[Cite as State v. Sawyer,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1198

Appellee Trial Court No. CR0201901823

v.

Ryan Sawyer DECISION AND JUDGMENT

Appellant Decided: December 30, 2020

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

Dan M. Weiss, for appellant.

*****

MAYLE, J.

{¶ 1} Defendant-appellant, Ryan Sawyer, appeals the September 4, 2019 judgment

of the Lucas County Court of Common Pleas, convicting him of endangering children

and sentencing him to a non-life indefinite prison term of a minimum of six years and a

maximum of nine years. For the following reasons, we affirm the trial court judgment. I. Background

{¶ 2} On July 31, 2019, Ryan Sawyer entered a plea of no contest to one count of

endangering children, a violation of R.C. 2919.22(B)(1), (E)(1), and (E)(2), a second-

degree felony. The state summarized the facts that it would have proven beyond a

reasonable doubt had the matter proceeded to trial. It stated:

* * * Ryan Sawyer, on or about the 30th day of April, 2019, in

Lucas County, Ohio, did recklessly to a child under the age of 18 abuse the

child and the violation resulted in serious physical harm to the child that’s

involved.

More specifically, Your Honor, State witnesses would have testified

to the following: On April 30th, 2019, Toledo Police responded to * * *

Raymer Street, here in Toledo, Lucas County, Ohio. The caller, [A.O.]

stated that her boyfriend, Ryan Sawyer, assaulted her two-year-old son with

the initials RK. [A.O.] stated that she put her son to bed at approximately

8:00 p.m. the night before. She then woke in the early morning hours and

found Ryan Sawyer holding her son.

She would have further testified that she observed RK to be cold,

shaking, bleeding from his head. When [A.O.] questioned Mr. Sawyer

about the injuries and stated she was calling the police, Mr. Sawyer fled the

location. He was apprehended a short time later by Toledo Police and he

still had the child’s blood on his hands.

2. The child was immediately taken to St. Charles Hospital. It was

determined his injuries were too serious for St. Charles and he was

transferred to St. Vincent’s Hospital by way of ambulance. The child was

admitted to the pediatric intensive care unit and stayed for a period of three

days due to a possible brain bleed, skull fracture, and damage to his liver.

Medical records and photos would have shown the following

injuries: A skull fracture, bruising to the face and head, bleeding on the

back of his head, bruising on his back, notably a bruise in the shape of a

hand print, and bruising on his thighs.

During an interview with the Detective Jeff Sharp of the Toledo

Police Department, Sawyer signed a waiver of rights. After initially stating

that he did not know how the child got his injuries, he then told Detective

Sharp he became frustrated with the child because the child would not stop

crying. He stated he threw the child onto the couch and believed that the

child hit his head on part of the wood on the couch.

{¶ 3} The trial court entered a finding of guilty, ordered a pre-sentence

investigation, and continued the matter for sentencing on August 27, 2019. At the

sentencing hearing, the court imposed a non-life indefinite prison term of a minimum of

six years and a maximum of nine years, three years’ mandatory postrelease control, and

various costs. Sawyer’s sentence was memorialized in a judgment journalized on

September 4, 2019.

3. {¶ 4} Sawyer appealed. He assigns the following errors for our review:

I. THE TRIAL COURT ERRED WHEN IT FOUND THE STATE

OF OHIO PRESENTED FACTS SUFFICIENT TO MEET THE

ELEMENTS OF O.R.C. 2919.22(B)(1), (E)(1), AND (E)(2)(d).

II. APPELLANT’S SENTENCE PURSUANT TO SENATE BILL

201 (“S.B. 201”) AND O.R.C. 2929.144 VIOLATES THE

CONSTITUTIONAL DOCTRINE OF THE SEPARATION OF

POWERS[.]

III. THE TRIAL COURT’S JUDGMENT VIOLATES THE

APPELLANT’S DUE PROCESS RIGHTS PURSUANT TO THE FIFTH

AND FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION[.]

II. Law and Analysis

{¶ 5} Sawyer argues in his first assignment of error that the state in its explanation

of the facts did not provide sufficient evidence of each of the elements required to sustain

a conviction of child endangering. In his second assignment of error, he argues that the

statutes under which he was sentenced violate the separation-of-powers doctrine. And in

his third assignment of error, he argues that the statutes under which he was sentenced

violate his right to due process under the Fifth and Fourteenth Amendments to the U.S.

Constitution.

4. A. Sufficiency of the Evidence

{¶ 6} In his first assignment of error, Sawyer challenges the sufficiency of the

evidence. He argues that the state’s explanation of the facts of the offense failed to meet

the essential elements required for a finding of guilty on the second-degree felony charge

of endangering children. Specifically, he claims that the trial court failed to show that the

victim suffered “serious physical harm.”

{¶ 7} Whether there is sufficient evidence to support a conviction is a question of

law. State v. Thompkins,

,

(1997). In reviewing a

challenge to the sufficiency of evidence, “[t]he relevant inquiry is whether, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.”

(Internal citations omitted.) State v. Smith,

,

(1997). In making that determination, the appellate court will not weigh the evidence or

assess the credibility of the witnesses. State v. Walker,

,

(1978).

{¶ 8} Under R.C. 2919.22(B), “[n]o person shall do any of the following to a child

under eighteen years of age or a mentally or physically handicapped child under twenty-

one years of age: * * * (1) Abuse the child.” “Whoever violates this section is guilty of

endangering children.” R.C. 2919.22(E)(1). A violation of R.C. 2919.22(B)(1) is a

second-degree felony if the conduct results in serious physical harm to the child involved.

R.C. 2919.22(E)(2)(d).

5. {¶ 9} R.C. 2901.01(A)(5) defines “serious physical harm” to include “(a) Any

mental illness or condition of such gravity as would normally require hospitalization or

prolonged psychiatric treatment; (b) Any physical harm that carries a substantial risk of

death; (c) Any physical harm that involves some permanent incapacity, whether partial or

total, or that involves some temporary, substantial incapacity; (d) Any physical harm that

involves some permanent disfigurement or that involves some temporary, serious

disfigurement; [or] (e) Any physical harm that involves acute pain of such duration as to

result in substantial suffering or that involves any degree of prolonged or intractable

pain.”

{¶ 10} Certainly, a skull fracture constitutes “serious physical harm” sufficient to

support a conviction of second-degree felony child endangering under R.C.

2919.22(E)(2)(d). See State v. Dean, 6th Dist. No. L-16-1301,

,

, quoting State v. Lee, 6th Dist. Lucas No. L-06-1384,

(“Where the assault causes a bone fracture, the element of serious physical harm is

met.”).

{¶ 11} The real crux of Sawyer’s argument is his position that the state’s

explanation of the facts was inaccurate. He disputes that the child: (1) was immediately

taken to the hospital; (2) suffered a fractured skull; and (3) was admitted to the hospital

for three days. He claims that the Toledo Fire Department responded to the scene and

determined that no further care was necessary, but A.O. transported the child to the

hospital anyway. He maintains that the child was transferred from St. Charles Hospital to

St. Vincent Hospital not because of the seriousness of the child’s injuries, but rather to

6. conduct further diagnostic examinations that were not available at St. Charles. He insists

that those diagnostic examinations revealed no fractures, no ongoing bleeding, and no

internal bleeding. And, he contends that the child was taken to St. Charles on April 30,

2019, was taken to St. Vincent the same day, and was discharged from St. Vincent in

good condition the following afternoon, May 1, 2019—he was not in the hospital for

three days. Sawyer cites to the child’s medical records in support of his challenge to the

state’s version of events.

{¶ 12} The state responds that the medical records are not a part of the record on

appeal, and may not be considered; Sawyer waived the right to present additional

affirmative factual allegations when he entered a plea of no contest; and the medical

records support the state’s position that the child suffered serious physical harm. We

agree with the state that the medical records cannot be considered and Sawyer waived the

right to challenge the state’s explanation of the facts.

{¶ 13} First, records that are not admitted into evidence or otherwise made part of

the trial record are not part of the record on appeal and cannot be considered. State v.

Zhovner,

,

, ¶ 12 (3d Dist.). Here, the child’s medical

records were not made part of the record and we cannot consider them. Moreover, a

“defendant who pleads no contest waives the right to present additional affirmative

factual allegations to prove that he is not guilty of the charged offense.” State ex rel.

Stern v. Mascio,

,

(1996). Because Sawyer

entered a plea of no contest, he has waived the right to challenge the accuracy of the

state’s explanation of the facts.

7. {¶ 14} Additionally, despite Sawyer’s contention to the contrary, we observe that

a “court accepting a plea of no contest in a felony case is not required to have before it a

statement of the particular conduct constituting the alleged offense.” (Internal citations

and quotations omitted.) State v. Rohda, 6th Dist. Lucas No. L-05-1278, 2006-Ohio-

6463, ¶ 21. Where a defendant pleads no contest and the indictment, information, or

complaint contains sufficient allegations to state a felony offense, “the trial court must

find the defendant guilty of the charged offense.”

. If, however, the state

“presents a statement of facts and those facts positively contradict the felony charged in

the indictment by negating an element essential to commission of the offense alleged, the

court cannot make a finding of guilt on the basis of the charges alleged in the

indictment.” (Internal citations and quotations omitted.) Rohda at

{¶ 15} Here, the indictment states that “RYAN A. SAWYER, on or about the

30TH day of APRIL, 2019, in Lucas County, Ohio, did recklessly, to a child under

eighteen years of age or a mentally or physically handicapped child under twenty-one

years of age, abuse the child, and the violation resulted in serious physical harm to the

child involved * * *.” These allegations suffice to state a violation of R.C.

2912.22(B)(1), (E)(1), and (E)(2), and the explanation of facts offered by the state did not

contradict the indictment. We, therefore, find that Sawyer’s conviction is supported by

sufficient evidence.

{¶ 16} Accordingly, we find Sawyer’s first assignment of error not well-taken.

8. B. Constitutionality of the Reagan Tokes Law

{¶ 17} In his second and third assignments of error, Sawyer argues that his

sentence is unconstitutional because the sentencing scheme under which he was

sentenced, Senate Bill 201 (“the Reagan Tokes Law” or “the Law”), violates the

separation-of-powers doctrine and his due process rights. We will address these two

assignments of error together.

{¶ 18} The Reagan Tokes Law became effective on March 22, 2019. The Law

“significantly altered the sentencing structure for many of Ohio’s most serious felonies”

by implementing an indefinite sentencing system for non-life, first and second-degree

felonies committed on or after its effective date. State v. Polley, 6th Dist. Ottawa No.

OT-19-039,

. The Law specifies that the indefinite prison

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. The Law establishes a presumptive release 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

he 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).

9. {¶ 19} This is the fourth case in which this court has been presented with a

challenge to the constitutionality of the Reagan Tokes Law. The first was State v.

Maddox, 6th Dist. Lucas No. CL-19-1253,

. There, Maddox argued

that “the presumptive release feature of R.C. 2967.271, * * * violates * * * due process of

law, and further violates the constitutional requirement of separation of powers.”

Maddox argued that the portions of the statute which allow ODRC to administratively

extend his prison term beyond the presumptive minimum prison term violate the U.S. and

Ohio Constitutions. Id. at ¶ 7. Because Maddox had “not yet been subject to the

application of these provisions, as he ha[d] not yet served his minimum term, and * * *

[had] not been denied release at the expiration of his minimum term of incarceration,” we

found that the issues he raised were not yet ripe for review. Id. at ¶ 7, 14. We dismissed

the appeal. Id. at ¶ 15.

{¶ 20} Maddox moved to certify a conflict, and on October 14, 2020, we granted

his motion. State v. Maddox, 6th Dist. Lucas No. CL-19-1253 (Oct. 14, 2020). The Ohio

Supreme Court on December 28, 2020, determined that a conflict exists between Maddox

and State v. Leet, 2d Dist. Montgomery No. 28670,

; State v. Ferguson,

2d Dist. Montgomery No. 28644,

; State v. Barnes, 2d Dist. Montgomery

No. 28613,

; and State v. Guyton, 12th Dist. Butler No. CA2019-12-203,

, and has accepted review of the following certified question:

Is the constitutionality of the provisions of the Reagan Tokes Act,

which allow the Department of Rehabilitation and Correctio[n] to

administratively extend a criminal defendant’s prison term beyond the

10. presumptive minimum term, ripe for review on direct appeal from

sentencing, or only after the defendant has served the minimum term and

been subject to extension by application of the Act?

State v. Maddox, Slip Opinion No.

.

{¶ 21} We were presented with similar arguments in State v. Velliquette, 6th Dist.

Lucas No. L-19-1232,

, -- N.E.3d -- (6th Dist.), and State v.

Montgomery, 6th Dist. Lucas No. L-19-1202,

. Both Velliquette and

Montgomery challenged the constitutionality of the Law as violating the separation of

powers doctrine and their due process rights. On the authority of Maddox, we found that

the issue of the constitutionality of potential extensions to the presumed minimum prison

term were not ripe for review. We again observed, however, that several other

jurisdictions have implicitly determined otherwise by addressing those constitutional

challenges. Accordingly, in Velliquette and Montgomery, we again certified a conflict to

the Ohio Supreme Court.

{¶ 22} Like the defendants in Maddox, Velliquette, and Montgomery, Sawyer has

not yet served his minimum term and has not been denied release at the expiration of his

minimum term of incarceration. As such, he has not yet been subject to the application of

the provisions of the Law to which he objects. We conclude, therefore, that his

constitutional challenges to the Law are not ripe for review. We dismiss his second and

third assignments of error.

{¶ 23} Section 3(B)(4), Article IV of the Ohio Constitution provides “[w]henever

the judges of a court of appeals find that a judgment upon which they have agreed is in

11. conflict with a judgment pronounced upon the same question by any other court of

appeals of the state, the judges shall certify the record of the case to the supreme court for

review and final determination.” Id. at ¶ 31. The Ohio Supreme Court set forth three

requirements which must be met in order to certify a case:

First, the certifying court must find that its judgment is in conflict

with the judgment of a court of appeals of another district and the asserted

conflict must be “upon the same question.” Second, the alleged conflict

must be on a rule of law-not facts. Third, the journal entry or opinion of the

certifying court must clearly set forth that rule of law which the certifying

court contends in in conflict with the judgment on the same question by

other district courts of appeals. Whitelock v. Gilbane Bldg. Co.,

,

(1993).

{¶ 24} As we did in Maddox, Velliquette, and Montgomery, we recognize that our

conclusion here is in conflict with decisions of the Second and Twelfth District Courts of

Appeals. See State v. Barnes, 2d Dist. Montgomery No. 28613,

, State v.

Leet, 2d Dist. Montgomery

, State v. Ferguson, 2d Dist.

Montgomery

, State v. Guyton, 12th Dist. Butler No.

CA2019-12-203,

, State v. Rodgers,

, -- N.E.3d – (12th

Dist.), and State v. Morris, 12th Dist. Butler No. CA2019-12-205,

. It is

also in conflict with the decision of the Third District Court of Appeals in State v.

Hacker,

, -- N.E.3d --, ¶ 23 (3d Dist.). We, therefore, sua sponte certify

12. a conflict to the Supreme Court of Ohio, pursuant to Article IV, Section 3(B)(4), Ohio

Constitution, on the same issue certified in Maddox, Slip Opinion No.

:

Is the constitutionality of the provisions of the Reagan Tokes Act,

which allow the Department of Rehabilitation and Corrections to

administratively extend a criminal defendant’s prison term beyond the

presumptive minimum term, ripe for review on direct appeal from

sentencing, or only after the defendant has served the minimum term and

been subject to extension by application of the Act?

III. Conclusion

{¶ 25} Sawyer’s challenge to the sufficiency of the evidence is based on his claim

that the state’s explanation of facts was inaccurate. Sawyer waived the right to challenge

the accuracy of those facts when he entered a plea of no contest. Moreover, the medical

records upon which he relies in challenging the accuracy of the facts are not part of the

record on appeal and cannot be considered by this court. Accordingly, we find his first

assignment of error not well-taken.

{¶ 26} Sawyer’s challenge to the constitutionality of S.B. 201 is not yet ripe for

review because he has not yet served his minimum sentence or been subjected to a

possible extension of that minimum sentence. Accordingly, we dismiss his second and

third assignments of error. We certify a conflict to the Ohio Supreme Court. The parties

are directed to Sup.R.Pract. 8.01 for instructions for how to proceed.

13. {¶ 27} We affirm the September 4, 2019 judgment of the Lucas County Court of

Common Pleas. Sawyer is ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE Christine E. Mayle, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE

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/.

14.