[Cite as State v. Jinks , 2022-Ohio-282.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. JOHN R. JINKS Defendant-Appellant : : : : : : : : : : Appellate Case No. 29155

Trial Court Case No. 2020-CR-1960/1 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 2nd day of February, 2022.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Atty. Reg. No. 007 4332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayt on, Ohio 45409 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

TUCKER, P.J.-2-

{¶ 1} John R. Jinks appeals from his conviction for burglary. On app eal, Jinks contends that his sentence should have been at most community c ontrol, rather than a prison sentence; he also contends that the law under which he w as sentenced, the Reagan Tokes Law, is unconstitutional. We reject both contentio ns and affirm the trial court’s judgment. I. Factual and Procedural Background {¶ 2} In July 2020, in an apparent act of vigilante justice, Jinks br oke into a home and attacked his then-girlfriend’s former boyfriend, who the gi rlfriend claimed had been stalking her and threatening her with physical harm. Jinks was indicted on one count of aggravated burglary (physical harm), a violation of R.C. 2911.1 1(A)(1), a first-degree felony. Under a plea agreement, he pleaded guilty to the reduce d charge of burglary, a violation of R.C. 2911.12(A)(2), a second-degree felony. In May 2021, the trial court imposed an indefinite prison sentence under the Reagan Tokes La w of a three years to four and a half years. {¶ 3} Jinks appeals. II. Analysis {¶ 4} Jinks assigns four errors. The first challenges his sentence ba sed on the manifest weight of the evidence. The remaining three assignment s of error challenge the constitutionality of the Reagan Tokes Law. A. The prison sentence {¶ 5} The first assignment of error alleges:

THE SENTENCING WAS AGAINST THE MANIFEST WEIGHT OF THE-3- EVIDENCE. {¶ 6} In the first assignment of error, Jinks argues that the imposit ion of a threeyear minimum and four-and-one-half-year maximum sentence was ag ainst the manifest weight of the evidence and that he should have been sentenced t o at most community control. Jinks essentially argues that he was justified in brea king into the home because of the victim’s alleged stalking such that the seriousness and recidivism factors in R.C. 2929.12 weighed in favor of a lesser sentence. While Jinks argu es that the trial court failed to weigh properly the statutory seriousness and recidivi sm factors, he stops short of alleging that the sentence was contrary to law. He cites State v. Pullen , 2d Disk Montgomery No. 25829, 2015-Ohio-552, in support of his manifest -weight argument. But

Pullen concerned the denial of a Crim.R. 29 motion for acquittal, not a challenge to a sentence. The State construes Jink’s argument to be that the re cord does not support his

sentence under R.C. 2929.12. We do the same. {¶ 7} An appellate court’s review of a felony sentence is governed by R.C. 2953.08(G)(2). The Ohio Supreme Court clarified in State v. Jones , 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, that R.C. 2953.08(G)(2)(a) “cle arly does not provide a basis for an appellate court to modify or vacate a sentence if it concludes that the record does not support the sentence under R.C. 2929.11 and R.C. 2929. 12[.]” Id. at ¶ 31. “Thus, the Supreme Court concluded that an appellate court may not mod ify or vacate a felony sentence based upon a finding by clear and convincing evidence that the record does not support the trial court’s ‘findings’ under R.C. 2929.11 and R.C . 2929.12.” State v. Hall , 2021-Ohio-1894, 173 N.E.3d 166, ¶ 38 (2d Dist.), citing Jones at ¶ 42 (“Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the-4- record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.”). We h ave further stated that “[i]n Jones , the Supreme Court also confirmed that R.C. 2953.08(G)(2)(b) d oes not provide a mechanism for an appellate court to modify or vacate a felony sentence abased upon a finding that the sentence is ‘contrary to law’ because i t clearly and convincingly is not supported by the record under R.C. 2929.11 and R.C. 2929.12 .” Id. at ¶ 39, citing

Jones at ¶ 32-39.

{¶ 8} “As a result of the Supreme Court’s holding in Jones , when reviewing felony sentences that are imposed solely after considering the factors in R.C. 2929.11 and R.C. 2929.12, we shall no longer analyze whether those sentences are unsupported by the record. We simply must determine whether those sentences are co ntrary to law.” State v. Dorsey , 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A sentenc e is contrary to law when it does not fall within the statutory range for the of fense or if the trial court fails to consider the purposes and principles of felony sentencing se t forth in R .C. 2929 .11 and the sentencing factors set forth in R.C. 2929.12.” Id. ; Hall at ¶ 39 (quoting the same). {¶ 9} The record in the present case plainly shows that the prison te rm imposed by the trial court was within the statutory range and that the court considered the requisite statutory factors in R.C. 2929.11 and R.C. 2929.12. Thus, Jinks cannot demonstrate that his sentence was contrary to law. Under Jones , the sentence must be affirmed. {¶ 10} The first assignment of error is overruled. B. The constitutionality of the Reagan Tokes Law {¶ 11} The remaining three assignments of error allege that the Reagan Tokes Law, under which Jinks was sentenced, is unconstitutional becau se it violates the-5- separation-of-powers doctrine and the right to due process:

REAGAN TOKES IS VIOLATIVE OF THE SEPARATION OF

POWERS.

REAGAN TOKES IS VIOLATIVE OF DUE PROCESS BY NOT

PROVIDING NOTICE. REAGAN TOKES DOES NOT PROVIDE ADEQUATE

SAFEGUARDS FOR ARBITRARY EXECUTIVE DECISIONS. {¶ 12} As an initial matter, we note that Jinks failed to object to th e constitutionality of the Reagan Tokes Law in the trial court. This means that he has waived the issue on appeal. See State v. Awan , 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus (holding that the “[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which is apparent at the time of trial, con stitutes a waiver of such issue and a deviation from this state’s orderly procedure, and theref ore need not be heard for the first time on appeal”). Accordingly, we review Jinks’s argu ments under a plain-error analysis. See Hall , 2021-Ohio-1894, 173 N.E.3d 166, at ¶ 45 (using plain-error an alysis to review defendant’s argument that the Reagan Tokes Law is unc onstitutional because defendant failed to object to constitutionality in the trial co urt). {¶ 13} “An enactment of the General Assembly is presumed to be constit utional, and before a court may declare it unconstitutional it must appe ar beyond a reasonable doubt that the legislation and constitutional provisions are cl early incompatible.” State ex

rel. Dickman v. Defenbacher , 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus; Woods v. Telb , 89 Ohio St.3d 504, 510-511, 733 N.E.2d 1103 (2000) (quoting the same). “[T]he party challenging the statute bears the burden of proving the-6- unconstitutionality of the statute.” Woods at 511, citing State v. Thompkins , 75 Ohio St.3d 558, 560, 664 N.E.2d 926 (1996). Separation of powers {¶ 14} In his second assignment of error, Jinks contends that the sent encing scheme set forth in the Reagan Tokes Law violates the separatio n-of-powers doctrine because it usurps the role of the judiciary by giving the Ohio Department of Rehabilitation and Correction (ODRC)—the executive branch of government—author ity to sentence offenders to a longer prison term. {¶ 15} We have repeatedly held that the Reagan Tokes Law does not viol ate the separation-of-powers doctrine: We recently considered the constitutionality of the Reagan Toke s Law

in State v. Ferguson , 2d Dist. Montgomery No. 28644, 2020-Ohio-4153 and concluded that it does not violate the separation-of-powers doc trine. We

reached this conclusion because we found that the Law’s scheme is consistent with established authority from the Supreme Court of Ohio, which held that “when the power to sanction is delegated to the execu tive branch, a separation-of-powers problem is avoided if the sanction is or iginally imposed by a court and included in its sentence.” Ferguson at ¶ 23, citing Hernandez v. Kelly , 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-20, citing State v. Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19, citing Woods v. Telb , 89 Ohio St.3d 504, 512-513, 733 N.E.2d 1103 (2000). State v. Compton , 2d Dist. Montgomery No. 28912, 2021-Ohio-1513, ¶ 11; see also State-7- v. Thompson , 2d Dist. Clark No. 2020-CA-60, 2021-Ohio-4027, ¶ 19. {¶ 16} Like the defendants’ prison terms in Ferguson , Compton , and Thompson , Jinks’s minimum and maximum terms were imposed by the trial cou rt and included as part of the trial court’s sentence. “Because the Reagan Tokes L aw does not allow the ODRC to lengthen an offender’s sentence beyond the maximum sent ence imposed by the trial court, we once again hold that the Law does not viola te the separation-of-powers

doctrine.” Compton at ¶ 12, citing Ferguson at ¶ 23; see also Thompson at ¶ 20. Due process {¶ 17} In his third assignment of error, Jinks contends that the Reaga n Tokes Law violates due process because it does not provide sufficient not ice of what conduct will cause the ODRC to rebut the presumption for release after expir ation of the minimum term. In his fourth assignment of error, Jinks contends that th e Law does not contain adequate safeguards to prevent arbitrary and discriminatory enf orcement by the ODRC. {¶ 18} We have also repeatedly held that the Reagan Tokes Law does not violate due process: “[T]he fundamental requisite of due process of law is the oppor tunity to be heard in a meaningful time and in a meaningful manner.” * * * T he Reagan Tokes Law satisfies these requirements. The Law states that, in order to rebut the presumption of the minimum term, the [ODRC] must make a particular statutory determination “at a hearing.” R.C. 2967.27 1(C) and (D). The Law does not give the [ODRC] unfettered discretion to requi re an offender to serve more than the minimum term. And it affords an offender notice and an opportunity to be heard before more than the mini mum may-8- be required. Ferguson at ¶ 25, quoting Woods , 89 Ohio St.3d 504, 513, 733 N.E.2d 1103; see also Compton at ¶ 14; Thompson at ¶ 21. “Because the procedures employed under the Reagan Tokes Law provide for notice of a hearing at which an of fender has an opportunity to be heard, and because the Reagan Tokes Law does not give the ODRC unfettered

discretion to decide when an offender must serve more than the minimum term, * * * the Law does not violate an offender’s right to due process.” Compton at ¶ 18; see also Thompson at ¶ 22. We decline to reconsider Ferguson in the present case, “and we again conclude that the Reagan Tokes Act does not violate a defendant ’s due process rights.” Thompson at ¶ 23. {¶ 19} In his brief, Jinks acknowledges that we have held that the Law is not unconstitutional, but he argues that it is unconstitutional any way because he “is sure future Courts will find it violative.” Be that as it may, this Court has repeat edly concluded that the Law does not violate the separation-of-powers doctrine or due process, and Jinks does not persuade us to hold otherwise in this case. Thus, we c ontinue to adhere to our conclusion that the Law does not violate the separation-of-powe rs doctrine or a defendant’s right to procedural due process. {¶ 20} Jinks fails to demonstrate that the Reagan Tokes Law is unconst itutional, and, given this, he has not shown that his sentence is contrary to law. When the trial court here sentenced Jinks under the Reagan Tokes Law, the court did not err, plainly or

otherwise. {¶ 21} The second, third, and fourth assignments of error are overrule d.

III. Conclusion-9- {¶ 22} We have overruled each of the assignments of error presented. T he trial court’s judgment is affirmed.

. . . . . . . . . . . . .

DONOVAN, J. and EPLEY, J., concur.

Copies sent to: Mathias H. Heck, Jr. Elizabeth A. Ellis Hilary Lerman Hon. Mary Lynn Wiseman