[Cite as State v. Thompson,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2020-CA-60 : v. : Trial Court Case No. 2020-CR-59 : JACOB THOMPSON : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 12th day of November, 2021.

...........

IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

R. JESSICA MANUNGO, Atty. Reg. No. 0094077, Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant

.............

DONOVAN, J. -2-

{¶ 1} Jacob Thompson was found guilty, following a jury trial, of one count of rape,

in violation of R.C. 2907.02(A)(1)(c), a felony of the first degree, and one count of sexual

battery, in violation of R.C. 2907.03(A)(2), a felony of the third degree. The trial court

merged the offenses, and the State elected to proceed to sentencing on the rape offense;

the court sentenced Thompson to 10 to 15 years in prison and designated him a Tier

Three sex offender. Thompson’s appeals from his conviction, challenging only the

imposition of sentence pursuant to the Reagan Tokes Act. Because the trial court failed

to properly advise Thompson at sentencing of the notifications set forth in R.C.

2929.19(B)(2)(c), we affirm in part, reverse in part, and remand the matter solely for

resentencing pursuant to R.C. 2929.19(B)(2)(c).

{¶ 2} At sentencing, the trial court advised Thompson as follows:

The offense having occurred in December of 2019, the Court finds

that a sentencing would be subject to the new sentencing law for first and

second degree felonies. That the Court is required to impose a minimum

term of ten (10) years in the Ohio State Penitentiary, up to a maximum term

of fifteen (15) years.

There is a presumption, Mr. Thompson, that you will be released

after serving the minimum term of ten years. * * *

{¶ 3} The trial court’s judgment entry of conviction stated:

A. Findings

The Court considered the record, oral statements of counsel, the

defendant’s statement, the defendant’s criminal history, and the principles -3-

and purposes of sentencing under Ohio Revised Code Section 2929.11,

and then balanced the seriousness and recidivism factors under Ohio

Revised Code Section 2929.12.

The Court finds that the rape is a qualifying felony of the first degree

because it was committed on or after March 22, 2019, which is the effective

date of Ohio Revised Code Section R.C. 2929.144(A).

Since the defendant is being sentenced for one qualifying felony, and

that is a felony of the first degree, the maximum prison term for that offense

shall be equal to the minimum term imposed on the defendant plus fifty

percent (50%) of that term.

B. Sentence

IT IS HEREBY ORDERED that the defendant serve an indefinite

prison term of ten (10) to fifteen (15) years in the Ohio Department of

Rehabilitation and Correction (ODRC) with jail credit from February 4, 2020

to February 7, 2020 and June 25, 2020 until conveyance to the penitentiary.

***

D. Rebuttable Presumption

The Court has notified the defendant that, pursuant to Ohio Revised

Code Section 2967.271(B), it is presumed that, on the indefinite sentence

of ten (10) to fifteen (15) years, he will be released from prison upon the

expiration of the minimum prison term imposed, which is ten (10) years.

The Court has further notified the defendant that, pursuant to Ohio

Revised Code Section 2967.271(C), ODRC may rebut the presumption at -4-

a hearing. If the presumption is rebutted, the defendant may remain in

prison after the expiration of the minimum prison term for a period of time

up to the maximum term, which is fifteen (15) years.

ODRC may rebut the presumption only if it determines, at a hearing,

that one or more of the following applies:

(I) Regardless of the security level in which the defendant is

classified at the time of the hearing, both of the following apply:

(a) During the defendant’s incarceration, he 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

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

violations demonstrate that he has not been rehabilitated.

(b) The defendant’s behavior while incarcerated demonstrates that

he continues to pose a threat to society.

(2) Regardless of the security level in which the defendant is

classified at the time of the hearing, he has been placed by ODRC in

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

of the hearing.

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

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

level. -5-

{¶ 4} The judgment entry further set forth several statutory provisions in the

Revised Code by means of which Thompson’s prison term could potentially be reduced,

and it informed him that post-release control was mandatory for five years and of the

possible sanctions if he violated post-release control.

{¶ 5} In November 2020, Thompson filed a motion for leave to file a delayed

appeal, which this court granted in December 2020. On appeal, Thompson’s first

assignment of error is as follows:

BECAUSE THE REAGAN TOKES ACT VIOLATES THE OHIO AND

UNITED STATES CONSTITUTIONS, MR. THOMPSON’S SENTENCE IS

CONTRARY TO LAW. R.C. 2953.08(g)(2); SIXTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION; ARTICLES I,

II, AND III OF THE UNITED STATES CONSTITUTION; ARTICLE I,

SECTION 5, 10 AND 16 OF THE OHIO CONSTITUTION; CITY OF S.

EUCLID V. JEMISON, 28 OHIO ST.3D 157, 158-59, 503 N.E.2D 136

(1986).

{¶ 6} Thompson asserts that the Reagan Tokes Act is “facially unconstitutional.”

First, he asserts that the Act violates the separation of powers in two ways: 1) by allowing

the ODRC to extend the sentence imposed by a sentencing court, “the executive branch

interferes with and amends a final judgment of a trial court, thereby usurping the

judiciary’s inherent authority to sentence and issue final judgments”; and (2) by allowing

ODRC to act “as judge, prosecutor, and jury,” i.e., to make a factual determination,

charge, judge, convict, and sentence him for the commission of a new act, the executive

branch would be “performing inherently judicial functions.” He cites State ex rel. Bray v. -6-

Russell,

,

(2000). He asserts that the “absence of

judicial involvement is fatal” to ODRC’s ability to impose an extended term of incarceration

upon an inmate.

{¶ 7} Thompson further argues that the Reagan Tokes Act violates the

constitutional right to trial by jury. He directs our attention to Apprendi v. New Jersey,

,

,

(2000); Ring v. Arizona,

,

,

(2002); and Blakely v. Washington,

,

,

. Thompson asserts that “[o]nly with ‘bad behavior’ ” can

ODRC unilaterally decide to continue incarceration, and this “bad behavior or ‘bad time’

structure” has already been deemed unconstitutional in Russell. Thompson argues a

Reagan Tokes sentence can only be extended if ODRC finds facts to rebut the

presumption, and therefore the “hybrid sentence” is unconstitutional because “an

increase in punishment beyond the presumptive minimum sentence is dependent upon,

and triggered by, one or more findings of fact made” by ODRC, not by a jury.

{¶ 8} Thompson further asserts that Reagan Tokes Act violates due process

requirements: “while R.C. 2967.271 provides for a[n] [O]DRC hearing before the

additional prison time is imposed, the Reagan Tokes [Act] provides no structure as to how

the hearing will be conducted or the rights the defendant will have at that hearing.” He

asserts that ODRC’s ability to rebut the presumed minimum term “raises a myriad of due

process questions and concerns” by failing to give notice, set parameters on executive

branch discretion, and establish adequate guarantees for fair hearings. He also argues

that “people serving hybrid sentences are not under adequate notice as to what conduct

will trigger an increase in a sentence under R.C. 2967.271.” -7-

{¶ 9} The State responds that, because the minimum and maximum prison terms

are originally imposed by the trial court and included as part of the trial court’s sentence,

the Reagan Tokes Act does not allow permit the executive branch, via ODRC, to lengthen

the sentence beyond the maximum sentence imposed by the trial court. The State notes

that this Court and others have consistently held that the Reagan Tokes Act does not

violate the separation of powers doctrine and is not unconstitutional.

{¶ 10} The State also asserts that it is impossible to know if a defendant will commit

violations in the future that would prompt an ODRC hearing to potentially extend his

presumptive release date, such that the harm that the defense’s argument alleges is

speculative, and any claim that the Act violates the right to trial by jury “is not ripe for

adjudication.” The State further asserts that the Reagan Tokes Act does not violate a

defendant’s right to a jury trial because the conviction on which the indefinite sentence is

based could have been tried to a jury.

{¶ 11} Finally, the State asserts that the Act does not violate due process because

it provides for notice of a hearing at which the defendant has an opportunity to be heard.

{¶ 12} In reply, Thompson argues that, at the expiration of the minimum sentence,

he has “no options to appeal” the ODRC’s decision to impose a portion of his maximum

term under Reagan Tokes. He argues that the finality of his judgment entry of conviction

“means the penalty can be challenged by direct appeal and is therefore ripe for review.”

Regarding separation of powers, Thompson asserts that this Court should reconsider

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

, in which we held

that the Reagan Tokes Act does not violate the separation of powers doctrine and is not

unconstitutional. -8-

{¶ 13} Regarding due process and notice, Thompson argues that incarcerated

offenders “have a protected, state-created liberty interest in avoiding restrictive conditions

of confinement” and “an inherent liberty interest in being released from confinement on

their presumptive release date.” He argues that “the procedural protections accorded

that liberty interest must be constitutionally sufficient, including a hearing before a neutral

magistrate and notice,” and that ODRC is not a neutral magistrate because it has “an

adversarial relationship with incarcerated individuals.” Thompson argues that without

“an opportunity to receive sufficient notice and be heard in a meaningful manner by a

neutral magistrate, the sentencing provisions of Reagan Tokes fail to adequately protect”

a defendant’s due process rights.

{¶ 14} It is well-settled that “[a]s a threshold matter, we are to presume that the

state statute is constitutional, and the burden is on the person challenging the statute to

prove otherwise beyond a reasonable doubt.” State v. Lowe,

, 2007-

Ohio-606,

, citing Klein v. Leis,

,

,

. A statute may be challenged as unconstitutional on the basis that

it is invalid on its face or as applied to a particular set of facts.

citing, e.g., United

States v. Eichman,

,

,

(1990). As

noted above, Thompson asserts that the Reagan Tokes Act is unconstitutional on its face.

{¶ 15} This Court has recently noted:

On March 22, 2019, the Reagan Tokes Law (S.B. 201) became

effective in Ohio. This law requires sentencing courts to impose indefinite

prison sentences for felonies of the first or second degree that are

committed on or after the law's effective date. The law specifies that the -9-

indefinite sentences 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 also establishes a presumption that the offender will be released at the

end of the minimum term. R.C. 2967.271(B). The Ohio Department of

Rehabilitation and Correction (“ODRC”), however, may rebut that

presumption. R.C. 2967.271(C). In order to rebut the presumption for

release at the end of the minimum term, the ODRC must conduct a hearing

and determine whether certain statutory factors are applicable. R.C.

2967.271(C)(1), (2) and (3). If the presumption is rebutted, the ODRC may

maintain the offender's incarceration beyond the minimum term for a

reasonable period of time not to exceed the maximum term imposed by the

sentencing judge. R.C. 2967.271(D).

State v. Massie, 2d Dist. Clark No. 2020-CA-50,

.

{¶ 16} In this case, Thompson is presumed to be entitled to release after serving

10 years of his sentence, but the ODRC may rebut that presumption and hold him in

prison for up to 15 years (the full maximum term).

{¶ 17} We will first address Thompson’s arguments that the Reagan Tokes Act

violates the separation of powers doctrine and due process, and then address his

argument that the Act violates his right to a trial by jury. -10-

{¶ 18} As noted by the Sixth District Court of Appeals:1

* * * [O]ther jurisdictions have implicitly determined the issue to be

ripe for review by addressing the constitutional challenge to the Re[a]gan

Tokes provisions regarding future, possible extensions of a prison term

beyond the presumed minimum term. The Second District Court of

Appeals found the law constitutional in State v. Barnes, 2d Dist.

Montgomery No. 28613,

, State v. Leet, 2d Dist.

Montgomery

, andState v. Ferguson, 2d Dist.

Montgomery No. 28644,

.

State v. Velliquette,

,

(6th Dist.).

{¶ 19} In State v. Compton, 2d Dist. Montgomery No. 28912,

, we stated:

We recently considered the constitutionality of the Reagan Tokes

Law in State v. Ferguson, 2d Dist. Montgomery No. 28644,

and concluded that it does not violate the separation-of-powers doctrine.

We reached this conclusion because we found that the Law's scheme is

1 We note that the Ohio Supreme Court recognized a conflict between appellate districts on December 28, 2020. State v. Maddox,

,

,

. The Court accepted the following question for review: “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?” The conflicting cases cited by the Court 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,

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

. -11-

consistent with established authority from the Supreme Court of Ohio, which

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.” Ferguson at ¶ 23, citing

Hernandez v. Kelly,

,

,

, citing State v. Jordan,

,

,

, ¶ 19, citing Woods v. Telb,

,

(2000).

{¶ 20} As in Compton, Thompson’s minimum and maximum terms were imposed

by the trial court and included as part of the trial court’s sentence. “Because the Reagan

Tokes Law does not allow the ODRC to lengthen an offender's sentence beyond the

maximum sentence imposed by the trial court, we once again hold that the Law does not

violate the separation-of-powers doctrine.” Compton at ¶ 12, citing Ferguson at ¶ 23 and

State v. Barnes, 2d Dist. Montgomery No. 28613,

. .

{¶ 21} Regarding due process, we stated in Ferguson:

“[T]he fundamental requisite of due process of law is the opportunity

to be heard in a meaningful time and in a meaningful manner.” Woods at

513, citing Goldberg v. Kelly,

,

,

(1970). The Reagan Tokes Law satisfies these requirements. The

Law states that, in order to rebut the presumption of the minimum term, the

[O]DRC must make a particular statutory determination “at a hearing.”

R.C. 2967.271(C) and (D). The Law does not give the [O]DRC unfettered

discretion to require an offender to serve more than the minimum term. -12-

And it affords an offender notice and an opportunity to be heard before more

than the minimum may be required.

Ferguson at ¶ 25.

{¶ 22} This Court further determined in Compton:

While Compton acknowledges that R.C. 2967.271(C) requires a

hearing and statutory findings before additional prison time is imposed, he

nevertheless contends that the statute is vague in that it provides no

structure as to how the hearing will be conducted or what rights the

defendant will have at the hearing. In so arguing, Compton suggests that

when undergoing a hearing pursuant to R.C. 2967.271(C), an offender

should be entitled to due process rights that are associated with criminal

trials. However, “the fact that prisoners retain rights under the Due

Process Clause in no way implies that these rights are not subject to

restrictions imposed by the nature of the regime to which they have been

lawfully committed.” (Citations omitted.) Wolff v. McDonnell,

,

,

(1974). For example, “[p]rison

disciplinary proceedings are not part of a criminal prosecution, and the full

panoply of rights due a defendant in such proceedings does not apply.”

This court has noted that “[r]equiring a defendant to remain in prison

beyond the presumptive minimum term is akin to the decision to grant or

deny parole[.]” Leet, 2d Dist. Montgomery No. 28670,

. “In the context of parole proceedings, the United States Supreme

Court has held that the required due process procedures are minimal. -13-

Specifically, the court has found that a prisoner subject to parole receives

adequate due process when he is allowed an opportunity to be heard and

is provided a statement of the reasons why parole was denied.” Wilburn at

¶ 30, citing Swarthout v. Cooke,

,

,

(2011), citing Greenholtz v. Inmates of Nebraska Penal & Corr.

Complex,

,

,

(1979). “ ‘The

Constitution * * * does not require more.’ ”

quoting

.

Because the procedures employed under the Reagan Tokes Law

provide for notice of a hearing at which an offender has an opportunity to

be heard, and because the Reagan Tokes Law does not give the ODRC

unfettered discretion to decide when an offender must serve more than the

minimum term, we once again hold that the Law does not violate an

offender's right to due process.

Compton at ¶ 16-18.

{¶ 23} Based upon the foregoing, we decline Thompson’s request to reconsider

Ferguson, and we again conclude that the Reagan Tokes Act does not violate a

defendant’s due process rights.

{¶ 24} Finally, regarding Thompson’s assertion that the Reagan Tokes Act violates

the Sixth Amendment right to a trial by jury, we note that the Twelfth District recently

addressed this issue in State v. Rogers, 12th Dist. Butler No. CA2021-02-010, 2021-Ohio-

3282. The Twelfth District conducted the following analysis, which we find persuasive:

In [Apprendi v. New Jersey,

,

,

(2000),] a jury convicted the defendant of a firearm crime that -14-

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?”

.

“[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, 2014-

Ohio-2340, ¶ 121.

In Ring [v. Arizona,

,

,

], -15-

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 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.

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.

Once imposed by the trial court, the indefinite sentence is then -16-

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, 2021-

Ohio-1810, ¶ 35. 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 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.

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 -17-

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.

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 -18-

not violate an offender's constitutional rights to trial by jury. Id.; contra

State v. Delvallie, 8th Dist. Cuyahoga No. 109315,

.

Rogers at ¶ 14-20.

{¶ 25} Based upon the foregoing, we conclude that the Reagan Tokes Act does

not violate the Sixth Amendment right to trial by jury. Since Thompson failed to establish

that the Reagan Tokes Act is facially unconstitutional in this respect, his first assigned

error is overruled.

{¶ 26} Thompson’s second assignment of error is as follows:

THE TRIAL COURT ERRED WHEN IT SENTENCED MR.

THOMPSON TO AN INDEFINITE PRISON TERM IN CONTRAVENTION

OF THE SENTENCING STATUTES, IN VIOLATION OF MR.

THOMPSON’S RIGHTS TO DUE PROCESS. R.C. 2929.19(b)(2)(c);

ARTICLE I, SECTION I, OHIO CONSTITUTION.

{¶ 27} In his second assignment of error, Thompson asserts that the trial court

failed to comply with R.C. 2929.19(B)(2)(c) in imposing the indefinite prison term of 10 to

15 years, because the court “did not provide the required statutory notifications” at

Thompson’s sentencing hearing, and a defendant who fails to timely object “will be limited

to plain error review.” He asserts that, even if we reject his first assignment of error, we

should nonetheless remand this matter to the trial court for resentencing “in accordance

with the notification requirements set forth in R.C. 2929.19(B)(2)(c).”

{¶ 28} The State responds that the trial court did notify Thompson of the operation

of the rebuttable presumption in its judgment, which was filed the same day as the

sentencing hearing, “listing the parameters of R.C. 2929.19(B)(2)(c).” According to the -19-

State, Thompson “was sufficiently notified of R.C. 2929.19(B)(2)(c).” The State further

asserts:

Although the court determines that a prison term is necessary at the

sentencing hearing, and this determination triggers the court’s duty to notify

the defendant of the parameters of the rebuttable presumption listed in

subsection (c), the statute does not require that the defendant is orally

notified at the sentencing hearing itself – merely that the court shall notify

the defendant. At least two other district courts of appeals have found that

Defendant must be notified orally of these parameters at the sentencing

hearing itself, and that notification in the judgment entry is insufficient, but

this Court has not made such a determination yet. See State v. Whitehead,

8th Dist. Cuyahoga No. 109599,

; State v. Miles, 11th

Dist. Portage No. 2020-P-0032,

.

{¶ 29} In Massie, 2d Dist. Clark No. 2020-C

, this Court

2 “Besides noting Whitehead's objection to the Reagan Tokes Act being applied to his sentence, the trial court failed to mention the act again at the sentencing hearing. The trial court also improperly told Whitehead at the sentencing hearing that his ‘total sentence’ was 36 years in prison without informing Whitehead that 36 years would be the minimum amount of time he would spend in prison and without calculating Whitehead's maximum prison term or informing him of the maximum prison term. It is not sufficient to simply include this information in the sentencing entry. R.C. 2929.144(C). The trial court also failed to inform Whitehead of any of the other required notifications set forth in R.C. 2929.19(B)(2)(c).” Id. at ¶ 45. The Eighth District remanded the matter for resentencing and instructed the trial court to comply with the requirements of the Reagan Tokes Act. Id. at ¶ 46.

3 “The state concedes the trial court failed to properly calculate and inform Miles of his maximum prison term. Further, the state concedes the trial court failed to provide the required notices under R.C. 2929.19(B)(2)(c)(i) and (v). Accordingly, the matter must be remanded for the limited purpose of conducting a resentencing hearing. See State v. Wolfe, 5th Dist. Licking No. 2020CA00021,

.” Miles at ¶ 27. -20-

recently noted:

When reviewing felony sentences, appellate courts must apply the

standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum,

,

,

, ¶ 7. Under that statute,

an appellate court may increase, reduce, or modify a sentence, or it may

vacate the sentence and remand for resentencing, only if it clearly and

convincingly finds either: (1) the record does not support the sentencing

court's findings under certain statutes; or (2) the sentence is otherwise

contrary to law. (Emphasis added.) Id. at ¶ 9, citing R.C. 2953.08(G)(2).

Several of our sister districts have held that a sentence is contrary to

law if a trial court sentences an offender to an indefinite prison term under

the Reagan Tokes Law and fails advise the offender of all the notifications

set forth in R.C. 2929.19(B)(2)(c) at the sentencing hearing. See, e.g.,

State v. Wolf, 5th Dist. Licking No. 2020 CA 00021,

, ¶ 36-

37; State v. Miles, 11th Dist. Portage No. 2020-P-0032,

; State v. Long, 4th Dist. Pickaway No. 20CA9,

; State v. Whitehead, 8th Dist. Cuyahoga No. 109599, 2021-Ohio-

847, ¶ 43, 45-46; State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048,

.

Massie at ¶ 17-18.

{¶ 30} R.C. 2929.19 governs sentencing hearings, and R.C. 2929.19(B)(2)(c)

provides:

(2) Subject to division (B)(3) of this section, if the sentencing court -21-

determines at the sentencing hearing that a prison term is necessary or

required, the court shall do all of the following:

***

(c) If the prison term is a non-life felony indefinite prison term, notify

the offender of all of the following:

(i) That it is rebuttably presumed that the offender will be released

from service of the sentence on the expiration of the minimum prison term

imposed as part of the sentence or on the offender's presumptive earned

early release date, as defined in section 2967.271 of the Revised Code,

whichever is earlier;

(ii) That the department of rehabilitation and correction may rebut the

presumption described in division (B)(2)(c)(i) of this section if, at a hearing

held under section 2967.271 of the Revised Code, the department makes

specified determinations regarding the offender's conduct while confined,

the offender's rehabilitation, the offender's threat to society, the offender's

restrictive housing, if any, while confined, and the offender's security

classification;

(iii) That if, as described in division (B)(2)(c)(ii) of this section, the

department at the hearing makes the specified determinations and rebuts

the presumption, the department may maintain the offender's incarceration

after the expiration of that minimum term or after that presumptive earned

early release date for the length of time the department determines to be

reasonable, subject to the limitation specified in section 2967.271 of the -22-

Revised Code;

(iv) That the department may make the specified determinations and

maintain the offender's incarceration under the provisions described in

divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to

the limitation specified in section 2967.271 of the Revised Code;

(v) That if the offender has not been released prior to the expiration

of the offender's maximum prison term imposed as part of the sentence, the

offender must be released upon the expiration of that term.

(Emphasis added.)

{¶ 31} In Massie, as in this case, the State argued that “the trial court sufficiently

notified Massie of all the information in R.C. 2929.19(B)(2)(c) by simply including the

information in the judgment entry of conviction,” but this Court disagreed. Id. at ¶ 20.

We found:

In this case, when reading the language in R.C. 2929.19(B)(2) as a

whole, it becomes clear that the notification requirement at issue in section

(B)(2)(c) relates to notice that must be given at the sentencing hearing. We

reach this conclusion by looking at the language in the preceding sections

of the statute, i.e., (B)(2)(a) and (B)(2)(b). Section (B)(2)(a) provides that

the sentencing court shall “notify the offender that the prison term is a

mandatory prison term,” without specifically stating that the notification

should be given at the sentencing hearing. Section (B)(2)(b), however,

instructs the sentencing court to “include in the sentencing entry * * *

whether the sentence or sentences contain mandatory prison terms[.]” -23-

When considering the language in sections (B)(2)(a) and (B)(2)(b) together,

it becomes clear that the phrase “notify the offender” in (B)(2)(a) necessarily

refers to notice that should be given at the sentencing hearing, since section

(B)(2)(b) instructs the trial court to include the same information in the

sentencing entry.

Like section (B)(2)(a), section (B)(2)(c) simply instructs the

sentencing court to “notify the offender” of the specific information listed

thereunder without specifically mentioning the sentencing hearing.

Because the phrase “notify the offender” as used in (B)(2)(a) refers to

notification given at the sentencing hearing, we find that the same meaning

should apply to the phrase “notify the offender” in section (B)(2)(c).

Therefore, we agree with our sister districts and find that the trial court was

required to notify the offender of all the information set forth in R.C.

2929.19(B)(2)(c) at the sentencing hearing in order to fulfill the requirements

of the statute. Accordingly, because the trial court in this case failed to

notify Massie of any of the information set forth in R.C. 2929.19(B)(2)(c) at

the sentencing hearing, we sustain Massie's second argument and find that

Massie's sentence is contrary to law.

Id. at ¶ 22-23. In Massie, we remanded the matter to the trial court for the sole purpose

of resentencing the defendant in accordance with R.C. 2929.19(B)(2)(c). Id. at ¶ 25.

{¶ 32} While the court in this case advised Thompson at the sentencing hearing

that it was required to impose an indefinite sentence, and that was a presumption that he

would be released after serving the minimum term of ten years, the court neglected to -24-

advise him of the rebuttable nature of the presumption or to advise him of the remaining

notifications set forth in R.C. 2929.19(B)(2)(c). Accordingly, consistent with Massie,

Thompson’s sentence was contrary to law, and his second assignment of error is

sustained.

{¶ 33} The judgment of the trial court is affirmed in part and reversed in part, and

the matter is remanded to the trial court for the sole purpose of resentencing Thompson

pursuant to R.C. 2929.19(B)(2)(c).

.............

TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to:

Ian A. Richardson R. Jessica Manungo Hon. Douglas M. Rastatter