2021-Ohio-1337
Ohio Ct. App. 2d
2021

STATE OF OHIO v. MICHAEL D. ROSS

Appellate Case No. 28875

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

April 16, 2021

[Cite as State v. Ross, 2021-Ohio-1337.]

EPLEY, J.

Trial Court Case No. 2019-CR-2503 (Criminal Appeal from Common Pleas Court)

O P I N I O N

Rendered on the 16th day of April, 2021.

MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant

JOHN A. FISCHER, Atty. Reg. No. 0068346, 70 Birch Alley, Suite 240, Dayton, Ohio 45440 Attorney for Defendant-Appellee

{¶ 1} In March 2020, Defendant-Appellee Michael Ross was convicted of felonious assault with an accompanying firearm specification. The trial court sentenced him to a definite term of two-years in prison on the felonious assault charge and an additional three-year term for the firearm specification, to be served consecutively and prior to the felonious assault term. The State has appealed, arguing that the two-year definite sentence imposed by the trial court violated the Reagan Tokes Act. We agree. For the following reasons, we will reverse the judgment of the trial court, and the matter will be remanded for resentencing pursuant to the Reagan Tokes Act.

I. Facts and Procedural History

{¶ 2} On March 11, 2020, Ross was charged by way of a bill of information with a single count of felonious assault and an accompanying firearm specification. As part of a negotiated plea agreement, Ross agreed to plead guilty to felonious assault in exchange for a jointly-recommended minimum sentence.

{¶ 3} Ross was sentenced on August 12, 2020. At the disposition, the trial court announced that it believed the Reagan Tokes Act (the recently-enacted statutory sentencing scheme that applies to most felonies of the first and second degree, including felonious assault) to be unconstitutional, and it sentenced Ross, instead, under the prior statutory scheme. The court reasoned that the Reagan Tokes Act violated the separation of powers between the judicial and executive branches of government.

{¶ 4} The trial court warned Ross, however, that the constitutionality of the law was an unsettled question, one that this Court had not yet decided. The trial court further cautioned that if the Reagan Tokes Act was found to be constitutional, Ross would be re-sentenced accordingly.

{¶ 5} The trial court proceeded to sentence Ross to two years in prison for felonious assault (the minimum sentence available for second-degree felonies under former R.C. 2929.14(A)(2)) instead of a term of two to three years as required by the Reagan Tokes Act, R.C. 2929.144(B)(1). In addition, the court imposed a sentence of three years for the firearm specification, which was to be served before and consecutively to the sentence for the underlying felony. All told, Ross was sentenced to a definite term of five years in prison.

{¶ 6} The State objected to the sentence at the disposition and has appealed.

II. Ross’s sentence is contrary to law

{¶ 7} The validity of Ross’s sentence and the outcome of this appeal turn on the constitutionality of the Reagan Tokes Act. First and second-degree felonies committed after March 22, 2019, which do not already carry a life-tail, fall under the umbrella of the Reagan Tokes Act. R.C. 2967.271. The law requires that the sentencing court impose an indefinite sentence with a minimum term selected by the court from the statutory range, and then an accompanying maximum term (50% of the minimum), which is determined by a statutory formula. R.C. 2929.144.

{¶ 8} The available indefinite prison terms for a single felony conviction (like this case) are as follows:

If the minimum prison term is:The maximum prison term is:
2 years3 years
3 years4.5 years
4 years6 years
5 years7.5 years
6 years9 years
7 years10.5 years
8 years12 years

{¶ 9} A key feature of the law is that “[w]hen the minimum term expires, there is a presumption that the offender shall be released. However, [the Ohio Department of Rehabilitation and Correction] may rebut the presumption and hold a prisoner in custody up to the maximum term after holding a hearing.” State v. Sinkhorn, 2d Dist. Clark No. 2019-CA-79, 2020-Ohio-5359, ¶ 30. See R.C. 2967.271(B)-(D). To rebut the presumption of release, the ODRC must determine that, among other things, the prisoner has violated prison rules or the law, the prisoner has been placed in restrictive housing in the past year, or the prisoner is classified as a security level of three or above. R.C. 2967.271(C). If the ODRC successfully rebuts the presumption of release, the prisoner remains in custody for a period of time not to exceed the maximum sentence. R.C. 2967.271(D)(1).

{¶ 10} The State argues that Ross’s two-year sentence for felonious assault cannot stand because the trial court incorrectly imposed a definite term of two years instead of the indefinite two-to-three-year term prescribed by the Reagan Tokes Act. We agree.

{¶ 11} In the months since the trial court sentenced Ross, we have opined in several cases that the Reagan Tokes Act is constitutional. See, e.g., State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; State v. Wallace, 2d Dist. Clark No. 2020-CA-3, 2020-Ohio-5109; State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592; State v. Keith, 2d Dist. Montgomery No. 28805, 2021-Ohio-518.

{¶ 12} In State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, we determined that the Act does not violate the separation of powers doctrine because its scheme is consistent with established Ohio Supreme 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.

{¶ 13} Likewise, we have held that the law does not violate a defendant’s due process rights. “[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 [Act] satisfies these requirements.” Id. at ¶ 25.

{¶ 14} We again affirm the constitutionality of the Reagan Tokes Act and conclude that Ross’s sentence is contrary to law. A sentence is contrary to law when it falls outside the statutory range for the offense or if the court does not consider the principles and purposes of sentencing in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12. State v. Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18. Here, the trial court considered the requisite factors, but failed to sentence Ross within the statutory framework set forth by the Reagan Tokes Act. Instead of imposing a sentence with a minimum term of two years and a maximum of three, the trial court simply imposed a definite two-year sentence. This disposition would have been lawful in the days before the Reagan Tokes Act was enacted, but not in August 2020, when Ross was sentenced.

{¶ 15} Because Ross’s sentence was contrary to law, we sustain the 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 Ross in accordance with the Reagan Tokes Act.

TUCKER, P. J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
John A. Fischer
Hon. Steven K. Dankof