[Cite as State v. Dames, 2020-Ohio-4991.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109090
v. :
ANTHONY DAMES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 22, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-639052-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Amanda Hall, and Gregory
Ochocki, Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant, Anthony Dames (“Dames”), appeals his
sentence imposed pursuant to the Reagan Tokes Act. The sole issue before us is the
constitutionality of the statute; we find that Dames has not preserved this issue for
appeal, and for the following reasons, we affirm.
The Reagan Tokes Act
Senate Bill 201, commonly known as the Reagan Tokes Act, became
effective on March 22, 2019.1 The statute returns an indefinite sentencing scheme
to Ohio for certain qualifying offenses. All first- and second-degree felonies
committed after March 22, 2019, that are not already carrying a life sentence are
considered qualifying offenses. When confronting a nonconsecutive or concurrent
sentence, the Reagan Tokes Act first requires the sentencing judge to impose an
indefinite sentence with a minimum term selected by the judge. The judge must also
impose a maximum term predetermined pursuant to a statutory formula set forth
in R.C. 2929.144. The maximum term is 50% of the minimum term plus the
minimum term. An offender sentenced under Reagan Tokes has a rebuttable
presumption of release at the conclusion of his minimum term. However, at the
conclusion of his minimum term, the Ohio Department of Rehabilitation and
Correction (“ODRC”), must hold a hearing and may rebut the presumption of
release.
At the hearing, the ODRC must make specific findings to justify
keeping the offender beyond the presumptive release date up to the maximum
1The bill is named after a young woman, Reagan Tokes, a 21-year-old senior at the Ohio
State University. She was raped and murdered on February 8, 2017. Her assailant had
recently been released from prison on parole after serving six years on a rape conviction;
he had over fifty institutional violations from five different prisons over the course of his
incarceration.
sentence. In the instant case, Dames has a minimum sentence of seven years, and a
maximum sentence of ten and a half years, the ODRC may make specific findings
and hold Dames up to three and a half years more than his minimum term until the
conclusion of the maximum term.
Pursuant to R.C. 2967.271(C), the ODRC must find that one of the
following three conditions applies in order to hold an offender beyond the minimum
term:
(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.
(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.
While the ODRC may exercise its discretion to keep an offender
imprisoned, it also may exercise its discretion to demonstrate that the offender
merits early release, as long as the offender is not disqualified due to his security
level. Under the Reagan Tokes Act, the ODRC must draft administrative rules that
credit inmates who demonstrate appropriate conduct with “earned reduction of
minimum prison term” (“ERMPT”). ERMPT can reduce the minimum term
between 5 and 15%. There is a rebuttable presumption that the offender gets the
ERMPT credit once the ODRC requests it for the inmate.
The trial court will hold a hearing where the victim of the crime and
the state of Ohio can present arguments that the offender should stay in prison. The
trial court must then make findings to rebut the presumption; otherwise the ERMPT
is considered earned.
We turn now to the particulars of Dames’s case.
Facts
This appeal arises from the arrest of Anthony Dames on April 12,
2019, a period following the effective date of the Reagan Tokes Act. As a result,
Dames is one of the first individuals in Cuyahoga County to qualify for sentencing
under the statute.
On April 29, 2019, the Grand Jury returned a six-count indictment
for Dames. On May 2, 2019, Dames pled not guilty to the indictment. On July 22,
2019, Dames retracted his not guilty plea and pled guilty to four counts: felonious
assault, a second-degree felony in violation of R.C. 2903.11(A)(1); felonious assault,
a second-degree felony in violation of R.C. 2903.11(A)(2); attempted felonious
assault, a third-degree felony in violation of R.C. 2923.02 and 2903.11(A)(2) as
amended in the indictment; and domestic violence, a fourth-degree felony in
violation of R.C. 2919.25(A). All counts merged and the state elected to proceed to
sentencing on count 1, second-degree felonious assault.
On September 9, 2019, the court sentenced Dames pursuant to the
Reagan Tokes Act. The trial court judge informed Dames that he was being
sentenced under the new indefinite sentencing scheme to a minimum term of seven
years with an indefinite maximum term of ten and a half years. Pursuant to the
statute, the court accurately advised Dames that there was a rebuttable presumption
that he would be released at the end of his minimum term, but that the ODRC would
hold a hearing and could exercise its discretion to continue to keep Dames
imprisoned up to three and a half years until the end of the maximum term.
Dames did not object to his sentence nor raise any constitutional
challenge to the Reagan Tokes Act at any point during his sentencing hearing. He is
now appealing the constitutionality of the statute, presenting a single assignment of
error.
Assignment of Error I
As amended by the Reagan Tokes Act, the Revised Code’s sentences for
first and second degree qualifying felonies violate the constitutions of
the United States and the state of Ohio.
Analysis
After careful consideration, we find that Dames has failed to preserve
his claim challenging the constitutionality of the Reagan Tokes Act, and we decline
to review his challenge as a result.
“[T]he question of the constitutionality of a statute must generally be
raised at the first opportunity and, in a criminal prosecution, this means in the trial
court.” State v. Buttery, Slip Opinion No. 2020-Ohio-2998, ¶ 7, quoting State v.
Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986). Dames’s failure to raise a
constitutional challenge at the trial court level forfeits the argument. Buttery at ¶ 7,
see also State v. Alexander, 12th Dist. Butler No. CA2019-12-204, 2020-Ohio-3838.
Further, Dames failed to make an argument that plain error occurred.
Even if the appellant failed to object to the constitutionality of the
statute at the trial-court level, appellate courts may still review a trial court decision
for plain error. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19
N.E.3d 900, ¶ 16. However, in order to review for plain error “we require a showing
that there was an error, that the error was plain or obvious, that but for the error the
outcome of the proceeding would have been otherwise, and that reversal must be
necessary to correct a manifest miscarriage of justice.” Buttery at ¶ 7. Dames did
not make any plain error showing for this court to review.
Despite Dames’s forfeiture and his lack of a plain error showing, we
may still review this challenge; appellate courts have the discretion to consider
constitutional challenges to the application of statutes despite forfeiture “where the
rights and interests involved may warrant it.” Quarterman at ¶ 16, quoting In re
M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. The Second District has
reviewed a challenge to Reagan Tokes where the defendant failed to object at the
trial level; nevertheless the court exercised its discretion and found Reagan Tokes
constitutional. State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150.
However, while we recognize that we have the authority to review Dames’s
challenge, we decline to exercise our discretion for three reasons.
First, we are conscious that when considering the constitutionality of
a statute, we presume constitutionality. Harrold v. Collier, 107 Ohio St.3d 44, 2005-
Ohio-5334, 836 N.E.2d 1165, ¶ 36, citing State v. Thompkins, 75 Ohio St.3d 558,
560, 664 N.E.2d 926 (1996). We note as an aside that our sister courts, presuming
constitutionality, have reviewed challenges to the Reagan Tokes Act and found that
the statute did not violate due process rights or infringe on the separation of powers.
See State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837; State
v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153; State v. Leet, 2d
Dist. Montgomery No. 28670, 2020-Ohio-4592.
Second, the Ohio Supreme Court has observed that justice is better
served when there is a lower court decision to consider. Sizemore v. Smith, 6 Ohio
St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2. Dames did not object, so the lower
court did not have the opportunity to rule on the constitutionality of the statute.
Third, Dames did not raise any plain error arguments for us to
address.
Given the lack of presentment to the trial court and the absence of
plain error arguments, we decline to address the constitutionality of the Reagan
Tokes Act as to this case.
Finally, we note that some of our sister courts have found that
challenges to the Reagan Tokes Act are not yet ripe for review. See State v.
Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227; State v.
Manion, 5th Dist. Tuscarawas No. AP 03 0009, 2020-Ohio-4230; State v. Kibler,
5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631; State v. Maddox, 6th
Dist. Lucas No. CL-19-1253, 2020-Ohio-4702; see also State v. Conant, 4th Dist.
Adams No. 20CA1108, 2020-Ohio-4319 (declining to review a Reagan Tokes Act
challenge where the defendant did not present a plain error argument and the
defendant did not address whether his challenge was ripe.) Inherent in a challenge
to the Reagan Tokes Act is a challenge to the executive branch’s authority to hold
defendants beyond the end of the minimum term and the presumption of release.
The Fifth and Sixth Districts have found that because the defendant had not yet
served their minimum term and been imprisoned for all or a portion of the
maximum term by the executive branch, there was no injury and therefore nothing
for the courts to do.
The state argued that this issue was not yet ripe for our review.
However, we decline to rule on that issue because we have already found that it is
not proper for us to review Dames’s constitutional challenge for alternative reasons.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
EILEEN A. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR