[Cite as State v. Eitzman,

.]

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

STATE OF OHIO, CASE NO. 7-21-03 PLAINTIFF-APPELLEE,

v.

GARY L. EITZMAN, OPINION

DEFENDANT-APPELLANT.

Appeal from Henry County Common Pleas Court Trial Court No. 19 CR 0177

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: February 28, 2022

APPEARANCES:

Nathan VanDenBerghe for Appellant

Gwen Howe-Gebers for Appellee Case No. 7-21-03

WILLAMOWSKI, J.

{¶1} Defendant-appellant Gary L. Eitzman (“Eitzman”) appeals the

judgment of the Henry County Court of Common Pleas, arguing that his conviction

is not supported by sufficient evidence; that his conviction is against the manifest

weight of the evidence; that the trial court committed an error at sentencing; and

that the Reagan Tokes Law is unconstitutional. For the reasons set forth below, the

judgment of the trial court is affirmed in part and reversed in part.

Facts and Procedural History

{¶2} On October 20, 2019, Grant Adkins (“Adkins”) was going eastbound

on State Route 65 in his pickup truck. Tr. 8. As he was driving, he saw a blue SUV

in his mirror that was approaching his vehicle very quickly from behind. Tr. 9, 10.

Adkins testified that the SUV “was right on my bumper” and “was so close I could

see the person driving in my rearview mirror, I could see their face * * *.” Tr. 9.

At this time, there was a car in front of Adkins. Tr. 32, 43. He also did not believe

that he had space to pull over on the right side of the road to let this SUV pass him.

Tr. 29. For this reason, he looked to see if there was any oncoming traffic in the

left lane of the roadway. Tr. 26.

{¶3} After he determined that there was no oncoming traffic, Adkins began

pulling into the left lane to allow the SUV to pass him. Tr. 10. However, Adkins

said, “as soon as I get over and start to slow down, I felt like I was rammed off the

road. I had no control, my airbags deployed, I didn’t know what was going on, next

-2- Case No. 7-21-03

thing I knew I am through the ditch and out in the field.” Tr. 10. Adkins then got

back onto the roadway and passed the car that had been in front of him at the time

of the collision. Tr. 10-11, 49, 62-63. He then pulled into a driveway and waved

down the driver of that car, Lora Pittman (“Pittman”). Tr. 32, 49, 63.

{¶4} Pittman pulled into the driveway and let Adkins use her cell phone to

call 9-1-1. Tr. 32-33, 49. While Adkins was on the phone, the blue SUV drove past

Pittman and Adkins. Tr. 11, 37, 63. At this point, Adkins “was able to get the plate

number” of the blue SUV. Tr. 11. He testified that he did not know where the blue

SUV had been in between the collision and passing him while he was standing on

the driveway. Tr. 44-45.

{¶5} Deputy Joshua Cluley (“Deputy Cluley”), who worked for the Henry

County Sheriff’s Office, responded to Adkins’s 9-1-1 call. Tr. 67-68. After he

arrived at the scene, he took statements from Adkins and Pittman about the incident.

Tr. 94, 101. He also took several pictures of the skid marks on the roadway. Ex. 2.

Adkins gave Deputy Cluley the license plate number of the blue SUV. Tr. 70. This

license plate number was registered to Eitzman. Tr. 70. Deputy Cluley went to the

address listed on his vehicle registration, but “it appeared that no one was currently

living at that residence.” Tr. 71.

{¶6} However, Deputy Mark Glanz (“Deputy Glanz”) was later brought into

this investigation and discovered the address where Eitzman was living. Tr. 118.

When he went to this address, Eitzman’s girlfriend was home. Tr. 119. Behind this

-3- Case No. 7-21-03

house was an attached garage. Tr. 119. Eitzman’s girlfriend opened the garage door

for Deputy Glanz. Tr. 119-120. Inside was a blue SUV. Tr. 119. Ex. 3. Deputy

Glanz observed that the vehicle had a “[h]eavily damaged front corner * * *.” Tr.

121. Further, he also saw that the bumper, front tire, and driver’s side door of the

vehicle were damaged. Tr. 122.

{¶7} On January 29, 2020, Eitzman was indicted on one count of felonious

assault with a deadly weapon in violation of R.C. 2903.11(A)(2), a felony of the

second degree. Doc. 2. On March 2, 2021, a bench trial was held on the charge

against Eitzman. Doc. 43. After considering the evidence presented, the trial court

found Eitzman guilty of the charge of felonious assault with a deadly weapon. Doc.

43. At a sentencing hearing on May 25, 2021, the trial court, pursuant to the Reagan

Tokes Law, ordered Eitzman to serve an indefinite prison sentence with a four-year

minimum term and a six-year maximum term. Sentencing Tr. 11. The trial court

issued its judgment entry of sentencing on May 26, 2021. Doc. 46.

{¶8} Eitzman filed his notice of appeal on June 11, 2021. Doc. 49. On

appeal, he raises the following five assignments of error:

First Assignment of Error

The evidence presented at Appellant’s trial was insufficient to support the conviction.

Second Assignment of Error

The Court’s finding of guilty was against the manifest weight of the evidence.

-4- Case No. 7-21-03

Third Assignment of Error

The Trial Court erred when it stated at the Sentencing Hearing that Appellant’s sentence is a mandatory sentence and that Appellant is not eligible for judicial release.

Fourth Assignment of Error

The Trial Court erred when it stated in its Sentencing Journal Entry that Appellant is not eligible for earned credit under R.C. 2967.193.

Fifth Assignment of Error

The Reagan Tokes Act is an unconstitutional Violation of Due Process.

First Assignment of Error

{¶9} Eitzman argues that his conviction for felonious assault with a deadly

weapon was not supported by sufficient evidence.

Legal Standard

{¶10} A challenge to the sufficiency of the evidence supporting a conviction

“is a question of law and a ‘test of adequacy rather than credibility or weight of the

evidence.’” State v. Beaver, 3d Dist. Marion No. 9-17-37,

,

quoting State v. Berry, 3d Dist. Defiance No. 4-12-03,

. “The

sufficiency-of-the-evidence analysis addresses the question of whether adequate

evidence was produced for the case to be considered by the trier of fact and, thus,

whether the evidence was ‘legally sufficient to support the verdict * * *.’” State v.

Luebrecht, 3d Dist. Putnam No. 12-18-02,

, quoting State v.

-5- Case No. 7-21-03

Worthington, 3d Dist. Hardin No. 6-15-04,

. On appeal, the

applicable standard

is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.

State v. Brown, 3d Dist. Hancock No. 5-17-19,

, quoting State

v. Plott,

,

, ¶ 62 (3d Dist.).

{¶11} To establish a conviction for the offense of felonious assault in

violation of R.C. 2903.11(A)(2), the State must prove that the offender “[1]

knowingly * * * [2] cause[d] or attempt[ed] to cause physical harm to another * * *

[3] by means of a deadly weapon or dangerous ordinance.” R.C. 2903.11(A)(2).

A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature.

R.C. 2901.22(B). R.C. 2923.11(A) defines a “deadly weapon” as “any instrument,

device, or thing capable of inflicting death, and designed or specially adapted for

use as a weapon, or possessed, carried, or used as a weapon.” R.C. 2923.11(A). See

R.C. 2903.11(E)(1). R.C. 2903.11(D)(4) indicates that a motor vehicle can be used

as a deadly weapon. R.C. 2903.11(D)(4). See R.C. 2903.11(E)(2).

Legal Analysis

{¶12} On appeal, Eitzman argues that the State failed to establish that he

knowingly attempted to cause physical harm to Adkins. At trial, Adkins said,

-6- Case No. 7-21-03

I looked in my mirror, I saw it [the SUV] coming up and then the next thing I knew it was right on my bumper and there was [a] short period of time there where it would back off, come back up, back off, come back up.

Tr. 9. He testified that the blue SUV was so close to his pickup truck that he could

see the driver’s face in his mirror. Tr. 9. The driver “was throwing his hands up in

the air, shaking, it seems like he was in a rush.” Tr. 11, 38. He then said,

It got to a point where I wasn’t very comfortable having a car this close to me, I thought something was going to happen, there was someone in front of me, I was following somebody, I had nowhere to go, so, there weren’t any cars coming so I wanted to just get off the road or get somewhere where I could let this car by and get on with our day, so I got into the oncoming lane * * *.

Tr. 9. Adkins explained that there was not enough room for him to pull off on the

right side of the road to let the blue SUV pass him. Tr. 9-10, 29.

{¶13} While he did not see the blue SUV at the time of the collision, Adkins

said, “[i]t was a pretty big impact, I mean, it was intense, it was * * * hard.” Tr. 39.

He indicated that the blue SUV did not merely “swipe” his vehicle. Tr. 39-40. He

stated that the collision was forceful enough to deploy his airbags and push him off

the roadway. Tr. 10. Adkins further testified that he had been driving at roughly

fifty-five miles per hour shortly before the collision, though he was not sure how

fast he was going at the time of the collision. Tr. 16-17, 27. Using several pictures

introduced by the State at trial, he also identified Eitzman’s vehicle as the blue SUV

that struck his pickup truck. Tr. 15. Ex. 3.

-7- Case No. 7-21-03

{¶14} At trial, the prosecutor inquired into what Pittman had observed in her

rearview mirror:

Ms. Pittman: I was being followed by a pickup truck, I thought it was a little close but not too concerning, and then as the road curves I see there was an SUV * * * that was even closer to him than he [the pickup] was to me and I kind of kept an eye on it.

***

As we proceeded closer to the Damascus bridge, I saw the truck that was right behind me, he pulled over into the left lane, oncoming traffic, and I thought, well that’s a little dangerous, you know he could get hit.

[Prosecutor]: Did you see any oncoming traffic?

Ms. Pittman: No I didn’t, but the vehicle behind him kind of sped up like he was going to pass, but then he made a turn, a left turn into the truck.

[Prosecutor]: Okay, so it wasn’t just a swipe, you describe it as a left turn into the truck?

Ms. Pittman: Yes, because it was a sharp enough turn, I thought maybe the vehicle, which turned out to be a SUV * * *, could have possibly rolled over, to me I thought it was that sharp.

Tr. 47-48. The State introduced several pictures of Eitzman’s blue SUV at trial. Ex.

3. Pittman identified the blue SUV in these pictures as the vehicle she saw collide

with Adkin’s pickup truck. Tr. 50.

{¶15} Deputy Cluley testified that Eitzman never contacted the police to

report that he had been involved in a collision. Tr. 71. Rather, Deputy Glanz’s

testimony indicates that he had to conduct an investigation to locate Eitzman. Tr.

-8- Case No. 7-21-03

117-119. He stated that, once he located Eitzman’s residence, the blue SUV was

not “out in the open” but was inside “an attached garage * * * at the back side of the

residence * * * with the garage door closed.” Tr. 119.

{¶16} Further, Deputy Glanz noted that “the passenger side door of Mr.

Adkins[’s] vehicle * * * ha[d] a substantial caving in on the door.” Tr. 128. Having

examined the damage done to both of these vehicles, he then stated the following:

My experience with handling traffic cases is that you don’t get that type of a caving in unless it is more of a direct impact, if it was more of a side swipe there would be straight damage all the way down the side, I believe by looking at that and Mr. Eitzman’s vehicle, the front driver side corner * * * of Mr. Eitzman’s vehicle came into the passenger door of Mr. Adkins.

Tr. 128-129. The State introduced pictures of two sets of skid marks on the roadway

at the area where the collision occurred. Ex. 2. Deputy Glanz testified that the pair

of skid marks on the right side of the roadway, which would have been made by the

blue SUV, did not appear to go gradually into the left lane towards the other set of

skid marks. Tr. 134.

{¶17} Thus, the State produced evidence that Eitzman appeared frustrated

while he was driving; turned his vehicle directly into Adkins’s pickup truck; and

was driving his motor vehicle at a relatively high rate of speed at the time of the

collision. Having reviewed the evidence in a light most favorable to the prosecution,

we conclude that a rational trier of fact could determine that Eitzman knowingly

attempted to cause physical harm to Adkins. Eitzman has not demonstrated that his

-9- Case No. 7-21-03

conviction is not supported by sufficient evidence. For this reason, his first

assignment of error is overruled.

Second Assignment of Error

{¶18} Eitzman argues that his conviction for felonious assault is against the

manifest weight of the evidence.

Legal Standard

{¶19} “When ‘deciding whether a conviction is against the manifest weight

of the evidence, an appellate court determines whether the state has appropriately

carried its burden of persuasion.’” Brown,

, supra, at ¶ 8, quoting

State v. Blanton,

,

(3d Dist. 1997). “In a

manifest weight analysis, ‘the appellate court sits as a “thirteenth juror” * * *.’”

State v. Davis, 3d Dist. Seneca No. 13-16-30,

, quoting State

v. Thompkins,

,

,

(1997). Appellate courts “must review the entire record, weigh the evidence and all

of the reasonable inferences, consider the credibility of witnesses, and determine

whether in resolving conflicts in the evidence, the factfinder ‘clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’” State v. Brentlinger,

,

(3d Dist.), quoting Thompkins at 387.

{¶20} “A reviewing court must, however, allow the trier of fact appropriate

discretion on matters relating to the weight of the evidence and the credibility of the

-10- Case No. 7-21-03

witnesses.” State v. Sullivan,

,

(3d Dist.),

quoting State v. Coleman, 3d Dist. Allen No. 1-13-53,

. “[I]t

is well established that the * * * credibility of the witnesses [is] primarily a matter

for the trier of fact.” State v. Gervin,

,

, ¶ 142 (3d

Dist.), quoting State v. Clark,

,

(8th Dist.

1995). “Only in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Little,

,

, ¶ 27 (3d Dist.), quoting State v. Hunter,

,

,

, ¶ 119.

Legal Analysis

{¶21} On cross-examination at trial, Adkins could not remember if he had

activated his turn signal when he began to change lanes. Tr. 30. He also stated that

he did not see the blue SUV when the collision occurred because he was looking in

the other direction. Tr. 26, 30, 35. When shown pictures of the skid marks in the

roadway, he affirmed that it appeared that Eitzman drove in a “sweeping motion

from the right” but said that he did not believe that the collision occurred because

he (Adkins) had moved into the left lane on the roadway. Tr. 27, 29.

{¶22} He also affirmed that he had not interacted with Eitzman previously;

that he could not recall any other noteworthy occurrence leading up to the collision;

and that he did not know why someone would try to intentionally hurt him. Tr. 18,

34-35. However, he had informed the 9-1-1 dispatcher that he had been run off of

-11- Case No. 7-21-03

the road intentionally. Tr. 34. Finally, he said that he could not explain why the

blue SUV went past the driveway where he was standing several minutes after the

collision because he did not see where the blue SUV had gone after the collision

had occurred. Tr. 44-45.

{¶23} When questioning Pittman, defense counsel noted that the rearview

window of Adkins’s pickup truck was tinted. Tr. 52. He then inquired into how

she could see the blue SUV behind Adkins’s vehicle. Tr. 53-55. She explained that

she went through several curves in the roadway that allowed her to see that two

vehicles were behind her and that these two vehicles were close together. Tr. 55.

She further stated that Adkins “was already in the other [left] lane” when the

collision occurred, though she admitted that the “tail end and back tire” of Adkins’s

vehicle may not have been entirely in the left lane at that point. Tr. 62.

{¶24} Pittman also testified that, after the collision, she pulled into a

driveway next to Adkins. Tr. 63. She stated that Adkins did not indicate that he

was injured in the collision but noted that he looked “shooken up.” Tr. 64. While

they were standing on the driveway, she observed the blue SUV drive past them on

the roadway but said the vehicle was not going particularly fast. Tr. 63-64. Pittman

testified that she had never met Eitzman or Adkins prior to this incident. Tr. 65.

{¶25} Deputy Cluley testified that he spent thirty-eight minutes at the scene

of the accident, investigating the incident and compiling information for his crash

report. Tr. 110. Ex. A. His report stated that Adkins’s vehicle was struck at an

-12- Case No. 7-21-03

angle rather than having been sideswiped; that Adkins committed a lane violation;

and that this lane violation was part of a sequence of events that contributed to the

collision. Tr. 83-84, 89, 91. Ex. A. However, the narrative portion of his report

also stated that Adkins indicated that the blue SUV “intentionally rammed” his

vehicle. Tr. 94. On redirect, he testified that nothing in his investigation indicated

that Pittman was not telling the truth about the incident. Tr. 113.

{¶26} Deputy Glanz admitted that he did not know where Eitzman’s vehicle

had been in between the incident and the time at which he located the vehicle. Tr.

132-133. He also testified that he does not have training in accident reconstruction

but did have seventeen years of experience in responding to traffic accidents. Tr.

135, 146, 151. He stated that, in his investigation, he did not uncover any

preexisting incident that would have motivated Eitzman to ram Adkins’s vehicle.

Tr. 144. Deputy Glanz further testified that the damage to the vehicles, the skid

marks, Pittman’s statements, and Adkins’s statements all fit together. Tr. 128, 149.

{¶27} Having reviewed the evidence in the record on the basis of its weight

and credibility, we conclude that Eitzman has not demonstrated that his conviction

for felonious assault is against the manifest weight of the evidence. For this reason,

his second assignment of error is overruled.

-13- Case No. 7-21-03

Third Assignment of Error

{¶28} Eitzman argues that the trial court erred by stating, at his sentencing

hearing, that he had a mandatory sentence and would not be eligible for judicial

release.

Legal Standard

{¶29} As a general matter, trial courts have broad discretion in imposing

sentences. State v. Purvis, 3d Dist. Marion No. 9-20-29,

.

However, “[w]hen reviewing felony sentences, appellate courts must apply the

standard of review set forth in R.C. 2953.08(G)(2).” State v. Delong, 2d Dist. Clark

Nos. 2021-CA-32, 2021-CA-33,

, quoting State v. Houston, 2d

Dist. Montgomery No. 29114,

.

If the defendant establishes by clear and convincing evidence that his or her sentence is ‘(1) contrary to law and/or (2) unsupported by the record,’ an appellate court has the authority, pursuant to R.C. 2953.08(G)(2), ‘to increase, reduce, or otherwise modify a sentence * * *.’

State v. Risner, 3d Dist. Wyandot No. 16-20-05,

, quoting State

v. McGowan,

,

,

.

Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.

-14- Case No. 7-21-03

State v. Taflinger, 3d Dist. Logan No. 8-17-20,

, quoting Cross

v. Ledford,

,

, paragraph three of the syllabus

(1954).

{¶30} Further, “the axiomatic rule is that a court speaks through its journal

entries.” State v. Miller,

,

,

. “Accordingly, it is the trial court’s judgment entry and not the oral

pronouncement of a sentence at a sentencing hearing (or a resentencing hearing)

that is ‘the effective instrument for sentencing a defendant.’” State v. Roscoe, 8th

Dist. Cuyahoga No. 102191,

, quoting State v. Rodriguez-

Baron, 7th Dist. Mahoning No. 10-MA-176,

. See State v.

Brown, 3d Dist. Allen No. 1-06-66,

(“A trial court speaks only

through its journal entries and not by oral pronouncement.”).

{¶31} “[I]f the journal entry and the judge’s comments conflict, the journal

entry controls.” State v. Potter, 6th Dist. Fulton No. F-21-002,

, quoting State v. Hankins,

,

(3d Dist.

1993). See also State v. Swiergosz,

,

,

(6th Dist.) (concluding that “verbal miscues or misstatements in

open court during sentencing are harmless”).

Legal Analysis

{¶32} At the sentencing hearing, the trial court stated it would impose an

indefinite prison sentence on Eitzman with a four-year minimum term and a six-

-15- Case No. 7-21-03

year maximum term. Sentencing Tr. 13. The trial court then stated that Eitzman

“would not be eligible for judicial release within the four-year term because that is

a mandatory sentence.”

While Eitzman did not object to this statement at the

sentencing hearing, he argues on appeal that the trial court erroneously stated that

this four-year minimum prison term was mandatory.

{¶33} However, in its judgment entry of sentencing, the trial court did not

impose a mandatory prison term on Eitzman or state that he was ineligible for

judicial release. Doc. 46. Because the trial court did not impose a mandatory prison

term, Eitzman has not identified any prejudicial error in this assignment of error.

See State v. Smith, 1st Dist. Hamilton Nos. C-080712, C-090505,

,

¶ 38;

; State v. Casiano, 6th Dist. Wood No. WD-09-009, 2010-

Ohio-3528, ¶ 28 (“Because the trial court’s misstatement concerning judicial release

did not prejudice or affect the outcome of this case, it is harmless error.”); State v.

Draughton, 10th Dist. Franklin Nos. 11AP-703, 11AP-995,

, ¶ 30.

Because Eitzman has not demonstrated that his sentence is clearly and convincingly

contrary to law with this argument, his third assignment of error is overruled.

Fourth Assignment of Error

{¶34} Eitzman argues that the sentencing entry incorrectly states that he is

not eligible for earned credit under R.C. 2967.193.

-16- Case No. 7-21-03

Legal Standard

{¶35} As an initial matter, we reincorporate the legal standard for appellate

challenges to a sentence as set forth in the third assignment of error. Further, R.C.

2967.193 provides opportunities for inmates to earn credit towards the satisfaction

of his or her prison term “for participation in certain programs.” R.C. 2967.193.

Under R.C. 2967.193, the department of rehabilitation and correction is charged with determining the amount of credit earned and awarding that credit to the prisoner. Likewise, the statute authorizes the department to deny the prisoner the right to earn credit or withdraw credits previously earned if it determines the prisoner has violated prison rules.

State v. Livingston,

,

, ¶ 7 (1st Dist.). “[T]here is

nothing in R.C. 2967.193 or elsewhere in the law that authorizes a court to limit an

offender’s ability to earn days of credit.” Id. at ¶ 9.

Legal Analysis

{¶36} R.C. 2967.193(A)(1) and R.C. 2967.193(A)(2) set forth earned-credit

opportunities for inmates. An inmate is ineligible to earn credit under R.C.

2967.193(A)(2) if he or she “is serving a * * * a prison term for an offense of

violence * * *.” R.C. 2967.193(A)(2). In this case, Eitzman received a prison term

for a conviction for felonious assault, which is listed as an offense of violence in

R.C. 2901.01(A)(9)(a). Thus, Eitzman is statutorily ineligible to earn credit under

R.C. 2967.193(A)(2).

-17- Case No. 7-21-03

{¶37} However, R.C. 2967.193(A)(1) does not contain the same eligibility

requirements as R.C. 2967.193(A)(2). The wording of R.C. 2967.193(A)(1) does

not disqualify all inmates who are serving a sentence for an offense of violence from

the earned credit opportunities contained therein. Rather, an inmate is statutorily

ineligible for earned credit under R.C. 2967.193(A)(1) if he or she has a type of

sentence or conviction that is listed in R.C. 2967.193(C). Eitzman does not have a

sentence or conviction of a type that is listed in R.C. 2967.193(C).

{¶38} Further, the number of days of credit that an eligible inmate can earn

under R.C. 2967.193(A)(1) is set forth in R.C. 2967.193(D) and is based upon the

offense for which the inmate received a prison term. R.C. 2967.193(D) sets forth

the amount of credit that an inmate may earn if the most serious offense for which

he or she is confined is a conviction for second-degree felonious assault. R.C.

2967.193(D)(1)(a). In this case, Eitzman was confined for one conviction for

second-degree felonious assault. Doc. 46. Thus, as the State concedes in its brief,

Eitzman is not statutorily ineligible to earn the amount of credit that is set forth in

R.C. 2967.193(D)(1)(a). Appellee’s Brief, 15.

{¶39} However, the trial court’s judgment entry of sentencing states that

Eitzman “is not eligible for earned credit per Revised Code 2967.193 * * *”. Doc.

46. While Eitzman does not meet the eligibility requirements for earned credit

under R.C. 2967.193(A)(2), he is not statutorily ineligible for earned credit under

R.C. 2967.193(A)(1). Thus, the portion of the sentencing entry challenged by

-18- Case No. 7-21-03

Eitzman on appeal does not reflect the statutory eligibility standards for earned

credit as set forth in R.C. 2967.193 and is in need of clarification.

{¶40} In conclusion, the trial court opted to include a statement in its

judgment entry about Etizman’s eligibility for earned credit under R.C. 2967.193.

However, the statement that the trial court chose to include about earned credit under

2967.193 is inconsistent with the statutory standards set forth in that provision. Doc.

46. See R.C. 2967.193(A)(1), (C), (D)(1)(a). Since this statement is clearly and

convincingly contrary to law, we “vacate this portion of his sentence and remand

this matter to the trial court for the limited purpose of correcting the judgment entry.

. Accordingly, Eitzman’s fourth assignment of error is

sustained.

Fifth Assignment of Error

{¶41} Eitzman asserts that the Reagan Tokes Law is unconstitutional,

arguing that this provision violates his rights to due process.

Legal Standard

{¶42} Under Crim.R. 52(A), “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”

Crim.R. 52(B).

“In order to find plain error under Crim.R. 52(B), there must be an error, the error must be an ‘obvious’ defect in the trial proceedings, and the error must have affected ‘substantial rights.’” State v. Bowsher, 3d Dist. Union No. 14-07-32, 2009- Ohio-6524, ¶ 12, quoting State v. Barnes,

, 759

-19- Case No. 7-21-03

N.E.2d 1240 (2002). ‘The standard for plain error is whether, but for the error, the outcome of the proceeding clearly would have been otherwise.’ State v. Hornbeck,

, 2003- Ohio-6897,

(2d Dist.), citing State v. Long,

,

(1978). Notice of plain error is taken “only to ‘prevent a manifest miscarriage of justice.’” State v. Davis, 3d Dist. Seneca No. 13-16-30,

, quoting

at paragraph three of the syllabus.

. Under Crim.R. 52(B), “the defendant bears the burden of

demonstrating that a plain error affected his substantial rights.” (Emphasis sic.)

State v. Perry,

,

,

.

{¶43} Further, “[i]n order to be justiciable, a controversy must be ripe for

review.” State v. Loving,

,

,

, quoting Keller v. Columbus,

,

,

.

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 * * *.” Abbott Laboratories v. Gardner (1967),

,

,

[(reversed on other grounds in Califano v. Sanders,

,

,

(1977))]. * * *.

“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 [has] simply

-20- Case No. 7-21-03

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.

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

, 1998-Ohio-

366,

(1998). “A claim is not ripe for our consideration if it

rests on contingent future events that may not occur as anticipated or may never

occur at all.”

, citing Texas v. U.S.,

,

,

(1998).

Legal Analysis

{¶44} On appeal, Eitzman argues that the Reagan Tokes Law does not

contain adequate statutory protections for the due process rights of subject

offenders. He concedes that he did not challenge the constitutionality of the Reagan

Tokes Law before the trial court and that the plain error standard of review,

therefore, governs this assignment of error. See State v. Silvas, 3d Dist. Shelby No.

17-21-03,

. He also acknowledges that this Court has

previously rejected these exact same arguments but asks that this Court reconsider

its prior precedents in State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-

547, ¶ 12 and State v. Hacker,

,

(3d Dist.).1

1 We are aware that the Fourth, Fifth, Sixth, and Eleventh Districts found that separation of powers arguments and due process arguments that question the constitutionality of the Reagan Tokes Law are not yet ripe for review. See State v. Ramey, 4th Dist. Washington Nos. 20CA1 and 20CA2,

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

; State v. Velliquette, 2020- Ohio-4855,

(6th Dist.); State v. Lavean, 11th Dist. Lake No. 2020-L-045, 2021-Ohio- 1456, ¶ 12. We are also aware that, on December 28, 2020, the Supreme Court of Ohio accepted a case to

-21- Case No. 7-21-03

{¶45} In Hacker, the defendant-appellant raised a facial challenge to the

Reagan Tokes Law, arguing that this provision did not contain adequate due process

protections.

. However, we concluded that Hacker had not

demonstrated that the Reagan Tokes Law was unconstitutional on its face in the

aforementioned regards. Id. at ¶ 23. See State v. Kepling, 3d Dist. Hancock No. 5-

20-23,

; Crawford, supra, at ¶ 11.

{¶46} In Crawford, the defendant-appellant argued that his due process

rights might not be adequately protected “in the event that the [Ohio Department of

Rehabilitation and Corrections] ODRC acts to keep him beyond his presumptive

release date.” Crawford, supra, at ¶ 13. We noted that, at the time of the appeal,

we could not determine if Crawford would ever face such action from the ODRC.

Id. Because this argument was predicated “on contingent future events that may not

occur as anticipated or may never occur at all,” we concluded that this challenge

was not yet ripe for review. Id. at ¶ 12-13, quoting

. See also

.

{¶47} At this time, we decline to revisit our precedents in Hacker and

Crawford.

; Crawford, supra, at ¶ 12-13. We apply the

holdings of these prior decisions to the due process arguments raised by Eitzman

determine whether the constitutionality of the Reagan Tokes Law is ripe for review. State v. Maddox,

,

,

.

-22- Case No. 7-21-03

herein. For this reason, we conclude that Eitzman has not carried the burden of

demonstrating plain error. Accordingly, his fifth assignment of error is overruled.

Conclusion

{¶48} Having found no error prejudicial to the appellant in the particulars

assigned and argued in the first, second, third, and fifth assignments of error, the

judgment of Henry County Court of Common Pleas is affirmed as to these issues.

{¶49} Having found error prejudicial to the appellant in the particulars

assigned and argued in the fourth assignment of error, the judgment of the Henry

County Court of Common Pleas is reversed as to these issues.

{¶50} Accordingly, this case is remanded to the trial court for further

proceedings that are consistent with this opinion.

Judgment Affirmed in Part Reversed in Part And Cause Remanded

MILLER and SHAW, J.J., concur.

/hls

-23-