[Cite as State v. Doughty, 2021-Ohio-651.]
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JAMES R. DOUGHTY : Case No. 20-CA-00001 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 19-CR0043
JUDGMENT: Affirmed, Matter Remanded for Nunc Pro Tunc Sentencing Entry
DATE OF JUDGMENT: March 5, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT ADDISON M. SPRIGGS 111 North High Street 250 East Broad Street P.O. Box 569 Suite 1400 New Lexington, OH 43764-0569 Columbus, OH 43215 Perry County, Case No. 20-CA-00001 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant James Robert Doughty appeals the December 24,
2019 judgment of conviction and sentence of the Perry County Court of Common Pleas.
Plaintiff-Appellee is the state of Ohio.
Facts and Procedural History
{¶ 2} On June 25, 2019, the Perry County Grand Jury returned an indictment
charging appellant with the following:
{¶ 3} Three counts of domestic violence pursuant to R.C. 2919.25(A), felonies of
the third degree. These counts alleged violations on three different days.
{¶ 4} Two counts of felonious assault pursuant to R.C. 2903.11(A)(1), felonies of
the second degree. Both counts were alleged to have occurred on the same day. One
count alleged appellant caused serious physical harm and one count alleged appellant
caused or attempted to cause serious physical harm by means of a deadly weapon.
{¶ 5} One count of kidnapping pursuant to R.C 2905.01(A)(3), a felony of the first
degree.
{¶ 6} One count of rape pursuant to 2907.02(A)(2), a felony of the first degree.
{¶ 7} Four counts of violating a protection order pursuant to R.C. 2919.27(A)(2),
felonies of the third degree. These counts alleged violations on four different dates.
{¶ 8} One count of aggravated menacing pursuant to R.C. 2903.21(A), a
misdemeanor of the first degree.
{¶ 9} All charges pertained to appellant's girlfriend G.W. Perry County, Case No. 20-CA-00001 3
{¶ 10} Appellant pled not guilty to the charges and elected to proceed to a jury trial
which began on December 11, 2019. The facts relevant to this matter follow.
{¶ 11} Appellant and G.W. began living together in in 2016. The two lived in a
camper situated within feet of appellant's father's residence. In January of 2019, following
an incident of domestic violence, G.W. moved out and obtained a protection order against
appellant. A week later, she moved back in with appellant. Appellant was aware of the
protection order. Transcript of trial (T.) 199, 204, 208.
{¶ 12} The relationship between the two remained violent. In April 2019, the Friday
before Easter, appellant argued with G.W. Because appellant's young children were
present for the weekend, he told G.W. they needed to talk outside the camper. Once
outside, appellant punched G.W. in the chest causing her to spin around, fall face down
into the gravel drive, and briefly lose consciousness. When G.W. attempted to get up,
appellant punched her in the chest a second time and told her he hoped she died of a
heart attack. He then began choking G.W. and banging her head on the ground.
Eventually it began to rain. The two went back into the camper and appellant acted as if
nothing happened. T. 212-216.
{¶ 13} G.W. went to the bedroom and appellant stayed in the living room and
kitchen area with his children. G.W. was in pain, but did not leave to seek help that day
or in the following days as appellant told her if she did leave, he would shoot her with his
shotgun. T. 218.
{¶ 14} Later that night, appellant came into the bedroom and ordered G.W. onto
the floor. He then struck her repeatedly in the abdomen with the butt of the shotgun. Perry County, Case No. 20-CA-00001 4
{¶ 15} The following Monday, appellant accused G.W. of cheating on him. In his
anger, appellant hit G.W. in the face with the butt of his shotgun. G.W. believed she
suffered a concussion as a result as she experienced dizziness, nausea, and blurred
vision. T. 222-223.
{¶ 16} Two or three days later, G.W. described appellant as "on one of his rages."
While she was standing in front of the television, appellant grabbed a trash bag and put
it over G.W.'s head, attempting to suffocate her. She managed to get herself free of the
bag, but lost her balance and fell down in the process. Appellant ordered her to get up,
remove her pants, and lay down on the floor. G.W. complied. Appellant inserted the
muzzle of the shotgun into G.W.'s vagina, pulled it out and then kicked G.W. in the crotch.
T. 224-225.
{¶ 17} Also during this period of abuse, appellant stabbed G.W. in the leg with a
fork on one occasion and with a knife on another, burned her, and hit her legs with the
gun. T. 231.
{¶ 18} Appellant eventually told G.W. he would let her go if she would arrange for
him to get together with her 17 year-old daughter. G.W. convinced appellant she could
make this happen if he took her to her daughter's home. T. 229.
{¶ 19} Appellant dropped G.W. off at her daughter's apartment which she shared
with friends. Those friends testified G.W. was very upset and emotional when she arrived.
Appellant had advised G.W. not to be long. When she took too long, he angrily pounded
on the door ordering her to come out and threatening the occupants if they failed to send
G.W's daughter out. This went on for approximately an hour with appellant leaving and Perry County, Case No. 20-CA-00001 5
returning. Eventually one of the occupants called the sheriff's department. Deputy Cody
Palmer responded and G.W. was transported to a hospital. T. 151-152, 156.
{¶ 20} The jury viewed photographs of G.W.'s injuries which included a black eye,
bruising to her face, head, chest, back and legs, and two puncture wounds, one which
appeared to be caused by a fork. The attending doctor also testified G.W. sustained
multiple rib fractures.
{¶ 21} After hearing the evidence and deliberating, the jury acquitted appellant of
rape and kidnapping, but convicted him of the remaining charges.
{¶ 22} A sentencing hearing was conducted on December 19, 2019, following a
re-sentence investigation. The trial court sentenced appellant as follows:
{¶ 23} For each count of violating a protection order, felonies of the third degree,
30 months to be served concurrently.
{¶ 24} For violating a protection order and aggravated menacing, misdemeanors
of the first degree, 6 months local incarceration on each count, concurrent with each other
and with the sentences for the third-degree felony violating a protection order.
{¶ 25} For two counts of second degree felonious assault, 7 years for each count,
consecutive to each other, but concurrent to the previously imposed sentences.
{¶ 26} For each count of third degree felony domestic violence the court imposed
24 months to run concurrently with each other and with the previously imposed sentences
for an aggregate minimum prison term of 14 years, and pursuant to R.C. 2967.271, could
face incarceration up to 17 and one half years. Transcript of Sentencing (T.S.) 7-10.
{¶ 27} The judgment entry, however reads: Perry County, Case No. 20-CA-00001 6
It is further ordered that the periods of imprisonment for the two (2)
counts of felonious assault be served consecutive with each other
and all other terms of imprisonment. The defendant, is therefore
sentenced to a term of a minimum of fourteen (14) years and a
maximum of seventeen and a half (17.5) years.
{¶ 28} Sentencing judgment entry, December 24, 2019, emphasis added.
{¶ 29} Appellant filed an appeal. He raises two assignments of error for our
consideration as follow:
I
{¶ 30} "THE TRIAL COURT FAILED TO MERGE ALLIED OFFENSES OF
SIMILAR IMPORT AND IMPOSED A LONGER PRISON TERM THAN AUTHORIZED BY
LAW."
{¶ 31} In his first assignment of error, appellant argues the trial court erred in failing
to merge his convictions for domestic violence and felonious assault as allied offense of
similar import. We disagree.
{¶ 32} R.C. 2941.25 governs multiple counts and states the following:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more Perry County, Case No. 20-CA-00001 7
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶ 33} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
syllabus, the Supreme Court of Ohio held the following:
1. In determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must evaluate
three separate factors—the conduct, the animus, and the import.
2. Two or more offenses of dissimilar import exist within the meaning
of R.C. 2941.25(B) when the defendant's conduct constitutes
offenses involving separate victims or if the harm that results from
each offense is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct supports
multiple offenses may be convicted of all the offenses if any one of
the following is true: (1) the conduct constitutes offenses of dissimilar
import, (2) the conduct shows that the offenses were committed
separately, or (3) the conduct shows that the offenses were
committed with separate animus.
{¶ 34} The Ruff court explained at ¶ 26: Perry County, Case No. 20-CA-00001 8
At its heart, the allied-offense analysis is dependent upon the facts
of a case because R.C. 2941.25 focuses on the defendant's conduct.
The evidence at trial or during a plea or sentencing hearing will reveal
whether the offenses have similar import. When a defendant's
conduct victimizes more than one person, the harm for each person
is separate and distinct, and therefore, the defendant can be
convicted of multiple counts. Also, a defendant's conduct that
constitutes two or more offenses against a single victim can support
multiple convictions if the harm that results from each offense is
separate and identifiable from the harm of the other offense. We
therefore hold that two or more offenses of dissimilar import exist
within the meaning of R.C. 2941.25(B) when the defendant's conduct
constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.
{¶ 35} First, appellant argues his two convictions for domestic violence and three
felonious assault should have merged for sentencing. We note, however, appellant was
convicted of three counts of domestic violence and two counts of felonious assault.
{¶ 36} Next, appellant did not seek merger at the sentencing hearing. We therefore
review his argument for plain error. In State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, 38 N.E3d, 860, ¶ 21–25, citing State v. Quarterman, 140 Ohio St.3d 464, 2014-
Ohio-4034, 19 N.E.3d 900, ¶ 15–16. "Crim.R. 52(B) affords appellate courts discretion to Perry County, Case No. 20-CA-00001 9
correct '[p]lain errors or defects affecting substantial rights' notwithstanding the accused's
failure to meet his obligation to bring those errors to the attention of the trial court." Rogers
at ¶ 22. The defendant "bears the burden of proof to demonstrate plain error on the
record." Id., citing Quarterman at ¶ 16. To demonstrate plain error, the defendant must
show " 'an error, i.e., a deviation from a legal rule' that constitutes 'an "obvious" defect in
the trial proceedings' " and that the error affected a substantial right, i.e., the defendant
must demonstrate a "reasonable probability" that the error resulted in prejudice, affecting
the outcome of the trial. Rogers at ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002). "We recognize plain error 'with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.' "
Lyndhurst v. Smith, 8th Dist. Cuyahoga No. 101019, 2015-Ohio-2512, 2015 WL 3899130,
¶ 32, quoting State v. Landrum, 53 Ohio St.3d 107, 110, 559 N.E.2d 710 (1990).
{¶ 37} The indictment in this matter charged appellant with three counts of
domestic violence occurring on or about three different days; April 18, 2019, April 20,
2019, and April 24, 2019. Both counts of felonious assault were alleged to have taken
place on or about April 20, 2019. The first count alleged appellant caused serious physical
harm and the other alleged he caused or attempted to cause physical harm to another by
means of a deadly weapon. Indictment, January 25, 2019.
{¶ 38} G.W. testified to eight incidents occurring around Easter, 2019. On the
Friday before Easter, appellant badgered G.W., accusing her of cheating on him, and
slapped her in the face. T. 212-213.
{¶ 39} On Saturday morning, appellant told G.W. they needed to go outside to talk
away from his young children who were visiting for the weekend. Once outside, appellant Perry County, Case No. 20-CA-00001 10
punched G.W. in the chest, sending her face down onto the ground and causing her to
lose consciousness for a few moments. When she came to, appellant was standing over
her screaming he hoped she died of a heart attack. When she tried to get up, appellant
punched her in the chest again, then came at her with a tire iron. G.W. laid on the ground
and covered her head. Appellant then choked her and banged her head into the ground.
Appellant then went back into the camper, came back out with a knife, cornered G.W.
and threatened to slice her throat. It started raining and they returned to the camper.
Appellant acted as if nothing had happened. G.W. went to the bedroom and appellant
stayed in the kitchen area with his children. T. 214-217.
{¶ 40} Later that evening, appellant came into the bedroom with his shotgun and
ordered G.W. onto the floor. G.W complied. Appellant then proceeded to strike G.W. in
the abdomen repeatedly with the butt end of the shotgun. Appellant then left the bedroom
and came back with a knife and bleach. He threatened to cut her fingers off and to blind
her with the bleach. When appellant noticed G.W.'s thumb had been cut and she was
bleeding he stopped and told her to clean up the mess. T. 219-220.
{¶ 41} G.W. testified appellant did not assault her or terrorize her on Easter
Sunday. T. 221.
{¶ 42} The following day, however, appellant again accused G.W. of cheating on
him, hit her in the head with the butt end of the shotgun and knocking her over and causing
her face to immediately swell. G.W. believed she suffered a concussion from this incident
as she felt nauseous and experienced blurred vision. T. 221-222.
{¶ 43} Two or three days later, G.W. testified appellant "in one of his rages"
charged her, pulled a trash bag over her head and attempted to suffocate her. As she Perry County, Case No. 20-CA-00001 11
clawed her way out of the trash bag, she lost her balance and fell. Appellant ordered her
to get up remove her pants and then lie down. G.W. complied. Appellant then asked her
if he should burn her vagina or superglue it shut. He decided instead to insert the muzzle
of the shotgun into her vagina, remove it, and then kick her in the crotch. He then once
again acted as if nothing had happened. T. 224-225.
{¶ 44} G.W. further testified in the days following, on one occasion appellant hit
her on top of her head so hard she nearly blacked out, on another he stabbed her in the
leg with a fork, and in yet another, he threw a knife at her, lodging it into her leg.
{¶ 45} Based on this testimony, we find no plain error. Appellant's conduct
constitutes separate offenses against a single victim and the resulting harm from each
offense is separate and identifiable from the harm of the other offenses. Appellant
assaulted G.W. on at least five separate days, some days on more than one occasion,
He used deadly weapons -- a gun and a knife -- on at least three separate occasions, and
caused separate and identifiable harm on each occasion. We therefore find the trial court
did not err in failing to merge any of appellant's convictions for felonious assault or
domestic violence.
{¶ 46} As noted in our statement of facts, however, the judgment entry in this
matter does not reflect the sentence imposed on the record. On the record, the trial court
ordered appellant to serve the sentences for two felonious assault convictions
consecutively. It ordered all other sentences be served concurrently with one another and
concurrently with the sentences for felonious assault. The judgment entry does not reflect
the concurrent sentences. Perry County, Case No. 20-CA-00001 12
{¶ 47} Appellant's first assignment of error is overruled, however, we remand the
matter for a nunc pro tunc judgment entry to reflect the sentence imposed on the record.
II
{¶ 48} "BECAUSE THE REAGAN TOKES ACT VIOLATES THE OHIO AND
UNITED STATES CONSTITUTIONS, MR. DOUGHTY'S SENTENCE IS CONTRARY TO
LAW. R.C.2953.08(G)(2); SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITES
STATES CONSTITUTION; ARTICLES I, II, AND III OF THE UNITED STATES
CONSTITUTION; ARTICLE I, SECTIONS 5, 10 AND 16 OF THE OHIO
CONSTITUTION."
{¶ 49} Appellant's final assignment of error challenges the constitutionality of the
Regan Tokes Act which codified hybrid indefinite prison terms for first and second degree
felonies. Appellant challenges the presumptive release feature of the act, R.C. 2967.271,
arguing it violates his constitutional rights to trial by jury and due process of law, and
further violates the constitutional requirement of separation of powers and equal
protection.
{¶ 50} R.C. 2967.271 provides in relevant part:
(B) When an offender is sentenced to a non-life felony indefinite
prison term, there shall be a presumption that the person 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. Perry County, Case No. 20-CA-00001 13
(C) The presumption established under division (B) of this section is
a rebuttable presumption that the department of rehabilitation and
correction may rebut as provided in this division. Unless the
department rebuts the presumption, 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. The department may rebut the
presumption only if the department determines, at a hearing, that one
or more of the following applies:
(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 (C)(1)(a)
of this section, demonstrate that the offender continues to pose a
threat to society. Perry County, Case No. 20-CA-00001 14
(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.
(D)(1) If the department of rehabilitation and correction, pursuant to
division (C) of this section, rebuts the presumption established under
division (B) of this section, the department may maintain the
offender's incarceration in a state correctional institution under the
sentence after the expiration of the offender's minimum prison term
or, for offenders who have a presumptive earned early release date,
after the offender's presumptive earned early release date. The
department may maintain the offender's incarceration under this
division for an additional period of incarceration determined by the
department. The additional period of incarceration shall be a
reasonable period determined by the department, shall be specified
by the department, and shall not exceed the offender's maximum
prison term.
(2) If the department maintains an offender's incarceration for an
additional period under division (D)(1) of this section, there shall be
a presumption that the offender shall be released on the expiration Perry County, Case No. 20-CA-00001 15
of the offender's minimum prison term plus the additional period of
incarceration specified by the department as provided under that
division or, for offenders who have a presumptive earned early
release date, on the expiration of the additional period of
incarceration to be served after the offender's presumptive earned
early release date that is specified by the department as provided
under that division. The presumption is a rebuttable presumption that
the department may rebut, but only if it conducts a hearing and
makes the determinations specified in division (C) of this section, and
if the department rebuts the presumption, it may maintain the
offender's incarceration in a state correctional institution for an
additional period determined as specified in division (D)(1) of this
section. Unless the department rebuts the presumption at the
hearing, the offender shall be released from service of the sentence
on the expiration of the offender's minimum prison term plus the
additional period of incarceration specified by the department or, for
offenders who have a presumptive earned early release date, on the
expiration of the additional period of incarceration to be served after
the offender's presumptive earned early release date as specified by
the department.
The provisions of this division regarding the establishment of a
rebuttable presumption, the department's rebuttal of the
presumption, and the department's maintenance of an offender's Perry County, Case No. 20-CA-00001 16
incarceration for an additional period of incarceration apply, and may
be utilized more than one time, during the remainder of the offender's
incarceration. If the offender has not been released under division
(C) of this section or this division prior to the expiration of the
offender's maximum prison term imposed as part of the offender's
non-life felony indefinite prison term, the offender shall be released
upon the expiration of that maximum term.
{¶ 51} Appellant argues these portions of R.C 2967.271 permitting the Department
of Rehabilitation and Corrections (DRC) to administratively extend his prison term beyond
his presumptive minimum prison term violate the United States and Ohio Constitutions.
However, as the state points out, appellant has not yet been subject to the application of
these provisions, as he has not yet served his minimum term, and therefore has not been
denied release at the expiration of his minimum term of incarceration.
{¶ 52} We addressed the concept of ripeness for review in regard to the Regan
Tokes Act in State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-4227:
The Ohio Supreme Court discussed the concept of ripeness for
review in State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio
St.3d 88, 1998-Ohio-366, 694 N.E.2d 459:
Ripeness "is peculiarly a question of timing." Regional Rail
Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 335,
357, 42 L.Ed.2d 320, 351. The ripeness doctrine is motivated in part Perry County, Case No. 20-CA-00001 17
by the desire "to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements
over administrative policies * * *." Abbott Laboratories v. Gardner
(1967), 387 U.S. 136, 148, 87 S.Ct. 1507, 1515,"18 L.Ed.2d 681,
691. As one writer has observed:
The basic principle of ripeness may be derived from the conclusion
that ‘judicial machinery should be conserved for problems which are
real or present and imminent, not squandered on problems which are
abstract or hypothetical or remote.’ * * * [T]he prerequisite of ripeness
is a limitation on jurisdiction that is nevertheless basically optimistic
as regards the prospects of a day in court: the time for judicial relief
is simply not yet arrived, even though the alleged action of the
defendant foretells legal injury to the plaintiff. Comment, Mootness
and Ripeness: The Postman Always Rings Twice (1965), 65 Colum.
L.Rev. 867, 876. Id. at 89, 694 N.E.2d at 460.
In State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-Ohio-171,
the defendant argued because the Parole Board, pursuant to R.C.
2967.28, could extend his sentence by up to an additional five years
for violation of post-release control, the statute was unconstitutional.
The Eighth District Court of Appeals concluded because McCann
was not currently the subject of such action by the Parole Board, the
issue was not yet ripe for review. Id. at ¶6. Perry County, Case No. 20-CA-00001 18
Likewise, in the instant case, while R.C. 2967.271 allows the DRC to
rebut the presumption Appellant will be released after serving his
nine year minimum sentence and potentially continue his
incarceration to a term not exceeding thirteen years, Appellant has
not yet been subject to such action by the DRC, and thus the
constitutional issue is not yet ripe for our review.
{¶ 53} Downard, at ¶8-11. See also, State v. Buckner, 5th Dist. Muskingum Nos.
CT2020-0023 & CT2020-0024, 2020-Ohio-7017; State v. Wolfe, 5th Dist. Licking No.
2020CA00021, 2020-Ohio-5501; State v. Cochran, 5th Dist. Licking No. 2019 CA 00122,
2020-Ohio-5329; State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-Ohio-5013;
State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-4230; State v.
Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631.
{¶ 54} Appellant does not dispute he had not yet been subject to the provisions of
R.C. 2967.271. We therefore find here as we did in Downard, appellant's constitutional
challenges and his trial counsel's failure to raise the same are not yet ripe for review.
{¶ 55} The second assignment of error is overruled. Perry County, Case No. 20-CA-00001 19
{¶ 56} The judgment of conviction and sentence of the Perry County Court of
Common Pleas is affirmed, matter remanded for nunc pro tunc sentencing judgment
entry.
By Wise, Earle, J.
Baldwin, P.J. and
Delaney, J. concur.
EEW/rw