[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 Prosecuting 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 conviction 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 COMMITTED PLAIN ERROR BY SENTENCING 

MR. BENTLEY UNDER THAT ACT.”

1 Different counsel represented appellant during the trial 

court proceedings. 
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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 2021, an Adams 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 denied appellant’s motion to suppress evidence.

{¶3} On August 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 consequences 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 threeyear post-release control term, (3) pay court costs, and (4) submit 

to DNA testing.

{¶4} This 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. 
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{¶6} Appellate courts review felony sentences 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 resentencing. The 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 record 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 sentence is otherwise 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-2672, ¶ 26, citing State v. Layne, 

4th Dist. Adams No. 20CA1116, 2021-Ohio-255, ¶ 6. “‘This is an 

extremely deferential standard of review.’” Layne at ¶ 8, quoting 

State v. Pierce, 4th Dist. Pickaway No. 18CA4, 2018-Ohio-4458, ¶ 8. 

Moreover, clear and convincing 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. 
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State v. Conant, 4th Dist. 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 the following:

(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 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, 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 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) 
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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.

 

{¶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 

remainder 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 mandatory 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 acknowledges, 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 provide 
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notice of all R.C. 2929.19(B)(2)(c) notifications 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, vacate 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. In 

particular, 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 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.” R.C. 2967.271(B). A presumptive earned 

early release date is determined under procedures described in R.C. 
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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 more statutorily 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, determined and specified by DRC, 

that “shall not exceed the offender’s maximum prison term.” R.C. 

2967.271(D)(1). See Conant, supra, 2020-Ohio-4319 at ¶ 36; State 

v. Hearn, 4th Dist. Washington No. 20CA7, 2021-Ohio-594, ¶ 26.

{¶14} Until recently, there had been uncertainty 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 an indeterminate 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. 

Hanshaw, 2016-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 this 
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assigned error. See App.R. 12(A)(1)(c). Therefore, we conclude 

that appellant’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 

CONSISTENT WITH THIS OPINION.
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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 reasonable grounds for 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 granted by the 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 stay during 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 Ohio in the 45-day 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 such dismissal. 

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

For 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 further appeal 
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commences from the date of filing with the clerk.