State v. Norris

[Cite as State v. Norris, 2023-Ohio-4057.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

GREENE COUNTY

STATE OF OHIO :

:

Appellee : C.A. No. 2023-CA-8

:

v. : Trial Court Case No. 2022 CR 0408

:

ADAM T. NORRIS, II : (Criminal Appeal from Common Pleas

: Court)

Appellant :

:

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OPINION

Rendered on November 9, 2023

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THOMAS A. KIDD, JR., Attorney for Appellant

MEGAN A. HAMMOND, Attorney for Appellee

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TUCKER, J.

{¶ 1} Adam T. Norris, II appeals from his conviction following a jury trial on multiple

counts of aggravated drug possession and aggravated drug trafficking.

{¶ 2} Norris contends the trial court miscalculated his maximum sentence under

the Reagan Tokes Law. He also challenges the trial court’s imposition of consecutive

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sentences and argues that the Reagan Tokes Law is unconstitutional.

{¶ 3} We agree that the trial court misapplied the Reagan Tokes Law when

computing Norris’s maximum sentence. The trial court did not err, however, in imposing

consecutive sentences. Finally, we reject Norris’s challenge to the constitutionality of the

Reagan Tokes Law.

{¶ 4} Having found error in the computation of Norris’s maximum sentence, we will

reverse the trial court’s judgment in part and remand the case for correction of the

sentencing error. In all other respects, the judgment of the trial court will be affirmed.

I. Background

{¶ 5} A grand jury indicted Norris on four felony counts of aggravated drug

trafficking and four felony counts of aggravated drug possession. The case proceeded to

trial before a jury, which found Norris guilty on all counts.

{¶ 6} Following merger of allied offenses, the trial court imposed a definite two-

year prison sentence on count one, aggravated drug trafficking, a third-degree felony. It

imposed two indefinite prison sentences of eight to 12 years each on counts three and

five, aggravated drug trafficking, second-degree felonies. The trial court ordered the

indefinite sentences on counts three and five to be served consecutively. It ordered the

two-year prison term on count one to be served concurrently with counts three and five.

The trial court stated that the aggregate prison term was a minimum of 16 years and a

maximum of 24 years. Norris timely appealed, advancing three assignments of error.

II. Maximum Sentence under Reagan Tokes Act

{¶ 7} In his first assignment of error, Norris challenges the trial court’s calculation

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of his maximum prison term under the Reagan Tokes Law. Norris contends the aggregate

maximum term was 20 years, not 24 years. The State concedes error and acknowledges

that the maximum term should have been 20 years.

{¶ 8} Upon review, we conclude that the trial court erred in imposing an aggregate

maximum prison term of 24 years. The parties agree that the second-degree felony

convictions on counts three and five were governed by the Reagan Tokes Law. Therefore,

calculation of the proper maximum prison term was governed by R.C. 2929.144(B)(2). As

relevant here, R.C. 2929.144(B)(2) provides:

If the offender is being sentenced for more than one felony, if one or more

of the felonies is a qualifying felony of the first or second degree, and if the

court orders that some or all of the prison terms imposed are to be served

consecutively, the court shall add all of the minimum terms imposed on the

offender * * * and the maximum term shall be equal to the total of those

terms so added by the court plus fifty per cent of the longest minimum term

or definite term for the most serious felony being sentenced.

{¶ 9} The trial court ordered consecutive service on two second-degree felonies.

Thus, under R.C. 2929.144(B)(2) it was required to add the two eight-year minimum

terms, resulting in a maximum term of 16 years plus four years, which was fifty percent

of the longest minimum. We addressed an identical situation in State v. Stutz, 2d Dist.

Montgomery No. 29521, 2023-Ohio-1082, and explained:

According to R.C. 2929.144(B)(2), when imposing consecutive

sentences on Reagan Tokes qualifying offenses (generally first and second

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degree felonies not carrying life-tails, in this case Counts I and II), “the court

shall add all of the minimum terms imposed on the offender * * * for a

qualifying felony * * * and the maximum term shall be equal to the total of

those terms so added by the court plus fifty percent of the longest minimum

term * * * for the most serious felony being sentenced.” In other words, when

running qualifying offenses consecutively, the court must add up the

minimum terms of the Reagan Tokes qualifying offenses (in this case 8

years + 8 years = 16 years) and then add 50% of the minimum for the most

serious one being sentenced (50% of 8 years is 4 years). Based on the

statute, then, the most Stutz could have been sentenced to on the second-

degree felonies was 20 years (8 + 8 + 4 = 20), not 24 years as described

by the trial court.

Id. at ¶ 30.

{¶ 10} Based on the foregoing authority, we will remand the case for correction of

the trial court’s sentencing error. The first assignment of error is sustained.

III. Consecutive Sentencing

{¶ 11} In his second assignment of error, Norris challenges the trial court’s

imposition of consecutive sentences on counts three and five. He argues that the record

does not support the trial court’s consecutive-sentence findings.

{¶ 12} When multiple prison terms are imposed, Ohio law presumes those

sentences will run concurrently rather than consecutively. R.C. 2929.41(A). However,

R.C. 2929.14(C)(4) permits the imposition of consecutive sentences if the trial court

makes the mandatory sentencing findings prescribed by the statute. Specifically, the trial

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court must find that: (1) “the consecutive service is necessary to protect the public from

future crime or to punish the offender”; (2) “consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public”; and (3) one or more of the following three findings is made:

(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.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 13} “[W]here a trial court properly makes the findings mandated by R.C.

2929.14(C)(4), an appellate court may not reverse the trial court’s imposition of

consecutive sentences unless it first clearly and convincingly finds that the record does

not support the trial court’s findings.” State v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553,

¶ 38 (2d Dist.). Under R.C. 2953.08(F), the “record” includes, among other things, any

presentence or other report submitted to the trial court, the trial record in the case, and

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any oral or written statements made by or submitted to the trial court at the sentencing

hearing. The clear-and-convincing standard requires “a firm belief or conviction as to the

facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118

(1954), paragraph three of the syllabus.

{¶ 14} In Norris’s case, the trial court made the findings required by R.C.

2929.14(C)(4) regarding the necessity and proportionality of consecutive sentences. It

also determined that R.C. 2929.14(C)(4)(a) and (c) both applied, even though the

existence of either was sufficient to impose consecutive sentences. When ordering

consecutive service on counts three and five, the trial court stated:

The Court has decided that the defendant shall serve consecutive

service pursuant to O.R.C. 2929.14(C)(4) because the Court finds that

consecutive service is necessary to protect the public from future crime or

to punish the defendant. And consecutive service is not disproportionate to

the seriousness of the defendant’s conduct and to the danger the defendant

imposes [sic] to the public.

And the Court further finds, specifically, the defendant committed

one or more of the multiple offenses while the defendant was awaiting trial

or sentencing; or was under a sanction imposed under section 2929.16, .17,

or .18 of the Revised Code; or was under post release control at the time of

the offense with a prior[.] [sic]

Further, the defendant’s history of criminal conduct demonstrates

that consecutive service is necessary to protect the public from future crime

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by the defendant; and specifically, further, that the defendant has an

extensive criminal history which includes convictions for drug trafficking and

offenses of violence. Specifically, defendant was under post release control

supervision with the Adult Parole Authority at the time of the present

offenses as a result of sentences being imposed for three counts of drug

trafficking, felonies of the second and third degree in Greene County

Common Pleas Court case number 2018 CR 0220.

Transcript Vol. II at 484-485.

{¶ 15} Norris contends the record clearly and convincingly does not support the

trial court’s findings. He notes that the trial court did not order a presentence investigation

prior to sentencing. He also cites the absence of any comparison of the length of his prior

sentences with the 16-year minimum term imposed in this case. Norris additionally

contends the trial court failed to identify his prior violent offenses or to specify when they

occurred. In light of these perceived deficiencies, Norris urges us to modify his sentence

to wholly concurrent terms.

{¶ 16} Upon review, we find Norris’s argument to be unpersuasive. Having

reviewed the record, we lack a firm conviction or belief that the evidence failed to support

the trial court’s findings under R.C. 2929.14(C)(4). A jury found Norris guilty of possessing

and selling methamphetamine on three separate dates in 2022. The quantity of

methamphetamine involved in the two counts for which he received consecutive

sentences was between five and 50 times the bulk amount.

{¶ 17} The State’s sentencing memorandum indicated that Norris was on post-

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release control at the time of his current offenses. The memorandum identified his prior

case as Greene County Common Pleas Court case number 2018 CR 20. The

memorandum stated that the prior case involved three counts of drug trafficking for which

Norris had received a three-year prison sentence. The memorandum indicated that he

had been released from prison on December 27, 2020, and had been placed on three

years of post-release control. Accompanying the memorandum was correspondence

from the Ohio Department of Rehabilitation and Correction to the prosecutor confirming

Norris’s post-release control status in Case No. 2018 CR 20.

{¶ 18} In his own sentencing memorandum, Norris admitted his prior history of

selling drugs, his prior convictions for “similar behavior,” his prior incarceration, his post-

release-control status, and his receipt of drug treatment and education while in prison.

During the sentencing hearing, the prosecutor also made unchallenged representations

that Norris previously had served a prison sentence on three separate cases for offenses

including aggravated drug trafficking, domestic violence, and disrupting public services.

The prosecutor stressed that Norris had committed his current drug offenses while on

post-release control for aggravated drug trafficking.

{¶ 19} Despite the absence of a presentence investigation report, 1 the record

adequately supported the trial court’s consecutive-sentence findings. We certainly do not

1 On appeal, the State suggests that no presentence investigation was necessary

because the judge who presided over Norris’s prior drug-trafficking case also presided

over the current case, meaning that the judge already was familiar with Norris’s criminal

history. Norris correctly notes in his reply brief, however, that nothing in the record before

us establishes that the same judge presided over both cases. Therefore, for purposes of

our analysis, we will not presume that the sentencing judge had preexisting familiarity

with Norris’s record.

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have a firm conviction or belief that the findings were unsupported. The trial court had an

evidentiary basis for concluding that Norris was on post-release control for aggravated

drug trafficking at the time of his current offenses, which involved selling

methamphetamine. As noted above, Norris admitted engaging in prior drug-trafficking

activity and having prior convictions for “similar behavior.” He also acknowledged that he

previously had received drug treatment and education in prison and that he was on post-

release control when he committed the present offenses. Although Norris complains that

the record lacked evidence regarding the length of his prior imprisonment or the nature

of any prior offenses of violence, the prosecutor’s unchallenged sentencing memorandum

represented that he previously had received at least a three-year prison sentence, and

the prosecutor represented at sentencing that one of Norris’s prior offenses was domestic

violence. Norris did not dispute the accuracy of any of this information.

{¶ 20} In short, we find evidentiary support for the trial court’s findings under R.C.

2929.14(C)(4) regarding the necessity and proportionality of consecutive sentences as

well as the trial court’s determination that R.C. 2929.14(C)(4)(a) and (c) both applied.

Therefore, the trial court did not err in imposing consecutive sentences on counts three

and five. The second assignment of error is overruled.

IV. Constitutionality of Reagan Tokes Law

{¶ 21} In his third assignment of error, Norris challenges the constitutionality of the

indefinite sentencing scheme in the Reagan Tokes Law. He claims it violates the right to

trial by jury, the separation-of-powers doctrine, and due process. Norris acknowledges

that we consistently have upheld the constitutionality of the Reagan Tokes Law. He

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explains that he raises a constitutional challenge on appeal only “to preserve the issue

should the Supreme Court of Ohio rule otherwise.”

{¶ 22} Upon review, we conclude that the Reagan Tokes Law is constitutional. In

State v. Leamman, 2d Dist. Champaign Nos. 2021-CA-30 and 2021-CA-35, 2022-Ohio-

2057, we rejected the same constitutional arguments Norris raises. In so doing, we noted

that this court has examined and rejected those arguments numerous times. Id. at ¶ 11.

Shortly after Norris filed his appellate brief, the Ohio Supreme Court also addressed the

constitutionality of the Reagan Tokes Law, holding that it did not violate a defendant’s

right to a jury trial, the separation-of-powers doctrine, or due process. See State v.

Hacker, Ohio Slip Opinion No. 2023-Ohio-2535, __ N.E.3d __.

{¶ 23} Based on Hacker and the long line of authority from this court upholding the

constitutionality of the Reagan Tokes Law, we overrule Norris’s third assignment of error.

V. Conclusion

{¶ 24} Having sustained the first assignment of error, we affirm in part and reverse

in part the judgment of the Greene County Common Pleas Court. The case is remanded

for the trial court to impose a maximum term of 20 years in prison.

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LEWIS, J. and HUFFMAN, J., concur.