[Cite as State v. Stenson,

.]

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

State of Ohio Court of Appeals No. L-20-1074

Appellee Trial Court No. CR0201901991

v.

Darius Stenson DECISION AND JUDGMENT

Appellant Decided: June 30, 2021

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Sara Al-Sorghali, Assistant Prosecuting Attorney, for appellee.

Adam H. Houser, for appellant.

*****

MAYLE, J.

{¶ 1} Appellant, Darius Stenson, appeals the March 10, 2020 judgment of the

Lucas County Court of Common Pleas following his conviction for discharging a firearm

over prohibited premises—a roadway—and aggravated assault. The trial court sentenced

Stenson to a non-life indefinite prison term of a minimum of four years and a maximum of six years, to be served consecutively to a three-year prison term for a related

specification, and a concurrent seventeen-month prison term for the aggravated assault

conviction. For the following reasons, we affirm the trial court’s judgment.

I. Background

{¶ 2} On June 6, 2019, Stenson was indicted on one count of complicity to murder

in violation of R.C. 2923.03(A)(2) and 2903.02(B), an unclassified felony; one count of

felonious assault in violation of R.C. 2903.11(A)(2) and (D), a second-degree felony; and

one count of discharge of a firearm on or near prohibited premises in violation of R.C.

2923.162(A)(3) and (C)(3), a second-degree felony. Each count included a specification

for displaying, brandishing, indicating possession of, or using a firearm in the

commission of the offense in violation of R.C. 2941.145(A), (B), (C), and (F).

{¶ 3} The charges arose from a May 29, 2019 incident in which Stenson and his

codefendant, Devon Hands, discharged firearms across a roadway following an

altercation at a graduation party. A bullet fired by Hands struck and killed the victim,

T.H. Stenson was interviewed by detectives from the Toledo, Ohio Police Department

and arrested. After being advised that Stenson made a recorded call from jail asking a

friend to recover a “hat” from an alley near where the incident occurred, the detectives

suspected Stenson was actually describing a firearm and searched the alley. They

discovered a firearm matching the bullet caliber as those bullets recovered from the site

of the incident. The state presented the case to a grand jury resulting in the three-count

2. indictment. On June 18, 2019, Stenson appeared for his arraignment and entered a not

guilty plea to all three counts.

{¶ 4} On February 10, 2020, the state filed an information charging Stenson with

an additional count of aggravated assault in violation of R.C. 2903.12(A)(2) and (B), a

fourth-degree felony. Following negotiations with the state, Stenson appeared for a

change of plea hearing on February 18, 2020.1 Stenson agreed to withdraw his previous

not guilty plea and enter a guilty plea pursuant to North Carolina v. Alford,

,

(1970) to the original count of discharging a firearm on or near prohibited

premises and the related specification. Stenson also waived his right to be charged by

way of indictment on the recently-added count of aggravated assault and entered an

Alford plea to that charge as well. In exchange for his plea, the state agreed to

recommend that the sentences imposed on each count be ordered to be served

concurrently and that it would not object to any future request for judicial release. The

state also agreed to request dismissal of the remaining charges and the related

specifications. The trial court accepted Stenson’s plea and ordered him to participate in a

presentencing interview before his sentencing hearing on March 3, 2020.

{¶ 5} At the sentencing hearing, the trial court imposed a non-life indefinite prison

term of a minimum of four years and a maximum of six years for appellant’s conviction

for discharging a firearm on or near prohibited premises, and a three-year mandatory

1 At that same hearing, Stenson also entered a guilty plea in a separate case pending before the Lucas County Court of Common Pleas. Stenson did not appeal any aspect of the related case.

3. prison term for the related specification. The trial court also imposed a seventeen-month

prison term for Stenson’s conviction for aggravated assault. The prison terms imposed

for Stenson’s firearm discharge and aggravated assault convictions were ordered to be

served concurrent but consecutive to the mandatory three-year term imposed for the

related specification. The trial court dismissed the remaining counts and their related

specifications pursuant to the state’s request. Stenson’s sentence was memorialized in a

judgment entry on March 10, 2020. He timely appeals and asserts the following errors

for our review:

1. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT

SENTENCED APPELLANT PURSUANT TO SENATE BILL 201 (“S.B.

201”) AND O.R.C. 2929.144 VIOLATES THE CONSTITUTIONAL

DOCTRINE OF THE SEPARATION OF POWERS.

2. THE TRIAL COURT COMMITTED PLAIN ERROR

BECAUSE THE JUDGMENT VIOLATES THE APPELLANT’S DUE

PROCESS RIGHTS PURSUANT TO THE FIFTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION AS IT

RELATES TO THE INDEFINITE SENTENCE.

3. THE APPELLANT’S SENTENCE IS EXCESSIVE BECAUSE

IT FAILS TO ACHIEVE THE PURPOSES AND PRINCIPLES OF

SENTENCING UNDER OHIO LAW.

4. {¶ 6} We address stenson’s third assignment of error first and, because they

are related, we address stenson’s first and second assignments of error together.

II. Law and Analysis

A. Stenson’s sentence is not contrary to law

{¶ 7} In his third assignment of error, Stenson argues that his sentence is

“excessive,” and therefore contrary to law, because the trial court failed to weigh

mitigating factors outlined in R.C. 2929.12 in his favor when it ordered him to serve the

prison term for the underlying offenses consecutive to the prison term for the related

specification.

{¶ 8} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings, 6th

Dist. Lucas No. L-13-1103,

, ¶ 20. We may increase, modify, or vacate

and remand a trial court’s imposition of consecutive sentences only if we clearly and

convincingly find that: (1) “the record does not support the sentencing court’s findings

under division * * * (C)(4) of section 2929.14, * * * ” or (2) “the sentence is otherwise

contrary to law.”

citing R.C. 2953.08(G)(2). The burden is on the appellant to

identify clear and convincing evidence in the record that their sentence was erroneously

imposed. State v. Torres, 6th Dist. Ottawa No. OT-18-008,

, ¶ 6.

{¶ 9} Here, Stenson’s sole argument is that the trial court improperly weighed the

R.C. 2929.12 mitigating factors when fashioning his sentence. But, in State v. Jones, Slip

Opinion No.

, the Ohio Supreme Court held that although trial

courts are obligated to consider the factors identified in R.C. 2929.11 and R.C. 2929.12

5. when imposing felony sentences, R.C. 2953.08(G)(2) does not permit an “appellate court

to independently weigh the evidence in the record and substitute its judgment for that of

the trial court concerning the sentence that best reflects compliance with R.C. 2929.11

and 2929.12.” Accordingly, Jones precludes this court’s review of a felony sentence

where—as here—the appellant’s sole contention is that the trial court improperly

considered the factors of R.C. 2929.11 or 2929.12 when fashioning that sentence.

{¶ 10} In any event, even if Stenson had framed the issue differently, we note that

R.C. 2929.14(C)(1)(a) required the trial court to impose Stenson’s prison terms for the

underlying felony and the related specification consecutively.

{¶ 11} Accordingly, Stenson’s third assignment of error is found not well-taken.

B. Under Maddox, Stenson’s constitutional challenge to the Reagan Tokes Law is not ripe for review.

{¶ 12} In his first and second assignments of error, Stenson argues that his

sentence is unconstitutional because Senate Bill 201 (“the Reagan Tokes Law”), the

statute under which he was sentenced for the discharging a firearm over a roadway

conviction, violated the separation-of-powers doctrine and denied him his due process

rights.

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

implemented “an indefinite sentencing system for non-life, first and second-degree

felonies committed on or after its effective date.” State v. Sawyer,

, 2020-

Ohio-6980, ¶ 18 (6th Dist.), citing State v. Polley, 6th Dist. Ottawa No. OT-19-039,

6.

. In Sawyer, we identified the manner in which indefinite

sentences are to be imposed stating:

* * * The [Reagan Tokes] 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).

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

Reagan Tokes Law. See State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2020-Ohio-

4702; State v. Velliquette,

,

(6th Dist.); State v.

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

; Sawyer,

,

; State v. Acosta, 6th Dist. Lucas Nos. L-20-1068, L-20-1069, 2021-

Ohio-757; State v. Bothuel, 6th Dist. Lucas No. L-20-1053,

; State v.

7. Savage, 6th Dist. Lucas No. L-20-1073,

; State v. Perry, 6th Dist. Wood

No. WD-20-025,

; State v. Shepard, 6th Dist. Lucas No. L-20-1070,

; State v. Zambrano, 6th Dist. Lucas No. L-19-1224,

.

{¶ 15} In Maddox, the first of these challenges, the appellant argued that the

statute’s granting of authority to the ODRC to administratively extend his prison term

beyond the presumptive minimum violated his right to due process under the U.S. and

Ohio Constitutions and the separation-of-powers doctrine. We held that because the

appellant “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,” his arguments were not yet ripe for review. Id. at ¶

7, 14. In each subsequent case, we have determined that the appellant’s constitutional

challenges to the Reagan Tokes Act are not ripe for review based on our holding in

Maddox. We must reach that same conclusion here and find Stenson’s first assignment

of error is not ripe for our review and, therefore, dismissed.

{¶ 16} On December 28, 2020, the Ohio Supreme Court determined that a conflict

exists between Maddox and State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-

459; 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,

. Based on this conflict, the Ohio

Supreme Court has accepted the review of the following certified question:

8. 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

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,

,

,

.

{¶ 17} Section 3(B)(4), Article IV of the Ohio Constitution provides that

“[w]henever the judges of a court of appeals find that a judgment upon which they have

agreed is in 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.” 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 conflict with the judgment on the same question by other

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

,

(1993).

9. As we did in prior cases, we find that our judgment in this appeal is in conflict with

decisions of the Second, Third, and Twelfth District Courts of Appeals. See State v.

Barnes, 2d Dist. Montgomery No. 28613,

; State v. Leet, 2d Dist.

Montgomery No. 28670,

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

28644,

; State v. Hacker,

,

(3d

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

; State v.

Rodgers,

,

(12th Dist.); and State v. Morris, 12th Dist.

Butler No. CA2019-12-205,

. We, therefore, sua sponte certify 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,

,

,

:

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

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

{¶ 18} Because we cannot independently weigh the evidence in the record and

substitute our judgment for that of the trial court regarding the sentence that best reflects

10. compliance with R.C. 2929.11 and R.C. 2929.12, we find Stenson’s third assignment of

error not well-taken.

{¶ 19} We dismiss Stenson’s first and second assignments of error because, under

Maddox, Stenson’s challenge to the constitutionality of the Reagan Tokes Law is not yet

ripe for review. We certify a conflict to the Ohio Supreme Court on that issue, and the

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

{¶ 20} We affirm the March 10, 2020 judgment of the Lucas County Court of

Common Pleas. Stenson 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.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, 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/.

11.