State v. Ross

[Cite as State v. Ross, 2023-Ohio-1421.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2022-11-110

: OPINION
- vs - 5/1/2023
:

TORIANO CHRISTOPHER ROSS, JR., :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2022-03-0332

Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant
Prosecuting Attorney, for appellee.

Repper-Pagan Law., Ltd., and Christopher Pagan, for appellant.

S. POWELL, P.J.

{¶ 1} Appellant, Toriano Christopher Ross, Jr., appeals the sentence he received

in the Butler County Court of Common Pleas after he pled guilty to one count of second-

degree felony possession of cocaine. For the reasons outlined below, we affirm in part,
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reverse in part, and remand this matter to the trial court for further proceedings consistent

with this opinion.

Facts and Procedural History

{¶ 2} On May 11, 2022, the Butler County Grand Jury returned an indictment

charging Ross with one count of first-degree felony possession of cocaine. In the months

that followed, Ross entered into a plea agreement with the state and, on August 29, 2022,

entered a guilty plea to a reduced charge of one count of second-degree felony possession

of cocaine. Approximately three months later, on November 28, 2022, the trial court held a

sentencing hearing where it sentenced Ross to an indefinite four-to-six year prison term.1

The trial court also notified Ross that he would be required to pay court costs and further

advised Ross that upon his release from prison he would be placed on a mandatory period

of postrelease control for up to three years with a minimum period of at least 18 months.

{¶ 3} On November 29, 2022, the trial court issued a judgment of conviction entry.

Within that entry, the trial court set forth its earlier decision to sentence Ross to an indefinite

four-to-six-year prison term. The trial court's entry also noted that Ross was ordered to pay

court costs, as well as supervision costs associated with the mandatory postrelease control

term being imposed. As for how long that mandatory period of postrelease control actually

was, the trial court's judgment of conviction entry stated that it had "notified the defendant

that post release control is mandatory in this case for up to three (3) years but not less than

one (1) year," a period that was six months less than what the trial court had actually told

Ross at sentencing.

Ross' Appeal and Single Assignment of Error for Review

{¶ 4} Ross now appeals the trial court's sentence imposed upon him, raising one

1. We note that Ross objected to the trial court sentencing him to an indefinite four-to-six year prison term
claiming the law upon which it was based, the Reagan Tokes Law, was unconstitutional.
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assignment of error for review. In his single assignment of error, Ross raises three

arguments challenging the trial court's sentence as contrary to law. Under these

circumstances, we apply the following felony sentencing standard of review.

Felony Sentencing Standard of Review

{¶ 5} The standard of review set forth in R.C. 2953.08(G)(2) governs all felony

sentences. State v. Simmons, 12th Dist. Warren No. CA2020-10-069, 2021-Ohio-3563, ¶

80. Pursuant to that statute, "this court may modify or vacate a felony sentence only if, by

clear and convincing evidence, the record does not support the trial court's findings under

certain enumerated statutes, none of which are relevant here, or the sentence is otherwise

contrary to law." State v. Richey, 12th Dist. Clermont Nos. CA2022-08-038 thru CA2022-

08-041, 2023-Ohio-336, ¶ 12, citing State v. Harp, 12th Dist. Clermont No. CA2015-12-096,

2016-Ohio-4921, ¶ 7. "A sentence is not clearly and convincingly contrary to law where the

trial court 'considers the principles and purposes of R.C. 2929.11, as well as the factors

listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant

within the permissible statutory range.'" State v. Lopez-Cruz, 12th Dist. Butler No. CA2022-

07-068, 2023-Ohio-257, ¶ 8, quoting State v. Ahlers, 12th Dist. Butler No. CA2015-06-100,

2016-Ohio-2890, ¶ 8.

Ross' First Argument

{¶ 6} In his first argument, Ross claims the trial court erred by imposing a different

minimum postrelease control term in its judgment of conviction entry than what was

imposed by the trial court at sentencing, thereby requiring this matter be reversed and

remanded for resentencing. The state concedes that the trial court did so err. However,

rather than reversing and remanding for resentencing, the state requests this court to

reverse and remand for the trial court to issue a nunc pro tunc entry. We agree with the

state.

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{¶ 7} A clerical error in a trial court's judgment of conviction entry does not render

the sentence imposed upon the offender contrary to law, thus necessitating the offender be

resentenced or have the offender appear for resentencing. State v. Wright, 12th Dist.

Fayette No. CA2017-10-021, 2018-Ohio-1982, ¶ 48. The trial court may instead issue a

nunc pro tunc entry to correct the mistake so that the trial court's judgment of conviction

entry accurately reflects what the court did at sentencing. State v. Goodwin, 12th Dist.

Butler No. CA2016-05-099, 2017-Ohio-2712, ¶ 45, citing State ex rel. Womack v. Marsh,

128 Ohio St.3d 303, 2011-Ohio-229, ¶ 13. This is because the sentence originally imposed

by the trial court at sentencing is not being modified or changed in any way. State v. Van

Tielen, 12th Dist. Brown No. CA2013-11-012, 2014-Ohio-4421, ¶ 10. Therefore, to the

extent stated herein, we find Ross' first argument has merit and this matter is reversed and

remanded for the trial court for the limited purpose of issuing a nunc pro tunc judgment of

conviction entry.

Ross' Second Argument

{¶ 8} In his second argument, Ross sets forth two claims challenging the trial court's

decision ordering him to pay the supervision costs associated with his postrelease control

term. Ross initially claims it was error for the trial court to include the imposition of

postrelease control supervision costs within its judgment of conviction entry when the trial

court did not order him to pay those costs at sentencing. Ross cites Crim.R. 43(A) to

support this contention. Pursuant to that rule, the defendant must be physically present at

the imposition of his or her "sentence." Therefore, given the plain language set forth in

Crim.R. 43(A), Ross must necessarily be arguing that postrelease control supervision costs

are part of a defendant's "sentence" that can be imposed upon the defendant only when he

or she is physically present at sentencing.

{¶ 9} However, just like court costs and appointed counsel fees, supervision costs

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associated with postrelease control are not punishment and are thus not part of a

defendant's "sentence." See State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, ¶ 7 (finding

court costs are not punishment and are not part of a defendant's sentence); State v. Taylor,

163 Ohio St.3d 508, 2020-Ohio-6786, ¶ 37 (finding appointed counsel fees are a civil

assessment and not part of a defendant's sentence). Nevertheless, although technically

not part of a defendant's "sentence," the General Assembly has expressly authorized trial

courts to "sentence" a felony offender to pay postrelease control supervision costs

associated with the offender's postrelease control term under R.C. 2929.18(A)(5)(a). See

State v. Patterson, 12th Dist. Butler No. CA2021-01-004, 2021-Ohio-3959, ¶ 15; and State

v. Murphy, 12th Dist. Butler No. CA2021-05-048, 2021-Ohio-4541, ¶ 43-44. To that end,

when the trial court orders a defendant to pay postrelease control supervision costs in its

judgment of conviction entry without first informing the defendant at sentencing of its intent

to do so, this deprives an indigent defendant of the opportunity to request the trial court

waive those costs at sentencing.

{¶ 10} We reach this decision because, unlike the statute mandating a defendant

pay court costs, which allows the trial court to retain jurisdiction to waive, suspend, or modify

the payment of those costs "at the time of sentencing or at any time thereafter," the statute

authorizing the trial court to sentence a felony offender to pay postrelease control

supervision costs does not provide the trial court with that same luxury. Compare R.C.

2947.23(C) with R.C. 2929.18. Therefore, because the trial court in this case failed to notify

Ross at sentencing that he would be ordered to pay the supervision costs associated with

his postrelease control term, but then ordered Ross to pay those costs within its judgment

of conviction entry, Ross was deprived of an opportunity to seek a waiver of those costs at

the time of sentencing.

{¶ 11} This court would, under normal circumstances, remand this matter to the trial

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court to allow Ross to move the trial court for a waiver of the supervision costs associated

with his upcoming postrelease control term. The record in this case, however, firmly

establishes that the trial court has already considered Ross' present and future ability to

pay any and all financial obligations that it imposed upon him.2 This would include Ross'

present and future ability to pay the supervision costs associated with his upcoming

postrelease control term. Therefore, because the trial court has already considered Ross'

present and future ability to any and all financial obligations imposed, remanding this matter

to the trial court is unnecessary and contrary to the underlying principles of judicial economy

and efficiency. Accordingly, Ross' first claim lacks merit.

{¶ 12} Ross also claims it was error for the trial court to order him to pay postrelease

control supervision costs because supervision costs associated with postrelease control

are not authorized under R.C. 2929.18(A)(5)(a). However, as noted above, this court has

already rejected this argument. See Patterson, 2021-Ohio-3959 at ¶ 15; and Murphy, 2021-

Ohio-4541 at ¶ 43-44. We see no reason to deviate from our prior precedent in this case.

"According to the doctrine of stare decisis, courts [should] follow controlling precedent, 'thus

creating stability and predictability in our legal system.'" State v. Yerkey, 7th Dist. Mahoning

No. 20 MA 0087, 2021-Ohio-3331, ¶ 41, quoting Westfield Ins. Co. v. Galatis, 100 Ohio

St.3d 216, 2003-Ohio-5849, ¶ 1. Therefore, to the extent Ross is requesting this court to

revisit this issue for a third time, such request is denied. We will instead reiterate this court's

holdings set forth in Patterson and Murphy that supervision costs associated with

postrelease control are authorized under R.C. 2929.18(A)(5)(a). Accordingly, finding no

merit to either of Ross' two claims set forth herein, Ross' second argument is without merit.

2. Specifically, as the trial court stated, "as to any and all financial sanctions, I will note the consideration of
present or future ability to pay * * *."
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Ross' Third Argument

{¶ 13} In his third argument, Ross claims his indefinite four-to-six year prison

sentence, which was imposed by the trial court pursuant to the Reagan Tokes Law, is

unconstitutional. This is because, according to Ross, the Reagan Tokes Law impinges

upon his constitutional right to a jury trial, is contrary to the separation-of-powers doctrine,

and runs afoul of his right to procedural due process. However, as noted by the state, this

court has repeatedly rejected claims identical to those raised by Ross herein when holding

the Reagan Tokes Law constitutional. See State v. Rogers, 12th Dist. Butler No. CA2021-

02-010, 2021-Ohio-3282, ¶ 20 (finding the Reagan Tokes Law does not impinge upon an

offender's constitutional right to a jury trial); State v. Suder, 12th Dist. Clermont Nos.

CA2020-06-034 and CA2020-06-035, 2021-Ohio-465, ¶ 25 (finding the Reagan Tokes Law

does not violate the separation-of-powers doctrine); State v Bloodworth, 12th Dist. Warren

No. CA2021-08-073, 2022-Ohio-1899, ¶ 50 (finding the Reagan Tokes Law does not run

afoul of an offender's right to procedural due process); see also State v. Blaylock, 12th Dist.

Butler No. CA2020-11-113, 2021-Ohio-2631, ¶ 7, fn. 1. Therefore, unless and until the Ohio

Supreme Court holds otherwise, we again find the Reagan Tokes Law constitutional.3

Accordingly, Ross' third argument is likewise without merit.

Conclusion

{¶ 14} For the reasons outlined above, Ross' single assignment of error is overruled

in part, sustained in part, and this matter is reversed and remanded to the trial court for the

3. The Ohio Supreme Court has two cases currently pending that should decide this issue. See State v.
Hacker, Case No. 2020-1496 (accepting an issue that asks the supreme court whether, as amended by the
Reagan Tokes Law, the Ohio Revised Code's sentences for first and second degree qualifying felonies violate
the United States and Ohio Constitutions); and State v. Simmons, Case No. 2021-0532 (accepting three
issues that ask the supreme court whether the Reagan Tokes Law: [1] violates the Sixth Amendment as it
permits the imposition of additional punishment for conduct not admitted by the defendant or found by a jury;
[2] violates the doctrine of separation of powers because, as with bad time, it conferred judicial power to the
executive branch; and/or [3] violates due process by failing to provide adequate notice, by inadequately
confining executive branch discretion, and by lacking adequate guarantees for a fair hearing).
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limited purpose of issuing a nunc pro tunc judgment of conviction entry.

{¶ 15} Judgment affirmed in part, reversed in part, and remanded.

M. POWELL and BYRNE, JJ., concur.

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