State v. Perrin

2022 Ohio 4310

• Court: Ohio Court of Appeals
• Decided: December 2, 2022
• Docket: L-22-1017
• Status: Published

Opinion

[Cite as State v. Perrin, 2022-Ohio-4310.]

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

State of Ohio Court of Appeals No. L-22-1017

Appellee Trial Court No. CR0202002218

v.

Tony Perrin DECISION AND JUDGMENT

Appellant Decided: December 2, 2022

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.

Brian A. Smith, for appellant.

PIETRYKOWSKI, J.

{¶ 1} Defendant-appellant, Tony Perrin, appeals the December 21, 2021 judgment

of the Lucas County Court of Common Pleas which, following his guilty plea to

trafficking in cocaine, sentenced him to a minimum mandatory prison term of five years.

Because we find no error, we affirm. I. Facts

{¶ 2} Appellant was indicted on October 6, 2020 for trafficking in cocaine, a first

degree felony, and illegal conveyance of drugs on the grounds of a specified

governmental facility, a third degree felony. The charges stemmed from an incident on

December 21, 2019, where, after a traffic stop was initiated following a shoplifting

incident, appellant was discovered with 21 grams of marijuana in his vehicle; crack

cocaine was also found as well as a large sum of cash. Once booked into the jail, 29.79

grams of crack cocaine was found in appellant’s groin area.

{¶ 3} On August 17, 2021, appellant entered a guilty plea to the amended charge

of trafficking in cocaine, a second-degree felony, and the state agreed it would dismiss

the illegal conveyance charge. Appellant was informed of the agreed-upon sentence

which was a mandatory two-year prison term and the indefinite one-year portion of the

term. Appellant was also informed of the minimum and maximum prison terms for the

offenses. Appellant acknowledged the $6,757.40 civil forfeiture as well as the minimum

mandatory fine of $7,500, with a maximum fine of $15,000.

{¶ 4} Appellant failed to appear at the sentencing hearing scheduled for October 5,

2021. A warrant was issued and bond was set at $30,000, no ten per cent. Appellant

posted bond on November 9. Appellant arrived late to the November 16 pretrial and

bond was reset at $150,000, no ten per cent, on each of the two counts and he was placed

on electronic monitoring. Appellant posted the $300,000 bond. Appellant again failed to

2. appear at his sentencing on December 14, 2021, and bond was revoked; appellant was

remanded into custody.

{¶ 5} At appellant’s December 21, 2021 sentencing hearing, the court first noted

that the court was no longer bound by the agreed-upon, two-year sentence because

appellant failed to appear in court and violated his bond conditions. Appellant’s counsel

acknowledged that appellant’s reasons for failing to appear in court were not credible and

that he lost an “immense amount of money” when he forfeited bond. The state then

requested that a nolle prosequi be entered as to the illegal conveyance charge and that the

$6,757.40 be forfeited.

{¶ 6} Addressing appellant, the court then noted that his attorney worked “very

hard for you on your behalf to negotiate that 2-year sentence, and one person and only

one person blew that sentence, and that’s you, in failing to come to court for your

sentence, and then failing to abide by the conditions of the bond that this court set.”

{¶ 7} In sentencing appellant, the court noted that it was appellant’s third felony

conviction and eighteenth adult misdemeanor conviction. The court then sentenced him

to a mandatory five-year imprisonment term with a maximum term of seven and one-half

years. The court further imposed a mandatory fine of $7,500. This appeal followed.

3. II. Assignments of Error

I. The trial court’s sentence of Appellant was contrary to law for not

properly considering the principles and purposes of felony sentencing under

R.C. 2929.11 or the seriousness and recidivism factors under R.C. 2929.12.

II. The failure of Appellant’s trial counsel to file an affidavit of

indigency and seek a waiver of the mandatory fine imposed under R.C.

2925.11(E)(1)(a) and 2929.18(B)(1) constituted ineffective assistance of

counsel under the Sixth and Fourteenth Amendments to the United States

Constitution and Article I, Section 10 of the Ohio Constitution.

III. R.C. 2967.[2]71, also known as the “Reagan Tokes Act,” which

allows the Ohio Department of Rehabilitation and Correction to unilaterally

extend Appellant’s sentence, is unconstitutional under both the United

States Constitution, Arts. I, II. and III, and Amends.V, VI and XIV, and the

Ohio Constitution, Art. I, § 10, and Art. IV, §§ 1 and 3(B)(2).

III. Discussion

{¶ 8} In appellant’s first assignment of error he asserts that his sentence is contrary

to law because the court failed to properly consider the principles and purposes of felony

sentencing, R.C. 2929.11, or the seriousness and recidivism factors under R.C. 2929.12.

Appellant contends that he was sentenced to five years in prison solely due to a bond

violation.

4. {¶ 9} The court reviews criminal sentences under R.C. 2953.08(G)(2) which

allows us to “increase, reduce, or otherwise modify a sentence,” or “vacate the sentence

and remand the matter to the sentencing court for resentencing” if we clearly and

convincingly find either “(a) That the record does not support the sentencing court’s

findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if

any, is relevant,” or “(b) That the sentence is otherwise contrary to law.”

{¶ 10} Here, appellant argues that the trial court’s imposition of the five-year

prison sentence does not achieve the principles and purposes of sentencing under R.C.

2929.11, and that the court improperly weighed various factors under R.C. 2929.12.

Appellant asserts that the sentence was retribution for his failure to appear before the

court on multiple occasions based upon the discussion at sentencing.

{¶ 11} The Ohio Supreme Court has clarified that “[n]othing in R.C.

2953.08(G)(2) permits an appellate court to independently weigh the evidence in the

record and substitute its judgment for that of the trial court concerning the sentence that

best reflects compliance with R.C. 2929.11 and 2929.12.” State v. Jones, 163 Ohio St.3d

242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42. We acknowledge, however, that the Ohio

Supreme Court recently found that a sentencing court acted contrary to law when it

increased a defendant’s sentence by six years, immediately after the initial sentencing and

following an outburst in court. State v. Bryant, Slip Opinion No. 2022-Ohio-1878. In

5. Bryant, the court explained that the Jones limitation on an appellate court’s interpretation

that the factors under R.C. 2929.11 , 2929.12, did not support the trial court’s sentence,

did not prevent appellate review and reversal of a sentence based upon “impermissible

considerations.” Id. at ¶ 22. The court concluded that “when a trial court imposes a

sentence based on factors or considerations that are extraneous to those that are permitted

by R.C. 2929.11 and 2929.12, that sentence is contrary to law.” Id.

{¶ 12} In the present matter, at sentencing trial counsel acknowledged that because

appellant failed to appear at sentencing and violated the terms of his bond, the court was

no longer bound by the two-year joint sentencing recommendation. The court

specifically noted that “the court’s sentence today considers only the underlying charge”

and that the bond violations would be more relevant to a possible community control

sentence for which appellant was not eligible.

{¶ 13} In sentencing appellant, the court stated that it considered R.C. 2929.11 and

2929.12. The court then sentenced appellant to a five-year mandatory prison term

specifically noting his extensive criminal record. After careful review of the record, we

find no “impermissible considerations” of the nature espoused in Bryant, supra.

Appellant’s sentence is not contrary to law and, accordingly, appellant’s first assignment

of error is not well-taken.

{¶ 14} In his second assignment of error, appellant argues that trial counsel was

ineffective in failing to file an affidavit of indigency seeking a waiver of the mandatory

6. fine imposed under R.C. 2925.11(E)(1)(a) and 2929.18(B)(1), as there was a reasonable

probability that appellant would have been found indigent. Appellant asserts this

argument based on the “substantial financial loss” he suffered by forfeiting his bond and

the fact of his mandatory five-year sentence. Appellant further states that although he

retained counsel, it was early in the proceedings, October 2020, and that one could not

infer that his financial resources in December 2021, were unaltered.

{¶ 15} In order to prove that trial counsel was ineffective, an appellant must

demonstrate that counsel’s performance was deficient and that the deficient performance

prejudiced the defense such that, absent the deficient representation, the outcome of the

proceeding would likely have been different. Strickland v. Washington, 466 U.S. 668,

686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, appellant must demonstrate that had

trial counsel filed an affidavit of indigency, there was a reasonable probability that he

would have been found indigent.

{¶ 16} R.C. 2925.11(E)(1)(a) states that “[i]f the violation is a felony of the first,

second, or third degree, the court shall impose upon the offender the mandatory fine

specified for the offense under division (B)(1) of section 2929.18 of the Revised Code

unless, as specified in that division, the court determines that the offender is indigent.”

R.C. 2929.18(B)(1) provides:

For a first, second, or third degree felony violation of any provision

of Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing court

7. shall impose upon the offender a mandatory fine of at least one-half of, but

not more than, the maximum statutory fine amount authorized for the level

of the offense pursuant to division (A)(3) of this section. If an offender

alleges in an affidavit filed with the court prior to sentencing that the

offender is indigent and unable to pay the mandatory fine and if the court

determines the offender is an indigent person and is unable to pay the

mandatory fine described in this division, the court shall not impose the

mandatory fine upon the offender.

{¶ 17} Here, appellant was convicted of trafficking in cocaine in violation of R.C.

2925.03(A)(2) and (C)(4)(e), a felony of the second degree. Under R.C. 2929.18(A)(2),

that offense is subject to a fine of “not more than fifteen thousand dollars.” Thus,

pursuant to R.C. 2925.11(E)(1)(a) and 2929.18(B)(1), the court was required to impose a

mandatory fine of at least one-half of that amount, $7,500, unless the court determined

that appellant was indigent.

{¶ 18} On multiple occasions this court has addressed the issue of whether trial

counsel was ineffective by failing to file an affidavit of indigency on behalf of his or her

client in regards to the imposition of a mandatory fine. See State v. Windon, 6th Dist.

Sandusky No. S-20-012, 2021-Ohio-617 (analyzing several Sixth Appellate District

cases.) This court has examined factors such as employment history, education, whether

8. the defendant had retained counsel or had previously been found indigent and appointed

counsel, age, and length of prison term.

{¶ 19} In the present matter appellant argues that the forfeiture of his bond,

demonstrating substantial financial loss, combined with his incarceration shows that the

court would have found him to be indigent. Appellant further claims that although he

retained counsel, the fact that over a year had passed since his arraignment fails to

support his present ability to pay.

{¶ 20} Conversely, the state argues that the presentence investigation report

prepared in the matter showed that on the date of appellant’s sentencing he was 35 years

old and had been employed for seven years. There was no indication that he suffered any

disability that would prevent him from seeking employment following release from

prison. Finally, the state asserts that appellant’s ability to forfeit two large bonds

evidences his financial solvency.

{¶ 21} In the present case, we find that appellant was 35 at the time of sentencing

and had been employed for seven years at the same company and was also self-employed

doing odd jobs. Appellant stated that he had rods in his leg which impacted his walking,

that he was a diabetic, and that he was suffering from depression. Appellant retained

counsel during the pendency of the appeal and forfeited two bonds during the

proceedings.

9. {¶ 22} Based on the foregoing, we conclude that appellant has the ability to

maintain employment following his release from prison and, thus, there is no reasonable

probability that the court would have found appellant indigent and waived the mandatory

fine under R.C. 2929.18(B)(1). Appellant’s second assignment of error is not well-taken.

{¶ 23} In his third and final assignment of error appellant argues that the Reagan

Tokes Act, R.C. 2967.271, violates the separation of powers doctrine because it grants

the Ohio Department of Rehabilitation and Correction (ODRC) the power to unilaterally

extend appellant’s sentence beyond the mandatory minimum. This issue has been

decided by this court. See State v. Stenson, 2022-Ohio-2072, 190 N.E.3d 1240 (6th Dist.)

In Stenson, rejecting the argument that the ODRC’s ability to rebut the presumptive

minimum sentence violates the separation of powers doctrine, we found that like the

discretionary system of parole and postrelease control controlled by the parole board and

found constitutional, the ODRC has the ability to extend the minimum sentence of a

defendant up to but not exceeding the maximum sentence that was imposed by the court.

Id. at ¶ 20. See also State v. Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio-1620, ¶

36. Accordingly, because we find that the Reagan Tokes Act does not violate the

separation of powers doctrine, appellant’s third assignment of error is not well-taken.

10. IV. Conclusion

{¶ 24} On consideration whereof, we find the December 21, 2021 judgment of the

Lucas County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is

ordered to pay the costs of this appeal.

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.

Mark L. Pietrykowski, J. ____________________________ JUDGE Thomas J. Osowik, 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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