State v. Murphy
Citation2021 Ohio 4541
Date Filed2021-12-27
DocketCA2021-05-048
JudgeHendrickson
Cited16 times
StatusPublished
Syllabus
The trial court's plea colloquy complied with the requirements of Crim.R. 11(C)(2) and the record demonstrated appellant understood the nature of the aggravated arson charge. The trial court considered the purposes and principles of sentencing as set forth in R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12 in imposing an indefinite prison term of 10 to 15 years. Appellant forfeited his constitutional challenge to the Reagan Tokes Law, specifically R.C. 2967.271, by not first raising the issue with the trial court. R.C. 2929.18(A) authorized the court to impose the cost of postrelease control supervision.
Full Opinion (html_with_citations)
[Cite as State v. Murphy,2021-Ohio-4541
.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-05-048
: OPINION
- vs - 12/27/2021
:
MASTON L. MURPHY, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2021-01-0050
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
HENDRICKSON, J.
{¶ 1} Appellant, Maston L. Murphy, appeals from his conviction and sentence in the
Butler County Court of Common Pleas following his guilty plea to aggravated arson. For
the reasons discussed below, we affirm in part, reverse in part, and remand this matter to
the trial court for the limited purpose of issuing a nunc pro tunc sentencing entry.
{¶ 2} On February 10, 2021, appellant was indicted on four counts of aggravated
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arson in violation of R.C. 2909.02(A)(1), felonies of the first degree, and one count of arson
in violation of R.C. 2909.03(A)(1), a felony of the fourth degree. The charges arose out of
allegations that on or about January 1, 2021, appellant set fire to a vehicle parked near his
wife's home. The fire spread to the home, where appellant's wife, two children, and another
male were staying, thereby exposing them to a substantial risk of serious physical harm.
{¶ 3} Appellant initially pled not guilty to the offenses. However, on March 24, 2021,
following plea negotiations, appellant pled guilty to one count of aggravated arson, as it
related to his wife, in exchange for the state dismissing the remaining charges. The trial
court engaged appellant in a Crim.R. 11(C)(2) colloquy and accepted appellant's guilty plea
after finding the plea had been knowingly, intelligently, and voluntarily entered. On April 29,
2021, appellant was sentenced to an indefinite prison term of 10 to 15 years and was
advised that he would be subject to a mandatory five-year period of postrelease control
upon his release. Appellant was further advised that he had to register as an arson offender
on the arson registry for the remainder of his life. The court's sentencing entry ordered
appellant to pay the "[c]osts of prosecution, supervision and any supervision fees permitted
pursuant to Revised Code Section 2929.18(A)(4)."
{¶ 4} Appellant now appeals from his conviction and sentence, raising five
assignments of error for review.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE GUILTY-PLEA COLLOQUY VIOLATED RULE 11(C)(2).
{¶ 7} In his first assignment of error, appellant argues his guilty plea was not
knowingly, intelligently, and voluntarily entered because he did not understand the nature
of the charge to which he pled guilty.
{¶ 8} "'When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement
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of the plea unconstitutional under both the United States Constitution and the Ohio
Constitution.'" State v. Tipton, 12th Dist. Madison No. CA2020-05-011, 2021-Ohio-1128, ¶
10, quoting State v. Engle,74 Ohio St.3d 525, 527
(1996). "Crim.R. 11(C) prescribes the process that a trial court must use before accepting a plea of guilty to a felony." State v. Bishop,156 Ohio St.3d 156
,2018-Ohio-5132, ¶ 11
. The rule "ensures an adequate record on review by requiring the trial court to personally inform the defendant of his rights and the consequences of his plea and determine if the plea is understandingly and voluntarily made." State v. Stone,43 Ohio St.2d 163, 168
(1975). This requires the trial court to notify the defendant of the constitutional rights identified in Crim.R. 11(C)(2)(c) and to make the required determinations and give the necessary warnings set forth in Crim.R. 11(C)(2)(a) and (b).Bishop at ¶ 11
, citing State v. Veney,120 Ohio St.3d 176
,2008-Ohio-5200
, ¶ 13.
{¶ 9} Specifically, Crim.R. 11(C)(2) provides that, in felony cases, the trial court may
refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty
or no contest, without first addressing the defendant personally and doing the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
of the maximum penalty involved, and, if applicable, that the
defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights
to jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant's
favor, and to require the state to prove the defendant's guilt
beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.
{¶ 10} In State v. Dangler, 162 Ohio St.3d 1,2020-Ohio-2765
, "the Ohio Supreme
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Court addressed a trial court's compliance with Crim.R. 11(C) and the method of reviewing
a trial court's plea colloquy to ensure that a defendant's plea is knowingly and voluntarily
entered." State v. Broughton, 12th Dist. Clinton No. CA2020-09-011, 2021-Ohio-2987, ¶
16. As the Ohio Supreme Court explained, aside from two exceptions, "a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of Crim.R. 11(C)."Dangler at ¶ 16
. The first
exception occurs "[w]hen a trial court fails to explain the constitutional rights [set forth in
Crim.R. 11(C)(2)(c)] that a defendant waives by pleading guilty or no contest[.]" Id. at ¶ 14.
When this occurs, "we presume that the plea was entered involuntarily and unknowingly,
and no showing of prejudice is required." Id. The second exception occurs as a result of
"a trial court's complete failure to comply with a portion of Crim.R. 11(C)[.]" (Emphasis sic.)
Id. at ¶ 15. This, too, "eliminates the defendant's burden to show prejudice." Id. Therefore,
as set forth in Dangler, the questions to be answered when reviewing a trial court's plea
colloquy under Crim.R. 11(C) are threefold:
(1) has the trial court complied with the relevant provision of the
rule? (2) if the trial court has not complied fully with the rule, is
the purported failure of a type that excuses a defendant from the
burden of demonstrating prejudice? and (3) if a showing of
prejudice is required, has the defendant met that burden?
Id. at ¶ 17.
{¶ 11} Appellant contends the trial court failed to comply with Crim.R. 11(C)(2)(a) as
the court failed to ensure appellant understood the nature of the charge. In support of his
argument, appellant notes that the state did not provide a recitation of the facts at the plea
hearing and the trial court did not engage in a "meaningful discussion" of the elements of
aggravated arson during the plea colloquy, including the mens rea element of "knowingly"
and the element of creating a substantial risk of serious harm. Appellant's arguments are
similar to the arguments made by the defendant in State v. Fitzpatrick, 102 Ohio St.3d 321,
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2004-Ohio-3167.
{¶ 12} In Fitzpatrick, the defendant pled guilty to two counts of aggravated murder
and one count of aggravated murder of a child and was sentenced to death Id. at ¶ 30, 32.
He appealed to the Ohio Supreme Court, arguing that his guilty plea was not knowing and
intelligent because the court failed to comply with Crim.R.11(C)(2)(a) by neglecting to
ensure that he understood the nature of the charges. Id. at ¶ 55. The defendant claimed
that "the trial court should have explained to him the legal definitions of 'purposely' and 'prior
calculation and design.'" Id. The supreme court rejected the defendant's arguments, noting
that "'a detailed recitation of the elements of the charge is not required under Crim.R.
11(C)(2)(a)'" Id. at ¶ 57, quoting State v. Swift, 86 Ohio App.3d 407, 412(11th Dist.1993). "Moreover, the Constitution does not require that a trial court explain the elements of the charge, at least where the record contains a representation by defense counsel that the nature of the offense has been explained to the accused."Id.
After all, "'[a]part from the small class of rights that require specific advice from the court under Rule 11(C)(2)(c), it is the responsibility of defense counsel to inform the defendant of * * * the attendant statutory and constitutional rights that a guilty plea would forgo.'"Id.,
quoting Libretti v. United States,516 U.S. 29, 50-51
,116 S.Ct. 356
(1995).
{¶ 13} The court noted that "[i]n determining whether a defendant understood the
charge, a court should examine the totality of the circumstances." Id. at ¶ 56, citing
Henderson v. Morgan, 426 U.S. 637, 644,96 S.Ct. 2253
(1976). In Fitzpatrick, the record
contained a representation by defense counsel that counsel had explained the charges to
the defendant. Id. at ¶ 58. Specifically, at the end of the defendant's written guilty plea
form, which was signed by defense counsel, counsel attested: "We have explained to the
defendant, STANLEY L. FITZPATRICK, prior to his signing this plea, the charge(s) in the
indictment, the penalties therefore [sic] and his constitutional rights in this case." Id.
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Additionally, the defendant himself, both in the written plea and during his colloquy with the
trial court, indicated that he had spoken with his counsel and understood the charges
against him. Id. at ¶ 59. As the supreme court noted,
Fitzpatrick asserted that he had graduated from high school and
could read without any problem. He also agreed that he had
talked to his attorneys about the case for "many, many hours."
The written plea states: "I understand the nature of the charges
against me in the Indictment and the possible defenses I might
have," and "I understand the nature of the charges to which I
plead guilty." During the colloquy, the presiding judge asked:
"[D]o you understand the charges against you?" Fitzpatrick
said, "Yes." The judge asked: "Do you want all or any part of
any of the charges against you explained in any way?"
Fitzpatrick said, "No."
Id. As the record of the plea hearing contained express representations by the defendant
and his counsel that the nature of the charges had been explained to him and that he
understood them, the trial court found no merit to appellant's claim that his plea had not
been knowingly or intelligently entered. Id. at ¶ 62.
{¶ 14} The present case is similar to Fitzpatrick, in that the totality of the
circumstances demonstrate the nature of the aggravated arson charge had been explained
to appellant and that he understood the charge. Like the defendant in Fitzpatrick, appellant
indicated at the plea hearing that he had graduated from high school and was able to read
and understand the English language. When asked by the court, appellant indicated he
read the front and back pages of the Guilty Plea and Jury Waiver form, that he had gone
over the form carefully with his defense counsel, and that his defense counsel answered all
the questions he had before he signed the form. The plea form contains a provision wherein
appellant attests, "I understand the nature of these charges and the possible defenses I
might have. I am satisfied with my attorney's advice and competence." This form was
signed by both appellant and his defense counsel.
{¶ 15} During the plea hearing, the trial court discussed its understanding of the plea
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agreement reached by the parties, stating, "My understanding, Mr. Murphy, [is] that you
wish to enter a plea of guilty, change your plea from not guilty to guilty on Count I, charge
of aggravated arson. * * * Charge of aggravated arson, violation of 2929.02(A)(1). Sir,
that's a felony of the first degree." After explaining its understanding of the plea agreement,
the court questioned appellant, "You understand what you're charged with here?" Appellant
responded, "Yes, sir." A few moments later, the court again asked appellant, "You told me
that you understand the charge, right?" Appellant again responded, "Yes, sir." The court
then questioned appellant, "You have any questions?" Appellant stated, "No, sir."
Appellant then pled guilty to aggravated arson as set forth in count one of the indictment,
with the court stating it was "satisfied Mr. Murphy understands the charge, possible
penalties."
{¶ 16} Appellant never expressed any confusion about the aggravated arson offense
he was pleading guilty to and never made any statements denying any of the elements of
the charge.1 Based on the totality of the circumstances, it is apparent that appellant, like
the defendant in Fitzpatrick, understood the nature of the charge to which he pled guilty.
{¶ 17} In light of the supreme court's decision in Fitzpatrick, we answer the first
question posed by Dangler – has the trial court complied with the relevant portion of the
rule – in the affirmative. The record indicates the trial court fully complied with Crim.R.
11(C)(2)(a) by determining that the defendant made the plea voluntarily, with understanding
of the nature of the charges. A detailed recitation of the elements of the charge was not
1. Compare the facts of this case and the Fitzpatrick case to the facts in State v. Swift, 86 Ohio App.3d 407(11th Dist.1993), the case cited and relied upon by appellant. In Swift, the Eleventh District Court of Appeals invalidated a defendant's guilty plea because the defendant's statements at the plea hearing implied that he failed to understand the "force" element of a rape charge.Swift at ¶ 412-413
. The court in Swift held that in such a situation, the trial court was obligated to clear up the defendant's confusion.Id. at 413
. Unlike in Swift,
nothing appellant stated during the plea hearing indicated he did not understand the elements or charge of
aggravated arson. As such, there was nothing for the trial court to clear up with appellant. Swift is
distinguishable and inapplicable to the case at hand. See Fitzpatrick at ¶ 61-62 (also finding Swift
distinguishable and inapplicable).
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required. See Fitzpatrick at ¶ 57. Furthermore, the trial court's acceptance of the guilty
plea under Crim.R. 11(C)(2) did not require that the court establish a factual basis for the
guilty plea before entering a conviction. See State v. Smith, 12th Dist. Warren Nos.
CA2019-10-113 and CA2019-11-121, 2020-Ohio-3074, ¶ 19; State v. Turpin, 12th Dist. Warren No. CA86-02-014,1986 Ohio App. LEXIS 9565
, *9 (Dec. 31, 1986); State v. Dickey, 7th Dist. Carroll No. 03 CA 794,2004-Ohio-3198, ¶ 13
. "This is because, pursuant to
Crim.R. 11(B)(1), a guilty plea is a complete admission of the defendant's guilt," and by
pleading guilty, the defendant admits guilt to the substantive crimes charged in the
indictment. Smith at ¶ 19. Accordingly, we find that the trial court's plea colloquy complied
with the requirements of Crim.R. 11(C)(2) and that appellant entered his guilty plea with an
understanding of the nature of the charges.
{¶ 18} However, even if the trial court had not fully complied with Crim.R. 11(C)(2)(a),
the type of error appellant complains of is not one that excuses appellant from
demonstrating prejudice. The record reveals that there was not a complete failure to comply
with Crim.R. 11(C)(2)(a) as the court questioned appellant's understanding of the nature of
the charge during the plea hearing. As a result, appellant would need to demonstrate he
was prejudiced by the trial court's failure to more fully explain the aggravated arson charge.
{¶ 19} "The test for prejudice is whether the plea would have otherwise been made."
Dangler, 2020-Ohio-2765 at ¶ 16. "Prejudice must be established 'on the face of the record.'" Id. at ¶ 24, quoting Hayward v. Summa Health Sys./Akron City Hosp.,139 Ohio St.3d 238
,2014-Ohio-1913, ¶ 26
. Therefore, for appellant to demonstrate prejudice, he
must show, based on the face of the record, that he would not have entered a guilty plea to
aggravated arson if he had been more fully advised of the nature of the charge.
{¶ 20} Appellant has not set forth any argument in his appellate brief as to prejudice.
From the face of the record, we see no indication that appellant would not have entered a
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guilty plea had he been more thoroughly informed of the nature of the aggravated arson
charge. By accepting the state's plea bargain and pleading guilty to one count of
aggravated arson, appellant benefited from the dismissal of three first-degree felony
offenses and the dismissal of a fourth-degree felony offense. Given these facts, appellant
has not established prejudice and he is not entitled to have his guilty plea vacated for a
failure to comply with Crim.R. 11(C)(2)(a).
{¶ 21} Appellant's first assignment of error is, therefore, overruled.
{¶ 22} Assignment of Error No. 2:
{¶ 23} THE TRIAL COURT FAILED TO IDENTIFY AND APPLY THE PRINCIPLES
AND PURPOSES OF FELONY SENTENCING, THE AGGRAVATING AND MITIGATING
FACTORS, AND THE RECIDIVISM FACTORS.
{¶ 24} In his second assignment of error, appellant argues his sentence is contrary
to law as the trial court "failed to say its sentence would be guided by the principles and
purposes of felony sentencing under R.C. 2929.11 and .12." Appellant contends the court's
reference to R.C. 2929.11 and 2929.12 in the sentencing entry was insufficient to show the
court's consideration of the relevant statutory provisions during the sentencing hearing.
{¶ 25} R.C. 2953.08(G)(2) governs appellate review of felony sentences. State v.
Julious, 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8. Pursuant to that statute, an appellate court may modify or vacate a sentence only if it finds, by clear and convincing evidence, "'the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law.'" State v. Harp, 12th Dist. Clermont No. CA2015-12-096,2016-Ohio-4921, ¶ 7
, quoting State v. Marcum,146 Ohio St.3d 516
,2016-Ohio-1002, ¶ 1
. A sentence is not clearly and convincingly contrary to law
where the trial court considers the purposes and principles of sentencing as set forth in R.C.
2929.11, as well as the seriousness and recidivism factors listed in R.C. 2929.12, and
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sentences a defendant within the permissible statutory range. State v. Brandenburg, 12th
Dist. Butler Nos. CA2014-10-201 and CA2014-10-202, 2016-Ohio-4918, ¶ 9.
{¶ 26} When reviewing a felony sentence, "[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, ¶ 42
. The record must merely reflect that the trial court considered the relevant statutory factors set forth in R.C. 2929.11 and 2929.12 prior to issuing its decision. State v. Watkins, 12th Dist. Preble No. CA2020-03-005,2021-Ohio-163, ¶ 50
.
{¶ 27} Appellant contends that the record does not reflect the trial court's
consideration of R.C. 2929.11 and 2929.12 factors because the statutes were not explicitly
referenced by the court at the sentencing hearing. However, as this court has previously
recognized, "a trial court is not required to expressly cite to R.C. 2929.11 or 2929.12 at the
sentencing hearing." State v. Motz, 12th Dist. Warren No. CA2019-10-109, 2020-Ohio-
4356, ¶ 43. The fact that R.C. 2929.11 and 2929.12 are not expressly referenced during a
sentencing hearing is immaterial when the trial court's sentencing entry cites to both
statutes. See State v. Hutchinson, 12th Dist. Butler No. CA2018-11-211, 2019-Ohio-2789,
¶ 12; State v. Spencer, 12th Dist. Butler No. CA2018-10-202,2019-Ohio-2160, ¶ 14-15
.
Such is the case here, where the trial court specifically stated in its sentence entry that
[t]he Court has considered the record, the charges, the
defendant's Guilty Plea, and findings as set forth on the record
and herein, oral statements, any victim impact statement and
pre-sentence report, as well as the principles and purposes of
sentencing under Ohio Revised Code Section 2929.11, and has
balanced the seriousness and recidivism factors of Ohio
Revised Code Section 2929.12 and whether or not community
control is appropriate pursuant to Ohio Revised Code Section
2929.13, and finds that the defendant is not amenable to an
available community control sanction.
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(Emphasis added.) Inclusion of the foregoing language in the sentencing entry "'defeats a
claim that the trial court failed to consider statutory sentencing guidelines."' Hutchinson at
¶ 12, quoting State v. Peck, 12th Dist. Butler No. CA2015-06-123, 2016-Ohio-1578, ¶ 9.
{¶ 28} Accordingly, despite appellant's claims otherwise, the trial court did not err in
imposing an indefinite prison term of 10 to 15 years on appellant's aggravated arson
conviction. The record reflects that the trial court considered the principles and purposes
of sentencing as set forth in R.C. 2929.11, as well as the seriousness and recidivism factors
listed in R.C. 2929.12, and the sentence fell within the permissible statutory range for a
felony of the first degree. Appellant's sentence is not contrary to law and his second
assignment of error is overruled.
{¶ 29} Assignment of Error No. 3:
{¶ 30} [APPELLANT'S] AGGRAVATED ARSON CONVICTION DID NOT CARRY A
MANDATORY PRISON SENTENCE.
{¶ 31} In his third assignment of error, appellant argues the trial court erred by
sentencing him to a mandatory prison sentence for aggravated arson. The state has
conceded this error occurred and requests the error be fixed with the issuance of a nunc
pro tunc entry.
{¶ 32} As previously stated, appellant was sentenced to an indefinite prison term of
10 to 15 years for his aggravated arson conviction. The trial court listed appellant's
sentence as "mandatory" in its sentencing entry. However, appellant's conviction for
aggravated arson was a felony of the first degree that carried a presumption of prison. R.C.
2929.13(D)(1). The sentence was not mandatory, as none of the circumstances outlined in
R.C. 2929.13(F) or 2929.01(X) applied.
{¶ 33} Though the trial court's sentencing entry imposed an indefinite mandatory
prison term 10 to 15 years, during the sentencing hearing, the trial court did not classify the
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indefinite aggravated arson sentence as mandatory. The trial court's sentencing entry
therefore contains a clerical error that may be corrected through the issuance of a nunc pro
tunc entry. See State v. Merriweather, 12th Dist. Butler No. CA2016-04-077, 2017-Ohio-
421, ¶ 61 (finding issuance of nunc pro tunc entry to remove the world "mandatory" from
the court's sentencing entry was appropriate where the court did not impose a mandatory
prison term during sentencing). The trial court's corrected entry will then reflect what the
court actually decided at the sentencing hearing – that the indefinite prison term of 10 to 15
years was not mandatory.
{¶ 34} Appellant's third assignment of error is sustained and the matter is remanded
to the trial court for the sole purpose of issuing a nunc pro tunc entry to remove the world
"mandatory" from the court's sentence on appellant's aggravated arson conviction.
{¶ 35} Assignment of Error No 4:
{¶ 36} THE REAGAN TOKES SENTENCE IS UNCONSTITUTIONAL.
{¶ 37} In his fourth assignment of error, appellant seeks to challenge the
constitutionality of Ohio's indefinite sentencing structure, commonly known as the Reagan
Tokes Law, as set forth in R.C. 2967.271. Appellant contends that the imposition of an
indefinite sentence violates procedural due process.
{¶ 38} It is undisputed that appellant did not raise a challenge to the constitutionality
of the Reagan Tokes Law with the trial court. As this court has repeatedly held, "arguments
challenging the constitutionality of the Reagan Tokes Law are forfeited and will not be heard
for the first time on appeal in cases where the appellant did not first raise the issue with the
trial court." State v. Blaylock, 12th Dist. Butler No. CA2020-11-113, 2021-Ohio-2631, ¶ 7, citing State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048,2021-Ohio-1353, ¶ 11
; State v. Teasley, 12th Dist. Butler No. CA2020-01-001,2020-Ohio-4626, ¶ 9
; and State v. Alexander, 12th Dist. Butler No. CA2019-12-204,2020-Ohio-3838, ¶ 8-9
.
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{¶ 39} Given this court's precedent declining to hear any arguments challenging the
constitutionality of the Reagan Tokes Law in cases where the issue was not first raised with
the trial court, appellant's fourth assignment of error is overruled.2
{¶ 40} Assignment of Error No. 5:
{¶ 41} [APPELLANT] WAS SENTENCED TO CONFINEMENT AND NOT
SUPERVISION. SO THE TRIAL COURT'S ORDER FOR PAYMENT OF SUPERVISION
COSTS WAS UNLAWFUL.
{¶ 42} In his final assignment of error, appellant contends the trial court erred by
ordering that he pay the costs of supervision and any supervision fees permitted under R.C.
2929.18(A). Appellant maintains that because he was sentenced to a prison term, rather
than supervised community control, it was error for the trial court to order him to pay for "a
non-existent sanction."
{¶ 43} We recently addressed an identical argument in State v. Patterson, 12th Dist.
Butler No. CA2021-01-004, 2021-Ohio-3959, ¶ 15, and ultimately found that supervision
costs were authorized under R.C. 2929.18(A) "in conjunction with postrelease control." We
noted that
[u]nder R.C. 2929.18(A), the court imposing sentence upon a
felony offender may sentence the offender to "any financial
sanction or combination of financial sanctions authorized under
this section * * *." Included among those authorized financial
sanctions is "any or all of the costs of sanctions incurred by the
government." (Emphasis added.) R.C. 2929.18(A)(5)(a). The
statute goes on to list some examples of such sanctions,
including the costs of implementing any community control
sanction, including a supervision fee, the costs of confinement,
and the costs related to an immobilizing device. R.C.
2929.18(A)(5)(a)(i),(ii), and (iii). However, as stated, these are
2. We note that even if appellant had not forfeited his challenge to the constitutionality of the Reagan Tokes
Law, this court has already determined that R.C. 2967.271 does not run afoul of an offender's due process
rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I,
Section 16 of the Ohio Constitution. State v. Jackson, 12th Dist. Butler No. CA2020-07-077, 2021-Ohio-778,
¶ 15; State v. Morris, 12th Dist. Butler No. CA2019-12-205,2020-Ohio-4103, ¶ 10
; State v. Guyton, 12th Dist. Butler No. CA2019-12-203,2020-Ohio-3837, ¶ 17
.
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examples. The language in the statute does not preclude a
court from imposing other costs of sanctions incurred by the
government. Supervision fees related to postrelease control are
within the ambit of "any or all of the costs of sanctions incurred
by the government." R.C. 2929.18(A).
Id.
{¶ 44} For the reasons expressed in Patterson, we find that the trial court did not err
in imposing supervision costs. Appellant's fifth assignment of error is, therefore, overruled.
{¶ 45} Judgment affirmed in part, reversed in part, and the matter remanded to the
trial court for the limited purpose of issuing a nunc pro tunc sentencing entry.
S. POWELL, P.J., and BYRNE, J., concur.
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