State v. Stenson

190 N.E.3d 1240

STATE of Ohio, Appellee

v.Darius STENSON, Appellant

No. L-20-1074

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided: June 17, 2022

Julia R. Bates, Lucas County Prosecuting Attorney, and Sara Al-Sorghali, Assistant Prosecuting Attorney, for appellee.

Adam H. Houser, Toledo, for appellant.

DECISION AND JUDGMENT

MAYLE, J.

{¶ 1} This case is before the court on remand from the Ohio Supreme Court.

I. Background

{¶ 2} Defendant-appellant, Darius Stenson, appealed the March 20, 2020 judgment of the Lucas County Court of Common Pleas, convicting him of discharging a firearm over prohibited premises and aggravated assault, and sentencing him to an indefinite prison term of a minimum of four years and a maximum of six years, to be served consecutively to a three-year prison term for a related specification, and a concurrent 17-month prison term for the aggravated assault conviction. He assigned three errors for our review:

1. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT SENTENCED APPELLANT PURSUANT TO SENATE BILL 201 ("S.B. 201") AND O.R.C. 2929.144 VIOLATES THE CONSTITUTIONAL DOCTRINE OF THE SEPARATION OF POWERS.

2. THE TRIAL COURT COMMITTED PLAIN ERROR BECAUSE THE JUDGMENT VIOLATES THE APPELLANT'S

DUE PROCESS RIGHTS PURSUANT TO THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AS IT RELATES TO THE INDEFINITE SENTENCE.

3. THE APPELLANT'S SENTENCE IS EXCESSIVE BECAUSE IT FAILS TO ACHIEVE THE PURPOSES AND PRINCIPLES OF SENTENCING UNDER OHIO LAW.

{¶ 3} In a decision journalized on June 30, 2021, we affirmed the trial court judgment, however, we dismissed Stenson's first and second assignments of error—challenges to the constitutionality of the Reagan Tokes Law—on the basis that those assignments were not ripe for review pursuant to our decision in State v. Maddox , 6th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702, 2020 WL 5834857. State v. Stenson , 6th Dist. Lucas No. L-20-1074, 2021-Ohio-2256, 2021 WL 2701281. Recognizing that our decision was in conflict with other Ohio appellate districts, we certified a conflict to the Ohio Supreme Court. The motion to certify was allowed. State v. Stenson, 164 Ohio St.3d 1455, 2021-Ohio-3438, 174 N.E.3d 801. The case was held pending a decision in Maddox . Id.

{¶ 4} The Ohio Supreme Court determined that challenges to the constitutionality of the Reagan Tokes Law are, in fact, ripe for review, and reversed Maddox State v. Maddox , 2022 -Ohio- 764, ––– N.E.3d ––––. It, therefore, reversed and remanded Stenson . In re Cases Held for the Decision in State v. Maddox , 2022 -Ohio- 1352, ––– N.E.3d ––––. The merits of Stenson's first and second assignments of error are now before the court.

II. Law and Analysis

{¶ 5} Senate Bill 201—the Reagan Tokes Law—became effective on March 22, 2019. The Law "significantly altered the sentencing structure for many of Ohio's most serious felonies" by implementing an indefinite sentencing system for non-life, first and second-degree felonies committed on or after its effective date. State v. Polley , 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, 2020 WL 3032862, ¶ 5, fn. 1. The Law specifies that the indefinite prison terms will consist of a minimum term, selected by the sentencing judge from a range of terms set forth in R.C. 2929.14(A), and a maximum term determined by formulas set forth in R.C. 2929.144. The Law establishes a presumptive release date from prison at the end of the minimum term, but the Ohio Department of Rehabilitation and Correction ("ODRC") may rebut the presumption if it determines, after a hearing, that one or more factors apply, including that the offender's conduct while incarcerated demonstrates that he continues to pose a threat to society. R.C. 2967.271(B), (C)(1), (2) and (3). If ODRC rebuts the presumption, it may maintain the offender's incarceration for a reasonable, additional period of time, determined by ODRC, but not to exceed the offender's maximum prison term. R.C. 2967.271(D).

{¶ 6} In his first assignment of error, Stenson challenges the Reagan Tokes Law on the basis that it violates the constitutional doctrine of separation of powers. In his second assignment of error, he challenges the Law on due-process grounds. We consider both of Stenson's assignments in turn.

A. Separation of Powers

{¶ 7} In his first assignment of error, Stenson argues that the Reagan Tokes Law violates the constitutional doctrine of separation of powers. He claims that if his sentence is extended beyond the minimum term, it will have occurred after an administrative hearing held by ODRC—not the trial court. Stenson insists that this sentencing structure divests the judicial branch of its authority to sentence individuals when they commit crimes, and instead vests the executive branch with this power.

{¶ 8} The state responds that the Reagan Tokes Law is similar to Ohio's historical systems of indefinite sentencing and parole that existed before Senate Bill 2, which were upheld by the Ohio Supreme Court in Woods v. Telb , 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000) and State ex rel. Attorney General v. Peters , 43 Ohio St. 629, 4 N.E. 81 (1885). It emphasizes that under the Reagan Tokes Law, the sentencing court is responsible for all aspects of sentencing, including choosing the minimum term, calculating the maximum term, and pronouncing and imposing the indefinite sentence. It insists that the executive agency merely carries out the offender's sentence and cannot maintain the offender's incarceration beyond the range imposed by the sentencing court.

{¶ 9} We recently considered whether the Reagan Tokes Law violates the constitutional doctrine of separation of powers in State v. Gifford , 6th Dist. Lucas No. L-21-1201, 2022-Ohio-1620, 2022 WL 1515558. As we explained in Gifford , "the doctrine of separation of powers is ‘implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of powers granted to the three branches of state government.’ " State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 134, 729 N.E.2d 359 (2000), quoting S. Euclid v. Jemison , 28 Ohio St.3d 157, 158-159, 503 N.E.2d 136 (1986). "The legislative has the sole right and power to enact laws, the judiciary to declare their meaning and application, and the executive to enforce their execution." Chesnut v. Shane's Lessee, 16 Ohio 599, 621 (1847). " ‘The essential principle underlying the policy of the division of powers of government into three departments is that powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments, and further that none of them ought to possess directly or indirectly an overruling influence over the others.’ " Bray at 134, 729 N.E.2d 359, quoting State ex rel. Bryant v. Akron Metro. Park Dist. , 120 Ohio St. 464, 473, 166 N.E. 407 (1929).

{¶ 10} In connection with its role in declaring the "meaning and application" of laws, the judiciary is solely responsible for determining guilt and sentencing a defendant who has been convicted of a crime. Id. at 136, 729 N.E.2d 359. Like the defendant in Gifford , Stenson argues that because R.C. 2967.271 permits ODRC to rebut the presumption that an offender will be released after serving his or her minimum sentence, the statute deprives the judiciary of its exclusive authority and instead authorizes ODRC to increase an offender's sentence, thereby undermining judicial power and vesting this authority in the ODRC. We disagree.

{¶ 11} Under the Reagan Tokes Law, the trial court imposes both a minimum and maximum sentence. R.C. 2929.14 and 2929.144. As we emphasized in Gifford , while R.C. 2967.271(C) and (D) permit ODRC to "maintain" an offender's incarceration for "additional"—and "reasonable"—periods beyond the prisoner's presumptive minimum term, ODRC is not permitted to "increase" the prisoner's sentence beyond the maximum sentence imposed by the trial court. In this way, the Law is different than other legislation struck down by the Ohio Supreme Court as violating separation of powers, such as former R.C. 2967.11, which governed "bad time" and allowed ODRC to extend an offender's prison term beyond the original sentence imposed by the court for misconduct committed during incarceration. Here, any additional period of incarceration "shall not exceed the offender's maximum prison term." R.C. 2967.271(D). As such, the authority granted to ODRC under the Reagan Tokes Law is more comparable to the authority granted to the parole board under the postrelease control statute, R.C. 2967.28, which the Ohio Supreme Court upheld in Woods v. Telb , 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000).

{¶ 12} As we summarized in Gifford , the Ohio Supreme Court in Woods recounted the evolution of Ohio's sentencing statutes up to that point. It explained that Ohio enacted truth-in-sentencing laws, Senate Bill 2, to ensure that sentences imposed by trial judges were the sentences served, unless altered by the judge. "This was primarily accomplished by two methods: eliminating indefinite sentences and eliminating parole." Id. at 508, 733 N.E.2d 1103. The court described that before S.B. 2, offenders rarely served the time to which they were sentenced because (1) indefinite sentences were prescribed for most serious felonies, (2) upon entering a correctional institution, an offender's sentence was automatically reduced by 30 percent for good behavior, and (3) the parole board "reviewed all prison sentences for disparity among offenders and attempted to abate inequities." Id. at 508, 733 N.E.2d 1103. Under S.B. 2, offenders were sentenced to definite sentences, good time was significantly reduced and had to be earned, and the parole board no longer had authority to determine how long an offender stayed in prison.

{¶ 13} The Ohio Supreme Court explained that before S.B. 2, offenders were subject to parole if they were convicted of first- or second-degree felonies...