State v. ReedState v. Reed
Case Information
*1
[Cite as
State v. Reed
,
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-20-16 v.
BRIAN ANDREW REED, O P I N I O N DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2019-CR-0243 Judgment Affirmed
Date of Decision: May 10, 2021 APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee
SHAW, J.
{¶1}
Defendant-appellant, Brian A. Reed (“Reed”), appeals the July 15, 2020
judgment of the Union County Court of Common Pleas, journalizing his conviction
after pleading guilty to three counts of second-degree felony burglary, one count of
third-degree felony identity fraud, and one count of fourth-degree felony grand theft,
and sentencing him to an aggregate indefinite prison term of ten to thirteen years.
On appeal, Reed argues that the trial court failed to adequately consider the purposes
and principles of felony sentencing under
Relevant Facts and Procedural History On October 10, 2019, the Union County Grand Jury returned a four-
count indictment against Reed alleging that he committed the offenses of Counts 1
through 3: burglary, in violation of
enter and exit a Honda of America Manufacturing plant located in Union County,
Ohio, at least twenty-three times over the course of September 16, 17, and 23, 2019,
by using the employee badge belonging to his girlfriend to gain access to the
building. Reed was not employed by Honda, but had been formerly employed by a
subcontractor to work on Honda’s production line. On the video footage, Reed
could be seen leaving the facility with several items from the plant in a black duffle
bag. Honda subsequently reported numerous air impact/pneumatic tools missing.
Six of these missing tools were recovered from the residence where Reed lived with
his grandmother. The items were found in a black duffle bag labeled with the name
“Brian Reed.” Reed’s father also reported that Reed had attempted to sell some of
the air impact/pneumatic tools to the employees at his father’s place of business
while his father was not there. The employees declined to purchase the stolen items.
On November 27, 2019, the prosecution moved to consolidate the
instant case with a superseding indictment filed in another case involving Reed and
the theft of air bag assemblies from Honda that were discovered at Reed’s
grandmother’s residence. The trial court granted the motion to consolidate the
cases, listing an additional count alleging that Reed committed the offense of grand
theft in violation of
{¶6} On May 8, 2020, the prosecution filed a restitution report compiled by Honda, indicating that Honda requested $38,274.74 in restitution for the stolen items. On July 15, 2020, Reed appeared for sentencing. Reed’s counsel
argued for the imposition of a sentence of less than five years in prison, noting that Reed suffered from drug and alcohol addiction, Reed’s showing of remorse, and asserting that Honda did not suffer serious economic harm by virtue of it being a large company. The prosecution argued for a longer sentence to be imposed upon Reed, noting that Reed had a long criminal history, including that he was on community control when he committed the underlying offenses and that at the time of sentencing he was serving time on another offense out of a neighboring county. The prosecution also claimed that Reed was familiar with the plant being previously employed on the production line by a Honda subcontractor, and that in addition to the monetary loss listed in the restitution report, the efficiency of Honda’s production line was hindered for several days as a result of Reed’s conduct. The trial court imposed a prison term of six to nine years on the three second-degree felony burglary counts to run concurrent; a prison term of thirty months on the third-degree felony identity fraud count to run consecutive to the prison terms imposed for the three burglary counts; and a prison term of eighteen months on the fourth-degree felony grand theft count to run consecutive to the other four counts. The total stated prison term imposed by the trial court was an aggregate indefinite term of ten to thirteen years.
{¶9} Reed filed an appeal from this judgment, assigning error to the imposition of the trial court’s sentence. While this appeal was pending, Reed filed a Motion to Delay Decision and Reopen Briefing, requesting the opportunity to brief an additional assignment of error to this Court. We granted the motion and ordered the parties to submit supplemental briefs. Reed now appeals the trial court’s July 15, 2020 Judgment Entry of
conviction and sentence, asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR NO. 1
APPELLANT’S SENTENCE IS CONTRARY TO LAW AND AN ABUSE OF DISCRETION BECAUSE THE TRIAL COURT FAILED TO CONSIDER AND PROPERLY WEIGH THE PURPOSE AND PRINCIPLES OF SENTENCING ALONG WITH THE SENTENCING FACTORS FOUND IN OHIO REVISED CODE SECTIONS 2929.11 AND 2929.12.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO AN INDEFINITE TERM OF PRISON ON EACH OF THE THREE BURGLARY COUNTS, AS BURGLARY IS NOT A QUALIFYING FELONY UNDER THE REGAN TOKES LAW.
First Assignment of Error
In his first assignment of error, Reed claims that the trial court failed
to adequately consider the purposes and principles of sentencing and failed to
properly apply the sentencing factors set forth in
Standard of Review
Under
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.”
State v. Marcum
,
Relevant Authority “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give
its reasons for imposing maximum or more than [a] minimum sentence[ ].”
State v.
White
, 3d Dist. Marion No. 9-19-32,
guided by the overriding purposes of felony sentencing: “to protect the public from
future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources.”
Discussion In this case, Reed was convicted of three counts of burglary in
violation of
the record clearly established the trial court conducted an analysis of these factors both at the sentencing hearing and in its judgment entry of sentence. Rather, Reed simply disagrees with the trial court’s application of these factors to the facts and circumstances of his case.
Appellate Review of
trial court in this case are within the statutory range and that the trial court
considered the statutory factors in
Second Assignment of Error In his second assignment of error, Reed claims that the trial court was
not authorized to impose an indefinite prison term for his three, second-degree
felony burglary convictions because they are not qualifying felonies as defined by
the Regan Tokes Law. On this basis, Reed argues that the indefinite sentencing
provisions of the Reagan Tokes Law do not apply to his burglary
convictions.
[2]
Thus, Reed contends that the trial court’s sentence imposing a six to
nine-year indefinite prison term for each burglary conviction is contrary to law.
On appeal, Reed primarily relies upon
The amendments to sections 109.42, 121.22, 149.43, 2903.06, 2903.08, 2903.11, 2903.12, 2905.01, 2905.32, 2907.02, 2907.03, 2907.05, 2907.07, 2919.22, 2919.25, 2921.321, 2921.36, 2923.132, 2925.01, 2925.02, 2925.03, 2925.04, 2925.041, 2925.11, 2929.01, 2929.14, 2929.142, 2929.15, 2929.19, 2929.191, 2929.20, 2929.61, 2930.16, 2943.032, 2953.08, 2967.01, 2967.021, 2967.03, 2967.13, 2967.19, 2967.191, 2967.193, 2967.26, 2967.28, 2971.03, 3719.99, 5120.021, 5120.53, 5120.66, and 5120.80 and the enactment ofsections 2901.011 , 2929.144, 2967.271, and 5120.038 of the Revised Code by S.B. 201 of the 132nd general assembly constitute the Reagan Tokes Law.
(Emphasis added). Reed claims that only the amended statutes listed in
second degree’ means a felony of the first or second degree
committed on or after
the effective date of this section
.”
amended by the Reagan Tokes Law, reinforces the definition of a “qualifying felony
of the first or second degree” in
For a felony of the first 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 three, four, five, six, seven, eight, nine, ten, or eleven years and a maximum term that is determined pursuant tosection 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.
(Emphasis added).
Based on the foregoing, we find Reed’s reliance upon
to be misplaced, as Reed fails to consider the other statutes that make up the Reagan
Tokes Law. It is apparent that
Judgment Affirmed WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
Notes
[1] Because Jones was decided after the parties submitted their appellate briefs in this case, neither party has had the opportunity to address its applicability. However, Jones “does not change the law” but instead “clarifies existing law and precedents.” State v. Roberts , 5th Dist. Richland No. 2020 CA 0035, 2021-Ohio- 90, ¶ 81, fn. 2. Therefore, we elect to apply Jones to the instant case without the benefit of supplemental briefing.
[2] Regan Tokes Law provides that a court imposing a non-life imprisonment term for certain first and second-
degree felonies committed after the law’s March 22, 2019 effective date, defined as a qualifying felony, must
impose a minimum prison term which may be extended by one-half the minimum term due to institutional
infractions as determined by the Ohio Department of Corrections.
See State v. Acosta
, 6th Lucas Nos. L-20-
1068, L-20-1069,