8-10; State v. Whitehead, 8th Dist. Cuyahoga No. 109599, 2021-Ohio-847, ¶ 43-46; State v. Wolfe, 5th Dist. Licking No. 2020 CA 00021, 2020-Ohio-5501, ¶ 33-37; State v. Gatewood, 2d Dist. Clark No. 2021-CA-20, 2022-Ohio-2513, ¶ 1 (“The trial court failed to orally advise [defendant] of all of the
sentencing an offender to a non-life felony indefinite prison term under the Reagan Tokes Law, a trial court must advise the offender of the five notifications set forth in
{11} Because the Reagan Tokes Law, when applicable, allows the Ohio Department of Rehabilitation and Correction (“ODRC“) to extend a defendant‘s sentence beyond the minimum term upon satisfaction of statutory criteria at a hearing, it is imperative that trial courts abide by
III.
{12} In his second and third assignments of error, Mr. Greene challenges the constitutionality of the Reagan Tokes Law both generally, and specifically with respect to procedural due process and vagueness.
{13} Beyond the procedural due process argument, Mr. Greene fails to elucidate the contours of his constitutional argument, but we addressed such matters at length in Guyton. In Guyton, we determined that the Reagan Tokes Law is constitutional on its face and rejected claims that the law violates separation of powers, due process, or equal protection. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, at ¶ 69; see State v. Reed, 1st Dist. Hamilton No. C-200104, 2022-Ohio-3986, ¶ 32. Of course, those questions are presently before the Supreme Court
of Ohio, in State v. Hacker, 2020-Ohio-5048, 161 N.E.3d 112 (3d Dist.), appeal allowed, 161 Ohio St.3d 1449, 2021-Ohio-534, 163 N.E.3d 585, and in State v. Simmons, 2021-Ohio-939, 169 N.E.3d 728 (8th Dist.), appeal allowed, 163 Ohio St.3d 1492, 2021-Ohio-2270, 169 N.E.3d 1273, so we will receive additional guidance in the near term.
{14} Mr. Greene sharpens his attack with respect to
{15} Even though we did not address Regan Tokes through the “vagueness” lens, we rejected this procedural due process argument in Guyton. We fully considered the procedural due process ramifications of the Reagan Takes Law and found the facial challenge brought by the defendant there (and Mr. Greene only advances a facial challenge here) misguided: “[w]e do not discern any provision in the Reagan Tokes Law that overcomes the strong presumption an offender will be afforded the requisite process due at all stages of the indeterminate sentencing scheme, including during any administrative proceedings.” Guyton at ¶ 45. “Ultimately, we must presume that the ODRC will fill in the ‘gaps’ to execute the law such that offenders are afforded due process before depriving an offender of the statutory liberty
interest created by the Reagan Tokes Law.
* * *
{16} In summary, we overrule Mr. Greene‘s second and third assignments of error and sustain his first assignment of error. The judgment of the trial court is affirmed in part, reversed in part, and the cause is remanded to the trial court solely for resentencing, so that the trial court may comply with
Judgment affirmed in part, reversed in part, and cause remanded.
MYERS, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.