State v. Bothuel
| Decision Date | 29 July 2022 |
| Docket Number | L-20-1053 |
| Citation | 2022 Ohio 2606 |
| Parties | State of Ohio Appellee v. Lewis Bothuel Appellant |
| Court | Ohio Court of Appeals |
Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
DECISION AND JUDGMENT
{¶ 1} This case is before the court on remand from the Ohio Supreme Court.
{¶ 2} Defendant-appellant, Lewis Bothuel, appealed the February 14, 2020 judgment of the Lucas County Court of Common Pleas, convicting him of burglary, and sentencing him to an indefinite prison term of a minimum of six years and a maximum of nine years. He assigned two errors for our review:
{¶ 3} In a decision journalized on March 19, 2021, we affirmed the trial court judgment, however, we dismissed Bothuel's first assignment of error-challenging the constitutionality of the Reagan Tokes Law-on the basis that that assignment was not ripe for review pursuant to our decision in State v. Maddox, 6th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702. State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2021-Ohio-875, ¶ 18. Recognizing that our decision was in conflict with other Ohio appellate districts, we certified a conflict to the Ohio Supreme Court. The motion to certify was allowed. State v. Bothuel, 163 Ohio St.3d 1490, 2021-Ohio-2097, 169 N.E.3d 1267. The case was held pending a decision in Maddox. Id.
{¶ 4} The Ohio Supreme Court determined that challenges to the constitutionality of the Reagan Tokes Law are, in fact, ripe for review, and reversed Maddox. State v. Maddox, Slip Opinion No. 2022-Ohio-764. It, therefore, reversed and remanded Bothuel. In re Cases Held for the Decision in State v. Maddox, Slip Opinion No. 2022-Ohio-1352. The merits of Bothuel's first assignment of error are now before the court.
{¶ 5} Senate Bill 201-the Reagan Tokes Law-became effective on March 22, 2019. The Law "significantly altered the sentencing structure for many of Ohio's most serious felonies" by implementing an indefinite sentencing system for non-life, first and second-degree felonies committed on or after its effective date. State v. Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, 2020 WL 3032862, ¶ 5, fn. 1. The Law specifies that the indefinite prison terms will consist of a minimum term, selected by the sentencing judge from a range of terms set forth in R.C. 2929.14(A), and a maximum term determined by formulas set forth in R.C. 2929.144. The Law establishes a presumptive release date from prison at the end of the minimum term, but the Ohio Department of Rehabilitation and Correction ("ODRC") may rebut the presumption if it determines, after a hearing, that one or more factors apply, including that the offender's conduct while incarcerated demonstrates that he continues to pose a threat to society. R.C. 2967.271(B), (C)(1), (2) and (3). If ODRC rebuts the presumption, it may maintain the offender's incarceration for a reasonable, additional period of time, determined by ODRC, but not to exceed the offender's maximum prison term. R.C. 2967.271(D).
{¶ 6} In his first assignment of error, Bothuel challenges the Reagan Tokes Law on the basis that (1) it violates the separation-of-powers doctrine; (2) it violates the constitutional right to a trial by jury; and (3) it violates the constitutional right to due process. We consider each of Bothuel's arguments.
{¶ 7} Bothuel claims that the Reagan Tokes Law violates the constitutional doctrine of separation of powers because it "removes the sentencing enhancement from the prerogative of the Judicial Branch and transfers it to the Executive Branch." It compares the Law to the procedure for imposing "bad time" under former R.C. 2967.11, which the Ohio Supreme Court found unconstitutional in State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000). Bothuel also contends that the separation-of-powers problem is further exacerbated by the fact that the reasons for extending a sentence all depend on determinations that were, in the first place, made by ODRC.
{¶ 8} The state responds that the Reagan Tokes Law is different from the bad-time statute because unlike former R.C. 2967.11, ODRC is not permitted to extend an offender's prison term beyond the maximum term originally imposed by the sentencing court. It argues that the discretion afforded ODRC under the Law is consistent with the authority granted to the Adult Parole Authority to grant parole and to impose postrelease control. The state emphasizes that the trial court-not ODRC-is responsible for determining whether to impose a prison term, selecting the length of the minimum sentence, deciding whether to order sentences to be served concurrently or consecutively, and pronouncing and imposing the indefinite sentence based on the selected minimum term and the resulting maximum term.
{¶ 9} We considered whether the Reagan Tokes Law violates the constitutional doctrine of separation of powers in State v. Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio-1620 (and more recently in State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072 and State v. Eaton, 6th Dist. Lucas No. L-21-1121). As we recognized in those cases, "the doctrine of separation of powers is 'implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of powers granted to the three branches of state government.'" Bray at 134, quoting S Euclid v. Jemison, 28 Ohio St.3d 157, 158-159, 503 N.E.2d 136 (1986). "The legislative has the sole right and power to enact laws, the judiciary to declare their meaning and application, and the executive to enforce their execution." Chesnut v. Shane's Lessee, 16 Ohio 599, 621 (1847). "'The essential principle underlying the policy of the division of powers of government into three departments is that powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments, and further that none of them ought to possess directly or indirectly an overruling influence over the others.'" Bray at 134, quoting State ex rel. Bryant v. Akron Metro. Park Dist, 120 Ohio St. 464, 473, 166 N.E. 407 (1929).
{¶ 10} In connection with its role in declaring the "meaning and application" of laws, the judiciary is solely responsible for determining guilt and sentencing a defendant who has been convicted of a crime. Id. at 136. Like the defendant in Gifford, Bothuel argues that because R.C. 2967.271 permits ODRC to rebut the presumption that an offender will be released after serving his or her minimum sentence, the statute deprives the judiciary of its exclusive authority and instead authorizes ODRC to increase an offender's sentence, thereby undermining judicial power and vesting this authority in the ODRC. We disagree.
{¶ 11} Under the Reagan Tokes Law, the trial court imposes both a minimum and maximum sentence. R.C. 2929.14 and 2929.144. As we emphasized in Gifford, while R.C. 2967.271(C) and (D) permit ODRC to "maintain" an offender's incarceration for "additional"-and "reasonable"-periods beyond the prisoner's presumptive minimum term, ODRC is not permitted to "increase" the prisoner's sentence beyond the maximum sentence imposed by the trial court. In this way, the Law is different than other legislation struck down by the Ohio Supreme Court as violating separation of powers, such as the "bad time" statute (former R.C. 2967.11), which allowed ODRC to extend an offender's prison term beyond the original sentence imposed by the court for misconduct committed during incarceration. Here, any additional period of incarceration "shall not exceed the offender's maximum prison term." R.C. 2967.271(D). As such, the authority granted to ODRC under the Reagan Tokes Law is more comparable to the authority granted to the parole board under the postrelease control statute, R.C. 2967.28, which the Ohio Supreme Court upheld in Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000).
{¶ 12} As we summarized in Gifford, the Ohio Supreme Court in Woods recounted the evolution of Ohio's sentencing statutes. It explained that Ohio enacted truth-in-sentencing laws, Senate Bill 2, to ensure that sentences imposed by trial judges were the sentences served, unless altered by the judge. "This was primarily accomplished by two methods: eliminating indefinite sentences and eliminating parole." Id. at 508. The court described that before S.B. 2, offenders rarely served the time to which they were sentenced because (1) indefinite sentences were prescribed for most serious felonies, (2) upon entering a correctional institution, an offender's sentence was automatically reduced by 30 percent for good behavior, and (3) the parole board "reviewed all prison sentences for disparity among offenders and attempted to abate inequities." Id. at 508. Under S.B. 2, offenders were sentenced to definite sentences, good time was significantly reduced and had to be earned, and the parole board no longer had authority to determine how long an offender stayed in prison.
{¶ 13} The Ohio Supreme Court explained that before S.B. 2, offenders were subject to parole if they were convicted of first- or second-degree felonies or third- or fourth-degree felonies that involved an act of violence, or if they had previously been convicted of a crime of violence. Instead of parole, S.B. 2 introduced "post-release control." Similar to parole, a...
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