State v. Reed , 2021 Ohio 1623 ( 2021 )

[Cite as State v. Reed, 2021-Ohio-1623.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-20-16
v.
BRIAN ANDREW REED, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2019-CR-0243
Judgment Affirmed
Date of Decision: May 10, 2021
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee
Case No. 14-20-16
SHAW, J.
{¶1} Defendant-appellant, Brian A. Reed (“Reed”), appeals the July 15, 2020
judgment of the Union County Court of Common Pleas, journalizing his conviction
after pleading guilty to three counts of second-degree felony burglary, one count of
third-degree felony identity fraud, and one count of fourth-degree felony grand theft,
and sentencing him to an aggregate indefinite prison term of ten to thirteen years.
On appeal, Reed argues that the trial court failed to adequately consider the purposes
and principles of felony sentencing under R.C. 2929.11 and R.C. 2929.12 when
fashioning its sentence.
Relevant Facts and Procedural History
{¶2} On October 10, 2019, the Union County Grand Jury returned a four-
count indictment against Reed alleging that he committed the offenses of Counts 1
through 3: burglary, in violation of R.C. 2911.12(A)(1), (D), felonies of the second
degree; and Count 4: identity fraud, in violation of R.C. 2913.49(E), (I)(2), a felony
of the third degree. Upon arraignment, Reed entered pleas of not guilty to the
charges.
{¶3} The charges arose from video surveillance footage which captured Reed
enter and exit a Honda of America Manufacturing plant located in Union County,
Ohio, at least twenty-three times over the course of September 16, 17, and 23, 2019,
by using the employee badge belonging to his girlfriend to gain access to the
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building. Reed was not employed by Honda, but had been formerly employed by a
subcontractor to work on Honda’s production line. On the video footage, Reed
could be seen leaving the facility with several items from the plant in a black duffle
bag. Honda subsequently reported numerous air impact/pneumatic tools missing.
Six of these missing tools were recovered from the residence where Reed lived with
his grandmother. The items were found in a black duffle bag labeled with the name
“Brian Reed.” Reed’s father also reported that Reed had attempted to sell some of
the air impact/pneumatic tools to the employees at his father’s place of business
while his father was not there. The employees declined to purchase the stolen items.
{¶4} On November 27, 2019, the prosecution moved to consolidate the
instant case with a superseding indictment filed in another case involving Reed and
the theft of air bag assemblies from Honda that were discovered at Reed’s
grandmother’s residence. The trial court granted the motion to consolidate the
cases, listing an additional count alleging that Reed committed the offense of grand
theft in violation of R.C. 2913.02(A)(3), (B)(2), a felony of the fourth degree.
{¶5} On March 10, 2020, Reed withdrew his previously tendered pleas of
not guilty and entered guilty pleas to all five counts. The trial court accepted Reed’s
guilty plea and ordered a presentence investigation interview to be completed.
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{¶6} On May 8, 2020, the prosecution filed a restitution report compiled by
Honda, indicating that Honda requested $38,274.74 in restitution for the stolen
items.
{¶7} On July 15, 2020, Reed appeared for sentencing. Reed’s counsel
argued for the imposition of a sentence of less than five years in prison, noting that
Reed suffered from drug and alcohol addiction, Reed’s showing of remorse, and
asserting that Honda did not suffer serious economic harm by virtue of it being a
large company. The prosecution argued for a longer sentence to be imposed upon
Reed, noting that Reed had a long criminal history, including that he was on
community control when he committed the underlying offenses and that at the time
of sentencing he was serving time on another offense out of a neighboring county.
The prosecution also claimed that Reed was familiar with the plant being previously
employed on the production line by a Honda subcontractor, and that in addition to
the monetary loss listed in the restitution report, the efficiency of Honda’s
production line was hindered for several days as a result of Reed’s conduct.
{¶8} The trial court imposed a prison term of six to nine years on the three
second-degree felony burglary counts to run concurrent; a prison term of thirty
months on the third-degree felony identity fraud count to run consecutive to the
prison terms imposed for the three burglary counts; and a prison term of eighteen
months on the fourth-degree felony grand theft count to run consecutive to the other
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four counts. The total stated prison term imposed by the trial court was an aggregate
indefinite term of ten to thirteen years.
{¶9} Reed filed an appeal from this judgment, assigning error to the
imposition of the trial court’s sentence. While this appeal was pending, Reed filed
a Motion to Delay Decision and Reopen Briefing, requesting the opportunity to brief
an additional assignment of error to this Court. We granted the motion and ordered
the parties to submit supplemental briefs.
{¶10} Reed now appeals the trial court’s July 15, 2020 Judgment Entry of
conviction and sentence, asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR NO. 1
APPELLANT’S SENTENCE IS CONTRARY TO LAW AND
AN ABUSE OF DISCRETION BECAUSE THE TRIAL COURT
FAILED TO CONSIDER AND PROPERLY WEIGH THE
PURPOSE AND PRINCIPLES OF SENTENCING ALONG
WITH THE SENTENCING FACTORS FOUND IN OHIO
REVISED CODE SECTIONS 2929.11 AND 2929.12.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN IT SENTENCED
APPELLANT TO AN INDEFINITE TERM OF PRISON ON
EACH OF THE THREE BURGLARY COUNTS, AS
BURGLARY IS NOT A QUALIFYING FELONY UNDER THE
REGAN TOKES LAW.
First Assignment of Error
{¶11} In his first assignment of error, Reed claims that the trial court failed
to adequately consider the purposes and principles of sentencing and failed to
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properly apply the sentencing factors set forth in R.C. 2929.11 and R.C. 2929.12.
Specifically, Reed contends that the sentence imposed by the trial court was
“excessive, when the court has been instructed to ‘promote the effective
rehabilitation of the offender using the minimum sanctions * * * without imposing
an unnecessary burden on the state and local government.’ ” (Appt. Br. 9, citing
R.C. 2929.11(A)(emphasis sic)). Reed also argues that the prison terms imposed
were disproportionate to the offenses committed because the offenses were fueled
by Reed’s drug addiction and were not crimes of violence. Reed further asserts that
the economic loss to Honda was relatively unsubstantial to warrant the trial court’s
sentence stating that, “[w]hile the dollar amount seems high to most ordinary
people, when put in perspective to the economic gains Honda regularly makes, the
dollar amount is actually insignificant.” (Id.); see R.C. 2929.12(B)(2)
Standard of Review
{¶12} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “ ‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’ ”
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Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of
the syllabus.
Relevant Authority
{¶13} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give
its reasons for imposing maximum or more than [a] minimum sentence[ ].” State v.
White, 3d Dist. Marion No. 9-19-32, 2020-Ohio-717, ¶ 8. Nevertheless, when
exercising its sentencing discretion, a trial court must consider the statutory policies
that apply to every felony offense, including those set out in R.C. 2929.11 and R.C.
2929.12. State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8, citing
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.
{¶14} Revised Code 2929.11 provides that sentences for a felony shall be
guided by the overriding purposes of felony sentencing: “to protect the public from
future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources.” R.C. 2929.11(A). In order to comply with
those purposes and principles, R.C. 2929.12 instructs a trial court to consider
various factors set forth in the statute relating to the seriousness of the offender’s
conduct and to the likelihood of the offender’s recidivism. R.C. 2929.12(A)-(E).
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Discussion
{¶15} In this case, Reed was convicted of three counts of burglary in
violation of R.C. 2911.12 (A)(1), (D), all felonies of the second degree. Pursuant
to R.C. 2929.14(A)(2)(a), the prison term for a second-degree felony offense “shall
be an indefinite prison term with a stated minimum term selected by the court of
two, three, four, five, six, seven, or eight years and a maximum term that is
determined pursuant to section 2929.144 of the Revised Code[.]” Under R.C.
2929.144(B)(1), the maximum prison term for a qualifying felony of the second
degree shall be equal to the “minimum term imposed * * * plus fifty per cent of that
term.” Reed was also convicted of one count of identity fraud, violation R.C.
2913.49(E), (I)(2), a felony of the third degree. Pursuant to R.C. 2929.14(A)(3)(b),
the prison term for a third-degree felony offense “shall be a definite term of nine,
twelve, eighteen, twenty-four, thirty, or thirty-six months.” Finally, Reed was
convicted of grand theft in violation of R.C. 2913.02(A)(3), (B)(2), a felony of the
fourth degree. Under R.C. 2929.14(A)(4), the prison term for a fourth-degree
felony offense “shall be a definite term of six, seven, eight, nine, ten, eleven, twelve,
thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months.”
{¶16} Here, the trial court imposed upon Reed an indefinite prison term with
a stated minimum of six years and a stated maximum of nine years for each of the
three second-degree felony burglary offenses; a thirty-month prison term for the
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third-degree felony identity fraud offense; and an eighteen-month prison term for
the fourth-degree felony grand theft offense. These prison terms are within the
appropriate statutory range and are compliant with the relevant statutes, therefore
they are presumptively valid. State v. Maggette, 3d Dist. Seneca No. 13-16-06,
2016-Ohio-5554, ¶ 31.
{¶17} Notably, notwithstanding the wording of Reed’s assignment of error,
the record clearly established the trial court conducted an analysis of these factors
both at the sentencing hearing and in its judgment entry of sentence. Rather, Reed
simply disagrees with the trial court’s application of these factors to the facts and
circumstances of his case.
Appellate Review of R.C. 2929.11 and R.C. 2929.12 Factors
{¶18} The Supreme Court of Ohio recently clarified an appellate court’s
review of a felony sentence under R.C. 2953.08(G)(2). See, State v. Jones, --- Ohio
St.3d ---, 2020-Ohio-6729, ¶ 39.1 The Supreme Court ruled that R.C.
2953.08(G)(2)(a) “clearly does not provide a basis for an appellate court to modify
or vacate a sentence if it concludes that the record does not support the sentence
under R.C. 2929.11 and R.C. 2929.12 because * * * R.C. 2929.11 and R.C. 2929.12
1
Because Jones was decided after the parties submitted their appellate briefs in this case, neither party has
had the opportunity to address its applicability. However, Jones “does not change the law” but instead
“clarifies existing law and precedents.” State v. Roberts, 5th Dist. Richland No. 2020 CA 0035, 2021-Ohio-
90, ¶ 81, fn. 2. Therefore, we elect to apply Jones to the instant case without the benefit of supplemental
briefing.
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are not among the statutes listed in the provision.” Id. at ¶ 31. Thus, the Supreme
Court concluded that an appellate court may not modify or vacate a felony sentence
based upon a finding by clear and convincing evidence that the record does not
support the trial court’s “findings” under R.C. 2929.11 and R.C. 2929.12. See id at
¶ 42 (“Nothing 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.”).
{¶19} The Supreme Court in Jones also confirmed that R.C.
2953.08(G)(2)(b) does not provide a mechanism for an appellate court to modify or
vacate a felony sentence based upon a finding that the sentence is “contrary to law”
because it clearly and convincingly is not supported by the record under R.C.
2929.11 and R.C. 2929.12. Id. at ¶ 32-39. “As a result of the Supreme Court’s
holding in Jones, when reviewing felony sentences that are imposed solely after
considering the factors in R.C. 2929.11 and R.C. 2929.12, we shall no longer
analyze whether those sentences are unsupported by the record. We simply must
determine whether those sentences are contrary to law.” State v. Dorsey, 2d Dist.
Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A sentence is contrary to law when
it does not fall within the statutory range for the offense or if the trial court fails to
consider the purposes and principles of felony sentencing set forth in R.C. 2929.11
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and the sentencing factors set forth in R.C. 2929.12.” Id. citing State v. Brown, 2d
Dist. No. 2016-CA-53, 2017-Ohio-8416, ¶ 74; see State v. D-Bey, 8th Dist.
Cuyahoga No. 109000, 2021-Ohio-60, ¶ 65 (“A sentence is ‘contrary to law’ if it
falls outside the statutory range for the offense or if the trial court fails to consider
the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the
sentencing factors set forth in R.C. 2929.12 when sentencing a defendant for a
felony offense.”).
{¶20} In sum, the record demonstrates that the prison terms imposed by the
trial court in this case are within the statutory range and that the trial court
considered the statutory factors in R.C. 2929.11 and 2929.12 when it fashioned
Reed’s aggregate sentence. Thus, Reed’s sentence is not clearly and convincingly
contrary to law, and it must therefore be affirmed. See Burks, 2d Dist. Clark No.
2019-CA-70, 2021-Ohio-224, ¶ 9, (“Under Jones, this ends the inquiry regarding
the individual sentences. Thus, there is no basis upon which to modify or vacate
either individual sentence.”); see also, D-Bey, supra, ¶ 75, citing Jones at ¶ 39
(concluding that “this court cannot review D-Bey’s sentences to determine whether
they are “excessive” or otherwise not “supported by the record under R.C. 2929.11
and 2929.12.”). On this basis, Reed’s first assignment of error is overruled.
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Second Assignment of Error
{¶21} In his second assignment of error, Reed claims that the trial court was
not authorized to impose an indefinite prison term for his three, second-degree
felony burglary convictions because they are not qualifying felonies as defined by
the Regan Tokes Law. On this basis, Reed argues that the indefinite sentencing
provisions of the Reagan Tokes Law do not apply to his burglary
convictions.2 Thus, Reed contends that the trial court’s sentence imposing a six to
nine-year indefinite prison term for each burglary conviction is contrary to law.
{¶22} On appeal, Reed primarily relies upon R.C. 2901.011, which states in
its entirety:
The amendments to sections 109.42, 121.22, 149.43, 2903.06,
2903.08, 2903.11, 2903.12, 2905.01, 2905.32, 2907.02, 2907.03,
2907.05, 2907.07, 2919.22, 2919.25, 2921.321, 2921.36, 2923.132,
2925.01, 2925.02, 2925.03, 2925.04, 2925.041, 2925.11, 2929.01,
2929.14, 2929.142, 2929.15, 2929.19, 2929.191, 2929.20, 2929.61,
2930.16, 2943.032, 2953.08, 2967.01, 2967.021, 2967.03, 2967.13,
2967.19, 2967.191, 2967.193, 2967.26, 2967.28, 2971.03, 3719.99,
5120.021, 5120.53, 5120.66, and 5120.80 and the enactment of
sections 2901.011, 2929.144, 2967.271, and 5120.038 of the
Revised Code by S.B. 201 of the 132nd general assembly
constitute the Reagan Tokes Law.
2
Regan Tokes Law provides that a court imposing a non-life imprisonment term for certain first and second-
degree felonies committed after the law’s March 22, 2019 effective date, defined as a qualifying felony, must
impose a minimum prison term which may be extended by one-half the minimum term due to institutional
infractions as determined by the Ohio Department of Corrections. See State v. Acosta, 6th Lucas Nos. L-20-
1068, L-20-1069, 2021-Ohio-757, ¶ 6.
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(Emphasis added). Reed claims that only the amended statutes listed in R.C.
2901.11 are qualifying felonies of the first or second degree subject to indefinite
sentencing under the Regan Tokes Law. Reed further argues that by omitting R.C.
2911.12, the statute defining the offense of burglary, from the list of amended
statutes, the Ohio Legislature indicated that second-degree felony burglary is not a
qualifying felony to which the indefinite sentencing provisions apply.
{¶23} However, in making this argument, Reed overlooks the fact that in
R.C. 2901.011, the Ohio Legislature defined the Reagan Tokes Law as constituting
all of the amended statutes listed in R.C. 2901.011 and four newly-enacted statutes,
one of which is R.C. 2929.144. Unlike R.C. 2901.011, R.C. 2929.144 contains a
specific definition of the term “qualifying felony of the first or second degree.” In
fact, other than R.C. 2929.144, there appears to be no statute in the Ohio Revised
Code that uses, much less defines, the term.
{¶24} As defined in R.C. 2929.144, a “ ‘qualifying felony of the first or
second degree’ means a felony of the first or second degree committed on or after
the effective date of this section.” R.C. 2929.144(A)(emphasis added). The
effective date of R.C. 2929.144, as well as all the statutory provisions comprising
the Reagan Tokes Law, is March 22, 2019. Thus, all first or second-degree felonies
committed on or after March 22, 2019, are qualifying felonies to which the
indefinite sentencing provisions of Reagan Tokes Law apply. Incidentally, there is
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no dispute among the parties that Reed committed his second-degree burglary
offenses after March 22, 2019.
{¶25} Revised Code section 2929.14, which is one of the many statutes
amended by the Reagan Tokes Law, reinforces the definition of a “qualifying felony
of the first or second degree” in R.C. 2929.144(A). Specifically, R.C.
2929.14(A)(2)(a), the division under which Reed was sentenced, states:
For a felony of the first degree committed on or after the effective
date of this amendment, the prison term shall be an indefinite
prison term with a stated minimum term selected by the court of
three, four, five, six, seven, eight, nine, ten, or eleven years and a
maximum term that is determined pursuant to section 2929.144
of the Revised Code, except that if the section that criminalizes
the conduct constituting the felony specifies a different minimum
term or penalty for the offense, the specific language of that
section shall control in determining the minimum term or
otherwise sentencing the offender but the minimum term or
sentence imposed under that specific language shall be considered
for purposes of the Revised Code as if it had been imposed under
this division.
(Emphasis added).
{¶26} Based on the foregoing, we find Reed’s reliance upon R.C. 2901.011
to be misplaced, as Reed fails to consider the other statutes that make up the Reagan
Tokes Law. It is apparent that R.C. 2901.011 generally delineates the newly-
enacted statutes and amended offenses that comprise the Reagan Tokes
Law. Unlike R.C. 2929.144, R.C. 2901.011 contains no specific, operative
language defining a qualifying degree felony subject to indefinite
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sentence. Furthermore, reading R.C. 2929.144 and 2929.14(A) together, it is clear
the defining characteristic of a qualifying first or second-degree felony is not its
inclusion in R.C. 2901.011’s list of amended and newly-enacted statutes, but rather
the critical inquiry is whether the offense was committed on or after the relevant
effective date. Accordingly on this basis, we decline to further address this matter
under an analysis of conflicting specific and general provisions under R.C. 1.51, as
Reed urges us to do, because we do not find that such an analysis is warranted.
{¶27} Reed’s second assignment of error is overruled.
{¶28} Based on the foregoing the assignments of error are overruled and the
judgment and sentence of the Union Court of Common Pleas is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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