State v. Waltz

[Cite as State v. Waltz, 2021-Ohio-3895.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. CT2021-0012
ELIJAH WALTZ

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2020-0575

JUDGMENT: Affirmed in part, Vacated in part and
Remanded in part

DATE OF JUDGMENT ENTRY: November 1, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH JAMES ANZELMO
Prosecuting Attorney 446 Howland Drive
Muskingum County, Ohio Gahanna, Ohio 43230

TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
P.O. Box 189
Zanesville, Ohio 43701
Muskingum County, Case No. CT2021-0012 2

Hoffman, P.J.
{¶1} Defendant-appellant Elijah Waltz appeals the January 29, 2021 Judgment

Entry entered by the Muskingum County Court of Common Pleas, which convicted him

of four counts of felonious assault, two counts of kidnapping, and two counts of child

endangering, and sentenced him to an aggregate prison term of 70 years and an

aggregate indefinite prison term of 75.5 years, following his guilty pleas. Plaintiff-appellee

is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On October 28, 2020, the Muskingum County Grand Jury indicted Appellant

on six counts of felonious assault, felonies of the second degree, in violation of R.C.

2903.11(A)(1); three counts of felonious assault, felonies of second degree, in violation

of R.C. 2903.11(A)(2); six counts of kidnapping, felonies of the first degree, in violation of

R.C. 2905.01(A)(3); and seven counts of endangering children, felonies of the second

degree, in violation of R.C. 2919.22(B)(2). Appellant appeared before the trial court for

arraignment on November 4, 2020, and entered a plea of not guilty to the Indictment.

{¶3} Appellant appeared before the trial court for a change of plea on December

23, 2020. After the trial court conducted a Crim. R. 11 colloquy with Appellant, Appellant

withdrew his former pleas of not guilty and entered guilty pleas to four counts of felonious

assault, two counts of kidnapping, and two counts of child endangering. The trial court

accepted the pleas, found Appellant guilty, and ordered a pre-sentence investigation.

{¶4} On January 25, 2021, the trial court sentenced Appellant to eight years on

each of the four felonious assault counts, eleven years on each of the kidnapping counts,

1 A Statement of the Facts underlying Appellant’s convictions and sentence is not necessary to our
disposition of this Appeal.
Muskingum County, Case No. CT2021-0012 3

and eight years on each of the endangering children counts. The trial court ordered the

sentences be served consecutively for an aggregate prison term of 70 years and an

indefinite prison term of 75.5 years. The trial court memorialized Appellant’s convictions

and sentence via Judgment Entry filed January 29, 2021.

{¶5} It is from this judgment entry Appellant appeals, raising the following

assignments of error:

I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED

CODE’S SENTENCES FOR FIRST AND SECOND DEGREE

QUALIFYING FELONIES VIOLATES [SIC] THE CONSTITUTIONS OF

THE UNITED STATES AND THE STATE OF OHIO.

II. ELIJAH WALTZ 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.

III. THE TRIAL COURT UNLAWFULLY ORDERED WALTZ TO

SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS

TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE 1 OF

THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.
Muskingum County, Case No. CT2021-0012 4

I, II

{¶6} Appellant was sentenced pursuant to the Reagan Tokes Act, as codified by

R.C. 2967.271. In his first assignment of error, Appellant challenges the constitutionality

of the Regan Tokes Act, which codified hybrid indefinite prison terms for first and second

degree felonies. Specifically, Appellant argues the presumptive release feature of the act

violates his constitutional rights to trial by jury and due process of law, and further violates

the constitutional requirement of separation of powers and equal protection. In his second

assignment of error, he asserts trial counsel was ineffective for failing to raise a

constitutional challenge to the Act in the trial court.

{¶7} This Court has previously addressed whether a challenge to the

constitutionality of the Reagan Tokes Law is ripe for appellate review where the defendant

has yet to serve the minimum term and yet to be subjected to the application of the

Reagan Tokes Law, and has repeatedly held the issue is not ripe for review. See State v.

Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-Ohio-5013; State v. Downard, 5th Dist.

Muskingum No. CT2019-0079, 2020-Ohio-4227; State v. Manion, 5th Dist. Tuscarawas

No. 2020 AP 03 0009, 2020-Ohio-4230; State v. Kibler, 5th Dist. Muskingum No. CT2020-

0026, 2020-Ohio-4631, State v. Wolfe, 5th Dist. Licking No. 2020-CA-0021, 2020-Ohio-

5501; State v. Buckner, 5th Dist. Muskingum CT2020-0023, 2020-0024, 2020-Ohio-7017;

and State v, King, 5th Dist. Stark No. 2020 CA 00064, 2021-Ohio-1636.

{¶8} The Sixth District has reached the same conclusion in State v. Maddox, 6th

Dist. Lucas No. CL-19-1253, 2020-Ohio-4702, and State v. Velliquette, 6th Dist. Lucas

No. L-19-1232, 2020-Ohio-4855. Likewise, the Fourth District found the issue not ripe for

review in State v. Ramey, 4th Dist. Washington Nos. CA 1 and 20 CA 2, 2020-Ohio-6733.
Muskingum County, Case No. CT2021-0012 5

{¶9} We note the Ohio Supreme Court has accepted a certified conflict on the

issue of whether the constitutionally of the Reagan Tokes Law is ripe for review on direct

appeal or only after the defendant has served the minimum term and been subject to

extension by application of the law. See, State v. Maddox, 6th Dist. Lucas No. L-19-1253,

2020-Ohio-4702, order to certify conflict allowed, State v. Maddox, 160 Ohio St.3d 1505,

2020-Ohio-6913, 159 N.E.3d 1150 (Table). See also, State v. Downard, 5th Dist.

Muskingum No. CT2019-0079, 2020-Ohio-4227, appeal accepted on Appellant's

Proposition of Law No. II, State v. Downard, 160 Ohio St.3d 1507, 2020-Ohio-6835, 159

N.E.3d 1507 (Table) (Sua sponte, cause held for the decision in 2020-1266, State v.

Maddox).

{¶10} For the reasons set forth in this Court's prior opinions, we find Appellant's

constitutional challenges to the Reagan Tokes Act and his trial counsel's failure to raise

the same are not yet ripe for review.

{¶11} Appellant’s first and second assignments of error are overruled.

III

{¶12} In his final assignment of error, Appellant maintains the trial court erred in

failing to make the requisite findings to impose consecutive sentences under R.C.

2929.14(C)(4) at the sentencing hearing. We agree.

{¶13} R.C. 2929.14(C)(4) provides, in pertinent part:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is
Muskingum County, Case No. CT2021-0012 6

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶14} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, the Ohio Supreme

Court held:

In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the
Muskingum County, Case No. CT2021-0012 7

sentencing hearing and incorporate its findings into its sentencing entry, but

it has no obligation to state reasons to support its findings.

Id. at syllabus (Emphasis added.)

{¶15} At the January 25, 2021 Sentencing Hearing, the trial court made the

following remarks:

It was also brought up about your prior conviction in 2015 for

trafficking. Your mother’s in the back of the courtroom who was the co-

defendant with you. She lost her legs in a car accident, and you were selling

her OxyContin so you could get high with the drugs that you wanted. She

was also quite happy to indicate to the prosecutor’s office that she got sent

to prison and got away from you. There are numerous other people who

would say the same thing. As indicated, you have been around a number

of people who ended up hurt.

Besides, you know, a couple of convictions for things like domestic

violence and criminal damaging, trespassing, and so on and so forth, the

number of reports just obtained from the Zanesville Police Department

wherein you were called – they were called to a scene to assist somebody

to get away from you because you were beating them with canes or beating

them, taking and holding them hostage, and that type of stuff, the same stuff

that you were doing here.
Muskingum County, Case No. CT2021-0012 8

These children endured this abuse for five months. And seeing the

pictures and reading the statements that they made, it’s obvious that they

will never physically recover completely, nor mentally recover completely.

The mental anguish that they have suffered will last a lifetime as well the

physical injuries. No one should ever treat children that way.

But yet, not that long ago, you and your father had custody – or were

looking after a three-year-old while the mother was in the hospital having

another child and that three-year-old turned up dead. It wasn’t reported for

several hours. And when it was reported, an autopsy was performed and

was indicated as being a suspicious death. One can only wonder why a

three-year-old could die while you’re taking care of it and nobody’s called

for almost nine hours and then being indicated that there was bruises and

problems with the child as well as some problems with the blood work that

was done on that child.

But that’s not the case we’re here for. We’re here for the two that

survived but only because the teachers and everybody else came forward.

The Court sees no other sentence than to give you * * * Eleven years

on each. Eight years on each of the felonies of the second degree.

The Court is going to order that all those sentences be served

consecutively to each other and that 97 days of credit be applied toward

those sentences.

The Court is doing this to indicate that the seriousness of your

conduct and the harm involved in this, it’s unbelievable, and that sentence
Muskingum County, Case No. CT2021-0012 9

is not disproportionate to that harm. You did this over a five-month period

and no single prison term could just satisfy what needs to be done in this

case. Given your history and what happened here, it screams for that kind

of time.

Transcript of January 25, 2021 Sentencing Hearing at 12-15.

{¶16} In its January 29, 2021 Entry, the trial court found:

The Court found and stated that the seriousness of [Appellant’s]

conduct and the harm involved in this, it’s unbelievable, and that sentence

is not disproportionate to that harm. He did this over a five-month period

and no single prison term could just satisfy what needs to be done in this

case. Given his history and what happened here, it screams for that kind

of time.

The Court also found and stated that he ought to be punished for

acts that he committed considering that there were a number of those and

there were two separate victims.

January 29, 2021 Entry at 2, unpaginated.

{¶17} Upon review of the transcript of the January 25, 2021 Sentencing Hearing

and subsequent judgment entry, we find the trial court did not make one of the requisite

findings mandated by R.C. 2929.14(C)(4) and Bonnell, supra. Although we find the trial

court stated its reasons for imposing consecutive sentences, and the record clearly and
Muskingum County, Case No. CT2021-0012 10

sufficiently supports the same, we find the trial court failed to make the specific finding

consecutive sentences were not disproportionate to the danger Appellant poses to the

public. Although this Court recognizes it can easily be inferred from the trial court’s

statements at sentencing and its judgment entry the trial court considers Appellant a

danger to the public, we, nevertheless, vacate the sentence and remand the matter to the

trial court to determine whether consecutive sentences are not disproportionate to the

danger Appellant poses to the public.

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

By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur