State v. Moore

• Decision Date: 16 March 2022
• Docket Number: CT2021-0025
• Citation: 2022 Ohio 845
• Court: Ohio Court of Appeals
• Parties: STATE OF OHIO, Plaintiff - Appellee v. JUSTIN MOORE, Defendant-Appellant

2022-Ohio-845

STATE OF OHIO, Plaintiff - Appellee
v.
JUSTIN MOORE, Defendant-Appellant

No. CT2021-0025

Court of Appeals of Ohio, Fifth District, Muskingum

March 16, 2022

Appeal from the Muskingum County Court of Common Pleas, Case No. CR2020-0375

For Plaintiff-Appellee

RON WELCH

Prosecuting Attorney

Muskingum County

By: JOHN CONNOR DEVER

Assistant Prosecuting Attorney

For Defendant-Appellant

CHRIS BRIGDON

JUDGES: Hon. Craig R. Baldwin, P.J. Hon. W. Scott Gwin, J. Hon. John W. Wise, J.

OPINION

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Baldwin, J.

{¶1} Appellant, Justin Moore, appeals from the decision of the Muskingum County Court of Common Pleas sentencing him to an aggregate minimum prison term of eight years and an aggregate indefinite maximum prison term of twelve years. Appellee is the State of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶2} Moore appeared before the Muskingum County Court of Common Pleas on March 1, 2021 and entered a plea of guilty to two counts of Pandering Obscenity Involving a Minor, a felony of the second degree, in violation of R.C. 2907.321(A)(1). On April 19, 2021 he appeared before the court for sentencing and he was ordered to serve a sentence of a minimum prison term of eight years and an indefinite maximum prison term of twelve years for one count and a stated prison term of eight years for the other count with the periods of incarceration being served concurrently for an aggregate minimum prison term of eight years and an aggregate indefinite maximum prison term of twelve years.

{¶3} The record contains no evidence that Moore requested that the court merge the offenses prior to sentencing. Instead the parties stipulated that the counts did not merge. (Transcript, Sentencing Hearing, Apr. 19, 2021, p. 5, lines 1-2).

{¶4} Moore filed an appeal and submitted three assignments of error:

{¶5} "I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODES SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO."

{¶6} "II. THE TRIAL COURT ERRED BY FAILING TO MERGE MOORE'S OFFENSES."

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{¶7} "III. MOORE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."

ANALYSIS

I.

{¶8} Moore's first assignment of error challenges the constitutionality of the Regan Tokes Act which codified hybrid indefinite prison terms for first and second degree felonies. Moore challenges the presumptive release feature of the act, R.C. 2967.271, advancing several arguments including that it violates his constitutional rights to trial by jury and due process of law, and further violates the constitutional requirement of separation of powers and equal protection.

{¶9} R.C. 2967.271 provides in relevant part:

(B)When an offender is sentenced to a non-life felony indefinite prison term, there shall be a presumption that the person shall be released from service of the sentence on the expiration of the offender's minimum prison term or on the offender's presumptive earned early release date whichever is earlier

(C) The presumption established under division (B) of this section is a rebuttable presumption that the department of rehabilitation and correction may rebut as provided in this division. Unless the department rebuts the presumption, the offender shall be released from service of the sentence on the expiration of the offender's minimum prison term or on the offender's presumptive earned early release date, whichever is earlier. The department may rebut the presumption only if the department determines, at a hearing, that one or more of the following applies:

(1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply:

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(a) During the offender's incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated.

(b) The offender's behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society.

(2) Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the date of the hearing.

(3) At the time of the hearing, the offender is classified by the department as a security level three, four, or five, or at a higher security level.

(D)(1) If the department of rehabilitation and correction, pursuant to division (C) of this section, rebuts the presumption established under division (B) of this section, the department may maintain the offender's incarceration in a state correctional institution under the sentence after the expiration of the offender's minimum prison term or, for offenders who have a presumptive earned early release date, after the offender's presumptive earned early release date. The department may maintain the offender's incarceration under this division for an additional period of incarceration determined by the department. The additional period of incarceration shall be a reasonable period determined by the department, shall be specified by the department, and shall not exceed the offender's maximum prison term.

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(2) If the department maintains an offender's incarceration for an additional period under division (D)(1) of this section, there shall be a presumption that the offender shall be released on the expiration of the offender's minimum prison term plus the additional period of incarceration specified by the department as provided under that division or, for offenders who have a presumptive earned early release date, on the expiration of the additional period of incarceration to be served after the offender's presumptive earned early release date that is specified by the department as provided under that division. The presumption is a rebuttable presumption that the department may rebut, but only if it conducts a hearing and makes the determinations specified in division (C) of this section, and if the department rebuts the presumption, it may maintain the offender's incarceration in a state correctional institution for an additional period determined as specified in division (D)(1) of this section. Unless the department rebuts the presumption at the hearing, the offender shall be released from service of the sentence on the expiration of the offender's minimum prison term plus the additional period of incarceration specified by the department or, for offenders who have a presumptive earned early release date, on the expiration of the additional period of incarceration to be served after the offender's presumptive earned early release date as specified by the department.

The provisions of this division regarding the establishment of a rebuttable presumption, the department's rebuttal of the presumption, and the department's maintenance of an offender's incarceration for an additional period of incarceration apply, and may be utilized more than one time, during the remainder of the offender's incarceration. If the offender has not been released under division (C) of this section or this division prior to the expiration of the offender's maximum

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prison term imposed as part of the offender's non-life felony indefinite prison term, the offender shall be released upon the expiration of that maximum term.

{¶10} Appellant argues these portions of...