State v. Scott

1

2023-Ohio-1091

STATE OF OHIO, Plaintiff-Appellee, v. MATTHEW LARRY SCOTT, Defendant-Appellant.

No. 2022-T-0084

Court of Appeals of Ohio, Eleventh District, Trumbull

March 31, 2023

Criminal Appeal from the Court of Common Pleas Trial Court No. 2019 CR 00650

Judgment Affirmed

Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders Assistant Prosecutor, Administration Building, (For Plaintiff-Appellee).

Mandy J. Gwirtz, Gwirtz Law, LLC, (For Defendant-Appellant).

OPINION

EUGENE A. LUCCI, J.

{¶1} Appellant, Matthew Larry Scott, appeals from the judgment of the Trumbull County Court of Common Pleas, sentencing him to serve an indefinite prison term of four to six years. Appellant challenges the trial court's imposition of the prison term as well as the constitutionality of Ohio's indefinite sentencing statutory scheme, i.e., the Reagan Tokes Act. For the reasons discussed in this opinion, we affirm the trial court.

{¶2} Appellant was indicted on two counts of rape, in violation of R.C. 2907.02(A)(1)(c) and (B), felonies of the first degree and two counts of rape, in violation of R.C. 2907.02(A)(2) and (B), felonies of the first degree. On May 4, 2022, appellant waived his rights and entered a guilty plea to a bill of information on one count of felonious assault, in violation of R.C. 2903.11(A)(1) and (D)(1)(a), a felony of the second degree; and one count of abduction, in violation of R.C. 2905.02(A)(2) and (C), a felony of the third degree. The trial court ordered a presentence investigation report. After a hearing, appellant was sentenced to serve an indefinite prison term of four to six years on the felonious assault count and a prison term of 24 months on the abduction count. The trial court ordered the sentences to be served concurrently. This appeal follows.

{¶3} Appellant assigns five errors. Because the initial four are related, we shall address them together. They provide:

{¶4} "[1.] The defendant-appellant's indeterminate prison sentence of four to six years that was ordered pursuant to the 'Reagan Tokes Act,' AKA Senate Bill 201, must be reversed as the Reagan Tokes Act is unconstitutionally void for vagueness.

{¶5} "[2.] The defendant-appellant's indeterminate prison sentence of four to six years that was ordered pursuant to the 'Reagan Tokes Act,' AKA Senate Bill 201, must be reversed as the Reagan Tokes Act unconstitutionally violates the doctrine of separation of powers.

{¶6} "[3.] The defendant-appellant's indeterminate prison sentence of four to six years that was ordered pursuant to the 'Reagan Tokes Act,' AKA Senate Bill 201, violates his constitutional right to trial by jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 5 of the Ohio Constitution.

{¶7} "[4.] The defendant-appellant's indeterminate prison sentence of four to six years that was ordered pursuant to the 'Reagan Tokes Act,' AKA Senate Bill 201, violates his constitutional rights to fair trial and due process as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 5 & 10 of the Ohio Constitution."

{¶8} Although he does not specifically identify the nature of his constitutional challenges, because his presumptively minimum prison term has yet to be extended, they must be generally construed as facial challenges to the Reagan Tokes Act. See State v. Stenson, 2022-Ohio-2072, 190 N.E.3d 1240, ¶ 31 (6th Dist.) (the "ODRC has not sought to extend [appellant's] term beyond the presumptive minimum sentence * * * [and his] challenge to the Reagan Tokes Law is necessarily a facial challenge"). "A facial challenge to a statute is the most difficult to bring successfully because the challenger must establish that there exists no set of circumstances under which the statute would be valid." (Citation omitted.) Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. "The fact that a statute might operate unconstitutionally under some plausible set of circumstances is insufficient to render it wholly invalid." (Citation omitted.) Id.

{¶9} With this standard in mind, appellant did not raise any objections or constitutional challenges to the statutory scheme in the trial court. "'[T]he question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court.'" State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986). Still, a reviewing court has "discretion to consider a forfeited constitutional challenge to a statute" and "may review the trial court decision for plain error, but we require a showing that but for a plain or obvious error, the outcome of the proceeding would have been otherwise, and reversal must be necessary to correct a manifest miscarriage of justice." (Citations omitted.) Quarterman at ¶ 16. "The burden of demonstrating plain error is on the party asserting it." (Citation omitted.) Id. The Supreme Court of Ohio has also "stated that a forfeited constitutional challenge to a statute is subject to review 'where the rights and interests involved may warrant it.'" Id., quoting In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.

{¶10} This court, in State v. Reffitt, 11th Dist. Lake No. 2021-L-129, 2022-Ohio-3371, previously concluded the Reagan Tokes Act (1) is not unconstitutionally void for vagueness, id. at ¶ 29-42; (2) does not unconstitutionally violate the doctrine of separation of powers, id. at ¶ 44-50; (3) does not violate a defendant's right to a trial by jury, id. at ¶ 52-58; and (4) does not violate a defendant's right to a fair trial and due process, id. at ¶ 60-72. See also State v. Abdullah, 2022-Ohio-3977, 200 N.E. 3d 627, ¶ 62 (11th Dist.). Nevertheless, there are several points raised by appellant's assigned errors that were not directly covered in Reffitt. We shall therefore touch on those points to ensure a comprehensive analysis.

{¶11} First, under his void-for-vagueness challenge, appellant points out that, pursuant to R.C. 2967.271(C)(1)(a), he can be held in prison beyond the presumptive release date if the Department of Rehabilitation and Correction ("DRC") determines he committed a violation of the law that was not prosecuted while he was incarcerated. Appellant reasonably points out the lack of clarity in the phrase "a violation of law that was not prosecuted." If an act goes unprosecuted, it is unclear who determines the action was a violation of law. And, if an act is deemed by a functionary of the DRC (likely the Rules Infraction Board set forth in Ohio Adm.Code 5120-9-08) as an unprosecuted violation, appellant expresses concern that relying upon the act to extend his prison term would essentially negate certain fundamental rights a criminal defendant would ordinarily enjoy, e.g., the right to counsel, right to a jury trial, and the right to compulsory process.

{¶12} In State v. Maddox, 168 Ohio St.3d 292, 2022-Ohio-764, 198 N.E.3d 797, the Supreme Court of Ohio determined the Reagan Tokes Act is fit for facial constitutional challenges on a defendant's direct appeal. Id. at ¶ 19. This is so, in part, "because no additional factual development is necessary * * *" to address the merits of the challenges. Id. The perils appellant identifies, however, relate to the necessity of additional facts which cannot be foreseen at this point. In other words, if and when the concerns appellant raises materialize, he may then raise a constitutional "as-applied" challenge to the statutory scheme. "An as[-]applied challenge of an infraction received under [the Rules Infraction Board] would have to be raised through a separate writ upon imposition of the infraction." Abdullah at ¶ 62. Accordingly, any challenges to the vagueness of the enforcement of the statute by the Rules Infraction Board must be pursued through a petition for an extraordinary writ, such as mandamus or perhaps habeas corpus. Id., citing State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536, ¶ 87 (8th Dist). In this respect, appellant's as-applied challenge is not yet ripe.

{¶13} Next appellant identifies similar language in R.C. 2967.271(C)(1)(a) that permits an offender to be held beyond the presumptive release date if any of the alleged infractions or violations demonstrate that the offender has not been rehabilitated. Appellant again contends the phrase "demonstrate that the offender has not been rehabilitated" is unconstitutionally vague. Appellant notes that the phrase is hopelessly dependent upon value-laden subjective assessments and therefore unclear what may or may not trigger this statutory condition. Much like appellant's previous argument, this challenge requires additional facts which have not developed (and may never occur). It is therefore unripe and the subject of an as-applied challenge if and when appellant has cause to raise it.

{¶14} Appellant additionally takes issue with R.C 2967.271(C)(1)(b). That subsection permits the DRC to rebut the presumption that appellant be released after the minimum time if his behavior demonstrates he "continues to pose a threat to society." Appellant recognizes that his behavior while incarcerated will be measured against institutional rules; the statute, however, indicates that other, unlisted potential or arguable infractions may be used as a metric to determine whether he continues to pose a threat to society. This argument, while potentially worth exploring if appellant is subjected to additional incarceration beyond the minimum term, is nevertheless an as-applied challenge. He must therefore wait to assert the challenge if and when such...