State v. Montgomery

[Cite as State v. Montgomery, 2020-Ohio-5552.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1202

Appellee Trial Court No. CR0201901893

v.

James Montgomery DECISION AND JUDGMENT

Appellant Decided: December 4, 2020

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

Dan M. Weiss, for appellant.

******

SINGER, J.

{¶ 1} This case is before the court on appeal by appellant, James M. Montgomery,

from the August 22, 2019 judgment of the Lucas County Court of Common Pleas. For

the reasons that follow, we dismiss, in part, appellant’s appeal, and otherwise affirm the

trial court’s judgment.
 {¶ 2} Instead of assignments of error, appellant sets forth three issues:

I. Appellant’s sentence pursuant to Senate Bill 201 (“S.B. 201”) and

O.R.C. 2929.144 violates the constitutional doctrine of the separation of

powers

II. The trial court’s judgment violates the appellant’s due process

rights pursuant to the Fifth and Fourteenth Amendments of the United

States Constitution

III. Appellant’s plea was not done knowingly, voluntarily, and

intelligently made [sic]

Facts

{¶ 3} On the morning of April 10, 2019, appellant and his father were summoned

by appellant’s sister to assist her in resolving an argument which occurred during a drug

party attended by the sister at a mobile home. Appellant and his father responded to the

request for help and entered the mobile home, where fighting ensued. Appellant was

arrested, along with his father and sister.

{¶ 4} On May 21, 2019, appellant was indicted on one count of felonious assault

in violation of R.C. 2903.11(A)(1) and (D), a felony of the second degree, and one count

of aggravated burglary in violation of R.C. 2911.11(A)(1) and (B), a felony of the first

degree. On May 28, 2019, appellant was arraigned, and entered a plea of not guilty.

{¶ 5} On June 25, 2019, a pretrial hearing was held where the state represented

that it had extended a plea offer, amending the aggravated burglary charge to burglary, a

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felony of the second degree, and requesting a nolle prosequi as to the felonious assault

count.

{¶ 6} On July 23, 2019, another pretrial hearing was held at which the state

represented that, with respect to the plea offer, it was recommending a two-year prison

sanction, with a three-year maximum. The court noted the plea fell under the new law,

the Reagan Tokes Law (“the Law”); the matter was continued.

{¶ 7} On July 30, 2019, a change of plea hearing was held. Appellant withdrew

his not guilty plea and entered a no contest plea to the amended charge of burglary in

violation of R.C. 2911.12(A)(1) and (2), a second-degree felony. The court found

appellant guilty.

{¶ 8} On August 20, 2019, appellant’s sentencing hearing was held. The trial

court ordered appellant to serve a non-life indefinite prison term of a minimum of three

years and a maximum of four and one-half years, followed by three years of mandatory

postrelease control. The court entered a nolle prosequi as to the felonious assault charge.

Appellant timely appealed.

{¶ 9} We will address appellant’s issues out of order.

Appellant’s Third Issue

{¶ 10} Appellant argues he “did not knowingly, intelligently and voluntarily enter

his plea, because he was informed by the trial court of his specific sentence in exchange

for his plea to the amended charge.” Appellant contends the court’s language was clear

that by entering into the plea, the court would sentence appellant to a minimum prison

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term of two years and a maximum prison term of three years. In support of his

arguments, appellant refers to portions of the transcript from the July 30, 2019 change of

plea hearing relating to the prison term, and cites to Crim.R. 11, State v. Dornoff, 6th

Dist. No. WD-16-072, 2018-Ohio-3084, 105 N.E.3d 1278, State v. Ballard, 66 Ohio

St.2d 473, 423 N.E.2d 115 (1981) and State v. Asberry, 173 Ohio App.3d 443, 2007-

Ohio-5436, 878 N.E.2d 1082 (8th Dist.), which quotes State v. Nero, 56 Ohio St.3d 106,

564 N.E.2d 474 (1990). Appellant submits “an appellate court reviews a non-

constitutional violation to determine if the court substantially complied and is determined

by the totality of the circumstances [sic].” Appellant requests that his sentence be

vacated and the matter remanded for a sentence consistent with the agreement presented

to him.

Law

{¶ 11} A defendant’s plea must be entered knowingly, intelligently, and

voluntarily in order for the plea to be constitutional under the United States and Ohio

Constitutions. State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Prior to

accepting a plea, Crim.R. 11(C) requires the trial court to convey certain information so

the defendant can make a voluntary and intelligent decision. Ballard at 479-480.

{¶ 12} Crim.R. 11(C)(2) states:

In felony cases the court may refuse to accept a plea of guilty or a

plea of no contest, and shall not accept a plea of guilty or no contest

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 without first addressing the defendant personally and doing all of the

following:

(a) Determining that the defendant is making the plea voluntarily,

with understanding of the nature of the charges and of the maximum

penalty involved, and if applicable, that the defendant is not eligible for

probation or for the imposition of community control sanctions at the

sentencing hearing.

(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court,

upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant’s favor, and to require the state to

prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.

{¶ 13} Strict compliance with Crim.R. 11 is required when the court is informing

the defendant of constitutional rights, while only substantial compliance with Crim.R. 11

is required for nonconstitutional rights. State v. Kamer, 6th Dist. Lucas Nos. L-08-1114

and L-08-1429, 2009-Ohio-5995, ¶ 30. The constitutional rights are: (1) the Fifth

Amendment privilege against compulsory self-incrimination; (2) the right to trial by jury;

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and (3) the right to confront one’s accusers. Nero, 56 Ohio St.3d at 107, 564 N.E.2d 474,

citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

{¶ 14} “‘Substantial compliance means that under the totality of the circumstances

the defendant subjectively understands the implications of his plea and the rights he is

waiving.’ * * * Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474.” Asberry, 173 Ohio App.3d

443, 2007-Ohio-5436, 878 N.E.2d 1082 at ¶ 14. A reviewing court will not vacate a plea

if the trial court substantially complied with the nonconstitutional requirements of

Crim.R. 11. Nero at 108, citing State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d

1163 (1977). However, “[w]hen the trial judge does not substantially comply with

Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine

whether the trial court partially complied or failed to comply with the rule.” State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. “If the trial judge

partially complied * * * the plea may be vacated only if the defendant demonstrates a

prejudicial effect.” Id. at ¶ 31. On the other hand, “[i]f the trial judge completely failed

to comply with the rule * * * the plea must be vacated” and prejudice need not be

demonstrated. Id. at ¶ 32.

Analysis

{¶ 15} Upon review, appellant acknowledged that the issue he raised involves a

nonconstitutional right, which we review for substantial compliance.

{¶ 16} An examination of the record shows that at the change of plea hearing, the

court addressed appellant personally and determined appellant understood the nature of

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the amended charge and the maximum penalty. The court informed appellant of the

effect of a plea of no contest, and determined appellant understood. The court also

informed appellant that upon acceptance of the plea, the court may proceed with

judgment and sentence. The court further informed appellant of his constitutional rights,

and determined that appellant understood these rights.

{¶ 17} We find that under the totality of the circumstances, the trial court

substantially complied with Crim.R. 11, with respect to appellant’s nonconstitutional

rights, prior to accepting appellant’s plea. Moreover, appellant has not argued or

demonstrated that he suffered prejudice, and the record contains no evidence that

appellant would not have otherwise entered the plea. Therefore, on the basis for relief

raised by appellant, we will not vacate appellant’s plea, nor will we find that appellant’s

plea was not knowingly, intelligently and voluntarily made. Accordingly, appellant’s

third issue is not well-taken.

Appellant’s First and Second Issues

{¶ 18} Appellant’s first and second issues both relate to the Law (S.B. 201, of

which R.C. 2929.144 is a part), and will therefore be addressed together.

{¶ 19} Appellant argues his sentence, pursuant to S.B. 201 and R.C. 2929.144,

violates the separation of powers doctrine, and the trial court’s judgment violates

appellant’s due process rights under the Fifth and Fourteenth Amendments of the United

States Constitution. Appellant cites to several cases and statutes, including R.C.

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2967.271, and seeks to have his sentence vacated and the case remanded for a new

sentence.

Law

{¶ 20} The Law “significantly altered the sentencing structure for many of Ohio’s

most serious felonies” by implementing an indefinite sentencing system for non-life, first

and second-degree felonies committed on or after March 22, 2019. State v. Polley, 6th

Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1. The Law specifies that the

indefinite prison terms 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 establishes a presumptive release date

from prison at the end of the minimum term, however the Ohio Department of

Rehabilitation and Correction (“ODRC”) can rebut the presumption if it determines, after

a hearing, that one or more factors applies, including the offender’s conduct while

incarcerated. R.C. 2967.271(B), (C)(1), (2) and (3). If ODRC rebuts the presumption,

the offender may remain incarcerated for a reasonable, additional period of time,

determined by ODRC, but not to exceed the offender’s maximum prison term. R.C.

2967.271(D).

{¶ 21} In State v. Maddox, 6th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702, ¶ 5,

we were faced with our first challenge to the Law, specifically that “the presumptive

release feature of R.C. 2967.271, * * * violates * * * due process of law, and further

violates the constitutional requirement of separation of powers.” Maddox argued that the

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portions of the statute which allow ODRC to administratively extend his prison term

beyond the presumptive minimum prison term violate the United States and Ohio

Constitutions. Id. at ¶ 7. Since Maddox had “not yet been subject to the application of

these provisions, as he has not yet served his minimum term, and * * * [had] not been

denied release at the expiration of his minimum term of incarceration,” we found the

issues he raised were not yet ripe for review. Id. at ¶ 7, 14. We dismissed the appeal. Id.

at ¶ 15.

{¶ 22} Thereafter, in State v. Velliquette, 6th Dist. Lucas No. L-19-1232, 2020-

Ohio-4855, ___ N.E.3d ___, ¶ 26, Velliquette argued that R.C. 2967.271, the Law, was

unconstitutional as it violated the separation of powers doctrine and his due process

rights. We found, on the authority of Maddox, that the issue of the constitutionality of

potential extensions to the presumed minimum prison term were not ripe for review. Id.

at ¶ 32. However, we observe that several other jurisdictions have implicitly determined

the issue was ripe for review by addressing the constitutional challenge to the Law

regarding future, possible extensions of a prison term beyond the presumed minimum

term. Id. at ¶ 30.

{¶ 23} Section 3(B)(4), Article IV of the Ohio Constitution provides “[w]henever

the judges of a court of appeals find that a judgment upon which they have agreed is in

conflict with a judgment pronounced upon the same question by any other court of

appeals of the state, the judges shall certify the record of the case to the supreme court for

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review and final determination.” Id. at ¶ 31. The Ohio Supreme Court set forth three

requirements which must be met in order to certify a case:

First, the certifying court must find that its judgment is in conflict with the

judgment of a court of appeals of another district and the asserted conflict

must be “upon the same question.” Second, the alleged conflict must be on

a rule of law-not facts. Third, the journal entry or opinion of the certifying

court must clearly set forth that rule of law which the certifying court

contends in in conflict with the judgment on the same question by other

district courts of appeals. Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d

594, 596, 613 N.E.2d 1032 (1993). Id.

Analysis

{¶ 24} An examination of the record shows appellant’s offense occurred after the

effective date of the Law. At the time of sentencing, appellant’s counsel lodged a

“general objection for the record due to Senate Bill 201.” Counsel contended S.B. 201

“violates the separation of powers, the inherent power of the Court to make decisions in

sentencing. It violates [appellant’s] due process rights. Also * * * there’s a liberty

interest at stake.” Appellant was sentenced pursuant to the Law.

{¶ 25} Based on our precedent in Maddox and Velliquette, we find appellant’s

challenges to the constitutionality of the Law, regarding potential extensions to his

presumed minimum prison term, are not ripe for review. Accordingly, we dismiss

appellant’s first and second issues. We recognize that this determination is in conflict

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with decisions of the Second and Twelfth District Courts of Appeals. See State v.

Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, State v. Leet, 2d Dist.

Montgomery No. 28670, 2020-Ohio-4592, State v. Ferguson, 2d Dist. Montgomery No.

28644, 2020-Ohio-4153, State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-

Ohio-3837, State v. Rodgers, 12th Dist. Butler No. CA2019-11-194, 2020-Ohio-4102,

___ N.E.3d ___, and State v. Morris, 12th Dist. Butler No. CA2019-12-205, 2020-Ohio-

4103. We therefore sua sponte certify a conflict to the Supreme Court of Ohio, pursuant

to Article IV, Section 3(B)(4), Ohio Constitution. As this case concerns the same conflict

at issue in Maddox, we certify the same question for review:

Is the constitutionality of the provisions of the Reagan Tokes Act,

which allow the Department of Rehabilitation and Corrections 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?

Conclusion

{¶ 26} In light of the forgoing, we dismiss, in part, appellant’s appeal, and affirm

the August 22, 2019 judgment of the Lucas County Court of Common Pleas. The parties

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are directed to S.Ct.Prac.R. 8.01 for instruction as to how to proceed with the certified

conflict. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Appeal dismissed, in part,
and judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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