[Cite as State v. Keith, 2021-Ohio-518.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28805
:
v. : Trial Court Case No. 2020-CR-108
:
MICHAEL KEITH : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 26th day of February, 2021.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
JEFFERY S. REZABEK, Atty. Reg. No. 0069117, 111 West First Street, Suite 1150,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, J.
-2-
The State of Ohio appeals from the trial court’s judgment convicting Michael
Keith, following his guilty plea, on one count of felonious assault in violation of R.C.
2903.11(A)(1), a felony of the second degree, and one count of domestic violence, in
violation of R.C. 2919.25(A), a misdemeanor of the first degree. After the court merged
the two counts, the State elected to proceed to sentencing on the felony offense, felonious
assault. After declaring the Reagan Tokes Act (“RTA”) unconstitutional because it
violated the separation of powers doctrine, the court imposed a definite sentence of two
years, instead of imposing an indeterminate sentence as required by the RTA. For the
following reasons, we reverse the judgment of the trial court and remand the matter solely
for resentencing pursuant to the RTA.
The State of Ohio’s assignment of error is as follows:
THE REAGAN TOKES ACT, CODIFIED IN R.C. 2929.144 AND
INSTITUTING A VERSION OF INDETERMINATE SENTENCING, DOES
NOT VIOLATE SEPARATION OF POWERS, NOR IS IT OTHERWISE
UNCONSTITUTIONAL.
The State asserts that, because Keith was convicted of a qualifying second-
degree felony under the RTA and was sentenced to the agreed minimum term of two
years in prison, R.C. 2929.144(B)(1) required the trial court to impose an indefinite
sentence, i.e., a minimum term of two years and a maximum term of three years. The
State asserts that, because the trial court failed to impose a statutorily-authorized
sentence, “the determinate two-year sentence imposed by the trial court was contrary to
law.” According to the State, the trial court’s reason for not imposing a sentence that
conforms with Ohio’s current sentencing scheme – that the legislation that led to the
-3-
codification of R.C. 2929.144 was unconstitutional – was “legally unsound.”
Citing State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153,
¶ 23, the State points out that this Court has already decided that the RTA does not violate
the separation of powers doctrine. The State argues that, pursuant to the RTA, because
the minimum term of Keith’s sentence was two years, R.C. 2929.144(B) required the trial
court also to impose a maximum term of three years, and its failure to do so was contrary
to law.
Keith responds that the RTA does violate the separation of powers doctrine
and is otherwise unconstitutional. Specifically, he argues that, under the RTA, qualifying
first- and second-degree felonies are sentenced under indefinite sentencing schemes,
whereby the Ohio Department of Rehabilitation and Correction (ODRC) “makes the
decision as to whether the offender committed a new crime, and may be held in custody
until the maximum term of sentencing.” He argues that his sentence was imposed
pursuant to a negotiated plea agreement, whereby he would receive an agreed minimum
prison sentence of two years, and the trial court, in its discretion, properly imposed the
two-year agreed-upon prison term, “opting not to impose an indefinite term of
imprisonment.” According to Keith, the portions of the RTA which would allow the ODRC
to “administratively extend” his prison term beyond the presumptive minimum prison term
violate the United States and Ohio Constitutions, because they place sentencing
discretion in the hands of the ODRC rather than the trial court.
Keith further asserts that, because R.C. 2967.271(C)(1)(a) enumerates “the
commission of ‘a violation of the law’ that was not prosecuted” as one reason to increase
an inmate’s length of incarceration, this provision “effectively places the ODRC in the
-4-
place of judge and jury,” allows it “to unilaterally decide whether or not a new crime has
been committed,” and also allows it “to level a punishment for the commission of the new
crime outside the prescribed constitutional judicial process.”
R.C. 2929.14(A)(2)(a) provides:
For a felony of the second degree committed on or after the effective
date of this amendment, the prison term shall be an indefinite prison term
with a stated minimum term selected by the court of two, three, four, five,
six, seven, or eight years and a maximum term that is determined pursuant
to section 2929.144 of the Revised Code, except that if the section that
criminalizes the conduct constituting the felony specifies a different
minimum term or penalty for the offense, the specific language of that
section shall control in determining the minimum term or otherwise
sentencing the offender but the minimum term or sentence imposed under
that specific language shall be considered for purposes of the Revised Code
as if it had been imposed under this division.
R.C. 2929.144(B)(1) provides: “If the offender is being sentenced for one
felony and the felony is a qualifying felony of the first or second degree, the maximum
prison term shall be equal to the minimum term imposed on the offender under division
(A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code plus fifty per cent of that term.”
As this Court has noted, the RTA introduced indefinite sentencing for first
and second-degree felonies committed after March 22, 2019. See R.C. 2967.271;
State v. Sinkhorn, 2d Dist. Clark No. 2019 CA 79, 2020-Ohio-5359, ¶ 27; State v. Baker,
2d Dist. Montgomery No. 28782, 2021-Ohio-140, ¶ 5. We explained:
-5-
Under the Reagan Tokes Act, a trial court decides the minimum and
maximum terms of a defendant's sentence. When the minimum term
expires, there is a presumption that the offender shall be released.
However, ODRC may rebut the presumption and hold a prisoner in custody
up to the maximum term after holding a hearing. See R.C. 2967.271(B)-
(D). The statute contains factors that apply relating to an offender's
conduct while in prison. See R.C. 2967.271(C). In addition, the statute
also allows ODRC to recommend to the court that an offender's minimum
sentence be reduced, based on the offender's “exceptional conduct while
incarcerated or the offender's adjustment to incarceration.” R.C.
2967.271(F)(1).
Sinkhorn at ¶ 30.
This Court has further stated:
* * * We recently upheld the constitutionality of the Reagan Tokes
Act. See State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-
4153. In Ferguson, we concluded that the Act does not violate the
separation-of-powers doctrine. We reasoned that the Act's scheme is
consistent with established Ohio Supreme Court authority, which has 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.” Id. at ¶ 23, citing
Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301,
¶ 18-20. (Other citation omitted.)
-6-
Sinkhorn at ¶ 32.
Regarding due process, we further held in Ferguson as follows:
[T]he fundamental requisite of due process of law is the opportunity
to be heard in a meaningful time and in a meaningful manner.” * * * The
Reagan Tokes Law satisfies these requirements. The Law states that, in
order to rebut the presumption of the minimum term, the DRC [Department
of Rehabilitation and Correction] must make a particular statutory
determination “at a hearing.” R.C. 2967.271(C) and (D). The Law does
not give the DRC unfettered discretion to require an offender to serve more
than the minimum term. And it affords an offender notice and an
opportunity to be heard before more than the minimum may be required.
Ferguson at ¶ 25.
Other cases from our district have also upheld the constitutionality of the
Reagan Tokes Act. See State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-
4150; State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592. See also State
v. Wallace, 2d Dist. Clark No. 2020-CA-3, 2020-Ohio-5109, ¶ 14 (“We continue to adhere
to our conclusion that the Reagan Tokes Law does not violate the separation-of-powers
doctrine or a defendant's right to procedural due process.”).
Consistent with the above decisions by this Court, we hereby sustain the
State’s assignment of error, reverse the trial court’s judgment with respect to its sentence
only, and remand the matter to the trial court to resentence Keith in accordance with the
Reagan Tokes Act.
.............
-7-
TUCKER, P. J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Jeffery S. Rezabek
Steven K. Dankof