[Cite as State v. Leet,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28670 : v. : Trial Court Case No. 2019-CR-1568 : RICHARD B. LEET : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 25th day of September, 2020.

...........

MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ADAM J. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

TUCKER, P.J. -2-

{¶ 1} Defendant-appellant Richard B. Leet appeals from his conviction for

kidnapping and grand theft. For the reasons set forth below, we affirm.

I. Facts and Procedural History

{¶ 2} In May 2019, Jasmine Heath was at a gas station in Dayton. While Heath

was at the window paying for her gas, Leet entered her vehicle and drove away. A six-

week old infant whom Heath was babysitting was in the car. Eventually, Leet abandoned

the vehicle with the child in it. When police located the vehicle, they found the infant

unharmed. However, there was significant damage to the vehicle. Leet was

subsequently arrested.

{¶ 3} Leet was indicted on one count of grand theft (motor vehicle), two counts of

kidnapping, one count of abduction, and one count of interference with custody.

Following plea negotiations, Leet agreed to plead guilty to one count of kidnapping (R.C.

2905.01(A)(2)), a felony of the second degree, and grand theft (R.C. 2913.02(A)), a felony

of the fourth degree. In exchange, the State agreed to dismiss the remaining counts. A

plea hearing was conducted in October 2019. Leet entered a plea of guilty and executed

a plea waiver form. The trial court accepted the plea and found Leet guilty of the two

charges.

{¶ 4} The sentencing hearing was conducted on December 3, 2019. The trial

court sentenced Leet to a term of five to seven and one-half years in prison for

kidnapping.1 The court further sentenced Leet to a term of 18 months in prison for grand

1 This sentence was imposed in accord with the Reagan Tokes Law (S.B. 201), which is discussed below. -3-

theft. The two sentences were ordered to be served concurrently.

{¶ 5} Leet appeals.

II. Constitutionality of Reagan Tokes Law

{¶ 6} The sole assignment of error asserted by Leet states as follows:

THE SENTENCE IMPOSED UPON MR. LEET IS UNCONSTITUTIONAL

AS THE REAGAN TOKES LAW CLEARLY VIOLATES THE SEPARATION

OF POWERS DOCTRINE OF THE UNITED STATES CONSTITUTION

AND THE OHIO CONSTITUTION, AND STRIPS INDIVIDUALS OF THEIR

RIGHT TO DUE PROCESS.

{¶ 7} Leet contends the newly-enacted statutory sentencing scheme established

by the Reagan Tokes Law is unconstitutional. He thus asserts his sentence imposed

thereunder must be vacated.

{¶ 8} The Reagan Tokes Law (S.B. 201) was enacted in 2018 and became

effective on March 22, 2019. R.C. 2901.011. Under the law, qualifying first- and

second-degree felonies committed on or after March 22, 2019 are now subject to the

imposition of indefinite sentences. The law specifies that these indefinite terms will

consist of a minimum term selected by the sentencing judge from a range of terms set

forth in R.C. 2929.14(A) and a maximum term determined by formulas set forth in R.C.

2929.144.

{¶ 9} Additionally, the law establishes a presumptive release date at the end of the

minimum term. R.C. 2967.271(B). However, the Ohio Department of Rehabilitation

and Correction (ODRC) may rebut that presumption, resulting in the offender remaining -4-

in prison until the completion of the maximum term imposed by the sentencing judge.

R.C. 2967.271(C). In order to rebut the presumption, the ODRC must conduct a hearing

and determine whether any of the following factors are applicable:

(1) During the offender's incarceration, the offender committed institutional

rule infractions that involved compromising the security of a state

correctional institution, compromising the safety of the staff of a state

correctional institution or its inmates, or physical harm or the threat of

physical harm to the staff of a state correctional institution or its inmates, or

committed a violation of law that was not prosecuted, and the infractions or

violations demonstrate that the offender has not been rehabilitated [and]

[t]he offender's behavior while incarcerated, including, but not limited to the

infractions and violations specified in division (C)(1)(a) of this section,

demonstrate that the offender continues to pose a threat to society.

(2) Regardless of the security level in which the offender is classified at the

time of the hearing, the offender has been placed by the department in

extended restrictive housing at any time within the year preceding the date

of the hearing.

(3) At the time of the hearing, the offender is classified by the department

as a security level three, four, or five, or at a higher security level.

R.C. 2967.271(C)(1), (2) and (3).

{¶ 10} As with any statute enacted by the General Assembly, the Reagan Tokes

Law is entitled to a “strong presumption of constitutionality.” State v. Romage,

,

,

. Thus, “if at all possible, statutes must be -5-

construed in conformity with the Ohio and the United States Constitutions.” State v.

Collier,

,

(1991). A party challenging the

constitutionality of a statute bears the burden of proving that it is unconstitutional beyond

a reasonable doubt. State v. Bloomer,

,

,

, citing State v. Ferguson,

,

,

.

{¶ 11} Leet first claims a violation of the separation of powers doctrine.

Specifically, he argues the law is unconstitutional because it permits the ODRC, rather

than a trial court, to make the factual determination whether a defendant’s prison term will

extend beyond the presumptive minimum term. His argument is based upon the

holdings in State ex rel. Bray v. Russell,

,

(2000) and

State v. Oneal, Hamilton C.P. No. 1903562 (Nov. 20, 2019).

{¶ 12} In Bray, the Ohio Supreme Court addressed the constitutionality of R.C.

2967.11 (which has since been repealed). That statute stated, in pertinent part, that “[a]s

part of a prisoner’s sentence, the parole board may punish a violation committed by the

prisoner by extending the prisoner’s stated prison term for a period of fifteen, thirty, sixty,

or ninety days in accordance with this section. If a prisoner’s stated term is extended

under this section, the time by which it is so extended shall be referred to as ‘bad time.’ ”

R.C. 2967.11(B). A “violation” was defined as “an act that is a criminal offense under the

law of this state or the United States, whether or not a person is prosecuted for the

commission of the offense.” R.C. 2967.11(A). Other sections in R.C. 2967.11

articulated the procedures that were followed to determine whether a “violation” (a crime)

had been committed. Bray at 135. -6-

{¶ 13} The Supreme Court held, “[i]n short, R.C. 2967.11(C), (D), and (E) enable[d]

the executive branch to prosecute an inmate for a crime, to determine whether a crime

[had] been committed, and to impose a sentence for that crime.” Id. The court held the

statute improperly permitted the executive branch to act “as judge, prosecutor, and jury

* * * [and thereby] intrude[d] well beyond the defined role of the executive branch as set

forth in our Constitution.” Id. Thus, the Court found the statute unconstitutional

because it violated the separation of powers doctrine. Id. at 136.

{¶ 14} Relying on the reasoning in Bray, the trial court in Oneal concluded the

Reagan Tokes legislation is unconstitutional because it likewise cedes judicial power to

the executive branch. The trial court noted, “[t]he conditions that the [ODRC] may

consider in determining whether an offender should not be released upon the end of [his]

minimum prison term may include a ‘violation of law’ ” which, like the bad time statute, “is

synonymous with a criminal offense.” Oneal, Hamilton C.P. No. 1903562, *5.

{¶ 15} Leet’s reliance upon Bray and Oneal is misplaced because there is a

significant distinction between the imposition of “bad time” as R.C. 2967.11 allowed and

the Reagan Tokes Law. R.C. 2967.11 authorized the parole board to sentence a

defendant to an additional prison term beyond that which had been imposed by the trial

court. In Bray, the defendant had served the entirety of the definite sentence imposed

by the trial court; the parole board then tacked an additional prison term onto the

defendant’s sentence. In contrast, under Reagan Tokes, the executive branch cannot

keep a defendant in prison beyond the maximum sentence imposed by the trial court. In

short, Reagan Tokes does not allow the ODRC to lengthen a defendant’s sentence

beyond the maximum sentence imposed by the trial court. We thus conclude that Bray -7-

and Oneal do not compel the conclusion that the Reagan Tokes Law violates the

separation of powers doctrine.

{¶ 16} Leet next raises several issues which he contends demonstrate the Reagan

Tokes Law violates his right to due process. First, he complains the law permits him to

face sentencing without the assistance of counsel. He further claims the law permits him

to be sentenced for crimes he has not committed. Next, he argues the Reagan Tokes

Law prevents the trial court from properly advising him of the possible consequences of

his sentence. Finally, he asserts the law will result in a drastic increase in prison

populations, resulting in inhumane conditions for prisoners.

{¶ 17} Turning to the first two arguments, we note they are based upon Leet’s

assertion that the ODRC can extend his sentence past the original sentence imposed by

the trial court. The statute, as already discussed, provides that a defendant must be

released no later than the expiration of the maximum sentence imposed by the trial court.

Further, requiring a defendant to remain in prison beyond the presumptive minimum term

is akin to the decision to grant or deny parole, which in Ohio is an executive function that

does not involve the judiciary. See Woods v. Telb,

,

,

. Simply put, if Leet commits rule infractions or crimes while in prison,

he may be required to serve the entire sentence already imposed by the trial court. This

possibility does not implicate the right to counsel, and it does not support the conclusion

that a defendant can be “sentenced” for crimes he has yet to commit.

{¶ 18} Leet next asserts the trial court could not fully advise him of the

consequences of his sentence because the ODRC has not “established a proper

procedure for how and when they will increase an individual’s incarceration time.” This -8-

argument lacks merit.

{¶ 19} We very recently stated the following regarding whether the Reagan Tokes

Law comports with due process:

“[T]he fundamental requisite of due process of law is the opportunity to be

heard 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 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 and an opportunity to be heard

before more than the minimum may be required.”

State v. Ferguson, 2d Dist. Montgomery No. 28644,

, quoting

Woods at 513, citing Goldberg v. Kelly,

,

,

(1970). We continue to adhere to the conclusion that Reagan Tokes does not facially

violate a defendant’s right to procedural due process.

{¶ 20} Further, the trial court’s manner of conducting the plea hearing satisfied due

process. Leet was advised he was subject to an indefinite term of imprisonment, but that

the presumptive release date was the 5-year minimum term, with the possibility of early

release for good behavior. Leet was also informed that if he violated one or more prison

rules or if he committed a criminal offense while in prison, this conduct could be used to

rebut the presumptive 5-year minimum term. Leet was finally informed that if the

presumptive minimum term were rebutted, he would be required to serve the maximum

7 1/2 year prison term. -9-

{¶ 21} In order to satisfy due process, a defendant’s guilty plea must be knowing,

intelligent, and voluntary. Boykin v. Alabama,

,

,

(1969); State v. Nero,

,

(1990). A

trial court’s compliance with Crim.R. 11 “ensures that a plea meets this constitutional

mandate.” State v. Thompson, 2d Dist. Montgomery No. 28308,

,

citing State v. Cole, 2d Dist. Montgomery No. 26122,

. Leet’s due

process argument implicates Crim.R. 11(C)(2)(a) which, among other things, requires the

trial court at the plea hearing to determine the defendant’s understanding of the maximum

penalty involved. The trial court’s careful advisement of the maximum penalty Leet faced

under Reagan Tokes, and Leet’s acknowledgement that he understood the maximum

penalty discussion, more than satisfied due process.

{¶ 22} Leet finally asserts that, as a result of Reagan Tokes, prison populations

will increase, resulting in overcrowded conditions. This is pure speculation not supported

by the record. Given this, no further discussion is needed.

{¶ 23} The sole assignment of error is overruled.

III. Conclusion

{¶ 24} The judgment of the trial court is affirmed.

.............

DONOVAN, J. and FROELICH, J., concur. -10-

Copies sent to:

Mathias H. Heck, Jr. Jamie J. Rizzo Adam J. Arnold Hon. Gerald Parker