State v. Browne

[Cite as State v. Browne, 2025-Ohio-1697.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HARDIN COUNTY

STATE OF OHIO,

CASE NO. 6-24-13

PLAINTIFF-APPELLEE,

V.

ANTHONY ALLEN BROWNE, OPINION AND

JUDGMENT ENTRY

DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court

Trial Court No. CRI 20242096

Judgment Reversed and Cause Remanded

Date of Decision: May 12, 2025

APPEARANCES:

Christopher Bazeley for Appellant

Morgan S. Fish for Appellee

Case No. 6-24-13

ZIMMERMAN, J.

{¶1} Defendant-appellant, Anthony Allen Browne (“Browne”), appeals the

September 5, 2024 judgment entry of sentence of the Hardin County Court of

Common Pleas. For the reasons that follow, we reverse and remand for

resentencing.

{¶2} On May 9, 2024, the Hardin County Grand Jury indicted Browne on

seven counts: Count One of illegal cultivation of marihuana in violation of R.C.

2925.04(A), (C)(5)(d), a third-degree felony; Count Two of possession of

marihuana in violation of R.C. 2925.11(A), (C)(3)(d), a third-degree felony; Count

Three of aggravated possession of drugs in violation of R.C. 2925.11(A), (C)(1)(a),

a fifth-degree felony; Counts Four and Seven of possessing criminal tools in

violation of R.C. 2923.24(A), (C), fifth-degree felonies; Count Five of possession

of hashish in violation of R.C. 2925.11(A), (C)(7)(a), a minor misdemeanor; and

Count Six of illegal manufacture of drugs in violation of R.C. 2925.04(A), (C)(2),

a second-degree felony. The indictment included forfeiture specifications as to

Counts Four, Six, and Seven. On May 21, 2024, Browne appeared for arraignment

and pleaded not guilty to the counts and specifications in the indictment.

{¶3} On July 5, 2024, Browne withdrew his pleas of not guilty and entered

guilty pleas, under a negotiated plea agreement, to Counts One and Six and the

forfeiture specifications as to Count Six. In exchange for his change of pleas, the

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State agreed to dismiss the remaining counts and specifications and agreed to a joint

sentencing recommendation. The trial court accepted Browne’s guilty pleas, found

him guilty, and later dismissed the remaining counts and specifications. Browne

filed a motion to set aside mandatory fines due to indigency on July 8, 2024.

{¶4} On September 5, 2024, the trial court sentenced Browne (based on the

joint sentencing recommendation of the parties) to 30 months in prison on Count

One and to a minimum term of two years to a maximum term of three years in prison

on Count Six. The trial court ordered Browne to serve the prison terms

consecutively for an aggregate sentence of a minimum term of four and a half years

to a maximum term of five and a half years in prison. The trial court further imposed

fines of $5,000 as to Count One and $7,500 as to Count Six, resulting in an aggregate

fine of $12,500, in addition to ordering $900.00 in restitution and payment of court-

appointed counsel fees.

{¶5} Browne filed his notice of appeal on September 11, 2024. He raises

four assignments of error for our review. Because it is dispositive, we will begin by

addressing Browne’s first assignment of error.

First Assignment of Error

The Trial Court Failed to Advise Browne Of His Rights Under

The Regan [sic] Tokes Act At Sentencing.

{¶6} In his first assignment of error, Browne argues that his sentence

warrants reversal because the trial court did not provide the requisite notification of

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his rights under the Reagan Tokes Act, as mandated by R.C. 2929.19(B)(2)(c). The

State concedes this error.

Standard of Review

{¶7} R.C. 2953.08(A) provides specific grounds for a defendant to appeal a

sentence. State v. Underwood, 2010-Ohio-1, ¶ 10. Under R.C. 2953.08(G)(2), an

appellate court will reverse a sentence “only if it determines by clear and convincing

evidence that the record does not support the trial court’s findings under relevant

statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 2016-

Ohio-1002, ¶ 1. Clear and convincing evidence is that “‘which will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.’” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954),

paragraph three of the syllabus.

{¶8} However, under R.C. 2953.08(D)(1), “[a] sentence imposed upon a

defendant is not subject to review under this section if the sentence is authorized by

law, has been recommended jointly by the defendant and the prosecution in the case,

and is imposed by a sentencing judge.” “[A] sentence is ‘authorized by law’ and is

not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with

all sentencing provisions.” Underwood at ¶ 20. “[W]hen a sentence fails to include

a mandatory provision, it may be appealed because such a sentence is ‘contrary to

law’ and is also not ‘authorized by law.’” Id. at ¶ 21.

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Case No. 6-24-13

Analysis

{¶9} Ohio’s current sentencing scheme (commonly known as the “Reagan

Tokes Law”), “‘significantly altered the sentencing structure for many of Ohio’s

most serious felonies’ by implementing an indefinite sentencing system for non-life,

first and second-degree felonies committed on or after its effective date.” State v.

Stenson, 2022-Ohio-2072, ¶ 5 (6th Dist.), quoting State v. Polley, 2020-Ohio-3213,

¶ 5, fn. 1 (6th Dist.). Specifically, “[t]he Law specifies that the indefinite prison

terms will consist of a minimum term, selected by the sentencing judge from a range

of terms set forth in R.C. 2929.14(A), and a maximum term determined by formulas

set forth in R.C. 2929.144.” Id.

{¶10} When imposing an indefinite prison term, R.C. 2929.19(B)(2)(c)

mandates that the trial court notify the offender 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 the presumption, the department may maintain the offender’s

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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.

See, e.g., State v. Kozee, 2025-Ohio-364, ¶ 50 (4th Dist.).

{¶11} In this case, despite Browne’s acknowledgment of the R.C.

2929.19(B)(2)(c) release notifications within the terms of his negotiated plea

agreement, the record reflects that the trial court did not provide these notifications

at his sentencing hearing. See State v. Thompson, 2021-Ohio-4027, ¶ 31 (2d Dist.)

(affirming that the R.C. 2929.19(B)(2)(c) notifications “‘must be given at the

sentencing hearing’”), quoting State v. Massie, 2021-Ohio-3376, ¶ 22 (2d Dist.).

Because the trial court failed to provide the mandatory Reagan Tokes notifications

at Browne’s sentencing hearing, his sentence is contrary to law and not authorized

by law. See Massie at ¶ 23; State v. Van Den Eynde, 2023-Ohio-1790, ¶ 7 (3d Dist.).

{¶12} Consequently, Browne’s first assignment of error is sustained and we

remand this matter for resentencing.

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Second Assignment of Error

The Trial Court Erred When It Implicty [sic] Overruled

Browne’s Motion And Affidavit To Waive Mandatory Fines.

Third Assignment of Error

The Trial Court Erred When It Ordered Browne to Pay

Restitution When The Record Shows That He Lacked The Ability

To Pay.

Fourth Assignment of Error

The Trial Court Erred When It Ordered Browne To Pay His

Court-Appointed Counsel Fees Without Finding That He Had

The Ability to Pay.

{¶13} In his second, third, and fourth assignments of error, Browne argues

that the trial court erred by imposing mandatory fines, restitution, and ordering that

he pay his court-appointed attorney fees without assessing his present and future

ability to pay. However, based on our decision to sustain Browne’s first assignment

of error and remand the matter for resentencing, Browne’s second, third, and fourth

assignments of error are rendered moot and we decline to address them. See State

v. Cain, 2006-Ohio-1779, ¶ 7 (3d Dist.) (resolving that Cain’s assignment of error

challenging the trial court’s imposition of a mandatory fine was rendered moot since

the “matter [must] be remanded for resentencing, [so] the question of whether the

defendant is indigent, and thus subject to a waiver of the mandatory fine, must be

revisited by the trial court”); App.R. 12 (A)(1)(c).

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{¶14} Having found error prejudicial to the appellant herein in the particulars

assigned and argued, we reverse the judgment of the trial court and remand for

further proceedings consistent with this opinion.

Judgment Reversed

and Cause Remanded

MILLER and WILLAMOWSKI, J.J., concur.

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Case No. 6-24-13

JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the first assignment of

error is sustained and it is the judgment and order of this Court that the judgment of

the trial court is reversed with costs assessed to Appellee for which judgment is

hereby rendered. The cause is hereby remanded to the trial court for further

proceedings and for execution of the judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

William R. Zimmerman, Judge

Mark C. Miller, Judge

John R. Willamowski, Judge

DATED:

/hls

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