[Cite as State v. Jackson , 2021-Ohio-778.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

VAN MAURICE JACKSON, Appellant. :

:

:

:

:

: CASE NO. CA2020-07-077

O P I N I O N

3/15/2021

CRIMINAL APPEAL FROM BUTLER C OUNTY COURT OF COMMON PLEAS Case No. CR2020-01-0023

Michael T. Gmoser, Butler County Prosecuting Attorney, Stephen M. Wagner, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45 011, for appellee Michele Temmel, 6 S. Second Street, #305, Hamilton, Ohio 45011, for appellant

HENDRICKSON, J. {¶ 1} Appellant, Van Maurice Jackson, appeals from the sentence he re ceived in the Butler County Court of Common Pleas after pleading guilty t o felonious assault with a firearm. For the reasons set forth below, we affirm appellant' s sentence. {¶ 2} On January 15, 2020, appellant was indicted on one count of att empted murder in violation of R.C. 2923.02 and 2903.02(A), a felony of the first degree, one countButler CA2020-07-077

- 2 - of felonious assault in violation of R.C. 2903.11(A)(1), a felo ny of the second degree, and one count of felonious assault in violation of R.C. 2903.11(A)( 2), also a felony of the second degree. A firearm specification pursuant to R.C. 2941.145 acco mpanied each count. The charges arose out of allegations that on November 1, 2019, near the area of South Second Street and Chestnut Street in Hamilton, Butler County, Ohio, ap pellant shot Jeremy Watson, causing Watson serious physical harm. {¶ 3} On May 21, 2020, following plea negotiations, appellant pled gu ilty to felonious assault in violation of R.C. 2903.11(A)(1) and the ac companying firearm specification in exchange for the remaining charges being dismi ssed. The trial court conducted a plea colloquy as required by Crim.R. 11(C)(2). Dur ing the colloquy, the trial court advised appellant of the applicability of Senate Bill 201 , commonly known as the Reagan Tokes Law, and informed appellant he would be subject to an indefinite sentence. The court explained that a possible maximum sentence of eight t o twelve years could be imposed on the felonious assault charge and with the mandatory three-year prison sentence for the firearm specification, appellant faced an aggr egate maximum sentence of eleven to fifteen years. Appellant indicated he understood the penalties he faced and entered a guilty plea to felonious assault and the accompanying firearm specification. The trial court accepted appellant's guilty plea after finding the plea was knowingly, intelligently, and voluntarily entered. Thereafter, the court ordered a prese ntence-investigative report and set the matter for sentencing. {¶ 4} On July 2, 2020, the trial court sentenced appellant to an inde finite prison term of six to nine years in prison for felonious assault. This sen tence was run consecutive to a mandatory three-year prison term on the firearm specification. In imposing the indefinite sentence, the trial court advised appellant of the rebuttable p resumption under the Reagan

Tokes Law that he would be released from service of his sentenc e on the expiration of theButler CA2020-07-077

- 3 - imposed minimum prison term. However, the Ohio Department of R ehabilitation and Correction ("ODRC") could rebut this presumption if, at a heari ng held pursuant to R.C. 2967.271, it made specific determinations regarding appellant's conduct while confined, his rehabilitation, threat to society, restrictive housing, if any, while confined, and his security

classification. If ODRC rebutted the presumption, then it coul d maintain appellant's incarceration after the expiration of the minimum prison term u p to the expiration date of his maximum prison term. {¶ 5} After providing this explanation and informing appellant he was also subject to a mandatory three-year postrelease control term upon his rel ease from prison, the court asked the parties if there were any questions regarding the imp osed sentence. At this time, counsel for appellant stated, "Your Honor, just for the record, I don't know if it's necessary, but we'll be objecting and filing an appeal under Reagan [Tokes ] constitutionality issue." To this, the trial court responded, "Right. Right. That will be noted for the record. Thank you." {¶ 6} Appellant now appeals, raising the following as his sole assign ment of error: {¶ 7} THE TRIAL COURT IMPROPERLY PRESUMED THAT OHIO REVISED

CODE 2967.271 IS CONSTITUTIONAL. {¶ 8} Appellant argues that the Reagan Tokes Law, specifically R.C. 2 967.271, is unconstitutional as it "allows prison officials and not the sen tencing court to justify the imposition of additional time of incarceration without due proc ess of law," thereby violating his due process rights as guaranteed by the Fifth and Fourteent h Amendments of the United States Constitution and Article I, Section 16 of the Ohio Const itution. Appellant maintains his due process rights are violated by ODRC, rather than then s entencing court, determining whether a rule infraction warrants a longer stay in prison. {¶ 9} The state contends that appellant's arguments are not properly before this court because he failed to raise a challenge to the constitutio nality of R.C. 2967.271 beforeButler CA2020-07-077

- 4 - the trial court. The state argues appellant's "objection" at t he close of sentencing did not properly preserve the issue for appeal. Alternatively, even if the issue were preserved, the state contends appellant's constitutional arguments fail as an identical issue was considered and rejected by this court in State v. Guyton , 12th Dist. Butler CA2019-12-203,

2020-Ohio-3837. {¶ 10} We find Guyton to be instructive. First, as to the issue of whether appellan t forfeited his challenge to the constitutionality of R.C. 2967.2 71, we find that he properly preserved the issue for appeal. Appellant's objection to the s entence and challenge to the constitutionality of the statute is similar to the objection an d challenge raised in Guyton

. There, after Guyton's sentence was announced, Guyton's trial co unsel raised a general objection to the constitutionality of the Reagan Tokes Law, sta ting, "[F]or appellate purposes, a[n] objection with regard to the * * * Reagan Tokes Act for any potential Constitutional issues there may be here and in the future. Obv iously, that matter has not been litigated, but to just notice that it's preserved for Mr. Guyton * * *." Id. at ¶ 5. On appeal, Guyton raised a constitutional due process challenge to R.C. 2967.271, and this court addressed the merits of his assignment of error. See id. at ¶ 6-18. {¶ 11} Conversely, in State v. Alexander , 12th Dist. Butler No. CA2019-12-204, 2020-Ohio-3838, ¶ 8, this court found a defendant waived his ri ght to challenge the constitutionality of R.C. 2967.271 on appeal as he failed to ra ise the issue in the trial court. There, the defendant did not raise any objection or constitutio nal challenge to the Reagan

Tokes Law either before or after the trial court issued its sen tencing decision. Id. at ¶ 5. {¶ 12} As the case before us is similar to Guyton , in that appellant raised an objection and constitutional challenge to R.C. 2967.271 at the sentencing hearing, we find it appropriate to address the merits of his arguments. As this co urt explained when we addressed an identical constitutional due process challenge to R.C. 2967.271 in Guyton ,Butler CA2020-07-077

- 5 - "[i]t is well established that 'we are to presume that the stat e statute is constitutional and the burden is on the person challenging the statute to prove ot herwise beyond a reasonable

doubt.'" Guyton , 2020-Ohio-3837 at ¶ 8, quoting State v. Lowe , 112 Ohio St.3d 507, 2007- Ohio-606, ¶ 17. {¶ 13} Here, like in Guyton , appellant has failed to set forth any argument demonstrating how the language set forth in R.C. 2967.271 viola tes his constitutional right to due process mandating he be provided with notice and the opp ortunity to be heard. See

id. at ¶ 11, citing State v. Ritchie , 12th Dist. Warren No. CA2017-11-155, 2018-Ohio-4256, ¶ 69 ("[a]t a minimum, due process requires notice and the oppo rtunity to be heard"). Appellant acknowledges that "under the current statute, an inma te is afforded notice and a hearing" under R.C. 2967.271(C) where ODRC may rebut the presum ption that an inmate will be released from prison upon the expiration of his minimum prison term or presumed early release date, whichever is earlier. This is confirmed by R.C. 2967.271(E), which states that ODRC "shall provide notices of hearings to be condu cted under division (C) or (D) of this section in the same manner, and to the same persons , as specified in section 2967.12 and Chapter 2930 of the Revised Code with respect to he arings to be conducted regarding possible release on parole of an inmate." {¶ 14} Appellant contends it is "illogical" to exclude the sentencing court from participating in the "rebuttable presumption of serving a minim um sentence" set forth in R.C. 2967.271(C) when another division of the statute, section (F), requires that the sentencing

court hold a hearing in circumstances where the director of ODRC reco mmends the sentencing court grant a reduction in the minimum prison term i mposed on a specified offender "due to the offender's exceptional conduct while incar cerated or the offender's adjustment to incarceration." Contrary to appellant's argument s, we find nothing illogical about the differing requirements set forth by the General Assem bly in R.C. 2967.271(C) andButler CA2020-07-077

- 6 - (F). Guyton at ¶ 12. As we previously explained, divisions (C) and (F) of R.C. 2967.271 "address radically different factual scenarios; one dealing wit h circumstances where the inmate has already completed his or her minimum prison term imp osed by the trial court,

whereas the other deals with instances where the inmate has not ." Id. The General Assembly is entitled to set forth different requirements under each scenario. Id. {¶ 15} Furthermore, as we discussed in great detail in Guyton , "the [h]earings conducted by the ODRC under R.C. 2967.271(C) are analogous to p arole revocation proceedings, probation revocation proceedings, and postrelease control violation hearings"

at issue in Morrissey v. Brewer , 408 U.S. 471, 92 S.Ct. 2593 (1972); Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756 (1973); and Woods v. Telb , 89 Ohio St.3d 504, 2000-Ohio171. Guyton , 2020-Ohio-3837 at ¶ 17. In none of those situations, where a convicted felon has committed violations while under the control and supervisio n of ODRC, does due process require the sentencing court to conduct the revocation or violation hearings. Similarly, due process does not require the sentencing court to conduct a hearing under R.C. 2967.271(C) to determine whether ODRC has rebutted the pre sumption set forth in R.C. 2967.271(B). Id. The Reagan Tokes Law, specifically R.C. 2967.271, therefore, does not run afoul of an offender's due process rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sec tion 16 of the Ohio Constitution. Appellant's sole assignment of error is overrule d. {¶ 16} Judgment affirmed.

PIPER, P.J., and S. POWELL, J., concur.