[Cite as State v. Perry,

.]

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

State of Ohio Court of Appeals No. WD-20-025

Appellee Trial Court No. 2019CR0278

v.

Keith B. Perry, III DECISION AND JUDGMENT

Appellant Decided: May 21, 2021

*****

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

Sarah R. Anjum, for appellant.

*****

OSOWIK, J.

{¶ 1} On June 19, 2019, the Wood County Grand Jury issued an 11-count

indictment against appellant. The enumerated counts are as follows. Count 1:

kidnapping—Fl R.C. 2905.01(A)(3), 2905.01(C); Count 2: pandering sexually-

oriented matter involving a minor—F2 R.C. 2907.322(A)(1), 2907.322(C);

Count 3: pandering sexually-oriented matter involving a minor—F2 R.C. 2907.322(A)(1), 2907.322(C); Count 4: pandering sexually-oriented matter involving

a minor—F2 R.C. 2907.322(A)(1), 2907.322(C); Count 5: pandering sexually-oriented

matter involving a minor—F2 R.C. 2907.322(A)(l), 2907.322(C); Count 6: pandering

sexually-oriented matter involving a minor or impaired person—F2 R.C.

2907.322(A)(l), 2907.322(C); Count 7: pandering sexually-oriented matter involving a

minor or impaired person—F2 R.C. 2907.322(A)(1), 2907.322(C); Count 8:

pandering sexually-oriented matter involving a minor or impaired person—F2 R.C.

2907.322(A)(1), 2907.322(C); Count 9: pandering sexually-oriented matter involving

a minor or impaired person—F2 R.C. 2907.322(A)(1), 2907.322(C); Count 10:

pandering sexually-oriented matter involving a minor or impaired person—F2 R.C.

2907.322(A)(1), 2907.322(C); Count 11: pandering sexually-oriented matter

involving a minor or impaired person—F2 R.C. 2907.322(A)(1), 2907.322(C).

{¶ 2} On December 27, 2019, after the state amended the felony level on each

count, appellant pled guilty to each count of the indictment, as amended.

{¶ 3} Appellant was advised at the time of the plea that he would be sentenced

pursuant to S.B. 201, the Reagan Tokes law. Appellant’s counsel objected to the

application of the statute as being unconstitutional. The trial court overruled the

objections.

{¶ 4} Appellant was sentenced to serve an indefinite term of 28 years minimum to

a maximum term of 32 years under Count 1 and under Counts 2-11. He was sentenced to

serve 24 months on each count of 2-11, to be served consecutive to each other.

2. {¶ 5} Perry presents a single assignment of error for this court to review.

Assignment of Error I:

AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED

CODE’S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING

FELONIES VIOLATE THE CONSTITUTIONS OF THE UNITED STATES

AND THE STATE OF OHIO.

{¶ 6} In his solitary assignment of error, appellant attacks the constitutionality of

the Reagan Tokes law, aka S.B. 201, arguing that it violates the doctrine of separation of

powers and due process rights afford to him under the Fourteenth Amendment to the

United States Constitution and the Ohio Constitution.

{¶ 7} The Reagan Tokes law (“Law”) went into effect in Ohio on March 22,

2019. R.C. 2901.011. The Law requires a sentencing court imposing a prison term

under R.C. 2929.14(A)(1)(a) or (2)(a), on or after the effective date, to order a minimum

prison term under that provision and a maximum prison term as determined by R.C.

2929.144(B). The Law also sets forth a presumption that an offender “shall be released

from service of the sentence on the expiration of the offender’s minimum prison term or

on the offender’s presumptive earned early release date, whichever is earlier.” R.C.

2967.271(B). The offender’s presumptive earned early release date is determined

under R.C. 2967.271(F), which permits the sentencing court to reduce the minimum term

under certain circumstances. R.C. 2967.271(A)(2). The Department of Rehabilitation

and Corrections may rebut the R.C. 2967.271(B) presumption if it determines at a hearing

3. that certain statutorily enumerated factors apply. R.C. 2967.271(C). If the department

rebuts the presumption, it may maintain the offender’s incarceration after the expiration

of the minimum prison term or presumptive earned early release date for a reasonable

period of time, which “shall not exceed the offender’s maximum prison term.” R.C.

2967.271(D)(1).

{¶ 8} It is appellant’s contention that the portions of the statute which allow the

Department of Rehabilitation and Corrections to administratively extend his prison

term beyond his presumptive minimum prison term of 28 years to as much as 32 years

violate the United States and Ohio Constitutions. Appellant, however, has not yet

served his minimum term, and so he has not become subject to the application of R.C.

2967.271.

{¶ 9} We have previously addressed multiple constitutional challenges to the Reagan

Tokes Law. See State v. Maddox,

,

,

; State v. Velliquette,

,

(6th Dist.); State v. Montgomery,

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

; State v. Sawyer,

, --- N.E.3d

--- (6th Dist.).

{¶ 10} As we recently stated in State v. Acosta, 6th Dist. Lucas Nos. L-20-1068,

L-20-1069,

:

[T]his court has recently held that the 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.

4. Lucas No. L-19-1232,

; State v. Maddox, 6th Dist. Lucas

No. L-19-1253,

. In Velliquette, we explained 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 Supreme Court of Ohio. See State v. Velliquette, 161

Ohio St.3d1415,

,

. Id. at ¶ 10.

{¶ 11} Accordingly, appellant’s single assignment of error is found not

well-taken.

{¶ 12} We affirm the judgment of the Wood County Court of Common Pleas.

Appellant is ordered to pay the costs of this appeal pursuant to 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.

Thomas J. Osowik, J. _______________________________ JUDGE Gene A. Zmuda, P.J. _______________________________ Myron C. Duhart, 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/.

5.