State v. Rebarchek , 2021 Ohio 3142 ( 2021 )


Menu:
  • [Cite as State v. Rebarchek, 
    2021-Ohio-3142
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    HANCOCK COUNTY
    STATE OF OHIO,
    CASE NO. 5-21-02
    PLAINTIFF-APPELLEE,
    v.
    JOSHUA M. REBARCHEK,                                      OPINION
    DEFENDANT-APPELLANT.
    STATE OF OHIO,
    CASE NO. 5-21-03
    PLAINTIFF-APPELLEE,
    v.
    JOSHUA M. REBARCHEK,                                      OPINION
    DEFENDANT-APPELLANT.
    Appeal from Hancock County Common Pleas Court
    Trial Court Nos. 2020 CR 174 and 2020 CR 138
    Judgments Affirmed
    Date of Decision: September 13, 2021
    APPEARANCES:
    Lawrence A. Gold for Appellant
    Phillip A. Riegle for Appellee
    Case Nos. 5-21-02 and 5-21-03
    WILLAMOWSKI, P.J.
    {¶1} Defendant-appellant Joshua M. Rebarchek (‘Rebarchek”) brings this
    appeal from the judgments of the Court of Common Pleas of Hancock County
    sentencing him to an indeterminate sentence. Rebarchek alleges on appeal that the
    sentence violates the separation of power doctrine. For the reasons set forth below,
    the judgments are affirmed.
    {¶2} On February 5, 2021, the trial court entered a judgment of sentencing
    in trial court case number 2020 CR 174 (appellate number 5-21-02) noting that
    Rebarchek had been found guilty after a no contest plea of Pandering Obsecenity
    Involving a Minor in violation of R.C. 2907.321(A)(1) (Counts 1 and 2), Pandering
    Sexually Oriented Material Involving a Minor in violation of R.C. 2907.322(A)(5)
    (Count 4), Illegal Use of a Minor in a Nudity-Oriented Material or Performance in
    violation of R.C. 2907.323(A)(3) (Count 5), and Domestic Violence in violation of
    R.C. 2919.25(A) (Count 7). ADoc. 451. The trial court imposed the following
    prison terms: 1) Counts 1 and 2 received an indefinite prison term of seven years
    up to a maximum term of 10 ½ years; 2) Counts 4 and 5 received a definite prison
    term of 12 months; and 3) Count 7 received a prison term of 16 months. ADoc. 45.
    The sentences imposed as to Counts 1, 2, 4, 5 were ordered to be served concurrently
    with each other, but consecutive to that imposed in Count 7. ADoc. 45.
    1
    The docket in trial court case number 2020 CR 174 is identified as “ADoc.” The docket in trial court case
    number 2020 CR 138 is identified as “BDoc.”
    -2-
    Case Nos. 5-21-02 and 5-21-03
    {¶3} On that same date, the trial court also entered a judgment of sentencing
    in trial court case number 2020 CR 138 (appellate case number 5-21-03). BDoc.
    34. The entry noted that Rebarchek was found guilty of assault in violation of R.C.
    2903.13(A), a felony of the fourth degree. BDoc. 34. The trial court imposed a
    sentence of eight months and ordered that it be served consecutive to the sentence
    imposed in 2020 CR 174. BDoc. 34. The intent of the trial court in sentencing on
    both cases was for Rebarchek to serve a prison term ranging from 9 years to 12 ½
    years. BDoc. 34. Rebarchek filed a notice of appeal from this sentence. ADoc. 51
    and BDoc. 38. On appeal, he raises the following assignment of error.
    Indefinite Sentencing under the Reagan Tokes Act is
    unconstitutional under the Fourteenth Amendment of the United
    States Constitution and the Applicable sections of the Ohio
    Constitution.
    {¶4} In the sole assignment of error, Rebarchek solely argues that the statute
    is unconstitutional because it violates the separation of powers by allowing the
    executive branch of government to determine the length of sentence. This Court
    has previously addressed this issue in State v. Hacker, 3d Dist. Logan No. 8-20-01,
    
    2020-Ohio-5048
    , 
    161 N.E.3d 112
    . In Hacker, the defendant was sentenced to an
    indeterminate sentence and alleged that the statute was unconstitutional due to a
    violation of the separation of powers. This Court determined in Hacker that the
    statute was constitutional on its face as the maximum sentence was still determined
    by the judicial branch, not the executive branch. Similarly, this Court in State v.
    -3-
    Case Nos. 5-21-02 and 5-21-03
    Kepling, 3d Dist. Hancock No. 5-20-23, 
    2020-Ohio-6888
    , also held that there was
    no facial constitutional violation. Given our prior rulings in this case, we do not
    find that Rebarchek’s sentence violates the separation of powers provision of the
    U.S. Constitution or the Ohio Constitution. The assignment of error is overruled.
    {¶5} Having found no error in the particulars assigned and argued, the
    judgments of the Court of Common Pleas of Hancock County are affirmed.
    Judgments Affirmed
    ZIMMERMAN and SHAW, J.J., concur.
    /hls
    -4-
    

Document Info

Docket Number: 5-21-02 5-21-03

Citation Numbers: 2021 Ohio 3142

Judges: Willamowski

Filed Date: 9/13/2021

Precedential Status: Precedential

Modified Date: 9/13/2021