STATE OF OHIO, PLAINTIFF-APPELLEE, v. CHRISTOPHER P. HACKER, DEFENDANT-APPELLANT.
CASE NO. 8-20-01
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
October 26, 2020
[Cite as State v. Hacker, 2020-Ohio-5048.]
ZIMMERMAN, J.
Appeal from Logan County Common Pleas Court, Trial Court No. CR 19 06 0192, Judgment Affirmed
APPEARANCES:
Marc S. Triplett for Appellant
Eric C. Steward for Appellee
ZIMMERMAN, J.
{¶1} Defendant-appellant, Christopher P. Hacker (Hacker), appeals the January 28, 2020 judgment entry of sentence of the Logan County Court of Common Pleas. We affirm.
{¶2} This case stems from Hacker‘s trespass into the victim‘s home (while the victim and Hacker‘s wife were present), and Hacker‘s threats toward the victim while brandishing a deadly weapon. (Doc. No. 18).
{¶3} On June 11, 2019, the Logan County Grand Jury indicted Hacker on the following criminal charges: Count One of aggravated burglary in violation of
{¶4} Hacker appeared for arraignment on June 14, 2019 and entered pleas of not guilty. (Doc. No. 13). However, on December 20, 2019, Hacker withdrew his pleas of not guilty and entered guilty pleas under a negotiated plea agreement. (Doc. No. 54). In exchange for his guilty pleas to Count One and the firearm specification (amended from a three-year to a one-year
{¶5} On January 27, 2020, the trial court sentenced Hacker to serve an indefinite prison term with a minimum prison term of six years and a maximum prison term of nine years under Count One and a mandatory definite prison term of one year under the firearm specification.1 (Doc. No. 60). The indefinite prison term under Count One was ordered to be served consecutively to the mandatory definite prison term under the firearm specification.2 (Id.). Then, the trial court imposed a $10,000 fine and ordered Hacker to pay court costs, the costs of prosecution, and fees under
{¶6} On February 7, 2020, Hacker filed a notice of appeal. (Doc. No. 77). He raises three assignments of error for our review, which we will address together.
Assignment of Error I
Assignment of Error II
As Amended By The Reagan Tokes Act, The Revised Code‘s Sentences For First and Second Degree Qualifying Felonies Violate The United States And Ohio Constitutions. (1.27.20. Tr. 25).
Assignment of Error III
The Trial Court Erred When It Imposed a Fine of Ten Thousand Dollars (1.27.20, [sic] Tr. 27).
{¶7} In his first and second assignment of error, Hacker asserts that the trial court erred in sentencing him under the Reagan Tokes Law because it violates his rights to a trial by jury and due process of law, and the constitutional requirement of separation of powers rendering his sentence contrary to law. In his third assignment of error, Hacker argues that the trial court erred when it failed to consider Hacker‘s ability to pay the financial sanction imposed under
Standard of Review
{¶8} Under
Reagan Tokes Law
{¶9} The Reagan Tokes Law, enacted in 2018 and effective on March 22, 2019, significantly altered the sentencing structure for many of Ohio‘s most serious felonies by implementing an indefinite sentencing system for those non-life felonies of the first and second degree, committed on or after the effective date. State v. Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1, quoting The Ohio Criminal Sentencing Commission, SB 201-The Reagan Tokes Law Indefinite Sentencing Quick Reference Guide, July 2019 and citing
{¶10} Moreover, the Reagan Tokes Law establishes a presumptive-release date at the end of the offender‘s minimum prison term imposed.
(1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply:
(a) During the offender‘s incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated.
(b) The offender‘s behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society.
(2) Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the date of the hearing.
(3) At the time of the hearing, the offender is classified by the department as a security level three, four, or five, or at a higher security level.
Constitutionality Analysis
{¶11} Hacker argues that the presumptive-release provisions of
{¶12} We review the determination of a statute‘s constitutionality de novo. State v. Hudson, 3d Dist. Marion, 2013-Ohio-647, ¶ 27, citing Akron v. Callaway, 9th Dist. Summit No. 22018, 2005-Ohio-4095, ¶ 23 and Andreyko v. Cincinnati, 1st Dist. Hamilton No. C-020606, 2003-Ohio-2759, ¶ 11. De novo review is independent, without deference to the lower court‘s decision. Id., citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).
{¶13} It is difficult to prove that a statute is unconstitutional. State v. Stoffer, 2d Dist. Montgomery No. 26268, 2015-Ohio-352, ¶ 8, quoting Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 25. All statutes have a strong presumption of constitutionality. * * * Before a court may declare unconstitutional an enactment of the legislative branch, it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible. Id., quoting Arbino at ¶ 25, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus. [I]f at all possible, statutes must be construed in conformity with the Ohio and United States Constitutions. State v. Collier, 62 Ohio St.3d 267, 269 (1991), citing State v. Tanner, 15 Ohio St.3d 1 (1984) and
{¶14} A statute may be challenged as unconstitutional on the basis that it is invalid on its face or as applied to a particular set of facts. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 17. The distinction between
{¶15} A facial challenge alleges that a statute, ordinance, or administrative rule, on its face and under all circumstances, has no rational relationship to a legitimate governmental purpose. Wymsylo at ¶ 21, citing Jaylin Invest., Inc. v. Moreland, 107 Ohio St.3d 339, 2006-Ohio-4, ¶ 11. Facial challenges to the constitutionality of a statute are the most difficult to mount successfully, since the challenger must establish that no set of circumstances exists under which the act would be valid. Id., citing United States v. Salerno, 481 U.S. 739, 745 (1987). If a statute is unconstitutional on its face, the statute may not be enforced under any circumstances. Id. When determining whether a law is facially invalid, a court must be careful not to exceed the statute‘s actual language and speculate about hypothetical or imaginary cases. Id., citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008).
{¶16} In an as-applied challenge, the challenger contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, [is] unconstitutional. Lowe at ¶ 17, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011 (1992) (Scalia, J., dissenting). The practical impact of holding that a statute is unconstitutional as applied to the challenger is to prevent its future application in a similar context, but not to render it utterly inoperative. Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, ¶ 14, quoting Ada, 506 U.S. at 1011 (Scalia, J. dissenting). [W]here statutes are challenged on the ground that they are unconstitutional as applied to a particular set of facts, the party making the challenge bears the burden of presenting clear and convincing evidence of a presently existing set of facts that make the statutes unconstitutional and void when applied to those facts. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, ¶ 38 (2005), citing Belden, 143 Ohio St. 329, at paragraph six of the syllabus.
{¶17} We begin by addressing Hacker‘s argument that the presumptive-release provisions of
{¶18} Next we turn to Hacker‘s assertions that the Reagan Tokes Law violates due process and the doctrine of separation of powers. First, Hacker argues that the Reagan Tokes Law does not provide him adequate notice of the conduct that triggers ODRC to maintain the offender‘s incarceration after the expiration of the offender‘s minimum prison term and it does not provide a structure as to the hearing to rebut the presumption established under division (B). Secondly, and as it relates to the separation-of-powers doctrine, Hacker argues that Reagan Tokes Law is unconstitutional because it permits ODRC (rather than the trial court) to make factual determinations as to whether the offender is eligible for a reduction of the offender‘s minimum prison term (his presumptive-release date) or to maintain the offender‘s incarceration after the expiration of the offender‘s minimum prison term for a period not exceeding the offender‘s maximum prison term. His arguments are based on the holdings in State ex rel. Bray v. Russell, 89 Ohio St.3d 132 (2000) and State v. Oneal, Hamilton C.P. No. 1903 562 (Nov. 20, 2019).
{¶19} In Bray, the Supreme Court of Ohio addressed the constitutionality of
[a]s part of a prisoner‘s sentence, the parole board may punish a violation committed by the prisoner by extending the prisoner‘s stated prison term for a period of fifteen, thirty, sixty, or ninety days in accordance with this section. If a prisoner‘s stated term is extended under this section, the time by which it is so extended shall be referred to as ‘bad time.’
{¶20} The Court in Bray held, [i]n short,
{¶21} The trial court in Oneal (relying on Bray) concluded the Reagan Tokes Law is unconstitutional because it surrenders judicial powers to the executive branch. The trial court noted, [t]he conditions that the [O]DRC may consider in determining whether an offender should not be released upon the end of [his] minimum prison term may include a ‘violation of law’ which, like the bad time statute is synonymous with a criminal offense. Oneal, Hamilton C.P. No. 1903 562, at *5. Moreover, Oneal determined that Reagan Tokes Law violates procedural-due process because it does not provide for a judicial hearing prior to the extension of a prison term beyond the minimum term. Id. at *6.
{¶22} Here, Hacker‘s reliance on Bray and Oneal is flawed because there is a significant distinction between the imposition of bad time (as was permitted under
{¶23} Accordingly, we cannot conclude that Hacker has met his burden in demonstrating that the Reagan Tokes Law is unconstitutional on its face with proof beyond a reasonable doubt and thus, we cannot conclude that Hacker‘s sentence is clearly and convincingly contrary to law.
{¶24} Hacker‘s first and second assignment of error are overruled.
Financial-Sanction (Fine) Analysis
{¶25} Now, we turn to Hacker‘s argument that the trial court failed to consider his ability to pay the financial sanction imposed. We review the imposition of a financial sanction under the same standard of review as we would apply toward any other felony sentence. See State v. McCants, 1st Dist. Hamilton No. C-190143, 2020-Ohio-3441, ¶ 10, citing State v. Owen, 1st Dist. Hamilton No. C-170413, 2018-Ohio-1853, ¶ 5. An appellate court may modify or vacate a felony sentence only if we clearly and convincingly find that the record does not support the trial court‘s findings under relevant statutes or that the sentence is otherwise contrary to law. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, at ¶ 1, citing
{¶27}
{¶28} Our review is not without limitation. The Supreme Court of Ohio has previously concluded that there are limitations on an appellate court‘s decision to review and correct an error under
{¶29}
{¶30} Here, the record reveals that trial court considered Hacker‘s ability to pay, when the trial court stated that it had also considered defendant‘s written sentencing memorandum that was filed January 4, 2020. (Jan. 27, 2020 Tr. at 21); (Doc. No. 85). Importantly, contained within that sentencing memorandum is information regarding Hacker‘s long-term-employment history where he was considered a valued employee with income in the amount of $4,400 per month.5 (See Doc. No. 56). Thereafter, the trial court stated [i]n addition to this prison sentence, the defendant is also assessed a $10,000 fine. (Jan. 27, 2020 Tr. at 27); (Doc. No. 85). Thus, because the record before us is not silent as to whether the trial court considered Hacker‘s ability to pay the fine before imposing the financial sanction, the trial court could not commit plain error. See Williams at ¶ 19, quoting State v. Andrews, 1st Dist. Hamilton No. C110735, 2012-Ohio-4664, ¶ 32. While it certainly facilitates appellate review when a trial court affirmatively states on the record that it considered a criminal defendant‘s ability to pay, we cannot say that the record in this case does not meet the threshold of
{¶31} For these reasons, Hacker‘s third assignment of error is overruled.
{¶32} Having found no error prejudicial to the appellant herein in the particulars
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr