State v. Hodgkin

[Cite as State v. Hodgkin, 2021-Ohio-1353.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, : CASE NO. CA2020-08-048

Appellee, : OPINION
4/19/2021
:
- vs -
:

PHILLIP HODGKIN, :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 20CR36406

David P. Fornshell, Warren County Prosecutor, Kirsten A. Brandt, 520 Justice Drive,
Lebanon, Ohio 45036, for appellee

Anzelmo Law, James A. Anzelmo, 446 Howland Drive, Gahanna, Ohio 43230, for appellant

M. POWELL, J.

{¶ 1} Appellant, Phillip Hodgkin, appeals his indefinite prison sentence in the

Warren County Court of Common Pleas for robbery.

{¶ 2} Appellant was indicted in February 2020 for aggravated robbery and theft from

a person in a protected class, both with an accompanying firearm specification, and having
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weapons while under disability. During a plea hearing on June 11, 2020, the trial court

conducted a Crim.R. 11 colloquy and advised appellant that the minimum sentence was a

two-year prison term and the maximum prison term was 8 to 12 years. The trial court stated,

"And I think I explained earlier about that eight to twelve, how that works." Appellant replied,

"Reagan Tokes or something like that. Yeah, I understand that."

{¶ 3} The trial court further advised appellant,

There's a presumption of release at the end of your minimum
term which is not determined at this point. But whatever the
minimum term is, the maximum would be no more than twelve.
* * * There is a presumption that you will be released at the end
of the minimum term. And that presumption can be overcome
by the Department of Corrections if they can show that you have
not behaved yourself appropriately[.] * * * But it's that you
haven't complied with what you need to do as far as
rehabilitation in prison. * * * [T]he Department of Corrections
may reduce his minimum prison sentence between five percent
and 15 percent for exceptional conduct. * * * That means * * * if
you have very good conduct, then they can drop your sentence
by as much as 15 percent. Drop the amount of time you serve.
There's no guarantee that a request will be granted, but they
can do that. If they recommend early release, then there's a
rebuttable presumption for the Court to grant that request.

{¶ 4} The trial court then inquired, "Did you discuss the minimum versus maximum

term and do you feel you understand that?" Appellant replied affirmatively. Appellant then

pled guilty to an amended charge of robbery, a felony of the second degree, and theft from

a person in a protected class in exchange for the state dismissing the weapons while under

disability charge and the two firearm specifications. The trial court accepted appellant's

plea and found him guilty. On July 29, 2020, the trial court merged the offenses and the

state elected to proceed on the robbery offense. The trial court then sentenced appellant

to an indefinite prison term of six to nine years.

{¶ 5} Appellant now appeals, raising three assignments of error.

{¶ 6} Assignment of Error No. 1:

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{¶ 7} AS AMENDED BY THE 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.

{¶ 8} Appellant challenges the constitutionality of Ohio's indefinite sentencing

structure under the Reagan Tokes Law as set forth in R.C. 2967.271. The Reagan Tokes

Law became effective on March 22, 2019. Appellant committed the offenses in the case in

August 2019; thus, the Reagan Tokes Law applies to his second-degree felony robbery.

{¶ 9} Under the Reagan Tokes Law, qualifying first- and second-degree felonies

committed on or after March 22, 2019, are now subject to the imposition of indefinite

sentences. The indefinite terms 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 a statutory formula set forth in R.C. 2929.144. The maximum term equals the minimum

term imposed on the offender plus 50 percent of that term.

{¶ 10} An offender sentenced under the Reagan Tokes Law has a rebuttable

presumption of release at the conclusion of the offender's minimum term. R.C.

2967.271(B). However, the Ohio Department of Rehabilitation and Correction ("ODRC")

may rebut that presumption of release upon completion of the minimum term if it finds, at a

hearing, that any of the factors set forth in R.C. 2967.271(C)(1), (2), and (3) apply. If the

ODRC rebuts the presumption, it may keep the offender in prison for an additional

"reasonable period," but the additional time "shall not exceed the offender's maximum

prison term." R.C. 2967.271(C).

{¶ 11} As stated above, appellant argues that R.C. 2967.271 is unconstitutional.1

1. Appellant asserts that the constitutionality of the Reagan Tokes Law is ripe for review. By contrast, the
state argues that appellant's constitutional challenges are not ripe for review because appellant has not yet
served his minimum sentence, and thus, the ODRC has not yet denied him release at the expiration of his
minimum term of incarceration. We find that by previously upholding R.C. 2967.271 as constitutional, we

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However, the record shows that appellant never raised this issue with the trial court. It is

well established that the question of the constitutionality of a statute must 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. Consequently, by not first raising the issue with the

trial court, appellant's arguments challenging the constitutionality of R.C. 2967.271 are

forfeited and will not be heard for the first time on appeal. State v. Teasley, 12th Dist. Butler

No. CA2020-01-001, 2020-Ohio-4626, ¶ 9; State v. Young, 8th Dist. Cuyahoga No. 108868,

2020-Ohio-4135, ¶ 21 (declining to address whether indefinite sentencing is a violation of

separation of powers where defendant raised the issue for the first time on appeal rather

than in the trial court); and State v. Alexander, 12th Dist. Butler No. CA2019-12-204, 2020-

Ohio-3838, ¶ 8-9 (appellant's failure to challenge the constitutionality of the Reagan Tokes

Law forfeited the right to challenge its constitutionality on appeal).

{¶ 12} Appellant's first assignment of error is overruled.

{¶ 13} Assignment of Error No. 2:

{¶ 14} PHILLIP HODGKIN 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.

have implicitly determined that a defendant's constitutional challenge to the Reagan Tokes Law is ripe for
review. See State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837; State v. Suder, 12th
Dist. Clermont Nos. CA2020-06-034 and CA2020-06-035, 2021-Ohio-465. Likewise, the Second and Third
Appellate Districts have implicitly determined that a defendant's constitutional challenge to the Reagan Tokes
Law is ripe for review by upholding the statute as constitutional without addressing the ripeness issue. See,
e.g., State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; and State v. Kepling, 3d Dist.
Hancock No. 5-20-23, 2020-Ohio-6888. See also State v. Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-
Ohio-578 (finding the defendant's constitutional challenges ripe for review). By contrast, the Fourth, Fifth, and
Sixth Appellate Districts have expressly held that a defendant's constitutional challenge to the Reagan Tokes
Law is not ripe for review. See, e.g., State v. Halfhill, 4th Dist. Meigs No. 20CA7, 2021-Ohio-177; State v.
Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501; and State v. Velliquette, 6th Dist. Lucas No. L-
19-1232, 2020-Ohio-4855. We note that based on these conflicting decisions, the Sixth Appellate District sua
sponte certified a conflict to the Ohio Supreme Court for a review and determination on the issue of whether
the sentencing provisions under the Reagan Tokes Law are ripe for review on direct appeal. On December
28, 2020, the supreme court accepted a case to determine whether the constitutionality of the Reagan Tokes
Law is ripe for review. State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913.
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{¶ 15} Appellant argues his trial counsel was ineffective because he failed to

challenge the constitutionality of the Reagan Tokes Law.

{¶ 16} To prevail on his ineffective assistance of counsel claim, appellant must

establish (1) deficient performance by trial counsel, that is, performance falling below an

objective standard of reasonable representation, and (2) prejudice, that is, a reasonable

probability that but for counsel's errors, the result of the proceedings would have been

different. State v. Taylor, 12th Dist. Fayette No. CA2018-11-021, 2019-Ohio-3437, ¶ 16,

citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984); and

State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, ¶ 62. The failure to demonstrate either

prong is fatal to an ineffective assistance of counsel claim. State v. Kaufhold, 12th Dist.

Butler No. CA2019-09-148, 2020-Ohio-3835, ¶ 54.

{¶ 17} We find that trial counsel was not ineffective for failing to challenge the

constitutionality of the Reagan Tokes Law. It is well established that statutes are presumed

constitutional. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 17; State v. Cook, 83

Ohio St.3d 404, 409, 1998-Ohio-291. The Reagan Tokes Law has been found either

constitutional by appellate courts or not yet ripe for review. Specifically, this court has found

that the Reagan Tokes Law does not violate an offender's right to due process or the

separation-of-powers doctrine. See State v. Suder, 12th Dist. Clermont Nos. CA2020-06-

034 and CA2020-06-035, 2021-Ohio-465; State v. Jackson, 12th Dist. Butler No. CA2020-

07-077, 2021-Ohio-778; and State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-

Ohio-3837. Likewise, the Second, Third, and Eighth Appellate Districts have held that the

Reagan Tokes Law does not violate an offender's due process rights or the separation-of-

powers doctrine. See, e.g., State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-

4153; State v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-Ohio-5048; State v. Simmons, 8th

Dist. Cuyahoga No. 109476, 2021-Ohio-939; and State v. Wilburn, 8th Dist. Cuyahoga No.

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109507, 2021-Ohio-578 4153.2

{¶ 18} In light of the foregoing, we find that appellant has not satisfied either the

performance or prejudice prongs of Strickland. Trial counsel's failure to raise the

constitutionality of the Reagan Tokes Law, an argument which has proven unsuccessful in

this and other districts, does not constitute ineffective assistance. State v. Ferguson, 11th

Dist. Lake No. 2020-L-031, 2020-Ohio-5578, ¶ 32-33; State v. Jones, 11th Dist. Lake Nos.

2020-L-056, 2020-L-057, 2020-L-059, and 2020-L-060, 2020-Ohio-7002, ¶ 31.

{¶ 19} Appellant's second assignment of error is overruled.

{¶ 20} Assignment of Error No. 3:

{¶ 21} THE TRIAL COURT SENTENCED HODGKIN TO AN INDEFINITE PRISON

TERM IN CONTRAVENTION OF THE SENTENCING STATUTES, IN VIOLATION OF

HODGKIN'S RIGHTS TO DUE PROCESS.

{¶ 22} Appellant argues that the trial court failed to comply with R.C.

2929.19(B)(2)(c) in imposing the indefinite prison term of six to nine years because the court

did not provide the required statutory notifications at appellant's sentencing hearing.

{¶ 23} "The language of R.C. 2929.19(B)(2)(c) became effective March 22, 2019,

and to date its application has not received close scrutiny." State v. Wolfe, 5th Dist. Licking

2. In appellant's brief, trial counsel's alleged ineffective assistance also includes his failure to argue that the
Reagan Tokes Law violates an offender's constitutional rights to trial by jury and equal protection. Neither
this court nor other appellate courts have addressed these issues. We note that Judge Gwin of the Fifth
Appellate District has rejected the argument that the Reagan Tokes Law violates the right to a jury trial in an
aopinion concurring in part and dissenting in part in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-
Ohio-5501, ¶ 61-62. As for the equal protection argument, the fact that prisoners do not receive the full panoply
of rights afforded those accused of crimes is not an equal protection violation. See State ex rel. Bray v.
Russell, 12th Dist. Warren No. CA98-06-068, 1998 Ohio App. LEXIS 5377 (Nov. 9, 1998). There is a
fundamental difference between normal society and prison society. Id. Rules designed to govern those
functioning in a free society cannot automatically be applied to the very different situation presented in a
prison. Prison disciplinary proceedings are not part of a criminal prosecution and the full panoply of rights due
a defendant in such proceedings does not apply. Id. Furthermore, an equal protection claim arises only when
similarly situated individuals are treated differently. In other words, laws are to operate equally upon persons
who are identified in the same class. It is axiomatic that the entire Ohio penal system is based upon classifying
and treating each felony degree differently.

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No. 2020CA00021, 2020-Ohio-5501, ¶ 34. R.C. 2929.19(B)(2)(c) provides that "if the

sentencing court determines at the sentencing hearing that a prison term is necessary or

required, the court shall do all of the following:

(c) If the prison term is a non-life felony indefinite prison term,
notify the offender of all of the following":

(i) That it is rebuttably presumed that the offender will be
released from service of the sentence on the expiration of the
minimum prison term imposed as part of the sentence or on the
offender's presumptive earned early release date, as defined in
section 2967.271 of the Revised Code, whichever is earlier;

(ii) That the department of rehabilitation and correction may
rebut the presumption described in division (B)(2)(c)(i) of this
section if, at a hearing held under section 2967.271 of the
Revised Code, the department makes specified determinations
regarding the offender's conduct while confined, the offender's
rehabilitation, the offender's threat to society, the offender's
restrictive housing, if any, while confined, and the offender's
security classification;

(iii) That if, as described in division (B)(2)(c)(ii) of this section,
the department at the hearing makes the specified
determinations and rebuts the presumption, the department
may maintain the offender's incarceration after the expiration of
that minimum term or after that presumptive earned early
release date for the length of time the department determines to
be reasonable, subject to the limitation specified in section
2967.271 of the Revised Code;

(iv) That the department may make the specified determinations
and maintain the offender's incarceration under the provisions
described in divisions (B)(2)(c)(i) and (ii) of this section more
than one time, subject to the limitation specified in section
2967.271 of the Revised Code;

(v) That if the offender has not been released prior to the
expiration of the offender's maximum prison term imposed as
part of the sentence, the offender must be released upon the
expiration of that term.

(Emphasis added.)

{¶ 24} By indicating that the sentencing court "shall do all of the following" and "notify

the offender of all of the following," the legislature clearly placed a mandatory duty upon the

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trial court rather than granting it discretion. Thus, when sentencing an offender to a non-

life felony indefinite prison term under the Reagan Tokes Law, a trial court must advise the

offender of the five notifications set forth in R.C. 2929.19(B)(2)(c) at the sentencing hearing

to fulfill the requirements of the statute. Wolfe, 2020-Ohio-5501 at ¶ 36. As stated above,

the trial court failed to inform appellant of the mandatory notifications set forth in R.C.

2929.19(B)(2)(c) at the sentencing hearing, and thus, failed to comply with the statute.3 Id.

at ¶ 37; State v. Whitehead, 8th Dist. Cuyahoga No. 109599, 2021-Ohio-847, ¶ 45-46.

{¶ 25} Accordingly, appellant's sentence must be reversed and this matter is

remanded for the sole purpose of resentencing appellant in accordance with the

requirements set forth in R.C. 2929.19(B)(2)(c). However, we emphasize that our reversal

and remand are only for the purpose of complying with the foregoing statute and in no way

affects the validity of the underlying conviction or any other aspect of the sentence imposed

by the trial court. In other words, appellant is not entitled to be sentenced anew and the

matter is remanded to the trial court for the sole and limited purpose of providing the

mandatory notifications of R.C. 2929.19(B)(2)(c).

{¶ 26} Appellant's third assignment of error is sustained.

{¶ 27} Judgment affirmed in part, reversed in part, and remanded for the sole

purpose of resentencing so that appellant's sentence complies with R.C. 2929.19(B)(2)(c).

PIPER, P.J., and HENDRICKSON, J., concur.

3. The state asserts that the trial court's July 31, 2020 judgment entry of sentence "contained each of the
notifications. [Furthermore], [t]he trial court also thoroughly explained those aspects of Hodgkin's indefinite
sentence at his plea hearing." While the trial court, in its own words, provided all of the R.C. 2929.19(B)(2)(c)
notifications in the sentencing judgment entry, such was not the case at the plea hearing. In any event, it is
immaterial. The trial court is required to advise an offender of the 2929.19(B)(2)(c) notifications at the
sentencing hearing and in this case failed to advise appellant of the requisite statutory notifications at his
sentencing hearing.
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