State v. Buckner, Case No. CT2020-0023

• Citation: 2020 Ohio 7017
• Decision Date: 30 December 2020
• Docket Number: Case No. CT2020-0023,Case No. CT2020-0024
• Parties: STATE OF OHIO Plaintiff-Appellee v. CHARLES H. BUCKNER, III Defendant-Appellant
• Court: United States Court of Appeals (Ohio)

2020 Ohio 7017

STATE OF OHIO Plaintiff-Appellee v. CHARLES H. BUCKNER, III Defendant-Appellant

Case No. CT2020-0023

Case No. CT2020-0024

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

December 30, 2020

JUDGES: Hon. William B. Hoffman, P.J. Hon. W. Scott Gwin, J. Hon. John W. Wise, J.

OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case Nos. CR2020-0162 & CR2020-0157

JUDGMENT: Dismissed

APPEARANCES:

For Plaintiff-Appellee

D. MICHAEL HADDOX

Prosecuting Attorney

Muskingum County, Ohio

GERALD V. ANDERSON, II

Assistant Prosecuting Attorney

Muskingum County, Ohio

27 North Fifth Street

P.O. Box 189

Zanesville, Ohio 43701

For Defendant-Appellant

TODD W. BARSTOW

261 West Johnstown Road, Suite #204

Columbus, Ohio 43230

Hoffman, P.J.

{¶1} Defendant-appellant Charles H. Buckner, III ["Buckner"] appeals his sentence after a negotiated guilty plea in the Muskingum County Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

{¶2} In case number CR2020-157, the Muskingum County Grand Jury indicted Buckner for one count of Robbery, a felony of the second degree. In case number CR2020-162, the Muskingum County Grand Jury indicted Buckner for one count of Attempted Murder, a felony of the first degree; two counts of Felonious Assault, both felonies of the second degree; one count of Possession of a Weapon while under Detention, a felony of the third degree; and one count of Participating in a Criminal Gang, a felony of the second degree. Counts 1, 2 and three contained Criminal Gang Specifications.

{¶3} The assistant prosecutor's recitation of the facts at the Change of Plea hearing revealed that on February 27, 2020, Buckner was attempting to leave a Kroger store in Muskingum County with stolen merchandise. In doing so, he shoved a store employee who was attempting to prevent him from leaving the store. Buckner shoved the employee to the ground, causing cuts and bruises to the employee. Buckner was ultimately arrested for that offense and held in the Muskingum County Jail. While incarcerated, Buckner stabbed another inmate with a pen several times, and struck him with a chair. Those actions caused serious injuries to the other inmate. Buckner also stated to corrections officers it was his intention to kill the other inmate. Buckner had tattoos that indicated his membership in the Real Riders Gang, and claimed membership in that gang.

{¶4} In case CR2020-162, Buckner entered a negotiated guilty plea to attempted murder with a gang specification and one count of participating in a criminal gang. The remaining counts of that case were dismissed in exchange for Buckner's plea. In case Number CR2020-0157, Buckner entered a negotiated guilty plea to one count of robbery, a felony of the second degree.

{¶5} The parties recommended to the trial court Buckner serve a sentence of 25 years. Buckner waived findings as to consecutive sentences and agreed the counts did not merge for sentencing. The trial court accepted Buckner's guilty pleas and sentenced him to the jointly recommended sentence. As part of the sentence, the trial court sentenced Buckner to indefinite prison terms pursuant to Revised Code section 2967.271, the Regan Tokes Law.

{¶6} Buckner raises one Assignment of Error:

THE TRIAL COURT SENTENCED APPELLANT TO INDEFINITE TERMS OF INCARCERATION PURSUANT TO A STATUTORY SCHEME THAT VIOLATES APPELLANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.

{¶7} In his sole Assignment of Error, Buckner argues that the Reagan Tokes Law, specifically, R.C. 2967.271, is unconstitutional. The state maintains that the issue of the constitutionality of the Regan Tokes Law is not ripe for review, however, the state, nonetheless, maintains the law is constitutional.

{¶8} This Court has previously addressed whether a challenge to the constitutionality of the Reagan Tokes Law is ripe for appellate review where the defendant has yet to serve the minimum term and yet to be subject to the application of the Reagan Tokes Law. This Court has repeatedly held the issue is not ripe for review. See State v. Clark, 5^th Dist. Licking No. 2020 CA 00017, 2020-Ohio-5013; State v. Downard, 5^th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227; and State v. Manion, 5^th Dist. Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-4230.

{¶9} The Sixth District has reached the same conclusion in State v. Maddox, 6^th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702, and State v. Velliquette, 6^th Dist. Lucas No. L-19-1232, 2020-Ohio-4855. Likewise the Fourth District recently found the issue not ripe for review in State v. Ramey, 4^th Dist. Washington Nos. 20 CA 1 and 20 CA 2, 2020-Ohio-6733.

{¶10} For the reasons set forth in our opinion in Clark, Downard, and Manion, supra, we find Buckner's assigned error not ripe for review.

{¶11} While doing so, we recognize Judge Gwin's thorough and persuasive analysis of the constitutional challenge in his dissent. While not offered as an alternative to a direct appeal of the original sentence in our previous decisions, we suggest Judge Gwin's concern about the potential hardship a defendant might suffer as a result of delay in deciding the issue now could be remedied by the filing of a declaratory judgment action. Such action would necessitate joining the Ohio Attorney General to defend the constitutionality of the legislation.

{¶12} This appeal is dismissed.

By: Hoffman, P.J.

Wise, John, J. concurs and

Gwin, J., dissents

Gwin, J., dissents

{¶13} I respectfully dissent from the majority's opinion.

Ripeness.

{¶14} Ripeness reflects constitutional considerations that implicate "Article III limitations on judicial power," as well as "prudential reasons for refusing to exercise jurisdiction." Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57, n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). In evaluating a claim to determine whether it is ripe for judicial review, courts should consider both "the fitness of the issues for judicial decision" and "the hardship of withholding court consideration." National Park Hospitality Assn. v. Department of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). The Supreme Court has stated that the "basic rationale" of the ripeness doctrine "is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements." Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

{¶15} In determining the "likelihood" that an injury will come to pass, the Supreme Court has made clear that "[o]ne does not have to await consummation of threatened injury to obtain preventive relief." Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). For example, in the Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), the Court deemed ripe an action brought by eight major railroads challenging the conveyance of their property to Conrail. Although a reorganization plan had not yet been formulated and a special court had not yet ordered the conveyances, the Court reasoned that "where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect." Id. at 143, 95 S.Ct. 335. Although not requiring "inevitability," the Court has held that a claim is ripe when it is "highly probable" that the alleged harm or injury will occur.

{¶16} "Three factors guide the ripeness inquiry: '(1) the likelihood that the harm alleged by the plaintiffs will ever come to pass; (2) whether the factual record is sufficiently developed to produce a fair adjudication of the merits of the parties' respective claims; and (3) the hardship to the parties if judicial relief is denied at this stage in the proceedings.'" Berry v. Schmitt, 688 F.3d 290, 298 (6th Cir. 2012) (quoting Grace Cmty. Church v. Lenox Twp., 544 F.3d 609, 615 (6th Cir. 2008)). See also, Reno v. Catholic Social Services, Inc., 509 U.S.43, 71, 113 S.Ct. 2485, 125 L.Ed.2d 38(1993) (O'Conner, J. concurring) ("These are just the kinds of factors identified in the two-part, prudential test for ripeness that Abbott Laboratories [v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681(1967)] articulated. "The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." 387 U.S. at 149, 87 S.Ct. at 1515. See Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 581-582, 105 S.Ct. 3325, 3333, 87 L.Ed.2d 409 (1985) (relying upon Abbott Laboratories test); Pacific Gas, supra, 461 U.S. at 200-203, 103 S.Ct., at 1720-1721 (same); National Crushed Stone, supra, 449 U.S. at 72-73, n. 12, 101 S.Ct., at 301-302, n. 12 (same)."). As the court in Riva v. Commonwealth of Massachusetts noted,

Although it is a familiar bromide that courts should not labor to protect a party against harm that is merely remote or contingent, see, e.g., Ernst & Young, 45 F.3d at 536; Massachusetts Ass'n of Afro-Am. Police, 973 F.2d at 20; Lincoln House v. Dupre, 903 F.2d 845, 847 (1st Cir. 1990), there is some play in the joints. For example, even when the direct application of a statute is open to a charge of remoteness by reason of a lengthy, built-in time delay before the statute takes effect, ripeness may be found as long as the statute's operation is inevitable (or nearly so). See, e.g., Regional Rail Reorg. Act Cases, 419 U.S. 102, 142-43, 95 S.Ct. 335, 357-58, 42 L.Ed.2d 320 (1974). And, even when the direct application of such a statute is subject to some degree of contingency, the statute may impose sufficiently serious collateral injuries that an inquiring court will deem the hardship component satisfied. See Erwin Chemerinsky, Federal Jurisdiction § 2.4.2, at 121-22 (2d ed. 1994). In

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