[Cite as State v. Mills , 2021-Ohio-1180.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : CODY MILLS : Case No. 2020 CA 10 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 19CR0118

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 6, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JASON W. GIVEN JAMES ANZELMO 318 Chestnut Street 446 Howland Drive Coshocton, OH 43812 Gahanna, OH 43230Coshocton County, Case No. 2020 CA 10 2

Wise, Earle, J. {¶ 1} Defendant-Appellant Cody Mills appeals the February 25, 2 020 judgment of conviction and sentence of the Coshocton County Court of Com mon Pleas. PlaintiffAppellee is the state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} A recitation of the underlying facts in this matter is un necessary for our resolution of this appeal. {¶ 3} On July 26, 2019, the Coshocton County Grand Jury returne d a four-count indictment charging Mills with aggravated trafficking, a felony of the first degree, two counts of trafficking in heroin, a felonies of the first degree , and having weapons under disability, a felony of the third degree. {¶ 4} On February 19, 2020, following negotiations with the sta te, Mills elected to enter pleas of guilty to aggravated trafficking and trafficking in heroin. The state dismissed the charges of having weapons under disability and one count of trafficking in heroin. The trial court sentenced Mills to a mandatory indefinite prison te rm of 10 to 15 years. {¶ 5} Mills filed an appeal and the matter is now before this c ourt for consideration. He raises three assignments of error as follow: I {¶ 6} "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 O F OHIO."Coshocton County, Case No. 2020 CA 10 3

II {¶ 7} "CODY MILLS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSITUTION AND SECTION 10, ARTIC LE I OF THE OHIO CONSTITUTION. " III {¶ 8} "CODY MILLS DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTER HIS GUILTY PLEAS, IN VIOLATION OF HIS DUE PRO CESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATE CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION." I, II {¶ 9} We address Mills' first and second assignments of error t ogether. In his first assignment of error, Mills argues the indefinite sentencing pro visions contained in R.C. 2967.271 are unconstitutional as they violate the separation of powers and due process provisions of the United States and Ohio constitutions. In his second assignment of error, Mills argues his counsel rendered ineffective assistance by fai ling to object to his indefinite sentence. {¶ 10} R.C. 2967.271 provides in relevant part:

(B) When an offender is sentenced to a non-life felony indefini te prison term, there shall be a presumption that the person shall be released from service of the sentence on the expiration of theCoshocton County, Case No. 2020 CA 10 4
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 sect ion is a rebuttable presumption that t he department of rehabilitation and correction may rebut as provided in this division. Unless the department rebuts the presumption, the offender shall be releas ed from service of the sentence on the expiration of the offender' s minimum prison term or on the offender's presumptive earned ear ly release date, whichever is earlier. The department may rebut th e presumption only if the department determines, at a hearing, th at one or more of the following applies: (1) Regardless of the security level in which the offender is c lassified 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 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 the threat of physical harm to the staff of a state correctiona l institution or its inmates, or committed a violation of law tha t 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)Coshocton County, Case No. 2020 CA 10 5
of this section, demonstrate that the offender continues to pos e a threat to society. (2) Regardless of the security level in which the offender is c lassified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within t he year preceding the date of the hearing. (3) At the time of the hearing, the offender is classified by t he 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, purs uant to division (C) of this section, rebuts the presumption establishe d under division (B) of this section, the department may maintain the offender's incarceration in a state correctional institution un der the sentence after the expiration of the offender's minimum prison term or, for offenders who have a presumptive earned early release d ate, 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 b y the department. The additional period of incarceration shall be a reasonable period determined by the department, shall be specif ied by the department, and shall not exceed the offender's maximum prison term.Coshocton County, Case No. 2020 CA 10 6 (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 expira tion of the offender's minimum prison term plus the additional perio d of incarceration specified by the department as provided under tha t 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 ear ned early release date that is specified by the department as provi ded under that division. The presumption is a rebuttable presumptio n that the department may rebut, but only if it conducts a hearing and makes the determinations specified in division (C) of this sect ion, and if the department rebuts the presumption, it may maintain the offender's incarceration in a state correctional institution fo r 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 sen tence on the expiration of the offender's minimum prison term plus th e 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 serv ed after the offender's presumptive earned early release date as specifi ed by the department.Coshocton County, Case No. 2020 CA 10 7 The provisions of this division regarding the establishment of a rebuttable presumption, the department's rebuttal of the presumption, and the department's 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 off ender'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 offender shall be r eleased upon the expiration of that maximum term.

{¶ 11} Mills argues these portions of R.C 2967.271 permitting t he Department of Rehabilitation and Corrections ( DRC) to administratively extend his prison term beyond his presumptive minimum prison term violate the United States a nd Ohio Constitutions. However, Mills has not yet been su bject to the application of t hese provisions, as he has not yet served his minimum term, and therefore has not been den ied release at the expiration of his minimum term of incarceration. {¶ 12} We addressed the concept of ripeness for review in regar d 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-Ohio-366, 694 N.E.2d 459:Coshocton County, Case No. 2020 CA 10 8 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 prem ature adjudication, from entangling themselves in abstract disagreeme nts over administrative policies * * *.” Abbott Laboratories v. Gardner (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 conclus ion 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 o f ripeness is a limitation on jurisdiction that is nevertheless basically optimistic as regards the prospects of a day in court: the time for judici al relief is simply not yet arrived, even though the alleged action of th e defendant foretells legal inj ury 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. 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 unconsti tutional. The Eighth District Court of Appeals concluded because McCannCoshocton County, Case No. 2020 CA 10 9 was not currently the subject of such action by the Parole Boar d, the issue was not yet ripe for review. Id . at ¶6. Likewise, in the instant case, while R.C. 2967.271 allows the D RC to rebut the presumption Appellant will be released after serving his nine year minimum sentence and potentially continue his incarceration to a term not exceeding thirteen 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.

{¶ 13} Downard , at ¶8-11. See also, State v. Buckner , 5th Dist. Muskingum Nos. CT2020-0023 & CT2020-0024, 2020-Ohio-7017; 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.

{¶ 14} Mills does not dispute he had not yet been subject to th e provisions of R.C. 2967.271. We therefore find here as we did in Downard , Mills' constitutional challenges and his trial counsel's failure to raise the same are not yet r ipe for review. {¶ 15} Mills' first and second a ssignments of error are overrul ed. III {¶ 16} In his final assignment of error, Mills argues his pleas was not knowingly, intelligently and voluntarily made because the trial court fail ed to inform him that he had a right to make the state prove his guilt beyond a reasonable d oubt. We disagree.Coshocton County, Case No. 2020 CA 10 10 {¶ 17} An examination of the plea hearing transcript reveals th e trial court did not advise Mills of the right to have the state prove his guilt bey ond a reasonable doubt. However, a review of the record indicates on January 25, 2021, the court reporter present at Mills' sentencing hearing filed an affidavit indicating that following a review of her notes from that hearing she realized she had mistakenly deleted the w ords "beyond a reasonable doubt" from the text. The court reporter made the co rrection and reprinted page 11 of the sentencing transcript to include the trial court 's notification to Mills that he had the right "to require the state to prove your guilt beyond a reasonable doubt at a trial at which you cannot be compelled to testify against yourself." Transcript of Plea at 11. We therefore reject Mills' argument. {¶ 18} The final assignment of error is overruled. {¶ 19} The judgment of the Coshocton County Court of Common Ple as is affirmed.

By Wise, Earle, J., Delaney, J. concur. Gwin, P.J. concurs in part, dissents in part.

EEW/rwCoshocton County, Case No. 2020 CA 10 11
Gwin, P.J. concurs in part; dissents in part {¶20} I concur in the majority’s disposition of Appellant’s Third Ass ignment of Error. {¶21} I respectfully dissent from the majority’s opinion concerning r ipeness and Appellant’s First and Second Assignments of Error for the reaso ns set forth in my dissenting opinion in State v. Wolfe, 5 th Dist., Licking No. 2020 CA 00021, 2020-Ohio5501. {¶22} 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 minimu m 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); 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 ).