[Cite as State v. Baker,

.]

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

STATE OF OHIO : : Plaintiff-Appellant : Appellate Case No. 28782 : v. : Trial Court Case No. 2019-CR-3008 : CHRISTOPHER W. BAKER : (Criminal Appeal from : Common Pleas Court) Defendant-Appellee : :

...........

OPINION

Rendered on the 22nd day of January, 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

MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, Law Office of the Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee

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

DONOVAN, J. -2-

{¶ 1} The State of Ohio appeals from a judgment of the Montgomery County Court

of Common Pleas, which convicted Christopher Baker of one count of attempted rape (by

force) in violation of R.C. 2907.02(A)(2)/2923.02, following his guilty plea. The offense

was a felony of the second degree.. The trial court declared the Reagan Tokes Act

unconstitutional and imposed a definite sentence of two years, instead of imposing an

indeterminate sentence as required by the Act. We hereby reverse the judgment of the

trial court and remand the matter solely for resentencing pursuant to the Reagan Tokes

Act.

{¶ 2} The transcript of Baker’s sentencing hearing reflects the following exchange

regarding Baker’s sentence:

THE COURT: * * *

Now, I wanted to say a couple more things, and then I’m going to ask

you a couple of questions, Mr. Baker. At the time of your plea, the Court

advised you as follows: you were aware that you were entering a plea of

guilty in the new case. And that was on the charge of * * * attempted rape,

a felony of the second degree. You did that with the understanding that

the Court would impose the agreed minimum two-year sentence for that

charge. And that was also taking into consideration you had revocations

in matters 17CR3541 and 19CR247, that there would be a global two-year

sentence.

***

Now, the fact of the matter is - - and this is something that we

discussed at the time of your plea - - that this sentence under this new case -3-

is governed by what is known as the Reagan Tokes Act. And that has

imposed in the wisdom of the Ohio legislature indeterminate sentencing

once again. And which means, on a two-year minimum sentence, two

years would be imposed by the Court, that’s the minimum part. Then under

the Reagan Tokes Law, the indeterminate part would be half of that, which

would mean your indeterminate sentence would be two to three years.1

***

* * * That that’s imposed by the Court and under Reagan Tokes

whether you would have to do up to an additional year wouldn’t be up to

me; that would be up to the prison authorities. And that would be based

on your behavior in prison. I explained that to you at the time of your plea,

did I not?

THE DEFENDANT: Yes, sir.

THE COURT: * * * Now then, what the Court is telling you now, as

I mentioned to you and the lawyers at the time of your plea. This morning

I am holding that the Reagan Tokes sentencing scheme is unconstitutional.

1 R.C. 2929.14(A)(2)(a) provides: “For a felony of the second degree committed on or after the effective date of this amendment, the prison term shall be an indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code, except that if the section that criminalizes the conduct constituting the felony specifies a different minimum term or penalty for the offense, the specific language of that section shall control in determining the minimum term or otherwise sentencing the offender but the minimum term or sentence imposed under that specific language shall be considered for purposes of the Revised Code as if it had been imposed under this division.” R.C. 2929.144(B)(1) provides: “If the offender is being sentenced for one felony and the felony is a qualifying felony of the first or second degree, the maximum prison term shall be equal to the minimum term imposed on the offender under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code plus fifty per cent of that term.” -4-

And it’s unconstitutional in my opinion based on the separation of powers

and we’ve got two decisions in Ohio now - - at least two that I’m aware of.

State v. [Oneal], * * * out of Hamilton County Common Pleas, case number

B as in boy, 1903562. We also have a decision, State v. Tupper, * * *

Common Pleas number CR196455223 and that is out of Cuyahoga County.

The Court received a brief provided to me by my friend and lawyer

Keith Yeazel of Columbus, Ohio. His father’s picture hangs in the

courtroom, and was somebody that I admired greatly. Mr. Yeazel gave me

a brief that he filed in Columbus, Ohio in connection with the case State v.

Castellanos, * * * case number 19CR2684 before Judge Russo of the

Franklin County Common Pleas Court. I’ve found the reasoning that Mr.

Yeazel set forth in that brief to be persuasive, and of course, it relied heavily

on the two cases that I just cited.

So I’m finding the Reagan Tokes sentencing scheme

unconstitutional this morning.

***

And so I’ve done what I’ve done. I’ve done it to tee this issue up for

the Second Appellate District. * * * I think we’ve got some pretty good minds

up on the fifth floor. We’ll let them sort this out.

But I’m telling you, Mr. Baker it’s important for you to understand,

notwithstanding what I’m doing, which is imposing just the agreed

mandatory two years, Second District Court of Appeals, or the Ohio

Supreme Court, or for that matter The United States Supreme Court may -5-

ultimately say, hey, [Judge], you were in over your waders and you were

wrong and Reagan Tokes is entirely constitutional. And they could at that

time send the case back to me for resentencing, right? I’m telling you, if

that happens, I would then impose the sentence that Reagan Tokes would

make me impose which would be the indeterminate two to three years. Do

you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: * * * You still willing to stand on the plea you entered

at the time of your plea?

THE DEFENDANT: Yes, sir.

{¶ 3} The State appeals from the trial court’s ruling that the Reagan Tokes Act is

unconstitutional. It asserts the following assignment of error:

THE REAGAN TOKES ACT, CODIFIED IN R.C. 2929.14 AND

INSTITUTING A VERSION OF INDETERMINATE SENTENCING, DOES

NOT VIOLATE THE SEPARATION OF POWERS, NOR IS IT OTHERWISE

UNCONSTITUTIONAL.

{¶ 4} The State asserts that the Reagan Tokes Act does not violate the separation

of powers doctrine and that the concept of indefinite sentencing is “nothing new.” It

further argues that, because the trial court’s conclusion that the Reagan Tokes Act is

unconstitutional was incorrect, the sentence the court imposed on Baker, which did not

to comply with the Act, was contrary to law and must be reversed.

{¶ 5} The Reagan Tokes Act introduced indefinite sentencing for first- and

second-degree felonies committed after March 22, 2019. See R.C. 2967.271; State v. -6-

Sinkhorn, 2d Dist. Clark No. 2019-CA-79,

. As this Court has

explained:

Under the Reagan Tokes Act, a trial court decides the minimum and

maximum terms of a defendant's sentence. When the minimum term

expires, there is a presumption that the offender shall be released.

However, ODRC [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. See R.C. 2967.271(B)-(D). The

statute contains factors that apply relating to an offender's conduct while in

prison. See R.C. 2967.271(C). In addition, the statute also allows ODRC

to recommend to the court that an offender's minimum sentence be

reduced, based on the offender's “exceptional conduct while incarcerated

or the offender's adjustment to incarceration.” R.C. 2967.271(F)(1).

Sinkhorn at ¶ 30.

{¶ 6} This Court further noted as follows:

* * * We recently upheld the constitutionality of the Reagan Tokes

Act. See State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-

4153. In Ferguson, we concluded that the Act does not violate the

separation-of-powers doctrine. We reasoned that the Act’s 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 -7-

Hernandez v. Kelly,

,

,

. (Other citation omitted.)

Id. at ¶ 32.

{¶ 7} This Court further held in Ferguson as follows regarding due process:

[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 Law satisfies these requirements. The Law states that, in

order to rebut the presumption of the minimum term, the DRC [Department

of Rehabilitation and Correction] 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.

Ferguson at ¶ 25.

{¶ 8} Other cases from our district have also upheld the constitutionality of the

Reagan Tokes Act. See State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-

4150; State v. Leet, 2d Dist. Montgomery No. 28670,

; State v. Wallace,

2d Dist. Clark No. 2020-CA-3,

.

{¶ 9} In his brief, Baker “acknowledges” that our holdings in Ferguson and Leet

are the current law in the Second District and determinative of the State’s appeal, at least

in regard to the issues of separation of powers and procedural due process. But he

continues:

Appellee submits that S.B. 201 and its indefinite sentencing scheme -8-

violates so many interwoven constitutional principles, including separation

of powers, vagueness, due process, right to jury trial and right to counsel,

that its provisions cannot stand. While Appellee acknowledges that this

Court has previously determined many of these issues either directly or

tangentially in Ferguson and Leet, * * * Appellee has asserted the

arguments set forth herein to preserve them for the record and, again, urges

this Court to reconsider Ferguson and Leet and find S.B. 201

unconstitutional under both the United States and Ohio Constitutions.

{¶ 10} We decline Baker’s invitation to reconsider our prior decisions and, based

upon those decisions, we agree with the State that Baker’s sentence is contrary to law,

namely the Reagan Tokes Act. We need not address the additional arguments raised

by Baker in his brief. Consistent with the above-cited decisions by this Court, we hereby

sustain the State’s assignment of error, reverse the trial court’s judgment with respect to

Baker’s sentence only, and remand the matter to the trial court to resentence Baker

pursuant to the Reagan Tokes Act.

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

HALL, J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Michael R. Pentecost Hon. Steven K. Dankof