[Cite as State v. Ferguson, 2020-Ohio-4153.]




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

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 28644
                                                     :
 v.                                                  :   Trial Court Case No. 2019-CR-2097
                                                     :
 JAMES JOSHUA FERGUSON                               :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                            Rendered on the 21st day of August, 2020.

                                                ...........

MATHIAS H. HECK JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066
    Attorney for Defendant-Appellant

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



HALL, J.
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       {¶ 1} James Joshua Ferguson appeals his convictions for aggravated possession

of drugs and having weapons while under disability. Finding no error, we affirm.

                         I. Facts and Procedural Background

       {¶ 2} Ferguson was indicted on one count each of aggravated possession of

drugs, a second-degree felony; having weapons while under a disability (prior drug

conviction), a third-degree felony; and carry concealed weapons, a fourth-degree felony.

He moved to suppress all evidence obtained from what Ferguson alleged was an unlawful

stop, search, and seizure. A suppression hearing was held at which evidence was

presented that established the following facts.

       {¶ 3} On April 26, 2019, Officer Paul Datkiss, a police officer for the City of

Trotwood, was on road patrol, uniformed and driving a marked cruiser. Around 1:20 p.m.,

he was dispatched to the location of a possible hit-and-run accident. Datkiss was the first

officer on the scene. Paramedics were already there attending to a man, later identified

as Ferguson, who had been hit by a car while driving his motorcycle. A medic told Datkiss

that Ferguson was refusing medical treatment. In an effort to figure out what had

happened, Datkiss approached Ferguson and asked him. Ferguson explained that he

was trying to make a turn around one of the islands that divides the north and south lanes

of the road when a grey vehicle struck him, hitting his left leg. According to Ferguson, the

driver had stopped, but Ferguson told him to leave and that he was okay. Officer Datkiss

thought that Ferguson was acting a little odd: he had just been hit by a vehicle but did not

want to be treated by the paramedics or to file a police report.

       {¶ 4} Officer Stephanie Anderson arrived shortly after Officer Datkiss. After Datkiss
                                                                                         -3-


had talked to Ferguson, Officer Anderson took over the investigation. She asked Datkiss

if he had searched Ferguson for weapons, and Datkiss answered that he had not. Officer

Datkiss then asked Ferguson if he was armed. Ferguson admitted that he was carrying a

concealed handgun in a shoulder holster. He also admitted that he did not have a conceal-

carry permit in either West Virginia (where he was from) or Ohio. When asked, Ferguson

also admitted that he had prior felony convictions. Officer Anderson then handcuffed

Ferguson and removed the loaded handgun from the holster.

       {¶ 5} Officer Datkiss testified that Ferguson was not under arrest before admitting

that he had the gun and that, after Ferguson’s admissions, the officers’ investigation

shifted to the gun. Datkiss asked Ferguson if he was carrying any other weapons, and

Ferguson said that there was a knife in his right pocket; Datkiss retrieved the knife and

handed it to Officer Anderson. Datkiss asked Ferguson if he had any other weapons, and

Ferguson said that there was also a knife in his left pocket. While retrieving this knife,

Officer Datkiss felt what he immediately knew was a syringe based on his training and

experience. When Datkiss grasped the syringe, he also grasped a baggie containing what

he suspected, based on his knowledge, training, and experience, was drug residue.

       {¶ 6} The officers then brought Ferguson over to Officer Anderson’s cruiser and

searched him. In his front left jacket pocket, they found a plastic cup with a clear plastic

lid. Inside the cup, Officer Datkiss found a handful of new Ziploc baggies and a baggie

containing what he suspected (and what later testing confirmed) was methamphetamine.

       {¶ 7} Based on these facts, the trial court overruled Ferguson’s motion to

suppress. The court concluded that the encounter with Officer Datkiss was consensual

and that Ferguson voluntarily admitted that he was armed, did not have a permit, and had
                                                                                          -4-


prior felony convictions. The court concluded that these circumstances gave the officers

probable cause to search him, which led to the discovery of the drugs.

       {¶ 8} Ferguson pleaded no contest to aggravated possession of drugs and having

weapons while under disability, and the trial court found him guilty on both charges. The

state dismissed the concealed-weapons charge. Although the court initially imposed a

definite sentence of two years in prison, before the conclusion of the sentencing hearing

the court determined that the recently-enacted Reagan Tokes Law affected Ferguson’s

sentence. The court then fully advised Ferguson of the impact of that statute and

proceeded to sentence him accordingly. Defense counsel objected that the Regan Tokes

Law was unconstitutional, but the court ruled that it was the law in Ohio and that the court

would follow it. For the drug offense, the court sentenced Ferguson to an indefinite

prison term of a minimum of two years to a maximum of three years; for the weapons

offense, the court sentenced him to a concurrent minimum prison term of 12 months.

       {¶ 9} Ferguson appeals.

                                        II. Analysis

       {¶ 10} Ferguson assigns two errors to the trial court. The first challenges the denial

of his motion to suppress. The second challenges the constitutionality of the Reagan

Tokes Law.

                     A. The overruling of the motion to suppress

       {¶ 11} The first assignment of error alleges that the trial court erred by denying

Ferguson’s motion to suppress. Appellate review of a motion to suppress presents a

mixed question of fact and law. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶ 8. An appellate court accepts the trial court’s findings of fact if they are
                                                                                        -5-


supported by competent, credible evidence. Id. “Accepting these facts as true, the

appellate court must then independently determine, without deference to the conclusion

of the trial court, whether the facts satisfy the applicable legal standard.” Id.

       {¶ 12} The Fourth Amendment to the United States Constitution, and Section 14,

Article I of the Ohio Constitution, protect individuals from unreasonable searches and

seizures conducted by police officers. See Delaware v. Prouse, 44 U.S. 648, 662, 99

S.Ct. 1391, 59 L.Ed.2d 66 (1979); State v. Robinette, 80 Ohio St.3d 234, 238, 685 N.E.2d

762 (1997). The Fourth Amendment is “not implicated every time a police officer has

contact with a citizen.” State v. Greene, 2d Dist. Montgomery No. 26138, 2015-Ohio-

2060, ¶ 14; see also California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113

L.Ed.2d 690 (1991). It is implicated in an investigatory detention, because the detention

constitutes a “seizure.” See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968). But a seizure does not occur in what is known as a consensual encounter, a

situation in which “a police officer approaches an individual and asks a few questions,”

and therefore the Fourth Amendment is not implicated. Florida v. Bostick, 501 U.S. 429,

434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The trial court concluded that the encounter

was consensual, but Ferguson contends that his encounter with the police officers was

an investigatory detention.

       {¶ 13} The tests for both an investigatory detention and a consensual encounter

are objective. “An individual is subject to an investigatory detention when, in view of all

the circumstances surrounding the incident, by means of physical force or show of

authority, a reasonable person would have believed that he was not free to leave or [was]

compelled to respond to questions.” State v. Lewis, 2d Dist. Montgomery No. 22726,
                                                                                         -6-


2009-Ohio-158, ¶ 22, citing United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct.

1870, 64 L.Ed.2d 497 (1980), and Terry at 19, fn. 16. A consensual encounter occurs

“when the police merely approach a person in a public place and engage the person in

conversation, and the person remains free not to answer and to walk away.” Id. at ¶ 21,

citing Mendenhall at 553. In other words, “[s]o long as a reasonable person would feel

free ‘to disregard the police and go about his business’ the encounter is consensual.”

Bostick at 434, quoting Hodari D. at 628. The consensual nature of an encounter is not

lost by police questioning. Id. (“mere police questioning does not constitute a seizure”).

       {¶ 14} The trial court found that Officer Datkiss believed that Ferguson had been

the victim of a hit-and-run and that Datkiss was trying to find out what had happened. As

far as the officers knew, Ferguson was the victim of a crime, not the perpetrator. There is

no evidence that Datkiss or Officer Anderson was in any way coercive—whether by

physical force or show of authority. In short, nothing about the circumstances would have

led a reasonable person to believe that he was not free to leave or that he was required

to respond to the officers’ questions. At the time that Officer Datkiss asked Ferguson if he

was armed, a reasonable person in that situation would have felt free to disregard the

question and leave. The facts in the record reasonably support the trial court’s conclusion

that the contact between Ferguson and the police officers constituted a consensual

encounter.

       {¶ 15} Furthermore, Officer Datkiss was not prohibited from asking Ferguson if he

was armed, despite having no reason to suspect that he was. During a consensual

encounter, there are no restrictions on the subject matter of a police officer’s questions.

The U.S. Supreme Court has said, “even when officers have no basis for suspecting a
                                                                                               -7-


particular individual, they may generally ask questions of that individual; ask to examine

the individual’s identification; and request consent to search his or her luggage, as long

as the police do not convey a message that compliance with their requests is required.”

(Citations omitted.) Bostick, 501 U.S. at 434-435, 111 S.Ct. 2382, 115 L.Ed.2d 389. We

note too that during a valid traffic stop—a seizure triggering the Fourth Amendment—a

police officer may ask questions even if unrelated to the detention, even about other

crimes. See Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694

(2009) (“[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop

* * * do not convert the encounter into something other than a lawful seizure”); State v.

Lawson, 180 Ohio App.3d 516, 2009-Ohio-62, 906 N.E.2d 443, ¶ 39 (2d Dist.) (any

questioning that occurs during a traffic stop, even if unrelated to the detention, is valid).

       {¶ 16} Once Ferguson voluntarily answered Officer Datkiss’s question and

admitted that he was armed, and further admitted that he did not have a concealed-carry

permit and had prior felony convictions, the officers had probable cause to search

Ferguson, which led to the lawful discovery of the drugs.

       {¶ 17} The trial court did not err by overruling Ferguson’s motion to suppress. The

first assignment of error is overruled.

                   B. The constitutionality of the Reagan Tokes Law

       {¶ 18} The second assignment of error alleges that Ferguson’s sentence under the

Reagan Tokes Law (S.B. 201) was unlawful because the Law is unconstitutional.

Ferguson argues that the Law violates the separation-of-powers doctrine and deprives

an offender of due process.
                                                                                         -8-


       {¶ 19} “An enactment of the General Assembly is presumed to be constitutional,

and before a court may declare it unconstitutional it must appear beyond a reasonable

doubt that the legislation and constitutional provisions are clearly incompatible.” State ex

rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of

the syllabus; Woods v. Telb, 89 Ohio St.3d 504, 510-511, 733 N.E.2d 1103 (2000)

(quoting the same). “[T]he party challenging the statute bears the burden of proving the

unconstitutionality of the statute.” Woods at 511, citing State v. Thompkins, 75 Ohio St.3d

558, 560, 664 N.E.2d 926 (1996).

       {¶ 20} The Reagan Tokes Law, effective on March 22, 2019, “ ‘significantly

altered the sentencing structure for many of Ohio’s most serious felonies’ by

implementing an indefinite sentencing system for those non-life felonies of the first and

second degree, committed on or after the effective date.” State v. Polley, 6th Dist. Ottawa

No. OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1. The Law requires the sentencing judge to

impose a “minimum term” from within the currently established sentencing range and a

“maximum term” of an additional fifty percent of the imposed minimum term. See R.C.

2929.144(B). “Release [from prison] is presumed to occur at the expiration of the

‘minimum term,’ however the Department of Rehabilitation and Corrections [DRC] may,

under certain circumstances rebut that release presumption and impose additional prison

time up to the ‘maximum term.’ ” The Ohio Criminal Sentencing Commission, SB 201

Quick Reference Guide July 2019. The DRC may also reduce the minimum term, with the

approval of the sentencing court. Id.

       {¶ 21} Ferguson first argues that the Reagan Tokes Law violates the separation-

of-powers doctrine. The Ohio Supreme Court has said that “[t]he administration of justice
                                                                                           -9-


by the judicial branch of the government cannot be impeded by the other branches of the

government in the exercise of their respective powers.” State ex rel. Johnston v. Taulbee,

66 Ohio St.2d 417, 423 N.E.2d 80 (1981), paragraph one of the syllabus. Ferguson says

that the Reagan Tokes Law usurps judicial authority by delegating to the DRC the power

to impose additional prison time beyond the minimum. He relies on State ex rel. Bray v.

Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000), in which the Ohio Supreme Court

held that a statute that allowed the parole board to punish criminal conduct committed by

a prisoner by extending the prisoner's stated prison term violated the separation-of-

powers doctrine. The Court found that this “bad time” statute established a scheme in

which the parole board acted “as judge, prosecutor, and jury,” for the commission of a

crime that could be prosecuted as a felony. Bray at 135.

       {¶ 22} But Ferguson fails to mention that, a couple of months after deciding Bray,

the Court decided Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000), holding

that the post-release-control statute did not violate the separation-of-powers doctrine. The

post-release-control statute required a court to impose the terms of post-release control

and left it to the Adult Parole Authority (APA) to determine whether to impose sanctions

for any violation of the terms. The Court said that this statute was “clearly distinguishable”

from the bad-time statute at issue in Bray. Woods at 512. Unlike additional prison time

under the latter statute, post-release-control terms were made part of the original judicially

imposed sentence. “[B]ecause the APA’s discretion in managing post-release control

does not impede the function of the judicial branch,” said the Court, the post-release-

control statute did not violate the separation-of-powers doctrine. Id.
                                                                                      -10-


       {¶ 23} In later decisions, the Court has made it clear that, when the power to

sanction is delegated to the executive branch, a separation-of-powers problem is avoided

if the sanction is originally imposed by a court and included in its sentence. See

Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-20, citing

State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19, citing Woods.

Such is the case under the scheme established by the Reagan Tokes Law. A court

imposes both the minimum and maximum prison terms, including both in its sentence.

The DRC then determines whether the offender merits more than the minimum and up to

the maximum imposed. In terms of the separation of powers, the delegation of power to

the DRC is like the system of post-release control: “Those terms are part of the actual

sentence, unlike bad time, where a crime committed while incarcerated resulted in an

additional sentence not imposed by the court. In other words, the court imposes the full

sentence and the [DRC] determines whether violations merited its imposition.” Woods at

511. Accordingly, the Reagan Tokes Law does not violate the separation-of-powers

doctrine.

       {¶ 24} Ferguson also argues that the Reagan Tokes Law violates due process by

giving the DRC unfettered discretion to decide whether an offender’s actions merit more

than the minimum term.

       {¶ 25} “[T]he fundamental requisite of due process of law is the opportunity to be

heard in a meaningful time and in a meaningful manner.” Woods at 513, citing Goldberg

v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The Reagan Tokes

Law satisfies these requirements. The Law states that, in order to rebut the presumption

of the minimum term, the DRC must make a particular statutory determination “at a
                                                                                        -11-


hearing.” R.C. 2967.271(C) and (D). The Law does not give the DRC unfettered discretion

to require an offender to serve more than the minimum term. And it affords an offender

notice and an opportunity to be heard before more than the minimum may be required.

       {¶ 26} Lastly, in support of both of his constitutional arguments, Ferguson cites a

Hamilton County trial court decision, State v. Oneal, Hamilton C.P. No. B 1903562, 2019

WL 7670061 (Nov. 20, 2019), which concluded that the Reagan Tokes Law is

unconstitutional because it violates the separation-of-power doctrine and due process.

The court analogizes the Law to the bad-time statute in Bray and concludes that that Law

“clearly violates the separation of powers doctrine,” because it allows the DRC rather than

a judge to determine whether to give an “additional sentence.” Id. at *5. And because it

concluded that a judge should be involved, the trial court also concluded that the Law

violates due process. But these conclusions are unpersuasive because the court did not

consider Woods at all. Consequently, we conclude that court failed to recognize that

under the Reagan Tokes Law a court imposes the “additional sentence” when imposing

a maximum prison term.

       {¶ 27} Ferguson fails to prove that the Reagan Tokes Law is unconstitutional, so

he has not shown that his sentence was unlawful. The second assignment of error is

overruled.

                                     C. Conclusion

       {¶ 28} We have overruled both of the assignments of error presented. The trial

court’s judgment is affirmed.

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

TUCKER, P.J., concurs.
                                                                                        -12-


FROELICH, J., concurs:

      {¶ 29} Given the record in this case, I concur in the judgment and write only to note

that the facts may push the limit of when a reasonable person would feel free to disregard

a uniformed law enforcement officer and/or just walk away and/or ignore the police

presence and go about his business.




Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Johnna M. Shia
Hon. Gerald Parker
