State v. Savage , 2021 Ohio 1549 ( 2021 )

[Cite as State v. Savage, 2021-Ohio-1549.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-20-1073
Appellee Trial Court No. CR0201902218
v.
Thomas E. Savage IV DECISION AND JUDGMENT
Appellant Decided: April 30, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Sarah R. Anjum, for appellant.
*****
DUHART, J.
{¶ 1} Appellant, Thomas E. Savage IV, appeals the judgment entered by the Lucas
County Common Pleas Court on March 10, 2020, convicting him on two counts of
involuntary manslaughter, with firearm specification R.C. 2941.145(A) and (B), a
violation of R.C. 2903.04(A) and (C), a felony of the first degree, two counts of
improperly discharging a firearm at or into a habitation, with firearm specification R.C.
2941.145(A),(B),(C), and (F), in violation of R.C. 2923.161(A)(1),(C), a felony of the
second degree, and one count of having weapons while under disability, a violation of
R.C. 2923.13(A)(2) and (B), a felony of the third degree, and sentencing him to an
aggregate minimum prison term of 48 and one-half years and an aggregate indefinite
maximum prison term of 53 and one-half years. For the reasons that follow, we affirm
the judgment of the trial court.
{¶ 2} Appellant sets forth the following assignments of error:
I. The Bill of Information was invalid because it was filed before
the Waiver of Prosecution by Indictment.
II. As amended by the Reagan Tokes Act, the Revised Code’s
sentences for first and second-degree qualifying felonies violates the
constitutions of the United States and the State of Ohio.
Statement of the Case and Facts
{¶ 3} On February 21, 2020, appellant entered a plea of guilty to two counts of
involuntary manslaughter, with firearm specification R.C. 2941.145(A) and (B), a
violation of R.C. 2903.04(A) and (C), a felony of the first degree (Count 11 and Count
12); two counts of improperly discharging a firearm at or into a habitation, with firearm
specification R.C. 2941.145(A),(B),(C), and (F), in violation of R.C. 2923.161(A)(1),(C),
a felony of the second degree (Count 6 and Count 7); and one count of having weapons
while under disability, a violation of R.C. 2923.13(A)(2) and (B), a felony of the third
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degree (Count 9). At the time of the plea, the court discussed all of the trial rights that
appellant would be giving up by entering his plea. The judge also discussed the potential
sentences that could be imposed. Appellant stated that he understood his rights and the
potential sentences.
{¶ 4} The court advised appellant that since he had a qualifying felony, the Reagan
Tokes Act (Am.Sub.S.B. No. 201) would apply, which would result in appellant
receiving an indefinite sentence as part of his overall sentence. Defense counsel objected
to the imposition of the Reagan Tokes Act. Noting the objection, the court nevertheless
upheld the law’s applicability.
{¶ 5} On March 6, 2020, the court sentenced appellant to serve 7 years in prison as
to Counts 6 and 7; 30 months in prison as to Count 9; and 10 years in prison as to Count
12. As to Count 11, appellant was sentenced to serve an indefinite term of a minimum of
10 years to a maximum of 15 years in prison. An additional term of 3 years was imposed
as to Counts 6, 7, 11, and 12, “as a mandatory and consecutive term pursuant to R.C.
2929.14(C)(1)(a),” and all were ordered to be served “consecutive to each other”. Counts
6, 7, 9, 11, and 12 were also ordered to be served consecutively, for a total prison term of
48 and one-half to 53 and one-half years.
{¶ 6} Appellant argues in his first assignment of error that the bill of information
was invalid in this case, because it was filed before the waiver of prosecution by
indictment. Review of the record reveals that the bill of information was filed on
February 20, 2020. And, indeed, it was not until the next day, February 21, 2020, that
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appellant executed a waiver of prosecution by indictment in open court and in writing.
The written waiver was filed with the clerk on February 24, 2020.
{¶ 7} Crim.R. 7(A) provides that “[a] felony that may be punished by death or life
imprisonment shall be prosecuted by indictment[;] [a]ll other felonies shall be prosecuted
by indictment, except that after a defendant has been advised by the court of the nature of
the charge against the defendant and of the defendant’s right to indictment, the defendant
may waive that right in writing and in open court.” R.C. 2941.03 sets forth the
requirements for a valid bill of information, as follows:
An indictment or information is sufficient if it can be understood
therefrom:
(A) That it is entitled in a court having authority to receive it, though
the name of the court is not stated;
(B) If it is an indictment, that it was found by a grand jury of the
county in which the court was held, or if it is an information, that it was
subscribed and presented to the court by the prosecuting attorney of the
county in which the court is held;
(C) That the defendant is named, or if his name cannot be
discovered, that he is described by a fictitious name, with a statement that
his true name is unknown to the jury or prosecuting attorney, but no name
shall be stated in addition to one necessary to identify the accused;
4.
(D) That an offense was committed at some place within the
jurisdiction of the court, except where the act, though done without the
local jurisdiction of the county, is triable therein;
(E) That the offense was committed at some time prior to the time of
finding of the indictment or filing of the information.
{¶ 8} In this case, the trial court fully explained to appellant the nature of the
charges contained in the information, and did so on the record and in open court prior to
appellant signing the written waiver. Thus, the trial court fully complied with Crim.R.
7(A). In addition, there is no evidence or allegation to suggest that there was any lack of
compliance with respect to R.C. 2941.03.
{¶ 9} A defendant who knowingly, intelligently, and voluntarily pleads guilty to
the charges waives his right to contest any nonjurisdictional defects that occurred before
the plea was entered. See State v. Padgett, 8th Dist. Cuyahoga App. Nos. 107015 and
107016, 2019-Ohio-174, ¶ 26. The law is clear that “[t]he manner by which an accused
is charged with a crime, whether by indictment returned by a grand jury or by
information filed by the prosecuting attorney, is procedural rather than jurisdictional.”
Id. (Citations omitted.)
{¶ 10} Applying the law to the facts of this case, we find that when appellant
knowingly, intelligently, and voluntarily waived prosecution by indictment on the record
and pleaded guilty to the charges (pursuant to North Carolina v. Alford, 400 U.S. 25, 91
S.Ct. 160, 27 L.Ed.2d 162 (1970)), he waived his right to contest the alleged procedural
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defects that occurred before the plea was entered. Accordingly, we find appellant’s first
assignment of error is found not well-taken.
{¶ 11} In his second assignment of error, appellant challenges the constitutionality
of the Reagan Tokes Act. Specifically, he challenges the presumptive release feature of
R.C. 2967.271, arguing that it violates his constitutional rights to trial by jury and due
process of law, and, further, violates the constitutional requirement of separation of
powers.
{¶ 12} R.C. 2967.271 pertinently provides:
(B) When an offender is sentenced to a non-life felony indefinite
prison term, there shall be a presumption that the person shall be released
from service of the sentence on the expiration of the offender’s minimum
prison term or on the offender’s presumptive earned early release date,
whichever is earlier.
(C) The presumption established under division (B) of this section is
a rebuttable presumption that the department of rehabilitation and
correction may rebut as provided in this division. Unless the department
rebuts the presumption, the offender shall be released from service of the
sentence on the expiration of the offender’s minimum prison term or on the
offender’s presumptive earned early release date, whichever is earlier. The
department may rebut the presumption only if the department determines,
at a hearing, that one or more of the following applies:
6.
(1) Regardless of the security level in which the offender is
classified at the time of the hearing, both of the following apply:
(a) During the offender’s incarceration, the offender committed
institutional rule infractions that involved compromising the security of a
state correctional institution, compromising the safety of the staff of a state
correctional institution or its inmates, or physical harm or the threat of
physical harm to the staff of a state correctional institution or its inmates, or
committed a violation of law that was not prosecuted, and the infractions or
violations demonstrate that the offender has not been rehabilitated.
(b) The offender’s behavior while incarcerated, including, but not
limited to the infractions and violations specified in division (C)(1)(a) of
this section, demonstrate that the offender continues to pose a threat to
society.
(2) Regardless of the security level in which the offender is
classified at the time of the hearing, the offender has been placed by the
department in extended restrictive housing at any time within the year
preceding the date of the hearing.
(3) At the time of the hearing, the offender is classified by the
department as a security level three, four, or five, or at a higher security
level.
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(D)(1) If the department of rehabilitation and correction, pursuant to
division (C) of this section, rebuts the presumption established under
division (B) of this section, the department may maintain the offender’s
incarceration in a state correctional institution under the sentence after the
expiration of the offender’s minimum prison term or, for offenders who
have a presumptive earned early release date, after the offender’s
presumptive earned early release date. The department may maintain the
offender’s incarceration under this division for an additional period of
incarceration determined by the department. The additional period of
incarceration shall be a reasonable period determined by the department,
shall be specified by the department, and shall not exceed the offender’s
maximum prison term.
(2) If the department maintains an offender’s incarceration for an
additional period under division (D)(1) of this section, there shall be a
presumption that the offender shall be released on the expiration of the
offender’s minimum prison term plus the additional period of incarceration
specified by the department as provided under that division or, for
offenders who have a presumptive earned early release date, on the
expiration of the additional period of incarceration to be served after the
offender’s presumptive earned early release date that is specified by the
department as provided under that division. The presumption is a
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rebuttable presumption that the department may rebut, but only if it
conducts a hearing and makes the determinations specified in division (C)
of this section, and if the department rebuts the presumption, it may
maintain the offender’s incarceration in a state correctional institution for
an additional period determined as specified in division (D)(1) of this
section. Unless the department rebuts the presumption at the hearing, the
offender shall be released from service of the sentence on the expiration of
the offender’s minimum prison term plus the additional period of
incarceration specified by the department or, for offenders who have a
presumptive earned early release date, on the expiration of the additional
period of incarceration to be served after the offender’s presumptive earned
early release date as specified by the department.
The provisions of this division regarding the establishment of a
rebuttable presumption, the department’s rebuttal of the presumption, and
the department’s maintenance of an offender’s incarceration for an
additional period of incarceration apply, and may be utilized more than one
time, during the remainder of the offender’s incarceration. If the offender
has not been released under division (C) of this section or this division prior
to the expiration of the offender’s maximum prison term imposed as part of
the offender’s non-life felony indefinite prison term, the offender shall be
released upon the expiration of that maximum term.
9.
{¶ 13} It is appellant’s contention that the portions of the statute which allow the
Department of Rehabilitation and Corrections to administratively extend his prison term
beyond his presumptive minimum prison term of 48 and one-half years to as much as
53 and one-half years violate the United States and Ohio Constitutions. Appellant,
however, has not yet served his minimum term, and so he has not become subject to the
application of R.C. 2967.271.
{¶ 14} As we stated in State v. Acosta, 6th Dist. Lucas Nos. L-20-1068,
L-20-1069, 2021-Ohio-757:
[T]his court has recently held that the constitutionality of the Reagan Tokes
law is not ripe for review where the appellant’s imprisonment term has not
yet been extended by the ODRC. State v. Velliquette, 6th Dist. Lucas No.
L-19-1232, 2020-Ohio-4855; State v. Maddox, 6th Dist. Lucas No.
L-19-1253, 2020-Ohio-4702. In Velliquette, we explained that the
appellant’s arguments as to the ‘possibility’ of an extended prison term may
never be realized. Id. at ¶ 29. Velliquette and the ripeness issue is currently
before the Supreme Court of Ohio. See State v. Velliquette, 161 Ohio St.3d
1415, 2021-Ohio-120, 161 N.E.3d 708.
Id. at ¶ 10. Accordingly, appellant’s second assignment of error is found not well-taken.
{¶ 15} We affirm the judgment of the Lucas County Court of Common Pleas.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
10.
State v. Savage
C.A. No. L-20-1073
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Gene A. Zmuda, P.J.
_______________________________
Myron C. Duhart, 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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