State v. Delvallie

• Decision Date: 17 February 2022
• Docket Number: 109315
• Citation: 2022 Ohio 470
• Court: Ohio Court of Appeals
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. BRADLEY DELVALLIE, Defendant-Appellant.

2022-Ohio-470

STATE OF OHIO, Plaintiff-Appellee, v. BRADLEY DELVALLIE, Defendant-Appellant.

No. 109315

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 17, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-645262-A

JUDGMENT: AFFIRMED

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Catherine M. Coleman and Daniel T. Van Assistant Prosecuting Attorneys, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Paul A Kuzmins, Assistant Public Defender, for appellant.

JOURNAL ENTRY AND DECISION EN BANC

SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE.

{¶ 1} The Reagan Tokes Law (enacted through S.B. 201) represents the Ohio legislature's first major departure from the so-called "truth in sentencing law," enacted through S.B. 2 in 1996. It embodies a policy determination by the Ohio legislature that definite terms under S.B. 2 failed for serious felony offenders. The rape and murder of 21-year-old Reagan Tokes by an offender who had served his definite sentence, despite perpetual misconduct during his term of imprisonment and during his postrelease control, brought the legislature to the nearly unanimous, bipartisan conclusion that definite sentences for serious offenders who displayed no rehabilitative qualities during their incarceration created an unsafe condition for an unsuspecting public. Senate Bill 201 Votes Results, available at https://web.archive.org/web/20211117125521/https://www.legislature.ohio.gov/le gislation/legislation-votes?id=GA132-SB-201 (last visited Jan. 22, 2022) (both houses of the legislature voted in favor of enacting S.B. 201 in its final form with a single dissenting vote).

{¶ 2} The law reverts Ohio to an indefinite sentencing scheme for the most serious offenses under Ohio's criminal law - a sentencing structure that has been in place for well over a century. See State ex rel Atty. Gen. v. Peters, 43 Ohio St. 629, 4 N.E. 81 (1885), syllabus. The formulas to impose indefinite sentences under the Reagan Tokes Law can be described as complicated and confusing, but that does not render them unconstitutional. In the clamor surrounding the Reagan Tokes Law's enactment and the difficulties in deciphering some of its provisions, we have seen judges with the stroke of a pen declare the entire 435-page law unconstitutional based on the language in, or perceived omissions from, RC. 2967.271(C) and (D). The Reagan Tokes Law under R.C. 2901.011, ^[1] however, is a statutorily defined term of art that includes 54 statutory sections, including an amendment of 50 existing statutory sections and the adoption of four new statutes. Id. Fifty-three of the statutory sections have been deemed unenforceable with no analysis discussing how those provisions violate constitutional safeguards or the impact the supposed offending provisions from R.C. 2967.271 have on the remaining statutory sections known as the Reagan Tokes Law. State v. Sealey, 8th Dist. Cuyahoga No. 109670, 2021-Ohio-1949, ¶ 45; State v. Daniel, 8th Dist. Cuyahoga No. 109583, 2021-Ohio-1963, ¶ 44; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2021-Ohio-1809, ¶ 32 (the "Reagan Tokes Law" is unconstitutional because R.C. 2967.271 infringes on the defendant's right to a jury under the Sixth Amendment).

{¶ 3} In Sealey, in an appeal filed by the state, the panel declared subsections (C) and (D) of R.C. 2967.271 unconstitutional. While it may have been the panel's intent to only find subsections (C) and (D) of R.C. 2967.271 unconstitutional, the net effect of the panel's ruling affirmed the trial court's holding that the "Reagan Tokes Law" is unconstitutional in its entirety. Id. at ¶ 45 ("the trial court's finding the Reagan Tokes Law unconstitutional is affirmed"); see also Daniel (after declaring subsections (C) and (D) of RC. 2967.271 unconstitutional, the panel concluded without additional analysis that "the Reagan Tokes Law does not satisfy the requirements of due process and, as such, violates [the defendant's] constitutional rights" (Emphasis added.)); but see State v. Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578, ¶ 18; State v. Gamble, 8th Dist. Cuyahoga No. 109613, 2021-Ohio-1810, ¶ 6 (overruling the defendant's assignment of error in which it was claimed that the Reagan Tokes Law was unconstitutional). In other words, Sealey affirmed the trial court's decision declaring the Reagan Tokes Law to be unconstitutional based on the panel's conclusion that aspects of RC. 2967.271 were deemed unconstitutional - the effect of which rendered the whole of the law unenforceable because of the constitutional analysis limited to one provision. But see State ex rel Sunset Estate Properties, L.L.C. v. Lodi, 142 Ohio St.3d 351, 2015-Ohio-790, 30 N.E.3d 934, ¶ 16 (RC. 1.50 creates a presumption of severability such that the constitutional infirmity of one statute does not impact the validity of the entire law).

{¶ 4} Pursuant to App.R. 26, LocApp.R. 26, and McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court sua sponte determined that the panel decision in Delvallie, 8th Dist. Cuyahoga No. 109315, 2021-Ohio-1809, conflicts with the following opinions: Gamble, 8th Dist. Cuyahoga No. 109613, 2021-Ohio-1810; State v. Simmons, 8th Dist. Cuyahoga No. 109476, 2021-Ohio-939; and Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578. We must, therefore, resolve the constitutional validity of R.C. 2967.271 and the Reagan Tokes Law in general.

I. Putting the background of the Reagan Tokes Law into perspective

{¶ 5} At the outset, it is important to examine the apparent legislative intent behind the law and its effect on Ohio's criminal justice scheme in light of the conflicting conclusions reached in Delvallie, Sealey, and Daniel ^[2]

{¶ 6} The Reagan Tokes Law offers the chance for Ohio to return to an incentive-based, rehabilitative prison process for serious offenders. See, e.g., Siegel, Reagan Tokes Act seeks to undo years of definitive sentencing in Ohio, The Columbus Dispatch (Oct. 25, 2017) (quoting State Senator Kevin Bacon describing the intent behind passing the Reagan Tokes Law), available at https://web.archive.org/web/20210818163121/https://www.timesreporter.com/n ews/20171025/reagan-tokes-act-seeks-to-undo-years-of-definitive-sentencing-in-ohio (last visited Jan. 22, 2022).^[3] That process can incentivize socially acceptable conduct by offering inmates a tangible way to reduce their overall sentences through buying into the social contract - a tacit agreement to live together in accordance to the socially established rules of behavior. See id. The Reagan Tokes Law offers inmates the opportunity to demonstrate their willingness to reform and in the process to receive lesser sentences based on their behavior, instead of serving definite terms. Reagan Tokes case spurs Ohio legislation to change incarceration guidelines, TrueCrimeDaily.com (May 14, 2018) ("'The data and evidence has found that the indefinite sentencing worked to actually help rehabilitate these offenders because they are more incentivized to participate in programming and to not face longer prison terms,' said Ohio State Rep. Kristin Boggs."), available at https://web.archive.org/web/20210818164113/https://truecrimedaily.com/2018/ 05/14/reagan-tokes-case-spurs-ohio-legislation-to-change-incarceration-guidelines/ (last visited Jan. 22, 2022). These changes provide the inmate the opportunity to reduce the overall prison term below what would be served under the pre-S.B. 201 definite sentencing structure. Id. Under the pre-S.B. 201 definite sentencing law, Ohio focused on the punitive nature of the imprisonment system. The Reagan Tokes Law offers an albeit small, but beginning, step away from that draconian approach.

{¶ 7} Back in 1974 when Ohio revamped the Revised Code, there were no definite sentences. First-degree felony offenses were imposed using a range - a minimum of 4, 5, 6, or 7 years to a maximum of 25 years. https://www.supremecourt.ohio.gov/Boards/Sentencing/Materials/2017/May/fel onyRangeSB2.pdf. Second-degree felony offenses had a minimum of 2, 3, 4, or 5 to the maximum of 15 years. Id. Third-degree felony offenses had a range of 1, 1-1/2, 2, or 3 years to 10 years, and fourth-degree felony offenses had a range of 1/2, 1, 1-1/2 years, or 2 years up to 5 years. Id., see also H.B. 511. Every inmate was given an indefinite range with a parole eligibility date. Inmates ages 18-25 were given what was termed as "reformatory" time, while adults over 25 were given "penitentiary" time. For example, a reformatory inmate serving an indefinite 5-year sentence would become parole eligible after serving 1 year and 10 months. A penitentiary inmate with the same 5-year indefinite sentence would be eligible after serving 2 full years.

{¶ 8} Definite sentences did not exist in Ohio until S.B. 199, effective July 1, 1983. That enactment created two nonmandatory determinate prison sentence ranges for low-level nonviolent felons, and a three-year mandatory sentence for using or possessing a gun while committing a felony. The overall result was eight new sentencing ranges added to the original four ranges from the 1974 criminal code.

{¶ 9} Assessing and crediting behavior in prison was very much a part of both H.B. 511 and S.B. 199 and the parole process in general. Inmates doing reformatory time could get up to 12 days per month, prorated for each month, if they obeyed the rules of the institution. Good time likewise reduced the time for penitentiary inmates by up to 8 days per month, prorated for each month, if they obeyed the rules of the institution.

{¶ 10} The so-called truth-in-sentencing scheme known as S.B. 2, became effective July 1, 1996. S.B. 2 brought...