[Cite as State v. Doughty , 2021-Ohio-651.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JAMES R. DOUGHTY : Case No. 20-CA-00001 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 19-CR0043

JUDGMENT: Affirmed, Matter Remanded for Nunc Pro Tunc Sentencing Entry

DATE OF JUDGMENT: March 5, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JOSEPH A. FLAUTT ADDISON M. SPRIGGS 111 North High Street 250 East Broad Street P.O. Box 569 Suite 1400 New Lexington, OH 43764-0569 Columbus, OH 43215Perry County, Case No. 20-CA-00001 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant James Robert Doughty appeals the Dece mber 24, 2019 judgment of conviction and sentence of the Perry County Co urt of Common Pleas. Plaintiff-Appellee is the state of Ohio. Facts and Procedural History {¶ 2} On June 25, 2019, the Perry County Grand Jury returned an indictment charging appellant with the following: {¶ 3} Three counts of domestic violence pursuant to R.C. 2919.2 5(A), felonies of the third degree. These counts alleged violations on three diff erent days. {¶ 4} Two counts of felonious assault pursuant to R.C. 2903.11( A)(1), felonies of the second degree. Both counts were alleged to have occurred on the same day. One count alleged appellant caused serious physical harm and one co unt alleged appellant caused or attempted to cause serious physical harm by means of a deadly weapon. {¶ 5} One count of kidnapping pursuant to R.C 2905.01(A)(3), a felony of the first degree. {¶ 6} One count of rape pursuant to 2907.02(A)(2), a felony of the first degree. {¶ 7} Four counts of violating a protection order pursuant to R.C. 2919.27(A)(2), felonies of the third degree. These counts alleged violations o n four different dates. {¶ 8} One count of aggravated menacing pursuant to R.C. 2903.21 (A), a misdemeanor of the first degree. {¶ 9} All charges pertained to appellant's girlfriend G.W.Perry County, Case No. 20-CA-00001 3 {¶ 10} Appellant pled not guilty to the charges and elected to proceed to a jury trial which began on December 11, 2019. The facts relevant to this ma tter follow. {¶ 11} Appellant and G.W. began living together in in 2016. The two lived in a camper situated within feet of appellant's father's residence. In January of 2019, following an incident of domestic violence, G.W. moved out and obtained a protection order against appellant. A week later, she moved back in with appellant. App ellant was aware of the protection order. Transcript of trial (T.) 199, 204, 208. {¶ 12} The relationship between the two remained violent. In Ap ril 2019, the Friday before Easter, appellant argued with G.W. Because appellant's y oung children were present for the weekend, he told G.W. they needed to talk outsi de the camper. Once outside, appellant punched G.W. in the chest causing her to spi n around, fall face down into the gravel drive, and briefly lose consciousness. When G.W . attempted to get up, appellant punched her in the chest a second time and told her h e hoped she died of a heart attack. He then began choking G.W. and banging her head o n the ground. Eventually it began to rain. The two went back into the camper and appellant acted as if nothing happened. T. 212-216. {¶ 13} G.W. went to the bedroom and appellant stayed in the liv ing room and kitchen area with his children. G.W. was in pain, but did not l eave to seek help that day or in the following days as appellant told her if she did leave , he would shoot her with his shotgun. T. 218. {¶ 14} Later that night, appellant came into the bedroom and or dered G.W. onto the floor. He then struck her repeatedly in the abdomen with th e butt of the shotgun.Perry County, Case No. 20-CA-00001 4 {¶ 15} The following Monday, appellant accused G.W. of cheating on him. In his anger, appellant hit G.W. in the face with the butt of his shot gun. G.W. believed she suffered a concussion as a result as she experienced dizziness, nausea, and blurred vision. T. 222-223. {¶ 16} Two or three days later, G.W. described appellant as "on one of his rages." While she was standing in front of the television, appellant gr abbed a trash bag and put it over G.W.'s head, attempting to suffocate her. She managed t o get herself free of the bag, but lost her balance and fell down in the process. Appella nt ordered her to get up, remove her pants, and lay down on the floor. G.W. complied. App ellant inserted the muzzle of the shotgun into G.W.'s vagina, pulled it out and the n kicked G.W. in the crotch. T. 224-225. {¶ 17} Also during this period of abuse, appellant stabbed G.W. in the leg with a fork on one occasion and with a knife on another, burned her, a nd hit her legs with the gun. T. 231. {¶ 18} Appellant eventually told G.W. he would let her go if sh e would arrange for him to get together with her 17 year-old daughter. G.W. convinc ed appellant she could make this happen if he took her to her daughter's home. T. 229. {¶ 19} Appellant dropped G.W. off at her daughter's apartment w hich she shared with friends. Those friends testified G.W. was very upset and e motional when she arrived. Appellant had advised G.W. not to be long. When she took too lo ng, he angrily pounded on the door ordering her to come out and threatening the occupa nts if they failed to send G.W's daughter out. This went on for approximately an hour with appellant leaving andPerry County, Case No. 20-CA-00001 5 returning. Eventually one of the occupants called the sheriff's department. Deputy Cody Palmer responded and G.W. was transported to a hospital. T. 151 -152, 156. {¶ 20} The jury viewed photographs of G.W.'s injuries which inc luded a black eye, bruising to her face, head, chest, back and legs, and two punct ure wounds, one which appeared to be caused by a fork. The attending doctor also test ified G.W. sustained multiple rib fractures. {¶ 21} After hearing the evidence and deliberating, the jury ac quitted appellant of rape and kidnapping, but convicted him of the remaining charges

. {¶ 22} A sentencing hearing was conducted on December 19, 2019, following a re-sentence investigation. The trial court sentenced appellant as follows: {¶ 23} For each count of violating a protection order, felonies of the third degree, 30 months to be served concurrently. {¶ 24} For violating a protection order and aggravated menacing , misdemeanors of the first degree, 6 months local incarceration on each count , concurrent with each other and with the sentences for the third-degree felony violating a protection order. {¶ 25} For two counts of second degree felonious assault, 7 yea rs for each count, consecutive to each other, but c oncurrent to the previously imp osed sentences. {¶ 26} For each count of third degree felony domestic violence the court imposed 24 months to run concurrently with each other and with the prev iously imposed sentences for an aggregate minimum prison term of 14 years, and pursuant to R.C. 2967.271, could face incarceration up to 17 and one half years. Transcript of S entencing (T.S.) 7-10. {¶ 27} The judgment entry, however reads:Perry County, Case No. 20-CA-00001 6
It is further ordered that the periods of imprisonment for the two (2) counts of felonious assault be served consecutive with each oth er and all other terms of imprisonment . The defendant, is therefore sentenced to a term of a minimum of fourteen (14) years and a maximum of seventeen and a half (17.5) years. {¶ 28} Sentencing judgment entry, December 24, 2019, emphasis a dded. {¶ 29} Appellant filed an appeal. He raises two assignments of error for our consideration as follow: I {¶ 30} "THE TRIAL COURT FAILED TO MERGE ALLIED OFFENSES OF SIMILAR IMPORT AND IMPOSED A LONGER PRISON TERM THAN AUTHORIZED BY LAW." {¶ 31} In his first assignment of error, appellant argues the t rial court erred in failing to merge his convictions for domestic violence and felonious as sault as allied offense of similar import. We disagree. {¶ 32} R.C. 2941.25 governs multi ple counts and states the foll owing:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the i ndictment or information may contain counts for all such offenses, but th e defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offen ses of dissimilar import, or where his conduct results in two or mo rePerry County, Case No. 20-CA-00001 7 offenses of the same or similar kind committed separately or wi th a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 33} In State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, syllabus, the Supreme Court of Ohio held the following:

1. In determining whether offenses are allied offenses of simil ar import within the meaning of R.C. 2941.25, courts must evaluate three separate factors—the conduct, the animus, and the import. 2. Two or more offenses of dissimilar import exist within the m eaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable. 3. Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may be convicted of all the offenses if any o ne of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus.

{¶ 34} The Ruff court explained at ¶ 26:Perry County, Case No. 20-CA-00001 8

At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant's condu ct. The evidence at trial or during a plea or sentencing hearing wi ll reveal whether the offenses have similar import. When a defendant's conduct victimizes more than one person, the harm for each pers on is separate and distinct, and therefore, the defendant can be convicted of multiple counts. Also, a defendant's conduct that constitutes two or more offenses against a single victim can su pport multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense. We therefore hold that two or more offenses of dissimilar import e xist within the meaning of R.C. 2941.25(B) when the defendant's cond uct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.

{¶ 35} First, appellant argues his two convictions for domestic violence and three felonious assault should have merged for sentencing. We note, h owever, appellant was convicted of three counts of dom estic violence and two counts o f felonious assault. {¶ 36} Next, appellant did not seek merger at the sentencing he aring. We therefore review his argument for plain error. In State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio2459, 38 N.E3d, 860, ¶ 21–25, citing State v. Quarterman , 140 Ohio St.3d 464, 2014- Ohio-4034, 19 N.E.3d 900, ¶ 15–16. "Crim.R. 52(B) affords appel late courts discretion toPerry County, Case No. 20-CA-00001 9 correct '[p]lain errors or defects affecting substantial rights ' notwithstanding the accused's failure to meet his obligation to bring those errors to the att ention of the trial court." Rogers at ¶ 22. The defendant "bears the burden of proof to demonstrat e plain error on the record." Id ., citing Quarterman at ¶ 16. To demonstrate plain error, the defendant must show " 'an error, i.e., a deviati on from a legal rule' that con stitutes 'an "obvious" defect in the trial proceedings' " and that the error affected a substant ial right, i.e., the defendant must demonstrate a "reasonable probability" that the error resu lted in prejudice, affecting the outcome of the trial. Rogers at ¶ 22, quoting State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). "We recognize plain error 'with the utm ost caution, under exceptional circumstances and only to prevent a manifest miscar riage of justice.' " Lyndhurst v. Smith , 8th Dist. Cuyahoga No. 101019, 2015-Ohio-2512, 2015 WL 389913 0, ¶ 32, quoting State v. Landrum , 53 Ohio St.3d 107, 110, 559 N.E.2d 710 (1990). {¶ 37} The indictment in this matter charged appellant with thr ee counts of domestic violence occurring on or about three different days; A pril 18, 2019, April 20, 2019, and April 24, 2019. Both counts of felonious assault were alleged to have taken place on or about April 20, 2019. The first count alleged appel lant caused serious physical harm and the other alleged he caused or attempted to cause phys ical harm to another by means of a deadly weapon. Indictment, January 25, 2019. {¶ 38} G.W. testified to eight incidents occurring around Easte r, 2019. On the Friday before Easter, appellant badgered G.W., accusing her of cheating on him, and slapped her in the face. T. 212-213. {¶ 39} On Saturday morning, appellant told G.W. they needed to go outside to talk away from his young children who were visiting for the weekend. Once outside, appellantPerry County, Case No. 20-CA-00001 10 punched G.W. in the chest, sending her face down onto the groun d and causing her to lose consciousness for a few moments. When she came to, appella nt was standing over her screaming he hoped she died of a heart attack. When she tri ed to get up, appellant punched her in the chest again, then came at her with a tire ir on. G.W. laid on the ground and covered her head. Appellant then choked her and banged her head into the ground. Appellant then went back into the camper, came back out with a knife, cornered G.W. and threatened to slice her throat. It started raining and they returned to the camper. Appellant acted as if nothing had happened. G.W. went to the b edroom and appellant stayed in the kitchen area with his children. T. 214-217. {¶ 40} Later that evening, appellant came into the bedroom with his shotgun and ordered G.W. onto the floor. G.W complied. Appellant then proce eded to strike G.W. in the abdomen repeatedly with the butt end of the shotgun. Appell ant then left the bedroom and came back with a knife and bleach. He threatened to cut her fingers off and to blind her with the bleach. When appellant noticed G.W.'s thumb had be en cut and she was bleeding he stopped and told her to clean up the mess. T. 219-2 20. {¶ 41} G.W. testified appellant did not assault her or terroriz e her on Easter Sunday. T. 221. {¶ 42} The following day, however, appellant again accused G.W. of cheating on him, hit her in the head with the butt end of the shotgun and k nocking her over and causing her face to immediately swell. G.W. believed she suffered a con cussion from this incident as she felt nauseous and experienced blurred vision. T. 221-222

. {¶ 43} Two or three days later, G.W. testified appellant "in on e of his rages" charged her, pulled a trash bag over her head and attempted to suffocate her. As shePerry County, Case No. 20-CA-00001 11 clawed her way out of the trash bag, she lost her balance and f ell. Appellant ordered her to get up remove her pants and then lie down. G.W. complied. Ap pellant then asked her if he should burn her vagina or superglue it shut. He decided i nstead to insert the muzzle of the shotgun into her vagina, remove it, and then kick her in the crotch. He then once again acted as if nothing had happened. T. 224-225. {¶ 44} G.W. further testified in the days following, on one occ asion appellant hit her on top of her head so hard she nearly blacked out, on anoth er he stabbed her in the leg with a fork, and in yet another, he threw a knife at her, l odging it into her leg. {¶ 45} Based on this testimony, we find no plain error. Appella nt's conduct constitutes separate offenses against a single victim and the r esulting harm from each offense is separate and identifiable from the harm of the other offenses. Appellant assaulted G.W. on at least five separate days, some days on mor e than one occasion, He used deadly weapons -- a gun and a knife -- on at least thre e separate occasions, and caused separate and identifiable harm on each occasion. We ther efore find the trial court did not err in failing to merge any of appellant's convictions for felonious assault or domestic violence. {¶ 46} As noted in our statement of facts, however, the judgmen t entry in this matter does not reflect the sentence imposed on the record. On the record, the trial court ordered appellant to serve the sentences for two felonious assa ult convictions consecutively. It ordered all other sentences be served concurr ently with one anot her and concurrently with the sentences for felonious assault. The judg ment entry does not reflect the concurrent sentences.Perry County, Case No. 20-CA-00001 12 {¶ 47} Appellant's first assignment of error is overruled, howe ver, we remand the matter for a nunc pro tunc judgment entry to reflect the senten ce imposed on the record. II {¶ 48} "BECAUSE THE REAGAN TOKES ACT VIOLATES THE OHIO AND UNITED STATES CONSTITUTIONS, MR. DOUGHTY'S SENTENCE IS CONTRARY TO LAW. R.C.2953.08(G)(2); SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITES STATES CONSTITUTION; ARTICLES I, II, AND III OF THE UNITED STAT ES CONSTITUTION; ARTICLE I, SECTIONS 5, 10 AND 16 OF THE OHIO CONSTITUTION." {¶ 49} Appellant's final assignment of error challenges the con stitutionality of the Regan Tokes Act which codified hybrid indefinite prison terms f or first and second degree felonies. Appellant challenges the presumptive release feature of the act, R.C. 2967.271, arguing it violates his constitutional rights to trial by jury and due process of law, and further violates the constitutional requirement of separation o f powers and equal protection. {¶ 50} 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 the offender's minimum prison term or on the offender's presumptive earned early release date, whichever is earlier.Perry County, Case No. 20-CA-00001 13 (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) of this section, demonstrate that the offender continues to pos e a threat to society.Perry County, Case No. 20-CA-00001 14 (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. (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 tionPerry County, Case No. 20-CA-00001 15
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. 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'sPerry County, Case No. 20-CA-00001 16 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.

{¶ 51} Appellant argues these portions of R.C 2967.271 permitti ng the Department of Rehabilitation and Corrections (DRC) to administratively ext end his prison term beyond his presumptive minimum prison term violate the United States a nd Ohio Constitutions. However, as the state points out, appellant has not yet been su bject to the application of these provisions, as he has not yet served his minimum term, an d therefore has not been denied release at the expiration of his minimum term of incarce ration. {¶ 52} We addressed the concept of ripeness for review in regar d to the Regan Tokes Act 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: Ripeness "is peculiarly a question of timing." Regional Rail Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 33 5, 357, 42 L.Ed.2d 320, 351. The ripeness doctrine is motivated in partPerry County, Case No. 20-CA-00001 17 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 injur y to the plaintiff. Comment, Moo tness 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 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.Perry County, Case No. 20-CA-00001 18
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.

{¶ 53} 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.

{¶ 54} Appellant does not dispute he had not yet been subject t o 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. {¶ 55} The second assignment of error is overruled.Perry County, Case No. 20-CA-00001 19 {¶ 56} The judgment of conviction and sentence of the Perry Cou nty Court of Common Pleas is affirmed, matter remanded for nunc pro tunc sen tencing judgment entry.

By Wise, Earle, J. Baldwin, P.J. and Delaney, J. concur.

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