State v. ScottState v. Scott
Mandy J. Gwirtz, Gwirtz Law, LLC, 20050 Lakeshore Boulevard, Euclid, OH 44123 (For Defendant-Appellant).
EUGENE A. LUCCI, J.
{1} Appellant, Matthew Larry Scott, appeals from the judgment of the Trumbull County Court of Common Pleas, sentencing him to serve an indefinite prison term of four to six years. Appellant challenges the trial court‘s imposition of the prison term as well as the constitutionality of Ohio‘s indefinite sentencing statutory scheme, i.e., the Reagan Tokes Act. For the reasons discussed in this opinion, we affirm the trial court.
{2} Appellant was indicted on two counts of rape, in violation of
{3} Appellant assigns five errors. Because the initial four are related, we shall address them together. They provide:
{4} “[1.] The defendant-appellant‘s indeterminate prison sentence of four to six years that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, must be reversed as the Reagan Tokes Act is unconstitutionally void for vagueness.
{5} “[2.] The defendant-appellant‘s indeterminate prison sentence of four to six years that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, must be reversed as the Reagan Tokes Act unconstitutionally violates the doctrine of separation of powers.
{6} “[3.] The defendant-appellant‘s indeterminate prison sentence of four to six years that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, violates his constitutional right to trial by jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 5 of the Ohio Constitution.
{8} Although he does not specifically identify the nature of his constitutional challenges, because his presumptively minimum prison term has yet to be extended, they must be generally construed as facial challenges to the Reagan Tokes Act. See State v. Stenson, 2022-Ohio-2072, 190 N.E.3d 1240, ¶ 31 (6th Dist.) (the “ODRC has not sought to extend [appellant‘s] term beyond the presumptive minimum sentence *** [and his] challenge to the Reagan Tokes Law is necessarily a facial challenge“). “A facial challenge to a statute is the most difficult to bring successfully because the challenger must establish that there exists no set of circumstances under which the statute would be valid.” (Citation omitted.) Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. “The fact that a statute might operate unconstitutionally under some plausible set of circumstances is insufficient to render it wholly invalid.” (Citation omitted.) Id.
{9} With this standard in mind, appellant did not raise any objections or constitutional challenges to the statutory scheme in the trial court. “[T]he question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court.” State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986). Still, a reviewing court has “discretion to consider a forfeited
{10} This court, in State v. Reffitt, 11th Dist. Lake No. 2021-L-129, 2022-Ohio-3371, previously concluded the Reagan Tokes Act (1) is not unconstitutionally void for vagueness, id. at ¶ 29-42; (2) does not unconstitutionally violate the doctrine of separation of powers, id. at ¶ 44-50; (3) does not violate a defendant‘s right to a trial by jury, id. at ¶ 52-58; and (4) does not violate a defendant‘s right to a fair trial and due process, id. at ¶ 60-72. See also State v. Abdullah, 2022-Ohio-3977, 200 N.E. 3d 627, ¶ 62 (11th Dist.). Nevertheless, there are several points raised by appellant‘s assigned errors that were not directly covered in Reffitt. We shall therefore touch on those points to ensure a comprehensive analysis.
{11} First, under his void-for-vagueness challenge, appellant points out that, pursuant to
{12} In State v. Maddox, 168 Ohio St.3d 292, 2022-Ohio-764, 198 N.E.3d 797, ¶ 19, the Supreme Court of Ohio determined the Reagan Tokes Act is fit for facial constitutional challenges on a defendant‘s direct appeal. Id. This is so, in part, “because no additional factual development is necessary ***” to address the merits of the challenges. Id. The perils appellant identifies, however, relate to the necessity of additional facts which cannot be foreseen at this point. In other words, if and when the concerns appellant raises materialize, he may then raise a constitutional “as-applied” challenge to the statutory scheme. “An as[-]applied challenge of an infraction received under [the Rules Infraction Board] would have to be raised through a separate writ upon imposition of the infraction.” Abdullah at ¶ 62. Accordingly, any challenges to the vagueness of the enforcement of the statute by the Rules Infraction Board must be pursued through a petition for an extraordinary writ, such as mandamus or perhaps habeas corpus. Id., citing State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536, ¶ 87 (8th Dist.). In this respect, appellant‘s as-applied challenge is not yet ripe.
{13} Next appellant identifies similar language in
{14} Appellant additionally takes issue with
{15} Appellant makes two final arguments related to unconstitutional vagueness: (1) Under
{16} With respect to appellant‘s separation of powers argument, this court, in Reffitt, thoroughly examined the nuances of the challenge and rejected the same. The Reffitt panel concluded:
In Reagan Tokes sentences, the court imposes both presumptive minimum and possible maximum prison terms in its sentence. Thereafter, the ODRC determines whether the offender‘s conduct warrants more than the minimum imposed. However, the ODRC cannot exceed the judiciary‘s maximum imposed sentence. Therefore, [State ex rel.] Bray [v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000)] does “not compel the conclusion that the Reagan Tokes Law violates the separation of powers doctrine.” Id.
Reffitt, 2022-Ohio-3371, at ¶ 49; see also Abdullah, 2022-Ohio-3977, at ¶ 68; State v. Taylor, 2022-Ohio-3611, 198 N.E.3d 956, ¶ 55 (11th Dist.).
{17} Similarly, in Reffitt, this court fully addressed the trial-by-jury challenge alleged by appellant. In doing so, this court rejected the challenge and held:
Because
R.C. 2967.271 requires the trial court to impose a minimum and maximum indefinite term, the only discretion granted to the trial court is the minimum term. The court is not imposing a term greater than the maximum as prohibited under Apprendi[ v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]. Further, the court is not imposing a sentence longer than the minimum term prescribed by statute based on findings of facts in addition to those considered by the jury in Blakely[ v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)] or [State v. ]Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470]. We donot find that R.C. 2967.271(C) or (D) is unconstitutional under Apprendi or its progeny.
Reffitt at ¶ 57; see also Abdullah at ¶ 71.
{18} Finally, this court has previously and fully treated the due process argument advanced by appellant. In Reffitt, this court rejected the due process challenge, pointing out it requires an as-applied analysis. The panel determined:
Appellant‘s challenges to the Reagan Tokes Law are facial in nature and he must therefore establish that there exists no set of circumstances under which the statute would be valid. Harrold v. Collier, 107 Ohio St.3d 44 at ¶ 37. Appellant‘s arguments relating to a future hearing to rebut his presumptive release are a challenge to the due process safeguards that will be afforded in the future under
R.C. 2967.271 through a hearing to rebut his presumption of release. “The fact that a statute might operate unconstitutionally under some plausible set of circumstances is insufficient to render it wholly invalid.” Id., citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, paragraph four of the syllabus, and United States v. Salerno, 481 U.S. 739, 745. “Should the Law ultimately be applied in a manner that is unconstitutional, an offender would not be precluded from challenging the Law as applied.” State v. Stenson, 6th Dist. No. L-20-1074, 2022-Ohio-2072, 190 N.E.3d 1240, ¶ 33. (Emphasis original).
Reffitt at ¶ 67; Abdullah, 2022-Ohio-3977, at ¶ 79; Taylor, 2022-Ohio-3611, at ¶ 85.
{19} In light of the foregoing, appellant‘s first, second, third, and fourth assignments of error are without merit.
{20} Appellant‘s fifth assignment of error provides:
{21} “The individual prison terms imposed by the trial court on counts one and two were unsupported by the record with respect to the factors the court must consider pursuant to
{23}
{24} “A sentence is contrary to law when it is ‘in violation of statute or legal regulations’ ***.” Meeks at ¶ 11, quoting State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 34. Thus, “‘[a] sentence is contrary to law when it does not fall within the statutory range for the offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in
{25} Further, this court has frequently noted that “even though a trial court is required to consider the
{26} Appellant essentially argues that the record does not support the severity of his sentence. Specifically, he notes that he was young at the time of the offense, 23-years old and had matured significantly while the case was pending. After posting bond, he was gainfully employed and had no violations prior to his conviction. And, while he recognizes he had “some prior misdemeanor offenses,” he had never been convicted of a felony prior to this case.
{27} Regardless of appellant‘s attempts to justify his position on appeal, as outlined above, we cannot assess whether, under
{28} At the sentencing hearing, the trial court stated:
The problem in this case is you were drinking and so was the victim in the case and it led to behavior that caused serious, serious psychological harm. And while some of the principles in sentencing are whether or not you can be rehabilitated, also some are you don‘t want to demean the seriousness of the offense, and your conduct here involved some very outrageous injuries to the victim.
The court will incorporate the pre-sentence investigation into this sentencing hearing and I‘m going to find that the presumption in favor of prison has not been rebutted because the instant offense had serious consequences and the victim suffered physical and great psychological harm and the crime here was facilitated by drinking to excess along with a combination of drug consumption.
The defendant also has a history of violent offenses not on a scale that is so severe, but it still demonstrates some violent history on your part involving domestic violence. And also you had an incident while you were incarcerated that involved some violence.
{29} This court has frequently noted that even though a trial court is required to consider the
{30} Furthermore, in its judgment entry, the trial court stated it had considered the record, oral statements and any victim impact statements, as well as the purposes and principles of felony sentencing under
{32} For the reasons discussed in this opinion, the judgment of the Trumbull County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.