[Cite as State v. Floyd,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-20-44

v.

TRAVON DUPREY FLOYD, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 2020 CR 0175

Judgment Affirmed

Date of Decision: June 7, 2021

APPEARANCES:

W. Joseph Edwards for Appellant

Nathan R. Heiser for Appellee Case No. 9-20-44

SHAW, J.

{¶1} Defendant-appellant, Travon Duprey Floyd (“Floyd”), appeals the

November 18, 2020 judgment of the Marion County Court of Common Pleas,

journalizing his conviction after pleading guilty to two counts of second-degree

felony trafficking in fentanyl, with forfeiture specifications, and sentencing him to

an aggregate indefinite prison term of 10 to 12 ½ years. On appeal, Floyd assigns

error to the trial court’s imposition of consecutive sentences and challenges the

constitutionality of the indefinite sentencing provisions contained in the Reagan

Tokes Law.

Procedural History

{¶2} On June 3, 2020, the Marion County Grand Jury returned a six-count

indictment against Floyd alleging that he committed Counts One and Four,

trafficking in fentanyl, in violation of R.C. 2925.03(A)(1),(C)(9), both felonies of

the third degree; Counts Two and Three, trafficking in fentanyl, in violation of R.C.

2925.03(A)(1),(C)(9), both felonies of the second degree; Count Five, trafficking in

fentanyl, in violation of R.C. 2925.03(A)(2),(C)(9), a felony of the first degree; and

Count Six, possession of fentanyl, in violation of R.C. 2925.11(A),(C)(11), a felony

of the first degree. The indictment specified that Counts Five and Six carried with

them an additional specification alleging Floyd to be a Major Drug Offender. In

addition, the indictment stated that a forfeiture specification was attached to each of

-2- Case No. 9-20-44

the six counts for certain property found in Floyd’s possession and for which the

State believed he may have an ownership interest—to wit: $10,200 in cash and a

gold necklace and charm. The indictment alleged that this property represented

proceeds from Floyd’s commission of the stated offenses. Upon arraignment, Floyd

entered pleas of not guilty to the charges.

{¶3} On July 17, 2020, Floyd filed a Motion to Strike Indefinite Sentencing

Provisions of Senate Bill 201 (Reagan Tokes Act) as Unconstitutional, alleging that

the indefinite sentencing provisions enacted as part of the Reagan Tokes Law are

unconstitutional because they violate the separation of powers doctrine and deprive

him of his right to a jury trial and other procedural due process safeguards. The

State filed a response opposing Floyd’s motion.

{¶4} On September 24, 2020, Floyd withdrew his previously tendered not

guilty pleas and entered guilty pleas to Counts Two and Three, trafficking in

fentanyl, in violation of R.C. 2925.03(A)(1),(C)(9), both felonies of the second

degree and both with forfeiture specifications. Notably, Floyd preserved his

constitutional objection to the indefinite sentencing provisions upon entering his

guilty pleas. In exchange for Floyd’s guilty pleas, the State elected to dismiss the

remaining counts and specifications listed in the indictment, and recommended a

sentence of 12 to 16 years in prison.

-3- Case No. 9-20-44

{¶5} On October 29, 2020, the trial court issued a judgment entry denying

Floyd’s motion, relying upon the reasons stated by this Court’s decision in State v.

Hacker, 3d Dist. Logan No. 8-20-01,

, in which we rejected a facial

challenge to the indefinite sentencing provisions in the Reagan Tokes Law,

upholding them as constitutionally valid.

{¶6} On November 18, 2020, Floyd appeared for sentencing. The trial court

imposed upon Floyd for each of the two counts a mandatory indefinite sentence of

a minimum prison term of five years and a maximum prison term of up to 7 ½ years.

The trial court ordered the prison terms to run consecutively for an aggregate

indefinite sentence of 10 to 12 ½ years in prison. The trial court further ordered that

the $10,200 in cash and the gold necklace and charm be forfeited to law

enforcement.

{¶7} It is from this judgment entry of conviction and sentence that Floyd now

appeals, asserting the following assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN IMPOSING A PRISON TERM CONSECUTIVE TO ANOTHER PRISON TERM BECAUSE THERE WAS AN INSUFFICIENT FINDING THAT THE SENTENCE WAS NOT DISPROPORTIONATE TO ANY DANGER THE DEFENDANT MAY POSE TO THE PUBLIC AND THE TRIAL COURT FAILED TO IDENTIFY SPECIFIC REASONS IN SUPPORT OF ITS FINDING THAT CONSECUTIVE SENTENCES WERE APPROPRIATE.

-4- Case No. 9-20-44

ASSIGNMENT OF ERROR NO. 2

THE INDEFINITE SENTENCING PROVISIONS OF SENATE BILL 201 (REAGAN TOKES ACT) VIOLATED APPELLANT’S RIGHTS UNDER THE OHIO AND FEDERAL CONSTITUTION AS IT APPLIES TO THE ABILITY OF THE OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS (DRC) TO INCREASE HIS SENTENCE.

First Assignment of Error

{¶8} In his first assignment of error, Floyd asserts that that trial court erred

in imposing consecutive sentences because the trial court failed to state with

specificity the facts supporting its findings under R.C. 2929.14(C)(4). Floyd also

contends that the record does not support the trial court’s consecutive sentencing

findings.

Legal Authority

{¶9} To the extent that Floyd is attempting to challenge the overall length of

his aggregate sentence under R.C. 2929.11, the Supreme Court of Ohio has clarified

that R.C. 2929.11 and 2929.12 do not apply to consecutive-sentencing review. State

v. Gwynne,

,

. Rather, appellate review of

consecutive sentences is limited to R.C. 2929.14(C)(4), as stated in R.C.

2953.08(G)(2)(a).

Accordingly, we cannot review the aggregate length of

Floyd’s consecutive sentences under R.C. 2929.11 and the issue of consecutive

sentences is limited to appellate review under R.C. 2929.14(C)(4).

{¶10} Revised Code section 2929.14(C)(4) provides as follows:

-5- Case No. 9-20-44

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶11} The statute requires the trial court to make three statutory findings

before imposing consecutive sentences. State v. Beasley,

, 2018-

Ohio-493, ¶ 252; State v. Bonnell,

,

.

Specifically, the court must find that (1) consecutive sentences are necessary to

protect the public from future crime or to punish the offender; (2) consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and

to the danger that the offender poses to the public; and (3) R.C. 2929.14(C)(4)(a),

-6- Case No. 9-20-44

(b), or (c) is applicable.

. “[T]he trial court must make the requisite

findings both at the sentencing hearing and in the sentencing entry.” (Emphasis in

original) Id. at ¶ 253, citing

. A trial court’s failure to make the

necessary findings under R.C. 2929.14(C)(4) renders the imposition of consecutive

sentences contrary to law. See

.

{¶12} Here, the record reflects that the trial court made the requisite findings

both at sentencing and in its judgment entry. Notably, Floyd does not dispute that

the necessary findings were made. Instead, he contends that the trial court failed to

articulate specific facts to support its consecutive sentencing findings and that its

findings were not supported by the record. However, contrary to Floyd’s argument

on appeal, a trial court has no obligation to state its specific reasons to support its

consecutive sentencing findings under R.C. 2929.14(C)(4). State v. Oliver, 3d Dist.

Union No. 14-20-23,

, citing

. Nevertheless,

Floyd fails to cite any evidence in the record to demonstrate that the trial court’s

imposition of consecutive sentences was not supported by the record.

{¶13} This notwithstanding, our review of the record reveals ample support

for the trial court’s findings under R.C. 2929.14(C)(4). At the sentencing hearing,

the trial court observed that the presentence investigation showed that Floyd had

both a juvenile and adult criminal record consisting of numerous offenses, including

two felony drug offenses. The record reflects that Floyd was on probation for a

-7- Case No. 9-20-44

prior drug offense when he committed the underlying offenses in this case.

Moreover, as noted by the trial court, “the substance trafficked here is Fentanyl and

the amounts would—in each of these transactions was capable of killing thousands

of people in a relatively small community.” (Nov. 17, 2020 Sent. Hrg. at 16).1

{¶14} In sum, we conclude that the record supports the trial court’s findings

under R.C. 2929.14(C)(4). Given that the trial court made all three of the necessary

findings under R.C. 2929.14(C)(4), and that those findings are supported by the

record, we find that the trial court did not err in imposing consecutive sentences

upon Floyd.

{¶15} Accordingly, Floyd’s first assignment of error is overruled.

Second Assignment of Error

{¶16} In his second assignment of error, Floyd argues that the Reagan Tokes

Law is unconstitutional. Specifically, he argues that the indefinite sentencing

provisions in the Reagan Tokes Law violate the separation of powers doctrine and

deprive him of his right to a trial by jury and other procedural due process

safeguards.

{¶17} The Reagan Tokes Law went into effect in Ohio on March 22, 2019.

R.C. 2901.011. It 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

1 The record indicates that Floyd was found to have 12.12 grams and 14.9 grams of Fentanyl on his person during two separate controlled buy transactions.

-8- Case No. 9-20-44

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

2929.144(B). It 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 (“DRC”) may rebut the R.C.

2967.271(B) presumption if it determines at a hearing that certain statutorily

enumerated factors apply. R.C. 2967.271(C). If the DRC 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).

{¶18} Floyd’s prison term falls within the sentencing category of R.C.

2929.144(B)(2). That provision specifies that, where an offender is being sentenced

for more than one felony, if one or more of the felonies is a qualifying felony of the

first or second degree, and some or all of the prison terms imposed are to be served

consecutively, the maximum prison term shall be equal to the sum of the

consecutive minimum and definite terms, plus 50 percent of the longest minimum

-9- Case No. 9-20-44

or definite term for the most serious felony being sentenced. Here, the trial court

sentenced Floyd to a five-year minimum prison term for both of his qualifying

second-degree felonies, respectively. Thus, under the circumstances of this case,

Floyd faces a minimum term of 10 years to a maximum term of 12 ½ years in prison.

{¶19} We recently addressed the separation of powers issue where the

appellant raised a similar facial challenge to the indefinite sentencing provisions in

the Reagan Tokes Law. See State v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-

Ohio-5048, ¶ 22. Following the Second and Twelfth Appellate Districts, we

determined that the indefinite sentencing provisions do not run afoul of the doctrine

of separation of powers.

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

, citing Hernandez v. Kelly,

, 2006-

Ohio-126, ¶ 18-20 (concluding that the Reagan Tokes Law does not violate the

separation-of-powers doctrine because the statutory scheme is consistent with

established Supreme Court of Ohio 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.”); State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-

3837, ¶ 17 (analogizing that “because due process does not require the sentencing

court to conduct parole revocation proceedings, probation revocation proceedings,

or postrelease control violation hearings, we likewise conclude that due process

-10- Case No. 9-20-44

does not require the sentencing court to conduct a hearing under R.C. 2967.271(C)

to determine whether the ODRC has rebutted the presumption set forth in R.C.

2967.271(B)”).

{¶20} At this juncture, we decline to revisit our precedent and conclude that

Floyd’s facial challenge to the Reagan Tokes Law on the basis that it violates the

separation of powers doctrine is without merit. See State v. Crawford, 3d Dist.

Henry No. 7-20-05,

; State v. Kepling, 3d Dist. Hancock No.

5-20-23,

.2

{¶21} Floyd also generally asserts that the Reagan Tokes Law is

constitutionally deficient on procedural due process grounds, and he contends that

it also violates his right to a trial by jury. Insofar as this appeal presents a facial

challenge to the Reagan Tokes Law on the basis that the text does not set forth

sufficient procedural due process protections, we rely upon our prior holding in

Hacker, and find these arguments to be without merit. Hacker at ¶ 23. See also State

v. Crawford,

; State v. Kepling,

.

2 We are aware that other appellate districts have found that separation of powers and due process arguments similar to those raised by Floyd in this appeal were not yet ripe for review. See State v. Ramey, 4th Dist. Washington Nos. 20CA1, 20CA2,

; State v. Downard, 5th Dist. Muskingum No. CT2019-0079,

; State v. Velliquette, 6th Dist. Lucas No. L-19-1232, 2020-Ohio- 4855, ¶ 30; State v. Wilburn, 8th Dist. Cuyahoga No. 109507,

; State v. Lavean, 11 Dist. Lake No. 2020-L-045,

. We also note that, on December 28, 2020, the Supreme Court of Ohio accepted a case to determine whether the constitutionality of the Reagan Tokes Law is ripe for review. See State v. Maddox,

,

.

-11- Case No. 9-20-44

{¶22} We have also previously addressed similar due process arguments and

have declined to resolve those claims as not being ripe for review. See also State v.

Crawford,

(stating “[a]t this time, we do not know if

Crawford will ever face such action from the ODRC” and “[w]e also do not know

what administrative guidelines will be in place to protect the procedural due process

rights of offenders in the future if ODRC ever acts to hold Crawford beyond his

presumptive release date”); State v. Kepling,

(stating “at

this point, we cannot even determine whether the ODRC will ever have occasion to

hold a hearing to determine whether Kepling should be held beyond his presumptive

release date. Similarly, we cannot now determine whether the ODRC will provide

Kepling with adequate notice and an opportunity to be heard if a hearing to hold

Kepling beyond his presumptive release date is ever held.”).

{¶23} In sum, we rely upon our prior precedent upholding the indefinite

sentencing provisions in the Reagan Tokes Law as constitutionally valid and not

violative of the separation of powers doctrine. Moreover, we conclude that the

procedural due process and right to a jury trial considerations raised by Floyd are

not yet ripe for review. As such, we decline to address these issues at this time.

{¶24} For all these reasons the second assignment of error is overruled.

-12- Case No. 9-20-44

{¶25} Based on the foregoing, the assignments of error are overruled and the

judgment and sentence of the Marion County Court of Common Pleas is affirmed.

Judgment Affirmed

WILLAMOWSKI, P.J. and MILLER, J., concur.

/jlr

-13-