The opinion
[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.