State v. ShepardState v. Shepard
{¶ 1} This casе is before the court on appeal by appellant, Angela Shepard, from the judgment of the Lucas County Court of Common Pleas journalized on March 20, 2020. For the reasons that follow, we affirm.
1. The sentencing provisions of Senate Bill 201, otherwise known as the Reagan Tokes Act, are unconstitutional.
2. Appellant‘s sentence does not achieve the purposes and principles of sentencing.
Background
{¶ 2} On September 27, 2019, appellant was charged by way of indictment with threе counts of rape, in violation of
{¶ 3} On February 10, 2020, appellant entered a plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to one amended count of rape, in violation of
{¶ 4} Appellant was sentenced on March 16, 2020. With respect to Count 1, pursuant to Am.Sub.S.B. No. 201, otherwise known as the Reagan Tokes Law, the trial
{¶ 5} Appellant has appealed her sentence to this court.
First Assignment of Error
{¶ 6} In her first assignment of error, appellant argues that the Reagan Tokes Law is unсonstitutional as it violates her right to trial by jury, her right to due process, and the separations of power doctrine.
{¶ 7} The Reagan Tokes Law “‘significantly alterеd 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 [March 22, 2019].” State v. Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1.
The [Reagan Tokes] Law specifies that the indefinite prison terms will consist of a minimum term, selected by the sentencing judge from а range of terms set forth in
R.C. 2929.14(A) , and a maximum term determined by formulas set forth inR.C. 2929.144 . The [l]aw establishes a presumptiverelease date from prison at the end of the minimum term, but the Ohio Department of Rehabilitation and Correction (“ODRC“) may rebut the presumption if it determines, after a hearing, that one or more factors apply, including that the offender‘s conduct while incarcerated demonstrates that hе continues to pose a threat to society. R.C. 2967.271(B) ,(C)(1) ,(2) and(3) . If ODRC rebuts the presumption, the offender may remain incarcerated for a reasonable, additional period of time, determined by ODRC, but not to exceed the offender‘s maximum prison term.R.C. 2967.271(D) . State v. Sawyer, 165 N.E.3d 844, 2020-Ohio-6980, ¶ 18 (6th Dist.).
{¶ 8} Appellant specifically takes issue with the portions of the Reagan Tokes Law which allow the ODRC to administratively extend her incarceration beyond her presumptive minimum prison term of ten years up to a maximum term of 15 years. However, appellant has not yet served her minimum sentence and has not yet been subject to the provisions of the Reagan Tokes Law to which she objеcts.
{¶ 9} The state has argued, inter alia, that the concerns appellant has raised are merely hypothetical, and thus, the court need not address the constitutional challenges at this time. Appellant counters that the issue is ripe for review because she is currently serving her prison sentence and therеfore, all of her actions and behaviors are being judged and could later be used against her to extend her sentence.
[T]his court has recently held that thе constitutionality of the Reagan Tokes law is not ripe for review where the appellant‘s imprisonment term has not yet been extended by the ODRC. State v. Velliquette, 6th Dist. Lucas No. L-19-1232, 2020-Ohio-4855; State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2020-Ohio-4702. In Velliquette, we explаined that the appellant‘s arguments as to the “possibility” of an extended prison term may never be realized. Id. at ¶ 29. Velliquette and the ripeness issue is currently before the Suрreme Court of Ohio. See State v. Velliquette, 161 Ohio St.3d 1415, 2021-Ohio-120, 161 N.E.3d 708.
Id. at ¶ 10. Accordingly, we find appellant‘s first assignment of error not well-taken.
Second Assignment of Error
{¶ 11} In her second assignment of error, appellant contends that her sentence was excessive and did not achieve the purposes and principles of sentencing. She maintains that her sentence does not effectively rehabilitate her using the minimum sanctions necessary to accomplish that purpose without imposing an unnecessary burden on state and local resources, as required by
{¶ 12} We review felony sentences pursuant to
{¶ 13} We have previously reviewed felony sentences to determine whether the trial court properly considered the purposes of sentencing set forth in
{¶ 14} We have found that Jones precludes this court from reviewing a felony sentence based solely upon an appellant‘s contention that the trial court did not properly consider the factors identified in
{¶ 15} The judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J. _______________________________ JUDGE
Gene A. Zmuda, P.J. _______________________________ JUDGE
Myron C. Duhart, J. _______________________________ JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.