STATE OF OHIO v. MICHAEL KEITH
Appellate Case No. 28805
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
February 26, 2021
[Cite as State v. Keith, 2021-Ohio-518.]
Triаl Court Case No. 2020-CR-108 (Criminal Appeal from Common Pleas Court)
JEFFERY S. REZABEK, Atty. Reg. No. 0069117, 111 West First Street, Suite 1150, Dayton, Ohio 45402 Attorney for Defendant-Appellant
OPINION
Rendered on the 26th day of February, 2021.
DONOVAN, J.
{¶ 2} The State of Ohio‘s assignment of error is as follows:
THE REAGAN TOKES ACT, CODIFIED IN
R.C. 2929.144 AND INSTITUTING A VERSION OF INDETERMINATE SENTENCING, DOES NOT VIOLATE SEPARATION OF POWERS, NOR IS IT OTHERWISE UNCONSTITUTIONAL.
{¶ 3} The State asserts that, because Keith was convicted of a qualifying second-degree felony under the RTA and was sentenced to the agreed minimum term of two years in prison,
{¶ 4} Citing State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶ 23, the State points out that this Court has already decided that the RTA does not violate the separation of powers doctrine. The State argues that, pursuant to the RTA, because the minimum term of Keith‘s sentence was two yeаrs,
{¶ 5} Keith responds that the RTA doеs violate the separation of powers doctrine and is otherwise unconstitutional. Specifically, he argues that, under the RTA, qualifying first- and second-degree felonies are sentenced under indefinite sentencing schemes, whereby the Ohio Department of Rehabilitation and Correction (ODRC) “makes the decision as to whether the offender committed a new crime, and may be held in custody until the maximum term of sentencing.” He argues that his sentenсe was imposed pursuant to a negotiated plea agreement, whereby he would receive an agreed minimum prison sentence of two years, and the trial court, in its discretion, properly imposed the two-year agreed-upon prison term, “opting not to impose an indefinite term of imprisonment.” According to Keith, the portions of the RTA which would allow the ODRC to “administratively extend” his prison term beyond the presumptive minimum prison term violate the United States and Ohio Constitutions, because they place sentencing discretion in the hands of the ODRC rather than the trial court.
{¶ 6} Keith further asserts that, because
{¶ 7}
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 sеction 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 thе 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.
{¶ 8}
{¶ 9} As this Court has noted, the RTA introduced indefinite sentencing for first and second-degree felonies committed after March 22, 2019. See
Under the Reagan Tokes Act, a trial court decides the minimum and maximum terms of a defendant‘s sentence. When the minimum term expires, there is a presumption that the offender shall be released. However, ODRC may rebut the presumption and hold a prisoner in custody up to the maximum term after holding a hearing. See
R.C. 2967.271(B) -(D). The statutе contains factors that apply relating to an offender‘s conduct while in prison. SeeR.C. 2967.271(C) . In addition, the statute also allows ODRC to recommend tо the court that an offender‘s minimum sentence be reduced, based on the offender‘s “exceptional conduct while incarcerated оr the offender‘s adjustment to incarceration.”R.C. 2967.271(F)(1) .
Sinkhorn at ¶ 30.
{¶ 10} This Court has further stated:
* * * We recently upheld the constitutionality of the Reagan Tokes Act. See State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153. In Ferguson, we concluded thаt the Act does not violate the separation-of-powers doctrine. We reasoned that the Act‘s scheme is consistent with established Ohio Suрreme Court authority, which has held that “when the power to sanction is delegated to the executive branch, a separation-of-powers problem is avoided if the sanction is originally imposed by a court and included in its sentence.” Id. at ¶ 23, citing Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-20. (Other citation omitted.)
{¶ 11} Regarding due process, we further held in Ferguson as follows:
[T]he fundamental requisite of due process of law is the opportunity to be heard in a meaningful time and in a meaningful manner.” * * * The Reagan Tokes Law satisfies these requirements. The Law states that, in order to rebut the presumption of the minimum term, the DRC [Department of Rehabilitation and Correction] must make a particular statutory determination “at a hearing.”
R.C. 2967.271(C) and (D). The Law does not give the DRC unfettered discretion to require an offender to serve more than the minimum term. And it affords an offender notice аnd an opportunity to be heard before more than the minimum may be required.
Ferguson at ¶ 25.
{¶ 12} Other cases from our district have also upheld the constitutionality of thе Reagan Tokes Act. See State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592. See also State v. Wallace, 2d Dist. Clark No. 2020-CA-3, 2020-Ohio-5109, ¶ 14 (“We continue to adhere to our conclusion that the Reagan Tokes Law does not violate the separation-of-powers doctrine or a defendant‘s right to procedural due process.“).
{¶ 13} Consistent with the above decisions by this Court, we hereby sustain thе State‘s assignment of error, reverse the trial court‘s judgment with respect to its sentence only, and remand the matter to the trial court to resentence Keith in accordance with the Reagan Tokes Act.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Jeffery S. Rezabek
Steven K. Dankof