[Cite as State v. Williams,

.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. Earle E. Wise, J. -vs- : : TAMARKIS WILLIAMS, : Case No. 2021CA0003 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Case No. 20CR0087

JUDGMENT: Affirmed in part; remanded in part

DATE OF JUDGMENT: October 5, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES JAMES ANZELMO Licking County Prosecutor 446 Howland Drive Special Prosecutor for Coshocton Gahanna, Ohio 43230 County Prosecutor's Office

By: PAULA SAWYERS Assistant Prosecuting Attorney 20 S. Second Street, Fourth Floor Newark, Ohio 43055 Coshocton County, Case No. 2021CA0003 2

Baldwin, J.

{¶1} Tamarkis Williams appeals the sentence imposed by the Coshocton County

Court of Common Pleas after receiving his plea of guilty to kidnapping, a First degree

felony, in violation of R.C. 2905.01; and aggravated robbery, a First degree felony, in

violation of R.C. 2911.01 with a firearm specification. Appellee is the State of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶2} On July 1, 2020, Appellant, Tamarkis Williams and four others planned and

executed a robbery of a juvenile, C.H.

{¶3} C.H. called Hunter Markley to buy marijuana and Markley said he didn’t

have any to sell, but could help him find a seller. Williams took the phone and arranged

to meet with C.H. suggesting that he had marijuana to sell. Prior to meeting with C.H.,

Williams and the others discussed the plan to rob C.H.

{¶4} Williams and Elijah Byrd were driven to an agreed location and the driver,

Kacia R.A. Eckelberry, drove to meet C.H. with Markley and Kire E. Page hiding in the

back of the vehicle. Eckelberry picked up C.H. and drove back to where Byrd and Williams

were waiting. Byrd and Williams got in the back seat with C.H., held him at gun point and

demanded his belongings. They took C.H. to a different location, forced him out of the

vehicle at gun point and told him to get on his knees. They took $60.00 in cash, his shoes,

sweatshirt, pocket knife and a chain necklace. Williams and his cohorts drove off and

divided C.H.'s property.

{¶5} Williams was charged with kidnapping, a First degree felony, in violation of

R.C. 2905.01(A)(2) and one count of aggravated robbery, a First degree felony, in

violation of R.C. 2911.01(A)(1),(C) with a firearm specification. He entered a plea of guilty Coshocton County, Case No. 2021CA0003 3

on December 14, 2020 and appeared for sentencing on January 19, 2021. The court

reviewed the facts and determined that the offenses did not merge. The trial court

imposed a sentence of a minimum term of eight years and a maximum term of twelve

years for the offense of aggravated robbery with an additional three years for the gun

specification. For the offense of kidnapping, the trial court sentenced Williams to a

minimum of four years and a maximum of six years.

{¶6} The trial court decided that the sentences should be served consecutively

finding that "the consecutive sentences are necessary to protect the public from future

crime punish the defendant and are not disproportionate to the seriousness of the

defendant's conduct and the danger that the defendant poses to the public. The court

finds that the defendant committed the instant offense while under a community control

sanction from Clark County for trespass in a habitation. (O. R. C.2929.14(C)(4)(a))."

(Judgment Entry on Sentencing, Jan. 26, 2021). Williams was advised of a rebuttable

presumption that he would be released from service of the sentence on the expiration of

the minimum prison term imposed as part of the sentence or on the defendant's

presumptive early earned early release date, whichever is earlier, pursuant to the Reagan

Tokes Act. He was also advised of his obligation to register as a violent offender under

R.C.2903.42 and the weapon he carried during the offense was forfeited to the state.

{¶7} Williams did not raise the issue of the constitutionality of the Reagan Tokes

Act in the court below.

{¶8} Williams filed a notice of appeal and submitted five assignments of error:

{¶9} “I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE'S

SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES Coshocton County, Case No. 2021CA0003 4

VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF

OHIO.”

{¶10} “II. THE TRIAL COURT ERRED BY FAILING TO MERGE WILLIAMS'S

KIDNAPPING AND AGGRAVATED ROBBERY OFFENSES, IN VIOLATION OF THE

DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.”

{¶11} “III. THE TRIAL COURT UNLAWFULLY ORDERED WILLIAMS TO SERVE

CONSECUTIVE SENTENCES FOR HIS OFFENSES, IN VIOLATION OF HIS RIGHTS

TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.”

{¶12} “IV. THE TRIAL COURT ERRED BY ORDERING WILLIAMS TO BE

PLACED ON THE VIOLENT OFFENDER REGISTRY.”

{¶13} “V. TAMARKIS WILLIAMS RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

ANALYSIS

I.

{¶14} Williams's first assignment of error challenges the constitutionality of the

Regan Tokes Act which codified hybrid indefinite prison terms for first and second degree

felonies. Williams challenges the presumptive release feature of the act, R.C. 2967.271,

advancing several arguments including it violates his constitutional rights to trial by jury Coshocton County, Case No. 2021CA0003 5

and due process of law, and further violates the constitutional requirement of separation

of powers and equal protection.

{¶15} R.C. 2967.271 provides in relevant part:

(B) When an offender is sentenced to a non-life felony indefinite prison term,

there shall be a presumption that the person 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.

(C) The presumption established under division (B) of this section is a

rebuttable presumption that the department of rehabilitation and correction

may rebut as provided in this division. Unless the department rebuts the

presumption, the 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. The

department may rebut the presumption only if the department determines,

at a hearing, that one or more of the following applies:

(1) Regardless of the security level in which the offender is classified at the

time of the hearing, both of the following apply:

(a) During the offender's incarceration, the offender committed institutional

rule infractions that involved compromising the security of a state

correctional institution, compromising the safety of the staff of a state

correctional institution or its inmates, or physical harm or the threat of

physical harm to the staff of a state correctional institution or its inmates, or Coshocton County, Case No. 2021CA0003 6

committed a violation of law that was not prosecuted, and the infractions or

violations demonstrate that the offender has not been rehabilitated.

(a) The offender's behavior while incarcerated, including, but not limited to

the infractions and violations specified in division (C)(1)(a) of this section,

demonstrate that the offender continues to pose a threat to society.

(2) Regardless of the security level in which the offender is classified at the

time of the hearing, the offender has been placed by the department in

extended restrictive housing at any time within the year preceding the date

of the hearing.

(3) At the time of the hearing, the offender is classified by the department

as a security level three, four, or five, or at a higher security level.

(D)(1) If the department of rehabilitation and correction, pursuant to division

(C) of this section, rebuts the presumption established under division (B) of

this section, the department may maintain the offender's incarceration in a

state correctional institution under the sentence after the expiration of the

offender's minimum prison term or, for offenders who have a presumptive

earned early release date, after the offender's presumptive earned early

release date. The department may maintain the offender's incarceration

under this division for an additional period of incarceration determined by

the department. The additional period of incarceration shall be a reasonable

period determined by the department, shall be specified by the department,

and shall not exceed the offender's maximum prison term. Coshocton County, Case No. 2021CA0003 7

(2) If the department maintains an offender's incarceration for an

additional period under division (D)(1) of this section, there shall be a

presumption that the offender shall be released on the expiration of the

offender's minimum prison term plus the additional period of incarceration

specified by the department as provided under that division or, for offenders

who have a presumptive earned early release date, on the expiration of the

additional period of incarceration to be served after the offender's

presumptive earned early release date that is specified by the department

as provided under that division. The presumption is a rebuttable

presumption that the department may rebut, but only if it conducts a hearing

and makes the determinations specified in division (C) of this section, and

if the department rebuts the presumption, it may maintain the offender's

incarceration in a state correctional institution for an additional period

determined as specified in division (D)(1) of this section. Unless the

department rebuts the presumption at the hearing, the offender shall be

released from service of the sentence on the expiration of the offender's

minimum prison term plus the additional period of incarceration specified by

the department or, for offenders who have a presumptive earned early

release date, on the expiration of the additional period of incarceration to be

served after the offender's presumptive earned early release date as

specified by the department.

The provisions of this division regarding the establishment of a rebuttable

presumption, the department's rebuttal of the presumption, and the Coshocton County, Case No. 2021CA0003 8

department's maintenance of an offender's incarceration for an additional

period of incarceration apply, and may be utilized more than one time,

during the remainder of the offender's incarceration. If the offender has not

been released under division (C) of this section or this division prior to the

expiration of the offender's maximum prison term imposed as part of the

offender's non-life felony indefinite prison term, the offender shall be

released upon the expiration of that maximum term.

{¶16} Appellant argues these portions of R.C 2967.271 permitting the Department

of Rehabilitation and Corrections (DRC) to administratively extend his prison term beyond

his presumptive minimum prison term violate the United States and Ohio Constitutions.

However, as the state points out, appellant has not yet been subject to the application of

these provisions, as he has not yet served his minimum term, and therefore has not been

denied release at the expiration of his minimum term of incarceration.

{¶17} We addressed the concept of ripeness for review in regard to the Regan

Tokes Act in State v. Downard, 5th Dist. Muskingum, CT2019,

:

The Ohio Supreme Court discussed the concept of ripeness for review in

State ex rel. Elyria Foundry Co. v. Indus. Comm.,

, 1998-

Ohio-366,

:

Ripeness “is peculiarly a question of timing.” Regional Rail Reorganization

Act Cases (1974),

,

,

. The ripeness doctrine is motivated in part by the desire "to prevent the

courts, through avoidance of premature adjudication, from entangling

themselves in abstract disagreements over administrative policies * * *." Coshocton County, Case No. 2021CA0003 9

Abbott Laboratories v. Gardner (1967),

,

,

. As one writer has observed:

The basic principle of ripeness may be derived from the conclusion that

'judicial machinery should be conserved for problems which are real or

present and imminent, not squandered on problems which are abstract or

hypothetical or remote.' * * * [T]he prerequisite of ripeness is a limitation on

jurisdiction that is nevertheless basically optimistic as regards the prospects

of a day in court: the time for judicial relief is simply not yet arrived, even

though the alleged action of the defendant foretells legal injury to the

plaintiff. Comment, Mootness and Ripeness: The Postman Always Rings

Twice (1965), 65 Colum. L.Rev. 867, 876. Id. at 89,

.

In State v. McCann, 8th Dist. Cuyahoga No. 85657,

, the

defendant argued because the Parole Board, pursuant to R.C. 2967.28,

could extend his sentence by up to an additional five years for violation of

post-release control, the statute was unconstitutional. The Eighth District

Court of Appeals concluded because McCann was not currently the subject

of such action by the Parole Board, the issue was not yet ripe for review. Id.

at ¶6.

Likewise, in the instant case, while R.C. 2967.271 allows the DRC to rebut

the presumption Appellant will be released after serving his nine year

minimum sentence and potentially continue his incarceration to a term not

exceeding thirteen years, Appellant has not yet been subject to such action

by the DRC, and thus the constitutional issue is not yet ripe for our review. Coshocton County, Case No. 2021CA0003 10

{¶18} Downard, at ¶8-11. See also, State v. Buckner, 5th Dist. Muskingum Nos.

CT2020-0023 & CT2020-0024,

; State v. Wolfe, 5th Dist. Licking No.

2020CA00021,

; State v. Cochran, 5th Dist. Licking No. 2019 CA 00122,

; State v. Clark, 5th Dist. Licking No. 2020 CA 00017,

;

State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03 0009,

; State v.

Kibler, 5th Dist. Muskingum No. CT2020-0026,

.

{¶19} Appellant does not dispute he had not yet been subject to the provisions of

R.C. 2967.271. We therefore find here as we did in Downard, Appellant's constitutional

challenges are not yet ripe for review.

II.

{¶20} In his second assignment of error, Williams contended that the trial court

erred by failing to merge kidnapping and aggravated robbery offenses. Appellate review

of an allied-offense question is de novo. State v. Miku, 5th Dist. No. 2017 CA 00057,

, appeal not allowed,

,

,

(2019), quoting State v. Williams,

,

,

.

{¶21} Revised Code 2941.25 protects a criminal defendant's rights under the

Double Jeopardy Clauses of the United States and Ohio Constitutions by prohibiting

convictions of allied offenses of similar import:

Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may

be convicted of only one. Coshocton County, Case No. 2021CA0003 11

Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶22} The application of R.C. 2941.25 requires a review of the subjective facts of

the case in addition to the elements of the offenses charged. State v. Hughes, 5th Dist.

Coshocton No. 15CA0008,

. In a plurality opinion, the Ohio Supreme

Court modified the test for determining whether offenses are allied offenses of similar

import. State v. Johnson,

,

,

. The

Court directed us to look at the elements of the offenses in question and determine

“whether it is possible to commit one offense and the other with the same conduct.”

(Emphasis sic). Id. at ¶ 48. If the answer to such question is in the affirmative, the court

must then determine whether or not the offenses were committed by the same conduct.

Id. at ¶ 49. If the answer to the above two questions is yes, then the offenses are allied

offenses of similar import and will be merged. Id. at ¶ 50. If, however, the court determines

that commission of one offense will never result in the commission of the other, or if there

is a separate animus for each offense, then the offenses will not merge. Id. at ¶ 51.

{¶23} Johnson's rationale has been described by the Court as “incomplete.” State

v. Earley,

,

,

, ¶ 11. The Supreme Court

of Ohio has further instructed us to ask three questions when a defendant's conduct

supports multiple offenses: “(1) Were the offenses dissimilar in import or significance? (2)

Were they committed separately? and (3) Were they committed with separate animus or Coshocton County, Case No. 2021CA0003 12

motivation? An affirmative answer to any of the above will permit separate convictions.

The conduct, the animus, and the import must all be considered.” State v. Ruff,

,

,

.

{¶24} Williams planned and committed kidnapping and aggravated robbery and

argues that the offenses should merge as they were all part of a continuous course of

conduct. While continuity may be an issue to consider, it is not conclusive. In the case

before us, Williams and his co-defendants held C.H. at gun point and transported him to

a different location. Kidnapping is complete once the accused "by force, threat, or

deception, * * * remove[s] another from the place where the other person is found or

restrain the liberty of the other person, * * * to facilitate the commission of any felony or

flight thereafter." R.C.2905.01(A)(2). The commission of aggravated robbery necessarily

entails the restraint of the victim. “But where ‘the restraint is prolonged, the confinement

is secretive, or the movement is so substantial as to demonstrate a significance

independent of the robbery, there exists a separate animus, a separate ‘immediate

motive,’ to support the kidnapping conviction.’” (Citations omitted.) State v. Houston, 1st

Dist. Hamilton No. C-130429,

.

{¶25} The transportation of C.H. at gun point in a vehicle is sufficiently substantial

to demonstrate a significance independent of the robbery and reflects an animus separate

from the aggravated robbery. The asportation of C.H. to a second location was not

necessary to complete aggravated robbery. Rather, the substantial movement, taking of

C.H.'s shoes and phone appear instead to have facilitated the escape of Williams and his

co-defendants. See State v. Randle, 3d Dist. Marion Nos. 9-17-08 & 9-17-09, 2018-Ohio-

207, ¶ 16-17; State v. Smith, 11th Dist. No. 2018-T-0061,

. Coshocton County, Case No. 2021CA0003 13

{¶26} Kidnapping and aggravated robbery in the context of this case are not allied

offenses. The trial court did not therefore err in failing to merge the charges.

III.

{¶27} In his third assignment of error, Williams argues the trial court unlawfully

ordered him to serve consecutive sentences.

{¶28} R.C. 2929.14(C)(4) addresses consecutive sentences. That section states:

(4) 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. Coshocton County, Case No. 2021CA0003 14

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶29} When imposing consecutive sentences, a trial court must state the required

findings at the sentencing hearing. State v. Bonnell,

,

,

. Because a court speaks through its journal, the court should also

incorporate its statutory findings into the sentencing entry.

However, a word-for-word

recitation of the language of the statute is not required.

As long as the reviewing court

can discern the trial court engaged in the correct analysis and can determine the record

contains evidence to support the findings, consecutive sentences should be upheld.

{¶30} Williams conceded that the trial court here made the appropriate findings to

support consecutive sentences. He argues instead that he was undeserving of

consecutive sentences because he is remorseful, and the instant matter involved only

one victim. He contends that he did not brandish a firearm during the offense, but that

his co-defendant held the weapon. He claims that his military service and the fact that he

has a child also mitigate against consecutive sentences and complains that the trial court

imposed concurrent sentences on a co-defendant.

{¶31} The trial court considered the factors described by Williams as well as the

pre-sentence investigation report, and the statements made during sentencing. The trial

court noted that Williams was on community control for a burglary offense at the time he

committed the offenses in this case. The trial court's sentencing on the charges complies

with all applicable rules and sentencing statutes. Based upon these facts as well as the

balance of the record, we cannot say that we clearly and convincingly find that the trial Coshocton County, Case No. 2021CA0003 15

court's order for consecutive service was not supported by the R.C. 2929.14(C) factors

or that it was contrary to law.

{¶32} The third assignment of error is overruled.

IV.

{¶33} In his fourth assignment of error Williams argues the trial court failed to

properly inform him, before sentencing, of the procedure and criteria for rebutting the

presumption he would be placed in the Violent Offender Registry Database (VOD) and

therefore his placement in the same was error. We agree the trial court failed to fulfill its

obligation under R.C. 2903.42.

Sierah's Law

{¶34} Revised Code 2903.41 et seq., known as Sierah's Law, became effective

on March 20, 2019. See 2018 S.B. No. 231. The law created the VOD and established a

presumption that offenders convicted of specified offenses, including kidnapping, must

enroll in the database. Once enrolled, an offender is required to re-enroll in the database

on an annual basis for a minimum of 10 years.

{¶35} Enrollment in the VOD further requires an offender to complete and sign an

enrollment form providing personal data well as finger and palm prints and annual

photographs. R.C. 2903.42(C)(2)(a)-(i); R.C. 2903.43(C)(3), (D)(1). An offender who

recklessly fails to enroll, re-enroll, or notify the sheriff of a change of address is guilty of

a felony of the fifth degree. R.C. 2903.43(I)(1) and (2). Coshocton County, Case No. 2021CA0003 16

The Trial Court's Obligations

{¶36} R.C. 2903.42(A)(1) governs enrollment in the VOD and places certain

notification obligations on the trial court before sentencing. Relevant to the instant matter

that section states:

(A)(1) For each person who is classified a violent offender, it is

presumed that the violent offender shall be required to enroll in the violent

offender database with respect to the offense that so classifies the person

and shall have all violent offender database duties with respect to that

offense for ten years after the offender initially enrolls in the database. The

presumption is a rebuttable presumption that the violent offender may rebut

as provided in division (A)(4) of this section, after filing a motion in

accordance with division (A)(2)(a) or (b) of this section, whichever is

applicable. Each violent offender shall be informed of the presumption

established under this division, of the offender's right to file a motion to rebut

the presumption, of the procedure and criteria for rebutting the presumption,

and of the effect of a rebuttal and the post-rebuttal hearing procedures and

possible outcome, as follows:

(a) If the person is classified a violent offender under division (A)(1)

of section 2903.41 of the Revised Code, the court that is sentencing the

offender for the offense that so classifies the person shall inform the

offender before sentencing of the presumption, the right, and the procedure,

criteria, and possible outcome. (Emphasis added.)

R.C. 2903.42(A)(1)(a). Coshocton County, Case No. 2021CA0003 17

The Offender's Obligations

{¶37} Should an offender wish to rebut the presumption of enrollment into the

VOD the process for doing so is set forth in R.C. 2903.42(A)(2)(a):

(2) A violent offender who wishes to rebut the presumption

established under division (A)(1) of this section shall file a motion in

accordance with whichever of the following is applicable, and shall serve a

copy of the motion on the prosecutor:

(a) If the person is classified a violent offender under division (A)(1)

of section 2903.41 of the Revised Code, the offender shall file the motion

with the court that is sentencing the offender for the offense that classifies

the person a violent offender. The motion shall assert that the offender was

not the principal offender in the commission of that offense and request that

the court not require the offender to enroll in the violent offender database

and not have all VOD duties with respect to that offense. The motion shall

be filed prior to or at the time of sentencing.

{¶38} Thus, while R.C. 2903.43(A)(2)(a) does provide a mechanism to rebut the

presumption of enrollment into the VOD, the only way a defendant can successfully

overcome that presumption is if he or she is not the principal offender of the subject

offense.

Sierah's Law as Applied to this Matter

{¶39} The record in this case contains only a description of William’s obligation to

register as a violent offender at the time of sentencing: Coshocton County, Case No. 2021CA0003 18

We also need to do a violent offender registration form. Mr. Williams,

you have been convicted of or pleaded guilty to a qualifying violent offender

offense. That would be kidnapping as set forth in Count 2. You have been

sentenced to a prison term; therefore, you must enroll in a violent offender

database personally with the sheriff of the county in which you reside 10

days after your release from prison. If you are an out-of-state offender, you

must enroll in a database personally with the sheriff in the county in which

you reside or occupy a dwelling, 10 days either residing or occupying a

dwelling in Ohio for more than three consecutive days or by residing in or

occupying a dwelling in Ohio for an aggregate period calendar year of 14 or

more days. You are required to provide the sheriff where you reside or are

required to register the following information: Your full name and any alias

you use. Your residence address. Your Social Security number. Your

driver's license, or commercial driver's license number, or state

identification card number issued to you. Information regarding the offense

of which you are convicted or pleaded guilty. The name and address of any

place where you are employed. Name and address of any school or

institution of higher education. License plate number of each vehicle owned

or operated by you or registered in your name. Vehicle identification number

and description of each vehicle. A description of any scars, tattoos, or other

distinguishing marks on your person. You are required to provide the sheriff

fingerprints and palm prints. The sheriff will also obtain a photograph of you

have at the time of your enrollment. After the date of initial enrollment, you Coshocton County, Case No. 2021CA0003 19

are required to re-enroll annually. And you must update or amend any of

the information described that has changed and provide any additional

information requested from the county sheriff's office within 10 days of the

anniversary of the calendar date on which you are initially enrolled. If you

change your residence address during the 10-year enrollment period, you

shall provide written notice of that change to the sheriff with whom you most

recently enrolled and with the sheriff of the county in which you intend to

reside within three business days of change of residence address. You are

required to comply with all of those requirements for a period of 10 years.

And what county is your expected residence address upon your release?

THE DEFENDANT: Tuscarawas.

THE COURT: The address of the sheriff's office is unknown to me at that

location. However, it is in New Philadelphia, Ohio. Failure to enroll or failure

to verify residence at the specified time will result in criminal prosecution.

And then I'm going to have someone bring over the forms simply

acknowledging that these requirements were read to you. Let me ask

counsel, I believe that covers anything. Anything further Mr. -- or, excuse

me, Mr. Murphy, from the State of Ohio?

(Transcript, Sentencing Hearing, Jan. 15, 2021, pages 12-14).

{¶40} The trial court failed to advise Williams of the procedure and criteria for

rebutting the presumption he would be enrolled in the VOD. In support of his argument,

Williams directs us to State v. Fabian, 12th Dist. Warren No. CA2019-10-119, 2020-Ohio-

3926. In that matter, Fabian argued his pleas were not knowingly, intelligently, or Coshocton County, Case No. 2021CA0003 20

voluntarily made because the trial court failed to comply with Crim.R. 11(C)(2)(a) when it

failed to advise him of post-release control during his plea colloquy. The majority of the

court agreed finding "the trial court's total failure to inform Fabian of postrelease control,

which was a part of the maximum penalty, before it accepted the guilty plea, constituted

"a trial court's complete failure to comply with a portion of Crim.R. 11(C)” pursuant to the

second exception to the prejudice requirement." " Fabian ¶ 24. quoting State v. Sarkozy,

,

,

.

{¶41} But Williams does not argue that his plea was rendered involuntary due to

the trial court's failure to advise him of the procedure and criteria for rebutting the

presumption he would be placed on the VOD, nor does he request his sentence be

vacated. Rather, Williams simply argues the trial court erred in placing him on the VOD.

{¶42} Williams's placement on the VOD is not itself erroneous as it is mandatory

based on Williams's conviction for kidnapping and as the sole offender in the matter.

However, the trial court did not fulfill all of its notification requirements.

{¶43} The Ohio General Assembly chose the term "shall" when describing the trial

court's obligation to inform a violent offender of the procedure and criteria for rebutting

the presumption that the offender will be enrolled in the VOD. R.C. 2903.42(A)(1)(a). It is

well established that "shall" means must when used in a statute. State v. Noling,

,

,

. The use of the word shall "connotes a

mandatory obligation unless other language evidences a clear and unequivocal intent to

the contrary."

quoting Wilson v. Lawrence,

,

,

, ¶ 13. Coshocton County, Case No. 2021CA0003 21

{¶44} Because the sentencing court was required to inform Williams of the

procedure and criteria for rebutting the presumption he would be placed on the VOD and

possible outcome, we vacate only William’s placement on the VOD and remand the

matter to permit the proper advisements to be made.

{¶45} The fourth assignment of error is sustained.

V.

{¶46} In his fifth assignment of error, Williams contends he received ineffective

assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a

defendant must demonstrate: (1) deficient performance by counsel, i.e., that counsel's

performance fell below an objective standard of reasonable representation, and (2) that

counsel's errors prejudiced the defendant, i.e., a reasonable probability that but for

counsel's errors, the result of the trial would have been different. Strickland v.

Washington,

, 687–688, 694,

,

(1984); State

v. Bradley,

,

(1989), paragraphs two and three of the

syllabus. "Reasonable probability" is "probability sufficient to undermine confidence in the

outcome."

.

{¶47} Williams makes three arguments under this assignment of error. First, he

argues trial counsel was ineffective because he failed to argue against the Regan Tokes

Act. We have found that the argument was waived, however, even had he made the

argument, we have noted that the issue is not ripe for review. We therefore reject William’s

argument. Likewise, Williams contention that his trial counsel was ineffective for failing to

argue that the offenses did not merge must fail as we have found that the charges of

kidnapping and aggravated robbery, in the context of this case, do not merge. Coshocton County, Case No. 2021CA0003 22

{¶48} Next Williams argues his counsel was ineffective for failing to object to his

placement on the VOD. This argument has been rendered moot by our resolution to the

third assignment of error. Williams’s fifth assignment or error is denied.

{¶49} The judgment of the Coshocton County Court of Common Pleas is affirmed in part.

Appellant's placement on the Violent Offender Registry Database is vacated and remanded for

proceedings consistent with this opinion.

By: Baldwin, P.J.

Wise, Earle, J. concurs

Gwin, J. dissents. Coshocton County, Case No. 2021CA0003 23

Gwin, P.J., Dissenting

{¶50} I concur in the majority’s disposition of Appellant’s Second, Third, Fourth

and Fifth Assignments of Error. I respectfully dissent from the majority’s opinion

concerning ripeness and Appellant’s First Assignment of Error for the reasons set forth

in my dissenting opinion in State v. Wolfe, 5th Dist., Licking No. 2020 CA 00021, 2020-

Ohio- 5501.

{¶51} I further note that the Ohio Supreme Court has accepted a certified conflict

on the issue of whether the constitutionally of the Reagan Tokes Act is ripe for review

on direct appeal or only after the defendant has served the minimum term and been

subject to extension by application of the Act. See, State v. Maddox, 6th Dist. Lucas

No. L-19- 1253,

, order to certify conflict allowed, State v. Maddox,

,

,

(Table) The conflict cases are State

v. Leet, 2d Dist. Montgomery No. 28670,

; State v. Ferguson, 2d Dist.

Montgomery No. 28644,

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

28613, 2020- Ohio-4150; and State v. Guyton, 12th Dist. Butler No. CA2019-12-203,

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

, appeal accepted on Appellant’s Proposition of Law No. II, State v.

Downard,

,

,

(Table)(Sua

sponte, cause held for the decision in 2020-1266, State v. Maddox). The Ohio Supreme

Court heard oral arguments on these cases on June 29, 2021.