State v. Perry , 2021 Ohio 3855 ( 2021 )

[Cite as State v. Perry, 2021-Ohio-3855.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1001
Appellee Trial Court No. CR0202001153
v.
Dionte Perry DECISION AND JUDGMENT
Appellant Decided: October 29, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
James J. Popil, for appellant.
*****
DUHART, J.
{¶ 1} Appellant, Dionte Perry, appeals the judgment entered by the Lucas County
Court of Common Pleas on December 16, 2020, sentencing him to serve an indefinite
prison term of ten to 15 years in prison on a single count of involuntary manslaughter,
together with a mandatory and consecutive term of one year on a firearm specification
and five years of mandatory post-release control. For the reasons that follow, we affirm
the judgment of the trial court.
Statement of the Case and Facts
{¶ 2} The charges in this case stem from events that occurred on November 23,
2019. The state alleges that on this date, while the victim and another individual sat in
the front seat of a parked vehicle and began to conduct a drug transaction, appellant
entered the car, through one of the back doors, with a gun and the intent to commit a
robbery. During the course of the robbery, appellant shot and killed the victim.
{¶ 3} A Lucas County Grand Jury subsequently indicted appellant for (1)
aggravated murder, (2) aggravated robbery, (3) murder, and (4) felonious assault. Each
count included a three-year firearm specification and a five-year motor vehicle
specification.
{¶ 4} On November 19, 2020, appellant withdrew his former plea of not guilty and
entered a plea of guilty, pursuant to North Carolina v. Alford, to the lesser included
offense of count three, involuntary manslaughter, in violation of R.C. 2903.04(A) and
(C), a felony of the first degree, and to a one-year firearm specification under R.C.
2941.141(A). In exchange, the state agreed to request a dismissal of the remaining
charges at the time of sentencing.
{¶ 5} On December 10, 2020, the matter proceeded to sentencing. The trial court
sentenced appellant to an indefinite prison term of ten to 15 years on the involuntary
manslaughter charge and to a mandatory one-year term of imprisonment on the firearm
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specification, with the terms ordered to be served consecutively, for a total indefinite
prison term of 11 to 16 years. The court then advised appellant that upon his release from
prison, he would be subject to a mandatory five-year term of post-release control on the
involuntary manslaughter charge.
{¶ 6} The December 16, 2020 judgment entry accurately reflects the above-
mentioned prison terms that were ordered for the “Lesser Included Offense of Count
Three,” involuntary manslaughter charge and for the firearm specification “attached to
Count three.” Regarding the mandatory five-year term of post-release control, however,
the judgment entry states that it applies as to “count 1.” It is from this judgment entry
that appellant timely appeals.
Assignments of Error
{¶ 7} Appellant asserts the following assignments of error on appeal.
I. Appellant’s conviction was contrary to law as the court imposed
post release control for a dismissed charge.
II. The sentencing provisions of Senate Bill 201, otherwise known
as the Reagan Tokes Law, are unconstitutional.
{¶ 8} Pointing to the inconsistency in the trial court’s judgment entry with respect
to the order for post-release control -- to the extent that the order was said to apply to
count 1, instead of to the lesser included offense of count 3 -- appellant argues in his first
assignment of error that his sentence must be reversed and that a new hearing must be
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held. Although we acknowledge the trial court’s error, we decline to reverse appellant’s
sentence.
{¶ 9} The law is well-settled that a trial court speaks through its journal entries.
State v. Miller, 127 Ohio St.3d 407, 2010-Ohio5705, 940 N.E.2d 924, ¶ 12. “However, a
trial court may correct clerical errors at any time in order to conform to the transcript of
the proceedings.” State v. Adhikari, 8th Dist. Cuyahoga No. 103935, 2017-Ohio-460, ¶
63. Further, “[t]rial courts retain continuing jurisdiction to correct clerical errors in
judgments with a nunc pro tunc entry to reflect what the court actually decided.” Id.{¶ 10} Because appellant was notified in open court during his sentencing hearing
that the term of post-release control would apply to the charge for involuntary
manslaughter, we conclude that the error in the trial court’s judgment entry, stating that
post-release control would apply to “count 1,” rather than to count three, was merely
clerical in nature. Accordingly, we find appellant’s first assignment of error to be well-
taken, and we remand the matter to the trial court for the limited purpose of issuing a
nunc pro tunc journal entry that accurately reflects the fact that the term of post-release
control is to apply to the lesser included offense of count three, involuntary manslaughter,
and not to “count 1.”
{¶ 11} Appellant argues in his second assignment of error that the trial court
violated his constitutional rights, under both the Ohio Constitution and the United States
Constitution, when it sentenced him to a total indefinite term of 11 to 16 years in prison.
Specifically, he asserts that the indefinite sentencing provisions of Senate Bill 201,
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known as the Reagan Tokes Act, are unconstitutional, in that they violate the separation
of powers doctrine, his due process rights, and his right to a jury trial.
{¶ 12} Unfortunately for appellant, our controlling precedent concerning the
question of the constitutionality of the provisions for indefinite sentencing in the Reagan
Tokes law, as codified at R.C. 2967.271, requires dismissal of the appeal, because
“[b]eginning with our decision in [State v. Maddox, 6th Dist. Lucas No. L-19-1253,
2020-Ohio-4702], we have consistently held that a challenge to the Reagan Tokes law
becomes ripe only after an individual sentenced under that law has completed the
minimum term of the indefinite sentence and has been denied release.” State v. Figley,
6th Dist. Lucas No. L-20-1167, 2021-Ohio-2622, ¶ 4, 5 (citations omitted).
{¶ 13} On December 28, 2020, the Supreme Court of Ohio determined that a
conflict exists between Maddox and State v. Leet, 2d Dist. Montgomery No. 28670, 2020-
Ohio-459; State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153; State v.
Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; and State v. Guyton, 12th
Dist. Butler No. CA2019-12-203, 2020-Ohio-3837. The court accepted the review of the
following certified question:
Is the constitutionality of the provisions of the Reagan Tokes Act,
which allow the Department of Rehabilitation and Correctio[n] to
administratively extend a criminal defendant’s prison term beyond the
presumptive minimum term, ripe for review on direct appeal from
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sentencing, or only after the defendant has served the minimum term and
been subject to extension by application of the Act?
State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150.
{¶ 14} Given our still-controlling precedent, we dismiss appellant’s second
assignment of error under Maddox, as appellant’s challenge to the constitutionality of the
Reagan Tokes law is not ripe for review, while also noting the conflict certified to the
Supreme Court of Ohio, pursuant to Article IV, Section 3(B)(4) of the Ohio Constitution,
on the same issue raised in Maddox.
{¶ 15} On consideration whereof, the judgment of the Lucas County Court of
Common pleas is affirmed and this case is remanded for issuance of a nunc pro tunc
order consistent with this decision. Pursuant to App.R. 24, costs of this appeal are
assessed to appellant.
Judgment affirmed
and remanded.
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
Myron C. Duhart, J.
CONCUR. _______________________________
JUDGE
Christine E. Mayle, J. ________________________________
CONCURS IN DECISION ONLY JUDGE
AND WRITES SEPARATELY.
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MAYLE, J.
{¶ 16} I agree that we must follow this court’s decision in State v. Maddox, 6th
Dist. Lucas No. L-19-1253, 2020-Ohio-4702, ¶ 7—which held that the appellant’s
constitutional challenges to the Reagan Tokes Act, S.B. 201, are not ripe for review. But,
in my view, we do not have the discretion to merely “note” the existing conflict between
Maddox and State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592; State v.
Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153; State v. Barnes, 2d Dist.
Montgomery No. 28613, 2020-Ohio-4150; and State v. Guyton, 12th Dist. Butler No.
CA2019-12-203, 2020-Ohio-3837. State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-
6913, 159 N.E.3d 1150.
{¶ 17} Under the Ohio Constitution, “whenever” an appellate court determines
that a conflict exists, the appellate court “shall” certify the conflict to the Supreme Court
of Ohio. More specifically, Section 3(B)(4), Article IV of the Ohio Constitution clearly
states that “[w]henever the judges of a court of appeals find that a judgment upon which
they have agreed is in conflict with a judgment pronounced upon the same question by
any other court of appeals of the state, the judges shall certify the record of the case to
the supreme court for review and final determination.” (Emphasis added).
{¶ 18} For that reason, I would find that our judgment in this appeal—which
follows Maddox—is in conflict with decisions of the Second, Third, and Twelfth District
Courts of Appeals. See State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-
4150; State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592; State v.
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Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153; State v. Hacker, 161
N.E.3d 112, 2020-Ohio-5048 (3d Dist.); State v. Guyton, 12th Dist. Butler No. CA2019-
12-203, 2020-Ohio-3837; State v. Rodgers, 157 N.E.3d 142, 2020-Ohio-4102 (12th
Dist.); and State v. Morris, 12th Dist. Butler No. CA2019-12-205, 2020-Ohio-4103.
{¶ 19} Finally, I would sua sponte certify a conflict to the Supreme Court of Ohio,
pursuant to Article IV, Section 3(B)(4), Ohio Constitution, on the same issue certified
in Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150:
Is the constitutionality of the provisions of the Reagan Tokes Act,
which allow the Department of Rehabilitation and Correctio[n] to
administratively extend a criminal defendant’s prison term beyond the
presumptive minimum term, ripe for review on direct appeal from
sentencing, or only after the defendant has served the minimum term and
been subject to extension by application of the Act?
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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