State v. Gamble

• Decision Date: 27 May 2021
• Docket Number: No. 109613,109613
• Court: Ohio Court of Appeals
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Adolph N. GAMBLE, Defendant-Appellant.

173 N.E.3d 132

STATE of Ohio, Plaintiff-Appellee,

v.Adolph N. GAMBLE, Defendant-Appellant.

No. 109613

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: May 27, 2021

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James Gallagher, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Francis Cavallo, Assistant Public Defender, for appellant.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, J.:

{¶ 1} Adolph Gamble appeals from his indefinite, non-life felony sentence imposed under R.C. 2929.144.¹ For the following reasons, we affirm.

{¶ 2} Gamble was indicted on seven counts, including trafficking, drug possession, having weapons while under a disability, and possessing criminal tools. He ultimately pleaded guilty to one count of trafficking, a second-degree felony qualifying offense under R.C. 2929.144(A), with a one-year firearm specification, and one count of having weapons while under a disability, a felony of the third degree. The remaining counts were nolled by the state. Pursuant to S.B. 201, the Reagan Tokes Law, Gamble was sentenced to serve an indefinite, non-life sentence for a minimum of two years, and a maximum of three years — along with a mandatory, one-year term on the firearm specification. The resulting aggregate term of imprisonment is a minimum of three years and a maximum of four years.

{¶ 3} In this appeal, Gamble presents a single assignment of error in which he broadly claims that the Reagan Tokes Law violates the Constitutions of the United States and the state of Ohio. Since our review of the constitutional validity of laws is limited to the codified statutes, we must review the statutory language as enacted. Thus, according to Gamble, R.C. 2929.14 and 2929.144, which authorize an indefinite, minimum and maximum term of imprisonment for first- and second-degree qualifying felonies, as amended under the Reagan Tokes Law, violate his right to a jury trial because the Ohio Department of Rehabilitation and Correction ("ODRC") determines the length of his "extended" sentence based on its independent consideration of factors. Gamble further claims that through R.C. 2967.271, which creates a presumption in favor of Gamble being released upon serving the minimum part of the sentence unless the ODRC takes certain procedural steps to enforce the maximum prison term imposed in the final entry of conviction, the executive branch usurps the judicial authority to determine and impose sentences in violation of the separation-of-powers doctrine.

{¶ 4} There is an overarching issue that appears to permeate every aspect of the constitutional challenge against the statutory sections codified as part of the Reagan Tokes Law. Gamble's claims depend solely on his belief that the ODRC "extends" his prison term under R.C. 2967.271 by imposing an additional term of imprisonment beyond that which was imposed by the sentencing court. As will be discussed in further detail, R.C. 2929.144(B) provides that the sentencing court must determine the maximum term of imprisonment based on a mathematical formula as applied to the minimum term of imprisonment imposed under R.C. 2929.14(A)(1)(a) and (A)(2)(a). The sentencing court must then impose that maximum sentence as part of the final sentence under the unambiguous language of R.C. 2929.144(C) ("The court imposing a prison term on an offender [under R.C. 2929.14(A) ] for a qualifying felony of the first or second degree shall sentence the offender, as part of the sentence, to the maximum prison term determined under division (B) of this section" and impose both the minimum and maximum terms in the final entry of conviction.). Thus, Gamble's belief as to the structure of the imposed sentence is contrary to the plain language of the statute. The ODRC does not extend or impose any sentence.

{¶ 5} The trial court imposes the minimum and maximum terms of imprisonment under the unambiguous language of R.C. 2929.144 and 2929.14 (A)(1)(a) and (A)(2)(a). The ODRC simply enforces the sentence imposed and has been delegated the responsibility over the release determinations under R.C. 2967.271 similar to the executive branch's authority to release offenders from sentences under Ohio's parole system. R.C. 2967.12 and 2967.16. The question, therefore, is not whether Gamble's perception of his sentence infringes on Gamble's constitutional rights but whether the sentencing law as enacted does. As an intermediate court of review, we cannot lose sight of that.

Ripeness

{¶ 6} The state claims that Gamble's constitutional challenge of the statutory scheme codified under the Reagan Tokes Law is not ripe for review in a direct appeal from the final entry of conviction. However, if a defendant cannot challenge the constitutional validity of the sentence imposed in the final sentencing entry in his direct appeal, the question becomes when and how could the defendant advance that claim. In State v. Wilburn , 8th Dist., 2021-Ohio-578, 168 N.E.3d 873, ¶ 18, it was recently concluded that the record in cases such as Gamble's is sufficiently developed to allow courts to fairly adjudicate the facial challenges questioning the constitutional validity of the Reagan Tokes Law in general. We need not stray from that conclusion, but we also need not rest on Wilburn alone.

{¶ 7} First and foremost is the aforementioned misconception with respect to the newly enacted sentencing scheme in the Reagan Tokes Law that weighs on the ripeness issue. The ODRC does not extend or impose an additional sentence on the offender — under R.C. 2929.14 and 2929.144, the trial court imposes a maximum term of imprisonment and a minimum term that carries a presumption in favor of release. R.C. 2929.14(C). After the minimum term is served, the ODRC may, under certain conditions not necessary to review here, enforce the remainder of the term imposed by the sentencing court, but there remains a presumption of release that the ODRC must overcome. R.C. 2967.271(B). The executive branch is not extending the defendant's prison term or imposing its own sentence for violations that occur while the offender is serving the imposed term of imprisonment.

{¶ 8} The parallels between the indefinite non-life felony sentencing structure imposed under R.C. 2929.144 and the indefinite life felony sentences under R.C. 2929.02 are instructive. Under the sentencing structure enacted under the latter section, an offender is sentenced to a term of life with the possibility of parole after a set time period. After the minimum term is reached, the executive branch is tasked with reviewing the offender's status to release him on parole or from the sentence altogether. R.C. 2967.12 ; 2967.16. The executive branch is not considered to be decreasing the imposed sentence when granting an offender parole or extending the term of imprisonment when denying parole, as a violation of the separation-of-powers doctrine. For that matter, the executive branch is not deemed to be interfering with the trial court's sentencing authority when releasing offenders from their sentences after successful completion of the terms of parole under R.C. 2967.16.

{¶ 9} R.C. 2929.144 simply flips the principle underlying parole, which essentially presumes enforcement of the life tail over release through parole, contrasted with non-life indefinite sentencing under the Reagan Tokes Law, which presumes a release after the minimum term. Under R.C. 2929.144, the trial court imposes a maximum term, three years in this case, with the presumption that the ODRC will release the offender from the sentence after two years, similar to the system enacted under R.C. 2967.16. Thus, the ODRC enforces the sentence imposed by the trial court, and its review is limited to determining the offender's release date — which is no different than the executive branch's determination of an offender's release date under the parole structure for indefinite life sentences. The ODRC's decision to release the offender under the provisions of the statute is no different than the decision to parole an offender serving a sentence under R.C. 2929.02 ; the executive agency is simply executing the sentence imposed and exercising the authority delegated to it to determine the offender's status of continued incarceration under the sentence imposed by the sentencing court.

{¶ 10} Within this framework, the question becomes how an offender would challenge the constitutional validity, a facial challenge of the sentencing structure, outside of the direct appeal. The state does not hazard a guess as to how an offender could appeal the ODRC's decision to invoke the remaining portion of the offender's maximum term under R.C. 2967.271. Under division (E) of that statutory section, the ODRC conducts the hearings required to determine the offender's status under his non-life indefinite sentence under the same notice procedures outlined under R.C. 2967.12 dealing with parole eligibility.

{¶ 11} Traditionally in Ohio, there is no right to appeal release determinations by the ODRC under R.C. 2967.12. Ridenour v. Randle , 96 Ohio St.3d 90, 2002-Ohio-3606, 771 N.E.2d 859, ¶ 8. Since R.C. 2967.271(E) expressly adopts the procedures of R.C. 2967.12, it is logical to conclude that the release determination under R.C. 2967.271 will likewise not be directly appealable. More to the point, it has long been held that offenders cannot challenge the constitutionality of a sentencing provision as being facially suspect, especially that of parole, through a writ of habeas corpus. Rodgers v. Capots , 67 Ohio St.3d 435, 436, 619 N.E.2d 685 (1993), citing Stahl v. Shoemaker , 50 Ohio St.2d 351, 354, 364 N.E.2d 286 (1977). According to the Ohio Supreme Court, another remedy must be used, but there are no remedies available to an offender to challenge the constitutionality of the Reagan Tokes sentencing law during the offender's service of the prison term. Stahl at...