State v. Brown Suber

[Cite as State v. Brown Suber, 2021-Ohio-2291.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2020-09-099

: OPINION
- vs - 7/6/2021
:

DONNY BROWN SUBER AKA DONNIE :
SUBER-BROWN AKA DONNIE BROWN-
SUBER, :

Appellant.

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2019-10-1643

Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Michele Temmel, 6 S. Second Street, #305, Hamilton, Ohio 45011, for appellant

HENDRICKSON, J.

{¶1} Appellant, Donny Brown Suber aka Donnie Suber-Brown aka Donnie Brown-

Suber, appeals from the sentence imposed in the Butler County Court of Common Pleas

following appellant's guilty plea to two counts of possession of heroin. For the reasons

discussed below, we affirm in part, reverse in part, and remand the matter for the limited

purpose of resentencing for compliance with R.C. 2929.19(B)(2)(c).
 Butler CA2020-09-099

{¶2} On November 20, 2019, appellant was indicted on nine felony narcotics and

weapons counts related to the possession and trafficking of heroin and fentanyl-related

compounds. The charges were accompanied by major drug offender and forfeiture

specifications.

{¶3} On September 21, 2020, following plea negotiations, appellant entered guilty

pleas to two counts of possession of heroin in violation of R.C. 2925.11(A)(1), felonies of

the first degree. Appellant also pled guilty to the accompanying forfeiture specifications,

admitting that $3,486 in cash, $256 in cash, a 2011 Dodge Nitro, and a 2007 Chrysler 300

were instrumentalities used to commit, facilitate, or aid in the commission of the offenses.

The major drug offender specifications accompanying the counts were dismissed. The

state also dismissed the remaining charges, comprised of two counts of possession of

fentanyl-related compounds, one count of trafficking in heroin, one count of trafficking in a

fentanyl-related compound, two counts of permitting drug abuse, and one count of having

weapons while under disability.

{¶4} The court engaged appellant in a Crim.R. 11(C) plea colloquy, during which

the trial court advised appellant that he would be subject to an indefinite sentence under

Senate Bill 201, commonly known as the Reagan Tokes Law. The court explained that it

could impose a maximum mandatory sentence of 11 to 16.5 years on each possession

count, to be run consecutively to one another, for an aggregate maximum sentence of 22

to 27.5 years in prison. Appellant indicated he understood the penalties he faced and

entered a guilty plea to two counts of possession of heroin and the accompanying

specifications. The trial court accepted appellant's guilty plea and found that the plea was

knowingly, intelligently, and voluntarily made.

{¶5} Appellant waived his right to a presentence-investigative report and the court

proceeded to sentencing. The court imposed a mandatory indefinite sentence of 10 to 15

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years in prison on each count and ran the sentences concurrently, waived the mandatory

fines, and advised appellant he was subject to a five-year mandatory term of postrelease

control ("PRC") upon his release from prison. In imposing appellant's sentence, the court

advised appellant as follows regarding his indefinite sentence:

THE COURT: [A]s to Count I, possession of heroin, a violation
of [R.C.] 2925.11(A), it will [be] ten years in the Ohio Department
of Rehabilitation and Correction.

Count V, possession of heroin, a felony 1, [R.C.] 2925.11(A),
likewise, ten years in the Ohio Department of Rehabilitation and
Correction.

Those are the minimum terms. And here's why I say that.
Again, I have to explain to you that because of the changes in
sentencing – Senate Bill 201 – once again, if you do mess up
while you're in prison, the Department of Rehabilitation and
Correction – they do this administratively. I have nothing to do
with it. The judge is not involved.

They could decide to keep you up to an additional five years on
this sentence. So while your minimum is ten years, and while
it's guaranteed you'll serve that ten years because these are
mandatory sentences, on the back end of that, they could hold
you up for an additional five years on top of that. No
administrative – or no action required for the Court or anything
like that, all right?

***

But I do find, again, the two counts are mandatory prison terms,
which means Mr. Brown Suber, again, you are not eligible for
any type of early release, judicial release, et cetera.

The total amount of prison time – like I said, ten years minimum.
Could be up to 15. I hope we don't get it to that point. * * *

***

I want you to think this through. You can serve your ten years.
If you mess up in the institution, you could end up serving five
more. That's 15. You get out, you're still on PRC. They could
send you back for up to five – you could end up doing 20 years
on this total if you don't mind your step and do everything you're
supposed to be doing, okay?

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{¶6} Appellant timely appealed his sentence, raising two assignments of error for

review.

{¶7} Assignment of Error No. 1:

{¶8} [APPELLANT'S] INDEFINITE SENTENCE IS UNCONSTITUTIONAL.

{¶9} In his first assignment of error, appellant challenges the constitutionality of

Ohio's indefinite sentencing structure as set forth in R.C. 2967.271, contending that allowing

the Department of Rehabilitation and Correction ("DRC") to determine whether he should

be imprisoned for up to an additional five years violates his due process rights. However,

the record demonstrates appellant never raised this issue with the trial court.

{¶10} It is well established that "'[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, 162 Ohio St.3d 10, 2020-Ohio-2998, ¶ 7, quoting State

v. Awan, 22 Ohio St.3d 120, 122 (1986). Therefore, 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. See State v. Garcia, 12th Dist.

Madison No. CA2019-11-030, 2020-Ohio-3232, ¶ 19 (finding appellant's failure to challenge

the constitutionality of a statute with the trial court "forfeits the issue and this court need not

address it for the first time on appeal"); State v. Alexander, 12th Dist. Butler No. CA2019-

12-204, 2020-Ohio-3838, ¶ 8 (declining to address whether indefinite sentencing under

Senate Bill 201 was unconstitutional where appellant raised the issue for the first time on

appeal); State v. Teasley, 12th Dist. Butler No. CA2020-01-001, 2020-Ohio-4626, ¶ 9-10

(finding appellant's failure to challenge the constitutionality of R.C. 2967.271 in the trial court

forfeited the right to challenge its constitutionality on appeal).

{¶11} Accordingly, having forfeited his constitutional challenge to R.C. 2967.271 by

not first raising the issue with the trial court, appellant's first assignment of error is overruled.

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{¶12} Assignment of Error No. 2:

{¶13} [APPELLANT'S] SENTENCE WAS CONTRARY TO LAW BECAUSE IT DID

NOT COMPLY WITH R.C. 2929.19(B)(2)(c).

{¶14} Appellant argues the trial court erred in imposing his sentence as the court

failed to comply with R.C. 2929.19(B)(2)(c) in imposing the mandatory indefinite prison term

of 10 to 15 years because the court did not provide the required statutory notifications at

the sentencing hearing.1

{¶15} 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

1. Citing to R.C. 2953.08(D)(1), the state contends this court should not consider the merits of appellant's
second assignment of error as appellant knowingly accepted the sentence as part of his plea. R.C.
2953.08(D)(1) states that "[a] sentence imposed upon a defendant is not subject to review under this section
if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in
the case, and is imposed by a sentencing judge." (Emphasis added.) The sentence in the present case was
not jointly recommended; the state refrained from recommending any sentence. As such, R.C. 2953.08(D)(1)
is not applicable.

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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.)

{¶16} 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

trial court to inform the defendant of all five relevant notifications. "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." State v. Hodgkin, 12th Dist.

Warren No. CA2020-08-048, 2021-Ohio-1353, ¶ 24. The failure to advise the defendant of

any of the five notifications constitutes error and a remand for the limited purpose of

permitting the sentencing court to provide the mandatory notifications required by R.C.

2929.19(B)(2)(c) is necessary. State v. Paul, 12th Dist. Clinton No. CA2020-08-010, 2021-

Ohio-1628, ¶ 22-23 (finding reversible error where three of the notifications listed in R.C.

2929.19[B][2][c] were omitted by the trial court and remanding for the "sole and limited

purpose of providing the mandatory notifications" required by the statute).

{¶17} While the trial court is not required to recite the statutory language verbatim

in providing the notifications to the defendant at sentencing, the record must nonetheless

reflect that each of the necessary notifications were provided. After reviewing the record,

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we find that the trial court failed to advise appellant of all of the required notifications set

forth in R.C. 2929.19(B)(2)(c).2 Specifically, the court failed to advise appellant that: (1) the

DRC must hold a hearing to rebut the presumption that appellant would be released after

serving his mandatory minimum sentence of 10 years; (2) the DRC could maintain his

incarceration after the expiration of the minimum term for the length the DRC determines is

reasonable, subject to his maximum penalty of 15 years; and (3) the DRC could maintain

appellant's incarceration more than one time.

{¶18} Given the foregoing omissions in the trial court's notification when imposing

the indefinite sentence, we sustain appellant's second assignment of error. Appellant's

sentence is reversed and this matter remanded for the sole purpose of resentencing

appellant in accordance with the requirements set forth in R.C. 2929.19(B)(2)(c). See, e.g.,

Paul at ¶ 22-23; Hodgkin at ¶ 25. 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).

{¶19} 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).

S. POWELL, P.J., and BYRNE, J., concur.

2. In the present case, the trial court held a combined plea and sentencing hearing. The state urges us to
rely on certain statements the trial court made when advising appellant of the applicability of the Reagan
Tokes Law during the plea portion of the hearing to find the requirements of R.C. 2929.19(B)(2)(c) met. Even
if we were to do as the state suggests, we would still find reversible error as certain notifications, such as the
fact that the DRC is required to hold a hearing to rebut the presumption of release after the minimum term
expires and that the DRC could maintain appellant's incarceration more than one time under R.C.
2929.19(B)(2)(c)(iv), were never addressed by the trial court.

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