State v. Moore

[Cite as State v. Moore, 2022-Ohio-845.]

COURT OF APPEALS
MUSKINGUM 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- :
:
JUSTIN MOORE, : Case No. CT2021-0025
:
Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2020-0375

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 16, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH CHRIS BRIGDON
Prosecuting Attorney 8138 Somerset Rd
Muskingum County Thornville, Ohio 43076

By: JOHN CONNOR DEVER
Assistant Prosecuting Attorney
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2021-0025 2

Baldwin, J.

{¶1} Appellant, Justin Moore, appeals from the decision of the Muskingum County Court

of Common Pleas sentencing him to an aggregate minimum prison term of eight years and an

aggregate indefinite maximum prison term of twelve years. Appellee is the State of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶2} Moore appeared before the Muskingum County Court of Common Pleas on March

1, 2021 and entered a plea of guilty to two counts of Pandering Obscenity Involving a Minor, a

felony of the second degree, in violation of R.C. 2907.321(A)(1). On April 19, 2021 he appeared

before the court for sentencing and he was ordered to serve a sentence of a minimum prison term

of eight years and an indefinite maximum prison term of twelve years for one count and a stated

prison term of eight years for the other count with the periods of incarceration being served

concurrently for an aggregate minimum prison term of eight years and an aggregate indefinite

maximum prison term of twelve years.

{¶3} The record contains no evidence that Moore requested that the court merge the

offenses prior to sentencing. Instead the parties stipulated that the counts did not merge.

(Transcript, Sentencing Hearing, Apr. 19, 2021, p. 5, lines 1-2).

{¶4} Moore filed an appeal and submitted three assignments of error:

{¶5} “I. 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.”

{¶6} “II. THE TRIAL COURT ERRED BY FAILING TO MERGE MOORE'S

OFFENSES.”
Muskingum County, Case No. CT2021-0025 3

{¶7} “III. MOORE 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.”

ANALYSIS

I.

{¶8} Moore’s first assignment of error challenges the constitutionality of the Regan

Tokes Act which codified hybrid indefinite prison terms for first and second degree felonies. Moore

challenges the presumptive release feature of the act, R.C. 2967.271, advancing several

arguments including that it 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.

{¶9} 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:
Muskingum County, Case No. CT2021-0025 4

(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 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.
Muskingum County, Case No. CT2021-0025 5

(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.

The provisions of this division regarding the establishment of a rebuttable

presumption, the department's rebuttal of the presumption, and the department's

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
Muskingum County, Case No. CT2021-0025 6

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.

{¶10} 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, as

the state points out, 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. This matter is not ripe for review as a result.

{¶11} We addressed the concept of ripeness for review in regard to the Regan Tokes

Act in State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-4227, 2020 WL 5056878:

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, 694 N.E.2d

459 [(1998)]:

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

(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
Muskingum County, Case No. CT2021-0025 7

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. In State v. McCann, 8th Dist. Cuyahoga No. 85657,

2006-Ohio-171, the defendant argued that 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.

Likewise, in the instant case, while R.C. 2967.271 allows the DRC to rebut

the presumption Appellant will be released after serving his nine-year minimum

sentence and potentially continue his incarceration to a term not exceeding thirteen

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., 2020-Ohio-7017, 166 N.E.3d

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

7054428; State v. Cochran, 5th Dist. Licking No. 2019 CA 00122, 2020-Ohio-5329, 2020

WL 6779731; State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-Ohio-5013, 2020

WL 6193957; State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-

4230, 2020 WL 5056838; State v. Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-

Ohio-4631, 2020 WL 5757596.

{¶12} Moore does not dispute he had not yet been subject to the provisions of R.C.

2967.271. We find here as we did in Downard, Moore's constitutional challenges are not yet ripe

for review and therefore deny his first assignment of error.
Muskingum County, Case No. CT2021-0025 8

II.

{¶13} In his second assignment of error, Moore argues the trial court erred by failing to

merge the offenses before sentencing. Moore was found guilty of two counts of Pandering

Obscenity Involving a Minor, a second degree felony, in violation of R.C. 2907.321 arising from

two different images involving different prepubescent children engaging in sexual acts. He

contends that the offenses should have merged because he committed them on the same day,

with the same animus and that the images were saved on the same memory card.

{¶14} Appellate review of an allied-offense question is de novo. State v. Miku, 5th Dist.

No. 2017 CA 00057, 2018-Ohio-1584, ¶ 70, appeal not allowed, 154 Ohio St.3d 1479, 2019-Ohio-

173, 114 N.E.3d 1207 (2019), quoting State v. Williams,134 Ohio St.3d 482, 2012-Ohio-5699,

983 N.E.2d 1245, ¶ 12.

{¶15} Revised Code 2941.25 protects a criminal defendant's rights under the Double

Jeopardy Clauses of the United States and Ohio Constitutions by prohibiting convictions of allied

offenses of similar import:

Where the same conduct by defendant can be construed to constitute two

or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same

or similar kind committed separately or with a separate animus as to each, the

indictment or information may contain counts for all such offenses, and the

defendant may be convicted of all of them.

{¶16} The application of R.C. 2941.25 requires a review of the subjective facts of the

case in addition to the elements of the offenses charged. State v. Hughes, 5th Dist. Coshocton

No. 15CA0008, 2016-Ohio-880, ¶ 21. In a plurality opinion, the Ohio Supreme Court modified the
Muskingum County, Case No. CT2021-0025 9

test for determining whether offenses are allied offenses of similar import. State v. Johnson,128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The Court directed us to look at the elements

of the offenses in question and determine “whether it is possible to commit one offense and the

other with the same conduct.” (Emphasis sic). Id. at ¶ 48. If the answer to such question is in the

affirmative, the court must then determine whether or not the offenses were committed by the

same conduct. Id. at ¶ 49. If the answer to the above two questions is yes, then the offenses are

allied offenses of similar import and will be merged. Id. at ¶ 50. If, however, the court determines

that commission of one offense will never result in the commission of the other, or if there is a

separate animus for each offense, then the offenses will not merge. Id. at ¶ 51.

{¶17} Johnson's rationale has been described by the Court as “incomplete.” State v.

Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11. The Supreme Court of Ohio

has further instructed us to ask three questions when a defendant's conduct supports multiple

offenses: “(1) Were the offenses dissimilar in import or significance? (2) Were they committed

separately? and (3) Were they committed with separate animus or motivation? An affirmative

answer to any of the above will permit separate convictions. The conduct, the animus, and the

import must all be considered.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

¶ 31.

{¶18} Moore acknowledges that he did not address the issue of merger with the trial

court, presumably because the parties stipulated that the charges did not merge. Thus we are

limited to searching for plain error. Plain error is often construed to encompass “error[s] of law or

other defect[s] evident on the face of the magistrate's decision,” which prohibit the adoption of a

magistrate's decision even in the absence of objections. Ohio Civ.R. 53(D)(4)(c). McConkey v.

Roberts, 5th Dist. Guernsey No. 06 CA 35, 2007-Ohio-6102, ¶ 22. “[T]he plain error doctrine is

not favored and may be applied only in the extremely rare case involving exceptional

circumstances where error, to which no objection was made at the trial court, * * * seriously affects

the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the
Muskingum County, Case No. CT2021-0025 10

legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116,

1997-Ohio-401, 679 N.E.2d 1099 (1997).

{¶19} We find no error in this case as this court has previously rejected the argument

posited by Moore, finding each individual image constitutes a separate offense:

We find the multiple offenses of pandering sexually oriented matter

involving a minor in the case do not merge. We thus join with multiple other Ohio

appellate court districts which have found that “multiple convictions are allowed for

each individual image because a separate animus exists every time a separate

image or file is downloaded and saved.” State v. Duhamel, 8th Dist. Cuyahoga

No. 102346, 2015-Ohio-3145 [2015 WL 4656547], ¶ 62, citing State v. Mannarino,

8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795 [2013 WL 1859026], ¶ 53; see

also, State v. Eal, 10th Dist. Franklin No. 11AP-460, 2012-Ohio-1373 [2012 WL

1078331], ¶ 93. The selection of each individual video or image is a separate

decision. Id.

State v. Starcher, 5th Dist. Stark No. 2015CA00058, 2015-Ohio-5250, 2015 WL 9078463,

¶ 35.

{¶20} We find the trial court did not err in failing to merge the offenses, as each count

represented an image or video, and a separate animus exists every time a separate image or file

is downloaded or saved. State v. Ryan, 5th Dist. No. 18 CAA 01 0011, 2018-Ohio-4739, 116

N.E.3d 170, ¶¶ 65-67 cause dismissed,154 Ohio St.3d 1448, 2018-Ohio-4977, 113 N.E.3d 555,

¶¶ 65-67.

{¶21} Moore’s second assignment of error is overruled.

III.

{¶22} In his third assignment of error, Moore contends he received ineffective assistance

of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must
Muskingum County, Case No. CT2021-0025 11

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell below an

objective standard of reasonable representation, and (2) that counsel's errors prejudiced the

defendant, i.e., a reasonable probability that but for counsel's errors, the result of the trial would

have been different. Strickland v. Washington, 466 U.S. 668, 687–688, 694, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two

and three of the syllabus. "Reasonable probability" is "probability sufficient to undermine

confidence in the outcome." Strickland at 694.

{¶23} Moore argues trial counsel was ineffective because he failed to argue against the

Regan Tokes Act. We have found that the issue is not ripe for review and therefore reject Moore’s

argument because, under the current state of the law, there is not a reasonable probability that

the outcome would have been different had trial counsel presented the argument. Likewise,

Moore’s contention that his trial counsel was ineffective for failing to argue that the offenses did

not merge must fail as we have found that the charges of Pandering Obscenity Involving a Minor

do not merge as they were based upon separate images.
Muskingum County, Case No. CT2021-0025 12

{¶24} Moore’s third assignment of error is denied and the decision of the Muskingum

County Court of Common Pleas is affirmed.

By: Baldwin, J.

Wise, John, J. concur.

Gwin, P.J. concurs in part,
Dissents in part.
Muskingum County, Case No. CT2021-0025 13

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

{¶25} I concur in the majority’s disposition of Appellant’s Second and Third

Assignments of Error.

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

Appellant’s First Assignment 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.

{¶27} 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.