[Cite as State v. Bentley , 2022 - Ohio - 1914.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, : Plaintiff

- Appellee, : CASE NO. 21CA1147

v. : SCOTTIE BENTLEY, : DECISION AND JUDGMENT ENTRY Defendant

- Appellant. :

_________________________________________________________________ APPEARANCES: Brian T. Goldberg, Cincinnati, Ohio, for appellant. 1 C. David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Assistant Prosecuti ng Attorney, West Union, Ohio, for appellee.

___________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 5

- 27

- 22 ABELE, J. {¶1} This is an appeal from an Adams County Common Pleas Court judgment of con viction and sentence. Scottie Bentley, defendant below and appellant herein, assigns two errors for review:

FIRST ASSIGNMENT OF ERROR: “THE REAGAN TOKES ACT, AS ENACTED BY THE OHIO LEGISLATOR (SIC) IS UNCONSTITUTIONAL, AND THE TRIAL COURT COMMIT TED PLA IN ERROR BY SENTENCING MR. BENTLEY UNDER THAT ACT.”

1 Different counsel represented appellant during the trial court proceedings.ADAMS, 21CA1147 2

SECOND ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. BENTLEY BY FAILING TO COMPLY WITH THE SENTENCING REQUIREMENTS CONTAINED IN R.C. 2929.19(B)(2)(c).” {¶2} In March 202 1, an A dams County Grand Jury returned an indictment that charged appellant with one count of aggravated drug possession in violation of R.C. 2925.11(A), a second

- degree felony. Subsequently, appellant entered a not guilty plea. The trial court also deni ed appe llant’s motion to suppress evidence. {¶3} On A ugust 5, 2021, appellant pleaded guilty to aggravated drug possession as charged in the indictment. At the change of plea hearing, the trial court notified appellant about post

- release
control and the conse quences of a post

- release control violation. The trial court then sentenced appellant to: (1) serve a mandatory four to six

- year prison term, (2) serve up to a mandatory three

year post

- release control term, (3) pay court costs, and (4) submit
to DNA test ing. {¶4} Th is appeal followed.
I. {¶5} We initially address appellant’s second assignment of error wherein appellant asserts that the trial court erred by failing to comply with the R.C. 2929.19(B)(2)(c) sentencing requirements.ADAMS, 21CA1147 3

{¶6} Appellate courts review felony sentenc es under the standard outlined in R.C. 2953.08(G)(2): The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentenc ing. T he appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the reco rd does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2) (e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the senten ce is o therwise contrary to law.
{¶7} Thus, an appellate court may vacate or modify a sentence if the court clearly and convincingly finds that the record does not support the trial court’s findings. State v. Long , 4th Dist. Pickaway No. 20CA9, 2021

- Ohio

- 26 72, ¶ 2 6, citing State v. Layne , 4th Dist. Adams No. 20CA1116, 2021

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- 255, ¶ 6. “‘This is an extremely deferential standard of review.’” Layne at ¶ 8, quoting State v. Pierce , 4th Dist. Pickaway No. 18CA4, 2018

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- 4458, ¶ 8. Moreover, clear and con vincing evidence is proof that is more than a “mere preponderance of the evidence” but not of such certainty as “beyond a reasonable doubt,” and produces in the mind a “firm belief or conviction” as to the facts sought to be established.ADAMS, 21CA1147 4

State v. Conant, 4th Dis t. Adams No. 20CA1108, 2020

- Ohio

- 4319, ¶ 42; Long at ¶ 8. {¶8} R.C. 2929.19(B)(2)(c) outlines notifications the trial court must provide pursuant to subsections (B)(1) and (2) which require the court to notify the offender at the sentencing hearing
of t he foll owing: (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 mini mum pri son 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 p resumpt ion described in division (B)(2)(c)(i)of this section if, at the 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, t he offe nder’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 specifi ed dete rminations and rebuts 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 reas onable, 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)ADAMS, 21CA1147 5

and (ii) of thi s 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 of fender must be released upon the expiration of that term.
{¶9} In the case sub judice, appellee concedes that, although the trial court informed appellant that he would be subject to the indefinite sentence, the court did not provide appellant the remaind er of the required R.C. 2929.19(B)(2)(c) notifications. Our review of the transcript reveals that the trial court did consider the R.C. 2929.11 purposes and principles of felony sentencing, the R.C. 2929.12 “seriousness of recidivism factors”, and the R.C
. 2929.13 “guidance factors.” The court further found that appellant is not amenable to community control sanctions and “is subject to a mandatory sentencing, a prison sentence is appropriate. I’m going to impose a sentence of four to six years ma ndatory incarceration.” In addition, the court informed appellant (1) he will be subject to mandatory post release control for up to three years but not less than 18 months, and (2) the consequences of violating post

- release control. However, as appellee acknow ledges, the court did not provide all of the R.C. 2929.19(B)(2)(c) notifications. {¶10} As appellee observes, this court held in State v. Long , supra, 2021

- Ohio

- 2672, that if a trial court fails to provideADAMS, 21CA1147 6

notice of all R.C. 2929.19(B)(2)(c) notificati ons at a sentencing hearing, the sentence is contrary to law. Long at ¶ 29; citing
State v. Wolfe , 5th Dist. Licking No. 2020CA00021, 2020

- Ohio

- 5501, ¶ 33

- 37. {¶11} Therefore, based upon the foregoing reasons, we sustain appellant’s second assignment of error , vacat e appellant’s sentence and remand the matter for resentencing.
II. {¶12} In his first assignment of error, appellant asserts that (1) the Reagan Tokes Act is unconstitutional, and (2) the trial court’s sentence under that Act constitutes plain error. I n parti cular, appellant contends that the Act violates the separation of powers doctrine and appellant’s procedural due process rights. {¶13} The Reagan Tokes Law requires that a court imposing a prison term under R.C. 2929.14(A)(1)(a) or (2)(a) for a first or
second

- degree felony committed on or after March 22, 2019, impose a minimum prison term under that provision and a maximum prison term determined under R.C. 2929.144(B). R.C. 2929.144(C). A presumption exists that an offender “shall be released from ser vice
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.” R.C. 2967.271(B). A presumptive earned early release date is determined under procedures descr ibed in R.C.ADAMS, 21CA1147 7

2967.27(F), which allows the sentencing court to reduce the minimum prison term under certain circumstances. R.C. 2967.271(A)(2). The Department of Rehabilitation and Correction (DRC) may rebut the presumption if it determines that one or mo re stat utorily numerated factors apply. R.C. 2967.271(C). If DRC rebuts the presumption, it may maintain the offender’s incarceration after the expiration of the minimum prison term, or the presumptive earned early release date, for a reasonable period, determi ned and specified by DRC, that “shall not exceed the offender’s maximum prison term.” R.C. 2967.271(D)(1). See Conant , supra , 2020

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- 4319 at ¶ 36; State
v. Hearn , 4th Dist. Washington No. 20CA7, 2021

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- 594, ¶ 26. {¶14} Until recently, there had be en unce rtainty as to whether Reagan Tokes Act constitutional challenges are ripe for review. However, in State v. Maddox , Ohio St.3d , 2022

- Ohio

- 764, N.E.3d , at ¶ 21, the Supreme Court of Ohio found the issue of the constitutionality of a n indet erminate sentence imposed under R.C. 2967.271 ripens at the time of sentencing and, thus may be challenged on direct appeal. {¶15} Although the constitutionality of a statute presents a question of law the appellate courts review de novo, Hayslip v.
Han shaw , 2 016

- Ohio

- 3339, 54 N.E.3d 1272, ¶ 27 (4th Dist.), in light of our resolution of appellant’s second assignment of error and remand for resentencing, we need not reach the merits of thisADAMS, 21CA1147 8

assigned error. See App.R. 12(A)(1)(c). Therefore, we conclude
t hat app ellant’s first assignment of error is moot. {¶16} Accordingly, based upon the foregoing reasons, we reverse the trial court’s judgment and remand for resentencing consistent with this opinion.
JUDGMENT REVERSED AND CAUSE REMANDED FOR RESENTENCING CONSI STENT W ITH THIS OPINION.ADAMS, 21CA1147 9

JUDGMENT ENTRY It is ordered that the judgment be reversed and the matter be remanded for resentencing consistent with this opinion. Appellant shall recover of appellee the costs herein taxed. The Court finds there were reason able gr ounds f or this appeal. It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously grante d by th e trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a st ay duri ng the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60

- day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Oh io in t he 45

- d ay appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of suc h dismi ssal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
Fo r the Court

BY:

_____________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for furth er appe alADAMS, 21CA1147 10

comm ences from the date of filing with the clerk.