[Cite as State v. Rogers,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2021-02-010

Appellee, : OPINION 9/20/2021 : - vs - :

JAMES PATRICK ROGERS aka : JAMES P. RODGERS, : Appellant.

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2019-08-1199

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.

Engel & Martin, LLC, and Mary K. Martin, for appellant.

M. POWELL, J.

{¶ 1} Appellant, James Patrick Rogers, appeals his indefinite prison sentence

imposed by the Butler County Court of Common Pleas for aggravated drug trafficking.

Appellant was sentenced pursuant to the newly enacted Reagan Tokes Law.

{¶ 2} Appellant was indicted in August 2019 on six felony offenses and one

misdemeanor offense. Pursuant to plea negotiations, appellant pled guilty to one count of Butler CA2021-02-010

aggravated drug trafficking, a second-degree felony, one count of having weapons while

under disability, a third-degree felony, and one count of cocaine possession, a fifth-degree

felony. The plea form signed by appellant indicated that appellant faced a mandatory fine

of $7,500 on the aggravated drug trafficking count as a result of pleading guilty. The trial

court, however, did not advise appellant of the $7,500 mandatory fine during the plea

hearing. The trial court sentenced appellant to an indefinite prison term of four to six years

for the aggravated drug trafficking offense, a consecutive 36-month prison term for the

having weapons while under disability offense, and a concurrent 12-month prison term for

the cocaine possession offense.

{¶ 3} Appellant appealed his conviction and sentence. This court vacated

appellant's guilty plea, finding that the trial court's total failure to inform appellant of the

mandatory fine, before it accepted the guilty plea, constituted a complete failure to comply

with Crim.R. 11(C)(2)(a), and therefore, appellant's guilty plea was not knowingly,

intelligently, and voluntarily made. State v. Rogers, 12th Dist. Butler No. CA2019-11-194,

. The matter was remanded to the trial court.

{¶ 4} On February 4, 2021, appellant and the state entered into another plea

agreement. The terms of appellant's guilty plea were identical to the terms of his first guilty

plea. After the trial court accepted the guilty plea, the matter proceeded to sentencing.

Appellant and his trial counsel unsuccessfully challenged the constitutionality of the Reagan

Tokes Law. Thereafter, the trial court once again sentenced appellant to an indefinite prison

term of four to six years for the aggravated drug trafficking offense, a consecutive 36-month

prison term for the having weapons while under disability offense, and a concurrent 12-

month prison term for the cocaine possession offense.

{¶ 5} Appellant appeals, raising one assignment of error:

{¶ 6} AS AMENDED BY THE REAGAN TOKES ACT, OHIO REVISED CODE

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2929.14(A)(1)(a) AND (A)(2)(a) AS APPLIED TO QUALIFYING FIRST AND SECOND

DEGREE FELONIES VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND

THE STATE OF OHIO, THUS MAKING APPELLANT'S SENTENCE

UNCONSTITUTIONAL.

{¶ 7} Appellant challenges the constitutionality of Ohio's indefinite sentencing

structure under the Reagan Tokes Law as set forth in R.C. 2967.271. The Reagan Tokes

Law became effective on March 22, 2019. Appellant committed the offenses in the case in

the summer of 2019; thus, the Reagan Tokes Law applies to his second-degree felony

aggravated drug trafficking.

{¶ 8} Under the Reagan Tokes Law, qualifying first-and second-degree felonies

committed on or after March 22, 2019, are now subject to the imposition of indefinite

sentences. The indefinite terms 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 a statutory formula set forth in R.C. 2929.144. The maximum term equals the minimum

term imposed on the offender plus 50 percent of that term.

{¶ 9} It is rebuttably presumed that an offender sentenced under the Reagan Tokes

Law will be released upon completion of the offender's minimum term. R.C. 2967.271(B).

However, the Ohio Department of Rehabilitation and Correction ("ODRC") may rebut that

presumption of release if it finds, at a hearing, that any of the factors set forth in R.C.

2967.271(C)(1), (2), and (3) apply. If the ODRC rebuts the presumption, it may keep the

offender in prison for an additional "reasonable period," but the additional time "shall not

exceed the offender's maximum prison term." R.C. 2967.271(C).

{¶ 10} Appellant argues that the Reagan Tokes Law is unconstitutional because it

violates an offender's right to due process and the separation-of-powers doctrine.

{¶ 11} It is well established that statutes are presumed constitutional. State v. Lowe,

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,

, ¶ 17; State v. Cook,

, 1998-

Ohio-291. This court has already found that the Reagan Tokes Law does not violate an

offender's right to due process or the separation-of-powers doctrine. See State v. Suder,

12th Dist. Clermont Nos. CA2020-06-034 and CA2020-06-035,

; State v.

Jackson, 12th Dist. Butler No. CA2020-07-077,

; and State v. Guyton, 12th

Dist. Butler No. CA2019-12-203,

. Likewise, the Second and Third Districts

have held that the Reagan Tokes Law does not violate an offender's due process rights or

the separation-of-powers doctrine. See, e.g., State v. Ferguson, 2d Dist. Montgomery No.

28644,

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

.

{¶ 12} We note that appellant cites the Hamilton County Court of Common Pleas'

decision in State v. Oneal, Hamilton C.P. No. B 1903562 (Nov. 20, 2019), a case that has

found the Reagan Tokes Law unconstitutional, in support of his argument. However, "[t]he

reasoning set forth in that decision * * * has been roundly rejected by every court that has

had the opportunity to address it." Suder at ¶ 27, citing Ferguson at ¶ 26; and Hacker at ¶

18-22. "We join those courts and similarly reject the reasoning set forth in Oneal finding

the Reagan Tokes Law unconstitutional. Simply stated, the Reagan Tokes Law does not

violate an offender's due process rights or the separation-of-powers doctrine." Suder at ¶

27.

{¶ 13} Appellant further argues that the Reagan Tokes Law is unconstitutional

because it violates an offender's constitutional rights to trial by jury. Specifically, appellant

asserts that the presumptive-release provisions of R.C. 2967.271 violates his right to a trial

by jury in that it permits ODRC (and not the jury) to engage in fact-finding increasing the

offender's minimum prison term in violation of the Sixth Amendment of the United States

Constitution and Article I, Section 5 of the Ohio Constitution. Appellant cites Apprendi v.

New Jersey,

,

(2000), and Ring v. Arizona,

, 122

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(2002), in support of his argument.

{¶ 14} In Apprendi, a jury convicted the defendant of a firearm crime that carried a

maximum prison sentence of ten years. However, a judge subsequently sought to impose

a longer sentence pursuant to a statute that authorized him to do so if he found, by a

preponderance of the evidence, that the defendant had committed the crime with racial

bias. Apprendi held this scheme unconstitutional: "[A]ny fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt" or admitted by the defendant.

. Nor may a

state evade this traditional restraint on the judicial power by simply calling the process of

finding new facts and imposing a new punishment a judicial "sentencing enhancement."

. "[T]he relevant inquiry is one not of form, but of effect – does the required [judicial]

finding expose the defendant to a greater punishment than that authorized by the jury's

guilty verdict?"

.

{¶ 15} "[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence

a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant." (Emphasis sic.) Blakely v. Washington,

,

(2004). "In other words, the relevant 'statutory maximum' is not the maximum

sentence a judge may impose after finding additional facts, but the maximum he may

impose without any additional findings." (Emphasis sic.) Id. at 303-304; State v. Setty, 12th

Dist. Clermont Nos. CA2013-06-049 and CA2013-06-050,

.

{¶ 16} In Ring, a jury convicted the defendant of felony murder, a crime that carried

a maximum sentence of life imprisonment. However, a state statute allowed the trial judge

to impose the death penalty if he found, independent of the jury, at least one aggravating

factor. Extending the rule of Apprendi to capital punishment, the United States Supreme

Court found the sentencing scheme violative of the Sixth Amendment right to a jury trial

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because the required judicial finding of an aggravated circumstance exposed the defendant

to greater punishment than authorized by the jury's verdict. Ring,

; State v.

McKelton, 12th Dist. Butler No. CA2017-07-106,

, ¶ 8.

{¶ 17} The Reagan Tokes sentencing scheme is unlike those involved in Apprendi,

Ring, and Blakely. Under the Reagan Tokes Law, the trial court imposes both a minimum

and a maximum term, and the indefinite prison sentence must be included in the final entry

of conviction. R.C. 2929.14 and 2929.144. The only sentencing discretion provided to the

trial court lies with the length of the minimum term under R.C. 2929.14(A)(1)(a) and

(A)(2)(a); the maximum term is determined based upon a mathematical formula as applied

to the minimum term of imprisonment. The maximum prison term component of a Reagan

Tokes indefinite sentence is therefore authorized by the jury's guilty verdict and is not based

upon factors not submitted to the jury. The defendant is not exposed to greater punishment

than that authorized by the jury's verdict.

{¶ 18} Once imposed by the trial court, the indefinite sentence is then implemented

by ODRC. ODRC simply enforces the sentence imposed by the trial court and its review is

limited to determining the offender's release date. R.C. 2967.271 establishes a presumptive

release date upon completion of the minimum term. Once the minimum term is served,

ODRC may rebut the presumption of release under certain conditions and enforce the

remainder of the maximum term already imposed by the trial court. R.C. 2967.271(B).

However, "[t]hat codified process does not alter the fact that the trial court imposed a

maximum term as calculated under R.C. 2929.144." State v. Gamble, 8th Dist. Cuyahoga

No. 109613,

. In rebutting the presumption of release, ODRC "is not

extending the defendant's prison term or imposing its own sentence for violations that occur

while the offender is serving the imposed term of imprisonment." Id. at ¶ 7. In other words,

ODRC does not "increase" a penalty based upon facts not found by a jury but merely

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administers the sentence already imposed by the trial court for conviction of an offense for

which the offender has the right to a jury trial.

{¶ 19} In a concurring opinion in State v. Wolfe, 5th Dist. Licking No. 2020CA00021,

, Judge Gwin rejected a challenge to the Reagan Tokes Law as violative

of the right to a jury trial, reasoning that

Under the Reagan Tokes Law, the judge imposes both a minimum and a maximum sentence. Judicial fact-finding is not required. In Ohio, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." State v. Kalish,

,

, paragraphs 1 and 11. The Department of Rehabilitation and Correction ("DRC") is not permitted to extend a sentence imposed by the trial court beyond the maximum sentence imposed by the trial court. Further, the facts which postpone an inmate's release date are facts found as a result of prison disciplinary proceedings, not the underlying crime. To extend Wolfe's argument to its logical end it would be necessary for the courts to invalidate punishment as a result of internal prison disciplinary proceedings entirely, or require all rule infractions to be tried before a jury.

It is evident that Apprendi and its progeny have no application in a prison disciplinary setting where the DRC does not have the authority to extend the inmate's sentence beyond the maximum sentence imposed by the trial judge.

Id. at ¶ 61-62.

{¶ 20} Unlike the sentencing scheme in Apprendi and Ring, there is "no discretion

exercised by the trial court in imposing the maximum term" under the Reagan Tokes Law,

and "nothing within any provision codified under the Reagan Tokes Law permits any branch

of government to impose a sentence beyond the maximum term as defined under R.C.

2929.144." Gamble,

. The Reagan Tokes Law therefore does not

violate an offender's constitutional rights to trial by jury. Id.; contra State v. Delvallie, 8th

Dist. Cuyahoga No. 109315,

.

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{¶ 21} Appellant's assignment of error is overruled.

{¶ 22} Judgment affirmed.

PIPER, P.J., and BYRNE, J., concur.

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