State v. Watson

[Cite as State v. Watson, 2023-Ohio-1469.]

COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Andrew J. King, J.
-vs- :
:
MICHAEL WATSON : Case No. 22-COA-027
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 19-CRI-194

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 3, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL TIMOTHY HACKETT
NADINE HAUPTMAN 250 East Broad Street
110 Cottage Street Suite 1400
Third Floor Columbus, OH 43215
Ashland, OH 44805
Ashland County, Case No. 22-COA-027 2

King, J.

{¶ 1} Defendant-Appellant Michael Watson appeals the July 7, 2022 resentencing

judgment entry of the Ashland County Court of Common Pleas. Plaintiff-Appellee is the State of

Ohio.

Facts and Procedural History

{¶ 2} A recitation of the underlying facts of the offenses is unnecessary to our resolution

of this appeal.

{¶ 3} In 2019, the Ashland County Grand Jury returned an indictment charging Watson

with two counts of aggravated murder, four counts of conspiracy to commit aggravated murder,

two counts of attempted aggravated murder, aggravated burglary, and aggravated robbery, all

with accompanying firearm specifications. Watson was 17-years old when he committed the

crimes.

{¶ 4} On January 24, 2020, pursuant to a plea agreement with the state, Watson agreed

to provide testimony against his co-defendants and plead guilty to all charges. The parties

agreed merger would apply to specific counts and the state elected to have Watson sentenced

for one count of aggravated murder, one count of conspiracy to aggravated murder, and

aggravated robbery. The parties further agreed the specifications merged and the state elected

to have Watson sentenced on the specification accompanying aggravated murder. The parties

jointly agreed to a sentencing recommendation of life in prison with parole eligibility after 30

years for aggravated murder, with a three-year term of incarceration for the accompanying

firearm specification; five to seven and one-half years in prison for conspiracy to aggravated

murder; and five to seven and one-half years in prison for aggravated robbery, to be served

consecutively for an aggregate prison term of thirty-eight years to life in prison.
Ashland County, Case No. 22-COA-027 3

{¶ 5} The trial court convicted Watson upon his pleas of guilty and sentenced him in

accordance with the agreed upon sentence.

{¶ 6} Watson filed an appeal from his sentence and conviction arguing his sentence of

thirty-eight years to life in prison was unconstitutional based on the December 22, 2020 decision

of the Ohio Supreme Court in State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d

952. State v. Watson, 5th Dist. Ashland No. 19-CRI-194, 2021-Ohio-1361, ¶ 8 (Watson I). Patrick

held that the trial court must expressly consider the juvenile offender's age as a mitigating factor

when imposing a term of life imprisonment, even if the term includes eligibility for parole. Id. at ¶

2. Because the record in Watson I was devoid of any articulation of consideration of Watson's

youth by the trial court before imposing sentence, this court agreed that Watson's sentence was

unconstitutional. Id. ¶ 10. We reversed Watson's sentence and remanded the matter for

resentencing. Id. ¶ 14.

{¶ 7} On June 27, 2022, the trial court held a new sentencing hearing. Watson presented

mitigation evidence as to youth through the testimony and written report of Dr. Sandra B.

McPherson.

{¶ 8} Dr. McPherson's testimony and report indicated Watson was segregated from the

general population at the time of McPherson's evaluation due to his involvement in an attack on

another inmate. Report (R.) at 2. As to family dynamics, Dr. McPherson reported while Watson's

father went to prison for three years when Watson was eight-years-old, Watson nonetheless

came from an intact home and has a close relationship with his parents. Id. 2-5. Even so,

Watson's family environment consisted of adults making bad choices and modeling antisocial

behavior. Transcript of sentencing hearing (T.) 23. While Watson's father was in prison, his
Ashland County, Case No. 22-COA-027 4

mother had to work nights leaving Watson to his own devices. T. 20-21. Watson told Dr.

McPherson he had a "very bad" experience in his first 5 years, but declined to elaborate. T. 21.

{¶ 9} Despite average-to-above-average intelligence in some areas, Watson has

struggled socially and academically. He lacks sharing, collaborative, "getting along" behaviors,

and he is reactive. He has been involved in fights from the time he was in first grade. T. 23, R.

6-7.

{¶ 10} Dr. McPherson explained how the adolescent brain differs from the adult brain,

specifically that phycological aspects do not fully mature until the mid-20's making youth more

impulsive. T. 15-16. While Dr. McPherson found Watson has a history of being anxious,

depressed, and displays some antisocial traits, she did not diagnose him with any severe mental

illness. T. 29-30. She found Watson dependent on nicotine, marijuana, and involved in using

methamphetamine both during the days leading up to his crimes and since he has been

incarcerated. T. 32-37, 42. She believed peer pressure played a role in the commission of

Watson's crimes and further believed he could be rehabilitated. T. 30.

{¶ 11} For its part, the state presented state's exhibit A, a copy of Watson's institutional

report which reflected 27 violations including violations involving violence and controlled

substances.

{¶ 12} The parties did not engage in sentencing negotiations as they had before the first

sentencing hearing. Counsel for Watson, however, advocated for a sentence with earlier parole

eligibility than the originally imposed sentence. The state recommended the original 38 years to

life sentence be reimposed.

{¶ 13} Following a discussion of State v. Patrick, and case law and statutory amendments

which came about after Watson's first sentencing hearing, the trial court resentenced Watson to
Ashland County, Case No. 22-COA-027 5

life incarceration for aggravated murder with parole eligibility after 30 years. For conspiracy to

aggravated murder, the trial court imposed an indefinite sentence of five to seven-and-a-half

years. For aggravated robbery Watson was also sentenced to five to seven-and-a-half years.

He was further sentenced to a mandatory three-year term of incarceration for the firearm

specification. The trial court ordered Watson to serve the sentences for conspiracy to aggravated

murder, aggravated robbery, and the firearm specification consecutively to the sentence for

aggravated murder resulting in an aggregate sentence of 43 years to life in prison. Five years

longer than the original sentence.

{¶ 14} Watson filed an appeal and the matter is now before this court for review. He raises

four assignment of error as follow:

I

{¶ 15} "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DISREGARDED

THIS COURT’S SPECIFIC MANDATE ON REMAND AND INSTEAD DECIDED THAT IT WAS

NO LONGER BOUND BY THIS COURT’S PRIOR DECISION OR BY STATE V. PATRICK

VIOLATING THE LAW-OF-THE-CASE DOCTRINE AND MICHAEL’S FUNDAMENTAL

RIGHTS UNDER THE OHIO CONSTITUTION. ARTICLE I, SECTIONS 9, 10, 16, OHIO

CONSTITUTION."

II

{¶ 16} "THE TRIAL COURT IMPOSED AN INCREASED AGGREGATE LIFE

SENTENCE FIVE YEARS LONGER THAN THAT ORIGINALLY IMPOSED OR

RECOMMENDED BY EITHER PARTY. THE NEW SENTENCE IS AT A MINIMUM

PRESUMPTIVELY VINDICTIVE, AND THE RECORD NEITHER OVERCOMES THAT

PRESUMPTION NOR JUSTIFIES THE INCREASED SENTENCE, VIOLATING MICHAEL’S
Ashland County, Case No. 22-COA-027 6

DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."

III

{¶ 17} "THE TRIAL COURT’S DECISION TO IMPOSE HEIGHTENED CONSECUTIVE

SENTENCES, FOR AN AGGREGATE LIFE-TERM FIVE YEARS LONGER THAN THAT

ORIGINALLY IMPOSED, FIVE YEARS BEYOND THAT RECOMMENDED BY EITHER PARTY,

AND EIGHTEEN YEARS LONGER THAN MICHAEL’S STATUTORY PAROLE-ELIGIBILITY

DATE, WAS NOT CLEARLY AND CONVINCINGLY SUPPORTED BY THE RECORD. R.C.

2953.08(G); 2929.14(C)(4); 2967.132(B)-(C)."

IV

{¶ 18} "THE TRIAL COURT ERRED WHEN IT IMPOSED INDEFINITE SENTENCES

UNDER THE UNCONSTITUTIONAL REAGAN TOKES LAW, FIFTH, SIXTY, AND

FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE I, SECTIONS 5, 10,

AND 16 OF THE OHIO CONSTITUTION."

I

{¶ 19} In his first assignment of error, Watson argues the trial court violated law of the

case doctrine when it declined to articulate its consideration of Watson's youth as a mitigating

factor before imposing its sentence. We disagree.

{¶ 20} Law of the case doctrine provides that a decision of a reviewing court in a case

remains the law of the case on the legal questions involved for all subsequent proceedings in

the case at both the trial and reviewing levels. U.S. Bank v. Detweiler, 5th Dist. Stark No. 2011

CA00095, 2012-Ohio-73, ¶ 26, citing Nolan v. Nolan (1984), 11 Ohio St.3d 1, 462 N.E.2d 410

(1984). "After a reviewing court has reversed and remanded a cause for further action in the trial
Ashland County, Case No. 22-COA-027 7

court, and the unsuccessful party does not prosecute review to the Supreme Court, the

pronouncement of the law by the intermediate court becomes the law of the case, and must be

followed by the lower court in subsequent proceedings in that case." Pavlides v. Niles Gun Show,

Inc., 112 Ohio App.3d 609, 615, 679 N.E.2d 728 (1996).

{¶ 21} Here Watson argues the trial court refused to follow this court's remand instructions

to resentence him pursuant to State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d

952. As an initial matter, authority relevant to Watson's sentencing complaint has evolved since

his first sentencing hearing. First, on December 23, 2022, the Supreme Court of Ohio issued an

opinion addressing the impact of Jones v. Mississippi, __ U.S. __, 141 S.Ct. 1307, 209 L.Ed.

2d.320 (2021) on its decision in State v. Patrick. It did so in a sentencing challenge identical to

the one Watson has raised, and in the case of Watson's codefendant Tyler Morris. The Court

found:

Although the United States Supreme Court in Jones, –– U.S. –––,

141 S.Ct. 1307, 209 L.Ed.2d 390, held that sentencing courts are not

required to make a finding of permanent incorrigibility before

sentencing a youthful offender to life in prison, that holding does not

extend to negate our decision in Patrick that sentencing courts must

separately consider an offender's youth as a mitigating factor before

sentencing him or her to prison for life. Furthermore, the court in

Jones noted that states are free to require sentencing courts to make

certain findings and/or require sentencing courts to set forth certain

information on the record. Id. at 1323. That is what this court did in
Ashland County, Case No. 22-COA-027 8

Patrick. Unless or until the General Assembly chooses to legislate

otherwise, Patrick is still the law in Ohio.

{¶ 22} State v, Morris, -- N.E.3d --, 2022-Ohio-4609, ¶ 16. The matter was remanded to

the trial court with the directive to "resentence him after considering his youth as a mitigating

factor." Id. ¶ 17.

{¶ 23} Second, on January 20, 2023, in State v. Spears, 5th Dist. Fairfield No. 2021 CA

00030, 2023-Ohio-187 this court considered the application of R.C. 2929.19(B)(1)(b), which

became effective April 12, 2021. Said section essentially codified Patrick and directs a trial court

in relevant part as follows:

(b) If the offense was committed when the offender was under

eighteen years of age, in addition to other factors considered,

consider youth and its characteristics as mitigating factors, including:

(i) The chronological age of the offender at the time of the offense

and that age's hallmark features, including intellectual capacity,

immaturity, impetuosity, and a failure to appreciate risks and

consequences;

(ii) The family and home environment of the offender at the time of

the offense, the offender's inability to control the offender's

surroundings, a history of trauma regarding the offender, and the

offender's school and special education history;
Ashland County, Case No. 22-COA-027 9

(iii) The circumstances of the offense, including the extent of the

offender's participation in the conduct and the way familial and peer

pressures may have impacted the offender's conduct;

(iv) Whether the offender might have been charged and convicted of

a lesser offense if not for the incompetencies associated with youth,

such as the offender's inability to deal with police officers and

prosecutors during the offender's interrogation or possible plea

agreement or the offender's inability to assist the offender's own

attorney;

(v) Examples of the offender's rehabilitation, including any

subsequent growth or increase in maturity during confinement.

{¶ 24} In Spears, due to the lack of precedent regarding what appropriate consideration

of the above outlined factors looks like, we likened the analysis to that of the sentencing

considerations contained R.C. 2929.11 and 2929.12 which require only that the trial court

consider both R.C. 2929.11 and 2929.12 before imposing a prison sentence, and with no

requirement to make specific findings under any of those considerations. Spears at ¶ 38 citing

State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88

Ohio St.3d 208, 724 N.E.2d 793 (2000). Even so, we noted:

While precedent does not require the trial court to produce findings,

our holdings with regard to R.C. 2929.11 and R.C. 2929.12 require

that the "necessary findings can be found in the record," State v.
Ashland County, Case No. 22-COA-027 10

Taylor, 5th Dist. Richland No. 17CA29, 2017-Ohio-8996, 2017 WL

6371306, ¶ 27, State v. Webb, 5th Dist. Muskingum No. CT2018-

0069, 2019-Ohio-4195, 2019 WL 5092631, ¶ 19 or that "the record

reflect[ ] that the trial court considered the purposes and principles of

sentencing and the seriousness and recidivism factors as required in

Sections 2929.11 and 2929.12 of the Ohio Revised Code." State v.

Hayes, 5th Dist. Knox No. 18CA10, 2019-Ohio-1629, 2019 WL

1938718, ¶ 55. See State v. Green, 7th Dist., 2021-Ohio-2412, 173

N.E.3d 876, ¶ 63 and State v. Hughes, 6th Dist. Wood No. WD-05-

024, 2005-Ohio-6405, 2005 WL 3254572, ¶ 10. The mandate of R.C.

2929.19, that the trial court consider specific factors, is sufficiently

similar to the language of R.C. 2929.11 and R.C. 2929.12 to warrant

to the same analysis. Consequently, while the trial court need not

specify findings regarding the factors listed in R.C. 2929.19(B)(1)(b),

we must review the record to determine whether it affirmatively

shows the court failed to consider those factors.

{¶ 25} Spears at ¶ 40.

{¶ 26} Against that background, Watson supports his argument that the trial court failed

to comply with this court's directive on remand with quotes from the trial court indicating its

disagreement with this court and its opinion that Patrick was no longer good law. T. 6-7, 18, 59.

While inappropriate, despite its bluster the trial court's comments are inconsequential because
Ashland County, Case No. 22-COA-027 11

the record reflects it ultimately did comply with this court's directive to consider Watson's youth

before imposing a sentence which included a potential term of life imprisonment.

{¶ 27} The trial court first listened to the lengthy testimony of Dr. McPherson who

discussed the following: immaturity and impetuosity inherent to youth including Watson;

Watson's less than ideal home environment and family dynamics; that peer pressure may have

contributed to Watson's conduct; and that while he may have anxiety and depression challenges,

he does not suffer serious mental illness. Dr. McPherson's opinions were also contained in her

report which Watson provided to the trial court and the trial court reviewed. The state submitted

Watson's institutional report which reflected 27 infractions including violations involving violence

and controlled substances. In fashioning a sentence, the trial court specifically noted it had

considered the purposes and principals of sentencing including the five additional youth factors

set forth in R.C. 2929.19(B)(1)(b) as well as Dr. McPherson's report. The trial court also noted it

had sat through the trial of Watson's codefendant and heard how the murder and attempted

murder were planned, observed that Watson's testimony suggested he "enjoyed seeing the

reaction of the victims" and that he "rather enjoyed the situation." The court also mentioned

Watson's institution report and the fact that his behavior in the institution "sounds eerily like the

situation that led to the offenses in this case." T. 92-101.

{¶ 28} We find, therefore, that despite its apparent distaste for this court's decision to

overrule the first sentence and then remand, the record reflects the trial court adequately

complied with this court's directive to articulate consideration of Watson's youth before imposing

a sentence which included a potential term of incarceration for life.

{¶ 29} The first assignment of error is overruled.

II
Ashland County, Case No. 22-COA-027 12

{¶ 30} In his second assignment of error, Watson argues the sentence imposed by the

trial court on remand was an impermissible vindictive sentence imposed to punish him for his

successful appeal. We disagree.

{¶ 31} We have previously addressed an allegation of vindictive sentencing in State v.

Moore, 5th Dist. Knox No. 07-CA-19, 2007-Ohio-6826. In that matter we reviewed North Carolina

v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and its progeny. In Pearce, the

United States Supreme Court set aside the sentence of a state prisoner who had successfully

appealed his conviction but upon remand was given a harsher sentence. The Court stated that

a defendant's due process rights were violated when, after a successful appeal, a harsher

sentence was imposed because of vindictiveness. The Court went on to hold that, if a more

severe sentence is imposed following appeal, the reasons for the harsher sentence must appear

on the record and must be "based upon objective information concerning identifiable conduct on

the part of the defendant occurring after the time of the original sentencing proceeding." Id. at

726.

{¶ 32} While Pearce does not prohibit a trial court from imposing a longer sentence on

remand, it does require the court to give reasons for the increased sentence in order to overcome

a presumption of vindictiveness including conduct or events which cast " ' new light upon the

defendant's life, health, habits, conduct, and mental and moral propensities.' " Wasman v. United

States, 468 U.S. 559, 570–571, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984) citing Williams v. New

York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949).

{¶ 33} "In Ohio, it has generally been held that 'a presumption of vindictiveness arises

when the same judge imposes a harsher sentence following a successful appeal.' " State v.

Ferrell, 2021-Ohio-1259, 170 N.E.3d 464, ¶ 17 (11th Dist.). Here, the resentencing was
Ashland County, Case No. 22-COA-027 13

performed by the same judge as the original sentencing. Watson received an objectively harsher

sentence since his prison term was lengthened by five years. The issue before us then is whether

the presumption of vindictiveness arising from the harsher sentence is rebutted by the record.

In order to overcome the presumption of vindictiveness, the trial court must make affirmative

findings on the record regarding conduct or events that occurred or were discovered after the

original sentencing. State v. Thrasher, 178 Ohio App.3d 587, 2008-Ohio-5182, 899 N.E.2d 193,

¶ 17 (2nd Dist.), citing Pearce and Wasman.

{¶ 34} In support of his argument that the presumption was not rebutted, Watson again

points to the same comments made by the trial court during sentencing that he relied upon in

the first assignment of error. The trial court indicated this court and "perhaps the Ohio Supreme

Court were just flat out wrong." T. 59. It referenced a case that appeared to be have been

reversed by this court on a community control issue but also appeared unrelated to this case,

generally suggesting opinions from this court are baffling. T. 61-62 It further suggested the

parties could "knock yourselves out" on appeal, a "waste of the taxpayer's money," and that

"infinite" appeals did not matter to the trial court because "I won't be here the next time this issue

comes before this court." T. 19, 67-68.

{¶ 35} We agree that the commentary from trial judge (who is now retired) was wholly

inappropriate. The trial judge should have refrained from the all improper commentary, which

was heard by the defendant, attorneys, and the public present. The public needs to have the

utmost confidence that the trial judge will follow the law without bias or passion. And improper

commentary such as this could undermine the public’s confidence in a judge’s ability to apply

the law fairly. So although we find that the trial judge applied the mandate from this court
Ashland County, Case No. 22-COA-027 14

properly, the judge should have done so without being combative towards this court and

interjecting his personal opinion into the hearing.

{¶ 36} Thus we find the judge's personal commentary was unrelated to the new sentence.

Moreover, the trial court was presented with new information which cast new light on Watson's

conduct, mental and moral propensities. As discussed under the first assignment of error, the

trial court sat through the trial of Watson's codefendant, heard how the murder and attempted

murder were planned and carried out, and the trial court observed during the resentencing that

Watson's testimony suggested he "enjoyed seeing the reaction of the victims" and "rather

enjoyed the situation." For that reason, the trial court "somewhat beg[ged] to differ" with Dr.

McPherson's conclusion that a diagnosis of psychopathy did not apply to Watson. It also noted:

[Y]our accomplice in this matter, Tyler Morris, whose name was

mentioned during this hearing, received a sentence of similar nature

* * *as what you were originally sentenced to in this matter. It might

have been a little different on the parole eligibility, but he wasn't the

trigger man, you were. You were the one that engaged in the actual

act which puts your responsibility a little higher up the totem than Mr.

Morris.

{¶ 37} T. 100. The court was also presented with new information contained in Dr.

McPherson's report and testimony.1 Finally, the trial court was provided with new information in

1
For reasons unclear in the record, Watson had previously waived preparation of a presentence investigation prior
to his pleas. Thus Dr. McPherson's report and information gleaned from Morris' trial were entirely new
Ashland County, Case No. 22-COA-027 15

the form of Watson's unfavorable institution report which contained offenses it found "eerily"

similar to Watson's crimes.

{¶ 38} All of these things occurred or were discovered after Watson's original sentencing

hearing. Moreover, the trial court made it clear the harsher sentence was based on its

observations during trial, the fact that Watson was the "trigger man," and Watson's misconduct

in prison. We find these statements by the trial court sufficient to overcome the presumption of

vindictiveness.

{¶ 39} The second assignment of error is overruled.

III

{¶ 40} Watson next appears to argue his consecutive sentences are not supported by the

record and the imposition of consecutive sentences interferes with the function of the Adult

Parole Authority. We disagree.

{¶ 41} R.C. 2929.14(C)(4) states:

(4) 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 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

information. We note the judgment entry appealed from indicates a presentence investigation was prepared
which is apparently inaccurate.
Ashland County, Case No. 22-COA-027 16

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.

{¶ 42} R.C. 2953.08(G)(2) requires this court to review the record de novo and decide

whether the record clearly and convincingly does not support the consecutive-sentence findings.

State v, Gwynne, --- NE.3d --- 2022-Ohio-4607 ¶ 1. When imposing consecutive sentences, a

trial court must state the required findings at the sentencing hearing. State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. Because a court speaks through its journal,

the court should also incorporate its statutory findings into the sentencing entry. Id. However, a
Ashland County, Case No. 22-COA-027 17

word-for-word recitation of the language of the statute is not required. Id. As long as the

reviewing court can discern the trial court engaged in the correct analysis and can determine the

record contains evidence to support the findings, consecutive sentences should be upheld. Id.

{¶ 43} Watson does not dispute that the trial court recited the appropriate statutory

findings on the record and in its sentencing judgment entry pursuant to R.C. 2929.14(C)(4)

before imposing consecutive sentences. Instead, he asks we find the record does not support

the imposition of consecutive sentences, and conflicts with R.C. 2967.132(C).

{¶ 44} R.C. 2967.132(C) became effective on April 12, 2021. That section provides:

(C) Notwithstanding any provision of the Revised Code to the

contrary, and regardless of when the offense or offenses were

committed and when the sentence was imposed, a prisoner who is

serving a prison sentence for an offense other than an aggravated

homicide offense and who was under eighteen years of age at the

time of the offense, or who is serving consecutive prison sentences

for multiple offenses none of which is an aggravated homicide

offense and who was under eighteen years of age at the time of the

offenses, is eligible for parole as follows:

(1) Except as provided in division (C)(2) or (3) of this section, the

prisoner is eligible for parole after serving eighteen years in prison.

(2) Except as provided in division (C)(3) or (4) of this section, if the

prisoner is serving a sentence for one or more homicide offenses,

none of which are an aggravated homicide offense, the prisoner is

eligible for parole after serving twenty-five years in prison.
Ashland County, Case No. 22-COA-027 18

(3) Except as provided in division (C)(4) of this section, if the prisoner

is serving a sentence for two or more homicide offenses, none of

which are an aggravated homicide offense, and the offender was the

principal offender in two or more of those offenses, the prisoner is

eligible for parole after serving thirty years in prison.

(4) If the prisoner is serving a sentence for one or more offenses and

the sentence permits parole earlier than the parole eligibility date

specified in division (C)(1), (2), or (3) of this section, the prisoner is

eligible for parole after serving the period of time in prison that is

specified in the sentence.

{¶ 45} An "aggravated homicide offense" is defined in R.C. 2967.132(A)(1) as:

(1) “Aggravated homicide offense” means any of the following that

involved the purposeful killing of three or more persons, when the

offender is the principal offender in each offense:

(a) Aggravated murder;

(b) Any other offense or combination of offenses that involved the

purposeful killing of three or more persons.

{¶ 46} Further relevant, the section states:
Ashland County, Case No. 22-COA-027 19

(2) “Homicide offense” means a violation of section 2903.02,

2903.03, 2903.04, or 2903.041 of the Revised Code or a violation of

section 2903.01 of the Revised Code that is not an aggravated

homicide offense.

(B) This section applies to any prisoner serving a prison sentence for

one or more offenses committed when the prisoner was under

eighteen years of age. Regardless of whether the prisoner's stated

prison term includes mandatory time, this section shall apply

automatically and cannot be limited by the sentencing court.

{¶ 47} Watson's aggravated murder conviction was based on the killing of one victim

making R.C. 2967.132(C)(2) applicable, making Watson eligible for parole after 25 years.

Watson argues the trial court's decision to order consecutive sentences that result in a term of

incarceration beyond his parole eligibility date does nothing to protect the public from future

crime and thus creates an excessive sentence.

{¶ 48} First, Watson argues that whenever a youthful offender is subject to a life sentence

a sentencing court should not set the term of the proceeding determinate sentence beyond the

when the offender is eligible for parole under R.C. 2967(C). We disagree.

{¶ 49} We first note that R.C. 2929.02(B)(3) directs the trial court to impose a sentence

of 30 years to life here because of Watson’s age at the time of the offense of aggravated murder.

Because Watson is serving a life sentence for aggravated murder, R.C. 2967.13(A)(1) would

normally apply here and require Watson to serve 43 years before he would be eligible for parole.
Ashland County, Case No. 22-COA-027 20

But R.C. 2967.132 intervenes instead to allow the Adult Parole Authority to consider Watson for

parole after he serves just 25 years of his 43-year sentence.

{¶ 50} If the import of R.C. 2967.132 is as Watson suggests, then a sentencing court

would not be permitted impose the 30-year-to-life sentence required by R.C. 2929.02(B)(3), even

before considering whether to run the sentences consecutively. This is not permissible as

"judges are duty-bound to apply sentencing laws as they are written." State v. Anderson, 143

Ohio St.3d 173, 2015-Ohio-2089,3 5 N.E.3d 512 ¶ 10 citing Woods v. Telb, 89 Ohio St.3d 504,

507-509, 733 N.E.2d 1103 (2000). Likewise, sentencing courts should continue to impose the

properly calculated sentence even in situations where consecutive sentences result in a

determinate sentence in excess of the required time served for parole eligibility under R.C.

2967.132.

{¶ 51} Further, even if we were to determine that there was conflict among these

provisions, we are required by R.C. 1.51 to give effect to both provisions whenever possible.

Accordingly, the determinate sentence of 43 years was not improper.

{¶ 52} Second, as discussed above, the trial court placed extensive findings on the record

concerning information it did not have at Watson's first sentencing hearing including what it

learned during Morris' trial, Dr. McPherson's testimony and report, and Watson's institution

report. The trial court's consideration of all of these factors lead us to a conclusion that the record

clearly and convincingly supports the consecutive sentence findings.

{¶ 53} The third assignment of error is overruled.

IV

{¶ 54} In his final assignment of error, appellant challenges his indefinite sentences

pursuant to the Reagan Tokes Act, codified in R.C. 2967.271.
Ashland County, Case No. 22-COA-027 21

{¶ 55} We rejected the same challenge in State v. Householder, 5th Dist. Muskingum No.

CT2021-0026, 2022-Ohio-1542, ¶ 6:

For the reasons stated in the dissenting opinion of The Honorable W.

Scott Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021,

2020-Ohio-5501, we find the Reagan Tokes Law does not violate

Appellant's constitutional rights to trial by jury and due process of

law, and does not violate the constitutional requirement of separation

of powers. We hereby adopt the dissenting opinion in Wolfe as the

opinion of this Court. In so holding, we also note the sentencing law

has been found constitutional by the Second, Third, Sixth, and

Twelfth Districts, and also by the Eighth District sitting en banc. See,

e.g., State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-

Ohio-4153; State v. Hacker, 3rd Dist. Logan No. 8-20-01, 2020-Ohio-

5048; State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2022-Ohio-

1350; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-

Ohio-3837; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-

Ohio-470. Further, we reject Appellant's claim the Reagan Tokes Act

violates equal protection for the reasons stated in State v. Hodgkin,

12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353.

{¶ 56} The final assignment of error is overruled.

{¶ 57} The judgment of the Ashland County Court of Common Pleas is affirmed.
Ashland County, Case No. 22-COA-027 22

By King, J.,

Gwin, P.J. and

Baldwin, J. concur.

AJK/rw