[Cite as State v. Barnes, 2020-Ohio-4150.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 28613
                                                  :
 v.                                               :   Trial Court Case No. 2019-CR-1865
                                                  :
 CHAD BARNES                                      :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                             OPINION

                            Rendered on the 21st day of August, 2020.

                                             ...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
     Attorney for Defendant-Appellant

                                             .............




TUCKER, P.J.
                                                                                       -2-


      {¶ 1} Defendant-appellant Chad Barnes appeals from his conviction for two counts

of aggravated robbery. For the reasons set forth below, we affirm.



                                I.     Facts and Procedural History

      {¶ 2} On June 6, 2019, upon a report of an armed robbery, a Montgomery County

Sheriff’s deputy was dispatched to a gas station located on West Third Street in Jefferson

Township. Upon arriving at the gas station, the deputy spoke with a woman and her

daughter, 17-year old A. The pair informed the deputy that A. had been forced by an

armed man, later identified as Barnes, to get into her mother’s car. At the time, A.’s

siblings, ages three and four, were already seated in the car. Barnes ordered A. to drive

away, but because she did not know how to drive, A. caused the car to collide with a pole

near the entrance of the gas station. Barnes exited the vehicle and ran up to and entered

a black truck; the truck then drove away.

      {¶ 3} The driver of the truck was Carl Wallace. He later informed the police that

Barnes forced him at gunpoint to drive south on Calumet Lane for a short distance, and

then Barnes ordered him to turn around and drive north. When Wallace reached the 300

block of Calumet, Barnes ordered him to stop the truck. Barnes then exited the truck

and ran into a field. A Lawncrest Avenue resident informed the police that Barnes forced

entry into a home located on that street. With the help of a canine unit, Barnes was

subsequently apprehended nearby.

      {¶ 4} Barnes was indicted on four counts of abduction in violation of R.C.

2905.02(A)(1), two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), one

count of trespass into a habitation in violation of R.C. 2911.12(B), and two counts of
                                                                                          -3-


having weapons while under disability in violation of R.C. 2923.13(A)(2).       All of the

abduction and aggravated robbery counts carried attendant firearm specifications.

Following plea negotiations, Barnes agreed to plead guilty to the two counts of aggravated

robbery and those attendant firearm specifications. In exchange, the State agreed to

dismiss the remaining counts and firearm specifications. The parties did not reach an

agreement as to sentencing.

      {¶ 5} A plea hearing was conducted on September 20, 2019.                During the

proceedings, the State read, verbatim, the relevant indictment counts (Counts V and VI)

and specifications into the record. The language in the indictment tracked the relevant

statutory language. The State did not set forth any factual details. However, the State

identified Wallace as the victim in Count V and A. as the victim in Count VI. Barnes

stated that he understood the charges. He also admitted that the charges, as read into

the record by the State, were true. Barnes entered a plea of guilty and submitted a plea

waiver form to the trial court. The trial court accepted the plea and found Barnes guilty

as charged.    The court set the matter for a sentencing hearing and ordered the

preparation of a presentence investigation report (“PSI”).

      {¶ 6} The sentencing hearing was conducted on October 18, 2019. After both

Barnes and his counsel made statements regarding sentencing, the prosecutor made a

statement in which she detailed the factual details of the offenses as set forth above.

      {¶ 7} The trial court sentenced Barnes to a term of three years in prison for each

of the gun specifications, to run consecutively with each other. The sentences for the

gun specifications were ordered to run prior and consecutively to a minimum prison term

of 12 years and a maximum prison term of 15 years on the aggravated robbery offenses,
                                                                                       -4-


for a total stated prison term of 18 to 21 years.1 Barnes appeals.



                                  II. Merger and Crim.R. 11

      {¶ 8} The first and second assignments of error asserted by Barnes state:

             THE TRIAL COURT ERRED WHEN IT CONSIDERED FACTS

      THAT BARNES DID NOT ADMIT TO AT THE TIME OF HIS GUILTY PLEA

      TO DECIDE THE ISSUE OF MERGER AT THE TIME OF SENTENCING.

             THE TRIAL COURT FAILED TO FOLLOW THE MANDATES OF

      CRIM.R. 11 RENDERING BARNES’ PLEA INVOLUNTARY AND

      UNKNOWING.

      {¶ 9} Barnes’s arguments in these assignments of error are interrelated and thus

will be discussed together. Barnes first contends the trial court improperly considered

facts not in the record in determining whether to merge the convictions.         He next

contends the trial court did not engage in a proper Crim.R. 11 colloquy because it did not

properly inform him of the fact that the convictions would not merge and therefore failed

to inform him of the maximum possible sentence. Implicit in these assignments of error,

although not expressly argued, is the claim that the convictions should have merged.

      {¶ 10} We review the trial court's determination that the offenses were allied

offenses de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d

1245, ¶ 28. R.C. 2941.25, Ohio's allied offenses statute, provides:

      (A) Where the same conduct by defendant can be construed to constitute



1
 This sentence was imposed in accord with the Reagan Tokes Law (S.B. 201), which is
discussed below.
                                                                                          -5-


        two or more allied offenses of similar import, the indictment or information

        may contain counts for all such offenses, but the defendant may be

        convicted of only one.

        (B) Where the defendant's conduct constitutes two or more offenses of

        dissimilar import, or where his conduct results in two or more offenses of

        the same or similar kind committed separately or with a separate animus as

        to each, the indictment or information may contain counts for all such

        offenses, and the defendant may be convicted of all of them.

        {¶ 11} “When determining whether two offenses are allied offenses of similar

import subject to merger, the conduct of the accused must be considered.” State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus. The Supreme

Court of Ohio later explained its holding in Johnson by articulating the following three-part

test:

        A trial court and the reviewing court on appeal when considering whether

        there are allied offenses that merge into a single conviction under R.C.

        2941.25(A) must first take into account the conduct of the defendant. In

        other words, how were the offenses committed? If any of the following is

        true, the offenses cannot merge and the defendant may be convicted and

        sentenced for multiple offenses:

        (1) the offenses are dissimilar in import or significance—in other words,

        each offense caused separate, identifiable harm,

        (2) the offenses were committed separately, or

        (3) the offenses were committed with separate animus or motivation.
                                                                                            -6-


State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25.

       {¶ 12} Barnes’s arguments in these assignments of error are premised upon the

fact that, during the sentencing hearing, the prosecutor stated for the first time the

underlying factual details regarding the offenses. Barnes contends that since these facts

were not presented during the plea hearing, he did not plead guilty to them, and the trial

court could not consider them at sentencing when deciding whether to merge the

convictions.

       {¶ 13} We find this argument to be without merit. First, the trial court is entitled to

refer to factual allegations set forth in the PSI. (See Part III, below.) In this case, the PSI

set forth the underlying facts stated by the prosecutor at sentencing. Thus, these facts

would have been before the trial court even if the prosecutor had omitted them.

       {¶ 14} Second, as admitted by Barnes, during the plea hearing the prosecutor

explicitly stated that the two charges of aggravated robbery involved separate victims.

Barnes does not dispute the fact that the offenses involved different victims.              In

accordance with Ruff, this court has stated, that when offenses involve separate victims,

they are of dissimilar import or significance and do not merge. State v. Wells, 2015-

Ohio-3511, 41 N.E.3d 216, ¶ 15 (2d Dist.). The fact that the two separate offenses to

which Barnes pleaded guilty involved two different victims – a fact he admits and which

was stated both during the plea hearing and the sentencing hearing – was sufficient to

preclude merger of the convictions for purposes of sentencing.

       {¶ 15} Finally, Barnes’s claim that the trial court did not conduct a proper Crim.R.

11 colloquy is simply incorrect. The record demonstrates the trial court informed Barnes

that the sentences could be ordered to be served consecutively, and if this occurred, it
                                                                                           -7-


would lengthen the minimum and maximum terms of the sentence. The record shows

Barnes acknowledged he understood the meaning of consecutive sentencing and the fact

that consecutive sentences would result in longer minimum and maximum prison terms.

The record also demonstrates the trial court correctly informed Barnes of the actual length

of the longest minimum and maximum sentences he would face if the sentences were

run consecutively. Again, Barnes indicated he understood the potential sentences.

       {¶ 16} Based upon the record before us, we conclude Barnes’s arguments lack

merit. Therefore, the first and second assignments of error are overruled.



                                    III. Consecutive Sentence

       {¶ 17} Barnes’s third assignment of error states:

       BARNES’ CONSECUTIVE SENTENCE IS CONTRARY TO LAW.

       {¶ 18} In this assignment of error, Barnes asserts the trial court improperly ordered

the sentences for each count of aggravated robbery to run consecutively to each other.

In support, he again argues that the trial court erred by considering “additional facts at the

time of sentencing that Barnes did not admit at the time of his plea.”

       {¶ 19} R.C. 2929.14(C)(4) permits a trial court to impose consecutive sentences if

it determines that: (1) consecutive service is necessary to protect the public from future

crime or to punish the offender; (2) consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public;

and (3) one or more of the following three findings are satisfied:

       (a) The offender committed one or more of the multiple offenses while the

       offender was awaiting trial or sentencing, was under a sanction imposed
                                                                                        -8-


      pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

      was under post-release control for a prior offense.

      (b) At least two of the multiple offenses were committed as part of one or

      more courses of conduct, and the harm caused by two or more of the

      multiple offenses so committed was so great or unusual that no single

      prison term for any of the offenses committed as part of any of the courses

      of conduct adequately reflects the seriousness of the offender's conduct.

      (c) The offender's history of criminal conduct demonstrates that consecutive

      sentences are necessary to protect the public from future crime by the

      offender.

R.C. 2929.14(C)(4)(a)-(c).

      {¶ 20} In appeals “involving the imposition of consecutive sentences, R.C.

2953.08(G)(2)(a) directs the appellate court ‘to review the record, including the findings

underlying the sentence’ and to modify or vacate the sentence ‘if it clearly and

convincingly finds * * * [t]hat the record does not support the sentencing court's findings

under [R.C. 2929.14(C)(4)].’ ” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, ¶ 28. “[W]here a trial court properly makes the findings mandated by R.C.

2929.14(C)(4), an appellate court may not reverse the trial court's imposition of

consecutive sentences unless it first clearly and convincingly finds that the record does

not support the trial court's findings.” State v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553,

¶ 38 (2d Dist.). See also State v. Gwynne, 156 Ohio St.3d 279, 2019-Ohio-4761, 141

N.E.3d 169.

      {¶ 21} Barnes does not claim the trial court failed to make the necessary statutory
                                                                                        -9-


findings to impose consecutive sentences or that it failed to give reasons to support its

findings. Instead, he claims the court improperly considered the facts underlying the

charged offenses to which he did not plead guilty.

      {¶ 22} Our review of the record reveals that the trial court, both at sentencing and

in its judgment entry, did make the findings required by R.C. 2929.14(E)(4)(c) and gave

its reasons as required by R.C. 2929.19(B)(2)(c). Specifically, the court stated:

      The Court finds * * * that consecutive serve - - sentence is necessary to

      protect the public from future crime or to punish the offender.          The

      consecutive sentences are not disproportionate to the seriousness of the

      offender’s conduct, and to the danger the offender poses to the public.

      Additionally, the offender’s criminal history and conduct demonstrates that

      consecutive sentences are necessary to protect the public from future crime

      by the offender.

Sentencing Tr. p. 30; see also Judgment Entry of Conviction, p. 2.

      {¶ 23} Barnes’s claim that the trial court improperly considered the facts underlying

the offenses to which he did not plead guilty is not well-taken. This court has stated “the

evidence the court may consider [at sentencing] is not confined to the evidence that

strictly relates to the conviction offense because the court is no longer concerned * * *

with the narrow issue of guilt.” State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951,

926 N.E.2d 714, ¶ 14 (2d Dist.). Therefore, the sentencing court “may consider ‘hearsay

evidence, facts related to charges that were dismissed pursuant to a plea bargain, and

allegations contained in a [presentence investigation] report.’ ” State v. Davis, 2d Dist.

Clark No. 2018-CA-49, 2019-Ohio-1904, ¶ 47, quoting State v. Bautista, 2d Dist. Clark
                                                                                       -10-


No. 2015-CA-74, 2016-Ohio-5436, ¶ 12. As noted above, a PSI was admitted into the

record. The PSI sets forth the underlying facts. Thus, those facts were properly before

the trial court.

       {¶ 24} Further, the PSI supported the imposition of consecutive sentences. As

noted in the PSI, Barnes’s prior criminal history included a charge of aggravated burglary

when he was 15 years old.        The PSI also showed Barnes had 12 misdemeanor

convictions spanning from 2003 to 2012.       His adult felony record included a 1997

conviction for aggravated robbery and burglary, two 2006 convictions for robbery, and a

2013 conviction for failure to comply.

       {¶ 25} We conclude the record does not support Barnes’s claim that the trial court

considered any facts or evidence not properly before it. We further conclude the trial

court complied with the appropriate statutory requirements before ordering consecutive

service.    Finally, we conclude the record supports the imposition of consecutive

sentences. Accordingly, the third assignment of error is overruled.



                                    IV. Reagan Tokes Law

       {¶ 26} The fourth assignment of error asserted by Barnes is as follows:

       BARNES’ SENTENCE IS CONTRARY TO LAW BECAUSE HE WAS

       SENTENCED PURSUANT THE [SIC] REAGAN TOKES ACT, WHICH IS

       UNCONSTITUTIONAL.

       {¶ 27} Barnes contends the newly-enacted statutory sentencing scheme

established by the Reagan Tokes Law is unconstitutional. He thus asserts his sentence

imposed thereunder must be vacated.
                                                                                          -11-


      {¶ 28} The Reagan Tokes Law (S.B. 201) was enacted in 2018 and became

effective on March 22, 2019.      R.C. 2901.011.      Under the law, qualifying first- and

second-degree felonies committed on or after March 22, 2019 are now subject to the

imposition of indefinite sentences. The law specifies that these indefinite terms will

consist of a minimum term selected by the sentencing judge from a range of terms set

forth in R.C. 2929.14(A) and a maximum term determined by formulas set forth in R.C.

2929.144.

      {¶ 29} Additionally, the law establishes a presumptive release date at the end of

the minimum term imposed.       R.C. 2967.271(B).      However, the Ohio Department of

Rehabilitation and Correction (ODRC) may rebut that presumption and keep the offender

in prison for an additional period not to exceed the maximum term imposed by the

sentencing judge. R.C. 2967.271(C). In order to rebut the presumption, the ODRC

must conduct a hearing and determine whether any of the following factors are applicable:

      (1) 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 [and]

      [t]he 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.
                                                                                          -12-


        (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.

R.C. 2967.271(C)(1), (2) and (3).

        {¶ 30} As with any statute enacted by the General Assembly, the Reagan Tokes

Law is entitled to a “strong presumption of constitutionality.” State v. Romage, 138 Ohio

St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. Thus, “if at all possible, statutes must be

construed in conformity with the Ohio and the United States Constitutions.” State v.

Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991).               A party challenging the

constitutionality of a statute bears the burden of proving that it is unconstitutional beyond

a reasonable doubt. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d

1254, ¶ 41, citing State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110,

¶ 12.

        {¶ 31} As a general rule, a constitutional argument not raised in the trial court is

“waived and cannot be raised for the first time on appeal.” State v. Brewer, 2d Dist.

Montgomery No. 26153, 2015-Ohio-693, ¶ 36.                However, we retain the ability “to

consider constitutional challenges to the application of statutes in specific cases of plain

error or where the rights and interests involved may warrant it.” Id., citing In re M.D., 38

Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.

        {¶ 32} Barnes claims the new sentencing provisions violate due process and the
                                                                                           -13-


doctrine of separation of powers. Specifically, he argues the law is unconstitutional

because it permits the ODRC, rather than a trial court, to make the factual determination

whether to extend a defendant’s prison term. His argument is based upon the holdings

in State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000) and State v.

Oneal, Hamilton C.P. No. 1903562 (Nov. 20, 2019).

       {¶ 33} In Bray, the Ohio Supreme Court addressed the constitutionality of R.C.

2967.11 (which has since been repealed). That statute stated, in pertinent part, that “[a]s

part of a prisoner’s sentence, the parole board may punish a violation committed by the

prisoner by extending the prisoner’s stated prison term for a period of fifteen, thirty, sixty,

or ninety days in accordance with this section. If a prisoner’s stated term is extended

under this section, the time by which it is so extended shall be referred to as ‘bad time.’ ”

R.C. 2967.11(B). A “violation” was defined as “an act that is a criminal offense under the

law of this state or the United States, whether or not a person is prosecuted for the

commission of the offense.”          R.C. 2967.11(A).     Other sections in R.C. 2967.11

articulated the procedures that were followed to determine whether a “violation” (a crime)

had been committed. Bray at 135.

       {¶ 34} The Supreme Court held, “[i]n short, R.C. 2967.11(C), (D), and (E) enable[d]

the executive branch to prosecute an inmate for a crime, to determine whether a crime

has been committed, and to impose a sentence for that crime.” Id. The court held the

statute improperly permitted the executive branch to act “as judge, prosecutor, and jury *

* * [and thereby] intrude[d] well beyond the defined role of the executive branch as set

forth in our Constitution.”    Id.    Thus, the Court found the statute unconstitutional

because it violated the separation of powers doctrine. Id. at 136.
                                                                                        -14-


       {¶ 35} In reliance upon the reasoning in Bray, the trial court in Oneal concluded

the Reagan Tokes legislation is unconstitutional because it likewise cedes judicial powers

to the executive branch. The trial court noted, “[t]he conditions that the [ODRC] may

consider in determining whether an offender should not be released upon the end of [his]

minimum prison term may include a ‘violation of law’ ” which, like the bad time statute “is

synonymous with a criminal offense.” Oneal, Hamilton C.P. No. 1903562, *5. Oneal

also found the Reagan Tokes Law violates due process because it does not provide for

a judicial hearing prior to the extension of a prison term beyond the minimum term.

       {¶ 36} Barnes’s reliance upon Bray and Oneal is misplaced because there is a

significant distinction between the imposition of “bad time” as allowed by R.C. 2967.11

and the Reagan Tokes Law. R.C. 2967.11 authorized the parole board to sentence a

defendant to an additional prison term beyond that which had been imposed by the trial

court. In Bray, the defendant had served the entirety of the definite sentence imposed

by the trial court; the parole board then tacked an additional prison term onto the

defendant’s sentence. In contrast, under Reagan Tokes, the executive branch cannot

keep a defendant in prison beyond the maximum sentence imposed by the trial court. In

short, Reagan Tokes does not allow the ODRC to lengthen a defendant’s sentence

beyond the maximum sentence imposed by the trial court. We thus conclude that Bray

and Oneal do not compel the conclusion that the Reagan Tokes Law violates the

separation of powers doctrine.

       {¶ 37} Finally, as noted, Barnes did not raise a constitutional challenge to the

Reagan Tokes Law in the trial court and thus has waived appellate review. Based upon

the argument asserted in Barnes’s assignment of error, we find no plain error, and
                                                                                      -15-


Barnes’s argument does not assert a right or interest that necessitates our review.

       {¶ 38} We therefore conclude that the necessity for a decision on Barnes’s

constitutional challenges is not apparent from the record at this time. Further, even had

he not waived review, Barnes’s argument does not compel us to conclude the Reagan

Tokes Law is unconstitutional. Accordingly, the fourth assignment of error is overruled.2



                                        V. Conclusion

       {¶ 39} All of Barnes’s assignments of error being overruled, the judgment of the

trial court is affirmed.



                                    .............



FROELICH, J. and HALL, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Lisa M. Light
Ben M. Swift
Hon. Gerald Parker




2
  Barnes also contends that the Reagan Tokes Law violates his right to due process.
This contention seems to be premised upon the assertion that he has a due process right
to have a judge determine whether the presumed minimum prison term will be extended.
This argument, though precluded by waiver, does not seem well founded. The extension
of a defendant’s sentence beyond the presumptive minimum term is akin to the decision
to grant or deny parole. The parole decision in Ohio is an executive function that does
not involve the judiciary. See Woods v. Telb, 89 Ohio St.3d 504, 2000-Ohio-171, 733
N.E. 2d 1103.
