[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 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 crystallike 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 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 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-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 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 onehalf (4 1⁄2)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 nonlife 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 onehalf 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.