State v. Delvallie

173 N.E.3d 544

STATE of Ohio, Plaintiff-Appellee,

v.Bradley DELVALLIE, Defendant-Appellant.

No. 109315

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

RELEASED AND JOURNALIZED: May 27, 2021

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, Catherine Coleman and Daniel Van, Assistant Prosecuting Attorneys, for appellee.

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

JOURNAL ENTRY AND OPINION

ANITA LASTER MAYS, P.J.:

I. Introduction

{¶ 1} On November 26, 2019, defendant-appellant Bradley Delvallie ("Delvallie") pleaded guilty and was sentenced on one count of aggravated robbery, R.C. 2911.01(A)(1), a first-degree felony. Delvallie's sole challenge on appeal is to the constitutionality of his sentence imposed pursuant to S.B. 201 known as the Reagan Tokes Law. Delvallie assigns as error:

As amended by the Reagan Tokes Law, the Ohio Revised Code's sentences for first-and-second-degree qualifying felonies violate the Constitutions of the United States and the State of Ohio.

II. Reagan Tokes Law

{¶ 2} This court explained the sentencing impact of the law in State v. Dames , 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991, 2020 WL 6193967 :

Senate Bill 201, commonly known as the Reagan Tokes Law, became effective on March 22, 2019. The statute returns an indefinite sentencing scheme to Ohio for certain qualifying offenses. All first-and second-degree felonies committed after March 22, 2019, that are not already carrying a life sentence are considered qualifying offenses. When confronting a nonconsecutive or concurrent sentence, the Reagan Tokes Law first requires the sentencing judge to impose an indefinite sentence with a minimum term selected by the judge. The judge must also impose a maximum term predetermined pursuant to a statutory formula set forth in R.C. 2929.144. The maximum term is 50% of the minimum term plus the minimum term. An offender sentenced under Reagan Tokes has a rebuttable presumption of release at the conclusion of his minimum term. However, at the conclusion of his minimum term, the Ohio Department of Rehabilitation and Correction ("ODRC"), must hold a hearing and may rebut the presumption of release.

At the hearing, the ODRC must make specific findings to justify keeping the offender beyond the presumptive release date up to the maximum sentence. In the instant case, Dames has a minimum sentence of seven years, and a maximum sentence of ten and a half years, the ODRC may make specific findings and hold Dames up to three and a half years more than his minimum term until the conclusion of the maximum term.

Pursuant to R.C. 2967.271(C), the ODRC must find that one of the following three conditions applies in order to hold an offender beyond the minimum term:

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

(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. 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.

Id. at ¶ 2-4.

{¶ 3} In addition,

[w]hile the ODRC may exercise its discretion to keep an offender imprisoned, it also may exercise its discretion to demonstrate that the offender merits early release, as long as the offender is not disqualified due to his [or her] security level. Under the Reagan Tokes Law, the ODRC must draft administrative rules that credit inmates who demonstrate appropriate conduct with "earned reduction of minimum prison term" ("ERMPT"). ERMPT can reduce the minimum term between 5 and 15%. There is a rebuttable presumption that the offender gets the ERMPT credit once the ODRC requests it for the inmate.

The trial court will hold a hearing where the victim of the crime and the state of Ohio can present arguments that the offender should stay in prison. The trial court must then make findings to rebut the presumption; otherwise the ERMPT is considered earned.

Id. at ¶ 5-6.

III. Standard of Review

{¶ 4} It has been established that:

There are two primary ways to challenge the constitutionality of a statute: by facial challenge or through an "as-applied" challenge. Harrold v. Collier , 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. In a facial challenge to the constitutionality of a statute, the claimant must show that there are no set of facts under which the challenged statute is constitutional. An as-applied challenge alleges that a particular application of a statute is unconstitutional. "Facial challenges present a higher hurdle than as-applied challenges because, in general, for a statute to be facially unconstitutional, it must be unconstitutional in all applications." State v. Romage , 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7, citing Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership , 123 Ohio St.3d 278, 2009-Ohio-5030, 915 N.E.2d 1205, ¶ 13.

Derrico v. State , 8th Dist. Cuyahoga No. 107192, 2019-Ohio-1767, 2019 WL 2060360, ¶ 17.

{¶ 5} "The interpretation of the constitutionality of a statute presents a question of law." In re Special Docket No. 73958 , 8th Dist. Cuyahoga Nos. 87777 and 87816, 2008-Ohio-4444, 2008 WL 4068212, ¶ 11, citing Andreyko v. Cincinnati , 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025 (1st Dist.). " ‘Questions of law are reviewed de novo, independently and without deference to the trial court's decision.’ " In re Special Docket at id. , quoting Andreyko at 112, 2003 -Ohio- 2759, 791 N.E.2d 1025.

{¶ 6} Additionally,

"[a] regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality" and "before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible."

In re Special Docket at ¶ 12, quoting State ex rel. Dickman v. Defenbacher , 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.

{¶ 7} "Moreover, the presumption of validity cannot be overcome unless it appears that there is a clear conflict between the legislation in question and some particular provision or provisions of the Constitution." In re Special Docket at ¶ 13, citing Xenia v. Schmidt , 101 Ohio St. 437, 130 N.E. 24 (1920), paragraph two of the syllabus.

IV. Discussion

{¶ 8} Delvallie was sentenced as follows:

The court imposes a prison sentence at the Lorain Correctional Institution of 3 year(s). The court imposes a minimum prison term of 3 year(s) and a maximum prison term of 4.5 year(s). The total stated prison term is a total of 3 to 4.5 years at the Lorain Correctional Institution. Count 1: F[elony] 1, an indefinite minimum prison term of 3 year(s), a maximum term of 4.5 years.

The court has notified the defendant that pursuant to R.C. 2929.19(B)(2)(c), it is rebuttably presumed that the defendant will be released from service of the sentence on the expiration of the aggregate minimum prison term imposed (and after the service of the specification) or presumptive early release date, whichever is earlier. That the Department of Rehabilitation and Correction may rebut the presumption if it makes specified determinations at a hearing regarding offender's conduct while confined, threat to society, restrictive housing and/or security classification while confined pursuant to R.C. 2967.271, and may then maintain the defendant's incarceration after the expiration of the aggregate minimum prison term for a reasonable time and may make such determinations more than one time up to the aggregate maximum prison term. The trial court can conduct a hearing and find the early release date is rebutted pursuant to R.C. 2967.271(F)(1).

Nov. 26, 2019 Sentencing Journal Entry. Postrelease control was also imposed with related advisements.

{¶ 9} Delvallie posed objections to the constitutionality of Reagan Tokes Law at the sentencing. Delvallie argues that the law directly impinges multiple state and federal constitutional protections by: (1) delegating to the executive branch the fact-finding necessary to impose a sentence beyond the statutory presumption in violation of the right to trial by jury; and (2) failing to ensure adequate due process prior to imposition of an enhanced sentence.

{¶ 10} Specifically, Delvallie asserts that the following constitutional rights are infringed, ignored, or diluted:

The right to trial by jury as protected by the Sixth Amendment of the United States Constitution and Article I, Section 5 of the Ohio Constitution.

The province of the judiciary pursuant to Article III of the United States Constitution and Section 1, Article IV, of the Ohio Constitution.

The right to due process under the Fourteenth Amendment of the United States Constitution and Article I, Section 16, of the Ohio Constitution.

Inadequate guarantees for a fair hearing

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