State v. Ratliff

• Decision Date: 22 April 2022
• Docket Number: 21CA000016
• Citation: 190 N.E.3d 684
• Parties: STATE of Ohio, Plaintiff - Appellee v. David M. RATLIFF, Defendant - Appellant
• Court: Ohio Court of Appeals

190 N.E.3d 684

STATE of Ohio, Plaintiff - Appellee

v.David M. RATLIFF, Defendant - Appellant

No. 21CA000016

Court of Appeals of Ohio, Fifth District, Guernsey County.

DATE OF JUDGMENT: April 22, 2022

JASON R. FARLEY, Guernsey County Prosecutor's Office, Prosecuting Attorney, 627 Wheeling Avenue, Cambridge, Ohio 43725, For Plaintiff-Appellee.

R. JESSICA MANUNGO, Office of the Ohio Public Defender, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, For Defendant-Appellant.

JUDGES: Hon. Earle E. Wise, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.

OPINION

Baldwin, J. {¶1} Defendant-appellant David Ratliff appeals his sentence from the Guernsey County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On November 25, 2020, the Guernsey County Grand Jury indicted appellant on one count of aggravated possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(d), a felony of the first degree. At his arraignment on December 17, 2020, appellant entered a plea of not guilty to the charge.

{¶3} Thereafter, on June 11, 2021, appellant withdrew his former not guilty plea and entered a plea of no contest to the sole count in the indictment and was found guilty of the same. As memorialized in a Judgment Entry filed on the same day, appellant was sentenced to an indefinite prison term of a minimum of seven (7) years (all mandatory) and a maximum prison term of ten and a half (10 ½) years. Appellant also was ordered to pay court costs and his driver's license was suspended for a period of five (5) years. The trial court waived the mandatory fine after finding appellant to be indigent.

{¶4} Appellant now appeals, raising the following assignments of error on appeal:

{¶5} "I. BECAUSE THE REAGAN TOKES ACT VIOLATES THE OHIO AND UNITED STATES CONSTITUTIONS, DAVID RATLIFF'S SENTENCE IS CONTRARY TO LAW. R.C. 2953.08(G)(2) ; SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION; ARTICLES I, II AND III OF THE UNITED STATES CONSTITUTION ; ARTICLE I, SECTIONS 5, 10 AND 16 OF THE OHIO CONSTITUTION ; CITY OF S. EUCLID V. JEMISON , 28 OHIO ST.3D 157, 158-59, 503 N.E.2D 136 (1986)."

{¶6} "II. MR. RATLIFF RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN TRIAL COUNSEL FAILED TO MOVE FOR WAIVER OF COURT COSTS AT SENTENCING. STRICKLAND V. WASHINGTON , 466 U.S. 668, 104 S.Ct. 2052, 80 L.ED. 2D 674 (1984) ; R.C. 2947.23 ; STATE V. DAVIS , 159 OHIO ST.3D 31, 2020-OHIO-309, 146 N.E.3D 560 ; STATE V. SPRINGER , 8TH DIST., CUYAHOGA NO. 104649, 2017-OHIO-8861, 2017 WL 6055504."

I

{¶7} Appellant, in his first assignment of error, argues that his sentence is contrary to law because the Reagan Tokes Act violates the Ohio and United States Constitutions by violating a person's constitutional right to trial by jury, separation of powers, due process and equal protection. We disagree.

{¶8} As an initial matter, we note that the Ohio Supreme Court recently held that the constitutionality of the Reagan Tokes Act was ripe for review on the defendant's direct appeal of his or her conviction and prison sentence. See State v. Maddox, 2022-Ohio-764, ––– N.E.3d ––––.

The Reagan Tokes Law

{¶9} R.C. 2967.271, which is a part of the "Reagan Tokes Law" allows the Ohio Department of Rehabilitation and Correction ("DRC") to administratively extend an incarcerated person's prison term beyond his or her minimum prison term or presumptive earned early-release date, but not beyond his or her maximum prison term. The Reagan Tokes Law (S.B. 201) was enacted in 2018 and became effective on March 22, 2019. The Reagan Tokes Law, "significantly altered the sentencing structure for many of Ohio's most serious felonies’ by implementing an indefinite sentencing system for those non-life felonies of the first and second degree, committed on or after the effective date." State v. Polley , 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, 2020 WL 3032862, ¶ 5, fn. 1.

{¶10} As with any statute enacted by the General Assembly, the Reagan Tokes Law is entitled to a "strong presumption of constitutionality." State v. Romage , 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. Thus, "if at all possible, statutes must be construed in conformity with the Ohio and the United States Constitutions." State v. Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). A party challenging the constitutionality of a statute bears the burden of proving that it is unconstitutional beyond a reasonable doubt. State v. Bloomer , 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 41, citing State v. Ferguson , 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 12.

{¶11} The power to define criminal offenses and prescribe punishment is vested in the legislative branch of government and courts may only impose sentences as provided by statute. Whalen v. United States , 445 U.S. 684, 689, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) ; Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

{¶12} In the case at bar, the legislature has authorized as a sentence for a felony of the first degree:

{¶13} (1)(a) For a felony of the first degree committed on or after the effective date of this amendment, the prison term shall be an indefinite prison term with a stated minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or eleven years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code, except that if the section that criminalizes the conduct constituting the felony specifies a different minimum term or penalty for the offense, the specific language of that section shall control in determining the minimum term or otherwise sentencing the offender but the minimum term or sentence imposed under that specific language shall be considered for purposes of the Revised Code as if it had been imposed under this division.

{¶14} R.C. 2929.14(A)(1)(a).

{¶15} Indefinite sentences are not new to Ohio. In fact, the preSB2 sentence for a felony of the first degree as charged in this case the defendant could have received an indeterminate minimum sentence of five, six, seven, eight, nine or ten years up to a maximum of twenty-five years. See, State v. Davis, 9th Dist. Summit No. 13092, 1987 WL 25743 (Nov. 25, 1987), citing former R.C. 2929.11. What is different from prior law regarding indefinite sentences is that the Reagan Tokes Law has created a presumptive release date.

{¶16} The Reagan Tokes Law requires that a court imposing a prison term under R.C. 2929.14(A)(1)(a) or (2)(a) for a first or second degree felony committed on or after March 22, 2019, impose a minimum prison term under that provision and a maximum prison term determined under R.C. 2929.144(B) ; R.C. 2929.144(C). Further, under the Reagan Tokes Law, there is a presumption that 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." R.C. 2967.271(B) (emphasis added). A presumptive earned early release date is a date determined under procedures described in R.C. 2967.271(F), which allow the sentencing court to reduce the minimum prison term under certain circumstances. R.C. 2967.271(A)(2). The DRC may rebut the presumption if it determines at a hearing that one or more statutorily numerated factors apply. R.C. 2967.271(C). If DRC rebuts the presumption, it may maintain the offender's incarceration after the expiration of the minimum prison term or presumptive earned early release date for a reasonable period of time, determined and specified by DRC that "shall not exceed the offender's maximum prison term." R.C. 2967.271(D)(1).

{¶17} Under the Reagan Tokes Law, the judge imposes both a minimum and a maximum sentence. Judicial fact-finding is not required. In Ohio, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124 paragraphs 1 and 11. The Department of Rehabilitation and Correction ("DRC") is not permitted to extend a sentence imposed by the trial court beyond the maximum sentence imposed by the trial court.

An incarcerated individual does not have a constitutional right to parole or release before serving his entire sentence.

{¶18} An inmate has no constitutional right to parole release before the expiration of his sentence. Greenholtz v. Inmates of the Nebraska Penal & Corr. Complex , 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The Ohio Adult Parole Authority has "wide-ranging discretion in parole matters." Layne v. Ohio Adult Parole Auth. , 97 Ohio St.3d 456, 2002-Ohio-6719, 780 N.E.2d 548, ¶ 28.

{¶19} The Supreme Court has made it clear that a mere unilateral hope or expectation of release on parole is not enough to constitute a protected liberty interest; the prisoner "must, instead, have a legitimate claim of entitlement to it." Greenholtz, 422 U.S. at 7, 99 S.Ct. at 2104 (quoting Board of Regents v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) ) (emphasis supplied). Moreover, only state law can create this "legitimate claim of entitlement"; the federal constitution protects such claims, but does not create them. "[T]here is no constitutional or inherent right of a convicted person to be conditionally released [i.e., released on parole] before the expiration of a valid sentence." Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104. Accord, Inmates of Orient Correctional Institute v. Ohio State Parole Board, 929 F.2d 233, 235 (6th Cir. 1991).

{¶20} However, if state law entitles an inmate to release on parole that entitlement is a liberty interest that is not to be taken away without due process. See Greenholtz...