[Cite as State v. Wallace,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Earle E. Wise, Jr., P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. CT2021-0043 JUSTIN WALLACE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2021-0139

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 5, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH JAMES A. ANZELMO PROSECUTING ATTORNEY 446 Howland Drive TAYLOR P. BENNINGTON Gahanna, Ohio 43230 ASSISTANT PROSECUTOR 27 North Fifth Street, P.O. Box 189 Zanesville, Ohio 43701 Muskingum County, Case No. CT2021-0043 2

Wise, John, J.

{¶1} Appellant Justin Wallace appeals his sentence entered in the Muskingum

County Court of Common Pleas. Appellee is the State of Ohio. The relevant facts leading

to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} On March 10, 2021, Appellant was indicted on one count of Possession of

Drugs in violation of R.C. §2925.11(A) with a forfeiture specification, and one count

Resisting Arrest in violation of R.C. §2921.33(A).

{¶3} On June 14, 2021, Appellant entered a plea of guilty to the indictment.

{¶4} On August 11, 2021, the trial court sentenced Appellant to an aggregate

minimum prison term of seven mandatory years, and an aggregate maximum term of ten

and a half years. The court ordered Appellant to forfeit $1,432 of seized U.S. currency.

ASSIGNMENTS OF ERROR

{¶5} Appellant filed a timely notice of appeal. He herein raises the following three

Assignments of Error:

{¶6} “I. AS AMENDED BYTHE [sic] REAGAN TOKES ACT, THE REVISED

CODE’S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES

VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF

OHIO.

{¶7} “II. WALLACE 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. Muskingum County, Case No. CT2021-0043 3

{¶8} “III. THE TRIAL COURT ERRED BY DENYING WALLACE’S MOTION TO

WAIVE THE MANDATORY FINE.”

I.

{¶9} In Appellant’s first Assignment of Error, Appellant challenges the

constitutionality of the Reagan Tokes Act, specifically R.C. §2967.271, which codified

hybrid indefinite prison terms for first- and second-degree felonies. Appellant argues that

the Act violates the separation of powers doctrine, the constitutional right to trial by jury,

and due process. We disagree.

{¶10} This Court has previously found this type of challenge to not yet be ripe for

review. State v. Downard, 5th Dist. Muskingum, CT2019,

, appeal

allowed,

,

,

. However, the Ohio

Supreme Court found that the issue of the constitutionality of an indeterminate sentence

imposed under R.C. §2967.271 ripens at the time of sentencing, and that the law may be

challenged on direct appeal. State v. Maddox,

.

{¶11} Recently, in State v. Burris, 5th Dist. Guernsey No. 21CA000021, 2022-

Ohio-1481, and State v. Ratliff, 5th Dist. Guernsey No. 21CA000016,

,

this Court set forth analysis regarding Appellant’s arguments.

Violation of Right to Trial by Jury

{¶12} Appellant argues that the Department of Rehabilitation and Correction

(“DRC”) unilaterally conducts fact finding which may extend an inmate’s sentence, and

that this violates Appellant’s right to trial by jury citing Apprendi v. New Jersey,

,

,

(2000). We disagree. Muskingum County, Case No. CT2021-0043 4

{¶13} In Apprendi, a jury convicted the defendant of a gun crime that carried a

maximum prison sentence of 10 years.

However, a judge imposed a longer sentence

pursuant to a statute providing him authorization.

The judge 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,” the Court explained, “must be

submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant.

,

. A State may not avoid this restraint on 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?”

,

.

{¶14} In Alleyne v. United States,

,

,

(2013), the United States Supreme Court addressed mandatory minimum sentences and

the Sixth Amendment. In Alleyne, the jury relied on victim testimony of an armed robbery

that one of the perpetrators possessed a gun. The trial court relied on the same testimony

to determine that either Alleyne or his accomplice brandished a gun. The testimony was

the same, but the findings were different. The jury found that Alleyne possessed a gun,

but made no finding with regard to whether Alleyne brandished a gun. The court, however

determined that the gun was brandished. The Supreme Court reviewed the statutory

punishment structure, which included a mandatory minimum sentence of five years if a

crime of violence was committed while the offender carried a firearm, seven years if the Muskingum County, Case No. CT2021-0043 5

firearm was brandished, and ten years if the firearm was discharged during the crime. 18

U.S.C. 924(c)(1)(A). The crime was otherwise punishable by a term of imprisonment not

exceeding 20 years. 18 U.S.C.1951 (a). The Court held that where facts were not found

by a jury that enhanced the mandatory minimum penalty for a crime, the Sixth

Amendment was violated. Specifically, “[b]ecause mandatory minimum sentences

increase the penalty for a crime, any fact that increases the mandatory minimum is an

‘element’ that must be submitted to the jury.”

. See, State v. Fort, 8th Dist.

Cuyahoga No. 100346,

,

. However, the majority in

Alleyne held:

In holding that facts that increase mandatory minimum sentences

must be submitted to the jury, we take care to note what our holding does

not entail. Our ruling today does not mean that any fact that influences

judicial discretion must be found by a jury. We have long recognized that

broad sentencing discretion, informed by judicial fact-finding, does not

violate the Sixth Amendment. See, e.g., Dillon v. United States,

, ––––,

,

(2010) (“[W]ithin

established limits [,] ... the exercise of [sentencing] discretion does not

contravene the Sixth Amendment even if it is informed by judge-found facts”

(emphasis deleted and internal quotation marks omitted)); Apprendi,

,

(“[N]othing in this history suggests that it is

impermissible for judges to exercise discretion—taking into consideration

various factors relating both to offense and offender—in imposing a

judgment within the range prescribed by statute”). Muskingum County, Case No. CT2021-0043 6

Alleyne,

. See also, State v. Salim, 5th Dist. Guernsey

No. 13 CA 28,

.

{¶15} Under the Reagan Tokes Act the judge imposes both a minimum and a

maximum sentence. No judicial fact finding is required. In Ohio, “trial courts have full

discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” State v. Kalish,

,

,

. The Reagan Tokes Act does not permit the Department of Rehabilitation

and Correction (“DRC”) to extend a sentence beyond the maximum sentence imposed by

the trial court. Burris at ¶86. “Further, the facts which postpone an inmate’s release date

are facts found as a result of prison disciplinary proceedings, not the underlying crime.”

Violation of Separate Powers

{¶16} “The Ohio Supreme Court has made it clear 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.” Burris at ¶78, citing

Hernandez v. Kelly,

,

,

, ¶18-20 citing

State v. Jordan,

,

,

, ¶19. This is the

scheme established by the Reagan Tokes Law. State v. Ferguson, 2nd Dist. Montgomery

No. 28644,

. The statute does not permit DRC to act outside of the

maximum prison term imposed by the court.

Accordingly, the Reagan Tokes Act does

not violate the separation of powers doctrine. Muskingum County, Case No. CT2021-0043 7

Violation of Due Process

{¶17} Procedural requirements are minimal in the context of parole. Burris at ¶59.

“[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. Wolff v. McDonnell,

,

,

(1974) (citations omitted). Courts have

found the following procedures should be accorded to prisoners in a disciplinary

proceeding:

1). a prisoner is entitled to a review unaffected by “arbitrary” decision

making. Wolff,

,

; (See,

-9-08). 2). Advance written notice of the claimed violation. Wolff,

,

. (See, Ohio Adm. Code 5120:1-8-12). 3). A

written statement of the fact finders as to the evidence relied upon and the

reasons for the disciplinary action taken. Wolff,

,

. (See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120: 1-

11(G)(1)). 4). Prison official must have necessary discretion to keep the

hearing within reasonable limits and to refuse to call witnesses that may

create a risk of reprisal or undermine authority, as well as to limit access to

other inmates to collect statements or to compile other documentary

evidence. Wolff,

,

(See, Ohio Adm. Code

5120-0-08(E) (3); Ohio Adm. Code 5120-9-08(F)). 5). “Where an illiterate

inmate will be able to collect and present the evidence necessary for an

adequate comprehension of the case, he should be free to seek the aid of

a fellow inmate, or if that is forbidden, to have adequate substitute aid in the Muskingum County, Case No. CT2021-0043 8

form of help from the staff or from a sufficiently competent inmate

designated by the staff.” Wolff,

,

. (See, Ohio

Adm. Code 5120-9-07(H)(1)).

Burris at ¶55

{¶18} In the case sub judice, the DRC must conduct a hearing to rebut the

presumptive release date. Id. at ¶66. According to R.C. §2967.271(C) the DRC must

determine the applicability of the following factors:

(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

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

violations demonstrate that the offender has not been rehabilitated.

(b) 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. Muskingum County, Case No. CT2021-0043 9

(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.

{¶19} The Reagan Tokes Act requires DRC to provide notice of the hearing. R.C.

§2967.271(E). The Ohio Administrative code sets forth inmate rules of conduct,

disciplinary procedures for violations of the rules, under what circumstances an inmate is

transferred to restrictive housing, and procedure for release consideration hearings. Ohio

Adm. Code 5120-9-06; Ohio Adm. Code 5120-9-08; Ohio Adm. Code 5120-9-10; Ohio

Adm. Code 5120: 1-1-11. Therefore, the DRC gives the inmate notice in advance of

behavior which may contribute or result to extending their sentence.

{¶20} The Reagan Tokes Act provides the inmate an opportunity to be heard. The

DRC “shall provide notices of hearings to be conducted under division (C) or (D) of this

section in the same manner, and to the same persons, as specified in section 2967.12

and Chapter 2930 of the Revised Code with respect to hearings to be conducted

regarding the possible release on parole of an inmate.” R.C. §2967.271(E).

{¶21} Therefore, we find the Reagan Tokes Act does not violate Appellant’s right

to due process.

II.

{¶22} In Appellant’s second Assignment of Error, Appellant argues his trial

counsel rendered ineffective assistance by failing to challenge the constitutionality of R.C.

§2967.271. We disagree.

{¶23} 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 Muskingum County, Case No. CT2021-0043 10

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.”

.

{¶24} Because we have found R.C. §2967.271 is constitutional, Appellant cannot

demonstrate prejudice from counsel’s failure to raise the claim in the trial court.

{¶25} Appellant’s second Assignment of Error is overruled.

III.

{¶26} In Appellant’s third Assignment of Error, Appellant argues the trial court

erred in overruling his motion to waive the mandatory fine in the instant case. We

disagree.

{¶27} Appellate courts review a decision to impose a financial sanction for an

abuse of discretion. State v. Ludwig, 5th Dist. Muskingum No. CT2020-0008, 2021-Ohio-

383, ¶22; citing State v. Gipson,

,

(1998).

{¶28} R.C. 2929.18(B)(1) states, in pertinent part, “[i]f an offender alleges in an

affidavit filed with the court prior to sentencing that the offender is indigent and unable to

pay the mandatory fine and if the court determines the offender is an indigent person and

is unable to pay the mandatory fine described in this division, the court shall not impose

the mandatory fine upon the offender.” Muskingum County, Case No. CT2021-0043 11

{¶29} In State v. Perry, 5th Dist. Stark No. 2004-CA-00066,

, ¶27 this

Court held:

[T]here are no express factors that must be taken into consideration

or findings regarding the offender’s ability to pay that must be made on the

record.” State v. Martin,

,

, 2000-

Ohio-1942. Although a court may hold a hearing under R.C. 2929.18(E) “to

determine whether the offender is able to pay the [financial] sanction or is

likely in the future to be able to pay it” a court is not required to do so. State

v. Stevens (Sept. 21, 1998), 12th Dist. No. CA98-01-001, unreported

(“although the trial court must consider the offender’s ability to pay, it need

not hold a separate hearing on that issue.” “All that R.C. 2929.19(B)(6)

requires is that the trial court consider the offender’s present and future

ability to pay. State v. Dunaway, 12th Dist. No. CA2001-12-280, 2003-Ohio-

1062, at 36; Martin,

,

(Emphasis

added).

{¶30} R.C. §2929.18(B)(1) places the burden on the offender to demonstrate

indigency and an inability to pay the mandatory fine. State v. Gipson,

,

(1998). The trial court does not have to find an offender is able to

pay, but the fine is mandatory unless the offender established indigence and an inability

to pay.

{¶31} The trial court denied the motion to waive the mandatory fine, finding that

Appellant is a drug dealer and the amount of money forfeited, it was not unreasonable for Muskingum County, Case No. CT2021-0043 12

Appellant to be able to pay the mandatory fine. We find the trial court did not abuse its

discretion in overruling Appellant’s motion to waive the mandatory fine.

{¶32} Appellant’s third Assignment of Error is overruled.

{¶33} For the foregoing reasons, the judgment of the Court of Common Pleas of

Muskingum County, Ohio, is hereby affirmed.

By: Wise, John, J.

Wise, Earle, P. J., and

Delaney, J., concur.

JWW/br 0629