[Cite as State v. Reed , 2021-Ohio-1623.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 14-20-16

v. BRIAN ANDREW REED, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 2019-CR-0243 Judgment Affirmed Date of Decision: May 10, 2021

APPEARANCES: 

### Alison Boggs for Appellant 

### Raymond Kelly Hamilton for AppelleeCase No. 14-20-16

- 2 - SHAW, J. {¶1} Defendant-appellant, Brian A. Reed (“Reed”), appeals the July 1 5, 2020 judgment of the Union County Court of Common Pleas, journalizin g his conviction after pleading guilty to three counts of second-degree felony b urglary, one count of third-degree felony identity fraud, and one count of fourth-deg ree felony grand theft, and sentencing him to an aggregate indefinite prison term of te n to thirteen years. On appeal, Reed argues that the trial court failed to adequatel y consider the purposes and principles of felony sentencing under R.C. 2929.11 and R.C. 2929.12 when fashioning its sentence. Relevant Facts and Procedural History {¶2} On October 10, 2019, the Union County Grand Jury returned a fou rcount indictment against Reed alleging that he committed the of fenses of Counts 1 through 3: burglary, in violation of R.C. 2911.12(A)(1), (D), f elonies of the second degree; and Count 4: identity fraud, in violation of R.C. 2913. 49(E), (I)(2), a felony of the third degree. Upon arraignment, Reed entered pleas of n ot guilty to the charges. {¶3} The charges arose from video surveillance footage which capture d Reed enter and exit a Honda of America Manufacturing plant located i n Union County, Ohio, at least twenty-three times over the course of September 16, 17, and 23, 2019, by using the employee badge belonging to his girlfriend to gain access to theCase No. 14-20-16

- 3 - building. Reed was not employed by Honda, but had been formerl y employed by a subcontractor to work on Honda’s production line. On the video footage, Reed could be seen leaving the facility with several items from the plant in a black duffle bag. Honda subsequently reported numerous air impact/pneumatic tools missing. Six of these missing tools were recovered from the residence wh ere Reed lived with his grandmother. The items were found in a black duffle bag la beled with the name “Brian Reed.” Reed’s father also reported that Reed had attemp ted to sell some of the air impact/pneumatic tools to the employees at his father’s place of business while his father was not there. The employees declined to purc hase the stolen items. {¶4} On November 27, 2019, the prosecution moved to consolidate the instant case with a superseding indictment filed in another cas e involving Reed and the theft of air bag assemblies from Honda that were discovered at Reed’s grandmother’s residence. The trial court granted the motion to consolidate the cases, listing an additional count alleging that Reed committed the offense of grand theft in violation of R.C. 2913.02(A)(3), (B)(2), a felony of t he fourth degree. {¶5} On March 10, 2020, Reed withdrew his previously tendered pleas of not guilty and entered guilty pleas to all five counts. The tr ial court accepted Reed’s guilty plea and ordered a presentence investigation interview t o be completed.Case No. 14-20-16

- 4 - {¶6} On May 8, 2020, the prosecution filed a restitution report comp iled by Honda, indicating that Honda requested $38,274.74 in restitutio n for the stolen

items. {¶7} On July 15, 2020, Reed appeared for sentencing. Reed’s counsel argued for the imposition of a sentence of less than five years in prison, noting that Reed suffered from drug and alcohol addiction, Reed’s showing o f remorse, and asserting that Honda did not suffer serious economic harm by vi rtue of it being a large company. The prosecution argued for a longer sentence to be imposed upon Reed, noting that Reed had a long criminal history, including t hat he was on community control when he committed the underlying offenses and that at the time of sentencing he was serving time on another offense out of a n eighboring county. The prosecution also claimed that Reed was familiar with the pl ant being previously employed on the production line by a Honda subcontractor, and t hat in addition to the monetary loss listed in the restitution report, the efficie ncy of Honda’s production line was hindered for several days as a result of Re ed’s conduct. {¶8} The trial court imposed a prison term of six to nine years on t he three second-degree felony burglary counts to run concurrent; a priso n term of thirty months on the third-degree felony identity fraud count to run c onsecutive to the prison terms imposed for the three burglary counts; and a priso n term of eighteen months on the fourth-degree felony grand theft count to run con secutive to the otherCase No. 14-20-16

- 5 - four counts. The total stated prison term imposed by the trial court was an aggregate indefinite term of ten to thirteen years. {¶9} Reed filed an appeal from this judgment, assigning error to the imposition of the trial court’s sentence. While this appeal wa s pending, Reed filed a Motion to Delay Decision and Reopen Briefing, requesting the opportunity to brief an additional assignment of error to this Court. We granted th e motion and ordered the parties to submit supplemental briefs. {¶10} Reed now appeals the trial court’s July 15, 2020 Judgment Entry of conviction and sentence, asserting the following assignments of error for our review.

ASSIGNMENT OF ERROR NO. 1

APPELLANT’S SENTENCE IS CONTRARY TO LAW AND AN ABUSE OF DISCRETION BECAUSE THE TRIAL COURT FAILED TO CONSIDER AND PROPERLY WEIGH THE PURPOSE AND PRINCIPLES OF SENTENCING ALONG WITH THE SENTENCING FACTORS FOUND IN OHIO REVISED CODE SECTIONS 2929.11 AND 2929.12.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO AN INDEFINITE TERM OF PRISON ON EACH OF THE THREE BURGLARY COUNTS, AS BURGLARY IS NOT A QUALIFYING FELONY UNDER THE REGAN TOKES LAW. First Assignment of Error {¶11} In his first assignment of error, Reed claims that the trial co urt failed to adequately consider the purposes and principles of sentencin g and failed toCase No. 14-20-16

- 6 - properly apply the sentencing factors set forth in R.C. 2929.11 and R.C. 2929.12. Specifically, Reed contends that the sentence imposed by the tr ial court was “excessive, when the court has been instructed to ‘promote the effective rehabilitation of the offender using the minimum sanctions * * * without imposing

an unnecessary burden on the state and local government.’ ” (Appt. Br. 9, citing R.C. 2929.11(A)(emphasis sic)). Reed also argues that the pris on terms imposed were disproportionate to the offenses committed because the off enses were fueled by Reed’s drug addiction and were not crimes of violence. Reed further asserts that the economic loss to Honda was relatively unsubstantial to warr ant the trial court’s sentence stating that, “[w]hile the dollar amount seems high to most ordinary people, when put in perspective to the economic gains Honda reg ularly makes, the dollar amount is actually insignificant.” ( Id .); see R.C. 2929.12(B)(2) Standard of Review {¶12} Under R.C. 2953.08(G)(2), an appellate court will reverse a sen tence “only if it determines by clear and convincing evidence that th e record does not support the trial court’s findings under relevant statutes or t hat the sentence is otherwise contrary to law.” State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that “ ‘which will produc e in the mind of the trier of facts a firm belief or conviction as to the facts soug ht to be established.’ ”Case No. 14-20-16

- 7 - Id . at ¶ 22, quoting Cross v. Ledford , 161 Ohio St. 469 (1954), paragraph three of the syllabus. Relevant Authority {¶13} “The trial court has full discretion to impose any sentence wit hin the authorized statutory range, and the court is not required to ma ke any findings or give its reasons for imposing maximum or more than [a] minimum sente nce[ ].” State v.

White , 3d Dist. Marion No. 9-19-32, 2020-Ohio-717, ¶ 8. Nevertheles s, when exercising its sentencing discretion, a trial court must consid er the statutory policies that apply to every felony offense, including those set out in R.C. 2929.11 and R.C.

2929.12. State v. Kerns , 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8, citing

State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38. {¶14} Revised Code 2929.11 provides that sentences for a felony shall be guided by the overriding purposes of felony sentencing: “to pro tect the public from future crime by the offender and others, to punish the offender , and to promote the effective rehabilitation of the offender using the minimum sanc tions that the court determines accomplish those purposes without imposing an unnece ssary burden on state or local government resources.” R.C. 2929.11(A). In orde r to comply with those purposes and principles, R.C. 2929.12 instructs a trial c ourt to consider various factors set forth in the statute relating to the seriou sness of the offender’s

conduct and to the likelihood of the offender’s recidivism. R.C . 2929.12(A)-(E).Case No. 14-20-16

- 8 - Discussion {¶15} In this case, Reed was convicted of three counts of burglary in violation of R.C. 2911.12 (A)(1), (D), all felonies of the seco nd degree. Pursuant to R.C. 2929.14(A)(2)(a), the prison term for a second-degree f elony offense “shall be an indefinite prison term with a stated minimum term selecte d by the court of two, three, four, five, six, seven, or eight years and a maximu m term that is determined pursuant to section 2929.144 of the Revised Code[.]” Under R.C. 2929.144(B)(1), the maximum prison term for a qualifying felony of the second degree shall be equal to the “minimum term imposed * * * plus f ifty per cent of that term.” Reed was also convicted of one count of identity fraud, violation R.C. 2913.49(E), (I)(2), a felony of the third degree. Pursuant to R.C. 2929.14(A)(3)(b), the prison term for a third-degree felony offense “shall be a d efinite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.” Finally, Reed was convicted of grand theft in violation of R.C. 2913.02(A)(3), (B )(2), a felony of the fourth degree. Under R.C. 2929.14(A)(4), the prison term for a fourth-degree felony offense “shall be a definite term of six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen mo nths.” {¶16} Here, the trial court imposed upon Reed an indefinite prison te rm with a stated minimum of six years and a stated maximum of nine year s for each of the three second-degree felony burglary offenses; a thirty-month pr ison term for theCase No. 14-20-16

- 9 - third-degree felony identity fraud offense; and an eighteen-mon th prison term for the fourth-degree felony grand theft offense. These prison ter ms are within the appropriate statutory range and are compliant with the relevant statutes, therefore they are presumptively valid. State v. Maggette , 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31. {¶17} Notably, notwithstanding the wording of Reed’s assignment of er ror, the record clearly established the trial court conducted an ana lysis of these factors both at the sentencing hearing and in its judgment entry of sen tence. Rather, Reed simply disagrees with the trial court’s application of these fa ctors to the facts and

circumstances of his case. Appellate Review of R.C. 2929.11 and R.C. 2929.12 Factors {¶18} The Supreme Court of Ohio recently clarified an appellate court ’s review of a felony sentence under R.C. 2953.08(G)(2). See , State v. Jones , --- Ohio St.3d ---, 2020-Ohio-6729, ¶ 39. 1 The Supreme Court ruled that R.C. 2953.08(G)(2)(a) “clearly does not provide a basis for an appel late court to modify

or vacate a sentence if it concludes that the record does not s upport the sentence

under R.C. 2929.11 and R.C. 2929.12 because * * * R.C. 2929.11 and R.C. 2929.12

1 Because Jones was decided after the parties submitted their appellate briefs in this case, neither party has had the opportunity to address its applicability. However, Jones “does not change the law” but instead “clarifies existing law and precedents.” State v. Roberts , 5th Dist. Richland No. 2020 CA 0035, 2021-Ohio90, ¶ 81, fn. 2. Therefore, we elect to apply Jones to the instant case without the benefit of supplemental briefing.Case No. 14-20-16

- 10 - are not among the statutes listed in the provision.” Id . at ¶ 31. Thus, the Supreme Court concluded that an appellate court may not modify or vacat e 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. See id at ¶ 42 (“Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment fo r that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.”). {¶19} The Supreme Court in Jones also confirmed that R.C. 2953.08(G)(2)(b) does not provide a mechanism for an appellate court to modify or vacate a felony sentence based upon a finding that the sentence is “contrary to law” because it clearly and convincingly is not supported by the rec ord under R.C.

2929.11 and R.C. 2929.12. Id . at ¶ 32-39. “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 sh all no longer analyze whether those sentences are unsupported by the record. We simply must determine whether those sentences are contrary to law.” State v. Dorsey , 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A sentence is contr ary to law when it does not fall within the statutory range for the offense or if the trial court fails to consider the purposes and principles of felony sentencing set f orth in R.C. 2929.11Case No. 14-20-16

- 11 - and the sentencing factors set forth in R.C. 2929.12.” Id . citing State v. Brown , 2d Dist. No. 2016-CA-53, 2017-Ohio-8416, ¶ 74; see State v. D-Bey , 8th Dist. Cuyahoga No. 109000, 2021-Ohio-60, ¶ 65 (“A sentence is ‘contra ry to law’ if it falls outside the statutory range for the offense or if the tri al court fails to consider the purposes and principles of felony sentencing set forth in R .C. 2929.11 and the sentencing factors set forth in R.C. 2929.12 when sentencing a defendant for a felony offense.”). {¶20} In sum, the record demonstrates that the prison terms imposed b y the trial court in this case are within the statutory range and tha t the trial court considered the statutory factors in R.C. 2929.11 and 2929.12 wh en it fashioned Reed’s aggregate sentence. Thus, Reed’s sentence is not clearly and convincingly contrary to law, and it must therefore be affirmed. See Burks , 2d Dist. Clark No. 2019-CA-70, 2021-Ohio-224, ¶ 9, (“Under Jones , this ends the inquiry regarding the individual sentences. Thus, there is no basis upon which t o modify or vacate either individual sentence.”); see also , D-Bey, supra , ¶ 75, citing Jones at ¶ 39 (concluding that “this court cannot review D-Bey’s sentences to determine whether they are “excessive” or otherwise not “supported by the record under R.C. 2929.11 and 2929.12.”). On this basis, Reed’s first assignment of error is overruled.Case No. 14-20-16

- 12 - Second Assignment of Error {¶21} In his second assignment of error, Reed claims that the trial c ourt was not authorized to impose an indefinite prison term for his thre e, second-degree felony burglary convictions because they are not qualifying fel onies as defined by the Regan Tokes Law. On this basis, Reed argues that the indef inite sentencing provisions of the Reagan Tokes Law do not apply to his burglary

convictions. 2 Thus, Reed contends that the trial court’s sentence imposing a six to nine-year indefinite prison term for each burglary conviction i s contrary to law. {¶22} On appeal, Reed primarily relies upon R.C. 2901.011, which sta tes in its entirety: The amendments to sections 109.42, 121.22, 149.43, 2903.06, 2903.08, 2903.11, 2903.12, 2905.01, 2905.32, 2907.02, 2907.03, 2907.05, 2907.07, 2919.22, 2919.25, 2921.321, 2921.36, 2923.132 , 2925.01, 2925.02, 2925.03, 2925.04, 2925.041, 2925.11, 2929.01, 2929.14, 2929.142, 2929.15, 2929.19, 2929.191, 2929.20, 2929.61 , 2930.16, 2943.032, 2953.08, 2967.01, 2967.021, 2967.03, 2967.13 , 2967.19, 2967.191, 2967.193, 2967.26, 2967.28, 2971.03, 3719.99 , 5120.021, 5120.53, 5120.66, and 5120.80 and the enactment of sections 2901.011, 2929.144, 2967.271, and 5120.038 of the Revised Code by S.B. 201 of the 132nd general assembly constitute the Reagan Tokes Law.

2 Regan Tokes Law provides that a court imposing a non-life impr isonment term for certain first and seconddegree felonies committed after the law’s March 22, 2019 effect ive date, defined as a qualifying felony, must impose a minimum prison term which may be extended by one-half the minimum term due to institutional infractions as determined by the Ohio Department of Corrections

. See State v. Acosta , 6th Lucas Nos. L-20- 1068, L-20-1069, 2021-Ohio-757, ¶ 6.Case No. 14-20-16

- 13 - (Emphasis added). Reed claims that only the amended statutes l isted in R.C. 2901.11 are qualifying felonies of the first or second degree s ubject to indefinite sentencing under the Regan Tokes Law. Reed further argues that by omitting R.C. 2911.12, the statute defining the offense of burglary, from the list of amended statutes, the Ohio Legislature indicated that second-degree fel ony burglary is not a qualifying felony to which the indefinite sentencing provisions apply. {¶23} However, in making this argument, Reed overlooks the fact that in R.C. 2901.011, the Ohio Legislature defined the Reagan Tokes La w as constituting

all of the amended statutes listed in R.C. 2901.011 and four newly-enacted statutes, one of which is R.C. 2929.144. Unlike R.C. 2901.011, R.C. 2929 .144 contains a specific definition of the term “qualifying felony of the first or second degree.” In fact, other than R.C. 2929.144, there appears to be no statute in the Ohio Revised Code that uses, much less defines, the term. {¶24} As defined in R.C. 2929.144, a “ ‘qualifying felony of the firs t or second degree’ means a felony of the first or second degree committed on or after the effective date of this section .” R.C. 2929.144(A)(emphasis added). The effective date of R.C. 2929.144, as well as all the statutory p rovisions comprising the Reagan Tokes Law, is March 22, 2019. Thus, all first or se cond-degree felonies committed on or after March 22, 2019, are qualifying felonies t o which the indefinite sentencing provisions of Reagan Tokes Law apply. In cidentally, there isCase No. 14-20-16

- 14 - no dispute among the parties that Reed committed his second-deg ree burglary offenses after March 22, 2019. {¶25} Revised Code section 2929.14, which is one of the many statutes amended by the Reagan Tokes Law, reinforces the definition of a “qualifying felony of the first or second degree” in R.C. 2929.144(A). Specifical ly, R.C. 2929.14(A)(2)(a), the division under which Reed was sentenced, states: For a felony of the first degree committed on or after the effective date of this amendment , the prison term shall be an indefinite prison term with a stated minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or eleven year s and a maximum term that is determined pursuant to section 2929.144 of the Revised Code, except that if the section that criminaliz es the conduct constituting the felony specifies a different minim um term or penalty for the offense, the specific language of that section shall control in determining the minimum term or otherwise sentencing the offender but the minimum term or sentence imposed under that specific language shall be consider ed for purposes of the Revised Code as if it had been imposed unde r this division. (Emphasis added). {¶26} Based on the foregoing, we find Reed’s reliance upon R.C. 2901. 011 to be misplaced, as Reed fails to consider the other statutes t hat make up the Reagan Tokes Law. It is apparent that R.C. 2901.011 generally delinea tes the newlyenacted statutes and amended offenses that comprise the Reagan Tokes Law. Unlike R.C. 2929.144, R.C. 2901.011 contains no specific, operative language defining a qualifying degree felony subject to indefin iteCase No. 14-20-16

- 15 - sentence. Furthermore, reading R.C. 2929.144 and 2929.14(A) to gether, it is clear the defining characteristic of a qualifying first or second-deg ree felony is not its inclusion in R.C. 2901.011’s list of amended and newly-enacted statutes, but rather the critical inquiry is whether the offense was committed on or after the relevant effective date. Accordingly on this basis, we decline to furth er address this matter under an analysis of conflicting specific and general provision s under R.C. 1.51, as Reed urges us to do, because we do not find that such an analys is is warranted. {¶27} Reed’s second assignment of error is overruled. {¶28} Based on the foregoing the assignments of error are overruled a nd the judgment and sentence of the Union Court of Common Pleas is aff irmed. Judgment Affirmed WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur. /jlr