State v. McDonald

2023 Ohio 4007

Opinion

[Cite as State v. McDonald, 2023-Ohio-4007.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY

State of Ohio Court of Appeals No. H-22-012

Appellee Trial Court No. CRI20220161

v.

Andrew McDonald DECISION AND JUDGMENT

Appellant Decided: November 3, 2023

*****

James Joel Sitterly, Huron County Prosecuting Attorney, and Melissa A. Angst, Assistant Prosecuting Attorney, for appellee.

Henry Schaefer, for appellant.

ZMUDA, J.

I. Introduction

{¶ 1} Appellant, Andrew McDonald, appeals the July 12, 2022 judgment of the

Huron County Court of Common Pleas sentencing him to an aggregate prison term of

seven to ten years following his conviction for kidnapping and complicity to tampering

with evidence. For the following reasons, we affirm the trial court’s judgment. A. Fact and Procedural Background

{¶ 2} On March 18, 2022, appellant was indicted on count of kidnapping in

violation of R.C. 2905.01(A)(3) and (C)(1), a first degree felony; one count of felonious

assault in violation of R.C. 2923.11(A)(1) and (D)(1)(a), a second degree felony;

attempted felonious assault in violation of R.C. 2923.02(A) and (E)(1), a third degree

felony; tampering with evidence in violation of R.C. 2921.12(A)(1) and (B), a third

degree felony; one count of complicity to commit the offense of tampering with evidence

in violation of R.C. 2923.03(A)(1) and (F), a third degree felony; four counts of

menacing by stalking in violation of R.C. 2903.211(A)(1) and (B)(2)(b), R.C.

2903.211(A)(1) and (B)(2)(e), R.C. 2903.211(A)(2)(a) and (B)(2)(b), and R.C.

2903.211(A)(2)(a) and (B)(2)(e), respectively, each a fourth degree felony; and one count

of possessing criminal tools in violation of R.C. 2923.24(A) and (C), a fifth degree

felony.

{¶ 3} The charges arose from an incident on March 10, 2022, in which the

Willard, Ohio Police Department performed a welfare check on the victim, D.F., at an

apartment on Crestwood Drive in Willard, Huron County, Ohio. The police found the

victim in the apartment with multiple injuries including scratches, red marks, and a bruise

on her left cheek. She informed the police that appellant assaulted her and then left her in

the apartment. Appellant was located that same night and arrested. After his arrest,

appellant contacted his mother from jail and concocted a scheme with her to destroy his

2. cell phone by flushing it down a toilet. The phone was eventually recovered but was

waterlogged as a result of their attempt to destroy it. Appellant was indicted

approximately one week later.

{¶ 4} Appellant appeared with counsel for his arraignment on March 21, 2022. At

that time, he was advised that if he was found guilty of the kidnapping charge, he would

be subject to the imposition of an indefinite prison term pursuant to R.C. 2967.271—

Ohio’s “Reagan Tokes Law.” Appellant then entered a not guilty plea to all counts and

was released on a $50,000 bond.

{¶ 5} Following negotiations with the state, appellant agreed to enter a guilty plea

to the counts of kidnapping and complicity to tampering with evidence. In exchange for

his guilty pleas, the state agreed to request that all remaining charges be dismissed. At

his change of plea hearing on May 27, 2022, appellant was again advised of the potential

sentence to be imposed for the kidnapping count pursuant to the Reagan Tokes Law.

Appellant then entered his guilty pleas in accordance with the agreement. The trial court

ordered appellant to participate in a presentencing investigation and set his sentencing for

July 7, 2022.

{¶ 6} At sentencing, the trial court imposed an indefinite prison term of a

minimum of six years and a maximum of nine years on the kidnapping offense pursuant

to the Reagan Tokes Law. The trial court also imposed a twelve-month prison term on

the complicity offense. The trial court ordered those sentences to be served consecutively

3. to each other for an aggregate prison term of seven to ten years.1 The trial court’s

judgment reflecting appellant’s sentence and dismissing the remaining counts against him

was memorialized on July 12, 2022.

{¶ 7} On September 27, 2022, appellant filed a motion for leave to file a delayed

appeal pursuant to App.R. 5. We granted appellant’s motion on December 15, 2022 and

this appeal commenced with appellant’s filing of his notice of appeal on January 5, 2023.

B. Assignment of Error

{¶ 8} Appellant asserts the following error for our review:

1. As amended by the Reagan Tokes Act, the Revised Code’s

sentences for first and second-degree qualifying felonies violate the United

States and Ohio Constitutions. The court erred in issuing an indefinite

sentence pursuant to the Act.

II. Law and Analysis

{¶ 9} In his single assignment of error, appellant argues that the Reagan Tokes

Law’s indefinite sentencing structure for certain first and second degree felonies is

unconstitutional. Specifically, he argues that indefinite sentencing violates his rights to

due process under the Fourteenth Amendment of the United States Constitution and

Article I, Section 16 of the Ohio Constitution, the separation of powers doctrine, and his

1 The trial court also imposed a one-year prison term for appellant’s violation of the terms of his community control previously imposed in Huron County Court of Common Pleas case No. CRI 2019-1135. That sentence is not part of the present appeal.

4. right to a jury trial under the Sixth Amendment of the United States Constitution and

Article I, Section 5 of the Ohio Constitution. For the following reasons, we affirm the

trial court’s judgment.

{¶ 10} The Reagan Tokes Law became effective on March 22, 2019. It allowed

for the imposition of indefinite prison sentences for certain qualifying felony offenses.

R.C. 2929.14(A)(1)(a) and (2)(a). When imposing sentence for a qualifying offense, the

trial court must choose a “minimum term” from a range of possible minimum prison

terms. State v. Hacker, 2023 Ohio 2535, -- N.E.3d --, ¶ 7. That minimum term is then

multiplied by one and half to determine the maximum, indefinite portion of the prison

term. Id.; R.C. 2929.144(B)(1). R.C. 2967.271(B) mandates that “there shall be a

presumption that the [offender] shall be released from service of the sentence on the

expiration of the offender’s minimum prison term[.]” That presumption may be rebutted

by the Ohio Department of Rehabilitation and Corrections (“ODRC”), however, if it

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

5. 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.

(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). If ODRC rebuts the offender’s release at the conclusion of their

minimum term, their incarceration may be maintained “for a reasonable period * * *

specified by [ODRC]” but that period may not exceed the maximum term imposed at

sentencing. Hacker at ¶ 10; R.C. 2967.271(D). It is this period of incarceration beyond

the minimum term that appellant argues is unconstitutional on its face.

{¶ 11} Appellant argues that the procedure for determining his release date after

serving his minimum term violates his right to due process by failing to provide adequate

notice in R.C. 2967.271(A)(1) of the conditions he must meet to avoid extended

6. incarceration and by failing to provide for certain rights—right to counsel, to confront

witnesses, to avoid self-incrimination, and having guilt established beyond a reasonable

doubt—at the hearing during which the extension is determined. Further, he argues that

the Reagan Tokes Law violates the separation of powers doctrine because it allows the

executive branch of government—the ODRC—to determine his sentence, an act that is

“solely the province of the judiciary.” State ex rel. Bray v. Russell, 89 Ohio St.3d 132,

136, 729 N.E.2d 359 (2000). Lastly, he argues that the law violates his right to a jury

trial on any additional “punishment” to be imposed upon him beyond serving the

minimum prison term imposed under R.C. 2967.271.

{¶ 12} At the time appellant filed his brief, this court had previously rejected these

same facial challenges to the Reagan Tokes Law as being unconstitutional. See State v.

Maddox, 6th Dist. Lucas No. L-19-1253, 2022-Ohio-1350; State v. Eaton, 2022-Ohio-

2432, 192 N.E.3d 1236 (6th Dist.); State v. Stenson, 2022-Ohio-2072, 190 N.E.3d 1240

(6th Dist.). Those same issues, however, were also pending before the Ohio Supreme

Court in State v. Hacker, 2023 Ohio 2535, -- N.E.3d --. It was prudent, then, for

appellant to raise these arguments in this appeal to protect his claims in the event the

Ohio Supreme Court found the statute was, indeed, unconstitutional. He noted in his

brief that his arguments in the present appeal are “not novel or distinct from” the

arguments raised in Hacker. Further, appellant conceded that the Ohio Supreme Court’s

7. resolution of those arguments in Hacker would “likely be dispositive of the issue raised

here.”

{¶ 13} On July 26, 2023, the Ohio Supreme Court held that the Reagan Tokes Law

was not unconstitutional on its face as it did not violate an offender’s right to due process,

it did not violate the separation of powers doctrine, and that an offender did not have a

right to a jury trial to determine whether they would serve a prison term beyond the

minimum term imposed under R.C. 2967.271. Hacker at ¶ 41. We agree with appellant

that this finding is dispositive of his appeal and that the statute is not facially

unconstitutional. This clear resolution of appellant’s arguments in Hacker not only

resolves this appeal, it has direct impact on our review of those same arguments moving

forward.

{¶ 14} Since its effective date, multiple facial challenges to the Reagan Tokes Law

have arisen throughout the state. At the time of its decision in Hacker, the Ohio Supreme

Court had ordered the resolution of 167 other cases making the same arguments to be

held pending resolution of that appeal. 153 of those cases being held were recently

“affirmed on the authority of [Hacker].”2 In re Cases Held for State v. Hacker and State

v. Simmons, Slip Opinion No. 2023-Ohio-3863, ¶ 1. Further, including this appeal, this

court has now relied on Hacker three times to find an offender’s facial constitutional

2 The remaining 14 cases were dismissed as having been improvidently accepted. In re. Cases Held at ¶ 3-7.

8. challenge to the Reagan Tokes Law based on the arguments advanced by appellant here

are without merit. State v. Alexander, 2023-Ohio-2708, -- N.E.3d -- (6th Dist.); State v.

Fenderson, 6th Dist. Erie No. E-22-034, 2023-Ohio-2903. Put simply, this facial

challenge to the constitutionality of the Reagan Tokes Law, as argued by appellant, has

already been resolved and does not warrant further consideration by this court in

subsequent appeals.

{¶ 15} Our conclusion that these same arguments do not warrant further analysis

in other appeals arises from the Ohio Supreme Court’s recent resolution of a separate

felony sentencing appeal in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6279, 169

N.E.3d 649, and the application of that holding in subsequent proceedings. In Jones, the

Ohio Supreme Court held that appellate courts could not reverse a felony sentence as

being contrary to law under R.C. 2953.08(G)(2) based on an appellant’s challenge to the

trial court’s consideration of the purposes and principals of felony sentencing in R.C.

2929.11 and the seriousness and recidivism factors in R.C. 2929.12 prior to imposing

sentence. Id. at ¶ 42. Following Jones, we began affirming trial court judgments in

which the assigned error related solely to the trial court’s purportedly erroneous

consideration of R.C. 2929.11 and 2929.12 when determining the appellant’s sentence as

a matter of law. State v. Mockensturm, 6th Dist. Wood Nos. WD-20-007, WD-20-008,

2021-Ohio-881; State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-985;

State v. Wilson, 6th Dist. Lucas No. L-21-1037, 2021-Ohio-3768. In Orzechowski, we

9. held that in light of Jones, “assigning error to the trial court’s imposition of sentence as

contrary to law based solely on its consideration of R.C. 2929.11 and 2929.12 is no

longer grounds for this court to find reversible error.” Orzechowski at ¶ 13 (emphasis

added).

{¶ 16} The Ohio Supreme Court reaffirmed its holding in Jones, and in turn our

holding in Orzechowski, through its decision in State v. Toles, 166 Ohio St.3d 397, 2021-

Ohio-3531, 186 N.E.3d 784. In a single line opinion, the court affirmed the 12th District

Court of Appeals’s decision not to consider Toles’s argument regarding the felony

sentencing factors stating “the court of appeals is affirmed on the authority of [Jones].”

In her concurring opinion, Justice Brunner recognized that while Jones was controlling as

to appellants making the same argument that had already been addressed, that appellants

challenging their sentence with distinct arguments were not precluded from having their

arguments reviewed. We adopted the rationale from Toles in State v. Bowles, 2021-Ohio-

4401, 181 N.E.3d 1226, when we held that “we are squarely prohibited” from reviewing

the arguments raised in Jones and that appeals based on that same argument alone are

“subject to summary resolution as a matter of law.” Bowles at ¶ 11, citing Toles at ¶ 11.

Put simply, once the Ohio Supreme Court clearly resolved the arguments raised in Jones,

it was no longer necessary for appellate courts to address those same arguments each time

they were raised by a new appellant.

10. {¶ 17} Applying that same logic to the present appeal, we find that appellant’s

facial challenges to the constitutionality of the Reagan Tokes Law have been similarly,

definitively resolved. Notably, the Ohio Supreme Court utilized this summary resolution

procedure to affirm nearly all of the cases it had ordered held for resolution in Hacker. In

re. Cases Held at ¶ 1. As a result, any facial challenges to the constitutionality of the

Reagan Tokes Law raised in this court that are indistinguishable from the arguments

raised in this appeal are subject to summary resolution on the authority of Hacker.

{¶ 18} Accordingly, appellant’s arguments in this appeal, while properly raised at

the time he filed his brief, have now been found to be without merit. Therefore, on the

authority of Hacker, we find appellant’s single assignment of error not well-taken.

III. Conclusion

{¶ 19} We find appellant’s single assignment of error not well-taken and we

affirm the July 12, 2022 judgment of the Huron County Court of Common Pleas.

{¶ 20} Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

11. State of Ohio v. Andrew McDonald H-22-012

Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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