State v. Greene

[Cite as State v. Greene, 

.]




                          IN THE COURT OF APPEALS
                      FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




 STATE OF OHIO,                              :   APPEAL NO. C-220160
                                                 TRIAL NO. B-2001740
         Plaintiff-Appellee,                 :

                                             :
   VS.                                             O P I N I O N.
                                             :

 TOMMY GREENE,                               :

       Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: December 16, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christopher Bazeley, for Defendant-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS



BERGERON, Judge.

       {¶1}   After an indictment for murder and felonious assault, defendant-

appellant Tommy Greene entered into a plea agreement with a recommended

sentence of 17 years, and an acknowledgement that he faced a potential sentence range

of 17 to 22 ½ years. Although the trial court entered the 17 to 22 ½ year sentence

consistent with the Reagan Tokes Law, Mr. Greene appeals, claiming that the court

erred in not orally advising him of certain statutorily-required notifications, and he

challenges the constitutionality of the Reagan Tokes Law. We reject Mr. Greene’s

constitutional challenges, consistent with our recent decision in State v. Guyton, 1st

Dist. Hamilton No. C-190657, 

.            However, with respect to the

sentencing colloquy, in line with the state’s concession, we conclude that the trial court

neglected to mention certain requirements at the sentencing hearing. We accordingly

reverse the trial court’s judgment in part, remanding this matter solely for

resentencing to allow the court to comply with R.C. 2929.19(B)(2)(c). We otherwise

affirm the trial court’s judgment.

                                                I.


       {¶2}   After the killing of Fred Spivey in April 2020, Mr. Greene was indicted

in May of that year with one count of murder, under R.C. 2903.02, two counts of

felonious assault, under R.C. 2903.11, and one charge of having a weapon under a

disability, under R.C. 2923.13. Mr. Greene and the state eventually reached an

agreement in which he would plead guilty to the charge of voluntary manslaughter and

an accompanying firearms specification, and the weapons under disability charge. As

part of the agreement, the state agreed to recommend a prison sentence of 17 years.



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                    OHIO FIRST DISTRICT COURT OF APPEALS




       {¶3}    At the sentencing hearing, the court walked through the plea colloquy

with Mr. Greene, informing him of his rights and the ramifications of his plea. During

the colloquy, the trial court referenced the “entry withdrawing plea of not guilty and

entering plea of guilty, with an agreed recommended sentence” document, which

embodied the plea agreement signed by Mr. Greene (the “plea entry”). The trial court

proceeded to impose the 17-year sentence recommendation with a maximum sentence

of 22 ½ years pursuant to the Reagan Tokes Law.

       {¶4}    Mr. Greene appeals three aspects of his sentence: that the trial court

failed to advise him of the R.C. 2929.19(B)(2)(c) notifications at sentencing, even

though they were reflected in the plea entry, that the hearing provision in R.C.

2967.271—an aspect of the Reagan Tokes law—is unconstitutionally vague, and that

the Reagan Tokes law in general fails to withstand constitutional scrutiny.

                                           II.

       {¶5}    Mr. Greene initially faults the trial court’s failure to advise him of the

R.C. 2929.19(B)(2)(c) notifications at his sentencing hearing, even though the plea

entry included these admonishments. “[I]f a trial court fails to provide notice of all

R.C. 2929.19(B)(2)(c) notifications at a sentence hearing, the sentence is contrary to

law.” State v. Bentley, 4th Dist. Adams No. 21CA1147, 

; see State

v. Williams, 1st Dist. No. C-081148, 

, ¶ 20, quoting State v. Jordan,

, 

, 

, ¶ 23 (“When the trial court fails

to provide the defendant with statutorily-mandated notifications at the sentencing

hearing, “the court has violated a ‘statutory duty’ and ‘any sentence imposed without

such notification is contrary to law’ and void.”).



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                    OHIO FIRST DISTRICT COURT OF APPEALS




       {¶6}   The statute at issue provides, in pertinent part, “[a]t the sentencing

hearing, the court, before imposing sentence, shall do all of the following * * * [i]f the

prison term is a non-life felony indefinite prison term, notify the offender of all of the

[R.C. 2929.19(B)(2)(c) notifications].” (Emphasis added.) R.C. 2929.19(B)(1) and

(B)(2)(c). Consistent with our own precedent and caselaw from across the state, we

interpret this language as a mandatory directive.

       {¶7}   These notifications include the salient features of the Regan Tokes

Law—one of the chief purposes of which is to encourage good behavior by inmates in

prison: “(i) [t]hat it is rebuttably presumed that the offender will be released from

service of the sentence on the expiration of the minimum prison term imposed as part

of the sentence * * * ; (ii) [t]hat the department of rehabilitation and correction may

rebut the presumption * * * ; (iii) [t]hat if * * * the department at the hearing makes

the specified determinations and rebuts the presumption, the department may

maintain the offender’s incarceration after the expiration of that minimum term * * *

; (iv) [t]hat the department may make the specified determinations and maintain the

offender’s incarceration * * * ; [and] (v) [t]hat if the offender has not been released

prior to the expiration of the offender’s maximum prison term imposed as part of the

sentence, the offender must be released upon the expiration of that term.” R.C.

2929.19(B)(2)(c)(i)-(v).

       {¶8}   Pointing to other appellate districts, Mr. Greene maintains that the term

“shall” mandates that a trial court orally provide each of the notifications to the

defendant at sentencing, and that a failure to do so requires a remand for resentencing.

The state concedes the point, acknowledging the need for a remand for resentencing.



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                     OHIO FIRST DISTRICT COURT OF APPEALS




       {¶9}    Since the time that the state and Mr. Greene briefed the matter, our

court has now twice confirmed that trial courts must inform criminal defendants of

the notifications set forth in R.C. 2929.19(B)(2)(c) at sentencing hearings. State v.

Jackson, 1st Dist. Hamilton No. C-200332, 

 (“[T]he trial court

failed to properly inform [defendant] of the notifications set forth in R.C.

2929.19(B)(2)(c) when sentencing him under the Reagan Tokes Law.                     When

sentencing an offender to a nonlife felony indefinite prison term under the Reagan

Tokes Law, a trial court must advise the offender of the five notifications set forth in

R.C. 2929.19(B)(2)(c)(i)-(v) at the sentencing hearing to fulfill the requirements of the

statute.”); State v. Kelly, 1st Dist. Hamilton No. C-200013, 

 (“A

trial court must advise a defendant of all five notifications set forth in R.C.

2929.19(B)(2)(c) at the sentencing hearing.”).

       {¶10} And our caselaw, coupled with consistent authority from other districts

across the state, convinces us that a resentencing remand is required. Bentley, 4th

Dist. Adams No. 21CA1147, 

; State v. Whitehead, 8th Dist.

Cuyahoga No. 109599, 

; State v. Wolfe, 5th Dist. Licking No.

2020 CA 00021, 

; State v. Gatewood, 2d Dist. Clark No.

2021-CA-20, 

 (“The trial court failed to orally advise [defendant]

of all of the R.C. 2929.19(B)(2)(c) notifications at the sentencing hearing; therefore,

the matter is remanded for the sole purpose of resentencing [defendant].”); State v.

Hodgkin, 12th Dist. Warren No. CA2020-08-048, 

, quoting R.C.

2929.19(B)(2)(c)    (“By indicating that the sentencing court ‘shall do all of the

following,’ and ‘notify the offender of all of the following’ the legislature clearly placed

a mandatory duty upon the trial court rather than granting it discretion. Thus, when

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                    OHIO FIRST DISTRICT COURT OF APPEALS




sentencing an offender to a non-life felony indefinite prison term under the Reagan

Tokes Law, a trial court must advise the offender of the five notifications set forth in

R.C. 2929.19(B)(2)(c) at the sentencing hearing to fulfill the requirements of the

statute.”).

       {¶11} Because the Reagan Tokes Law, when applicable, allows the Ohio

Department of Rehabilitation and Correction (“ODRC”) to extend a defendant’s

sentence beyond the minimum term upon satisfaction of statutory criteria at a

hearing, it is imperative that trial courts abide by R.C. 2929.19(B)(2)(c) and notify the

defendant of the five notifications as it relates to their indefinite prison term. While

the trial court did appropriately inform Mr. Greene of many sentencing requirements,

it neglected to advise him orally of the R.C. 2929.19(B)(2)(c) notifications. Consistent

with Jackson, Kelly, and other rulings issued by our fellow appellate courts, we sustain

Mr. Greene’s first assignment of error, and remand the matter solely for resentencing

so that the trial court may comply with R.C. 2929.19(B)(2)(c).

                                          III.

       {¶12} In his second and third assignments of error, Mr. Greene challenges the

constitutionality of the Reagan Tokes Law both generally, and specifically with respect

to procedural due process and vagueness.

       {¶13} Beyond the procedural due process argument, Mr. Greene fails to

elucidate the contours of his constitutional argument, but we addressed such matters

at length in Guyton. In Guyton, we determined that the Reagan Tokes Law is

constitutional on its face and rejected claims that the law violates separation of

powers, due process, or equal protection. Guyton, 1st Dist. Hamilton No. C-190657,

; see State v. Reed, 1st Dist. Hamilton No. C-200104, 2022-

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                    OHIO FIRST DISTRICT COURT OF APPEALS




Ohio-3986, ¶ 32. Of course, those questions are presently before the Supreme Court

of Ohio, in State v. Hacker, 

, 

 (3d Dist.), appeal

allowed, State v. Hacker, 

, 

, 

, and

in State v. Simmons, 

, 

 (8th Dist.), appeal allowed,

State v. Simmons, 

, 

, 

, so we will

receive additional guidance in the near term.

       {¶14} Mr. Greene sharpens his attack with respect to R.C. 2967.271, a

provision that he criticizes as “vague.”        That section concerns the rebuttable

presumption created under the Reagan Tokes Law that an offender “shall be released

from service of the sentence on the expiration of [their] minimum prison term or on

[their] presumptive earned early release date, whichever is earlier.” R.C. 2967.271(C).

The ODRC may rebut the presumption by demonstrating certain delineated factors “at

[a] hearing[.]” R.C. 2967.271(C)(1). The vagueness and imprecision in the “hearing,”

combined with the lack of any concomitant procedures, attracts Mr. Greene’s ire.

       {¶15} Even though we did not address Regan Tokes through the “vagueness”

lens, we rejected this procedural due process argument in Guyton.             We fully

considered the procedural due process ramifications of the Reagan Takes Law and

found the facial challenge brought by the defendant there (and Mr. Greene only

advances a facial challenge here) misguided: “[w]e do not discern any provision in the

Reagan Tokes Law that overcomes the strong presumption an offender will be afforded

the requisite process due at all stages of the indeterminate sentencing scheme,

including during any administrative proceedings.” Guyton at ¶ 45. “Ultimately, we

must presume that the ODRC will fill in the ‘gaps’ to execute the law such that

offenders are afforded due process before depriving an offender of the statutory liberty

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                   OHIO FIRST DISTRICT COURT OF APPEALS




interest created by the Reagan Tokes Law. R.C. 5120.01 [the code section conferring

the duties of the director of the ODRC] authorizes the ODRC to do so, and we must

read that statute in conjunction with R.C. 2967.271.” Id. at ¶ 55. We therefore reject

Mr. Greene’s constitutional challenges to the Reagan Tokes Law, overruling his second

and third assignments of error.

                                   *       *      *

       {¶16} In summary, we overrule Mr. Greene’s second and third assignments of

error and sustain his first assignment of error. The judgment of the trial court is

affirmed in part, reversed in part, and the cause is remanded to the trial court solely

for resentencing, so that the trial court may comply with R.C. 2929.19(B)(2)(c).

                   Judgment affirmed in part, reversed in part, and cause remanded.

MYERS, P.J., and ZAYAS, J., concur.



Please note:

       The court has recorded its entry on the date of the release of this opinion.




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