[Cite as State v. Watson, 2023-Ohio-1469.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : MICHAEL WATSON : Case No. 22-COA-027 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 19-CRI-194
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 3, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL TIMOTHY HACKETT NADINE HAUPTMAN 250 East Broad Street 110 Cottage Street Suite 1400 Third Floor Columbus, OH 43215 Ashland, OH 44805 Ashland County, Case No. 22-COA-027 2
King, J.
{¶ 1} Defendant-Appellant Michael Watson appeals the July 7, 2022 resentencing
judgment entry of the Ashland County Court of Common Pleas. Plaintiff-Appellee is the State of
Ohio.
Facts and Procedural History
{¶ 2} A recitation of the underlying facts of the offenses is unnecessary to our resolution
of this appeal.
{¶ 3} In 2019, the Ashland County Grand Jury returned an indictment charging Watson
with two counts of aggravated murder, four counts of conspiracy to commit aggravated murder,
two counts of attempted aggravated murder, aggravated burglary, and aggravated robbery, all
with accompanying firearm specifications. Watson was 17-years old when he committed the
crimes.
{¶ 4} On January 24, 2020, pursuant to a plea agreement with the state, Watson agreed
to provide testimony against his co-defendants and plead guilty to all charges. The parties
agreed merger would apply to specific counts and the state elected to have Watson sentenced
for one count of aggravated murder, one count of conspiracy to aggravated murder, and
aggravated robbery. The parties further agreed the specifications merged and the state elected
to have Watson sentenced on the specification accompanying aggravated murder. The parties
jointly agreed to a sentencing recommendation of life in prison with parole eligibility after 30
years for aggravated murder, with a three-year term of incarceration for the accompanying
firearm specification; five to seven and one-half years in prison for conspiracy to aggravated
murder; and five to seven and one-half years in prison for aggravated robbery, to be served
consecutively for an aggregate prison term of thirty-eight years to life in prison. Ashland County, Case No. 22-COA-027 3
{¶ 5} The trial court convicted Watson upon his pleas of guilty and sentenced him in
accordance with the agreed upon sentence.
{¶ 6} Watson filed an appeal from his sentence and conviction arguing his sentence of
thirty-eight years to life in prison was unconstitutional based on the December 22, 2020 decision
of the Ohio Supreme Court in State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d
952. State v. Watson, 5th Dist. Ashland No. 19-CRI-194, 2021-Ohio-1361, ¶ 8 (Watson I). Patrick
held that the trial court must expressly consider the juvenile offender's age as a mitigating factor
when imposing a term of life imprisonment, even if the term includes eligibility for parole. Id. at ¶
2. Because the record in Watson I was devoid of any articulation of consideration of Watson's
youth by the trial court before imposing sentence, this court agreed that Watson's sentence was
unconstitutional. Id. ¶ 10. We reversed Watson's sentence and remanded the matter for
resentencing. Id. ¶ 14.
{¶ 7} On June 27, 2022, the trial court held a new sentencing hearing. Watson presented
mitigation evidence as to youth through the testimony and written report of Dr. Sandra B.
McPherson.
{¶ 8} Dr. McPherson's testimony and report indicated Watson was segregated from the
general population at the time of McPherson's evaluation due to his involvement in an attack on
another inmate. Report (R.) at 2. As to family dynamics, Dr. McPherson reported while Watson's
father went to prison for three years when Watson was eight-years-old, Watson nonetheless
came from an intact home and has a close relationship with his parents. Id. 2-5. Even so,
Watson's family environment consisted of adults making bad choices and modeling antisocial
behavior. Transcript of sentencing hearing (T.) 23. While Watson's father was in prison, his Ashland County, Case No. 22-COA-027 4
mother had to work nights leaving Watson to his own devices. T. 20-21. Watson told Dr.
McPherson he had a "very bad" experience in his first 5 years, but declined to elaborate. T. 21.
{¶ 9} Despite average-to-above-average intelligence in some areas, Watson has
struggled socially and academically. He lacks sharing, collaborative, "getting along" behaviors,
and he is reactive. He has been involved in fights from the time he was in first grade. T. 23, R.
6-7.
{¶ 10} Dr. McPherson explained how the adolescent brain differs from the adult brain,
specifically that phycological aspects do not fully mature until the mid-20's making youth more
impulsive. T. 15-16. While Dr. McPherson found Watson has a history of being anxious,
depressed, and displays some antisocial traits, she did not diagnose him with any severe mental
illness. T. 29-30. She found Watson dependent on nicotine, marijuana, and involved in using
methamphetamine both during the days leading up to his crimes and since he has been
incarcerated. T. 32-37, 42. She believed peer pressure played a role in the commission of
Watson's crimes and further believed he could be rehabilitated. T. 30.
{¶ 11} For its part, the state presented state's exhibit A, a copy of Watson's institutional
report which reflected 27 violations including violations involving violence and controlled
substances.
{¶ 12} The parties did not engage in sentencing negotiations as they had before the first
sentencing hearing. Counsel for Watson, however, advocated for a sentence with earlier parole
eligibility than the originally imposed sentence. The state recommended the original 38 years to
life sentence be reimposed.
{¶ 13} Following a discussion of State v. Patrick, and case law and statutory amendments
which came about after Watson's first sentencing hearing, the trial court resentenced Watson to Ashland County, Case No. 22-COA-027 5
life incarceration for aggravated murder with parole eligibility after 30 years. For conspiracy to
aggravated murder, the trial court imposed an indefinite sentence of five to seven-and-a-half
years. For aggravated robbery Watson was also sentenced to five to seven-and-a-half years.
He was further sentenced to a mandatory three-year term of incarceration for the firearm
specification. The trial court ordered Watson to serve the sentences for conspiracy to aggravated
murder, aggravated robbery, and the firearm specification consecutively to the sentence for
aggravated murder resulting in an aggregate sentence of 43 years to life in prison. Five years
longer than the original sentence.
{¶ 14} Watson filed an appeal and the matter is now before this court for review. He raises
four assignment of error as follow:
I
{¶ 15} "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DISREGARDED
THIS COURT’S SPECIFIC MANDATE ON REMAND AND INSTEAD DECIDED THAT IT WAS
NO LONGER BOUND BY THIS COURT’S PRIOR DECISION OR BY STATE V. PATRICK
VIOLATING THE LAW-OF-THE-CASE DOCTRINE AND MICHAEL’S FUNDAMENTAL
RIGHTS UNDER THE OHIO CONSTITUTION. ARTICLE I, SECTIONS 9, 10, 16, OHIO
CONSTITUTION."
II
{¶ 16} "THE TRIAL COURT IMPOSED AN INCREASED AGGREGATE LIFE
SENTENCE FIVE YEARS LONGER THAN THAT ORIGINALLY IMPOSED OR
RECOMMENDED BY EITHER PARTY. THE NEW SENTENCE IS AT A MINIMUM
PRESUMPTIVELY VINDICTIVE, AND THE RECORD NEITHER OVERCOMES THAT
PRESUMPTION NOR JUSTIFIES THE INCREASED SENTENCE, VIOLATING MICHAEL’S Ashland County, Case No. 22-COA-027 6
DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."
III
{¶ 17} "THE TRIAL COURT’S DECISION TO IMPOSE HEIGHTENED CONSECUTIVE
SENTENCES, FOR AN AGGREGATE LIFE-TERM FIVE YEARS LONGER THAN THAT
ORIGINALLY IMPOSED, FIVE YEARS BEYOND THAT RECOMMENDED BY EITHER PARTY,
AND EIGHTEEN YEARS LONGER THAN MICHAEL’S STATUTORY PAROLE-ELIGIBILITY
DATE, WAS NOT CLEARLY AND CONVINCINGLY SUPPORTED BY THE RECORD. R.C.
2953.08(G); 2929.14(C)(4); 2967.132(B)-(C)."
IV
{¶ 18} "THE TRIAL COURT ERRED WHEN IT IMPOSED INDEFINITE SENTENCES
UNDER THE UNCONSTITUTIONAL REAGAN TOKES LAW, FIFTH, SIXTY, AND
FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE I, SECTIONS 5, 10,
AND 16 OF THE OHIO CONSTITUTION."
{¶ 19} In his first assignment of error, Watson argues the trial court violated law of the
case doctrine when it declined to articulate its consideration of Watson's youth as a mitigating
factor before imposing its sentence. We disagree.
{¶ 20} Law of the case doctrine provides that a decision of a reviewing court in a case
remains the law of the case on the legal questions involved for all subsequent proceedings in
the case at both the trial and reviewing levels. U.S. Bank v. Detweiler, 5th Dist. Stark No. 2011
CA00095, 2012-Ohio-73, ¶ 26, citing Nolan v. Nolan (1984), 11 Ohio St.3d 1, 462 N.E.2d 410
(1984). "After a reviewing court has reversed and remanded a cause for further action in the trial Ashland County, Case No. 22-COA-027 7
court, and the unsuccessful party does not prosecute review to the Supreme Court, the
pronouncement of the law by the intermediate court becomes the law of the case, and must be
followed by the lower court in subsequent proceedings in that case." Pavlides v. Niles Gun Show,
Inc., 112 Ohio App.3d 609, 615, 679 N.E.2d 728 (1996).
{¶ 21} Here Watson argues the trial court refused to follow this court's remand instructions
to resentence him pursuant to State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d
952. As an initial matter, authority relevant to Watson's sentencing complaint has evolved since
his first sentencing hearing. First, on December 23, 2022, the Supreme Court of Ohio issued an
opinion addressing the impact of Jones v. Mississippi, __ U.S. __, 141 S.Ct. 1307, 209 L.Ed.
2d.320 (2021) on its decision in State v. Patrick. It did so in a sentencing challenge identical to
the one Watson has raised, and in the case of Watson's codefendant Tyler Morris. The Court
found:
Although the United States Supreme Court in Jones, –– U.S. –––,
141 S.Ct. 1307, 209 L.Ed.2d 390, held that sentencing courts are not
required to make a finding of permanent incorrigibility before
sentencing a youthful offender to life in prison, that holding does not
extend to negate our decision in Patrick that sentencing courts must
separately consider an offender's youth as a mitigating factor before
sentencing him or her to prison for life. Furthermore, the court in
Jones noted that states are free to require sentencing courts to make
certain findings and/or require sentencing courts to set forth certain
information on the record. Id. at 1323. That is what this court did in Ashland County, Case No. 22-COA-027 8
Patrick. Unless or until the General Assembly chooses to legislate
otherwise, Patrick is still the law in Ohio.
{¶ 22} State v, Morris, -- N.E.3d --, 2022-Ohio-4609, ¶ 16. The matter was remanded to
the trial court with the directive to "resentence him after considering his youth as a mitigating
factor." Id. ¶ 17.
{¶ 23} Second, on January 20, 2023, in State v. Spears, 5th Dist. Fairfield No. 2021 CA
00030, 2023-Ohio-187 this court considered the application of R.C. 2929.19(B)(1)(b), which
became effective April 12, 2021. Said section essentially codified Patrick and directs a trial court
in relevant part as follows:
(b) If the offense was committed when the offender was under
eighteen years of age, in addition to other factors considered,
consider youth and its characteristics as mitigating factors, including:
(i) The chronological age of the offender at the time of the offense
and that age's hallmark features, including intellectual capacity,
immaturity, impetuosity, and a failure to appreciate risks and
consequences;
(ii) The family and home environment of the offender at the time of
the offense, the offender's inability to control the offender's
surroundings, a history of trauma regarding the offender, and the
offender's school and special education history; Ashland County, Case No. 22-COA-027 9
(iii) The circumstances of the offense, including the extent of the
offender's participation in the conduct and the way familial and peer
pressures may have impacted the offender's conduct;
(iv) Whether the offender might have been charged and convicted of
a lesser offense if not for the incompetencies associated with youth,
such as the offender's inability to deal with police officers and
prosecutors during the offender's interrogation or possible plea
agreement or the offender's inability to assist the offender's own
attorney;
(v) Examples of the offender's rehabilitation, including any
subsequent growth or increase in maturity during confinement.
{¶ 24} In Spears, due to the lack of precedent regarding what appropriate consideration
of the above outlined factors looks like, we likened the analysis to that of the sentencing
considerations contained R.C. 2929.11 and 2929.12 which require only that the trial court
consider both R.C. 2929.11 and 2929.12 before imposing a prison sentence, and with no
requirement to make specific findings under any of those considerations. Spears at ¶ 38 citing
State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88
Ohio St.3d 208, 724 N.E.2d 793 (2000). Even so, we noted:
While precedent does not require the trial court to produce findings,
our holdings with regard to R.C. 2929.11 and R.C. 2929.12 require
that the "necessary findings can be found in the record," State v. Ashland County, Case No. 22-COA-027 10
Taylor, 5th Dist. Richland No. 17CA29, 2017-Ohio-8996, 2017 WL
6371306, ¶ 27, State v. Webb, 5th Dist. Muskingum No. CT2018-
0069, 2019-Ohio-4195, 2019 WL 5092631, ¶ 19 or that "the record
reflect[ ] that the trial court considered the purposes and principles of
sentencing and the seriousness and recidivism factors as required in
Sections 2929.11 and 2929.12 of the Ohio Revised Code." State v.
Hayes, 5th Dist. Knox No. 18CA10, 2019-Ohio-1629, 2019 WL
1938718, ¶ 55. See State v. Green, 7th Dist., 2021-Ohio-2412, 173
N.E.3d 876, ¶ 63 and State v. Hughes, 6th Dist. Wood No. WD-05-
024, 2005-Ohio-6405, 2005 WL 3254572, ¶ 10. The mandate of R.C.
2929.19, that the trial court consider specific factors, is sufficiently
similar to the language of R.C. 2929.11 and R.C. 2929.12 to warrant
to the same analysis. Consequently, while the trial court need not
specify findings regarding the factors listed in R.C. 2929.19(B)(1)(b),
we must review the record to determine whether it affirmatively
shows the court failed to consider those factors.
{¶ 25} Spears at ¶ 40.
{¶ 26} Against that background, Watson supports his argument that the trial court failed
to comply with this court's directive on remand with quotes from the trial court indicating its
disagreement with this court and its opinion that Patrick was no longer good law. T. 6-7, 18, 59.
While inappropriate, despite its bluster the trial court's comments are inconsequential because Ashland County, Case No. 22-COA-027 11
the record reflects it ultimately did comply with this court's directive to consider Watson's youth
before imposing a sentence which included a potential term of life imprisonment.
{¶ 27} The trial court first listened to the lengthy testimony of Dr. McPherson who
discussed the following: immaturity and impetuosity inherent to youth including Watson;
Watson's less than ideal home environment and family dynamics; that peer pressure may have
contributed to Watson's conduct; and that while he may have anxiety and depression challenges,
he does not suffer serious mental illness. Dr. McPherson's opinions were also contained in her
report which Watson provided to the trial court and the trial court reviewed. The state submitted
Watson's institutional report which reflected 27 infractions including violations involving violence
and controlled substances. In fashioning a sentence, the trial court specifically noted it had
considered the purposes and principals of sentencing including the five additional youth factors
set forth in R.C. 2929.19(B)(1)(b) as well as Dr. McPherson's report. The trial court also noted it
had sat through the trial of Watson's codefendant and heard how the murder and attempted
murder were planned, observed that Watson's testimony suggested he "enjoyed seeing the
reaction of the victims" and that he "rather enjoyed the situation." The court also mentioned
Watson's institution report and the fact that his behavior in the institution "sounds eerily like the
situation that led to the offenses in this case." T. 92-101.
{¶ 28} We find, therefore, that despite its apparent distaste for this court's decision to
overrule the first sentence and then remand, the record reflects the trial court adequately
complied with this court's directive to articulate consideration of Watson's youth before imposing
a sentence which included a potential term of incarceration for life.
{¶ 29} The first assignment of error is overruled.
II Ashland County, Case No. 22-COA-027 12
{¶ 30} In his second assignment of error, Watson argues the sentence imposed by the
trial court on remand was an impermissible vindictive sentence imposed to punish him for his
successful appeal. We disagree.
{¶ 31} We have previously addressed an allegation of vindictive sentencing in State v.
Moore, 5th Dist. Knox No. 07-CA-19, 2007-Ohio-6826. In that matter we reviewed North Carolina
v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and its progeny. In Pearce, the
United States Supreme Court set aside the sentence of a state prisoner who had successfully
appealed his conviction but upon remand was given a harsher sentence. The Court stated that
a defendant's due process rights were violated when, after a successful appeal, a harsher
sentence was imposed because of vindictiveness. The Court went on to hold that, if a more
severe sentence is imposed following appeal, the reasons for the harsher sentence must appear
on the record and must be "based upon objective information concerning identifiable conduct on
the part of the defendant occurring after the time of the original sentencing proceeding." Id. at
726.
{¶ 32} While Pearce does not prohibit a trial court from imposing a longer sentence on
remand, it does require the court to give reasons for the increased sentence in order to overcome
a presumption of vindictiveness including conduct or events which cast " ' new light upon the
defendant's life, health, habits, conduct, and mental and moral propensities.' " Wasman v. United
States, 468 U.S. 559, 570–571, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984) citing Williams v. New
York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949).
{¶ 33} "In Ohio, it has generally been held that 'a presumption of vindictiveness arises
when the same judge imposes a harsher sentence following a successful appeal.' " State v.
Ferrell, 2021-Ohio-1259, 170 N.E.3d 464, ¶ 17 (11th Dist.). Here, the resentencing was Ashland County, Case No. 22-COA-027 13
performed by the same judge as the original sentencing. Watson received an objectively harsher
sentence since his prison term was lengthened by five years. The issue before us then is whether
the presumption of vindictiveness arising from the harsher sentence is rebutted by the record.
In order to overcome the presumption of vindictiveness, the trial court must make affirmative
findings on the record regarding conduct or events that occurred or were discovered after the
original sentencing. State v. Thrasher, 178 Ohio App.3d 587, 2008-Ohio-5182, 899 N.E.2d 193,
¶ 17 (2nd Dist.), citing Pearce and Wasman.
{¶ 34} In support of his argument that the presumption was not rebutted, Watson again
points to the same comments made by the trial court during sentencing that he relied upon in
the first assignment of error. The trial court indicated this court and "perhaps the Ohio Supreme
Court were just flat out wrong." T. 59. It referenced a case that appeared to be have been
reversed by this court on a community control issue but also appeared unrelated to this case,
generally suggesting opinions from this court are baffling. T. 61-62 It further suggested the
parties could "knock yourselves out" on appeal, a "waste of the taxpayer's money," and that
"infinite" appeals did not matter to the trial court because "I won't be here the next time this issue
comes before this court." T. 19, 67-68.
{¶ 35} We agree that the commentary from trial judge (who is now retired) was wholly
inappropriate. The trial judge should have refrained from the all improper commentary, which
was heard by the defendant, attorneys, and the public present. The public needs to have the
utmost confidence that the trial judge will follow the law without bias or passion. And improper
commentary such as this could undermine the public’s confidence in a judge’s ability to apply
the law fairly. So although we find that the trial judge applied the mandate from this court Ashland County, Case No. 22-COA-027 14
properly, the judge should have done so without being combative towards this court and
interjecting his personal opinion into the hearing.
{¶ 36} Thus we find the judge's personal commentary was unrelated to the new sentence.
Moreover, the trial court was presented with new information which cast new light on Watson's
conduct, mental and moral propensities. As discussed under the first assignment of error, the
trial court sat through the trial of Watson's codefendant, heard how the murder and attempted
murder were planned and carried out, and the trial court observed during the resentencing that
Watson's testimony suggested he "enjoyed seeing the reaction of the victims" and "rather
enjoyed the situation." For that reason, the trial court "somewhat beg[ged] to differ" with Dr.
McPherson's conclusion that a diagnosis of psychopathy did not apply to Watson. It also noted:
[Y]our accomplice in this matter, Tyler Morris, whose name was
mentioned during this hearing, received a sentence of similar nature
* * *as what you were originally sentenced to in this matter. It might
have been a little different on the parole eligibility, but he wasn't the
trigger man, you were. You were the one that engaged in the actual
act which puts your responsibility a little higher up the totem than Mr.
Morris.
{¶ 37} T. 100. The court was also presented with new information contained in Dr.
McPherson's report and testimony.1 Finally, the trial court was provided with new information in
1 For reasons unclear in the record, Watson had previously waived preparation of a presentence investigation prior to his pleas. Thus Dr. McPherson's report and information gleaned from Morris' trial were entirely new Ashland County, Case No. 22-COA-027 15
the form of Watson's unfavorable institution report which contained offenses it found "eerily"
similar to Watson's crimes.
{¶ 38} All of these things occurred or were discovered after Watson's original sentencing
hearing. Moreover, the trial court made it clear the harsher sentence was based on its
observations during trial, the fact that Watson was the "trigger man," and Watson's misconduct
in prison. We find these statements by the trial court sufficient to overcome the presumption of
vindictiveness.
{¶ 39} The second assignment of error is overruled.
{¶ 40} Watson next appears to argue his consecutive sentences are not supported by the
record and the imposition of consecutive sentences interferes with the function of the Adult
Parole Authority. We disagree.
{¶ 41} R.C. 2929.14(C)(4) states:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to
information. We note the judgment entry appealed from indicates a presentence investigation was prepared which is apparently inaccurate. Ashland County, Case No. 22-COA-027 16
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual
that no single prison term for any of the offenses committed as part
of any of the courses of conduct adequately reflects the seriousness
of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶ 42} R.C. 2953.08(G)(2) requires this court to review the record de novo and decide
whether the record clearly and convincingly does not support the consecutive-sentence findings.
State v, Gwynne, --- NE.3d --- 2022-Ohio-4607 ¶ 1. When imposing consecutive sentences, a
trial court must state the required findings at the sentencing hearing. State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. Because a court speaks through its journal,
the court should also incorporate its statutory findings into the sentencing entry. Id. However, a Ashland County, Case No. 22-COA-027 17
word-for-word recitation of the language of the statute is not required. Id. As long as the
reviewing court can discern the trial court engaged in the correct analysis and can determine the
record contains evidence to support the findings, consecutive sentences should be upheld. Id.
{¶ 43} Watson does not dispute that the trial court recited the appropriate statutory
findings on the record and in its sentencing judgment entry pursuant to R.C. 2929.14(C)(4)
before imposing consecutive sentences. Instead, he asks we find the record does not support
the imposition of consecutive sentences, and conflicts with R.C. 2967.132(C).
{¶ 44} R.C. 2967.132(C) became effective on April 12, 2021. That section provides:
(C) Notwithstanding any provision of the Revised Code to the
contrary, and regardless of when the offense or offenses were
committed and when the sentence was imposed, a prisoner who is
serving a prison sentence for an offense other than an aggravated
homicide offense and who was under eighteen years of age at the
time of the offense, or who is serving consecutive prison sentences
for multiple offenses none of which is an aggravated homicide
offense and who was under eighteen years of age at the time of the
offenses, is eligible for parole as follows:
(1) Except as provided in division (C)(2) or (3) of this section, the
prisoner is eligible for parole after serving eighteen years in prison.
(2) Except as provided in division (C)(3) or (4) of this section, if the
prisoner is serving a sentence for one or more homicide offenses,
none of which are an aggravated homicide offense, the prisoner is
eligible for parole after serving twenty-five years in prison. Ashland County, Case No. 22-COA-027 18
(3) Except as provided in division (C)(4) of this section, if the prisoner
is serving a sentence for two or more homicide offenses, none of
which are an aggravated homicide offense, and the offender was the
principal offender in two or more of those offenses, the prisoner is
eligible for parole after serving thirty years in prison.
(4) If the prisoner is serving a sentence for one or more offenses and
the sentence permits parole earlier than the parole eligibility date
specified in division (C)(1), (2), or (3) of this section, the prisoner is
eligible for parole after serving the period of time in prison that is
specified in the sentence.
{¶ 45} An "aggravated homicide offense" is defined in R.C. 2967.132(A)(1) as:
(1) “Aggravated homicide offense” means any of the following that
involved the purposeful killing of three or more persons, when the
offender is the principal offender in each offense:
(a) Aggravated murder;
(b) Any other offense or combination of offenses that involved the
purposeful killing of three or more persons.
{¶ 46} Further relevant, the section states: Ashland County, Case No. 22-COA-027 19
(2) “Homicide offense” means a violation of section 2903.02,
2903.03, 2903.04, or 2903.041 of the Revised Code or a violation of
section 2903.01 of the Revised Code that is not an aggravated
homicide offense.
(B) This section applies to any prisoner serving a prison sentence for
one or more offenses committed when the prisoner was under
eighteen years of age. Regardless of whether the prisoner's stated
prison term includes mandatory time, this section shall apply
automatically and cannot be limited by the sentencing court.
{¶ 47} Watson's aggravated murder conviction was based on the killing of one victim
making R.C. 2967.132(C)(2) applicable, making Watson eligible for parole after 25 years.
Watson argues the trial court's decision to order consecutive sentences that result in a term of
incarceration beyond his parole eligibility date does nothing to protect the public from future
crime and thus creates an excessive sentence.
{¶ 48} First, Watson argues that whenever a youthful offender is subject to a life sentence
a sentencing court should not set the term of the proceeding determinate sentence beyond the
when the offender is eligible for parole under R.C. 2967(C). We disagree.
{¶ 49} We first note that R.C. 2929.02(B)(3) directs the trial court to impose a sentence
of 30 years to life here because of Watson’s age at the time of the offense of aggravated murder.
Because Watson is serving a life sentence for aggravated murder, R.C. 2967.13(A)(1) would
normally apply here and require Watson to serve 43 years before he would be eligible for parole. Ashland County, Case No. 22-COA-027 20
But R.C. 2967.132 intervenes instead to allow the Adult Parole Authority to consider Watson for
parole after he serves just 25 years of his 43-year sentence.
{¶ 50} If the import of R.C. 2967.132 is as Watson suggests, then a sentencing court
would not be permitted impose the 30-year-to-life sentence required by R.C. 2929.02(B)(3), even
before considering whether to run the sentences consecutively. This is not permissible as
"judges are duty-bound to apply sentencing laws as they are written." State v. Anderson, 143
Ohio St.3d 173, 2015-Ohio-2089,3 5 N.E.3d 512 ¶ 10 citing Woods v. Telb, 89 Ohio St.3d 504,
507-509, 733 N.E.2d 1103 (2000). Likewise, sentencing courts should continue to impose the
properly calculated sentence even in situations where consecutive sentences result in a
determinate sentence in excess of the required time served for parole eligibility under R.C.
2967.132.
{¶ 51} Further, even if we were to determine that there was conflict among these
provisions, we are required by R.C. 1.51 to give effect to both provisions whenever possible.
Accordingly, the determinate sentence of 43 years was not improper.
{¶ 52} Second, as discussed above, the trial court placed extensive findings on the record
concerning information it did not have at Watson's first sentencing hearing including what it
learned during Morris' trial, Dr. McPherson's testimony and report, and Watson's institution
report. The trial court's consideration of all of these factors lead us to a conclusion that the record
clearly and convincingly supports the consecutive sentence findings.
{¶ 53} The third assignment of error is overruled.
{¶ 54} In his final assignment of error, appellant challenges his indefinite sentences
pursuant to the Reagan Tokes Act, codified in R.C. 2967.271. Ashland County, Case No. 22-COA-027 21
{¶ 55} We rejected the same challenge in State v. Householder, 5th Dist. Muskingum No.
CT2021-0026, 2022-Ohio-1542, ¶ 6:
For the reasons stated in the dissenting opinion of The Honorable W.
Scott Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021,
2020-Ohio-5501, we find the Reagan Tokes Law does not violate
Appellant's constitutional rights to trial by jury and due process of
law, and does not violate the constitutional requirement of separation
of powers. We hereby adopt the dissenting opinion in Wolfe as the
opinion of this Court. In so holding, we also note the sentencing law
has been found constitutional by the Second, Third, Sixth, and
Twelfth Districts, and also by the Eighth District sitting en banc. See,
e.g., State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-
Ohio-4153; State v. Hacker, 3rd Dist. Logan No. 8-20-01, 2020-Ohio-
5048; State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2022-Ohio-
1350; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-
Ohio-3837; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-
Ohio-470. Further, we reject Appellant's claim the Reagan Tokes Act
violates equal protection for the reasons stated in State v. Hodgkin,
12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353.
{¶ 56} The final assignment of error is overruled.
{¶ 57} The judgment of the Ashland County Court of Common Pleas is affirmed. Ashland County, Case No. 22-COA-027 22
By King, J.,
Gwin, P.J. and
Baldwin, J. concur.
AJK/rw