[Cite as State v. Brazo , 2021-Ohio-4006.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsSTEPHEN BRAZO Defendant-Appellant JUDGES: Hon. Craig R. Baldwin, P. J. Hon. W. Scott Gwin, J. Hon. John W. Wise, J. Case No. 2021 CA 0016

O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Comm on 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 43055Licking County, Case No. 2021 CA 0016 2
Wise, J. {¶1} Defendant-Appellant Stephen Brazo appeals his conviction and se ntence on one count of aggravated possession of drugs entered in the L icking 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 o ne count of Aggravated Possession of Drugs (Methamphetamine), a vi olation of R.C. §2925.11(A)(C)(1)(c), a felony of the 2 nd degree. The case was scheduled for jury trial on October 8, 2020. {¶4} On October 8, 2020, the date scheduled for trial, Appellant arr ived 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 wit h him and which he stated that he understood. The trial court reviewed wi th Appellant the rights that he was giving up by pleading to the Indictment, including the r ight to a trial, the right to have the State prove the case beyond a reasonable doubt, the ri ght to confront his accuser, the right to call and question and cross-examine witne sses, and the right to testify himself if he chose to. (T. at 8-11). When Appellant he sitated 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 affir mative. (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 Departme nt was operating a marked Pataskala Police Cruiser on routine patrol n ear 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 ca me 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 Pataska la, Licking County, Ohio. Id . Contact was made with the driver of the vehicle, Stephen Braz o, hereinafter the Appellant. Id . The passengers were identified as co-Defendants Benjamin John son (rear passenger) and Alicia Clark (front seat passenger). Id . A close inspection of the white validation sticker revealed that the sticker belonged to a vehi cle with license plate HMY3687 (returning to a silver Pontiac owned by Appellant), whe reas 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 seco nd officer performed an inventory search of the vehicle. Id . Officers located two small plastic baggies containing a cryst allike 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 und er 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 andLicking County, Case No. 2021 CA 0016 4
stated that Johnson had told him where he could buy some cocain e 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 fo rth above Appellant was advised as to the nature of the charge against hi m 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. a t 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 1⁄2) 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 cou rt denied Appellant’s motion to withdraw. {¶12} Appellant now appeals, raising the following assignments of err or: ASSIGNMENTS OF ERROR {¶13} “I. STEPHEN BRAZO DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHT S UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTE EN, 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 PR OCESS 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 FELONIE S VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE O F OHIO. {¶16} “IV. THE TRIAL COURT SENTENCE D 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 STAT ES CONSTITUTION AND SECTION 10, A RTICLE 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 fel ony plea hearing to address the defendant personally, to convey certain informat ion to the defendant, and prohibits acceptance of a guilty plea or no contest without per forming 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 guilt y 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 b y remote contemporaneous video in conformity with Crim.R. 43(A) and doin g all of the following:Licking County, Case No. 2021 CA 0016 6 (a) Determining that the defendant is making the plea voluntar ily, with understanding of the nature of the charges and of the maxi mum 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 defend ant 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 sent ence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the right s to jury trial, to confront witnesses against him or her, to have compulsory pr ocess for obtaining witnesses in the defendant's favor, and to require th e state to prove the defendant's guilt beyond a reasonable doubt at a tria l 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 w ith 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 nonconst itutional 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 noncons titutional right, reviewing courts must determine whether the trial court partiallyLicking 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 tri al judge partially complied, e.g., by mentioning mandatory postrelease c ontrol without explaining it, the plea may be vacated only if the defe ndant 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 prejudic e.’ ” 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 gui lt. {¶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 a dmission that he had committed the acts charged in the Indictment. (T. at 7). The tr ial court reviewed with Appellant the rights that he was giving up by pleading guilty t o the Indictment, including the right to a trial, the right to confront and cross-examine w itnesses, the right to present his own evidence, issue subpoenas to compel witnesses and to te stify 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 reason able 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 fac t, the trial court askedLicking 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). A ppellant was advised of the facts of the case, the nature of the charge against him, and th e maximum penalty he could face if he pled to the charge. (T. at 6-10, 14-16). Appellant s tated 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 ment ion of innocence or claims that the drugs did not belong to him were only made after the t rial court imposed its sentence. (T. at 29-30). Appellant cannot rely on post-plea sta tements 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, 2 006–Ohio–3144, ¶ 17–18 (citin g cases). {¶25} Based on the foregoing exchange, we find Appellant knowingly, v oluntarily, 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 c ourt 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 man ifest injustice the court after sentence may set aside the judgment of conviction and per mit 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 pr oceedings 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 injust ice 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 in justice standard, a post-Licking County, Case No. 2021 CA 0016 10
sentence withdrawal motion is allowable only in extraordinary c ases. State v. Aleshire , 5th Dist. Licking No. 09-CA-132, 2010-Ohio-2566, 2010 WL 229791 7, ¶ 60, citing State v. Smith , 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). The accused h as 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 syll abus. {¶32} A criminal defendant's choice to enter a plea of guilty is a se rious 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, intelligent ly, 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 fo llow 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 defe ndant that he has certain constitutional rights and to determine whether he understands t hat 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 right s to jury trial, to confront witnesses against him or her, to have compulsory pr ocess for obtaining witnesses in the defendant's favor, and to require th e state to prove the defendant's guilt beyond a reasonable doubt at a tria l at which the defendant cannot be compelled to testify against himself or her self. {¶34} Id

.Licking County, Case No. 2021 CA 0016 11 {¶35} Crim.R. 11(C)(2)(c) requires the court to communicate this info rmation so that the defendant can make an intelligent and voluntary decisi on 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 t rial 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 constit utional rights would invalidate a guilty plea under a presumption that it was entered involuntarily and unknowingly, failure to comply with non-const itutional 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 otherwis e been made.’ Id . Under the substantial-compliance standard, we review the tota lity of circumstances surrounding [the defendant's] plea and determi ne 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 def endant, his lawyer, andLicking 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 collate ral 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 ar e 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 fi nd that Appellant’s plea was knowingly, intelligently and voluntarily m ade. A change of heart or mistaken belief about the plea is not a reasonable basis requir ing 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 Ap pellant’s motion to withdraw his guilty plea made after imposition of sen tence. {¶42} Appellant's second assignment of error is overruled. III., V. {¶43} We address Appellant’s third and fifth assignments of error tog ether. In his third assignment of error, Appellant argues the indefinite sen tencing provisions contained in the Reagan Tokes Act, R.C. §2967.271, are unconstitutional a s they violate the separation of powers and due process provisions of the United S tates and OhioLicking County, Case No. 2021 CA 0016 13 constitutions. In his fifth assignment of error, Appellant argu es his counsel rendered ineffective assistance by failing to object to his indefinite s entence. {¶44} R.C. §2967.271 provides in relevant part: (B) When an offender is sentenced to a non-life felony indefin ite 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 relea se date, whichever is earlier. (C) The presumption establishe d under division (B) of this sec tion is a rebuttable presumption that the department of rehabilitation and correction may rebut as provided in this division. Unless the d epartment rebuts the presumption, the offender shall be released from ser vice of the sentence on the expiration of the offender's minimum prison ter m or on the offender's presumptive earned early release date, whichever is earlier. The department may rebut the presumption only if the department det ermines, 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 committe d institutional rule infractions that involved compromising the s ecurity of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or th e threat of physical harm to the staff of a state correctional institution or its inmates, orLicking County, Case No. 2021 CA 0016 14
committed a violation of law that was not prosecuted, and the i nfractions or violations demonstrate that the offender has not been rehabilit ated. (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 thre at 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 pre ceding 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 hi gher security level. (D)(1) If the department of rehabilitation and correction, pur suant to division (C) of this section, rebuts the presumption establishe d under division (B) of this section, the department may maintain the o ffender's incarceration in a state correctional institution under the sen tence after the expiration of the offender's minimum prison term or, for offend ers who have a presumptive earned early release date, after the offender's p resumptive earned early release date. The department may maintain the offe nder's incarceration under this division for an additional period of i ncarceration determined by the department. The additional period of incarcer ation shall be a reasonable period determined by the department, shall be s pecified by the department, and shall not exceed the offender's maximum pri son term.Licking County, Case No. 2021 CA 0016 15 (2) If the department maintains an offender's incarceration fo r an additional period under division (D)(1) of this section, there shall be a presumption that the offender shall be released on the expirati on of the offender's minimum prison term plus the additional period of in carceration specified by the department as provided under that division or, for offenders who have a presumptive earned early release date, on the expira tion of the additional period of incarceration to be served after the offen der's presumptive earned early release date that is specified by the department as provided under that division. The presumption is a rebuttabl e presumption that the department may rebut, but only if it condu cts a hearing and makes the determinations specified in division (C) of this section, and if the department rebuts the presumption, it may maintain the o ffender's incarceration in a state correctional institution for an additi onal period determined as specified in division (D)(1) of this section. Unl ess 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 inc arceration to be served after the offender's presumptive earned early release da te 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'sLicking County, Case No. 2021 CA 0016 16
maintenance of an offender's incarceration for an additional pe riod 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 divi sion (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 o ffender 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 administr atively extend his prison term beyond his presumptive minimum prison term violate the Uni ted States and Ohio Constitutions. However, Appellant has not yet been subject to t he application of these provisions, as he has not yet served his minimum term, and ther efore 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 r eview in State ex rel. Elyria Foundry Co. v. Indus. Comm. , 82 Ohio St.3d 88, 1998-Ohio366, 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 preven t the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies * * *.” Abbott Laboratories v. GardnerLicking 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 conclu sion 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 o n 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. 296 7.28, could extend his sentence by up to an additional five years for violation of pos t-release control, the statute was unconstitutional. The Eighth District Court of Appeals conc luded because McCann was not currently the subject of such action by the Parole Boar d, 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 th ree (3) year minimum sentence and potentially continue his incarceration to a term n ot exceeding four and onehalf (4 1⁄2)years, Appellant has not yet been subject to such act ion 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 ar e 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 pro vide him with all of the information required pursuant to R.C. §2929.19(B)(2)(c). We agr ee. {¶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 porti ons 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 pursuan t 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 Revis ed Code.Licking County, Case No. 2021 CA 0016 19 (2) Subject to division (B)(3) of this section, if the sentenc ing 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) whi ch 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 r eleased from service of the sentence on the expiration of the minimum p rison term imposed as part of the sentence or on the offender's presumptiv e earned early release date, as defined in section 2967.271 of the Revis ed Code, whichever is earlier; (ii) That the department of reha bilitation 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 an d rebutsLicking County, Case No. 2021 CA 0016 20 the presumption, the department may maintain the offender's inc arceration after the expiration of that minimum term or after that presump tive earned early release date for the length of time the department determ ines 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 desc ribed in divisions (B)(2)(c)(i) and (ii) of this section more than one t ime, subject to the limitation specified in section 2967.271 of the Revised Cod e; (v) That if the offender has not been released prior to the ex piration of the offender's maximum prison term imposed as part of the se ntence, the offender must be released upon the expiration of that term. (d) Notify the offender that the offender will be supervised u nder section 2967.28 of the Revised Code after the offender leaves p rison if the offender is being sentenced, other than to a sentence of life i mprisonment, 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 viole nce and is not a felony sex offense. This division applies with respect to all p rison terms imposed for an offense of a type described in this division, in cluding a nonlife felony indefinite prison term and including a term imposed for any offense of a type described in this division that is a risk red uction sentence, as defined in section 2967.28 of the Revised Code. If a court i mposes a sentence including a prison term of a type described in divisio n (B)(2)(d) ofLicking 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 th e offender will be supervised under section 2967.28 of the Revised Code after t he offender leaves prison or to include in the judgment of conviction enter ed on the journal a statement to that effect does not negate, limit, or o therwise affect the mandatory period of supervision that is required for the of fender under division (B) of section 2967.28 of the Revised Code. Section 29 29.191 of the Revised Code applies if, prior to July 11, 2006, a court im posed a sentence including a prison term of a type described in divisio n (B)(2)(d) of this section and failed to notify the offender pursuant to divi sion (B)(2)(d) of this section regarding post-release control or to include in th e judgment of conviction entered on the journal or in the sentence a statemen t regarding post-release control. (e) Notify the offender that the offender may be supervised un der section 2967.28 of the Revised Code after the offender leaves p rison 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 ty pe 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 Revise d 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 desc ribed in division (B)(2)(e) of this section and failed to notify the off ender pursuant toLicking County, Case No. 2021 CA 0016 22 division (B)(2)(e) of this section regarding post-release contr ol 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 im posed following the offender's release from prison, as described in d ivision (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 pri son term, as part of the sentence, of up to one-half of the definite pris on term originally imposed upon the offender as the offender's stated prison term or up to onehalf of the minimum prison term originally imposed upon the off ender 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 descr ibed in division (B)(2)(f) of this section for a violation of that supe rvision 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 c onviction entered on the journal a statement to that effect does not nega te, 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 pri or to the offender's release of the board's authority to so impose a pris on 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 regardi ng the possibility of the parole board imposing a prison term for a violation of s upervision 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 senten cing date but excluding conveyance time, that the offender has been confined for any reason arising out of the offense for which the offender is bei ng sentenced and by which the department of rehabilitation and correction mu st reduce the definite prison term imposed on the offender as the offende r's stated prison term or, if the offense is an offense for which a non-li fe 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 ter ms imposed on the offender as part of that non-life felony indefin ite prison term, under section 2967.191 of the Revised Code. The court's calcula tion shall not include the number of days, if any, that the offender serve d in the custody of the department of rehabilitation and correction aris ing out of any prior offense for which the prisoner was convicted and sentence d. {¶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 f ulfill 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 t erm 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 ma tter is remanded to the trial court for the limited purpose of resenten cing in accordance with R.C. §2929.19(B)(2)(c). {¶58} Based on the foregoing, the decision of the Court of Common Ple as 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 1027Licking 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, Se cond and Fourth Assignments of Error. {¶60} I respectfully dissent from the majority’s opinion concerning r ipeness and Appellant’s Third and Fifth Assignments of Error for the reason s set forth in my dissenting opinion in State v. Wolfe, 5 th Dist., Licking No. 2020 CA 00021, 2020-Ohio-5501. {¶61} I further note that the Ohio Supreme Court has accepted a certi fied conflict on the issue of whether the constitutionally of the Reagan Toke s Act is ripe for review on direct appeal or only after the defendant has served the min imum 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 con flict 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. Barne s, 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 Propos ition 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.