State v. Brazo

[Cite as State v. Brazo, 2021-Ohio-4006.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. Craig R. Baldwin, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 2021 CA 0016
STEPHEN BRAZO

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 19 CR 00951

JUDGMENT: Affirmed in Part; Reversed in Part, and
Remanded

DATE OF JUDGMENT ENTRY: November 9, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES JAMES A. ANZELMO
PROSECUTING ATTORNEY 446 Howland Drive
PAULA M. SAWYERS Gahanna, Ohio 43230
ASSISTANT PROSECUTOR
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 2021 CA 0016 2

Wise, J.

{¶1} Defendant-Appellant Stephen Brazo appeals his conviction and sentence

on one count of aggravated possession of drugs entered in the Licking County Court of

Common Pleas following a guilty plea.

STATEMENT OF THE FACTS AND CASE

{¶2} The relevant facts and procedural history are as follows:

{¶3} On November 21, 2019, Appellant Stephen Brazo was indicted on one

count of Aggravated Possession of Drugs (Methamphetamine), a violation of R.C.

§2925.11(A)(C)(1)(c), a felony of the 2nd degree. The case was scheduled for jury trial on

October 8, 2020.

{¶4} On October 8, 2020, the date scheduled for trial, Appellant arrived

approximately an hour and a half late. At that time, Appellant indicated that he wished to

plead guilty to the charge.

{¶5} Appellant completed a plea form which his attorney reviewed with him and

which he stated that he understood. The trial court reviewed with Appellant the rights that

he was giving up by pleading to the Indictment, including the right to a trial, the right to

have the State prove the case beyond a reasonable doubt, the right to confront his

accuser, the right to call and question and cross-examine witnesses, and the right to

testify himself if he chose to. (T. at 8-11). When Appellant hesitated during his plea of

guilty, the trial court made it clear that he was entitled to a jury trial if he so desired. (T. at

12-13). After advising Appellant of that fact, the trial court asked Appellant if he wanted

to plead guilty to the charge and Appellant stated in the affirmative. (T. at 13).

{¶6} The State presented the following recitation of the facts:
Licking County, Case No. 2021 CA 0016 3

{¶7} On May 2, 2019, Officer Walker of the Pataskala Police Department was

operating a marked Pataskala Police Cruiser on routine patrol near South Township Road

and Broad Street in Pataskala, Licking County, Ohio. (T. at 14). The officer pulled behind

a silver Dodge Pickup Truck and ran the license plate, which came back as expired as of

February 2019. Id. The officer noticed a white validation sticker on the license plate

indicating that the vehicle was valid until 2020. Id. The vehicle turned into the Duke and

Duchess Gas Station located at 110 West Broad Street in Pataskala, Licking County,

Ohio. Id. Contact was made with the driver of the vehicle, Stephen Brazo, hereinafter the

Appellant. Id. The passengers were identified as co-Defendants Benjamin Johnson (rear

passenger) and Alicia Clark (front seat passenger). Id. A close inspection of the white

validation sticker revealed that the sticker belonged to a vehicle with license plate

HMY3687 (returning to a silver Pontiac owned by Appellant), whereas the valid number

for the silver Dodge Pickup plate was HIG5043. Id. Due to the fictitious plate validation

sticker, the occupants were removed and the vehicle inventoried for towing. Id. The officer

issued the traffic citation for fictitious plates, while a second officer performed an inventory

search of the vehicle. Id. Officers located two small plastic baggies containing a crystal-

like substance between the front driver and passenger seats and two containers with

digital scales and a smoking pipe in the same location. Id. Officers also located a gray

plastic baggie containing a large amount of methamphetamine under the right rear

passenger seat where co-Defendant Johnson had been seated. Id. Digital scales and

smoking paraphernalia were recovered from the vehicle. Id. The drugs were tested and

determined to be 98.275 grams of methamphetamine, a schedule II controlled substance.

Id. Bulk amount for methamphetamine is 3 grams. Id. The Appellant was interviewed and
Licking County, Case No. 2021 CA 0016 4

stated that Johnson had told him where he could buy some cocaine and that he took

Johnson to a hotel where he assumed Johnson had scored. Id. Appellant further admitted

that the drugs inside of the vehicle were his. Id.

{¶8} After Appellant was advised of the facts of the case as set forth above

Appellant was advised as to the nature of the charge against him and the maximum

penalty he could face if he pled to the charge. (T. at 6-10, 14-16).

{¶9} Appellant agreed with the facts as presented by Appellee. (T. at 16).

{¶10} The trial court ultimately found Appellant guilty based on his plea, and

sentenced Appellant to three (3) to four and a half (4 ½) years in prison, pursuant to the

Reagan Tokes Law. (T. at 25). (See Oct. 8, 2020 Judgment Entry).

{¶11} Appellant then moved to withdraw his guilty plea. The trial court denied

Appellant’s motion to withdraw.

{¶12} Appellant now appeals, raising the following assignments of error:

ASSIGNMENTS OF ERROR

{¶13} “I. STEPHEN BRAZO DID NOT KNOWINGLY, INTELLIGENTLY AND

VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS

UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO

CONSTITUTION.

{¶14} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

BRAZO'S MOTION TO WITHDRAW HIS PLEA, IN VIOLATION OF THE DUE PROCESS

CLAUSE OF THE UNITED STATES CONSTITUTION.
Licking County, Case No. 2021 CA 0016 5

{¶15} “III. 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.

{¶16} “IV. THE TRIAL COURT SENTENCED BRAZO TO AN INDEFINITE

PRISON TERM IN CONTRAVENTION OF THE SENTENCING STATUTES, IN

VIOLATION OF BRAZO'S RIGHTS TO DUE PROCESS.

{¶17} “V. STEPHEN BRAZO 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.”

I.

{¶18} In his first assignment of error, Appellant argues his plea of guilty was not

knowingly, intelligently or voluntarily made. We disagree.

{¶19} Crim.R. 11(C)(2) sets forth a trial court's duties during a felony plea hearing

to address the defendant personally, to convey certain information to the defendant, and

prohibits acceptance of a guilty plea or no contest without performing these duties. State

v. Holmes, 5th Dist. Licking No. 09 CA 70, 2010-Ohio-428, ¶ 10. The rule specifically

provides:

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 without

first addressing the defendant personally either in-person or by remote

contemporaneous video in conformity with Crim.R. 43(A) and doing all of

the following:
Licking County, Case No. 2021 CA 0016 6

(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.

{¶20} Crim.R. 11(C)(2) contains both constitutional advisements with which a trial

court must strictly comply and non-constitutional advisements with which a trial court must

substantially comply. In State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124

N.E.3d 766 (2018) the Supreme Court of Ohio stated at paragraph 19:

A trial court need only substantially comply with the nonconstitutional

advisements listed in Crim.R. 11(C)(2)(a). Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, at ¶ 18. But “[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
Licking County, Case No. 2021 CA 0016 7

complied or failed to comply with the rule.” (Emphasis sic.) Clark, 119 Ohio

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

partially complied, e.g., by mentioning mandatory postrelease control

without explaining it, the plea may be vacated only if the defendant

demonstrates a prejudicial effect.” Id. But if the trial court completely failed

to comply with the rule, the plea must be vacated. Id. Complete failure “ ‘to

comply with the rule does not implicate an analysis of prejudice.’ ” Id.,

quoting State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d

1224, ¶ 22.

{¶21} Here, Appellant argues the trial court failed to ensure that he subjectively

understood that his guilty plea was a complete admission of guilt.

{¶22} Upon review, we find Appellant’s arguments unpersuasive.

{¶23} At the change of plea hearing, upon inquiry by the trial court, Appellant

acknowledged that by pleading guilty he was making a complete admission that he had

committed the acts charged in the Indictment. (T. at 7). The trial court reviewed with

Appellant the rights that he was giving up by pleading guilty to the Indictment, including

the right to a trial, the right to confront and cross-examine witnesses, the right to present

his own evidence, issue subpoenas to compel witnesses and to testify on his own behalf.

(T. at 8, 11). The court advised Appellant that he could not be forced to testify at trial and

that his silence could not be used against him. (T. at 11). The court advised Appellant

that the State has the burden to prove the case beyond a reasonable doubt. (T. at 10).

When Appellant hesitated, the trial court made it clear that he could have a jury trial if he

so desired. (T. at 12-13). After advising Appellant of that fact, the trial court asked
Licking County, Case No. 2021 CA 0016 8

Appellant again if he wanted to plead guilty to the charge, and Appellant stated that he

did, in fact, wish to plead guilty to the charge. (T. at 13). Appellant was advised of the

facts of the case, the nature of the charge against him, and the maximum penalty he could

face if he pled to the charge. (T. at 6-10, 14-16). Appellant stated that he agreed with the

facts as presented by the State of Ohio. (T. at 16).

{¶24} While Appellant argues that he made protestations of innocence at his plea

hearing, a review of the transcript reveals that the first mention of innocence or claims

that the drugs did not belong to him were only made after the trial court imposed its

sentence. (T. at 29-30). Appellant cannot rely on post-plea statements or claims of

innocence to establish that the trial court erred in accepting his plea. “[W]hen a defendant

makes claims of innocence after a guilty plea has been accepted, a trial court has no duty

to inquire into a defendant's reasons for pleading guilty.” State v. Damron, 2nd Dist.

Champaign No. 2014-CA-15, 2015-Ohio-2057, ¶ 10 citing State v. Reeves, 8th Dist.

Cuyahoga No. 100560, 2014–Ohio–3497, ¶ 13 (citing cases); see also State v. Darks,

10th Dist. Franklin No. 05AP–92, 2006–Ohio–3144, ¶ 17–18 (citing cases).

{¶25} Based on the foregoing exchange, we find Appellant knowingly, voluntarily,

and intelligently waived his rights and knowingly, voluntarily, and intelligently entered his

guilty plea.

{¶26} Appellant’s first assignment of error is overruled.

II.

{¶27} In his second assignment of error, Appellant argues the trial court erred in

denying his motion to withdraw his guilty plea. We disagree.
Licking County, Case No. 2021 CA 0016 9

Standard of Appellate Review.

{¶28} Under Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea.” A motion made pursuant to Crim.R. 32.1 is left to the sound

discretion of the trial court. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),

paragraph two of the syllabus. Thus, we review the trial court's decision denying

Appellant's motion under an abuse of discretion standard. State v. Francis, 104 Ohio

St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32.

{¶29} The standard upon which the trial court is to review a request for a change

of plea after sentence is whether there is a need to correct a manifest injustice. State v.

Marafa, 5th Dist. Stark Nos. 2002CA00099, 2003-Ohio-257, ¶ 8.

{¶30} Although no precise definition of “manifest injustice” exists, in general,

“’manifest injustice relates to some fundamental flaw in the proceedings which result[s] in

a miscarriage of justice or is inconsistent with the demands of due process.’ ” State v.

Wooden, 10th Dist. Franklin No. 03AP-368, 2004-Ohio-588, ¶10, quoting State v. Hall,

10th Dist. Franklin No. 03AP-433, 2003-Ohio-6939; see, also, State v. Odoms, 10th Dist.

Franklin No. 04AP-708, 2005-Ohio-4926, quoting State ex rel. Schneider v. Kreiner, 83

Ohio St.3d 203, 208, 699 N.E.2d 83 (1998) (“[a] manifest injustice has been defined as a

‘clear or openly unjust act’ ”).

{¶31} An appellate court may not substitute its judgment for that of the trial court

when reviewing a matter pursuant to this standard. Berk v. Matthews, 53 Ohio St.3d 161,

169, 559 N.E.2d 1301 (1990). Furthermore, under the manifest injustice standard, a post-
Licking County, Case No. 2021 CA 0016 10

sentence withdrawal motion is allowable only in extraordinary cases. State v. Aleshire,

5th Dist. Licking No. 09-CA-132, 2010-Ohio-2566, 2010 WL 2297917, ¶ 60, citing State

v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). The accused has the burden

of showing a manifest injustice warranting the withdrawal of a guilty plea. Smith, supra,

49 Ohio St.2d 261, 361 N.E.2d 1324 at paragraph one of the syllabus.

{¶32} A criminal defendant's choice to enter a plea of guilty is a serious decision.

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. “Due process

requires that a defendant's plea be made knowingly, intelligently, and voluntarily;

otherwise, the defendant's plea is invalid.” State v. Bishop, 156 Ohio St.3d 156, 2018-

Ohio-5132, 124 N.E.3d 766, ¶ 10 (lead opinion), citing Clark at ¶ 25.

{¶33} Crim.R. 11(C)(2) governs the process that a trial court must follow before

accepting a plea of guilty to a felony charge. Bishop at ¶ 11 (lead opinion). Most relevant

here, Crim.R. 11(C)(2)(c) requires the court to notify the defendant that he has certain

constitutional rights and to determine whether he understands that by pleading guilty, he

is waiving those rights. The court may not accept a guilty plea without first doing the

following:

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.

{¶34} Id.
Licking County, Case No. 2021 CA 0016 11

{¶35} Crim.R. 11(C)(2)(c) requires the court to communicate this information so

that the defendant can make an intelligent and voluntary decision whether to plead guilty.

State v. Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 18, citing State

v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.

{¶36} Although literal compliance with Crim.R. 11 is preferred, the trial court need

only “substantially comply” with the rule when dealing with the non-constitutional elements

of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing

State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). In State v. Griggs, 103 Ohio

St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted the

following test for determining substantial compliance with Crim.R. 11:

Though failure to adequately inform a defendant of his constitutional

rights would invalidate a guilty plea under a presumption that it was entered

involuntarily and unknowingly, failure to comply with non-constitutional

rights will not invalidate a plea unless the defendant thereby suffered

prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.

The test for prejudice is ‘whether the plea would have otherwise been

made.’ Id. Under the substantial-compliance standard, we review the totality

of circumstances surrounding [the defendant's] plea and determine whether

he subjectively understood [the effect of his plea].

{¶37} See, State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20, 881

N.E.2d 1224.

{¶38} With respect to statements made during change of plea hearings, the United

States Supreme Court has stated, “the representation of the defendant, his lawyer, and
Licking County, Case No. 2021 CA 0016 12

the prosecutor in such a hearing, as well as any findings made by the judge accepting the

plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn

declarations in open court carry a strong presumption of verity. The subsequent

presentation of conclusory allegations unsupported by specifics is subject to summary

dismissal, as are contentions that in the face of the record are wholly incredible.”

Machibroda v. United States, 368 U.S. 487, 497, 82 S.Ct. 510, 515, 7 L.Ed.2d 473 (1962).

{¶39} “The ultimate question for the trial court is whether there is a ‘reasonable

and legitimate basis for the withdrawal of the plea.’ ” State v. Xie, 62 Ohio St.3d 521, 526,

584 N.E.2d 715 (1992).

{¶40} As set forth in our analysis under Assignment of Error I, we find that

Appellant’s plea was knowingly, intelligently and voluntarily made. A change of heart or

mistaken belief about the plea is not a reasonable basis requiring a trial court to permit

the defendant to withdraw his or her plea. State v. Maddickes, 2d Dist. Clark No. 2013-

CA-7, 2013-Ohio-4510, ¶ 15.

{¶41} We find no abuse of discretion by the trial court in denying Appellant’s

motion to withdraw his guilty plea made after imposition of sentence.

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

III., V.

{¶43} We address Appellant’s third and fifth assignments of error together. In his

third assignment of error, Appellant argues the indefinite sentencing provisions contained

in the Reagan Tokes Act, R.C. §2967.271, are unconstitutional as they violate the

separation of powers and due process provisions of the United States and Ohio
Licking County, Case No. 2021 CA 0016 13

constitutions. In his fifth assignment of error, Appellant argues his counsel rendered

ineffective assistance by failing to object to his indefinite sentence.

{¶44} R.C. §2967.271 provides in relevant part:

(B) When an offender is sentenced to a non-life felony indefinite

prison term, there shall be a presumption that the person shall be released

from service of the sentence on the expiration of the offender's minimum

prison term or on the offender's presumptive earned early release date,

whichever is earlier.

(C) The presumption established under division (B) of this section is

a rebuttable presumption that the department of rehabilitation and

correction may rebut as provided in this division. Unless the department

rebuts the presumption, the offender shall be released from service of the

sentence on the expiration of the offender's minimum prison term or on the

offender's presumptive earned early release date, whichever is earlier. The

department may rebut the presumption only if the department determines,

at a hearing, that one or more of the following applies:

(1) Regardless of the security level in which the offender is classified

at the time of the hearing, both of the following apply:

(a) During the offender's incarceration, the offender committed

institutional rule infractions that involved compromising the security of a

state correctional institution, compromising the safety of the staff of a state

correctional institution or its inmates, or physical harm or the threat of

physical harm to the staff of a state correctional institution or its inmates, or
Licking County, Case No. 2021 CA 0016 14

committed a violation of law that was not prosecuted, and the infractions or

violations demonstrate that the offender has not been rehabilitated.

(b) The offender's behavior while incarcerated, including, but not

limited to the infractions and violations specified in division (C)(1)(a) of this

section, demonstrate that the offender continues to pose a threat to society.

(2) Regardless of the security level in which the offender is classified

at the time of the hearing, the offender has been placed by the department

in extended restrictive housing at any time within the year preceding the

date of the hearing.

(3) At the time of the hearing, the offender is classified by the

department as a security level three, four, or five, or at a higher security

level.

(D)(1) If the department of rehabilitation and correction, pursuant to

division (C) of this section, rebuts the presumption established under

division (B) of this section, the department may maintain the offender's

incarceration in a state correctional institution under the sentence after the

expiration of the offender's minimum prison term or, for offenders who have

a presumptive earned early release date, after the offender's presumptive

earned early release date. The department may maintain the offender's

incarceration under this division for an additional period of incarceration

determined by the department. The additional period of incarceration shall

be a reasonable period determined by the department, shall be specified by

the department, and shall not exceed the offender's maximum prison term.
Licking County, Case No. 2021 CA 0016 15

(2) If the department maintains an offender's incarceration for an

additional period under division (D)(1) of this section, there shall be a

presumption that the offender shall be released on the expiration of the

offender's minimum prison term plus the additional period of incarceration

specified by the department as provided under that division or, for offenders

who have a presumptive earned early release date, on the expiration of the

additional period of incarceration to be served after the offender's

presumptive earned early release date that is specified by the department

as provided under that division. The presumption is a rebuttable

presumption that the department may rebut, but only if it conducts a hearing

and makes the determinations specified in division (C) of this section, and

if the department rebuts the presumption, it may maintain the offender's

incarceration in a state correctional institution for an additional period

determined as specified in division (D)(1) of this section. Unless the

department rebuts the presumption at the hearing, the offender shall be

released from service of the sentence on the expiration of the offender's

minimum prison term plus the additional period of incarceration specified by

the department or, for offenders who have a presumptive earned early

release date, on the expiration of the additional period of incarceration to be

served after the offender's presumptive earned early release date as

specified by the department.

{¶45} The provisions of this division regarding the establishment of a rebuttable

presumption, the department's rebuttal of the presumption, and the department's
Licking County, Case No. 2021 CA 0016 16

maintenance of an offender's incarceration for an additional period of incarceration apply,

and may be utilized more than one time, during the remainder of the offender's

incarceration. If the offender has not been released under division (C) of this section or

this division prior to the expiration of the offender's maximum prison term imposed as part

of the offender's non-life felony indefinite prison term, the offender shall be released upon

the expiration of that maximum term.

{¶46} Appellant argues these portions of R.C §2967.271 permitting the

Department of Rehabilitation and Corrections (DRC) to administratively extend his prison

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

Constitutions. However, Appellant has not yet been subject to the application of these

provisions, as he has not yet served his minimum term, and therefore has not been denied

release at the expiration of his minimum term of incarceration.

{¶47} This Court has addressed the concept of ripeness for review in regard to

R.C. §2967.271 in State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-4227:

The Ohio Supreme Court discussed the concept of ripeness for review in

State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 1998-Ohio-

366, 694 N.E.2d 459:

Ripeness “is peculiarly a question of timing.” Regional Rail Reorganization

Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42 L.Ed.2d 320, 351. The

ripeness doctrine is motivated in part by the desire “to prevent the courts, through

avoidance of premature adjudication, from entangling themselves in abstract

disagreements over administrative policies * * *.” Abbott Laboratories v. Gardner
Licking County, Case No. 2021 CA 0016 17

(1967), 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691. As one writer

has observed:

The basic principle of ripeness may be derived from the conclusion that

‘judicial machinery should be conserved for problems which are real or present

and imminent, not squandered on problems which are abstract or hypothetical or

remote.’ * * * [T]he prerequisite of ripeness is a limitation on jurisdiction that is

nevertheless basically optimistic as regards the prospects of a day in court: the

time for judicial relief is simply not yet arrived, even though the alleged action of

the defendant foretells legal injury to the plaintiff. Comment, Mootness and

Ripeness: The Postman Always Rings Twice (1965), 65 Colum. L.Rev. 867, 876.

Id. at 89, 694 N.E.2d at 460.

{¶48} In State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-Ohio-171, the

defendant argued because the Parole Board, pursuant to R.C. 2967.28, could extend his

sentence by up to an additional five years for violation of post-release control, the statute

was unconstitutional. The Eighth District Court of Appeals concluded because McCann

was not currently the subject of such action by the Parole Board, the issue was not yet

ripe for review. Id. at ¶6.

{¶49} Likewise, in the instant case, while R.C. §2967.271 allows the DRC to rebut

the presumption Appellant will be released after serving his three (3) year minimum

sentence and potentially continue his incarceration to a term not exceeding four and one-

half (4 ½)years, Appellant has not yet been subject to such action by the DRC, and thus

the constitutional issue is not yet ripe for our review. Downard, at ¶8-11. See also, State

v. Buckner, 5th Dist. Muskingum Nos. CT2020-0023 & CT2020-0024, 2020-Ohio-7017;
Licking County, Case No. 2021 CA 0016 18

State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501; State v. Cochran,

5th Dist. Licking No. 2019 CA 00122, 2020-Ohio-5329; State v. Clark, 5th Dist. Licking

No. 2020 CA 00017, 2020-Ohio-5013; 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.

{¶50} As Appellant herein has not yet been subject to the provisions of R.C.

§2967.271, we therefore find here as we did in Downard, Appellant’s constitutional

challenges and his trial counsel's failure to raise the same are not yet ripe for review.

{¶51} Appellant’s third and fifth assignments of error are overruled.

IV.

{¶52} In his fourth assignment of error, Appellant argues that at the change of plea

and sentencing hearing, the trial court erred in failing to provide him with all of the

information required pursuant to R.C. §2929.19(B)(2)(c). We agree.

{¶53} R.C. §2929.19(B)(2)(c) became effective March 22, 2019, and to date its

application has not received close scrutiny. The relevant portions of this statute provide:

(B)(1) At the sentencing hearing, the court, before imposing

sentence, shall consider the record, any information presented at the

hearing by any person pursuant to division (A) of this section, and, if one

was prepared, the presentence investigation report made pursuant to

section 2951.03 of the Revised Code or Criminal Rule 32.2, and any victim

impact statement made pursuant to section 2947.051 of the Revised Code.
Licking County, Case No. 2021 CA 0016 19

(2) Subject to division (B)(3) of this section, 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:

(Emphasis added.)

{¶54} Subsection (B)(2)(c) sets out the notifications that are to be provided in

accordance with the directive of Subsections (B)(1) and (2) which mandates that the court

notify the offender at the sentencing hearing:

(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
Licking County, Case No. 2021 CA 0016 20

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.

(d) Notify the offender that the offender will be supervised under

section 2967.28 of the Revised Code after the offender leaves prison if the

offender is being sentenced, other than to a sentence of life imprisonment,

for a felony of the first degree or second degree, for a felony sex offense,

or for a felony of the third degree that is an offense of violence and is not a

felony sex offense. This division applies with respect to all prison terms

imposed for an offense of a type described in this division, including a non-

life felony indefinite prison term and including a term imposed for any

offense of a type described in this division that is a risk reduction sentence,

as defined in section 2967.28 of the Revised Code. If a court imposes a

sentence including a prison term of a type described in division (B)(2)(d) of
Licking County, Case No. 2021 CA 0016 21

this section on or after July 11, 2006, the failure of a court to notify the

offender pursuant to division (B)(2)(d) of this section that the offender will

be supervised under section 2967.28 of the Revised Code after the offender

leaves prison or to include in the judgment of conviction entered on the

journal a statement to that effect does not negate, limit, or otherwise affect

the mandatory period of supervision that is required for the offender under

division (B) of section 2967.28 of the Revised Code. Section 2929.191 of

the Revised Code applies if, prior to July 11, 2006, a court imposed a

sentence including a prison term of a type described in division (B)(2)(d) of

this section and failed to notify the offender pursuant to division (B)(2)(d) of

this section regarding post-release control or to include in the judgment of

conviction entered on the journal or in the sentence a statement regarding

post-release control.

(e) Notify the offender that the offender may be supervised under

section 2967.28 of the Revised Code after the offender leaves prison if the

offender is being sentenced for a felony of the third, fourth, or fifth degree

that is not subject to division (B)(2)(d) of this section. This division applies

with respect to all prison terms imposed for an offense of a type described

in this division, including a term imposed for any such offense that is a risk

reduction sentence, as defined in section 2967.28 of the Revised Code.

Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a

court imposed a sentence including a prison term of a type described in

division (B)(2)(e) of this section and failed to notify the offender pursuant to
Licking County, Case No. 2021 CA 0016 22

division (B)(2)(e) of this section regarding post-release control or to include

in the judgment of conviction entered on the journal or in the sentence a

statement regarding post-release control.

(f) Notify the offender that, if a period of supervision is imposed

following the offender's release from prison, as described in division

(B)(2)(d) or (e) of this section, and if the offender violates that supervision

or a condition of post-release control imposed under division (B) of section

2967.131 of the Revised Code, the parole board may impose a prison term,

as part of the sentence, of up to one-half of the definite prison term originally

imposed upon the offender as the offender's stated prison term or up to one-

half of the minimum prison term originally imposed upon the offender as

part of the offender's stated non-life felony indefinite prison term. If a court

imposes a sentence including a prison term on or after July 11, 2006, the

failure of a court to notify the offender pursuant to division (B)(2)(f) of this

section that the parole board may impose a prison term as described in

division (B)(2)(f) of this section for a violation of that supervision or a

condition of post-release control imposed under division (B) of section

2967.131 of the Revised Code or to include in the judgment of conviction

entered on the journal a statement to that effect does not negate, limit, or

otherwise affect the authority of the parole board to so impose a prison term

for a violation of that nature if, pursuant to division (D)(1) of section 2967.28

of the Revised Code, the parole board notifies the offender prior to the

offender's release of the board's authority to so impose a prison term.
Licking County, Case No. 2021 CA 0016 23

Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a

court imposed a sentence including a prison term and failed to notify the

offender pursuant to division (B)(2)(f) of this section regarding the possibility

of the parole board imposing a prison term for a violation of supervision or

a condition of post-release control.

(g)(i)1 Determine, notify the offender of, and include in the

sentencing entry the total number of days, including the sentencing date but

excluding conveyance time, that the offender has been confined for any

reason arising out of the offense for which the offender is being sentenced

and by which the department of rehabilitation and correction must reduce

the definite prison term imposed on the offender as the offender's stated

prison term or, if the offense is an offense for which a non-life felony

indefinite prison term is imposed under division (A)(1)(a) or (2)(a) of section

2929.14 of the Revised Code, the minimum and maximum prison terms

imposed on the offender as part of that non-life felony indefinite prison term,

under section 2967.191 of the Revised Code. The court's calculation shall

not include the number of days, if any, that the offender served in the

custody of the department of rehabilitation and correction arising out of any

prior offense for which the prisoner was convicted and sentenced.

{¶55} Thus, the trial court must provide the information described in R.C.

§2929.19(B)(2)(c) to a defendant at the sentencing hearing to fulfill the requirements of

the statute.
Licking County, Case No. 2021 CA 0016 24

{¶56} In this case, the court did advise Appellant that the minimum term set by the

court and that the maximum term was set by statute, that being 50% of the minimum term

imposed. (T. at 8). However, the trial court failed to advise Appellant as to the remainder

of the requirements set forth in R.C. §2929.19(B)(2)(c).

{¶57} Appellant’s fourth assignment of error is sustained and this matter is

remanded to the trial court for the limited purpose of resentencing in accordance with

R.C. §2929.19(B)(2)(c).

{¶58} Based on the foregoing, the decision of the Court of Common Pleas of

Licking County, Ohio, is affirmed in part, reversed in part and remanded for resentencing

in accordance with R.C. §2929.19(B)(2)(c) .

By: Wise, J.

Baldwin, P. J., and

Gwin, J., concur.

JWW/kw 1027
Licking County, Case No. 2021 CA 0016 25

Gwin, J., concurs in part; dissent in part.

{¶59} I concur in the majority’s disposition of Appellant’s First, Second and Fourth

Assignments of Error.

{¶60} I respectfully dissent from the majority’s opinion concerning ripeness and

Appellant’s Third and Fifth Assignments of Error for the reasons set forth in my dissenting

opinion in State v. Wolfe, 5th Dist., Licking No. 2020 CA 00021, 2020-Ohio-5501.

{¶61} I further note that the Ohio Supreme Court has accepted a certified conflict

on the issue of whether the constitutionally of the Reagan Tokes Act 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 Act. 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) The conflict cases are

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

Dist. Montgomery No. 28644, 2020-Ohio-4153; State v. Barnes, 2d Dist. Montgomery

No. 28613, 2020- Ohio-4150; and State v. Guyton, 12th Dist. Butler No. CA2019-12-

203, 2020-Ohio-3837; 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). The

Ohio Supreme Court heard oral arguments on that case on June 29, 2021.