State v. Simmons

• Decision Date: 25 March 2021
• Docket Number: No. 109476,109476
• Citation: 169 N.E.3d 728
• Parties: STATE of Ohio, Plaintiff-Appellant, v. Danan SIMMONS, Jr., Defendant-Appellee.
• Court: Ohio Court of Appeals

169 N.E.3d 728

STATE of Ohio, Plaintiff-Appellant,

v.Danan SIMMONS, Jr., Defendant-Appellee.

No. 109476

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

RELEASED AND JOURNALIZED: March 25, 2021

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellant.

Cullen Sweeney, Cuyahoga County Public Defender, for appellee.

JOURNAL ENTRY AND OPINION

MICHELLE J. SHEEHAN, J.:

{¶ 1} The trial court did not impose an indefinite sentence per Am.Sub.S.B. 201, the Reagan Tokes Law and the state of Ohio appeals. Because the provisions requiring a sentencing court to impose an indefinite sentence under the Reagan Tokes Law are constitutional, we reverse the sentence imposed and remand this matter for resentencing.

I. PROCEDURAL HISTORY AND FACTS

{¶ 2} Danan Simmons, Jr., appellee, was indicted on March 27, 2019, for the offenses of having weapons while under disability, drug trafficking, two counts of drug possession, and possession of criminal tools. The charges included various firearm and forfeiture specifications. On December 17, 2019, Simmons entered guilty pleas to one count of having weapons while under disability in violation of R.C. 2923.13, a felony of the third degree; one count of drug trafficking in violation of R.C. 2925.03 with a one-year firearm specification pursuant to R.C. 2941.141, a felony of the second degree; and one count of drug possession in violation of R.C. 2925.11, a felony of the fifth degree.

{¶ 3} On January 30, 2020, at the sentencing hearing, the trial court found the Reagan Tokes Law, Am.Sub. S.B. 201, 2018 Ohio Laws 157, unconstitutional. Specifically, by adopting an opinion from the Hamilton County Court of Common Pleas, State v. Oneal , Hamilton C.P. No. B 1903562, 2019 WL 7670061 (Nov. 20, 2019), the trial court held that the indefinite sentencing scheme enacted under the Reagan Tokes Law violated the constitutional doctrine providing for the separation of powers. The opinion further holds that the administrative process that allows the Department of Rehabilitation and Correction ("DRC") to keep an offender incarcerated past the stated minimum sentence deprives the offender of procedural due process.

{¶ 4} After determining that the Reagan Tokes Law was unconstitutional, the trial court sentenced appellee to an aggregate sentence of five years in prison: one year on the firearm specification to be served consecutively to a prison sentence of four years on the count of drug trafficking, a concurrent prison sentence of 18 months in prison for having a weapon while under disability, and a concurrent prison sentence of nine months for drug possession.

{¶ 5} In this appeal, the state raises one assignment of error:

The trial court erred in finding the indefinite sentence required under S.B. 201 to be unconstitutional.

II. LAW AND ARGUMENT

A. THE APPEAL IS RIPE FOR REVIEW

{¶ 6} The Ohio Revised Code provides the state the right to appeal a sentence if it is contrary to law. R.C. 2953.08(B)(2). A sentence that fails to impose a mandatory provision is contrary to law. State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 21, State v. Bass , 10th Dist. Franklin Nos. 14AP-992 and 14AP-993, 2015-Ohio-3979, 2015 WL 5703265, ¶ 21, State v. Robinson, 8th Dist. Cuyahoga No. 85207, 2005-Ohio-5132, 2005 WL 2386608, ¶ 27.

B. STANDARD OF REVIEW FOR CONSTITUTIONALITY OF A STATUTE

{¶ 7} In this case, by adopting the Oneal opinion, the trial court found the Reagan Tokes Law unconstitutional because it violates the doctrine of separation of powers and the constitutional requirements of due process. In reviewing a claim of unconstitutionality, this court is to give a presumption of constitutionality to the statute enacted by the legislature. Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25. To find that a statute is unconstitutional, courts must determine " ‘beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.’ " State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, ¶ 10, quoting, State ex rel. Dickman v. Defenbacher , 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. Further, we are to resolve doubts regarding the constitutionality in favor of the statute. State v. Mason , 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, ¶ 5, quoting State v. Gill , 63 Ohio St.3d 53, 55, 584 N.E.2d 1200 (1992).

C. THE REAGAN TOKES LAW IS CONSTITUTIONAL BASED ON ARGUMENTS RAISED ON APPEAL

1. RELEVANT PROVISIONS OF REAGAN TOKES LAW

{¶ 8} The Reagan Tokes Law, effective March 22, 2019, amended 50 sections of the revised code and adopted four new sections. R.C. 2901.011. In general, the law provides that first-degree and second-degree felonies not already carrying a life sentence are subject to an indefinite sentencing scheme. Specifically, when imposing prison terms for offenders with first- or second-degree felony offenses, sentencing courts are to impose an indefinite sentence, imposing a stated minimum sentence as provided in R.C. 2929.14(A)(2)(a) and an accompanying maximum term as provided in R.C. 2929.144.

{¶ 9} Once an offender serves the required minimum term of incarceration, the law provides that the offender is presumed to be released. R.C. 2967.271(B). However, the presumption of release may be rebutted by the DRC and the DRC may maintain the offender in custody for a reasonable period of time, not to exceed the maximum term of incarceration imposed by the sentencing court. R.C. 2967.271(D). The statute provides that the presumption of release may be overcome only if the DRC holds a hearing and finds that one or more of the following apply:

(1) (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, [and]

(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.

R.C. 2967.271(C)(1), (2), and (3).

2. REAGAN TOKES LAW DOES NOT VIOLATE THE DOCTRINE OF SEPARATION OF POWERS

{¶ 10} In adopting the Oneal opinion, the trial court implicitly determined that the Reagan Tokes Law violates the separation of powers. Simmons argues that a separation of powers violation occurs because the Reagan Tokes Law creates a sentencing system in which the DRC imposes additional time to be served by the offender.¹ However, under the Reagan Tokes Law, the sentencing court imposes both a minimum and maximum term of incarceration and prohibits the DRC from maintaining custody of the offender past the maximum sentence imposed. This system does not violate the doctrine of separation of powers nor does it allow for the DRC to impose greater sanctions than those imposed by the sentencing court. State v. Wilburn , 8th Dist. Cuyahoga, 2021-Ohio-578, ––– N.E.3d ––––, ¶ 27

{¶ 11} Under our form of government, the separation-of-powers doctrine "recognizes that the executive, legislative, and judicial branches of our government have their own unique powers and duties that are separate and apart from the others."

State v. Thompson , 92 Ohio St.3d 584, 586, 752 N.E.2d 276 (2001). As to the separation-of-powers doctrine, the legislature has the preeminent role in determining sentencing schemes. "[I]t is among the admitted legislative powers to define crimes; to prescribe the mode of procedure for their punishment; to fix by law the kind and manner of punishment, and to provide such disciplinary regulations for prisoners, not in conflict with the fundamental law, as the legislature deems best." State ex rel. Atty. Gen. v. Peters , 43 Ohio St. 629, 647, 4 N.E. 81 (1885).

{¶ 12} The Reagan Tokes Law prescribes that a sentencing court decides a minimum and maximum term of incarceration for offenders committing qualifying offenses. This sentencing scheme is not functionally different than a sentencing court imposing an indefinite sentence in which parole is a possibility. See State v. Cochran , 5th Dist. Licking No. 2019 CA 00122, 2020-Ohio-5329, 2020 WL 6779731, ¶ 38 (Gwinn, J., dissenting) (explaining indefinite sentencing schemes in Ohio). Once the sentence is imposed, the judicial function of sentencing is complete. The DRC, as part of the executive branch of government, is vested with "absolute" discretion over parole matters. Woods v. Telb , 89 Ohio St.3d 504, 512, 733 N.E.2d 1103 (2000), citing Peters .

{¶ 13} The Oneal decision adopted by the trial court relied heavily on State ex rel. Bray v. Russell , 89 Ohio St.3d 132, 729 N.E.2d 359 (2000), to find the Reagan Tokes Law unconstitutional. In Bray , the Ohio Supreme Court found that former R.C. 2967.11, which allowed the DRC to extend the time served by an offender past the maximum term imposed by the court to be unconstitutional. The court stated that "[i]n our constitutional scheme, the judicial power resides in the judicial branch. * * * The determination of guilt in a criminal matter and the sentencing of a defendant convicted of a crime are solely the province of the judiciary." Id. at 136, 729...