State v. Gossman

[Cite as State v. Gossman, 

.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY




STATE OF OHIO,

       PLAINTIFF-APPELLEE,                                CASE NO. 7-21-01

       v.

ERIC D. GOSSMAN,                                          OPINION

       DEFENDANT-APPELLANT.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 20 CR 0086

                                     Judgment Affirmed

                             Date of Decision:   June 7, 2021




APPEARANCES:

        Autumn D. Adams for Appellant
Case No. 7-21-01


SHAW, J.

        {¶1} Defendant-appellant, Eric D. Gossman (“Gossman”), brings this appeal

from the December 9, 2020 judgment of the Henry County Common Pleas Court

sentencing him to five years of community control after Gossman pled guilty to, and

was convicted of, Felonious Assault in violation of R.C. 2903.11(A)(2), a first

degree felony. On appeal, Gossman argues that, even though he was placed on

community control, the indefinite prison term that was reserved by the trial court to

be imposed in the event that Gossman’s community control was revoked was

unconstitutional.

                                          Background

        {¶2} On August 26, 2020, Gossman was indicted for Aggravated Menacing

in violation of R.C. 2903.21(A), a first degree misdemeanor, Felonious Assault in

violation of R.C. 2903.11(A)(2), a first degree felony, and Assault on a Police

Officer in violation of R.C. 2903.13(A), a fourth degree felony. Pursuant to a

written negotiated agreement, Gossman pled guilty to Felonious Assault as indicted,

and, in exchange for his guilty plea, the remaining charges were dismissed. Further,

the state agreed that it would not object to the trial court “overcoming the

presumption for prison” and imposing a sentence of community control.1




1
  It was evident that Gossman was in favor of the state’s recommended sentence; however, it was not
officially an “agreed sentencing recommendation.”

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Case No. 7-21-01


       {¶3} After a pre-sentence investigation was conducted, Gossman was

sentenced to serve five years of community control as recommended by the state.

He was then notified that if he violated his community control, and if his community

control was revoked, he would be sentenced to four years in prison, with a maximum

indefinite prison term of six years. A judgment entry memorializing Gossman’s

sentence was filed December 9, 2020. It is from this judgment that he appeals,

asserting the following assignment of error for our review.

                            Assignment of Error
       Reagan Tokes is unconstitutional as it vests sentencing power in
       the Executive Branch and fails to afford Appellant access to an
       attorney at any disciplinary hearing while he is [in] ODRC’s
       custody.

       {¶4} In his assignment of error, Gossman argues that the Reagan Tokes Law

regarding indefinite sentencing for qualifying felonies is facially unconstitutional,

that it violates the separation of powers doctrine, and that it violates Gossman’s right

to due process.

                                 Standard of Review

       {¶5} 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, 

, 

. Clear and convincing evidence is that “ ‘which will produce in the mind of the


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Case No. 7-21-01


trier of facts a firm belief or conviction as to the facts sought to be established.’ ”

Id. at ¶ 22, quoting Cross v. Ledford, 

 (1954), paragraph three of

the syllabus.

                                      Analysis

       {¶6} Although we generally review sentencing determinations under the

standard set forth above, the constitutionality of a statute presents a question of law

we review de novo. Hayslip v. Hanshaw, 4th Dist. Highland No. 15CA20, 2016-

Ohio-3339, ¶ 27. Importantly, however, “[i]t is well settled that this court will not

reach constitutional issues unless absolutely necessary.” State v. Talty, 

, 

, ¶ 9. To determine the necessity of a constitutional

analysis we must first decide whether the issue is ripe for review. State v. Ramey,

4th Dist. Washington No. 20CA1, 

.

       {¶7} After reviewing the record and the applicable legal authority, we find

there are a number of issues in this case that prevent Gossman’s arguments against

“Reagan Tokes” from being ripe for review. First and foremost, Gossman’s prison

sentence has not been imposed; rather, he has been placed on community control.

Thus Gossman has not actually been sentenced to an “indefinite prison term” for a

“qualifying offense” under Reagan Tokes that would even potentially invoke his

arguments regarding facial constitutionality of the Regan Tokes Law, due process,

or separation of powers.


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Case No. 7-21-01


         {¶8} At this point, Gossman has only been notified that if he violates his

community control, and if the trial court elects to revoke his community control, he

will only then be subject to the reserved indefinite prison term for his qualifying

offense.2 “Ohio appellate courts have consistently held that ‘an appeal of a reserved

sentence of imprisonment that is part of a sentence of community control is not ripe

until an actual sentencing order imposes the prison term for community control

violation.’ ” State v. Daniel, 11th Dist. Trumbull No. 2014-T-0044, 2015-Ohio-

3826, ¶ 9, quoting State v. Poppe, 3d Dist. Auglaize No. 2–06–23, 2007–Ohio–688,

¶ 14; see also State v. McNeil, 12th Dist. Warren No. CA2018-09-115, 2019-Ohio-

1200, ¶ 20 (holding that consecutive sentence findings were not ripe for appeal when

appellant had been placed on community control and not sentenced to prison). In

this case, there is no guarantee that Gossman will ever be sentenced to the reserved

prison term, thus his constitutionality arguments are not ripe for appeal.

         {¶9} Second, we note that even if we assumed that the Reagan Tokes Law

impacted Gossman despite his actual sentence to community control, some Ohio

appellate courts have determined that certain “constitutional challenges to the

Reagan Tokes Law are not yet ripe for review because the appellant has not yet been

subject to the application of those provisions.” 

. Rather, these



2
  “[T]he notice does little more than set a ceiling on the potential prison term, leaving the court with the
discretion to impose a lesser term than the offender was notified of when a lesser term is appropriate.” State
v. Brooks, 

, 

, ¶ 23.

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Case No. 7-21-01


courts have held that, “the appropriate method to challenge the constitutionality of

the Reagan Tokes Law is by filing a petition for a writ of habeas corpus if the

defendant is not released at the conclusion of the minimum term of incarceration.”

 citing State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-

4227, ¶ 7-12; State v. Kepling, 3d Dist. Hancock No. 5-20-23, 

 (finding certain arguments regarding Reagan Tokes not to be ripe for appeal). In

other words, Gossman would need to challenge the indefinite portion of his

sentence, if and when it was actually invoked, not at the trial court’s reservation of

a prison term.

       {¶10} We are aware that issues regarding the constitutionality of the Reagan

Tokes Law are pending before the Supreme Court of Ohio, including whether the

challenges are ripe for review. See State v. Maddox, Sup Ct. Case No. 2020-1266

(being heard June 29, 2021).      However, even if the Supreme Court of Ohio

determined that Reagan Tokes challenges were ripe for review at the time a prison

sentence is initially imposed, the issue before us still would not be ripe because a

prison term has not been imposed in this case.

       {¶11} Furthermore, notwithstanding ripeness issues, we have already

reviewed and rejected a similar constitutional challenge to Reagan Tokes under a

separation of powers argument and under a challenge that Reagan Tokes lacked

certain procedural safeguards. See State v. Hacker, 3d Dist. Logan No. 8-20-01,


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Case No. 7-21-01

. Thus were we to reach the constitutional issues in the case before

us, we decline to depart from our recent prior precedent to the extent it is applicable.

       {¶12} Finally, we note that even if the issues in this case had been ripe for

review, and even if they survived our prior precedent overruling some similar

arguments, Gossman failed to raise his constitutional challenge at the trial court

level. Some Ohio appellate courts—including this Court—have declined to review

constitutional challenges to Reagan Tokes when the issue was not raised at the trial

court level. See State v. Ramey, 4th Dist. Washington No. 20CA1, 

, citing State v. Young, 8th Dist. Cuyahoga No. 108868, 

(“Young failed to raise a constitutional challenge to the Reagan Tokes Act in the

trial court, and we decline to address the issue for the first time on appeal.”); 

. For all of these reasons Gossman’s assignment of error is overruled.

                                      Conclusion

       {¶13} For the foregoing reasons the assignment of error is overruled and the

judgment of the Henry County Common Pleas Court is affirmed.

                                                                  Judgment Affirmed

ZIMMERMAN and MILLER, J.J., concur.

/jlr




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